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Blog: The new duty of candour in the NHS - we have to start somewhere

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The new duty of candour in the NHS - we have to start somewhere
Terrence Donovan | 18 Nov 2014

The Government will soon introduce regulations that require all NHS providers to comply with a statutory duty of candour.  The General Medical Council and Nursing and Midwifery Council have welcomed this, and have introduced their combined draft guidance in a document headed “Openness and honesty when things go wrong: the professional duty of candour”. 

This was launched on 3 November, in the Governor’s Hall of St Thomas’ Hospital in London, and the Rt Hon. Jeremy Hunt MP, Secretary of State for Health, gave the opening speech. 

The event was attended by 120 guests who comprised mainly senior figures in the NHS and associated organisations involved in clinical governance.  On the panel, amongst others, were Sir Robert Francis QC, who chaired the Mid Staffs Inquiry, and Peter Walsh of AVMA.  I attended on behalf of the Association of Personal Injury Lawyers, as a claimant clinical negligence solicitor, and the co-ordinator of the APIL clinical negligence special interest group.

St Thomas’s is a very big hospital, situated directly opposite the Houses of Parliament, and the impact of the evening began as I walked through its corridors on my way to the beautiful old Governor’s Hall.  I realised that whilst my colleagues and I spend our days bringing claims arising from medical errors, our clients form only a very small percentage of the patients who mostly receive excellent care from the NHS.  Walking down those corridors also reminded me of the logistical challenges involved in delivering modern healthcare.

There is so much to respect, and so much to be proud of in the NHS, but in some respects it has lost its way, as shown by the Mid Staffs Inquiry.

Jeremy Hunt picked up this theme in his opening comment – that within the NHS there are 1,000 avoidable deaths every month.  Apparently this compares reasonably favourably with other countries, but he rightly said that we should not be prepared to accept it in ours.  The first step has to be to acknowledge when things go wrong – “until you call it a mistake, you don’t learn”.  Changing the rules will not be enough, we have to bring about a cultural change from within, and clinicians need to know they will not get into trouble for speaking up when things go wrong.  On the contrary, concealing errors should be more frowned upon than acknowledging them. 

The Francis inquiry found that there was no legal duty for clinicians to speak up about failings or mistakes.  This was undoubtedly one of the reasons why things became so bad at the Mid Staffs, where staff where evidently afraid or unwilling to speak up.  Thus, the duty of candour has to work both at an institutional and a personal level.  Clinicians, and the organisations that employ them, have to be open and honest if failings are to be understood and learned from.

Jackie Smith, chief executive of the Nursing and Midwifery Council, introduced the draft guidelines with the observation that it is the first time in the combined histories of the NMC and GMC that the two organisations have worked together to improve patient care.  The outcome is a very impressive and forward looking document.  I have no doubt that if the guidelines are followed, it will reduce the incidence of clinical negligence claims, and, where there are claims, it will make the process less confrontational, expensive and damaging for both patients and clinicians.

I am particularly impressed by the way in which the guidelines do not just focus on a duty of candour when something goes wrong.  They go back to the outset of the clinical relationship, and talk of clear communication before treatment even begins.  This is a healthy thing in any relationship, and will encourage a sense of shared responsibility for decisions and outcomes.

Of course fine speeches are easier to deliver than cultural change in huge organisations.  Contributions from around the room reflected this, particularly from those concerned with the “frontline troops” – the junior doctors and nurses. 

Their broad theme was that clinicians are by and large honest and decent people doing their best in circumstances where the key to improvement is often beyond their control.  How, for example, is an overworked junior doctor supposed to find time to adjudicate on whether care really is unacceptable, or just the best that can be delivered within the financial and logistical constraints of the NHS?  And what if his or her superiors or colleagues in the department disagree?  Will that person be seen as letting the side down, and will that damage the team spirit which is so important in any walk of life?

Therefore, whilst I think that there is broad acceptance of the need for a duty of candour, those who are charged with introducing it must do all that they can to ensure that healthcare becomes a field in which such misgivings do not even occur to people.

Paradoxically, this means that it must start at both the top and the bottom.  Senior people must be open about mistakes, and junior people coming in to healthcare must be introduced to a culture in which phrases like “concealment”, “swept under the carpet”, and “closing of ranks” become as antiquated in healthcare as the use of leeches and bloodletting.

After the meeting, I took a taxi to the station.  The driver was listening to a Radio 4 debate in which a very animated speaker was describing how, in the 1970s, a senior executive at an American car company was put on long-term leave when he raised a concern about defective components within the cars, meaning that safety never improved.  She said that in any organisation the best early warning system is the staff.  I wondered if it was live commentary from the meeting I had just left, but it transpired that they were talking about the child abuse scandal in Rotherham.

It just goes to show that whatever the environment - industry, social services, the NHS, the first step towards overcoming mistakes is to acknowledge them.  Both the NMC and GMC are to be commended for trying to create an environment in which this can happen without fear of blame, and I hope that the regulations, and their guidelines, will be thoroughly taken up.

Past blog entries

The tide of public opinion is turning against insurers, 15 Oct 2019
Time for a joined-up strategy to prevent medical negligence, 23 Sep 2019
APIL's new CEO: reflections and looking ahead, 05 Aug 2019
The insurance industry’s response to the discount rate change is shameless, 23 Jul 2019
On Workers' Memorial Day, remember those who are left behind, 26 Apr 2019
Discount rate: a view from Holyrood, 26 Mar 2019
A lawyer can run an injury claim, but how do you know he or she is any good?, 04 Mar 2019
NHS Resolution’s Annual Report – Progress?, 13 Jul 2018

About this blog

Terrence Donovan

Terrence Donovan is a head of the clinical negligence and personal injury department at Kingsley Napley Solicitors in Central London.

He was admitted as a solicitor in 1988 and for most of his career has specialised in clinical negligence claims and complex personal injury cases.

He also specialises in Court of Protection work, and is a Court appointed Professional Deputy. He is a member of the AvMA and Law Society Clinical Negligence Accreditation Scheme.