A Law Unto Themselves
The success of Robert Francis QC in stopping the NHS from covering up the harm it causes is crucially dependent on the behaviour of his own profession. At the time of the Mid Staffordshire scandal, there was unequivocal guidance for NHS trusts, managers and clinical staff to be open and transparent when patients may have been harmed by their care, but lawyers tend to focus their attention on the law, and who’s paying their fees. Hence the solicitors’ code of conduct – to act in the best interests of the client – invariably trumps any wider ethical guidance to the NHS, particularly when it comes to admitting anything that might expose a hospital to bad press, litigation and financial loss. Francis’ solution – to make non-disclosure of harm a criminal offence –is as big a shift in the culture of medical law as it is to the NHS.
Eye readers will be well aware of the extent the NHS uses publically-funded lawyers to suppress whistleblowers. The case of John Moore-Robinson at Mid Staffs illustrates how such a defensive – but entirely legal – culture obstructs parents from understanding how their son died. Moore-Robinson, a previously fit young man, was examined in A&E at the Trust on 1 April 2006 following an accident on his mountain bike. He was examined by a junior doctor and, in spite of the protests of friends who were with him, discharged – in a wheelchair as he could not walk – with advice to take an analgesic. He was still being sick as he left A&E. He died the following day at another hospital. It was later found he was suffering from a ruptured spleen, a lethal injury unless diagnosed and treated promptly. He was showing signs and symptoms which were indicative of this as a possible diagnosis and he should not have been discharged. It is likely that his life could have been saved had he been kept in hospital for a thorough investigation and treatment.
The Trust received a request from the Coroner for information in relation to the death. The junior doctor had left the Trust, so Mr Ivan Phair, the senior A&E Consultant, was asked by the Trust’s legal team for a “report addressed to the Coroner for use in the inquest.” Phair concluded that the junior doctor should have interpreted that Mr Moore-Robinson could have been suffering from some form of bleeding. ‘I cannot find enough evidence which would lead me to conclude that a thorough abdominal examination was carried out… I would therefore raise the possibility that his unfortunate, untimely death may have been avoided, had he been more properly assessed on his initial attendance to the A&E department.’
On May 25, 2006, Kate Levy, the Trust’s in house solicitor, wrote to Mr Phair saying his report had not been forwarded to the coroner. ‘Whilst it would be entirely appropriate as a report in respect of a clinical negligence claim it goes beyond the issues which concern the Coroner. The Coroner is undertaking a fact finding exercise and does not concern himself with matters of blame or potential negligence. I would therefore like to suggest that the section of your report headed “Conclusion” with the exception of the final para be removed’
When Mr Phair refused, she wrote: ‘As reports are generally read out in full at the Inquest and the press and family will be present, with a view to avoiding further distress to the family and adverse publicity, I would wish to avoid stressing possible failures on the part of the Trust.’ She suggested removing the two paragraphs of the conclusion. ‘I feel such a concluding statement may add to the family’s distress and is not one which I would wish to see quoted in the press.’
Mr Phair amended his report but it still contained his grave concern, his opinion about the ‘brief an incomplete’ abdominal examination and the possible cause of death. Levy decided not disclose either version to the coroner or Moore-Robinson’s parents, and neither did fellow solicitor Stuart Knowles. When the failure to disclose Phair’s report was discovered by the Francis Inquiry, Levy was dismissed from the Trust in 2010 but won her case for unfair dismissal and was awarded £103,000 in damages. Capsticks solicitors advised the Trust that it was normal to exclude issues of blame and potential negligence from a coroner’s inquest. The Solicitors Regulatory Authority and the Bar Standards Board agreed Levy had acted entirely professionally in line with her employment contract and solicitors’ code of conduct, and there was no case to answer.
Meanwhile, Knowles – who was also the deputy coroner – privately advised the NHS Litigation Authority that ‘it would not be unreasonable to view the matter as indefensible’. In October 2007, the claim was settled for £15,000, a step Mr Knowles said was “eminently sensible” but “slightly overpriced”. The Trust stressed in a press statement that ‘liability was not admitted.’ Chief executive Martin Yeates wrote to John’s parents in an attempt to apologise. ‘While I understand that nothing can compensate for the loss of a loved one I hope that the fact that matters have been resolved speedily will go some way to enable you to put this matter behind you and move on.’
Knowles was flummoxed at the family’s anger and wrote: ‘The apology was the standard NHSLA affair and it was approved by someone … This family have been going on about this and they appeared on telly recently … we settled very quickly even though there might have been issues that could merit further investigation. I take the view that we treated the family very well … Who is causing a problem and what are they trying to achieve? … Anyway hopefully we can sort this out soon but I suspect the family are having issues (quite understandably) with grief etc… it is indeed unfortunate that what appears to have been a rapid and well-handled [settlement] by the NHS does not appear to have been appreciated by the family and that they have taken this unfortunate line.’ Seven years later, John’s parents are still campaigning for an independent inquiry into his death. If lawyers can’t be trusted to give patients and relatives the truth, there needs to be a law against it.
