Duty of Candour: decision time looms for Swann

19 Aug 2021 Nick Garbutt    Last updated: 19 Aug 2021

Pic Credit: Unsplash
Pic Credit: Unsplash

When medical staff make mistakes in treatment it is imperative that they are faced up to and that the families of those affected are told.

This principle is so fundamental to the proper working of our health service that it seems remarkable that it is even a matter for debate.

Yet it underpins one of the most difficult decisions Health Minister Robin Swann will face over the next few weeks.

He has recently extended the public consultation on the introduction of a statutory Duty of Candour for health and social care organisations and the individuals who work for them until the end of this month.

The need for legislation was the key recommendation of the Hyponatraemia Inquiry led by Mr Justice O’Hara which was published in January 2018. He said at the time that bringing one in was “a matter of urgency.”

The inquiry was set up back in 2004 to examine the deaths of five children in Northern Ireland hospitals as a result of low sodium levels in their blood. It found significant failings and ruled that three of the deaths were avoidable.  

When Mr Justice O’Hara published the report he came to a devastating conclusion, saying: “The unfortunate truth to be drawn from this Inquiry is that there are too many people in the Health Service who place reputation before honesty and avoidance of blame before duty. All that is required is that people be told honestly what has happened and a legally enforceable duty of candour for individuals will not threaten those whose conduct is appropriate.”

He added: “I recommend that a duty of candour attach to individuals as well as organisations in the event of death or serious harm and that criminal sanctions should apply.”

You cannot get clearer than that.

In saying this he was echoing the words of the former Master of the Rolls Lord Donaldson who stated in 1987: “I personally think that in professional negligence cases, and in particular in medical negligence cases, there is a duty of candour resting on the professional man.”

Yet the consultation postulates three alternatives for the new legislation as it would apply to individuals:

  • Duty of Candour for individuals with criminal sanctions for breach as per Mr Justice O’Hara’s recommendation
  • Duty of Candour for individuals with no criminal sanctions
  • Duty of Candour for individuals with no criminal sanctions but a separate criminal offence for withholding information, destroying or tampering with information, or providing false or misleading information.

Many will be baffled as to why alternatives are being considered.

But you don’t have to look far to understand. Between 2005 and 2009 the NHS in England was plunged into crisis as a result of the Mid Staffordshire Scandal – whereby between 400 and 1,200 patients died as a result of poor care at Stafford Hospital.

This prompted the Francis report which contained 240 recommendations, one of which was for a Duty of Candour for both organisations and individuals.

However when England introduced its Duty of Candour legislation it only applied to organisations. Individuals were excluded on the grounds that they are already placed under an “ethical duty” of honesty by their professional bodies.

Mr Justice O’Hara was scathing about this. “I consider that such an argument would be stronger, had the evidence to this Inquiry not revealed obvious weakness in the call of ‘ethical duty’.”

Yet the situation in Scotland is similar to that in England with the statutory duty applying to organisations and not individuals. Indeed a statutory Duty of Candour combined with criminal sanctions for individuals would make Northern Ireland’s legislation the most rigorous in the world.

Opponents of individual criminal sanctions argue in the words of Sir Liam Donaldson (no relation to the judge) that such legislation would have a “chilling effect” on the reporting of adverse incidents. 

So there is the practical issue to consider about how to enact such rules without having the unintended consequence of undermining the culture of openness that the Department is trying to entrench.

The main opposition to full implementation comes, unsurprisingly, from representative groups within health and social care.

The consultation document states: “Feedback has also suggested that this approach could have a negative impact both on the morale of existing staff and the recruitment and retention of staff, if this jurisdiction were perceived to be a less attractive location to work as a consequence.”

But it also reveals the results of an opinion poll on the matter: “the public survey commissioned by the Workstream has demonstrated that many patients and service users do not routinely experience openness and honesty whenever something has gone wrong with their care and treatment. Respondents to the survey also strongly favoured the criminalisation of deliberate actions which prevent candour and honesty in these circumstances.”

The consultation therefore provides us with the three options. All include an individual duty of candour. The first involves full enactment of Mr Justice O’Hara’s recommendations. The second strips out criminal sanctions altogether, which is clearly not what he wanted and whose value would essentially be symbolic. The third is also not what was recommended but does provide sanctions for behaviour that undermine candour when things go wrong: suppressing or destroying information for example.

This leaves a difficult decision for Minister Swann. Mr Justice O’Hara could not have been clearer in setting out what he regarded as the key recommendation arising from the scandal. Public opinion appears to be firmly on his side. The whole process has dragged on for an incredibly long period: the deaths of the five young children occurred between 1995 and 2003, with the inquiry being set up in 2004. The grief and stress suffered by their families in the interim is unimaginable. If the recommendation is not fully implemented the public -and media -reaction is not hard to predict.

Yet he will also have to consider how representative bodies and staff will react if criminal sanctions are attached to a duty of candour, and what impact, if any, there may be on recruitment and retention for a health service with the most stringent regime in the world.

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