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Startling new research this month revealed that two in three medical and dental professionals are unaware of the new statutory duty of candour and how it may impact on their practice.
Doctors: don’t get caught out, make sure you know the law.
A ‘duty of candour’ was one of the 290 recommendations made by Sir Robert Francis QC following his public inquiry into the horrific events at the Mid Staffordshire NHS Foundation Trust. The Francis Report highlighted the importance of healthcare providers learning from their mistakes and improving standards and patient outcomes. The duty became statutory in November 2014 in accordance with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
Media coverage prior to the Regulations being brought into force was extensive, but by the time the regulations came onto the statute books, this had waned significantly; medical practitioners will not be alone in their ignorance of this new law. As urged in our previous blog on the duty of candour, NHS doctors should ensure that their employer provides them with the necessary training; anecdotally, doctors from a number of trusts in England report that this has yet to happen.
What do doctors need to know?
In brief, it is now an offence not to inform a patient of a ‘Notifiable Safety Incident’ (NSI). The responsibility ultimately lies with the healthcare provider but the provider is not on the front line, at the patient’s bedside. A provider in breach of the duty may face criminal liability. Failure by a doctor to notify a patient could, therefore, become a disciplinary matter. The Care Quality Commission (CQC) is responsible for policing the duty.
Healthcare providers will be closely monitored by the CQC in relation to this new duty and accordingly, will be alert to failures of practitioners to notify of the actions/inactions of colleagues; we envisage an increase in referrals to the GMC for matters of this nature.
Would you know when a notifiable safety incident had occurred? Take our 2 minute test.
Patient A, a 65 year old smoker, visited her GP with a six-week history of cough and weight loss. Patient A was referred to a rapid access chest clinic where she was seen by Dr B. A chest x-ray gave abnormal results so Patient A was referred for a chest (thorax) CT scan. The CT scan showed a right upper lobe cancer which was confirmed, on biopsy, to be a non-small cell cancer.
A Multi-Disciplinary Team meeting was then held and it was noted that a chest x-ray had been performed on Patient A eight months earlier when she was admitted by Dr C with pneumonia. This earlier chest x-ray had shown a right upper lobe consolidation and follow up x-ray in six weeks was recommended. The follow up x-ray was never booked.
At Patient A’s next appointment Dr B explained the diagnosis of cancer to Patient A. Did Dr B have a duty to discuss the omission of Dr C’s team with Patient A?
Q: Is this a NSI?
A. If in your reasonable opinion this incident resulted in, or appears to have resulted in the death of a service user or caused severe harm, moderate harm, or prolonged psychological harm, then it will classed as a NSI.
Q. Who should you tell if it is a NSI?
A. You should report the matter in line with internal policy and guidance to ensure Patient A is appropriately informed.
Q. Would it make a difference if Dr B wanted to protect the patient from further distress?
A. No, if the incident is classified as a NSI, considerations such as this (or wanting to protect a colleague) are irrelevant.
Training is key…
Reporting and administrative burdens on medical practitioners are ever increasing and doctors must remain abreast of changes. Failure to do so could lead to employment, regulatory or even criminal investigations and sanctions. Kingsley Napley runs training programmes specifically aimed at doctors, helping them understand their regulatory and legal obligations and focusing on improving standards and patient outcomes.
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