We need a legal duty of candour to break defensive culture

Trying to create a common culture of openness and honesty on the present foundation of denial and defensiveness is like trying to stand on jelly. To bring about real change, surely we need a legal duty of candour, writes Doireann O’Mahony

Medical negligence claims around childbirth are common. Cases involving injury or death of mother or baby are as contentious as they are tragic. 

At what should be a joyous occasion, when things go wrong, the consequences are always devastating and very often lifelong.

These cases tend to be widely discussed in the media and as a consequence, a well-informed generation now have high expectations and are more likely to complain when they feel their medical treatment has been sub-standard.

We seem to see the same problems coming up again and again. There seems to be no learning culture.

There seems to be no memory. In the recent Portlaoise scandal, for example, there was not just one avoidable baby death, but many — and all in similar circumstances. The same story in Cavan. The same story in Portiuncula.

The essentials of risk management seem not to have been observed. In clinical practice, risk management means that when a mistake is made, it is identified, analysed and controlled.

Lessons are learned so that mistakes are put right and will not be repeated half a dozen times or more. If the organisation had a memory, identical errors would not be made over and over again. Litigation can be a force for good, providing the impetus for improvement — provided there is a proper risk management feedback loop.

Reviews should be disclosed but seldom are. In every adverse event or near-miss within a hospital, there should be factual statements (not opinions) recorded. Those factual statements then belong to the patient as part of her medical records and they should be disclosed to her.

When we see a supposed “root cause analysis”, regrettably, we do not see a proper analysis.

Those performing the analysis do not ask the question ‘why?’ or if they do, they do not ask it often enough.

The way to avoid recurrent adverse events is to remember that they happened — and why.

The grief felt by all of those involved when something goes wrong in childbirth is often smothered by the medical professionals who try to forget the mistake as quickly as possible, leading to their avoidance of the families.

This in turn adds insult to injury and intensifies the grief felt by families, who will often, at that point, seek legal advice.

It is factually the case that what patients who bring a legal claim want most of all is to be given an explanation for what happened and where appropriate an apology, along with an assurance that lessons have been learned and changes made so that what happened to them will not happen to somebody else.

In cases where compensation is not required to cover, for example, long-term care costs for a disabled child, these could feasibly be said to be the only reasons for suing.

To compel more openness and communication at the earliest opportunity would in many cases obviate the need for protracted litigation. Medical mistakes will often be accepted if freely admitted and frankly explained but such opportunities, unfortunately, are rarely availed of.

The Health Service Executive and State Claims Agency launched a national policy on open disclosure two years ago but the practice of keeping quiet when things go wrong is so prevalent in our medical culture that, sadly, it is hard to believe the creation of a new policy will change all that.

Trying to create a common culture of openness and honesty on the present foundation of denial and defensiveness is like trying to stand on jelly. To bring about real change, surely we need a legal duty of candour.

A legal duty of candour was introduced late last year in England and Wales, a breach of which now constitutes a criminal offence.

Our minister for health is on record as saying that doctors who refuse to own up to mistakes are akin to hit-and- run drivers. If that really is the case, why shouldn’t their wrongful behaviour attract similar sanctions?

This is not about individuals being pilloried, but rather doing something to actively discourage medical professionals from staying silent in circumstances where patients deserve to know what has happened to them.

Unfortunately, there are a great many difficulties facing plaintiffs in medical negligence claims which are not faced by defendants.

There is the excessive cost of funding the investigation of a claim, the lack of any adequate civil legal aid, the complexity of issues involved and the delays encountered, along with the restrictive limitation period within which a claim may be brought.

Worst of all is the hostile approach so often adopted by defendants who have all the facts at their fingertips but who fail to admit liability so that the injured patient spends years trying to prove there was negligence, running up costs all the time.

An admission, if one is forthcoming, is only made at the 11th hour. Defendants often continue this pattern of delay for years before accepting responsibility and resolving claims, even in the most clear-cut cases.

A mother speaking after her son’s case was recently concluded said that the State Claims Agency (who handles claims against the HSE) fought them all the way and at times, the family felt like the defendants.

It is ironic that in the other type of case involving an individual versus the State — the criminal trial — the State bends over backwards to ensure fair procedures are adhered to.

A trial is not fair if the procedural dice are loaded in favour of one side or the other.

One would hope through the introduction of long-overdue procedural reform in medical negligence, along with measures taken to compel more openness and honesty, the playing field will be levelled somewhat.


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