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A Duty of Candour in Our Hospitals

Image © The Sentinel

About The Author

Emily Clements (Former Team Member)

Emily is a Durham University Law graduate due to start as a paralegal in the London Banking & Finance Department of a Silver Circle firm in October 2014, and currently has her targets set on qualifying as a solicitor.

 The patient has no more right to all of the truth than he has to all of the medicines in your saddlebag. He should get only so much as is good for him.

This quote by Oliver Holmes (2nd March 1871 in his address delivered to a graduating class of Bellevue Hospital Medical College) clearly manifests Holmes’ likely lack of support for any statutory duty of candour. Can we still have our hospitals governed by such attitudes 150 years later, or is it time for a culture change?

What is the problem?

There are two incidents in recent history which have served to highlight some of the inherent problems in our hospitals and triggering calls for increased openness between doctors and patients.

The first is the widely reported Stafford Hospital scandal. The Healthcare Commission was first alerted to the problems in the hospital by the high mortality rates, which the Staffordshire NHS Foundation Trust (in charge of running the hospital) failed to provide any adequate explanation for. Consequently, a full-scale investigation was undertaken in 2008 which revealed appalling conditions and unacceptable standards in the hospital. A full public inquiry (chaired by Robert Francis QC) was then announced in 2010 by the new government. It was this report which sparked serious discussion about the implementation of a duty of candour in an attempt to lessen the chance of such a scandal reoccurring. A key problem at Stafford Hospital was found to be that the staff did not feel safe to disclose mistakes or abuse officially.

Another incident that has highlighted further problems is Mr Powell’s prolonged legal struggle, following the death of his 10-year old son, Robbie. An inquiry found, some time after Robbie’s death, that had doctors not made the multiple mistakes that they did, the disease from which Robbie died might have been treatable. Further, it was shown that the doctors had in fact changed his medical records to conceal this truth. An unsuccessful appeal to the European Court of Human Rights in 2000 resulted in the finding that doctors had ‘no duty to give parents of a child who died as a result of negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records’. Mr Justice Butterfield had reasoned that any duty of care which a doctor owes to his patient applies only in his capacity as a healer ‘in the context of the clinical management’. This duty of care could not then be said to extend to the provision of information to the parents of the deceased, since this could no longer have any clinical relevance to future treatment. However, it was recognised that regardless of this legal position, ethically and morally such a duty may exist. Based on these findings, the case was declared inadmissible in the ECtHR. It was said that it was ‘impermissible for the Court to arrogate to itself the task of creating in favour of an individual a substantive right where none is recognised under domestic law’. The facts of the case were not suitable for the application of Article 2 of the European Convention on Human Rights, which protects the right to life. Subsequently, Mr Powell has steadfastly continued to campaign for a statutory duty of candour named ‘Robbie’s Law’.

Although doctors do already have a professional and ethical obligation through the General Medical Council (GMC) to be honest and open when mistakes are made, the evidence above indicates that a statutory duty with greater force could be beneficial. There is a visible public demand for more thorough and genuine explanations, in addition to increased openness, which may be able to improve doctor-patient relationships of trust. Studies have shown that poor communications and staff attitudes are the top reasons for complaints in the NHS; apologies alone are no longer sufficient.

Is the duty of candour a solution?

The Francis Report defines candour as ‘[t]he volunteering of all relevant information to persons who have or may have been harmed by the provision of services, whether or not the information has been requested and whether or not a complaint or a report about that provision has been made.’

In November 2013, Jeremy Hunt announced that a strengthened NHS Constitution would contain a new pledge to patients that NHS staff must be open and honest with them if things go wrong or mistakes are made; the ‘duty of candour’ would become a condition in the NHS standard contract. It was declared that there would be financial penalties for those hospitals which refused to come clean about any mishaps or even near misses. The overwhelming message was one of transparency: if in doubt, report the incident and tell the patient. Crucially, however, the duty was confined to mistakes which resulted in harm that led to avoidable death or severe permanent disability.

In March 2014, following significant encouragement by several key bodies (including the GMC, Nursing and Midwifery Council, Care Quality Commission and Royal College of Nursing), Jeremy Hunt announced that the terms of the duty would be extended. Rather than restricting the law to only cover those incidents which result in death or severe disability, it is now likely to similarly apply to those who suffer severe or moderate harm. Hunt explained that the provisions should now catch anything other than ‘minimal harm’. Nevertheless, in line with the initial proposals in 2013, it does not appear that the duty of candour is going to be extended to cover individual healthcare professionals (as advocated by Mr Powell) as opposed to hospitals and healthcare bodies. In other words, individual doctors will not find themselves criminally liable under the statutory duty, the law will only punish hospitals and care homes. The Regulations themselves have recently been under consultation.

