The end of the duty of candour double standard?

6 July 2015

When things go wrong in healthcare, should the duty of candour owed by providers to patients differ depending on whether the care was provided within a primary or secondary setting? Or whether the patient received care from the public or private sector? A single duty of candour should apply consistently across the healthcare service. Unfortunately, the duty of candour is currently triggered by two different thresholds depending upon who provides care to the patient.

The patient safety charity, Action against Medical Accidents (AvMA), campaigned for many years for a statutory duty of candour. This was a major focus for the charity during its participation in the Mid Staffordshire NHS Trust Public Inquiry and one of the key recommendations arising from the Inquiry.

NHS Trusts, Foundation Trusts and Special Health Authorities have been subject to a statutory duty of candour since November 2014 (see previous blogs here, here and here). In short, this duty requires an organisation to be open and honest with patients following certain adverse incidents. This duty is triggered by a “notifiable safety incident” having occurred which, in summary, is defined as:

Any unintended or unexpected incident that could result in, or appears to have resulted in, the death of a service user or severe harm, moderate harm, or prolonged psychological harm.

A different definition was introduced in relation to the balance of CQC registered healthcare providers in April 2015, including both primary care providers (ie. GPs) and the private sector. Whilst similar, this definition critically leaves out reference to incidents which “could” result in harm.

This simple omission may have significant consequences. For example, one of the most frequent causes of clinical negligence claim is the deprivation of oxygen to a baby during birth. Consequent learning disabilities may be evident sooner or later in childhood. If the baby was born in an NHS hospital, the Trust would be obliged to inform the parents of the incident and potential for harm upon concerns arising. If the baby was born in a private hospital, although the provider may choose to be open and honest with the parents, there is no statutory obligation upon it to do so.

The prospect of different definitions for different sectors had not been raised in the consultation issued by the Department of Health in March 2014 concerning the applicable threshold. The only explanation provided was that the definition applicable to primary and private providers would align with existing patient safety incident harm definitions requiring CQC notification. However, this apparent attempt to ease the burden upon parts of the healthcare service can surely only lead to an unjustified inconsistency of outcome for patients and inevitable confusion for those professionals who work within both public and private sectors.

In light of the potential injustice caused by two duties of candour being created, AvMA sought amendment to the draft regulations.  The Department refused to reconsider the introduction of this second definition. With some reluctance, AvMA wrote to the Department last month indicating it would seek judicial review of the failure to consult upon this issue given the public interest involved. In response, the Department agreed to issue a consultation this summer. Therefore, both patients and professionals will soon have an opportunity to express their views on a single duty of candour applicable across all healthcare services. Patients are surely entitled to the same standard of candour irrespective of where they receive their care.

Action against Medical Accidents instructed Kingsley Napley LLP and Kate Beattie and Jeremy Hyam of 1 Crown Office Row in the potential judicial review proceedings above. The firm formerly represented AvMA in the Mid Staffordshire NHS Foundation Trust Public Inquiry.

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