Robbie’s Law – Telling the truth about medical harm
In 2001, the Bristol Inquiry concluded that ‘when things go wrong, hospitals and healthcare professionals have a duty of candour: to be open and honest.’ The culture of blame and bullying in the NHS prevented this from taking root so in 2009, the Health Select Committee proposed a statutory duty of candour, following a long-standing campaign by Action Against Medical Accidents and the relatives of Robbie Powell. Labour resisted legislation, as have the coalition, opting instead for a weak contractual obligation for providers to publish a ‘declaration of a commitment to openness’ on their website, or face a fine. The ‘principle of openness’ has also been enshrined in the toothless NHS Constitution. This is particularly insulting to the bereaved relatives at Mid Staffs, who are hoping Robert Francis QC, himself a negligence lawyer, may force the NHS to finally be honest about the harm and distress it causes, often lasting decades.
In 1990, 10 year old Robbie Powell died in Morriston Hospital, Swansea after many doctors failed to diagnose his Addison’s disease. Just 22 years later, the Welsh Government published a report into his avoidable death and the lessons that need to be learned1. The Health Authority admitted liability and made a payment of £80,000 in respect of the death, but the Court of Appeal judged that doctors were not legally obliged to explain the circumstances surrounding the death of Robbie to his parents. The Powell family was refused leave to appeal to the House of Lords and was unsuccessful at the European Court of Human Rights, which in 2000 endorsed that ‘doctors have no duty to give parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records.’2
Had the Powells settled out of court, they might have received £300,000 in compensation. But truth and justice has always been more important to them, and they lost everything to fight for Robbie’s Law. The Robbie Powell cover up and the legal legitimacy of a doctor’s right to lie – which still exists today – is one of the most shocking and astonishing stories in the history of the NHS. If you doubt the need for a legal duty of candour, follow this link http://www.itv.com/news/wales/story/2013-01-09/the-robbie-powell-story/
The avoidable death of baby Joshua Titcombe at Furness General Hospital in November 2008 is a typical example of failed candour. Joshua had a low temperature due to lung infection that would have been easily treatable had it been diagnosed. Sadly, it wasn’t. Joshua’s crucial observation chart disappeared soon after his death, despite ‘extensive’ searches, leading the coroner to deduce – just 32 months later – it may have been ‘deliberately destroyed.’ He concluded there was a ‘very worrying mark of suspicion hanging over the maternity unit at FGH’ and identified ten serious failures. A previous review into the service had also found serious failings but was not passed onto the Care Quality Commission. The Parliamentary Health Service Ombudsman refused to investigate, claiming it was the CQC’s job. No-one, it seems, is much interested in candour.
Stories of repeated cover up and denial are commonplace in the NHS, often with claims of deliberate falsification or destruction of evidence. If a duty of candour could be successfully introduced, it would represent the biggest shift towards a culture of transparency the NHS has ever seen. A National Audit Office report in 2005 found that only 24% of English hospital trusts routinely informed patients who had been victims of ‘adverse incidents’. NHS staff often won’t disclose harm if they think they’ve got away with it, and fear being blamed, sacked and sued. Usually the system is at fault as much as the individual, but denial and a desire to protect the reputation of the trust stops lessons being learned, and causes untold psychological damage to patients, relatives and whistleblowers.
A statutory duty to disclose would need staff skilled in communication and the time for them to do it properly. One in ten patients suffer some sort of harm from their care, but the NHS could at least focus on the most serious cases. Although patients have a legal right to information before they consent to any medical intervention, they have no right afterwards if it goes wrong. Yet American studies suggest that claims, lawsuits, time for resolution and costs all decrease after open disclosure, and patient satisfaction increases4. In a culture where NHS whistleblowers are routinely punished for their ethics and honesty, a duty of candour can only work if staff are praised for owning up, rather than sanctioned by their employers or regulatory body. Those whose conduct suggests criminal behaviour or a continued risk to patients are unlikely to own up, whatever the law says, which is why we will always need whistleblowers.
2 Powell v UK Application No 45305/99 admissibility decision of 4 May 2000.
4 Patient Safety and the Problem and Potentialof Law – Oliver Quick