Lawyers and managers concerned as Francis recommends criminalising 'duty of candour' failures

The proposal would have “wide-ranging” consequences, according to lawyers.

Recommendation 183 in Mr Francis’s report states: “It should be made a criminal offence for any director [to] provide information to a patient or nearest relative intending to mislead them about such an incident [or] dishonestly to make an untruthful statement to a commissioner or regulator knowing or believing that they are likely to rely on the statement in the performance of their duties.”

Simon Lindsay, partner at Bevan Brittan, said: “The duty of candour that Robert Francis sets out is quite wide-ranging and would have a significant impact on corporate manslaughter cases and inquests.

“Traditionally, the NHS has tried to promote a no-blame culture to encourage openness and recognition of mistakes. As I read the report, Francis wants to put an end to incomplete disclosure of relevant evidence where patients are harmed. This may encourage staff to fear that everything they say and write could be used in evidence against them, leading to preparation of evidence which is so reserved or defensive as to become worthless.”

Partner at Mills and Reeve Duncan Astill said the recommendations could be “counter-productive”.

He told HSJ: “The big question is whether we will see a duty of candour in statute. That will be a big step, one that the government have already shied away from, but one that the families are very keen to see.

“For the other criminal sanctions proposed you could say that there is already an existing criminal offence that covers each of them. For causing death by breaching the fundamental standards, there is already manslaughter or corporate manslaughter. For causing harm, you have the Health and Safety at Work Act and ill-treatment or wilful neglect under the Mental Capacity Act. Whilst not identical, they are used in the most serious of cases and could be used more. You could ask the Health and Safety Executive or police to consider using charges more often, or have the CQC explicitly refer those cases to them. The enforcement of these laws is pretty patchy at the moment, with some police forces and HSE inspectors doing more than others.

“To effectively criminalise individual conduct on the ward for not delivering basic care seems like a step too far and counter-productive.”

He added misconduct in a public office charges could be brought instead of the powers proposed by Francis in recommendations 37 and 250, where he proposes outlawing a director making a “wilfully or recklessly false statement of fact” in a  compliance statement or  declaration in a quality account.

One senior management said adoption of the recommendations would make trusts “ungovernable” and could be used to impede reform.

He told HSJ: “[If they do this] they can kiss achievement of QIPP and a lot of targets goodbye. On top of natural assertion of concerns by genuine professionals, the ‘awkward squad’ in hospitals (difficult, lazy consultants in particular) will use report to block change, go slow etcetera and managers will be treading on eggshells.”

Another senior manager welcomed the principle behind the recommendations but warned of the danger of driving poor performers further underground.

Chris Gordon, former chief executive of Winchester and Eastleigh Hospitals Trust and NHS Leadership Academy consultant, said: “Any well-run trust with integrity should be able to cope with this proposed legislation.

“But the problem is getting good people to accept that level of accountability in any of the challenged organisations and it risks worsening the divide between the good and poor trusts in the short term.

“Whilst it should definitely be an offence to knowingly deliver unacceptable care and conceal it, the question is how do we avoid driving poor performers further underground? People usually mislead from a fear of personal consequences or working out of their depth in poorly-run systems that allow it.

“Maybe we need to focus on poorly-run trusts – we know who they are – and work change on their organisational structures and leadership.

“We should be asking ‘where is your clinical strategy and how can you demonstrate your leadership is working and accountable?’”

One hospital chief executive told HSJ Mr Francis’ recommendations on criminal sanctions were unworkable.

He said: “Having worked in an organisation where there are significant clinical issues I know the main issue is people not taking responsibility at the scene of the incident.

“If there is a clinician who believes they may or may not have been responsible then they will pass it up the line, rather than take responsibility.

“It’s a real concern that they will then say ‘nothing to do with me’. And will the non-executive directors then take responsibility or will they say it sits with the directors?

“The danger is that the wrong action will be taken too quickly and without the full facts, because the director has the threat of criminal action hanging over them. In that case, of course, the clinician could then sue saying the decision was unjust.

“It will make problem-solving even harder for chief executives at trusts that might have serious problems.”

He added: “[Francis] seems to be going much more for the nurses than for the doctors, the NMC rather than the GMC.

There is already a duty of candour planned for the standard NHS contracts that will come into force in April this year.