Balancing your duty to the court with client's best interests
Mrs D is a senior solicitor working as head of the in house legal department at ABC Hospital Trust.
During an evening shift on the geriatric ward a junior doctor finds patient A, a 90 years old female patient with her head and neck trapped between her mattress and bed rail. She suffers breathing difficulties, and bruising. When extricated from the situation, although upset and shaken, medical examination reveals no significant physical injuries (other than the bruising) and full mental ability.
In line with the Trust's standing orders, an incident form is filed and an internal inquiry initiated.
After the first visiting time a complaint is made to the Trust by patient A's relatives, and copied by email to the Health and Safety Executive (HSE). The next day the HSE advises the Trust that it is going to investigate the incident and asks for a copy of the internal investigation report.
Mrs D asks the junior doctor for a report setting out a brief chronology of what he found and the patient's injuries. He forwards a copy under cover of an email, which states "This was an accident waiting to happen. The bed rails on the ward are all old and ill fitting. This is the third time this has happened this year and it is about time something was done, and perhaps this investigation will bring things to a head. I have raised this previously with the ward sister and she said that cuts mean that no one has received their mandatory training in risk assessment and safe use of bed rails."
Mrs D is concerned that this will not reflect well on the Trust and that, if disclosed to HSE, it will be passed on to patient A's relatives, who will then bring a claim against the Trust. She therefore takes the decision on her own not to include the junior doctor's email when she submits the report to the HSE. When the HSE later visits the Trust and interviews the junior doctor, he discovers that his email has not been sent and, believing that it would have formed part of the report to the HSE and to the patient's family, reports the matter to the SRA.
We are concerned that Mrs D has acted on her own in deciding to withhold the email. We would expect her, as we would any external legal adviser, to raise the matters in the cover email to her client in order to advise on the course of action.
Further, we consider that Mrs D has, wrongly, taken a narrow view of the best interests of the Trust. The primary objective of the Trust is the health and safety of patients. Mrs D should have raised the issue with senior management in order to advise on the risk of foreseeable future harm, as well as potential legal, regulatory and reputational liability for the incident relating to patient A. She should have been aware, and advised, of the organisation's duty of candour, underpinned by the Care Quality Commission's regulatory framework, and the potential consequences of breach including prosecution under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This requires the Trust to be open with the patient and provide an apology, and she should have advised of the need to ensure that the patient and her family fully understood the nature of the problem and what they were doing to remedy it.
We identify and take disciplinary action for a number of breaches of our regulatory arrangements, as follows:
- Failure to provide a proper standard of work (Principle 5)
- Failure to act in the best interests of her client (Principle 4)
- Failure to provide services to the Trust in a manner which protects their interests in their matter(O1.2)
- Failure to provide a service to the Trust that is competent, and takes account its needs and circumstances (O1.5)
- Failure to ensure that the Trust was in a position to make informed decisions about the services it needs, how the matter would be handled and the options available to it (O1.12)
Had Mrs D advised the Trust appropriately and been given instructions to destroy the email or withhold the information from the patient/her family and the relevant regulators, we would take any involvement in concealing the information very seriously. Depending on the circumstances, this could comprise:
- Failure to uphold the rule of law and the proper administration of justice (Principle 1)
- Failure to act with integrity (Principle 2)
- Failure to act with independence (Principle 3)
- Failure to behave in a way that maintains the trust the public places in her and in the provision of legal services (Principle 6)
We would expect Mrs D her to consider whether she is able to report any unethical or unlawful behaviour (including the junior doctor's views) to the Chairman of the Trust Board and/or to the relevant authority (recognising that there may be limits to the information she is able to disclose externally given the constraints of confidentiality and legal professional privilege).
If unable to resolve the position, she might need to consider her position and whether it remains tenable for her to remain at the Trust.