A report commissioned by the Secretary of State for Health (Jeremy Hunt) was released last week. The report, Building a culture of candour, makes some strong recommendations for Mr Hunt to consider. The report addresses how the duty of candour should be framed and recommends that an organisational duty of candour should apply to all harm that is not defined as low, in other words, harm that causes moderate or severe injury or death. I was pleased to see this (see my last blog: Why restrict a duty of candour?).

This positive recommendation is, however, jeopardised by the small print. The report suggests that the Government look at ways to minimise the possibility that explanations given to harmed patients by medical staff can subsequently be used as evidence to support a negligence claim. Put differently, the duty of candour should not help harmed patients to succeed in civil claims for compensation. The logic behind this is to prevent a flood of new litigation. This cannot be right. If a key aim behind the duty of candour is to restore patients’ faith in the NHS, how can a patient be prevented from using information obtained through it to seek compensation for damages that they may be entitled to?

Peter Walsh, chief executive of the charity Action Against Medical Accidents, commented on this issue in The Times. He said: “It’s misconceived and grossly unfair. You get to know the truth but you can’t do anything with it”.

The report says that the Government should consider systems used in other countries, including Australia. Under Australian apology laws any open disclosure to a patient about an adverse incident cannot be used in litigation so long as the informing medical staff do not apportion blame or state that they are liable for harm (see: www.rcseng.ac.uk/policy/.../austrailian-open-disclosure-framework). A policy from Western Australia suggests that medical staff be careful not make an admission of liability citing two examples:

  • Statement of Fact: “You were told that you had breast cancer and a mastectomy was performed. Test results of the breast tissue show that there was no cancer in the breast that was removed”.
  • Admission of Liability: “I made a terrible mistake. I removed your breast but now we know that you didn’t have breast cancer. It is all my fault”. 

Are medical staff comfortable implementing this? One view from the Australian Commission of Safety and Quality in Healthcare suggests that despite the protection of apology laws, the most powerful barrier to open disclosure is still the apprehension held by medical staff about legal risks associated with being open (see: www.miiaa.com.au/__files/f/6431/Luke%20Slawomirski.pdf). 

Mr Hunt will have to consider the effectiveness of apology laws in the UK. My concern is that such laws would de-rail the potential of an unfettered duty of candour to restore patients’ and practitioners’ faith in their NHS. There is also a real danger that such laws would protect the interests of NHS Trusts above and beyond patients’ rights to know the truth. 

The duty of candour should not become bogged down by the perception that it will lead to increased litigation because the limited research available actually contradicts this view (see: https://www.ecu.edu.au/__data/.../86_Allan_OD_Literature_Review.pdf).  

Australia led the way with their open disclosure policy but I do not think implementing similar apology laws in the UK will satisfy the public’s ever growing desire to change a deep rooted and unhealthy culture embedded within the NHS.