What can private law offer the victims of the concealment of poor medical standards? Max Weaver investigates
In his report on the Mid-Staffordshire NHS Trust problems, Robert Francis QC recommends that:
- there should be criminal liability for breaches fundamental standards causing a patient serious harm or death; and
- “failure to disclose breaches of these standards to the affected patient (or concerned relative) and a regulator should...attract regulatory consequences”.
For reasons that are not immediately apparent, Francis recommends that omissions to report continuing risks that do not cause bodily harm should not attract “regulatory consequences” but be regarded as “unacceptable”. If a patient dies or suffers serious harm, an official inquiry into the causes is more likely and the need for whistle-blowing correspondingly less. Is not prevention better than cure?
What can private law offer?
Private patients will have contractual rights through express terms, pre-contractual and incorporated misrepresentations, and implied terms as to competence and commitment. But the NHS patient has no contract.
Patient-claimants who can obtain sufficient evidence to establish—on the balance of probabilities—that a significant risk (created by poor medical or
