On 28 March 2013, following publication of the Francis Report on the damning events at Mid-Staffordshire NHS Foundation Trust, I wrote a blog about a possible statutory duty of candour, which was one of the recommendations made by Robert Francis QC as part of his suggested reforms.  Further developments on this issue have taken place this year, most recently with the Care Quality Commission’s consultation on this statutory duty of candour closing on 17 October 2014.

In addition to the proposed statutory duty of candour, the General Medical Council (GMC) on 13 October 2014 published a joint statement with 7 other UK professional healthcare regulators underlining their commitment to a ‘professional’ duty of candour.

From the patient’s perspective, if something has gone wrong, this new duty effectively requires that your doctor (or other health professional) is now under a professional obligation, and not just an ethical one, to tell you that something has gone wrong, to apologise to you, to offer to put matters right and to explain the effects of what has happened (both short and long term effects). 

The GMC’s actual statement states that:

Every healthcare professional must be open and honest with patients when something goes wrong with their treatment or care which causes, or has the potential to cause, harm or distress.  This means that healthcare professionals must:

  • tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong;
  • apologise to the patient (or, where appropriate, the patient’s advocate, carer or family);
  • offer an appropriate remedy or support to put matters right (if possible); and
  • explain fully to the patient (or, where appropriate, the patient’s advocate, carer or family) the short and long term effects of what has happened”.

The GMC statement goes on to say that every patient should receive a high standard of care and that the GMC’s role is to help achieve this by working closely with doctors, their employers and patients to make sure that the trust patients have in their doctors is fully justified.  The GMC notes that their role is not to protect doctors but to protect the public. 

The GMC emphasises that healthcare professionals must also be open and honest with their colleagues, employers and relevant organisations, and with their regulators, raising concerns where appropriate; they must take part in reviews and investigations when requested; and they must support and encourage each other to be open and honest and not stop people from raising concerns.  This effectively means that health professionals should not cover up their mistakes or mistakes of others, which will hopefully go some way to stopping the culture of fear in relation to whistle-blowing in particular in the NHS.

The statement goes on to say that the GMC is working with the Nursing and Midwifery Council (NMC) to develop some joint explanatory guidance regarding what a professional duty of candour actually means in practice for doctors, nurses and midwives.  This guidance is intended to expand upon the advice in the GMC’s core guidance, Good medical practice, and the NMC’s code, The Code: Standards of conduct, performance and ethics for nurses and midwives.  It is anticipated that the joint guidance will be published in March 2015, following consultation commencing in November 2014, and that it will give more detail about being honest with patients when things go wrong, including advice on apologies, and encouraging a learning culture by the reporting of near misses as well as adverse incidents causing harm.

All of this would appear to be very good news for patients and will hopefully engender a culture of openness and honesty as well as a culture of learning from mistakes within both the NHS and private healthcare sectors.  As a claimant clinical negligence specialist I very much welcome this news, which is designed to, and hopefully will, help protect patients from medical errors and assist them when medical errors have unfortunately occurred. 

If you believe something has gone wrong with your medical care, you should therefore be encouraged to take up with your doctor, GP Practice, NHS Trust and/or private hospital the issues about which you are concerned.  You should request a full explanation of what happened, including having a meeting with the health professional(s) and/or hospital representatives where appropriate.  You should also request an explanation of what the short and long term effects might be.  You may even wish to request an apology where necessary.  All of these things may help you come to terms with what happened and may help begin to restore faith in the health professions.

One of the new duties is “to offer an appropriate remedy or support to put matters right (if possible)”.  However, regardless of the professional and ethical duties imposed on health professionals, it is important to remember that, when you have suffered avoidable harm due to the negligence of a doctor or other health professional, you may be legally entitled to financial compensation, the purpose of which is to recompense you for your harm and, in as much as money ever can, to put you back into the position you would have been in before the negligence occurred. 

It is not clear to me exactly how health professionals intend to comply with this particular duty when negligence has occurred so, notwithstanding these new professional obligations imposed by the GMC, it would seem wise in the event of a medical error for you to seek a proper assessment of that error to determine whether there has been clinical negligence, whether you may be entitled to financial compensation and, if so, what that compensation might be.  Such an assessment will very likely need to be carried out by a specialist medical negligence lawyer with considerable experience of medical malpractice, as they will be in the best position to advise you properly and, most importantly, in a manner that is wholly independent, something that the involved health professional, Trust or Hospital simply cannot be.

If you feel that you may have been the victim of a medical accident or error, please do not hesitate to contact our medical negligence solicitors for specialist assistance and guidance.