Abstract
It is a sobering fact that, until the recent introduction of a statutory Duty of Candour in England, for the entire history of official healthcare in the UK, no organisation has been breaking any rule by covering up a patient safety incident that has caused harm or even killed a patient. Cover-ups have been frowned upon but in effect they have been tolerated. The special issue of Clinical Risk published earlier in 2014 was testimony to the gigantic struggle which has finally resulted in the change of policy in England, which was helped enormously by the recommendations from Sir Robert Francis QC following the Mid Staffordshire NHS Foundation Trust public inquiry. The English statutory Duty of Candour, embedded in the fundamental standards regulated by the Care Quality Commission (CQC), finally completed its passage through Parliament in November 2014. In the same month, the General Medical Council (GMC) and Nursing & Midwifery Council (NMC) launched their consultation on guidance on the ‘professional Duty of Candour’. This followed the Government’s rejection of Sir Robert’s recommendation for a legal duty on individuals and Jeremy Hunt’s exhortation for the health professional regulators to ‘up their game’ as an alternative. This provides a timely opportunity to reflect on where things stand and the prospects that the Duty of Candour (both the statutory duty applying to health and social care organisations, and the professional duty on individual health professionals) will deliver the desired culture change. Action against Medical Accidents (AvMA) has described the Duty of Candour developments as potentially the biggest breakthrough in patients’ rights and patient safety in history.
The word potentially is significant. The degree to which the Duty of Candour succeeds in changing culture and making cover-ups a thing of the past depends on how it is implemented. There is unprecedented progress, but still some uncertainty about how vigorously the duties applying both to organisations and to individuals will be promoted and regulated. The fact that the GMC and NMC are consulting on guidance is a step in the right direction, but the draft guidance itself needs to be improved. It does not make clear that the duty applies to where there is potential for harm to result from an incident – not just when it is established that harm has been caused. This is vital, as is making it clear that the duty applies where there has been a ‘system failure’ just as much as when an error or omission is clearly identified on the part of individuals. Moreover, the guidance only seeks to clarify what has already, in theory at least, been a professional duty on doctors and nurses for years. The problem is it has not been robustly and consistently enforced or promoted. What is most needed is an unequivocal commitment from the regulators themselves to change the way they approach this. The duty must be promoted and awareness spread that this is as essential as any other duty in their professional codes. There needs to be training both pre-qualification and ongoing training and support on how to comply and develop good practice. Serious sanctions need to be seen to be applied when a professional fails to comply with the Duty of Candour. Similarly, with the organisational duty regulated by the CQC, the CQC need to be proactive in seeking out evidence that the organisations they register and inspect provide adequate training and support to their employees on how to comply; that they audit complaints, incidents and claims, to check that there has been full openness and honesty and take action where there has not. Individuals who are complicit in any form of cover-up (who may not be health professionals and therefore not covered by any professional duty) need to be held to account, and the CQC must be seen to take action over organisations who are not doing enough to promote and comply with the Duty of Candour. The full implications of this new duty need to be widely promoted and as yet no-one is taking responsibility for this. Awareness in primary care and the private and social care sectors (where the duty will apply from April 2015) is particularly low. Even in the acute sector of the NHS, there continues to be confusion and failure to appreciate how much needs to change. For example, incidents of harm that are discovered as part of a retrospective case note review are required to be reported to the patient. Some will be under the misapprehension that this ‘research’ is exempt.
For AvMA’s part, we have not fought so long and hard for the Duty of Candour to let it fail. We will be doing all we can to make England a world exemplar of how to develop an open and fair culture in healthcare and make cover-ups a thing of the past. We will also be working in Scotland, Wales and Northern Ireland to do the same. We are already getting encouraging signs from ministers in those countries that they are ready to break with the past and be part of what would genuinely be an historic advance in patients’ rights and patient safety.