The introduction of a legal duty of candour was one of the key recommendations in Robert Francis QC’s report into care failings at mid-Staffordshire NHS Trust and advocates see it as a necessary measure to ensure transparency within the NHS.
The Care Quality Commission (CQC) has recently completed a consultation which includes plans to introduce a statutory duty for primary care in England. We do not yet know what will happen but will examine the background to the proposals.
Earlier this year, a contractual duty of candour was introduced for NHS providers, excluding primary care.
- A contractual duty of candour was introduced in April 2013 for NHS providers, excluding primary care.
- This only applies to incidents resulting in moderate or severe harm or death. Providers should use the National Patient Safety Authority (NPSA) document Seven Steps to Patient Safety definitions
- Penalties for breach can include commissioning bodies recovering cost of care or up to £10,000.
- Doctors’ ethical duty to keep patients informed is wider than the contractual duty. They need to continue to inform patients in the usual way any time anything goes wrong.
Some commentators suggested this is an insufficient deterrent and there should also be a much wider statutory obligation on individual healthcare professionals.
For example, Robert Francis QC proposed introducing a criminal offence for healthcare professionals and directors who provide information to patients or their relatives that is intended to mislead them about an incident.
More recently, however, Professor Don Berwick’s well-received report on patient safety in the NHS explicitly opposed a statutory duty of candour.
Professor Berwick stated: ‘We do not subscribe to an automatic ‘duty of candour’ where patients are told about every error or near miss, as this will lead to defensive documentation and large bureaucratic overhead that distracts from patient care. However, patients should be given all the information they ask for.’
He noted: ‘Patient safety cannot be improved without active interrogation of information that is generated primarily for learning, not punishment, and is for use primarily at the front line.’
The CQC's consultation on the way it regulates and inspects providers proposes a statutory duty of candour as a requirement of registration for all providers, including those in primary care.
CQC did not define the duty of candour nor explain how the statutory duty would be applied, but the proposals stated that it: ‘… should be sufficiently clear that CQC could prosecute an organisation without having to issue a warning notice. The new registration requirement should mean CQC can take action against a provider that was not open with people who use services about failings in care.’
As GPs will be only too aware, doctors already have an ethical obligation to be open and honest when things go wrong. As well as explaining what happened, the GMC requires doctors to put things right as far as they can and to contribute to investigations into why it happened and to apologise. The CQC consultation provided no evidence to suggest a need for a duty of candour in primary care and nor did it suggest how a statutory duty might be considered to improve on GPs’ existing ethical duty.
In the MDU’s experience, doctors understand their obligations and do not withhold information from patients. If a statutory duty were introduced, GPs might find themselves in the middle of disputes about the interpretation, for example, did something go wrong or was it a recognised part of the disease process or an unwelcome but known side effect of treatment?
It could also create administrative distractions, which would be keenly felt in general practice, where the focus should be to put things right and to make sure the patient is aware of what went wrong, its potential repercussions and what can be done about it.
We do not know if a duty of candour will be introduced for GP practices. As to whether there will be a statutory duty on individual doctors, the government said it would wait until after Professor Berwick reported and there has been no further comment to date/
The MDU believes introducing a statutory duty would impose another layer of unnecessary regulation, and would add to the multiple jeopardy which can face GPs when something goes wrong. It would be far better to concentrate on learning from mistakes than prosecuting those who make them.
- Dr Michael Devlin is head of advisory at the MDU