Lawford Kidd, Personal Injury Solicitors

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Threshold Imperative in Duty of Candour Proposals

In response to proposals published by the Scottish Government, currently subject to consultation, on imposing a ‘duty of candour’ for healthcare providers, the Association of Personal Injury Lawyers (APIL) has urged doctors and other medical staff to be upfront and honest in regards to any medical errors. However, the group also warns that divulging all information in regards to near misses may be “too burdensome” for healthcare workers and may damage the reputation of the NHS.

If the move is approved in the Scottish parliament, it will mean that healthcare staff and those working in social services will be legally obliged to tell families when a patient has been harmed as a result of medical negligence.

Consultation Launched

The move to potentially implement a duty of candour in Scotland was proposed in a consultation launched in October 2014 in the hope to end medical cover ups, neglect of patients and improve the standards and transparency of the NHS. The government also hope that by informing the patient of any potential mishap, it may improve standards, and offer a starting point for any complications following a medical procedure.

In England, duty of candour was brought into NHS contracts in April 2013 with the duty lying with the organisation and not the individual. The duty requires healthcare providers under the NHS contracts to determine cases by the categories of moderate harm, severe harm or death, with a breach in duty of candour resulting in a criminal offence and a fine.

The Association of Personal Injury Lawyers believes that the duty of reporting and informing a case of negligence should lie with the individual and not the organisation as it would create a more streamlined process for all involved.

The APIL believes that by the medical professional informing the patient rather than an NHS complaints officer, it would provide the patient with a more in-depth answer regarding the mistake and how it happened. Furthermore, this would allow any future symptoms to be monitored with advice and other questions being answered from the source. The association argues that by placing candour with the medical professional, it removes bureaucracy and ensures that the issue is dealt with as a matter of urgency, in a professional, personal way.

In a statement the APIL said: “Individual duty would be much simpler and less bureaucratic, and therefore more likely to be complied with.”

The government proposal states that: "Disclosable events would be defined as (an) unintended or unexpected event that occurred or was suspected to have occurred that resulted in death, injury or prolonged physical or psychological harm being experienced by a user of health and/or social care services."

Balance is Needed

Gordon Dalyell, Scottish representative of APIL said: "Telling patients about every slight incident, even if there was no harm, may cause patients to lose confidence in hospital and care staff.

“While the duty should not be overbearing, near misses should still be taken seriously, we need balance."

He added: "The purpose of the new statutory duty is to increase openness between the service provider and user.

“This can be achieved without the need to cause unnecessary worry to the patient; and without overloading health and social care professionals with an unmanageable administrative burden.

"If the duty is not overbearing, health and social care professionals are likely to embrace a new culture of openness.

“This would hopefully lead to more openness and transparency as a whole, and not just in the situations specified in the consultation."

Dalyell believes that medical professionals should only be forced to inform patients when medical negligence could affect rehabilitation or if the mishap could potentially lead to further complications, thus providing a balance between apologising to the patient and worrying them about every minor issue regarding their surgery. By using this practice, it treats the incident with the seriousness it deserves but retains the trust of the patient in the health service and the ability of it’s staff.

According to the APIL and other organisations such as the Royal College of Surgeons, there should be a threshold to decide the criteria for what applies as significant harm for the patient so that medical staff are aware of when they legally must inform the patient.

Current Practice

Current advice from the Medical Defence Union has advised all medical staff involved in a case of medical negligence to tell patients when things go wrong, apologise for the mistake, and try to put things right. However, enforcing a duty of candour would mean that informing the patient was a legal requirement rather than an advisable step. The General Medical Council (GMC) is another organisation that urged honesty when dealing with patients by introducing an obligation to be open and honest when things go wrong.

According to a recent survey by the MDU of more than 600 doctors, 99% knew about their duty to be open and honest with patients; with 95% of all doctors involved in an incident offering an apology and an explanation to the patient or their relative.
If You Are A Victim of Medical Negligence

Under the current system a complaint can be made directly to the NHS which allows the patient to make some enquiries into what happened and what can be done next from a legal point of view. This does not however necessarily lead to an apology or lead to a change in hospital procedures.

When making a legal claim regarding medical negligence, there needs to be some sort of proof that you were subjected to substandard or negligent treatment from a healthcare professional or a hospital, and that the person responsible for your injuries had a duty of care that was breached. The vast majority of cases must be heard within three years and will look into the medical background of the victim, a statement regarding the person affected if there is a direct link between the injury and medical negligence.

Medical claims can be made for a host of reasons, with some seeking an apology, others seeking compensation they may be entitled to and other claims made in an attempt to change medical practice.

Contact Us

If you have been a victim of medical negligence, and believe you have a claim contact our team of dedicated solicitors. Whether it be compensation, an apology or a change in the way medical procedures are carried out, we will provide you with legal advice and representation for your case. Call us 0808 115 8604 or contact us using our online contact form.

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