Why restrict a Duty of Candour?

20 January 2014

In my experience, individuals and families affected by negligent care very often say that: this must not happen again, to anyone else. They acknowledge that mistakes, however tragic, do happen, but, when they do, some good must come from it, lessons must be learnt and, where necessary, poor systems addressed and changed.

For patients, families and the medical staff involved, the key to learning from a mistake is being honest about it. A lack of honest debate fuels cynicism and mistrust in patients and their families and may force them to speak with lawyers and resort to litigation. A sobering figure is that 7 out of 10 complaints to the NHS mention poor communication and medical staff not explaining what went wrong and why .   

In 2013, a culture of suppression and fear of the truth within the NHS has been publicised in the media. This has focused the spotlight on an issue that medical staff and claimant lawyers have known for some-time: there is a deep rooted culture of not telling patients or their families about mistakes when they happen.

This culture, whether high profile management cover ups or individual cases, has shamed the NHS, one of our finest and most internationally revered institutions. Something is required to restore people’s faith in their NHS. A statutory duty of candour would help.

Some facts: there are over 1 million patient safety incidents reported each year in the NHS. The majority, 69%, do not result in harm; 24% result in low harm; 6% result in moderate harm and 1% result in severe harm, or death .

Jeremy Hunt, the Health Minister, is considering which levels of harm the duty of candour should be applied to. Originally, he said that it would only apply to severe harm but, as a result of concern raised by patient safety charities, in particular, Action Against Medical Accidents, he is re-evaluating this. Peter Walsh, head of AVMA, quite rightly points out in the Health Standards Journal  that a limited duty of candour may, in fact, add a whole new level of bureaucracy and take away the intended freedom for medical staff to tell all patients when things go wrong.

A statutory duty of candour does not cast blame. Instead, it aims to elevate the fundamental right of patients and their families to know the truth about their treatment. To freely give this information should liberate medical staff from pressure and constraint. It should restore a basic but overlooked skill, telling the truth.

There are, of course, those opposed to a duty of candour. They argue that claimant lawyers are to blame for medical staff with-holding information for fear of being sued. Unsurprisingly, I disagree with this view. Individuals know their legal rights, whether returning a faulty product to a shop or finding out about a medical mistake. The duty of candour will not change this. It will simply mean that patients and their families do not have to use litigation to get to the truth.

Claimant lawyers do unearth the truth but at the expense of the taxpayer and to the detriment of the individual and public perception of the NHS. A more appropriate deployment of the Claimant lawyer is to help (with medical experts) unravel the hugely complex cases and to evaluate compensation.

To illustrate this point, an article in the Health Service Journal  quoted an impact assessment on the contractual duty of candour which estimated that it could save the NHS £541 million over the next ten years as a result of reduced anxiety and uncertainty for patients. Interestingly, this impact assessment qualified these savings by questioning the extent to which a duty of candour may ignite interest in claims, particularly from those who would never have known of their injury in the absence of being told.  For me, this is exactly the point that has to change. The NHS should not be trying to ‘get-off’ the hook, by hiding the truth, no matter how minor an injury. There should be no place for a conspiracy of silence in a modern NHS.

Kingsley Napley have recently launched their own Healthcare Standards campaign which aims to promote accountability, rather than blame, in the NHS. Information about this, including the duty of candour and, for medical staff in particular, whistleblowing, can be found on our website.

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