Ed Fletcher, chief executive of Fletchers Solicitors, on why Duty of Candour is only the beginning
The recent announcement of an impending statutory Duty of Candour comes as a relief for some. An initial response to Robert Francis QC’s investigation of malpractice at Stafford Hospital, the policy aims to make health organisations more accountable to those in their care.
A Duty of Candour signifies a mandatory obligation to report both individual and systematic failings irrespective of patient concern, so that a matter may be investigated whether or not it escalates to litigation. It’s a fantastic start, but the tip of that proverbial iceberg, and many are left wondering why such a requirement does not already exist.
We’ve seen a nationwide increase in claims being made against the NHS. In 2011/12 the NHS Litigation Authority (NHSLA) received 9,143 claims, up on 8,655 in the previous year. Fletchers Solicitors has had a 15% rise in claims overall, and an even higher rise in the number of initial enquiries during the month of February. There was a spike of new enquiries and claims following media coverage of the Francis report. More people are speaking out about their experiences, and it’s important not to automatically discount these as opportunists – medical negligence is very real.
At Fletchers, we’re fairly fortunate to have built a reputation that means clients seek us out. We’re not cold calling – it’s in our charter not to cold call, but it’s also just not necessary. We have teams of people who specialise in medical negligence law. It can be overwhelming for an individual to pursue a case against a doctor or a hospital, but it’s things like the Francis report that show us this work is vital. You only need switch on the television to see how widespread the issues are, and when it comes to standards of care it’s in everybody’s interest to discover the truth and take decisive action against future harm.
We recently defended the case of Mr Cadden, a gentleman with a long history of psychiatric illness, including depression. He attempted suicide while in hospital, and in the ensuing months of detained care, threatened self-harm, refusing medication, food and fluids. Mr Cadden suffered severe psychological problems, and was often uncooperative with staff. His wife was permitted limited access throughout his admission on the basis that Mr Cadden was not responsive when asked if he would accept visitors.
On one distressing occasion, Mrs Cadden remained on the ward for several hours requesting to see her husband. Hospital staff threatened to call the police if she did not leave, but finally granted a ten minute window. She found her husband in an emaciated state, lying in his own faeces and begging for water. She didn’t raise a complaint for fear she would not be allowed to visit again.
On April 16 2009, some six months after his first admission, Mr Cadden’s physical condition was assessed by a doctor and found to be rapidly deteriorating due to malnutrition. It was recommended that he required urgent medical assessment and treatment in an acute hospital setting. He died of bilateral bronchopneumonia and acute renal failure less than a month later.
A Serious Untoward Incident investigation into Mr Cadden’s death identified numerous failings in the standard of care he had received. Without a clear and robust treatment plan associated with detention under Section 3 of the Mental Health Act, it was deemed unreasonable that the Locum Consultant Psychiatrist in charge of Mr Cadden’s care failed to either facilitate a case review or seek a second opinion.
The nursing team also offered no clear prescription of the care needed in respect of Mr Cadden’s physical or mental needs, nor the outcomes they wished to achieve. Significantly, Mrs Cadden feels that neither she nor her husband were treated with respect or dignity during this time. Calls for compassionate care are a positive outcome of the Francis fallout. Mr Cadden’s story is a devastating example, but it happened. In campaigning for a result for his wife and family, Fletchers are also forcing healthcare providers to lift their standard of care.
Of course, as solicitors we have a vested interest in encouraging those who may have suffered medical negligence to take legal action. I make a living like anyone else, and mine is a service and expertise for which I am paid. Working within personal injury and med neg law, there are the inevitable ‘ambulance-chasing’ tabloid gibes, and certainly this exists elsewhere in the industry. There can be no shame, however, in taking on the fight of a client who has been injured – or worse – while at their most vulnerable.
Much as the Francis Report revealed atrocities which occurred at just one healthcare institution of thousands, proposed reform is just the start of a lengthy process of change. If policed correctly, a Duty of Candour could act to improve health services, and in doing so, prevent further mistreatment. The culture of fear now exposed within the NHS, one of cover-ups and abuse, is unlikely to be remedied quickly. Plans to install a chief inspector of hospitals and introduce a ratings scheme for hospitals will assist, but lawyers are similarly essential to increase accountability. The sad reality is that patient harm will continue.
