A PARTNER at a law firm representing patients affected by the rheumatology scandal has slammed plans to make the apology section of duty of candour letters to be inadmissible in court proceedings as “illogical”.
Advocate Giles Emmanuel was criticising proposed changes to the Draft Regulation of Care (Jersey) Amendment Law, which are due to be debated in the States Assembly this week.
The draft law proposes new rules for how health and care services should be regulated in Jersey – including introducing a statutory duty of candour for regulated health and care providers.
If approved, the law would require health services to be open and transparent with patients when something goes wrong, including offering a written apology.
But embedded in the proposals, which total some 63 pages, is also a clause that any apologies issued as a result of the duty of candour cannot be used as evidence of liability in legal proceedings.
A scrutiny sub-panel, which was set up to scrutinise the law changes, focussed on the duty of candour as a “key area” of the new legislation after concerns were raised in the JEP about Islanders being unable to use apologies issued in these circumstances during legal proceedings.
Commenting on the proposals, the panel said: “The sub-panel has considered the concerns that had been raised publicly about the duty of candour provision in relation to the wording of the draft law.
“The sub-panel understands that the draft law wording in relation to the duty of candour is based on Section 1 of the Apologies (Scotland) Act 2016, and that the proposed duty of candour would likely produce more evidence for a potential claimant to refer to, and that the UK Government considered the Scottish Act more effective than the equivalent UK provision, and had stated its intention to reform English law based on the Scottish Act.”
But Advocate Emmanuel told the JEP that he was “frustrated” by the low number of duty of candour letters that had been sent out, noting that they seemed “unfairly limiting” and dealt “with physical not psychological issues – and appeared to be sent on only the most serious cases”.
He said that more than 40 Viberts clients had received duty of candour letters, but added that he would have expected “at least double” that amount.
The dispute resolution lawyer described patients whose “bones have been significantly damaged” and said he was commonly seeing clients affected by osteoporosis, psychological injuries – including the mental impact of unnecessarily sheltering during the pandemic – infections, rashes, and ulcers.
Advocate Emmanuel added that many clients’ underlying illnesses had worsened during the period of misdiagnosis and mistreatment and the potential stresses of litigation increased during the wait for compensation.
Viberts has sent between 40 and 50 claim letters so far, and has been approached to represent around 20 families of deceased patients.
