Clinical Negligence Compensation : Duty of Candour

 In a non-clinical accident, an injured person will usually know enough about their accident so

that they can take specialised legal advice on pursuing a claim for rehabilitation and just

compensation.  This contrasts with clinical negligence accidents, when the injured

patient may not even be told that they have been the possible victim of clinical negligence. 

The Government’s White Paper “Liberating the NHS” seeks to redress this issue with a

proposed duty of candour.

Professional Duty

Whilst at the moment doctors have a professional duty to be frank with patients, this is

unenforceable by patients and for example, does not avoid a doctor who when admitting to an

error, only telling the victim of “recognised complications.”  Furthermore this professional

duty does not apply to non-clinical staff such as managers and in particular to the staff who

handle patients’ complaints.

Duty of Candour

Some doctors resist a duty of candour even though it was recommended by the then Chief

Medical Officer for England, Sir Liam Donaldson, in his report Making Amends in 2003. 

They argue that the present NHS guidance on openness is sufficient, even though this also is

unenforceable and obviously does not apply to private healthcare providers.  They argue

that an apology would be rendered meaningless, if issued for each of the estimated ½ million

patients involved in a clinical safety incident in England every year.  They argue that patients

would only feel their doctor was apologising because they were being forced to do so.  They

even argue that changing the law would not alter the current culture.

HeadinjuryUK however supports any step which ensures patients who have been victims of

possible sub-standard medical treatment are fully informed.  In many cases the simple

apology is all the patient will want, but in cases of serious injury such as head injury,  then

that patient will be on an equal footing with other injured victims because they will then

have enough information to take specialised legal advice on pursuing a clinical negligence

claim for rehabilitation and just compensation.  If you, or anyone you know,s has suffered a

head injury as a result of clinical negligence then please contact Clare Langford of

HeadinjuryUK.