John Tingle
Birmingham Law School
How we talk to patients is crucial. There is a clear power in-balance in the health carer, patient relationship. The doctor, nurse is always going to be the most powerful person in the health care equation. They have the specialised knowledge that the patient so urgently needs. Patients also often think the worst about their condition and are placed in an environment with which they are unfamiliar. They are vulnerable and this is recognised in health carer codes of professional conduct, ethics which require the exercise of professional duties of candour towards patients.
There is also health governance, statutory, regulatory provisions. The Care Quality Commission (CQC) have Regulation 20, Duty of Candour. Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.This is termed the Statutory Duty of Candour and operates with the health carers Professional Duty of Candour. Regulation 20:
“The duty of candour is a general duty to be open and transparent with people receiving care from you. It applies to every health and social care provider that CQC regulates.” (p.2)
The need for good patient communication strategies
Good patient communication strategies are an essential prerequisite for developing an effective NHS patient safety culture and the NHS needs to improve on its efforts. Unfortunately, it has considerable form when it comes to failing duty of candour practices.
We have seen this repeatedly in reports of investigations into NHS patient safety crises such as Mid Staffordshire, Morecambe Bay, Shrewsbury and Telford, East Kent.
In East Kent:
“1.26 Staff were disrespectful to women and disparaging about the capabilities of colleagues in front of women and families. A family member heard a consultant describe the unit they were in as “unsafe” to a colleague in the corridor, which was hardly the way to raise any legitimate concerns they may have had. (p4).
We can see similar statements in other reports of investigations. In the Shropshire and Telford report it was stated that there was evidence that complaint responses lacked transparency and honesty.
Collectively these reports show that the concept of candour was poorly understood by a considerable number of staff in parts of the NHS.
AvMA (Action against Medical Accidents),
AvMA (Action against Medical Accidents), the charity for patient safety and justice, have recently highlighted this recurring duty of candour problem. They report that a lack of an explanation about a medical accident, and attendant lack of an apology, made up 45% of inquiries to them in 2022. In 2022 they received 419 written requests for advice and assistance from UK patients. Nearly half can be seen to be duty of candour related. Paul Whiteing, Chief Executive of AvMA is quoted in the report as saying that these failures constitute what could be regarded as an own goal. This omission will drive the patients to take court action to find out what happened and to secure an apology.
The need to do more
The AvMA report and the others quoted above, show that the NHS has still some way to go in properly dealing with duty of candour issues
PSA
The PSA (Professional Standards Authority) have discussed the professional duty of candour in an excellent and thought-provoking report. They discuss factors that can encourage and discourage candour. Factors discussed include the workplace where a predominantly blame orientated, defensive working environment can be seen to be not conducive for being open and honest. The inhibiting fear of litigation and being called before a regulator on a disciplinary charge is also discussed. The PSA make some well-reasoned points which deserve further discussion and debate.
The conventional wisdom
The conventional wisdom held by many patient safety and health care litigation stakeholders is that patients want, more often than not, just an explanation of what happened to them, an apology and an assurance that lessons have been learnt. That what happened to them will not happen to anybody else. That litigation is not at the forefront of their minds. They often resort to litigation as a last resort, as a cry for help.
Considering the volume of enquiries that AvMA’s receive in relation to failings in candour,the NHS needs to step up to the plate and deal more positively with duty of candour issues.