A duty of candour?

The electorate is like a patient or a client, led by a professional advisor. That is my view of the relationship between electorate and government. It is a good view. One which holds a government to account to its paymasters. In any such relationship the professional advisor should be subject to a set of rules of conduct. It is rather like the position with a doctor and a patient, or a lawyer and a client.

Because of the complexity of the subject matter and the imbalance of positions of knowledge between them, one relies on the other for candour when things go wrong or, for that matter, if they appear to be going that way.

A lawyer who suspects that he or she has been negligent in managing a client’s affairs is bound by code of conduct to advise a client to take independent legal advice. That way, the advice will be impartial and untainted by a desire to mitigate the true and frank disclosure of the real effect of the error.

The Code of Conduct for the Law Society of New South Wales gives a particularly clear and user-friendly description of duties and ethics which are applicable to lawyers in virtually every jurisdiction, that of England and Wales included. I quote some extracts below from its 2003 publication “Ethics and Conflict of Interest and Duties”.

the failure of a solicitor who has a personal interest to advise the client to obtain independent advice(which is obviously the best way to get properly informed consent) is a … breach of [the solicitor’s] fiduciary duty

Here is where the difficulties lie for the Prime Minister. Cameron has gone as a result of the negligent error but the client (the electorate) is not really receiving impartial advice since his departure. Another lawyer from the same firm has been tasked with providing the advice whilst trying to keep the firm together because it is falling apart internally following the negligence allegation.

There then remains the issue of how to proceed in the event that a conflict of interest is found to exist.

A good rule of thumb is that if you cannot carry out one duty without breaching another then your proposed course of action cannot properly be taken

Above all else (so pertinent now that prerogative powers and parliamentary supremacy are being scrutinised by the Supreme Court) Mrs May and other Members of Parliament should prioritise what I would say is their overriding or paramount duty, the duty to the client; in this case to the electorate.

The General Medical Council publishes material dealing with the duty of candour that exists within the profession; in connection with the EU “negotiations” it may also serve the government and the electorate well to consider the GMC guidance as if it was a doctor advising a patient.

You…must give the patient clear, accurate information about the risks of the proposed treatment or care, and the risks of any reasonable alternative options, and check that the patient understands. You should discuss risks that occur often, those that are serious even if very unlikely, and those that the patient is likely to think are important.*
After all, why would its duty be any less than that?

The electorate has evidently been failed already but has also displayed a tendency not to listen to the risks, dismissing those who attempted to assess and advise as “scaremongering”. Nick O’Teen being put down by Superman in DC Comic’s anti-smoking campaign springs to mind but unfortunately the comic world is more sensible than the real one.

The government’s duty of candour must be ongoing and it is now that the conflict of interest truly arises if it is silent or allows the commencement or continuance of a procedure with clear and obvious risks materialising. The patient should be woken from the anaesthetic as appropriate. The doctor should then seek to inform the patient and obtain his or her informed consent to the continuance of the procedure or otherwise.

 

*Openness and honesty when things go wrong: the professional duty of candour General Medical Council June 2015

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Author: Marc Folgate

Marc Folgate's search for answers to the misery and mess.

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