Duty of Candour threatened by hunt for Whistleblowers

A recent Guardian article revealed that managers at West Suffolk Hospital had demanded fingerprints and handwriting samples from staff in order to uncover a whistle-blower. The widower of a 57 year old woman, Susan Warby who died five weeks after an operation to treat a perforated bowel in 2018, received an anonymous letter outlining what went wrong during his wife’s treatment. 

The inquest heard that Mrs Warby was fitted with an arterial line and an intravenous infusion and incorrectly given glucose, rather than saline. In addition, the inquest heard  that one of Mrs Warby’s lungs was perforated while practitioners were attempting to insert a central venous catheter. Mrs Warby’s cause of death was found to have been multi-organ failure, contributed to by sepsis and pneumonia.

In investigating the source of the letter, the hospital wrote to staff, telling them that non-compliance with providing their fingerprints and handwriting samples would suggest that they were guilty of whistleblowing. The Trust has since insisted that staff were not threatened with disciplinary action and that they were merely responding to a serious data breach. Understandably many medics stated that they felt coerced into complying and were concerned about the consequences of being suspected of writing the letter given the stance taken by the Trust. 

As Claimant solicitors who have long campaigned for open and transparent conversations it is disappointing that this sort of secrecy continues. Back in 2014 we wrote about a whistleblower at Maidstone and Tunbridge Wells Hospital who had raised concerns about sub-standard care by surgeons which were “brushed off” and not investigated. This blog highlighted how “concerns raised by practitioners in such circumstances should be dealt with fairly and openly, moving away from a culture of individual blame to organisational responsibility that encourages all practitioners to have a voice when it comes to raising concerns.”

The Duty of Candour,  is a legal duty for individuals and organisations, requiring them to be open and honest with patients and their families when something has gone wrong and caused, or is likely to cause, the patient significant harm. It seems that West Suffolk Hospital did not take this duty seriously. 

The whistleblower involved in Mrs Warby’s treatment clearly felt a personal duty to be open and honest with the patient’s family having identified that things had gone wrong, and mistakes had been made.

Rather than supporting the individual and taking institutional responsibility, the Trust conducted a “witch hunt” to determine who was responsible. This attitude is likely to lead to defensive medical practices and an internal culture of fear, inhibiting doctors from coming forward and improvements being made. This is the complete opposite of the principles of the Duty of Candour and leaves no room for learning to avoid another similar situation.

We can truly sympathise with the Warby family. Our clients tell us that they want to know what happened to their loved ones, and to make sure that nothing like this will happen to anyone else. The suggestion that organisations cover mistakes up, and fail to learn from their mistakes and improve care must make a difficult time unbearable.  Mr Warby said that "No one should have to go through what we've all been through". We could not agree more. 

The Duty of Candour must be respected and observed, with hospitals going out of their way to ensure that honest conversations take place, and that staff do not feel that the only way to explain what happened to a beloved family member is to write to the family anonymously. 

Being on the receiving end of an explanation that something might have gone wrong, or is being investigated is very difficult, especially when a family is already facing a bereavement or serious injury. We know from our clients that sometimes the Duty of Candour is exercised in a sympathetic and considered way, and on other occasions it isn’t done well, if at all. 

Further Information

If you are concerned about the treatment you or a loved one have received, or would like to talk to us following a hospital explaining that something has gone wrong, please contact us on 020 7814 1200, or email us at claims@kingsleynapley.co.uk.

About the authors

Kirsty Allen is a Senior Associate in the Medical Negligence and Personal Injury team. Kirsty’s clinical negligence practice includes adult and child brain injury cases, as well as failure to diagnose cancer, negligence resulting in loss of sight, gynaecological and cauda equina claims.

Eleanor Lynch is a trainee solicitor in the Medical Negligence and Personal Injury team, where she assists with claims relating to injuries arising from birth, fatal accidents, colorectal injuries and delayed diagnosis of cancer.