Lawyers must fix the problems with gagging orders before it is too late
A paper published by the Professional Standards Authority (“PSA”) last week entitled “Telling patients the truth when something goes wrong” (“the Paper”) addresses the progress of regulators in the Health and Social Care sector in embedding the professional duty of candour over the past 5 years. The Paper highlights the role regulators have played in the development of the Duty of Candour and it’s recognition throughout the Health and Social Care Sector.
Herein, we review the paper, and the progress that has been made towards embedding the duty of candour into everyday practice.
In 2013, the Francis Report in the failings at Mid-Staffordshire NHS Foundation Trust revealed issues surrounding openness, transparency and candour within the Health and Social Care sector. In response, the Government published the paper Hard Truths establishing a requirement for all Care Quality Commission (“CQC”) registered providers to be open and honest where there had been failings in care and extended this duty not only to organisations but also professionals. Both papers led to the Joint Statement from the Chief Executives of statutory regulators of healthcare professionals in 2014.
The purpose of the Paper published by the PSA last week is to explore how professional regulators in the UK have sought to encourage health and care professionals to be more open and transparent to fulfil their Duty of Candour, following the publication of the Joint Statement. The Paper also provides the PSA with an opportunity to further encourage regulators to address barriers to candour and promote candid disclosure.
Through a combination of desk research, questionnaires to stakeholders and discussion groups, research was conducted to evaluate developments in the past 6 years and identify where development may have stagnated.
Despite the clear developments in the attitude towards the duty of candour, several barriers still exist, some of which were highlighted as obstacles in 2013.
It was expressed by respondents in the Paper that one significant barrier to promoting candour lay in a lack of understanding of the duty itself. Although a definition of the duty was released by the regulators as part of the Joint Statement, some regulators were of a view that candour had to be explained in ‘everyday language’ to be best understood by professionals, whereas others felt it is a ‘repackaging and relabeling’ of routine professional and common-sense responsibility.
The measurement of candour was also seen to be one of the prevailing barriers, with regulators and professional bodies relying too heavily on compliance with the duty as opposed to promoting responsibility and professionalism. Furthermore, taking Fitness to Practise data as the predominant unit of measurement was perceived as producing unreliable results, as effective candour could lead to a reduction in patient complaints.
Respondents expressed concern that circumstances whereby a professional is expected to be candid can have the dual prospect of potential regulatory, criminal or civil proceedings. The Paper, unsurprisingly, highlighted the case of Dr Hadiza Bawa-Garba as negatively impacting professionals trust in their regulator and instilled a concern that regulators will not treat professionals fairly for being candid with respect to organisation-wide problems.
The Paper reinforced that it is the regulators responsibility to rebuild trust with their registrants and de-stigmatise those who have been candid and reported failings.
The Paper commented on the failure of some health and social care regulators to explicitly address candour in their fitness to practise guidance, as well as, failing to address it in either allegations or determinations.
In spite of this, candour (or lack of) is frequently an issue in fitness to practise proceedings. Several cases have highlighted how a lack of candour can be conflated with dishonesty, and expressed as the latter. Regulators therefore have a role to play in distinguishing between dishonesty and a lack of candour, and handling each appropriately.
Despite existing barriers to candour, the Paper identified a number of factors which have encouraged professionals to uphold the Duty and become more open and transparent with their patients, and the public, generally. Relevant factors include;
The workplace – environments operating under a ‘blame culture’ unsurprisingly created a barrier to candid disclosure from professionals who were fearful of the repercussions.
Timeliness - the Paper reinforced the benefits of candid disclosure at the earliest opportunity as early acknowledgement and sincere apologies can often satisfy patients and reduce the number of complaints. Conversely, late disclosure can often be viewed negatively as missed, or ignored, opportunities for candour demonstrating a lack of insight and/or an element of dishonest behaviour.
Education and training - candour should be viewed as a cornerstone of communication within professional circles, in particular when public trust is involved. Early and on-going training and education into candid communication should promote a positive approach to candour and reduce the stigma which may be attached to candid disclosure.
A considerable role in this area is to be played by the regulators. Through their rules, standards and guidance, the regulators’ approach to education and training can be used to increase willingness to make candid disclosures. A recommendation to have an inter-regulator approach to education and training would cultivate uniformity throughout the Health and Social Care Sector. This does not necessarily indicate a need for a further ‘layer’ of regulatory input, but a review of materials and process to ensure that the duty of candour is recognised appropriately.
Indemnity – is perceived as a significant on-going barrier to professionals’ candour due to the potential impact on their insurance/indemnity provisions which may lead to increased premiums or at worst, nullification of the policy.
Professionals’ expectations (of making an error) - the Paper highlighted that professionals often find their own expectations (and that of their profession) as a significant barrier to making a disclosure. In the particularly risky field of healthcare, it should be acknowledged that interventions can, and often do, go wrong. Professionals and the organisations employing them should seek to reduce such risks, insofar as possible, but must also acknowledge that the failings or mistakes will happen and that the handling of these matters should be learning opportunities.
We act for regulated healthcare professionals in relation to complaints locally and fitness to practise proceedings. Time and time again clients approach us with an innate fear that a mistake/adverse event will lead to action being taken against them. Whilst we invariably know this is not the case across the board, regulators have a distinct role to play in dispelling this fear, and should take on-board the recommendations made in the paper to work towards embedding the duty of candour amongst professionals without fear.
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