JRSM >
Volume 98, Number 9 >
Pp. 437
Cardiff Law School, Museum Avenue, Cardiff CF10 3XJ, UK
E-mail: GooderhamEP{at}Cardiff.ac.uk
Professor Kalra and his colleagues (July 2005 JRSM1) provide a useful overview of disclosure policies in different jurisdictions, but in other respects their account is less than robust. With reference to the UK, they state that the ‘duty of candour’ was ‘declared’ by the National Health Service in 2003. In fact it appears as Recommendation 12 in the Department of Health publication Making Amends,2 to which Kalra et al. surprisingly do not refer, although they do cite a reference to a relevant news item.3 A professional duty of candour already exists, and is currently expressed in the General Medical Council's guidance Good Medical Practice.4 Legally speaking, Making Amends acknowledges use of the phrase ‘duty of candour’ in a judgment of Sir John Donaldson, Master of the Rolls, in 1987.5 Kalra et al. refer to ‘this scheme’, without stating which scheme. Presumably they are referring to the NHS Redress Scheme, contained in other proposals of Making Amends, some of which, rather than being declared, are due to be considered by the UK Parliament in the current session.6
I was very surprised by the concluding comment, ‘suits filed solely for monetary considerations abuse the tort system and set an unacceptable trend,’ the cited authority for which is a letter published in another journal by the same authors,7 which does not, in my view, substantiate their latest assertions. The tort system is criticized, with good reason, but often it can only offer monetary compensation to claimants whose injuries cannot be reversed. The suggestion that claimants injured through medical fault are abusing the system by making claims needs reliable justification.
REFERENCES
Department of Pathology, College of Medicine, Royal University Hospital, Saskatoon, SK, S7N 0W8, Canada
Although a professional ‘duty of candour’ was in place even before its introduction by the National Health Service (NHS) in 2003, it was only then that it was mandated as part of sweeping reforms in the clinical negligence system. The duty of candour was a recommendation in the Department of Health publication Making Amends but was formalized in the form of a redressal scheme through the NHS. Our article intended to address the current practices and initiatives in honest disclosure of errors, a component of good medical practice, and not the historical aspects of the issue. Also, it appears that Dr Gooderham has misinterpreted our remarks about the current tort system. Our assertion with respect to the ‘suits filed solely for monetary considerations’ was directed towards the dishonest claimants/claims, which we consider as abuse of the tort system. It was by no means intended to question the right to compensation when claims are genuine.
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