More must be done for patients

Government looks poised to sidestep tough decisions following Francis NHS report

Jock Mackenzie

There is an expectation on all NHS staff, under the NHS Constitution, that they acknowledge mistakes, apologise for them, explain what happened and put matters right.

However, this is not what has been happening in the service. Robert Francis QC, in his recent report following his investigation into the care provided at Mid Staffordshire NHS Foundation Trust, identified serious failings in the trust.

Francis concluded that a statutory obligation was required on healthcare providers as well as registered medical, nursing and other health practitioners to observe a statutory duty of candour; on directors of healthcare organisations to be truthful in any information given to a regulator or commissioner; and for it to be a criminal offence to obstruct the performance of these duties.

These recommendations are laudable. The requirement to be open, honest and transparent is something that patient advocates and claimant clinical negligence organisations have been seeking for more than a decade.

As part of its response to the Francis report, published last week (26 March), the Government is thought to be set to introduce a statutory duty of candour from 1 April. This will apply to all cases where there has been moderate to severe harm or a death involved, with the patient or family being informed within 10 days of the incident, a sincere apology being given and the appropriate investigations taking place.

However, while this step is to be welcomed as a significant move in the right direction for the reform of the NHS, it is a concern that it may not go far enough and that the Government may not implement the Francis report recommendations in their entirety.

It is thought the duty of candour may not apply to individuals, including doctors in primary care and private practitioners, and could effectively be a corporate duty that applies only to the public sector.

Notwithstanding health professionals’ wider ethical duty – already in place – it is fallacious to think that health professionals working outside the NHS and in primary practice do not require such additional regulation.

The duty is likely to apply only to reportable patient safety incidents resulting in moderate to severe harm or death, but not to ‘near-misses’. It remains to be seen how effectively it can be policed.

Furthermore, it is not only the duty to own up to one’s own mistakes that is imperative; it is also essential that health professionals who wish to speak up are not prevented from doing so for fear of being reprimanded, ostracised or dismissed.

It is a positive step that ‘gagging’ clauses in agreements that relate to NHS severance payments have recently been abolished, but significantly more still needs to be done to encourage and protect whistleblowers in the service.