here - United Kingdom Parliament

275WH
Candour in Health Care
1 DECEMBER 2010
Candour in Health Care
276WH
[Tom Brake]
for Poole (Mr Syms) on securing the debate and on
lucidly and concisely setting out precisely why the
Government should look carefully at a statutory duty
of candour. I have not heard any effective arguments
against it, but I will come on to some arguments from
opponents. My hon. Friend set out why the duty would
boost public confidence and he rightly pointed out that
an apology—as we have probably all experienced—often,
first, helps to secure closure for a family if a loved one
has been involved in a tragic accident, and, secondly,
can defuse a difficult situation that could end up in the
courts for years afterwards. He has rightly set out the
reasons why a duty of candour is a necessity.
My hon. Friend started by quoting from the Liberal
Democrat manifesto, and I would expect nothing less in
the coalition, so there is no need for me, as a Liberal
Democrat, to do so. He also mentioned that the proposal
has been carried through to the coalition agreement
and, subsequently, into the NHS White Paper, which—
although it perhaps does not contain a proposal as
specific as a duty of candour—certainly makes it clear
that hospitals need to be open about mistakes and
always tell patients if something has gone wrong. One
development to which he did not refer was the fact that
legal aid will no longer be available in cases of clinical
negligence, which I hope the Minister will pick up on in
her response. I wonder whether that will have an impact
and whether that strengthens the case for a duty of
candour.
As I said in my opening remarks, there are opponents
of a duty of candour. A briefing has been sent to
Members by the Medical Protection Society, which is a
“leading provider of comprehensive professional indemnity and
expert advice to…health professionals around the world.”
The briefing states that the society is committed to
promoting openness in health care and supports the
principle in the NHS White Paper that hospitals should
be open about mistakes and always tell patients if
something has gone wrong. However, it goes on to say
that the MPS strongly believes that a change in culture
would be more effective than a statutory duty. However,
I agree with Action against Medical Accidents, which
also briefed me for the debate. It said that perhaps the
MPS is missing the point: it is not a question of a duty
of candour or a change in culture, as it is perfectly
possible to have both. Indeed, the duty of candour is
one way of supporting and underpinning a change of
culture so that health care organisations are always
open and honest with patients when things go wrong.
The MPS says that it has been advocating that change
in culture, and it is true that a number of organisations
have been advocating it for the past 50 years or so, but
the desired change has not happened. I am not sure how
much longer one can wait for it.
There is an issue about guidance and about how
seriously organisations take guidance when they are
statutorily required to do other things. There is always a
risk that guidance gets left aside while organisations
focus on statutory duties. As the MPS said, it is correct
that there is a professional duty for doctors and nurses
to be open with patients in the event of a mistake, but
there is a wider issue about there being no statutory
duty on all health care organisations to promote and
support that practice in their organisations. As my hon.
Friend the Member for Poole said, the medical professionals
may want to be open but, unfortunately, they are being
advised by managers, who are not subject to the same
professional codes and perhaps believe that less openness
is the best course of action. My hon. Friend referred to
the Stafford case, and, as I understand it, it was a legal
officer who sought to suppress the doctor’s report in
that case. When the General Medical Council was asked
to confirm how many cases it had brought against
a doctor specifically for a breach of this part of its code,
it confirmed that it has not brought a case against a
single one.
My hon. Friend also referred to the very sad case of
Robbie Powell and the sterling efforts that the family
have made. I am pleased to see that Mr Powell has
joined us here today.
Mr James Gray (in the Chair): Order.
Tom Brake: I am sure that Mr Powell will be listening
carefully to what is said and reading the remarks in
Hansard later. That family have played a major role
in bringing this issue to our attention and are working
with AvMA to promote what they hope will become
Robbie’s law.
The MPS has provided information that I think
works against its case. Its research shows that, at the
moment, a third of doctors are not prepared to be open
and honest when an accident occurs. If so many doctors
feel constrained from or concerned about being open
when an accident has occurred, it supports the case for
a culture of candour. The MPS also refers to states in
the United States where there is a duty of candour and
where it perceives that there may be a difficulty in
enforcing the duty. In his remarks, my hon. Friend the
Member for Poole made it clear that the Care Quality
Commission has confirmed that it could and would
enforce a statutory duty, and would be in a position to
do so, if that were part of its regulations.
Another issue that the MPS raised, which we need to
respond to, is that the proposed duty would not include
near misses. It is arguing against the duty of candour,
but at the same time saying that it would be a problem if
near misses were not included. I understand that there
is a general agreement that, although it might the norm
for near misses to be reported to the patient, there
would be discretion in cases in which reporting a near
miss might cause unnecessary harm. There is recognition
that the near miss issue needs to be addressed carefully.
One important fact is that, whether it is a duty or a
requirement, it must apply to all health care organisations.
If there was one thing in the coalition agreement that
was slightly remiss, it was the fact that it referred only to
hospitals, but there is a wider health body that we need
to include. I am sure that the Minister will clarify in her
response that the duty of candour, or the requirement,
would need to apply not only to the patient but, sadly, if
the patient has died as a result of the accident, more
widely to include family members. It should not be
strictly restricted to the person who had the misfortune
of suffering the accident.
Dr Pugh: My hon. Friend mentions hospitals, but
does he not accept that there are severe diagnostic
failures at primary care level? Failures to refer can
seriously imperil life, so they, too, need to be encompassed
in the duty of candour.