A “duty of candour” in the NHS?

Earlier this evening I seconded an amendment to the Health and Social Care Bill which would have placed “a duty of candour” on those providing health services requiring them to disclose “full information to patients, their carers or representative about any incident or omission in or affecting their care which may have caused harm, or may in the future cause harm.”

My speech was as follows:

Lord Harris of Haringey: My Lords, when I was director of the Association of Community Health Councils, the message from community health councils around the country was that people who complained were seeking not compensation from, or retribution against, those who had perhaps caused the reason for their complaint—for example, the death of a loved one—but information. They wanted to know what had happened, and they wanted some reassurance that what happened to them or their relatives would not happen again.

Always, the most tragic cases were those in which people had not known what had happened and discovered the actual circumstances only much later, perhaps when their relative’s case came to an inquest or, in some cases, even long after that. I would like to hope that, in the 10 years or so since I was director of the Association of Community Health Councils, this problem would have become less, but it remains a serious blemish on the health service that, too often, such mishaps are covered up.

In a case reported only three weeks ago—the most recent case that I have come across, but I am sure there are many others—a mother discovered long afterwards that the death of her seven year-old daughter, which she had blamed on herself for not being able to perform the necessary first aid, was actually the consequence of a failure by a paramedic called to the scene. She discovered that only ages afterwards when she became aware of the transcript of the inquiry which led to the paramedic being dismissed. That case, reported in the Doncaster Free Press only three weeks ago, is an indication of the sorts of incidents that one is talking about.

I met the family of someone who had died while detained in a secure mental health facility. They discovered the circumstances in which their loved one had died only when the matter was reported at an inquest. In such incidents, the health service officials knew what had happened and had conducted their own inquiries but did not think it necessary or appropriate to tell the families concerned. That is why it is so important to have this amendment, which would place a statutory duty of candour on the health service, to make it something that runs right the way through the system.

Of course, accidents can never be eradicated. Healthcare is of its very nature a risky business and health professionals are only human, so these things will happen. However, what is unforgiveable is that the fact that something has gone wrong is not told to those concerned. The noble Baroness, Lady Masham, quoted Sir Liam Donaldson, but I thought that she was also going to quote the maxim that he gave:

“To err is human, to cover up is unforgiveable”.

That is precisely the concern that motivates this amendment.

In the White Paper Equity and excellence: Liberating the NHS, the Government said that they will require hospitals to be “open and honest” when things go wrong. That stems directly, I think, from the Liberal Democrats’ manifesto commitment, but, unfortunately, their manifesto referred only to hospitals rather than to the wider health service. I think that the Liberal Democrats intended that such a duty should be statutory, but my understanding is that the Department of Health is looking at this as something that could be written into contracts. As the noble Baroness, Lady Masham, has pointed out, having a lesser status than a requirement to inform a central agency that something has gone wrong would mean a lesser status in terms of informing the family. It is really important that we look at this issue and take it seriously, so I hope that the noble Earl will accept the amendment.

In 2005, a National Audit Office report revealed that only 24 per cent of NHS trusts routinely informed patients of a patient safety incident—that implies that more than three-quarters of NHS trusts do not do so routinely—and 6 per cent admitted that they never informed patients of a patient safety incident. Quite clearly, there is a “culture of denial”. Noble Lords may think that that is rather an alarmist statement, but I am simply quoting from a Department of Health document from 2006.

Lord Mawhinney: My Lords, I am extremely grateful to the noble Lord for giving way. I do not want him to interpret my question as opposition to the general point that he is making, but before he finishes will he say a word about the role of lawyers of health service bodies in these circumstances? I am not a lawyer, as I have told the House before, but in both cases that he has cited I could see legal advisers saying, “Say nothing”. If we are to take this amendment seriously, we need to have some idea of what part the law might play if the Bill were to be so amended. As the noble Lord has experience, I would be grateful if he would reflect on that.

Lord Harris of Haringey: My Lords, the noble Lord, with all his experience—albeit, like me, as a non-lawyer—is speaking exactly the truth. In many of those cases, the legal advice would be, “Say nothing”. There therefore needs to be a statutory duty, because then the responsibility of the lawyers concerned would be to advise, “There is no option but to tell the patients or their families”.

An interesting point is that insurers in the United States often require open disclosure policies and practice by health providers to qualify for insurance. The international evidence is that, as well as being the right thing to do morally and ethically, being open and honest when things go wrong can actually reduce litigation and complaints.

My concern is that the Government will say that they are doing enough by saying that the duty of candour can be achieved through a contractual process. However, as the noble Baroness, Lady Masham, has pointed out, this would apply only to hospitals with an NHS contract; it would not apply to GPs, dentists, pharmacists or private healthcare providers. I do not see why the duty of candour to patients and their families should be regarded as of lesser importance and impact than those things where there is direct regulation. I hope that the Minister will say that the Department of Health will take this away and that he will come back to the House with proposals to give a statutory duty of candour to protect the interests of patients.”

After a debate of over 90 minutes, the Minister was not prepared to concede a statutory duty of candour although the Government is consulting on how they might make a “contractual” duty of candour work.

I am sure there will be more debate on this at the Report Stage of the Bill.

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