In this blog we look at two sides of the professional duty of candour – in the first part, Kisha Punchihewa our head of legal looks at it from the legal point of view in the context of fitness to practise, citing some examples where professionals have failed to be candid. In the second part, policy manager, Dinah Godfree looks at the possible barriers to telling the truth and why being candid can be much more complicated than ‘simply telling the truth’ makes it sound.
The duty on regulated healthcare professionals to be candid when something goes wrong with patient care was introduced following the tragic events at Mid Staffordshire. However, during the course of writing this blog, more tragic events – this time at Shrewsbury and Telford Hospital Trust – are coming to light and a failure to be candid when something has gone wrong with care continues to be an issue. So what is it that can hinder healthcare professionals from being candid? Our recent research looked at the kind of issues that can deter professionals from being candid. Also, as part of our scrutiny of the regulators' final fitness to practise decisions, we have seen cases where a professional has not been candid when something has gone wrong or where a regulator’s fitness to practise panel has not treated a lack of candour seriously as it should have been treated.
What does it mean to be candid?
Kisha Punchihewa | Head of Legal
It seems obvious when we are looking at cases after the event – something goes wrong, you know something has gone wrong and as a healthcare professional you should be open about it…but that doesn’t always happen.
Telling the truth has been something we expect of our healthcare professionals, but it was brought into focus following the tragic events at Mid-Staffordshire. There is now an organisation duty of candour as well as a professional duty of candour; it is the professional duty that I am going to look at it in more detail here.
Healthcare professionals must:
- tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong;
- apologise to the patient (or, where appropriate, the patient’s advocate, carer or family);
- offer an appropriate remedy or support to put matters right (if possible); and
- explain fully to the patient (or, where appropriate, the patient’s advocate, carer or family) the short and long terms effects of what has happened.
But this does not always happen and we know that it does not happen – one part of the solution is understanding the problem. The Authority’s report Telling patients the truth when something goes wrong looked at research around the barriers to candour – those things that stop people from telling the truth. We have seen these barriers to candour in cases we have brought via our [Section 29 appeal process] and I am going to focus on a couple of them.
Case study 1 – A consultant neurosurgeon
This case involves a consultant Neurosurgeon let’s call him Dr Smith (not his real name). Dr Smith’s patient required surgery on his back. The patient underwent his operation but did not know that the operation had been performed on the wrong site. We don’t know if Dr Smith realised this immediately after the operation. However, the patient complained about continued pain at a follow-up appointment. The patient was then told to come in for more surgery as more bone needed to be taken off because not enough disc had been taken away during the first operation.
What Dr Smith did not say is “I’m sorry – I operated on the wrong site of your spine and that is why you are still in pain. I need to correct that mistake.”
What he did do however was say nothing, allowing his colleagues and, most importantly, his patient to believe that this second surgery was needed because essentially the first one had not quite done the job. The second surgery was successful. Dr Smith then completed the medical records containing false descriptions of the surgery. This meant he has either deliberately caused or allowed his colleagues to become a part of his deception. He also sent an incorrect letter to the patient’s GP.
None of this would have come to light if the patient had not brought a clinical negligence claim against the Trust. The doctor who he employed as his expert had noted the wrong-site surgery when reviewing the medical records. This review took place two years after the first surgery.
This is not a case of someone making a spur-of-the-moment poor judgement call, but is a series of dishonest acts. There were enough opportunities for Dr Smith to be candid with both his patient and his colleagues. Why wasn’t he? When interviewed by his employer Dr Smith said when he discovered he had operated on the wrong site on his patient’s spine he thought it was a disaster; he knew that he should have informed his manager about the surgical error; but felt that reporting the wrong-site surgery ‘opens a can of worms’ and he was aware of that.
The bottom line here is that he put his own interests before those of his patient and he lacked the moral courage to own up to his mistake.
Case Study 2 – Nurse Jones
Nurse Jones (not his real name) observed an incident where one of his colleagues failed to properly de-escalate a situation with a patient on a mental health ward. His colleague Nurse Brown (also not her real name) alleged that she had been assaulted by a patient and called the Police. The Registrant witnessed this incident and provided a brief factual report about the incident on the electronic record at the end of his shift. He was the next most senior nurse on shift. As his colleague had reported the assault to the police – he was asked to provide them with a statement. A few days after the request was made, he sent an email to the Ward Manager saying he wanted his name to be removed from the list of witnesses for the police – he said “the statement that I give would not help [Charge Nurse Brown’s] case as I did have concerns for the events of the shift/period in question”. He added “I feel that I should be supportive to team members, and support their case. Please could you advise the most appropriate course of action…” He was told that he needed to co-operate with the police and if he had any concerns, he should discuss those with the Ward Manager. He didn’t do that. In a supervision session he said what he had seen – Nurse Brown was standing on a sofa, jumped onto the back of the patient and held her in a headlock, and she had been verbally abusive to the patient. He was told to write a statement based on those facts.
