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.
© HEMADRI
The department of health has launched a consultation on duty of candour: http://www.dh.gov.uk/health/2011/10/candour-consultation/ Please respond to it.
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.
© HEMADRI
Follow me on twitter @HemadriTweets
The department of health has launched a consultation on duty of candour: http://www.dh.gov.uk/health/2011/10/candour-consultation/ Please respond to it.
[1]
Cambridge Advanced Learner’s Dictionary
[2]
The Coalition: Our programme for government: http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_187876.pdf
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