The duty of candour permeates throughout the 290 recommendations of the Francis report, but there are still questions about what it means in practice, says Lawford Martin
Candour is defined in Robert Francis’ report as: “The volunteering of all relevant information to persons who have or may have been harmed by the provision of services, whether or not the information has been requested and whether or not a complaint or a report about that provision has been made.”
‘Prompt apologies and explanations, with a reassurance they will not reoccur, may prevent a claim being brought at all’
Mr Francis’ recommendation 181 provides that there should be a statutory obligation of candour on healthcare providers, registered medical practitioners, nurses and other registered health professionals where there is a belief or suspicion that any treatment or care provided to a patient by or on behalf of their employing healthcare provider has caused death or serious injury.
Provision of information should not of itself be evidence or an admission of civil or criminal liability, but not disclosing the information should entitle the patient to a remedy.
Candour (and its close allies openness and transparency) permeates throughout Mr Francis’ report. Out of his 290 recommendations, several are drafted with those themes in mind. It is difficult to dispute that these are laudable recommendations.
At first glance, many working in the NHS will find it disconcerting that such responsibilities require any legal footing at all. However, as one probes deeper into the proposed duty of candour, questions arise as to how it would work in practice.
It is difficult not to be disturbed by the findings of deliberate concealment or, at best, recklessness towards patients and the public as outlined in both Mr Francis’ reports. While pointing out mistakes to patients may lead to an increase in the number of claims made, prompt apologies and explanations, with a reassurance that they will not reoccur, may prevent a claim being brought at all.
Surveys have shown the decision to take legal action may be determined not only by the original injury, but also by insensitive handling and poor communication after the event.
‘While criminal sanctions may arise for senior individuals, trusts may also be held vicariously liable for the actions of their employees’
Promptly identifying negligence and providing redress for the patient and their family should be encouraged. Doing so quickly and efficiently will reduce expenditure on legal costs and should provide a better experience for the patient and their family. This has been borne out by studies which show that while (in the short term at least) a duty of candour may increase the number of claims brought the number will settle down and reduce in the longer term.
One study at the University of Michigan Health System showed that their damages payments per case reduced by 47 per cent and the average settlement time for claims reduced from 20 months to six months following the introduction of an apology and disclosure programme in 2001.
Defining serious harm
It remains to be seen how a seemingly straightforward duty may be translated through the statute books and into everyday NHS practice. However, it is likely trusts will have to draft (or expand upon) their candour and disclosure policies to ensure all staff are clear about what their obligations should be in order for them to avoid liabilities arising.
While criminal sanctions may arise for senior individuals, trusts may also be held vicariously liable for the actions of their employees. However, there are other forms of redress and remedies that already exist for potential claimants and which may be more easily proved in a civil claim. Training on such policies may also be required. In this respect, central Department of Health guidance may be required.
Furthermore, how will “serious harm” be defined? Consider the case of a patient undergoing surgery. The surgery is relatively straightforward, there are no obvious complications and the post-operative recovery is uneventful. The patient subsequently becomes unwell, dies and the cause of death is only identified on post mortem.
‘This issue will be at the forefront of every healthcare professional’s mind upon any patient contact’
Assuming the cause of death was a known possibility that could have been caused by the surgery, should the surgeon disclose the harm when he knew or had a suspicion that it might have been the cause of the patient becoming unwell, even if he was unsure it was? It is suggested in the Francis report that in this situation an independent second opinion should be sought. Clinical judgment will be key.
Healthcare professionals may need to be able to justify their decisions as to why they did not reasonably suspect a particular patient had been caused any serious harm. Given that the duty is recommended to apply even if the patient has not requested the information, this issue will be at the forefront of every healthcare professional’s mind upon any patient contact.
The report recommends that failure to comply with the new proposed statutory duty should entitle the patient to a remedy. It is not clear what such a remedy should be and how it will inter-relate with the new criminal offences that are also recommended by Mr Francis, where there has been deliberate obstruction of the duty of candour or the provision of intentionally misleading/untruthful information.
Mr Francis says “it should be a criminal offence for any registered doctor or nurse or allied health professional or director of a registered or authorised organisation to obstruct the performance of these duties [to be truthful in any information given to a regulator or commissioner] or dishonestly or recklessly to make an untruthful statement to a regulator. Enforcement of these duties should rest with the Care Quality Commission.”
This would enable the CQC to impose criminal penalties on anyone found guilty of any criminal offence if it is drafted into statute along the lines of Mr Francis’ recommendation. While it is too early to say what these penalties may be, possible criminal sentences could include fines, community orders or even imprisonment.
By way of guidance, there are already provisions in the Health and Social Care Act 2008 that give the CQC the power to require documents and information from trusts. While the act doesn’t set out sanctions so as to prevent the provision of false information, a person who does not comply with the provision of information required (without reasonable excuse) is liable on summary conviction (ie: conviction before a magistrate) for a fine not exceeding the current mainstream of £2,500.
‘The new duty will undoubtedly cause anxiety to those on the front line’
In addition, “recklessness” in this (criminal) context has been defined as involving “an indifference to, or disregard of, the feature of whether a statement is true or false” . Therefore any such statutory obligation is likely to impose a duty on the parties making such a statement to have some regard to the accuracy of any statement being made.
Awaiting a response
The new duty will undoubtedly cause anxiety to those on the front line. How will providers ensure their staff receive the support they need to identify when the duty arises and then to discharge it?
The duty of candour is not a new concept. It was most recently the subject of a consultation by the Department of Health. The analysis of the responses to the consultation was published in November 2012. Despite only 50 per cent of responses agreeing that incorporating the duty of candour as a contractual term in the NHS standard contract would be an effective mechanism to require openness, the consultation concluded that it has “the greatest chance of being enforceable and therefore effective… none of the evidence presented provides a strong enough case for an alternative approach… we therefore plan to push ahead with implementation of a contractual duty of candour in the NHS standard contract in 2013/14”.
The DH did, however, also say: “We are also committed to giving full consideration to the findings of the Mid Staffordshire inquiry. If the inquiry finds that a statutory duty is preferable to a contractual one and we are convinced by the arguments made, we will respond accordingly.”
The response of the department to Robert Francis’ report is eagerly awaited.
Lawford Martin is head of healthcare at Hill Dickinson
R v Staines  Crim. L.R. 651