This paper supplements the debate that took place between Angus Moon QC and Rad Kohanzad at the Duty of Candour seminar on 24th September 2015 entitled “Duty of Candour (“DOC”) and whistleblowing”.

Whilst the talk assumed little knowledge of whistleblowing, this paper provides the background to the subject matter of discussion and explores the interrelationship between the duty of candour and whistleblowing.

The phrases “whistleblowing” and “duty of candour” are now often used in conjunction with each other but even to seasoned lawyers, the precise relationship between the two is not entirely clear.

At its simplest, as Sir Robert Francis QC observed in Freedom to Speak Up: An independent review into creating an open and honest reporting culture in the NHS, they are part of a range of measures which help enable or ensure staff speak up. Before exploring the relationship between the DOC and whistleblowing, it may be worth providing a brief summary of the evolution of whistleblowing legislation.

At a hearing before the Fitness to Practise Panel of the GMC between 2nd and 10th November 2015, the complainant (Patient A), who was a young mother who had just given birth, made an allegation of indecent assault against the Respondent, who was working at the time as a locum SHO in paediatrics. It was alleged that the doctor had rubbed her back and touched/held her breast for 2-3 minutes and that his conduct was deliberate and sexually motivated. Patient A alleged that the assault took place while she was breast-feeding.

The Fitness to Practise Panel acceded substantially to the application made on behalf of the doctor to throw out the allegations at the close of the Council’s case under rule 17(2)(g) of the FTP Rules.

The panel concluded that the many inconsistencies in Patient A’s various accounts rendered her evidence so weak and inconsistent as to be insufficient for the case, in relation to the main allegations, to proceed.

A single remaining factual allegation concerning chaperoning, that was not thrown out at the close of the Council’s case, was also found not proved. Accordingly, the case was closed with no adverse finding.

Sebastian Naughton appeared for the claimant in this 5-day trial concerning paramedic negligence in failing to convey the deceased to hospital in light of cardiac symptoms. Breach of duty and causation were in issue; HHJ Godsmark QC found for the claimant on both points. Sebastian was instructed by Hayley Smith from Irwin Mitchell.

Anthony Haycroft successfully represented a Scottish orthopaedic surgeon in a 9-day Fitness to Practise hearing in Manchester, in respect of an allegation of rape of a medical student at a private party. The doctor was not prosecuted by the Scottish authorities where the criminal rules of evidence are different from those in England. The GMC decided to bring FTP proceedings.

The case was legally complex: there were issues as to whether to bring judicial review proceedings in Scotland and also concerning previous allegations of rape made by the complainant in Scotland. The defence successfully applied for relevant disclosure and then permission to question her about the previous incidents.

The Panel acceded to Mr Haycroft’s submission that a “heightened examination of the facts” was called for and that upon such exercise “cogent evidence” of proof was lacking. None of the charges were found proved.

Anthony Haycroft was instructed by Douglas Jessiman and Ms Lindsay MacNeill of BTO solicitors, Glasgow, supported by the Medical Defence Union.

Please click here to read the above article on the Legal Futures website.