As a claimant in a potential or a current clinical negligence claim you will probably be looking for many answers when something has gone wrong. You have probably asked for some answers already and may have faced resistance or maybe you have hit a brick wall. Our clients at Truth Legal often talk to us about their frustrations and the same questions which our clients ask are:-
Questions asked by claimants
– how did it happen and what was it in my treatment that went wrong?
– why were mistakes made (this is different to “how/what ” question above)?
– will it happen again to other patients?
– will I be compensated for the loss I have sustained and the unexpected outcome?
– is the medical professional sorry? Am I allowed to ask for an apology?
– if I am entitled to an apology, how will this be delivered to me and what will it say sorry for?
Bringing a medical negligence claim is not easy and it takes tremendous courage to do this, particularly at a time when your life may well have been turned upside down or maybe as you recover health-wise. It would be entirely wrong of us at Truth Legal if we promised that we could provide answers to all of your questions. Sometimes outcomes in medical errors are a complex nature are not easily explained/agreed on, even when reputable experts analyse the case. Whilst it may be agreed that there was a breach of a legal duty by the medical professional, it may be difficult to prove what specific harm was caused to you. Of course, some claims are more straightforward and the answers are more readily obtained.
Here at Truth Legal we listen carefully to our clients about what is important to you and you may have extra questions to those above. As our name suggests we always strive to obtain the truth for patients and to provide the answers.
What is the “Duty of Candour”?
Recently you may have heard about “duty of candour” applying to healthcare professionals and you may wonder what that means and how it affects your claim. Candour means to be open, honesty, sincere and being straight – in the simplest of terms you can think of it as “calling a spade a spade”. Applying this to medical scenarios, a patient may have a longer recovery period and/or prolonged stay in hospital because of delay in diagnosing a condition and the medical professionals should admit to their errors. It is about accepting that something has gone wrong, and being frank about that.
Professional duty under the General Medical Council Code
Doctors have always had a professional duty of candour and in it’s guidance for doctors, Good Medical Practice (version 2013) paragraph 55, the General Medical Council (which regulates doctors) states;-
“You must be open and honest with patients if things go wrong. If a patient under your care has suffered harm or distress, you should:
- put matters right (if that is possible)
- offer an apology
- explain fully and promptly what has happened and the likely short-term and long-term effects.”
Professional duty under the Nursing and Midwifery Council code of conduct
Nurses are also under a similar duty of candour, although it is worded differently (and imposes a wider duty). The Nursing and Midwifery Council (paragraph 14) requires nurses to be:-
14 Be open and candid with all service users about all aspects of care and treatment, including when any mistakes or harm have taken place
To achieve this, you must:
14.1 act immediately to put right the situation if someone has suffered actual harm for any reason or an incident has happened which had the potential for harm.
14.2 explain fully and promptly what has happened, including the likely effects, and apologise to the person affected and, where appropriate, their advocate, family or carers, and
14.3 document all these events formally and take further action
(escalate) if appropriate so they can be dealt with quickly.
Statutory duty of candour
The new statutory duty of candour was introduced for NHS bodies in England (trusts, foundation trusts and special health authorities) from 27 November 2014, and applies to all other care providers registered with Care Quality Commission from 1 April 2015. It is called “statutory” because it was made a legal duty, not just professional by virtue of codes of conduct.
The obligations associated with the statutory duty of candour are contained in regulation 20 of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The key principles are:
- Care organisations have a general duty to act in an open and transparent way in relation to care provided to patients.
- The statutory duty applies to organisations, not individuals, though it is clear that it is expected that an organisation’s staff cooperate with it to ensure the obligation is met.
- As soon as is reasonably practicable after a notifiable patient safety incident occurs, the organisation must tell the patient (or their representative) about it in person.
- The organisation has to give the patient a full explanation of what is known at the time, including what further enquiries will be carried out. Organisations must also provide an apology and keep a written record of the notification to the patient.
- A notifiable patient safety incident covers instances where a patient suffered (or, importantly, could suffer) unintended harm that results in death, severe harm, moderate harm or prolonged psychological harm. The latter means psychological harm is experienced continuously for 28 days or more.
- Reasonable support must be provided in the aftermath which could include giving emotional support to the patient following a notifiable patient safety incident. There is no set list of what it entails and if a patient wants “reasonable support” they can ask for it.
- Once the patient has been told in person about the notifiable patient safety incident, the organisation must provide the patient with a written note of the discussion, and copies of correspondence must be kept.
Now that we outlined the duties, let’s look at potential pitfalls.
Potential stalling of an apology
For years, healthcare professionals have (incorrectly) interpreted an apology to patients to be perceived as an admission of liability. For decades doctors were taught not to say “sorry” specifically because lawyers would hold that against them. The culture is slowly changing within healthcare but it will take time for the new regulations to really kick in.
The good news for claimants in clinical negligence claims is that there is a high chance of receiving an apology now more than ever before. It doesn’t automatically follow though and still some healthcare professionals are reluctant.
In life generally, there is sometimes a fear of on our part for saying sorry to people as it might be used against us. Let us provide an example:- You are late for the school pick up and are driving faster than permitted down the dual carriageway after a stressful day at work. When stopped by a policeman, and you know you were speeding, would you say immediately as he asks you to step out of your car “sorry officer, I am sorry that I was speeding”? The chances are that you would not. You might be fearful of the ramifications so you may stay quiet, waiting to see the policeman’s next move. Will he ask you to drive slower, issue you with a fine or could it end up in court and become more serious? You need a clean driving license to drive to work so your career is riding on it. You know that you were speeding but at that precise moment when you are stopped, your heart is pounding and you may not know what to say. You panic. So you may say nothing at all.
Imagine the above scenario if your speeding had knocked down a pedestrian who was crossing at the lights but you didn’t see them. You may be interviewed by the police and your insurance company wants an urgent report, asking if you know the cause. The cause was probably that you left work too late, was tired, not concentrating and driving too fast. Do you provide that information to the investigating officer and your insurance company and provide an apology to the person you knocked down?
Medics are no different and are sometimes fearful of saying sorry. It may not be easy to do given that they haven’t had much practice at it. It’s a cultural issue. It’s an education issue too.
Another possible area of difficulty may be deciding whether an incident reaches the threshold for notification under the statutory duty. This may be confusing and to some extent conflicting to the professional duty. The doctor’s ethical duty under the General Medical Council Code of Conduct is to be open with a patient when there is “any harm or distress” caused to the patient. However, the statutory duties are higher and slightly different, cover actual harm or harm which could have happened and even includes inclusion of prolonged psychological harm (more than 28 days).
Content of an apology
To conclude, claimants in a clinical negligence claim should seek an apology. There is a higher chance than ever before that such an apology will be provided. When seeking an apology, our dedicated team at Truth Legal will always ask our clients what it is they want the apology to cover. For example, is it an apology for poor bedside banner which caused offence and upset during your stay in hospital (which would not be a notifiable event above) or is it an apology that there was a misdiagnosis of your condition which you say caused you harm. Always be clear what it is you would like an apology for and how you would like that (verbally or in writing). Our team at Truth Legal will listen and guide you on this sensitive issue.