Clinical Risk >
Volume 14, Number 6 >
Pp. 234
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AvMA Medical & Legal Journal |
AvMA
I make no apologies for using the opportunity this column provides to direct attention yet again to the question of how to ensure a genuinely open and fair NHS. In Issue 13, I drew attention to our concerns about the NHS Litigation Authority's circular to NHS Trusts which warns them to be careful in disseminating explanations to injured patients so as to ‘avoid further litigation risks’. At the time of going to press we had still not received an assurance that this would be retracted and replaced with more enlightened guidance. In August, AvMA was forced to take the exceptional step of applying for a judicial review of a General Medical Council (GMC) decision not to investigate serious allegations that certain doctors had committed forgery and perverted the course of justice as part of a ‘cover-up’ following the death of a young boy called Robbie Powell due to clinical negligence. It is a highly unusual step for our charity to enter into direct legal action. We believe that it is vital for the public interest and confidence in the medical profession and the GMC that allegations such as this are at least investigated.
The original tragedy occurred in 1990 in South Wales. The clinical negligence case is long past and was settled in favour of the boy's parents, Mr. and Mrs Powell. It is not the original negligence which most concerns AvMA now. Notwithstanding the tragic consequences of the mistakes (which it is not necessary to go into here) AvMA subscribes to the philosophy of Sir Liam Donaldson, the Chief Medical Officer for England, who is often quoted as saying ‘to err is human, but to cover up is unforgiveable’. As well as allegations from Robbie's father, Will Powell, the GMC had in their possession, before they made their decision not even to refer the case to a case examiner for investigation, the conclusions of the Crown Prosecution Service (CPS) and reams of evidence from a police investigation which it apparently ignored. The CPS concluded in 2003 that there was ‘an evidential base for prosecuting for offences of forgery and perverting the course of justice’. The GMC's rationale for not investigating relied solely on its so-called five-year rule, whereby allegations of misconduct which occurred more than five years ago will not normally be investigated. The GMC refused to accept that there was a need to satisfy the public interest by investigating the case. The Department of Health has argued that the legal duty of candour recommended by, among others, the Chief Medical Officer, is not needed because the GMC and other regulators will enforce that part of their professional codes. Their logic in applying their five-year rule seems to suggest that those who indulge in a cover-up and succeed in not having the original deceit brought to the GMC's attention for five years or more will be in the clear.
Even if one accepted the five-year rule in a case of this nature, the GMC's application of the rule seems curious to say the least. Although they did not register a formal complaint concerning these allegations until 2003, by their own admission, the GMC were aware of the allegations as early as 1995 (within the five years from the original misconduct). Furthermore, the allegations include ongoing current cover-ups by doctors who continue to practise. More curious still, AvMA found when it explored with the GMC the possibility of it reviewing its decision without recourse to legal action, that the GMC's own rules prevent it from doing this. Even if the Chief Executive and President of the GMC agreed that an error of judgment had been made, the only way of having it reviewed is via a judicial review. It is hoped that by the time you read this the GMC will either have agreed to have its decision quashed or will have had it quashed by the High Court. The reputation of one of our most important institutions is in the balance, as is the question of how seriously a doctor's duty to be honest is to be taken. See our website (www.avma.org.uk) for the latest.
 | Forthcoming Events |
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26 November 2008, Woburn House, London
AvMA Christmas Drinks Reception
10 December 2008, London
Clinical Negligence: Law Practice & Procedure
5–6 February 2009, Austin Court, Birmingham
Annual Clinical Negligence Conference
19–20 June 2009, Bournemouth International Centre
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