Driving “being open” … is a legal duty of candour required?

Joanna Lloyd looks at recent arguments on openness and the proposals for a legal Duty of Candour.

02/03/2010

Joanna Lloyd

Joanna Lloyd

Partner

No-one could disagree with Action Against Medical Accidents' (AvMA) argument that when there is a failure to report incidents, the NHS is deprived of information that could prevent recurrence of the same mistake.  The importance of being “Being open” is widely supported across the NHS.  Regulations for the Care Quality Commission (CQC) laid before Parliament on 30 November 2009 are intended to make it a legal requirement to report incidents to the National Patient Safety Agency (NPSA). The NPSA is to lead on implementing recommendations that will strengthen the existing “Being open” guidance, following the review of Professor Albert Wu of Johns Hopkins University. 

But AvMA is still calling for the government to make it a legal requirement to inform patients or their next of kin (as well as Regulators) of errors or incidents in their healthcare which have or may have caused harm.  These proposals are known as Robbie’s Law in honour of Robbie Powell and his family.  AvMA Chief Executive Peter Walsh feels strongly that it sends out “completely the wrong message” and “England is lagging behind in this regard”.  Click here to see for instance, the AvMA Press Release dated 6 December 2009.

On the other hand, many frontline staff would find it difficult not to see this as a backward step.  Identifying obstacles to “Being open”, Professor Wu found that if healthcare staff “do not feel that it is safe to be open, they are less likely to do so”.  Will imposition of a legal duty really help the work being done to encourage and support an open and honest dialogue between patients and staff?

This encouragement is not new.  The NHS Litigation Authority’s Litigation Circular 02/2002, and the Welsh Risk Pool Technical Note 23/02/001, both stressed that following treatment which results in an adverse outcome, it is both “natural and desirable” for those involved to offer sympathy and express sorrow or regret at the outcome.  The Medical Defence Union (MDU) is a signatory to the updated guidance from the NHS Litigation Authority on “Apologies and Explanations” and have publicly stated, “We support the recommendation that patients who are harmed … deserve a full explanation, unequivocal apology and an undertaking that the harm will not be repeated … we were happy to sign our name to the recent guidance … from the NHS Litigation Authority because it is so important to get this message across”. Click here to see the guidance.

The GMC has amended its “Good Medical Practice” booklet to emphasise that doctors have a moral and ethical duty to tell patients when something goes wrong.  Others would argue the role of the CQC will make such a duty unnecessary.

Telling a patient or their relatives that something has gone wrong sounds so much more straightforward than it must be in practice.  The emphasis should surely be on training frontline healthcare and other relevant staff on how to undertake this difficult task in a way that will not add to the distress of patients and carers alike.  The NPSA have stressed the importance of NHS Boards ensuring that non-punitive local policy exists to support this.

Since 2000, the Department of Health has sought to move the NHS away from a “blame culture” in which harm to patients is attributed to individual healthcare workers and towards an open, reporting and learning culture.  Forward momentum is genuine and is reflected in positive trends demonstrating increased incident reporting to NPSA.  Between July 2008 and June 2009, 1.06 million incidents were reported to NPSA, compared to 920,000 incidents in the previous year.  96% of staff responding to a 2008 survey said they had reported the most recent error, near miss, or incident they had witnessed (compared with 94% the previous year).  95% of the 389 NHS organisations reported at least one incident every month between 1 July 2009 and 30 September 2009 (a significant improvement on the figure of 48% for the same sample the previous year).  Further, the CQC has confirmed in ‘The State of Health’ publication that reporting rates will be taken into account in both their registration and monitoring activities.

However, as has been highlighted by the Health Select Committee Report on Patient Safety, under-reporting continues with the persistence of the “blame culture” and the fear of litigation/prosecution has been identified as one of the reasons underlying this.

It remains hard to see that the imposition of a legal duty of candour is helpful.  Why throw the gearstick into reverse?

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