The duty of candour is a giant leap in patients' rights

Potentially the biggest thing for patients to come from the Mid Staffordshire public inquiry is the government’s plan to introduce a statutory duty of candour (also known as “Robbie’s law”) − a legal duty on healthcare organisations to be open and honest with patients or their families when mistakes have been made which cause harm.

‘Hunt will consider making it a legal requirement to tell patients about any significant harm that they are caused’

This has not come about easily. It has taken years of campaigning by the patient safety charities such as Action Against Medical Accidents. The recommendation by Robert Francis QC for a statutory duty of candour gave irresistible force to the campaign.

Since the government’s response to the inquiry, we have been inundated with congratulations on achieving the agreement, finally, to introduce such a duty.

However, the champagne has been left on ice until the vital question of how and when this duty will apply is resolved. Jeremy Hunt had originally intended that the duty be limited to when a patient has been killed or left permanently and seriously disabled by failures in healthcare. This would not be recognisable as the duty of candour most people had in mind.

Stronger accountability

Following interventions by Action Against Medical Accidents, he agreed to delay his decision on whether to go ahead on this restricted basis and consider making it a legal requirement to tell patients about any significant harm that they are caused. It is now in the balance as to whether the long awaited duty will realise its potential of being the biggest breakthrough in patient’s rights and patient safety in memory, or actually make things worse.

‘The vast majority of organisations already tell patients about any significant harm that they may have been caused’

The idea behind the duty of candour was to set in statute, as part of the fundamental standards regulated by the Care Quality Commission, the requirement to be open with patients about incidents that cause any significant harm. The new duty would provide a line of accountability for organisations that do not consistently practice this, and send a strong message that such behaviour will not be tolerated.

Mr Hunt told us that the reason he is considering restricting the duty to just fatal and severe cases is that he is worried that telling patients about all incidents which cause significant harm would overburden organisations with bureaucracy.

In fact, this would not involve any significant extra work. The vast majority of organisations already tell patients about any significant harm that they may have been caused. This has been the subject of national guidance called Being Open for years.

Threshold for openness

In April, Mr Hunt brought in a “contractual” duty of candour − a standard clause in the NHS contract requiring disclosure of all incidents of significant harm. There is no evidence of widespread departures from this requirement or complaints about bureaucracy. It is only the small number of organisations that are bad at this which would be affected by the new duty.

However, if the threshold for being open is restricted to fatal and severe cases it would tie up doctors, managers and no doubt lawyers in trying to assess whether serious enough harm has been caused to require telling the patient, rather than getting on with explaining “something has gone wrong”.

‘It is important to understand that the kind of incidents that could be excluded from the duty of candour can be devastating’

Lawyers would be obliged to point out that the organisation would be free not to disclose incidents deemed not to be serious enough, therefore having the opposite of the desired effect.

Doctors and nurses would be put in an impossible position of having to choose between complying with their organisation’s desire to keep things under wraps or with their professional duty to be honest, which would involve becoming a whistleblower.

Legitimising cover-ups

Most worryingly, patients would be deprived of information about harm they have been caused and it would not be possible to hold organisations to account about it. In effect, the state would have legitimised the cover-up of the vast majority of incidents that cause avoidable harm.

It is important to understand that the kind of incidents that could be excluded from the duty of candour (those defined as “moderate harm” by the NHS) can be devastating and life changing. For example, a mistake could be made in surgery, which leads to you being off work for years; losing your career, and being unable to care for dependents, but if it was believed you would eventually recover, this would be defined as “moderate harm” and would not have to be disclosed to you.

Mr Hunt intends to make his decision by the end of the year. He has been good enough to listen so far. We can only hope that he makes the right decision and is remembered as the health secretary who oversaw the biggest advance in patients’ rights and patient safety in memory rather than making things worse.

Peter Walsh is chief executive at Action Against Medical Accidents