On 1 April the government intends to put into effect a new statutory duty of candour, following the recommendations of Robert Francis QC in his Report after the Public Inquiry into Mid-Staffordshire NHS Foundation Trust.
The Francis Report identified poor care and a culture of secrecy and defensiveness, and consequently recommended that there be a duty of openness, transparency and candour: openness, enabling concerns and complaints to be raised freely without fear and questions asked to be answered; transparency, allowing information about the truth about performance and outcomes to be shared with staff, patients, the public and regulators; and candour, in which any patient harmed is informed of the fact and an appropriate remedy offered. Additionally, it has been widely reported that whistleblowers in the NHS are vilified, ostracised and often dismissed, and that it is not possible to speak up freely about poor care or concerns about patient safety. The Francis Report recommended that “gagging clauses” should be prohibited in the policies and contracts of all healthcare organisations, regulators and commissioners to address this issue.
Health professionals are under an ethical duty to report mistakes and act upon them and guidance issued by the regulators (the General Medical Council, Nursing and Midwifery Council, etc.) follows suit; the NHS Constitution expects NHS staff to behave in this way. However, it appears to be the case that this has been insufficient in ensuring that errors are reported, lessons are learned and cover ups do not occur. The government’s new statutory duty of candour is an attempt to introduce into the NHS the Francis Report’s recommendations of openness, transparency and candour by making it a statutory requirement to admit to mistakes that have caused moderate to serious harm or death, to apologise sincerely, to investigate such incidents and to keep proper written records. Failure to do so may result in sanctions against the NHS organisation, but the implementation of the duty appears to fall short of sanctions against individuals. Naturally, such incidents may result in a legal claim and financial recompense. However, it appears that primary care and private practice practitioners will not be affected by the new duty, for no discernible reason. Further, it is apparent that “near misses”, where no or minimal harm has been caused, will also not be affected. Additionally, in seeking to address the whistleblowing issue, the government has recently stated that severance agreements of NHS employees cannot contain gagging clauses preventing such employees from speaking out about patient safety issues. However, it seems that there will be no law requiring NHS employees to report matters of patient safety or poor care and ensuring sanctions for failing to do so.
In our clinical negligence work, we frequently encounter health professionals and Trusts failing to inform patients of mistakes that have been made, behaving defensively and failing to apologise sincerely to patients rather than simply paying lip service. For many patients the driving force for litigation is a desire for a thorough explanation of what happened and a reassurance that the same mistakes will not be made in the future, rather than just financial recompense. However, it is often difficult to identify the truth of what actually occurred in an adverse incident and Trusts are frequently not forthcoming with their disclosure of all relevant documents. A by-product of a clinical negligence investigation is that it can help a patient get to the bottom of what did actually happen and, paradoxically, an open, honest and transparent NHS could reduce clinical negligence claims rather than increase them. The steps being taken by the government are, therefore, to be supported, but the concern is that they simply will not go far enough to effect significant change to the embedded culture identified in the Mid-Staffs Inquiry.