This article appeared in the Western Morning News on 4th July 2014 as a thought leadership piece.

In simple terms do the NHS come ‘clean’ when an error has been made?  I can still remember the scepticism from friends and family years ago when I decided to specialise in Clinical Negligence.  I was faced with comments along the lines “doctors bury their mistakes” or “doctors stick together”.  I had the feeling there were many who thought my career would be short lived but I am here nearly 20 years later.

I was never persuaded by the suggestion that doctors stick together.  Over the years I have built up strong relationships with doctors who are prepared to report in clinical negligence claims.  They will consider their peers’ clinical treatment of patients and advise whether or not they believe there is evidence of negligence.  These experts are passionate that patients receive a high standard of medical care and that patient confidence in the NHS is retained.

I am not as confident that doctors are so forthcoming when an adverse incident has occurred due to an error on their part. Without honesty patients cannot be given a clear explanation of what went wrong if a patient has been left in a worse position following medical treatment, often the injury they have been left with is life changing. I can remember acting for a nurse years ago who had undergone surgery which sadly left her very debilitated. This client looked to her employers, the NHS, for an explanation, sadly this was not forthcoming even after a formal complaint had been made. If my client had been given a plausible explanation I would never have had the pleasure of meeting her and the NHS would have saved themselves over £400,000.

Over the last two decades I have noticed more openness within the NHS and I am heartened to read in the Law Society Gazette that Stuart Poynor Chief Executive of Staffordshire & Stoke on Trent Partnership did not want the Trust to “defend” the indefensible.  I recognise the success AvMA (Action against Medical Accidents) have achieved following their tireless pursuit for a “duty of candour” within the NHS.  It is now, in theory at least, recognised that patients should be told when things have gone wrong with their care that incidents should not be covered up.  The General Medical Council’s “good practice” now has a section which offers guidance to medical practitioners when things go wrong, clearly in recognition of this duty of candour.

The importance of ‘the truth’ to patients is recognised by Parliament as “introducing the statutory duty of candour” and is currently in consultation. Without doubt this evolving openness within the NHS is a comfort, but do I think patients will now always be told the truth when they suffer an adverse outcome following treatment? Sadly no. I think it is going to be extremely difficult persuading a doctor or a nurse that their future career path will not be effected by a clinical misjudgement. Many medics may not feel to blame as tight budgets result in under staffing. I am not at all confident that patients will receive a clear honest explanation when things have gone wrong, I think the fear will remain that this will result in a claim being made against the NHS Trust.

These days I rarely have Trials, the cost is prohibitive.  Many of the lower value claims are settled by the NHS on the most economical basis.  If however there is a case of the upmost severity, my experience is that these cases are still fought.  Admissions are not forthcoming enabling an interim payment to make a patient’s life easier.  There is often a denial of liability almost to the door of the Court.  My belief is that the NHS think it worthwhile to fight these cases, the value of the claim often makes it economic to fight, the NHS perhaps hoping, in my view, that my client, their patient encounters funding difficulties precluding them from taking their claim to Trial.  I can also recall one case where we were a matter of weeks from Trial, I heard on the news that the Government had given the NHS £10 million, within a few days we received an offer to settle our client’s claim.  I have experience of other cases where the NHS pot is empty and settlement has been reached with compensation being paid from the following financial year’s budget.

It is a wonderful thought that future patients that suffer adverse events will be told the truth about their injury and will be in a position to settle their claims without the stress of litigation.  That they will receive compensation which represents an adequate sum for the injury suffered.  Sadly, I have great difficulty envisaging this as a reality.

Jane Couch is a specialist clinical negligence solicitor and Partner with WBW Solicitors in Devon. She is on the Law Society Clinical Negligence Panel and the AvMA (the UK charity for patient safety and justice) referral panel and offers advice to anyone who believes they may have suffered an injury whilst in hospital.  Jane can be contacted on 01626 202404 or via email lawyer@wbw.co.uk or visit wbw.co.uk for more information.