Mid Staffordshire NHS Inquiry Report - Key points: Clinical Governance

“I suggest that the Board of any Trust could reflect on their own work in the light of what is described in my report”.  Robert Francis, QC

The lessons learned and recommendations set out in the Francis report are clearly intended to have an impact outside Stafford Hospital. Among many problems highlighted the report identifies:

• A lack of openness to criticism
• A lack of consideration for patients
• Defensiveness

More particularly the findings identify an organisation that was characterised by:

• Looking inwards not outwards
• Secrecy
• Misplaced assumptions about the judgements and actions of others
• An acceptance of poor standards
• A failure to put the patient first in everything that is done

The wider lesson is borne of the acknowledgement that it cannot be suggested that all these characteristics are present everywhere in the system all of the time, but their existence anywhere means that there is an insufficiently shared positive culture.  The report advocates a relentless focus on the patient’s interests and the obligation to keep patients safe and protected from sub-standard care.

The recommendations set out in the report have a broad ambit, but those which will have an impact on clinical practice and governance are outlined below.

Enshrined in the NHS Constitution and systems regulations should be a commitment to abide by an integrated hierarchy of standards:

• Fundamental standards, which need to be applied by all those who work and serve in the healthcare system.  Behaviour at all levels and service provision need to be in accordance with at least these fundamental standards.  No provider should provide any service that does not comply with these fundamental standards, in relation to which there should be zero tolerance of breaches.
• Enhanced quality standards, which set requirements over and above the fundamental standards, which are a matter for definition and enforcement by the commissioners of services.
• Developmental standards setting longer term goals devised by commissioners and providers

The report warns that unless steps are taken to evidence the importance of candour by the creation of some uniform duty with serious sanctions available for non-observance, a culture of denial, secrecy and concealment of issues of concern will be able to survive anywhere in the healthcare system.  This is reflected further in Recommendation 173:

Every healthcare organisation and everyone working for them must be honest, open and truthful in all their dealings with patients and the public, and organisational and personal interests must never be allowed to outweigh the duty to be honest, open and truthful.

A statutory obligation should be imposed:

• On healthcare providers, registered medical and nursing practitioners to observe the duty of candour.
• On directors of healthcare organisations to be truthful in any information given to a regulator or commissioner.  There should be a criminal offence for any registered doctor, nurse, allied health professional or director of a registered or authorised organisation obstructing the performance of these duties or dishonestly or recklessly making an untruthful statement to a regulator.

The obligations which are embraced in the duty of candour as set out at Recommendation 181 include:

• Full disclosure of the circumstances and provision of support where a patient is injured by the organisation.
• Full and truthful answers to any reasonable question by a patient.
• A requirement to disclose knowledge of unacceptable practice within the provider organisation.

The provision of information in compliance with this requirement should not of itself be evidence or an admission of any civil or criminal liability, but non-compliance with the statutory duty should entitle the patient to a remedy.  In other words, an apology must be made, an explanation given and while that on its own should not have consequences, not doing so will.  If, as Recommendation 183 suggests, a breach of the duty of candour is to be a criminal offence, this raises the spectre of staff being potentially caught between a duty of candour and a legal entitlement not to give evidence which might incriminate them.

Elsewhere in relation to dealings with Coroners, Recommendation 273 suggests that:

The terms of authorisation, licensing and registration and any relevant guidance should oblige healthcare providers to provide all relevant information to enable the coroner to perform his function, unless a director is personally satisfied that withholding the information is justified in the public interest.

This is consistent with the Court of Appeal judgement in R (Mack) v Coroner for Birmingham and Solihull [2011] EWCA Civ 712. There, reservations were expressed about a practice of a Coroner relying on a hospital’s view as to what should or should not be disclosed in an inquest.

In addition, the report notes that whilst describing the NHSLA Guidance on Apologies and Explanations as "a commendable attempt to promote openness", it recommends that the guidance be reviewed by the NHSLA, and all other organisations with published guidance or policies on disclosure of information about incidents to patients, to ensure consistency with the report's proposals.

The public should be able to compare relative performance, and therefore need access to open, honest and transparent information to assess compliance with appropriate standards.  This should include information about the performance and outcomes of the service provided to enable patients to make treatment choices and have a proper understanding of the outcomes for them.  This should lead to:

• Patients being allowed access to electronic records in real time
• Real time access to information about clinicians’ performance
• Details of compliance with fundamental standards by way of quality accounts, available on the Trust’s website.

It should be a professional duty of healthcare professionals to collaborate in the provision of such information.

Seminar: The Mid Staffordshire Public Inquiry - essential lessons for the health and social care sector

In the coming weeks Bevan Brittan is hosting a series of seminars across its offices to consider the implications of the Inquiry more fully. Following these we will issue more detailed briefings on what the Inquiry's conclusions mean for different players in the system. The scheduled dates for these seminars are as follows:

Please click on the above dates and locations to view further details and to register for the seminars.