Candour in Health Care

James Gray Excerpts

Wednesday 1st December 2010 Westminster Hall

[Tom Brake (Carshalton and Wallington) (LD)]

It is a pleasure to serve under your chairmanship this morning, Mr Gray. I congratulate my hon. Friend the Member for Poole (Mr Syms) on securing the debate and on lucidly and concisely setting out precisely why the Government should look carefully at a statutory duty of candour. I have not heard any effective arguments against it, but I will come on to some arguments from opponents. My hon. Friend set out why the duty would boost public confidence and he rightly pointed out that an apology—as we have probably all experienced—often, first, helps to secure closure for a family if a loved one has been involved in a tragic accident, and, secondly, can defuse a difficult situation that could end up in the courts for years afterwards. He has rightly set out the reasons why a duty of candour is a necessity.

My hon. Friend started by quoting from the Liberal Democrat manifesto, and I would expect nothing less in the coalition, so there is no need for me, as a Liberal Democrat, to do so. He also mentioned that the proposal has been carried through to the coalition agreement and, subsequently, into the NHS White Paper, which—although it perhaps does not contain a proposal as specific as a duty of candour—certainly makes it clear that hospitals need to be open about mistakes and always tell patients if something has gone wrong. One development to which he did not refer was the fact that legal aid will no longer be available in cases of clinical negligence, which I hope the Minister will pick up on in her response. I wonder whether that will have an impact and whether that strengthens the case for a duty of candour.

As I said in my opening remarks, there are opponents of a duty of candour. A briefing has been sent to Members by the Medical Protection Society, which is a

“leading provider of comprehensive professional indemnity and expert advice to…health professionals around the world.”

The briefing states that the society is committed to promoting openness in health care and supports the principle in the NHS White Paper that hospitals should be open about mistakes and always tell patients if something has gone wrong. However, it goes on to say that the MPS strongly believes that a change in culture would be more effective than a statutory duty. However, I agree with Action against Medical Accidents, which also briefed me for the debate. It said that perhaps the MPS is missing the point: it is not a question of a duty of candour or a change in culture, as it is perfectly possible to have both. Indeed, the duty of candour is one way of supporting and underpinning a change of culture, so that health care organisations are always open and honest with patients when things go wrong. The MPS says that it has been advocating that change in culture, and it is true that a number of organisations have been advocating it for the past 50 years or so, but the desired change has not happened. I am not sure how much longer one can wait for it.

There is an issue about guidance and about how seriously organisations take guidance when they are statutorily required to do other things. There is always a risk that guidance gets left aside while organisations focus on statutory duties. As the MPS said, it is correct that there is a professional duty for doctors and nurses to be open with patients in the event of a mistake, but there is a wider issue about there being no statutory duty on all health care organisations to promote and support that practice in their organisations. As my hon. Friend the Member for Poole said, the medical professionals may want to be open but, unfortunately, they are being advised by managers, who are not subject to the same professional codes and perhaps believe that less openness is the best course of action. My hon. Friend referred to the Stafford case, and, as I understand it, it was a legal officer who sought to suppress the doctor’s report in that case. When the General Medical Council was asked to confirm how many cases it had brought against a doctor specifically for a breach of this part of its code, it confirmed that it has not brought a case against a single one.

My hon. Friend also referred to the very sad case of Robbie Powell and the sterling efforts that the family have made. I am pleased to see that Mr Powell has joined us here today.

[Mr James Gray (in the Chair)]

Order.

[Tom Brake]

I am sure that Mr Powell will be listening carefully to what is said and reading the remarks in Hansard later. That family have played a major role in bringing this issue to our attention and are working with AvMA to promote what they hope will become Robbie’s law.

The MPS has provided information that I think works against its case. Its research shows that, at the moment, a third of doctors are not prepared to be open and honest when an accident occurs. If so many doctors feel constrained from or concerned about being open when an accident has occurred, it supports the case for a culture of candour. The MPS also refers to states in the United States where there is a duty of candour and where it perceives that there may be a difficulty in enforcing the duty. In his remarks, my hon. Friend the Member for Poole made it clear that the Care Quality Commission has confirmed that it could and would enforce a statutory duty, and would be in a position to do so, if that were part of its regulations.

Another issue that the MPS raised, which we need to respond to, is that the proposed duty would not include near misses. It is arguing against the duty of candour, but at the same time saying that it would be a problem if near misses were not included. I understand that there is a general agreement that, although it might the norm for near misses to be reported to the patient, there would be discretion in cases in which reporting a near miss might cause unnecessary harm. There is recognition that the near miss issue needs to be addressed carefully.

One important fact is that, whether it is a duty or a requirement, it must apply to all health care organisations. If there was one thing in the coalition agreement that was slightly remiss, it was the fact that it referred only to hospitals, but there is a wider health body that we need to include. I am sure that the Minister will clarify in her response that the duty of candour, or the requirement, would need to apply not only to the patient but, sadly, if the patient has died as a result of the accident, more widely to include family members. It should not be strictly restricted to the person who had the misfortune of suffering the accident.