In the Battle of Doctor vs Patient: 'Sorry' really does seem to be the hardest word: The ?Duty of Candour'

AuthorKelly O'Brien
S.S.L.R. The ‘Dut y of Cand our’
In the Battle of Doctor vs. Patient:Sorry’ really
does seem to be the hardest word.
The ‘Duty of Candour
Kelly O’Brien
This dissert ation discusses the ‘Duty of Candour’ as a mechan ism for
encouraging openness within the NH S. It examines the em ergent h istory of
the duty of candour highlight ing what has influenced the modern need for
openness, an d how these developm ent s are reflected through differin g
perspectives on the current debate. It reviews the cu rrent desire for open ness,
and the respective barriers to openn ess, in order to formu late a four -fold
hybrid of the objectives of candour. This an alysis then influences the crux of
the of this dissertation s discussion: whether these mechan isms are likely to
achieve cand ou r within the NHS. It com m ent s on the ‘duty of can douras a
duty at com mon law; a statutory duty; and a con tractual duty and their
respective success in implemen ting a cult ure of op en n ess, bot h idealistically
and realistically, factor in g in governm ental object ives. The later discussion
focuses on the current p arliamentary debate su rroun ding the implementation
of either the statutory or contractual duty of candour, con sidering the
effectiveness of each p roposed form of the duty’s implementation. This
highlight s p ot en tial polit ical motivations an d varying incentives wh ich has led
to differ ing opinion s on the form candou r should take. Concluding by argu ing
the effectiven ess of ‘duty of candour in achieving the four-fold aims and
ultimately chan ging culture within the NH S, will be inhibited by relying on
either of th e discu ssed mechan isms alone. Finally suggest ing th e dut y ought to
be accompanied by the measures of; ed ucation; ap pra isal; and reform of the
clinical negligence system.
he NHS over t he last decade has been crit icised as “too secretive”,1 and
professing a culture of blame an d denial owing to ‘anecdotal evidence’2,
that patients do not r eceive the explanat ion or apology sough t following
the occurren ce of medial error. There is currently a profession al duty of
1 Depa rtm ent o f He alth , Good d octors , Safer pat ients : pro posal s to str eng then t he sy stem to
ass ure a nd im pro ve th e perf orm ance o f doct ors an d to p rote ct the s afety of p atien ts, (2 00 6)
Sir Lia m Don aldson .
2 Depa rtm ent of Heal th, Im pl emen tin g a ‘Duty of Can dou r’; a n ew co ntr actu al req uirem en t
on prov ider s, (Cm. 1650 1, 2011) p.7 pa ra.2. 6.
Sou tha mpton Stud ent Law Review
openness an d honesty en shr in ed in Gen eral Medical Cou ncil (GMC)
guidance,3 in an attem pt to create op enn ess through individual r esponsibility,
yet non-d isclosure still occurs. Con sequent ly the curr ent debate cent res on the
imp lem entation of aDut y of Candour ’ to secure a culture of openness within
the NH S. This dut y forms the subject matt er of this dissertation. Theduty of
can dour’ is to b e a dut y im posed on healt hcare providers to be open with
patients when mistakes occur. Being op en entails providing patien ts with an
explanat ion, apology, an d implementing lessons learned. 4 There h as been
extensive debate over the for m this du ty shou ld take, nam ely wheth er it is to
be statutory or con tractu al. The latter reflects the governm en t’s proposal:
Im plem entin g a ‘Duty of Can dour’,5 current ly at th e consu ltation sta ge.
This duty proposes insert in g a contractual mech anism in to NHS standard
contracts requ iring all organisations to be open with patients, and publish a
‘declaration of a comm itment to openn ess’.6 The requiremen t of openness will
be m anaged by the com m issioners of h ealthcare through the cont ract
managemen t pr ocess. Con sequ ences for breach in clude; finan cial deductions
for failur e to publish the declaration; rem edial action such as writ ten
apologies; an d publication of breaches on the provider’s website. This
contractual duty of can dour is a form of institutional responsibility, as
opposed to holding doctors individually responsible for failur es to be open.
The com mun ication required of or ganisation s will be derived fr om the cur rent
Bein g Open 7 guidance, but will be reiterated in separate guidan ce to suppor t
the contractual obligation. This m echanism’s scope wou ld not exten d to
pr imar y car ers such as General Pr actitioners (GP’s), as their contracts differ in
construction. Further it wou ld only apply to patient safety inciden ts resulting
in moderate h arm , severe har m, or death .
The alter nat ive is a legal mech anism, which would require the Secretary of
State to intr oduce a stat utory duty of can dour for all registered health care
provid er s, by amending th e Care Quality Com m ission's (CQC) registr ation
regulation s. This duty was m oved as an am endm ent to the Health an d Social
Care Bill 2011,8 in the House Lords on the 13th Febru ary 2012,9 but was not
passe d. Amen dment 17, so called, was supp orted by ten prom inen t patient and
health organ isat ions 10, an d lost by just thirt y four votes. Th e duty would have
been monitored in the sam e way as all other core essen tial requ iremen ts
3 GMC, Good Medi cal Pract ice: Bein g Open and hones t wi th pa tient s if th ings g o wr ong,
4 Depa rtm ent of Heal th, Im pl emen tin g a ‘Duty of Can dou r’; a n ew co ntr actu al req uirem en t
on prov ider s, (Cm. 165 01, 20 11) p. 6 , par a. 2.4 .
5 Depa rtm ent of Heal th, Im pl emen tin g a ‘Duty of Can dou r’; a n ew co ntr actu al req uirem en t
on prov ider s, (Cm. 1650 1, 2011)
6 Ibi d p. 11, par a. 4.4 .
7 Nation al Pat ient Sa fety Agency, B eing O pen (2009)
8 Hea lth an d Socia l Car e Bill 2011.
9 Session 2010-12, P ublic Bills before P arliam ent , Healt h an d Social Car e Bill, Amen dme nt 17
< h ttp :/ / www.p ublica tion rlia men t.u k/ pa / bills/ lb ill/ 20 10-20 12/ 0119/ am en d/ m l119- m> 2 /0 3/ 12.
10 Ib id, Colum n. 573: Act ion aga inst M edical Accide nts, N ation al Voices, th e Pat ients
Associa tion, t he He alth F ound ation , the N ation al Associat ion of LIN ks Mem bers , Patien ts
Firs t, th e Neur ological Allian ce, Ret hink M enta l Illnes s, Asthm a UK and the St roke

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