Is the ‘duty of candour’ fit for purpose?

Although the widening of the duty’s parameters to cover anything more than ‘minimal harm’ is undeniably a step in the right direction for transparency, is its limitation to cover only organisations, i.e. hospitals and care homes, appropriate? Is a statutory duty with criminal sanctions the best channel for tackling these problems, and can the law alone really instigate the necessary culture change?

The duty of candour stops short of an Ofsted-style quality rating of individual GPs. Whilst this has been criticised for not going far enough in terms of protecting patients, it seems a proportionate response since imposing any overwhelming pressure or burdens on individuals is unlikely to be beneficial. Having said this, ratings on individual doctors have not been ruled out as a possibility for the future.

Although this aspect of the proposals seems justifiable, it has been strongly argued by the Medical Protection Society that legislation is not the best medium for improving transparency in healthcare. They consider legislation unable to deliver the essential attributes of high-quality and open communication such as empathy, sincerity and comprehensiveness. Alternatively, it is proposed that the focus should be on creating a shift in healthcare culture; mistakes must no longer automatically equate to incompetence, and members must instead understand, accept and learn to handle, the inherent risk of mistakes in medicine. The problem with the law is its potential for counter-productivity; it is argued that a statutory duty imposes fear which may simply drive adverse event reporting underground. The GPC deputy chair has noted this paradoxical risk of making the process less transparent because of an inescapable fear of litigation which could affect a doctor’s livelihood. This unintended consequence has been fully taken into account during consultation; GPC deputy chair Dr Richard Vautrey stated that GPC ‘want a change in culture of the NHS without a fear of criminalisation in the process’.  After all, this would be in stark opposition to the aim of increasing hospitals’ eagerness to admit and learn from mistakes. By way of example, Hong Kong operates an open disclosure environment in which doctors are less concerned with possible repercussions and are more focused on learning and prevention of mistake repetition. The Medical Protection Society advocates a model based on similar ideals.

Other concerns have focused on how effectively the government can enforce mandatory disclosure. The criticism is that such a duty could develop a tick-box mentality which would be entirely incongruous with the need for ‘intensely sensitive, personalised and patient-centred conversations’, which are so desired. Academics at both the University of Oxford and King’s College London have argued that this type of ‘micro-regulation’ is unsuitable to the aim. Further research into the affects of varying regulation in healthcare by Fischer and colleagues found that rule-based regulation often erodes value-based self-regulation, resulting in professional defensiveness and contradictions undermining, rather than supporting, good patient care. Further, concerns have been voiced that the doctor-patient relationship could be harmed since patients may feel doctors are only sharing information with them because they are statutorily obliged to. However, I do not find this argument particularly strong when considered in context given that, even if this were to happen, in practice it would remain a preferable position to the current lack of communication and concealment.

Irrespective of the grounds for concern above, a central benefit of such a duty which must not be forgotten is its potential to prevent other patients from suffering as a result of the same mistakes. Health Service Journal (HSJ) studies have shown that the majority of patients state their primary reason for initiating litigation against doctors stems from a desire to ensure another patient does not suffer unnecessarily in the same vein. Such an attitude has recently been voiced in response to the baby deaths at St Thomas’ Hospital in London. The father of one of the babies who became a blood poisoning victim emphasised his overwhelming desire to ensure no more babies suffered or died in the same way that his son did. Bringing in the duty of candour and encouraging a disclosure environment could minimise the amount of litigation: an oblique benefit.

To conclude, much sympathy with Mr Hunt’s premise must surely be found; ‘[t]he health and care system must change. We cannot merely tinker around the edges - we need a radical overhaul with high quality care and compassion at its heart’. The difficulty lies in implementation and how far the law as an instrument can go towards creating the idealised culture of openness, which the NHS has so far lacked. The proposals to date undoubtedly represent a step in the right direction; it will only be with time that their usefulness in practice can be fully assessed.

Further Reading

Pulse, GPs to be given legal 'duty of candour' to highlight bad patient care (March 2013)

Mills & Reeve, New criminal sanctions: will they generate the cultural change required for a safer NHS? (May 2013)

A summary of the case of Robert Powell - by Will Powell

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Tagged: Human Rights, Medical Law & Ethics, Regulators

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