LAW
A question of candour
Solicitor Majid Hassan looks at Government plans for a statutory duty of candour in healthcare
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N April 2006, John Moore- Robinson attended the A&E department at Mid Staffordshire General Hospitals
NHS Trust following a mountain biking accident. He was examined by a junior doctor who did not suspect anything serious and discharged him with advice to take analgesia. Sadly the patient died of a ruptured spleen at another hospital the following day. A statement written for the coroner by a
trust A&E consultant that was critical of the treatment was not given to the coroner on the advice of the trust’s in-house solicitors. Tey believed that it dealt with issues concerning liability and was not appropriate for the inquest, which was a fact-finding exercise. Although the claim for negligence was settled out of court the family did not find out about the consultant report until the first Mid Staffordshire Inquiry. Te case of John Moore-Robinson was
used by Robert Francis QC to highlight the inadequacy of current professional and ethical obligations for healthcare staff to be honest and open with patients when mistakes are made. In his view, what was needed was a statutory duty of candour backed by criminal sanctions against both organisations and individuals.
Intent to mislead Te actions of the trust in failing to pass on the consultant’s statement were not considered unlawful as at the time there was no legal duty to disclose the document. Nevertheless, it was felt that the trust’s in-house solicitors were “simply at the wrong starting point’ with their intention of withholding information which was not in
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the best interests of the trust to disclose. Te Francis Inquiry recommended that,
where death or serious harm has been or may have been caused to a patient by an act or omission of the organisation or its staff, full disclosure must be given to the patient or their representatives whether or not they have asked for it. Furthermore, it recommended that it should be a criminal offence for any registered medical practitioner, nurse or allied health professional to knowingly obstruct someone in the performance of these duties or to provide information to a patient or relative with intent to mislead them about an incident, or to make an untruthful statement to a commissioner or regulator knowing that they are likely to rely on that statement. Since the Francis Report was published in
February 2013, much has been said about the pros and cons of a statutory duty of candour backed by criminal sanctions. Professor Don Berwick in his report did not agree with the need for an “automatic” duty of candour where patients are told about all errors, including near misses. In its final response to the Francis Report the government agreed to introduce an explicit duty of candour as a Care Quality Commission (CQC) registration requirement for organisations, but it did not accept the need for a criminal offence for any individual healthcare professional found to be in breach of the statutory duty of candour. Tis duty will very likely come into force in October 2014. It should also be appreciated that existing
obligations for doctors around openness and honesty are set out both in the NHS Constitution and the GMC’s Good Medical Practice. In so far as NHS Trusts are
concerned, the NHS Standard Contract which came into force in April 2013 contains (at Service Condition 35) a contractual obligation of candour which states that providers must tell a patient (in writing, with all of the facts and an appropriate apology) about any unintended or unexpected incident that could have or did lead to moderate or severe harm or to the death of a patient.
New legal landscape Subject to parliamentary approval of the Care Bill, the draſt regulations due to come into force in October will impose on health and social care providers a duty of candour for any harm to a service user resulting from their care or treatment above a certain “harm threshold”. For healthcare providers this threshold will include harm classified as “moderate” or “severe”, or where “prolonged psychological harm” has arisen. Duty of candour will also apply in cases of death, if the death relates to the incident of harm rather than to the natural course of the patient’s illness or underlying condition. One advantage of using this threshold is that it is the same as the harm threshold used in the contractual duty of candour (with the exception of the inclusion of “prolonged psychological harm”). Where the harm threshold has been
breached, the service provider would need to: • Notify the service user (which includes someone lawfully acting on their behalf where necessary) that the incident has occurred. Tis notification will include an apology.
• Advise and, if possible, agree with the service user what further enquiries are appropriate.
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