Thursday, 3 November 2011

Duty of candour: Voluntary or statutory?

Duty of candour: Voluntary or statutory?

Candour is the quality of being honest and telling the truth, especially about a difficult or embarrassing subject[1]. When things go wrong and especially when patients are harmed whether it is due to natural circumstances or due to error by individuals or systems candour becomes very important. One of the components of such candour is to offer an apology to the patients and their families. It is important to understand that as clinicians we may not be apologise for in a ‘conventional’ sense when there is no individual error is involved; what we would be apologising for in all cases is for the fact that the patients’ expectations were unable to be fulfilled on that occasion.

Compensation Act 2006 states: ‘An apology, offer of treatment or other redress shall not of itself amount to an omission of negligence or breach of statutory duty. The medical indemnity providers have always held a similar view that apologising does not put a clinician at risk of being accused of anything in the future – it is not an admission of liability.

In the document ‘The Coalition: our programme for government’[2] it says "We will enable patients to rate hospitals and doctors according to the quality of care they received, and we will require hospitals to be open about mistakes and always tell patients if something has gone wrong".  The words ‘will’, ‘require’ and ‘always’ seems to indicate that the government is inclined towards introducing  statutory candour or some version of it.

The CMO has been recommending a statutory duty of candour for a good few years and there are currently deliberations including the GMC on this subject. There has been parliamentary health select committee recommendation to consider this subject.

Understandably patient groups especially the AvMA are in full support of a legal duty of candour; understandable because of the powerful case studies[3] they use where a statutory duty could have either avoided prolonged and vexatious interactions with authorities involved in those case studies or would have helped to bring events to a closure quickly. 

The MDU does not support the consideration of a statutory duty of candour based on the argument that there is already an ethical duty backed up by adequate GMC sanctions.[4] The MPS also seems to take a similar view. The NPSA’s new ‘being open’ policy (as opposed to its ‘open disclosure’ policy) is based on the premise that doctors apologising would prevent many unnecessary complaints and possibly some of the litigation that follows. There is international evidence that litigation occurs less often when an apology is offered and accepted upfront.

The GMC guidance on good medical practice[5] states ‘‘if a patient under your care has suffered harm or distress, you must act immediately to put matters right, if that is possible. You should offer an apology and explain fully and promptly to the patient what has happened and the likely short-term and long-term effects’’. However, a 2008 survey by the MPS[6] showed that while more than 90% of professionals believed that patients are less likely to litigate after errors if they received an explanation and an apology but only 68% were willing to be open when something went wrong. Clearly the issue of liability and blame still plays in the minds of doctors.

This raises the question whether the duty of candour should be statutory or mandatory.

Clinicians especially doctors really would not want statutory duty of candour as they would like to think that they are doing the right thing because it is the right thing and not because it is simply required by law. The GMC and other bodies, regulatory or not, take a very poor view of lack of transparency. Actioning after an event of low transparency is like many other triggers may turn out to be subjective, discretionary and inconsistent. However, in practice once the issue reaches the 'authorities' there are significant consequences which inevitably follow. Therefore a culture change route is preferable for clinicians.

The next issue to consider is how we design a response to the call of ‘duty of candour’. What the profession needs to understand is whether there was a rising trend that doctors and other clinicians are getting less transparent, if there is no such trend whether there are frequent examples of lack of candour. There seems to be no general trend that doctors are getting less transparent. Hence, a culture change approach using the voluntary duty supported by a strong view from the GMC and other bodies would certainly make a difference from the perspective of clinical professionals; with aberrant doctors dealt with strongly by using the full force of current systems. 

There are however, very frequent examples of outliers. This is when we have to recognise that institutional candour is a different situation. While individuals are all for openness, the current system of risk, clinical governance, complaints and legal actions inevitably raises doubts on the relevance of the extent of candour and its impact on future action against organisations. Further, often in inefficient and overspent circumstances or in situations of poor organisational vision, what is not required by the force of law or the force of higher authority is actively prevented from happening. This is understandable from an organisation's perspective but would be unacceptable to patients. There are examples of individual clinical candour followed by organisational resistance that happen in sequence. This is obviously unsatisfactory.

On balance, it seems that under current moral mores of our society a statutory duty of candour is probably going to be inevitable.  The question is of course is whether individual clinicians or the organisation would be legally responsible for the statutory duty of candour. It would make sense for the organisation to be responsible for such a statutory duty. The issue of candour after serious untoward incidents has extremely personal and wide ramifications at the same time, that it becomes clearly outside the remit of individual personal clinical responsibility. Further, organisations and organisational responsibility is likely to cover everyone in the organisation which would include doctors - any aberrations on the grounds of candour by doctors would therefore be dealt with by their organisation and by the GMC.

There might be a case for parallel dual responsibility (which has the risk of diluting responsibility) or for purely individual responsibility (where it could become 'fault', 'witch-hunt'  and 'scape goating' usual suspects). In a broad sense since the responsibility for quality moved from consultants to chief executives in the mid 80s, candour as such should therefore be an organisational responsibility delivered by individuals rather than individual responsibility enforced by personally applicable law.

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The department of health has launched a consultation on duty of candour: Please respond to it.

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