Go forward five months and the Trust brings disciplinary action against Nurse Jones. At this point he said, he gave his full account. He had seen Charge Nurse Brown jumping on the back of her patient and holding her [the patient] in a head lock on 22 April 2011; he had advised her to use the correct de-escalation procedure; Charge Nurse Brown had confronted her patient and was hit with a hairbrush as a result. He reported also that many of the staff on duty had witnessed Charge Nurse Brown holding the patient incorrectly.
The Trust Investigator spoke about the considerable difficulties in eliciting information, let alone reliable information from staff – she spoke about a collusion of silence. This example shows that workplace culture can influence a professional’s candour towards patients. In this case the Court described what the registrant did as a “crisis of conscience” and that he had a misplaced sense of loyalty to Charge Nurse Brown which may have prompted him not to speak out and so avoid getting her into trouble and that he was not prepared to give a partisan or partial account of what he saw to the police.
Why does this matter?
In another appeal where two nurses lied to their employer and the Coroner about the treatment they had provided to a mental health patient following his death by suicide, the Court said:
"The purpose of the Trust's investigation was to learn lessons from Patient A's death so that steps could be taken to avert similar problems in the future. It was therefore critical (and ought to have been obvious) that those giving evidence to the investigation should be candid. Anything other than candour would undermine the purpose of the investigation."
In some of the work we have done on this topic, there has been some discussion about not knowing what candour means but that seems difficult to believe. A toddler knows when they have done something they shouldn’t have – they may have difficulty telling the truth about it but I would hope that an adult working in a field where their role is to care for and protect patients knows better. I recently heard it described as kindness and telling the truth – that seemed to chime with the audience. So perhaps we need to refer to it as ‘being candid – telling the truth’. Mistakes will happen – our healthcare professionals are human beings not robots. But unlike robots our healthcare professionals need to learn from their mistakes and also uphold the trust that the public has in them.
Being open when things go wrong – an ethically embarrassing debate?
Dinah Godfree | Policy Manager
"The way in which the Trust handled the matter can be viewed as an object lesson in how the tragedy of an avoidable death can be exacerbated by inappropriate handling of the case. It demonstrates the sad fact that, for all the fine words printed and spoken about candour, and willingness to remedy wrongs, there lurks within the system an institutional instinct which, under pressure, will prefer concealment, formulaic responses and avoidance of public criticism."
These are the words of Robert Francis QC, in his report on the serious failings at the Mid-Staffordshire NHS Foundation Trust, published in 2013 (the sentence underlined is our emphasis). They refer specifically to the case of a previously fit young man, who died from an undiagnosed ruptured spleen following a mountain-bike accident. An internal report found that his death would almost certainly have been avoided if a more thorough examination had been carried out when he presented himself to A&E. But this report was neither sent to the coroner, nor disclosed to the family. The pain that his family went through was exacerbated by these actions, and by further reluctance by the Trust to admit any wrongdoing.
Robert Francis was not the first to highlight failings in openness and honesty with patients and families when care has gone wrong. The Kennedy Report into the failings at Bristol Royal Infirmary called for the introduction of a duty of candour: ‘when things go wrong, patients are entitled to receive an acknowledgement, an explanation and an apology.’
That was nearly 20 years ago. Why are we still engaged in what was described by Leape and Berwick in 2005 as an ‘ethically embarrassing debate’, when being open and honest about mistakes is so obviously the right thing to do?
Why is it hard to be open when things go wrong?
In 2013, we at the Professional Standards Authority studied the literature on candour, disclosure and openness to try to understand where the barriers lay to professionals either reporting their own errors or enabling others to do so. In 2018, we carried out further research to understand whether professional regulators had made any headway in encouraging professionals to be candid when care had gone wrong. What we found across both pieces of work was a complex and persistent set of social, cultural, psychological, and practical barriers.
It’s not my responsibility – someone else will report it
One of the main psychological barriers is ‘bystander apathy’ – in our context, this can be described as the diffusion of responsibility that arises where a number of people are involved in, or aware of, an incident and subsequent failures to report it or be open about it – usually resulting in no one taking action. Combined, perhaps, with a hierarchical deference that means some professionals take the lead from those higher up the chain – more on this below – this kind of apathy is likely to play an important part in the non-disclosure of incidents, particularly if it is not clear who can or should report an incident.
A workplace culture where standards start to slip
Attitudes to openness may be specific to professions, or groups within professions – though it should be noted that at the time we carried out our literature review, most of the research related to doctors. For doctors in high-risk branches of medicine, such as surgery and anaesthetics, suboptimal, uncertain, and dangerous situations may become normal features of care. These doctors become less sensitive to abnormal care incidents, and are therefore less likely to identify, respond to, and learn from them. What is striking here is the obvious read-across to care settings with low standards of care – if incidents of poor care become normalised, this is likely to be accompanied by a loss of sensitivity about what counts as an incident worth reporting. This is supported by analysis of the Space Shuttle Challenger disaster, which found that there had been a ‘normalization of deviance’, in which incremental deviations from normal procedures were accepted, despite their resulting in standards that would not have been tolerated if the slippage had happened suddenly.
