Penningtons calls for statutory duty of candour after baby’s inquest criticises hospital cover up

Posted: 25/09/2013

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Elleanor Bennett died in February 2004, a day after she was born following a mismanaged birth at Furness General Hospital in Barrow, Cumbria. An internal investigation performed the same year concluded there had been a 43 minute period during which Elleanor’s heartbeat had not been monitored and, consequently, there were delays in summoning doctors to review her mother, Lesley. Tragically, this meant the opportunity was missed to deliver Elleanor quickly and she died after sustaining irreversible brain damage.

What is shocking about the plight of the Bennett family is not just that they were the victims of negligent medical treatment but that the trust failed to share the findings of the internal investigation with them. The Bennetts were informed that Elleanor’s death was “one of those things” and that no procedures could be changed to prevent it from happening again.

However, the coroner leading the inquest into Elleanor’s death almost nine years later criticised the actions of University Hospitals of Morecambe Bay NHS Foundation Trust (UHMBT) for failing to 'bite the bullet' and to explain to Lesley and Gary Bennett how their daughter died. According to the coroner, the internal investigation carried out by the then head of midwifery at the NHS trust 'pulled no punches' and was 'thorough'. The midwife involved was criticised and reportedly sent on a two-day training course but the Bennetts were unaware of the investigation.

A statement from the trust said: "We acknowledge that full information wasn't shared with the family at the time of Elleanor's death and we apologise for this. We have now improved our systems to ensure that in similar circumstances, information is shared with the family concerned as soon as possible.”

This is not the first time the Cumbrian hospital has been at the centre of allegations of cover up. The widely reported and tragic death of baby Joshua Titcombe in November 2008 led to accusations of collusion between midwives and caused the police to examine a number of similar deaths. Health Secretary, Jeremy Hunt, recently announced an independent inquiry would take place into the management, delivery and outcomes of care provided by the UHMBT maternity and neonatal services between January 2004 and June 2013.

Robert Francis QC’s report at the conclusion of the Mid Staffs inquiry earlier this year made a series of comprehensive recommendations with openness, transparency and candour running through as central themes. His recommendation was that there should be a statutory duty of candour enshrined in legislation which imposes a duty on those working within the health service to tell patients and their families about mistakes.

Francis also recommended that there should be criminal sanctions for false or misleading information to families or regulators but there has been an apparent reluctance on the part of the government to back such sanctions. Until now, this duty has only been an ethical or contractual one which the Mid Staffs Inquiry heard was insufficient. The campaign for a statutory duty has come to be known as 'Robbie’s Law', after the tireless 1989 campaign of Will Powell following the death of his son, Robbie, at the age of 10 from medical negligence.

Guy Forster, clinical negligence partner at Penningtons says: “As lawyers, we have found that the decision to take legal action is not always prompted by the incident or injury itself but by the poor, insensitive or defensive handling of the doctor or hospital that followed. Litigation is all too often the only way a patient or relative can achieve answers, explanations or apologies.

“While some think that a statutory duty of candour will be nothing more than a blunt instrument, add nothing to the existing duties and could encourage defensive practice from healthcare professionals, we believe that a statutory duty has the potential to send out a clear message that being open, honest and transparent is fundamentally important. However, it will only achieve this if it applies to everyone working in healthcare from frontline agency nurses and health care assistants to hospital bosses and clinical directors.

“While a statutory duty of candour may not be the complete answer to scandals such as the Mid Staffs disaster or the failings in the Bennetts case, it could go a long way to creating the culture where these problems are no longer allowed to fester.”

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