New NHS safety report fails to recommend 'legal duty of candour'

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New NHS safety report fails to recommend 'legal duty of candour'

6th August 2013

The eagerly anticipated review into patient safety in the NHS in England has failed to support the proposal for a ‘legal duty of candour’, leading to disappointment amongst many who had campaigned for openness and honesty in provision of healthcare.

Published today (Tuesday), the report by Professor Don Berwick - President Obama's former health adviser – made a number of recommendations for cultural changes within the NHS, including calls for transparency ‘not to be optional’ and for sanctions (criminal charges) to be brought against those found guilty of wilful neglect or mistreatment of patients.

Although the report stopped short of demanding NHS staff be compelled to inform patients of errors in their care - a key change campaigners had called for - Lindsay Holt, a medical negligence legal specialist, said the report would be a disappointment for many campaigners who had argued that a healthcare provider should tell a patient if something goes wrong, no matter what.

“Many healthcare providers argue that if no harm is done, it is reasonable to say nothing as long as the event is documents internally for auditing,” said Lindsay. “But there has already been criticism over the lack of any recommendation regarding a duty of candour in Professor Berwick’s report.

“We regularly deal with cases where the patient has only realised they have received substandard care some time after the treatment, usually because of a recurring or worsening of their symptoms. Those patients are effectively at the mercy of NHS staff, literally trusting doctors and nursing staff with their lives, and the idea that those same staff could make an error in treatment and not have to ‘own up’ to it immediately is of course a cause for concern.

“However, the General Medical Council’s Code of Practice ‘Good medical practice’ already states that medical staff ‘must be open and honest with patients if things go wrong’ (Par. 55),” said Lindsay. “Similarly in its response to the Francis Report into the Mid-Staffs tragedy, the Nursing & Midwifery Council asserts that its own code of practice ‘requires all nurses and midwives to be open and honest and act with integrity’. Therefore it is not unreasonable to think that medical staff should already adhere to their particular codes of conduct,” she said.

Professor Berwick said introducing a ‘duty of candour’ could be too bureaucratic. Whilst Lindsay maintained that bureaucracy should not be held out as an excuse for failing to give patients a truthful account of their care, she did agree that there were potential difficulties with imposing a statutory duty of candour.

“There are some instances where medical staff are actually asked – at a patient’s own request – to withhold information,” she said. “This typically occurs where a patient feels they are not equipped to deal with the results of tests for example, but if a statutory obligation was introduced then doctors would be under a duty to ignore that request or possibly face disciplinary action.

“Professor Berwick’s recommendation that ‘Transparency ought not to be optional’ – provided that the internal performance and safety reviews are undertaken and published - would hit the mark, still enabling patients to choose the level of information they can process, provided all healthcare providers are working within their Codes Practice.

“Unfortunately, that does not always happen in either NHS or private medical practice,” she said. “Patients can only have confidence in these recommendations if transparency is extended to include full interaction between NHS internal reviews and regulatory processes.

“Only recently I dealt with a tragic case where a grandfather died after being over-medicated because of errors in his care,” she said. “As there was no commitment to enforce transparency, many of the circumstances surrounding the incident only came to light at the subsequent inquest. The family had the right to know how their loved one had died, but they were kept in the dark until a Coroner called for the evidence to be presented in court. The hospital spent three years fighting the family’s claim for compensation to which they were entitled, instead of admitting its mistakes.”

Lindsay added that she was disappointed that Professor Berwick had resisted calls for minimum staffing ratios, another of campaigners’ key issues. “Although he said trusts ‘should be keeping a close eye’ on staffing levels to make sure patient care was not suffering, we would prefer suitable minimum levels be set,” she said.

“One of the most common elements of the hundreds of medical negligence inquiries we deal with each year is a shortage of staff. Whilst we understand there are budgetary constraints across all public services, those in charge need to understand that our doctors, nurses, midwives and healthcare assistants can only do so much, and it is vital that there are enough trained professionals at any one time to properly ensure the wellbeing of the patients.”

Professor Berwick was asked by ministers to conduct the five-month review after the public inquiry into the neglect and abuse at Stafford Hospital. In his report – ‘Improving the Safety of Patients in England’ - he said the NHS remained an ‘international gem’ and could be the safest system in the world.

“In an ideal world, I would like to have seen the recommendations of the Robert Francis QC adopted in full,” said Lindsay. “Today’s report, though recognising the difficulties facing the NHS and making diluted recommendations, relies in part on the already ineffective regulatory framework in place, which led to some extent to the failings in Mid Staffordshire. It remains to be seen whether they will lead to improvements in patient care,” she said.

The Government will now consider his report and the Francis Inquiry's conclusions about the Mid-Staffs affair, before responding in full later this year.

Read more at: BBC News, Sky News, Independent