Charity hails ‘biggest breakthrough’ in patients’ rights
Jeremy Hunt accepts that hospitals should tell patients if they suffer significant harm at the hands of medics. It comes after decades of campaigning from patients’ groups.
For decades patients and patients’ groups have been calling for something called a “duty of candour” – a statutory requirement to tell patients or their families if they have been harmed in healthcare, writes Peter Walsh, chief executive of Action against Medical Accidents (AvMA).
Ordinary citizens are usually completely gobsmacked when it is explained to them that no such duty currently exists.
As things stand, a healthcare organisation is breaking no statutory rule if it decides to cover up incidents of harm. Such behaviour is of course heavily frowned upon, but in reality it has been tolerated.
This is one of the many salutary lessons from the Mid Staffordshire public inquiry. Robert Francis QC recommended a duty of candour be introduced and you may have read that the government had already agreed to that recommendation.
However, how meaningful the duty would actually be – or even whether its version would actually do more harm than good – has been very much in the balance until now.
In his response to Francis, Jeremy Hunt was poised to announce a duty of candour which only applied if severe harm – permanent serious disability or death – had been caused.
Only last-minute lobbying from AvMA and others led to him keeping open the option of having the duty of candour apply to any significant harm.
He asked David Dalton (chief executive of Salford Royal NHS Foundation Trust) and Norman Williams (president of the Royal College of Surgeons) to review what threshold of harm they think should be included.
Their report came down full square in favour of our position – that any significant harm should be covered. That means any harm defined as moderate or worse in the current NHS definitions.
Only the most minimal and transient harm will not be covered by the duty, which will form one of the new fundamental standards to be regulated by the Care Quality Commission.
It will apply to any health or social care provider in England including GPs and private providers.
Biggest ever breakthrough
Jeremy Hunt’s decision to accept this recommendation represents one of the biggest ever breakthroughs in patients’ rights and patient safety.
To have restricted the duty of candour would in effect have legitimised the cover-up of all incidents of harm deemed less serious than severe permanent disability or death. Lawyers acting for healthcare providers would have been professionally obliged to advise them of that.
Don’t be confused by the NHS term “moderate harm” – this can be both devastating and life-changing.
A mistake could be made in surgery which could lead to you being off work for a year – losing your career and being unable to care for dependents during that time.
But if it was believed you would eventually recover, this would be defined as moderate harm, and the mistake would not have to be disclosed to you. An organisation which deliberately oversaw the covering up of such incidents could not be held to account.
David and Goliath
Getting to where we are now with the duty of candour has been a David and Goliath struggle, led by AvMA.
All previous secretaries of state for health have fiercely resisted the very notion of a Duty of Candour due to a distaste of regulation per se, and a powerful medical defence lobby stirring fears of litigation that might result.
It has taken tireless work lobbying politicians of all persuasions, putting compelling evidence to Robert Francis, and the building of a wide coalition of organisations supporting us to make this happen.
Robbie’s Law
However, we all have the parents of young Robbie Powell, who died as a result of negligence in South Wales, to thank for first raising awareness of the need.
Robbie’s father Will Powell has done more than any individual to do this. That’s why the duty of candour is also known as Robbie’s Law.
It is highly ironic that Wales has so far refused to do what Jeremy Hunt has agreed to. We need to see all parts of the UK to follow suit.
In the last month AvMA has had to support the family of an 86-year-old man who died in a Belfast emergency department. The circumstances of his death were kept from the family for over a year, but the hospital was not breaking any regulation.
On a regular basis my charity sees the devastating effect that a lack of honesty has on patients and their families.
On a regular basis my charity sees the devastating effect that a lack of honesty has on patients and their families. Organisations who are prepared to see these things swept under the carpet are also more likely to be uncaring and unsafe organisations.
The job is not quite finished yet. We will need to scrutinise the draft Care Quality Commission regulations which have just been published for consultation.
As well as defining the level of harm covered, we want these to include statutory requirements to train, support and protect staff in doing the right thing. Also, a requirement to discipline individuals who prevent an organisation from delivering its duty.
This package of measures is what will help bring about the real culture change that we all want to see.