Not wanting to own up to mistakes because others may think I am incompetent
Other studies suggest that there is, for some doctors at least, an expectation that medicine is an exact science that can be practised flawlessly. This means that error is considered a sign of incompetence, and psychological defences are developed to avoid classifying incidents as errors, or to diffuse responsibility for them. The fear of being judged by one’s peers for making a mistake – if you believe that everyone else is flawless and will judge you for your error – is likely to be a significant barrier to openness in itself, and a problem that is somewhat self-perpetuating.
We did see some research with nurses that showed perhaps a greater willingness than doctors to be open about incidents, but the effects of this may be undermined by a deference to professionals of perceived higher status. Some nurses reported developing strategies for encouraging more senior colleagues to disclose, such as confronting them directly, or suggesting that patients ask them themselves. It seemed from this that there was not necessarily a shared expectation between doctors and nurses about what to disclose and when, and that this could create tensions and impediments to open reporting.
A toxic workplace where a culture of blame thrives
But perhaps the most significant barrier to the disclosure of incidents is the fear of what this might mean for yourself as a professional, and your career. So much of this stems from workplace culture – how do you expect your colleagues, both clinical and non-clinical, to respond to finding out about an incident? Are you supported to be open and honest by the people and structures in place (including compliance with the statutory duty of candour placed on NHS providers in England and Scotland, with plans for similar duties to be introduced in Wales and Northern Ireland) – or on the contrary discouraged, either explicitly or in more subtle ways? What do you know of what has happened to others in this situation? Do you fear medico-legal action, or possible consequences for your indemnity insurance?
This last question is crucial. The UK, like the US, has embraced the tort system, under which individuals are legally liable for their actions as professionals. In contrast, countries like Denmark and New Zealand have adopted a no-fault approach to compensation. There are though some misconceptions in this country about litigation in this area, and what it means for indemnity insurance. Within the NHS, there is clear guidance that being open is the right thing to do, and should not prejudice any future litigation. However, this may still not be fully understood, and there continue to be mixed messages about the possible impact on the cost of indemnity. Research suggests that staff take the lead from their employers on this: managers in the US who took part in a widescale survey in 2002 were twice as likely not to disclose preventable harm if the hospital itself has concerns about the malpractice implications of disclosure. This is therefore another area where employers exert influence.
How can we overcome these barriers?
What is striking about these barriers to openness is how familiar and relatable they are to people even outside healthcare. We are most of us motivated by wanting to do the right thing, but before doing so, we tend to assess the impacts on our own lives of taking a particular course of action. Without even thinking about it, we might carry out a rudimentary cost-benefit analysis of even relatively trivial actions, such as reporting that we’ve clipped the wing mirror of a parked car, or challenging someone’s antisocial behaviour on public transport. Is it worth the costs to me? What will it achieve? We may also find ourselves looking for reasons to justify a decision not to act.
Health and care professionals are bound by a professional duty of candour, as set out by their professional regulator – this should be an important motivating factor, that in a perfect world would eliminate the need for a cost-benefit analysis. Should I be open about what happened? Yes. Why? Because it is your duty as a professional and it says so here. It should also act as an enabler insofar as it can be used to justify to others a decision to be open.
But of course, professionals are humans with complex motivations and fears, and they operate within complex systems alongside other humans. Where the mere existence of this duty (and potential consequences if the professional is reported to the regulator) fails to bite is if the influence exerted by barriers to openness is greater than that exerted by the professional duty combined with their personal drive to do the right thing.
Addressing these barriers is a sector-wide challenge. Indemnity providers could do more to reward candour and punish its absence. Employers can play a huge part in reducing the disincentives, and in reassuring professionals that not only will they not face unfair negative consequences in being candid, they will also be actively supported in doing so. This is part and parcel of what is often referred to as a learning culture, as set primarily by those at the top of organisations – a topic too vast to explore in more detail here. The statutory duty of candour for NHS providers, along with other initiatives such as the Health Safety Improvement Board in England (which we have expressed some reservations about) aim to improve responses to incidents as well learn from them.
Alongside this, regulators have made progress in encouraging candour, not least through working together on a joint statement. However, they still could place greater emphasis on the importance of candour in their fitness to practise proceedings, and educate their registrants on what it means and why it matters, reinforcing the messages at every opportunity, including through revalidation. There is also an important role for pre-qualifying education to equip future professionals to deal with the mistakes they will inevitably make, and develop the moral courage that they will need to do the right thing in the face of adversity. None of this represents a solution on its own, but it would be a significant step in the right direction.
For a full bibliography and references for this blog, you can read through our reports. You can find all our work on the duty of candour on our website.