Case study: Misleading the court and your duty to uphold the rule of law

Background

Mrs D is a senior solicitor working as head of the in house legal department at ABC Hospital Trust.

An elderly lady, Mrs B was admitted to a ward in ABC Trust 5 days previously for rehabilitation following successful surgery to repair a broken femur. Because of a long term irregular heart beat she was on anticoagulant medication to prevent blood clots. As she had been progressing well it was felt she was mobile enough to be allowed to move about freely without assistance. Unfortunately, on raising herself from the toilet, she slipped and fell the short distance to the floor. She did not lose consciousness and pulled the alarm cord.

Help arrived immediately and after this an incident form was completed..Examination by Doctor C, at that time, showed no physical damage and no effect on her mental acuity. Mrs B was so well that she was discharged to her daughter’s house the following morning. The patient and her family were in agreement with this.

During the evening Mrs B felt rather drowsy and tired, and putting it down to the stresses of the move, she went to bed. When her daughter went to bed later, she looked in and saw that her mother was sleeping peacefully. The following morning the daughter took her mother a cup of tea but found her difficult to rouse. She rang the on-call GP service who said to get an ambulance and take her to the local A & E department.

Following examination (which showed no external bruises or abrasions), she was given a brain scan. This showed the accumulation of a sub-dural haematoma. Following transfer to the local neurosurgical unit (in another Trust) an attempt was made to evacuate this but during the procedure Mrs B suffered a serious heartbeat irregularity and despite resuscitation she died. Her death was automatically reported to the coroner because it occurred under anaesthesia during a surgical procedure.

The immediate cause of death was a cardiac irregularity and the sub-dural haematoma would have been extended in size because she was on warfarin. The questions that arise are:

  • whether the sub-dural haematoma was contributory to her death in requiring her to have surgery, and
  • whether the fall to the floor from the toilet was contributory to causing the haematoma.

The referral to the coroner was made from the neurosurgical unit. The referral note stated that the reduction in conscious level occurred 24-36 hours after the fall from the toilet. The submitting doctor proposed that death was caused by:

  • 1a) Cardiac dysrhythmia refractory to treatment
  • 1b) Long-standing atrial fibrillation
  • 2) Surgery for sub-dural haematoma following a fall whilst on anti-coagulant treatment.

Trust ABC then receives an enquiry from the coroner's officer asking their view on section 2 of the medical certificate of the cause of death. The call is directed to the Trust's legal department where it is received by Mrs D.

Mrs D obtains the previously completed incident form in which Dr C detailed his examination of the patient, after her fall, whilst on a ward of the ABC Trust hospital. In it, he said "My examination has not shown any physical or mental sequelae. However, although there are no surface injuries, the fall was a deceleration injury with the risk of sud-dural bleeding. We should therefore continue head injury observations for 12 hours and warn the relatives to report changes in conscious level if she goes home tomorrow". In the event the observations were not done and the warning was not passed onto the relatives. Immediately after completing the notes doctor C went off duty and was not in the hospital when the patient was discharged home.

Mrs D phoned Doctor C to discuss the case. She asked him how sure he was that the fall caused the haematoma. He said that given the time relationship they were probably related and that the use of anticoagulants would make the bleed worse. He also volunteered that some sub-dural haematomas occur spontaneously, or as a result of minor trauma such as tripping over a step. Mrs D asked how this could happen and Doctor C replied that as we age, the brain reduces in volume within a fixed skull and the veins on the surface of the brain become stretched and fragile. Mrs D taped the conversation and subsequently made detailed notes. When Doctor C asked if she would like him to write a statement she said not to bother, she would do it on behalf of the Trust.

In considering her reply Mrs D did not wish to compromise her Trust's own position and did not want to use any 'untruths'. She subsequently wrote "In the opinion of the doctor who examined Mrs B, he said that some sub-dural haematomas occur spontaneously, or as a result of minor trauma such as tripping over a step and that if the patient is on anticoagulants, the bleed is worse". The Trust has no reason not to be of a similar opinion. In making this statement she omitted the fact that Doctor C was in fact of the opinion that the fall was probably causally related to the haematoma.

Unbeknown to Mrs D, the coroner had been influenced by the use of the words 'following a fall, put in section 2 of the proposed causation of death. This suggested the possibility of a lack of safeguarding, so having received Mrs Ds reply he had called an independent neurologist (Doctor E) to ask his opinion and faxed a copy of the Trust's reply to him. Dr E replied that:

  • The sub-dural haematoma and the fall were probably related
  • There should be an incident report related to the fall event held by Trust ABC
  • There should have been head injury observations done following the fall and the doctor who examined Mrs B at the time (i.e. Doctor C) should be called to give evidence.

The coroner decides to hold an inquest, informs the Trust of this and requires release of all relevant documentation.

SRA position

In taking a conscious decision to omit Dr C's views on causation, which was material to the coroner's consideration, and because of her concern that this would be damaging to the Trust, Mrs D has firstly failed to uphold the rule of law and has impeded the administration of justice by being in breach of her duty under the Coroners and Justice Act not to prevent, distort or otherwise alter evidence. As a consequence D leaves herself open to legal and disciplinary action being taken against her. She is also liable in conduct for misleading the court and failing to act with integrity. This is central to her role as an officer of the court.

As well as this she has not properly carried out her duties to her client. Mrs D has taken a narrow interpretation of her duty to act in the client's best interests and has not taken into consideration all the circumstances or considered fully the ethical and legal duties that her client has to patients, their relatives and the court.

Doctor C's statement has not been discussed with the client trust, which should have been made aware of their need to comply with their legal and regulatory duties. Mrs D should have discussed the organisation's duties under the Coroners and Justice Act 2009 and their duty of candour under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.This requires the Trust to be open with the patient's family and provide an apology. This failure to advise them of C's statement/opinion is contrary to the clients interests,may leave them open to criminal prosecution, and has precluded them from being transparent with the patient's family and the court as well as leaving them open to reputational damage when the information subsequently comes to light.

We identify and take disciplinary action for a number of breaches of our regulatory requirements, as follows:

  • 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 in the best interests of the client (Principle 4)
  • Failure to behave in a way that maintains the trust the public places in you and in the provision of legal services (Principle 6)
  • Failure to comply with (O5.1) in knowingly misleading the court
  • 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)