Have your say on making the health service more open

It has recently published a series of research papers to help determine the best way to implement a Duty of Candour and has asked for feedback from the public and any organisation with an interest.  

The inquiry was established 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 launched his report he made 96 recommendations on how the system needed to change to help avoidable deaths in the future. He said the key one was a statutory Duty of Candour and said bringing one in was a “matter of urgency.”

He said it was imperative that when mistakes are made in treatment that they are faced up to and the families told. He went on to give a devastating critique of the system.

“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 went on: “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.”

The Department is extending the remit to cover social care as well, so all those Third Sector bodies involved in this area will also be affected by change.

It has gone about preparing its response in the spirit of openness that the report calls for. The workstream looking at Duty of Candour is chaired by policy expert Quintin Oliver, the sub group looking at the broader cultural issue of Being Open is led by Peter McBride chief executive of Inspire. They are joined by service users and carers and a wide range of experts, not just departmental civil servants.

Scope has previously discussed this co-production approach to policy-making. What is also really important about it is that the rest of us get an precedented insight into how policy is shaped – and how implementing what appears to be a straightforward proposition can be much more complex than it first appears. The research papers shed light on this.

Few would disagree with Mr Justice O’Hara’s recommendation. Back in 1987 one of Britain’s most distinguished judges Lord Donaldson stated: “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 it has not worked out like that in England.

Between 2005 and 2009 between 400 and 1,200 patients died as a result of poor care at Stafford Hospital. What became known as the Mid Staffordshire Scandal prompted the Francis report which contained 240 recommendations, including one which called for a Duty of Candour for organisations and individuals.

However when a duty of candour was included in legislation it only applied to healthcare providers.   The duty was not imposed upon healthcare professionals in England on the basis that they are already placed under an “ethical duty” of honesty by their professional organisations.

Mr Justice O’Hara did not seem overly impressed by this approach, saying: “The duty was not imposed upon clinicians in England on the basis that they are already placed under an ‘ethical duty’ of honesty by their professional organisations. 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’.”

However  the research just published suggests that full implementation of Mr Justice O’Hara’s recommendations would result in Northern Ireland having the most rigorous candour legislation in the world.

This is not without risk. Sir Liam Donaldson and others have argued that the threat of litigation against individuals would have a “chilling effect” on the reporting of adverse incidents. We need to be alert to all the potential unintended consequences of new legislation. This is just one area that needs thorough debate. If we want to have a truly open and honest service we will need to support staff through that. This will involve changing behaviours, indeed the entire culture of the health service, and that cannot be achieved by sanctions alone. The end result should be a willingness to admit to mistakes and a determination to learn from them.

What they will need to avoid will be a situation where a “watch your back” culture becomes entrenched and that tighter regulation increases defensiveness rather than removing it. This will involve winning over hearts and minds within the system. The duty of candour should not be seen by health professionals as a stick to beat them with, but a shift from a blaming to a learning culture.  

There are also legal barriers to achieving candour. Another of the papers examines the legal and human rights implications of introducing the duty.

For example, criminal investigation takes precedence over public inquiries. This is because they cannot determine someone’s guilt and will often involve the same witnesses. Some may not be able to give testimony to an inquiry because they would risk incriminating themselves. This is a serious matter. Making a statement about a matter under police investigation could lead to self-incrimination and or seriously prejudice the investigation.

 It is worth pointing out that in 2005 a PSNI investigation led to the hyponatraemia inquiry having to be suspended for three years. So the inquiry itself was affected by this matter.

There are other potential barriers too, all grounded in sound legal principles. For example if a matter is before the courts contempt law bans the media from publishing or broadcasting any comments or information which might seriously prejudice active proceedings. This is especially important where jurors are involved so that they do not see or read anything that could affect their decisions.

And there is also the fundamental right for anyone charged with an offence to be presumed innocent until proved guilty according to law. 

So therefore in the most serious of cases there remains the risk that the process of sharing the facts of a case with service users or their loved ones may be delayed by other legal processes and the rights of individuals under investigation. And comments made before a trial carry the risk of being deemed to prejudice investigations or court hearings.

These sort of cases will be rare, but the research report points out that when they do occur there is a risk that it will look as if the organisations and individuals concerned are being defensive and lacking candour.

Therefore the Duty of Candour team has the formidable task of exploring how it can maximise openness whilst respecting the human rights of the individuals concerned and any other legal processes taking place.

All those wishing to give their views should send them to [email protected]

The research papers can be downloaded from the department’s website here.