Sorry: the hardest word

The call for more openness in healthcare is understandable, but as Katie Costello points out, making it work in practice is not quite so straightforward

It is not hard to see the force of the public clamour for more openness from healthcare organisations and the individuals who work in them. After all, it is what we would want for ourselves if we had suffered harm due to a medical error. When things go wrong in a healthcare setting, theconsequences can be far-reaching, both physically and psychologically.

The question is, why is openness so hard to achieve in practice?

To understand this, we need to understand the psyche of a doctor, whose motto is ’first do no harm’. It is recognised that all medical interventions and medications have risks and potential side effects. These are sometimes considered ’acceptable harm’. Nonetheless, when harm results, it cuts at the doctor’s ethos and can be hard to take, particularly if there is a concern that fault played a part.

An admission of guilt?

As a doctor, would you worry that telling the patient (or family) might just make that patient feel worse? After all, what is done cannot be undone. Would you worry that saying sorry would imply that you have been negligent? Or that in doing so you risk an adverse finding from your employer or ­regulatory body that might prevent you from practising and earning a living?

Understandable though these fears might be, do they excuse not treating the patient with respect and as a rational person?

The clinician may argue, correctly, that even today there is no legal duty requiring him to give an explanation, much less an apology. There are, however, some regulatory obligations applicable, the primary ones being:

– The General Medical Council outlines that a prompt apology and explanation should be provided to any patient who has suffered “harm or distress”. Similar ­provisions are made by the General Dental Council and the Nursing & Midwifery Council. While these are merely guidelines, a breach can result in a disciplinary hearing and an adverse finding;

– The Compensation Act 2006 makes clear that an apology is not equivalent to an admission of fault. It should enable those concerned to feel reassured that they can give a prompt apology without the need to wait for independent expert opinions on whether the error was a negligent one, or was due to a combination of human and ­system (non-negligent) errors, or was ­perhaps just a recognised risk of a difficult surgical procedure;

– in November 2009, the National Patient Safety Agency (NPSA) produced an updated version of the ’Being Open’ document, which strongly promotes the need to apologise promptly when things ’go wrong’. This ­document is indicative of the general move by the NHS towards an open acknowledgment when treatment goes wrong. This is a ­framework supported by, among others, the Department of Health, Medical Defence Organisations and several Royal Colleges;

– from 1 April 2010, there is now a legal requirement for any provider of NHS Healthcare in England registered with the Care Quality Commission (CQC) to report to the NPSA any adverse event that has caused severe harm. Such events were already categorised as “serious untoward incidents”, but this is the first time that NHS providers are obliged to report the incidents to an outside agency, which will, in turn, report to the CQC. While this legal requirement does not yet extend to GPs and dentists, it will do so once primary care providers come within the framework of registration with the CQC. This is likely to be within the next two years.

A duty of candour

But should the actions go further? Independent charity Action against Medical Accidents (AvMA) is unhappy that the ­current legal requirement does not extend to reporting to patients. It is lobbying the ­Government to extend the reporting requirement to introduce a legal ’Duty of Candour’ to patients or their next of kin. It has the ­support of the Liberal Democrats and Chief Medical Officer Sir Liam Donaldson.

But is it a good idea? There is certainly a risk that apologies will become meaningless and handed out on an almost daily basis, given that statistics suggest about 500,000 patient safety incidents cause harm in English hospitals alone each year. There is also the practical problem of unmanageable workloads. In a survey by NPSA, many patients who had suffered from medical errors said they wanted not only an apology but also an in-depth investigation.

No one could argue against a patient’s right to know what has gone wrong. The philosophy is good, but the practice may be less so.

Katie Costello is a partner in the healthcare team at Berrymans Lace Mawer