Health and Social Care Bill

Lord Walton of Detchant Excerpts

Monday 7th November 2011 Lords Chamber

[Lord Walton of Detchant]

My Lords, I shall be extremely brief in my contribution. As a former practising doctor and neurologist, I am fully aware of the immense distress and concern that patients, and often their families, have experienced as a result of medical accidents in the broad. It is clear that there are certain circumstances in which episodes construed as being so-called medical accidents have been the inadvertent effects of treatments that have had completely unforeseen complications, for which no one could possibly be held responsible.

When I was a young doctor, the medical protection groups—the Medical Defence Union and the Medical Protection Society—always recommended that if an error occurred, under no circumstances should one apologise in such terms as to constitute accepting liability. However, when I was president of the General Medical Council, the concerns that have been so eloquently expressed around this Committee, particularly by my noble friend Lady Masham in her opening speech, led to a gradual and significant change in attitude. After regular consultations with the medical protection bodies, the General Medical Council eventually recommended, and still recommends, a duty of candour on doctors to apologise and explain in depth if accidents and errors have occurred. This is, I believe, still part of the advice that the GMC gives.

Having said that, I understand and sympathise deeply with the purpose that underlies this amendment. However, in several respects it is very difficult to make its wording the basis of a statutory requirement. In particular, proposed new paragraph (b) states that,

“regulations are introduced to enable the Care Quality Commission to take action against a registered person or body who fail to disclose details of such incidents as set out in those regulations”.

This could cut across the responsibilities of the statutory regulatory authorities—the General Medical Council, the General Dental Council and the Nursing and Midwifery Council—and I simply could not accept the wording of that part of the amendment. Therefore, I have great sympathy with the view that something might well be done to reinforce the advice that is being given by a regulatory authority such as the GMC to enforce the duty of candour. However, sadly, the amendment in its present terms would not fulfil that very worthy objective.

[Lord Lucas]

My Lords, an apology is not, of itself, an admission of liability. I am very grateful to the noble Baroness, Lady Masham, for allowing me to put that into English law, if I can update the noble Lord, Lord Marks, on it.

I come at this question from a slightly different angle. My familiarity is with doctors who have blown the whistle and had their careers destroyed as a result. That, too, has its roots in a lack of internal candour. I want to see the health service become more constructively self-critical, and for the mistakes and wrong judgments that have been made to be the subject of ordinary conversations within a hospital or other medical organisations, so that better care is provided in the future. This is the way it is in schools. Teachers are generally pretty open about things that have gone wrong and look to find ways of doing things better, but they do not tell parents about it. You can look at schools that have improved from 20 per cent to 80 per cent of students achieving five GCSE grades of between A and C. The kids are the same and the intake is the same. That school has failed thousands of children but no one has ever admitted that to the parents, which is very hard to do. In fact, it would tend to freeze any kind of internal self-critical attitude, particularly if the duty was drawn as widely as it would be in this amendment.

I therefore find myself siding with the noble Lord, Lord Winston, in this, although I am very committed to candour. Candour needs to be there, particularly in something as dangerous as medicine, where you are skiing down the edge of a precipice for half the time. You cannot be blamed when things go wrong because mistakes are bound to happen under those circumstances. Downhill skiers crash; they do not intend to do that and are well trained not to—but it happens. This spreading of blame for every slight mistake or wrong judgment taken in the circumstances of surgery or something with a longer timescale, such as pharmacology, is not the right way to approach the issue. We need to find ways of being open and of encouraging professionals, in particular, to be open with each other in a culture of self-improvement. To expose all this to litigation and in effect to encourage patients to go to law whenever something goes wrong, under circumstances where it is inevitable that a large number of things will go wrong, would be a mistake.

--- Later in debate ---

My noble friend Lord Marks spoke with his customary experience and legal background about the effect of a duty of candour on negligence claims. He made some very interesting remarks about this, and I think he would agree that it is a complex issue. The evidence is split on the effect of a duty of candour. We are aware of studies from the United States on this topic, including work undertaken at the Veterans Affairs Medical Center in Lexington, Kentucky, and we will continue to monitor this area as further evidence becomes available. However, I can cite one example that is also from the United States. Pennsylvania has a duty to notify patients in writing if a serious event has occurred. Feedback from the Pennsylvania Department of Health on that duty to notify suggests that there are unintended consequences. Experience suggests that a likely behavioural change is towards challenging definitions of a serious event and not apologising. Lawyers may try to twist the definition of a serious event so that the hospital is legally not required to send a letter. In the case of Pennsylvania, the cause of this seems to be an ambiguous definition of serious event. Therefore, this is not without its hazards.

[Lord Walton of Detchant]

On the noble Earl’s point about GPs who are not employed by the National Health Service and the issue raised by the noble Lord, Lord Campbell-Savours, about NHS patients and private patients, does he agree that the professional regulatory authorities impose a duty of candour on those professionals, irrespective of whether they work in the NHS or in the private sector? The same duty imposed by the recommendations of regulatory bodies applies to all.

[Earl Howe]

I agree with the noble Lord. In fact, the GMC sets out in its Good Medical Practice the following:

“If a patient under your care has suffered harm or distress, you must act immediately to put matters right, if that is possible. You should offer an apology and explain fully and promptly to the patient what has happened, and the likely short-term and long-term effects”.

Therefore, the noble Lord is quite right: this would apply whether a doctor was treating an NHS patient or serving in a private capacity.

The noble Baroness, Lady Hollins, asked—