In this guest blog, Peter Walsh, Chief Executive of Action against Medical Accidents, sums up what progress has been made since the introduction of the organisational and professional duties of candour, but also questions what difference they have made. However, he remains hopeful, that the duty of candour will become much more than just a box-ticking exercise and believes, if we can get it right, it will be the biggest and most overdue advance in patients’ rights and patient safety that we have ever seen in health and social care.
It is difficult to believe that until the Westminster parliament felt compelled at last to act following the Mid Staffordshire public inquiry, no NHS organisation was in breach of any statutory regulation or law if it covered up incidents which had harmed or even killed patients. It is surely something that will shock and intrigue future historians and students of the NHS. In effect, the system had frowned on cover ups, but had not been prepared to do anything serious to stop them and continued to tolerate them until public pressure became unbearable. The statutory duty of candour came into force in England at the end of 2014 and alongside it a renewed commitment on the part of health professional regulators to promote and regulate health professionals’ professional duty of candour.
The lack of a statutory duty or any effective mechanism to hold either healthcare organisations or individuals to account for failing to be open and honest had long been a massive concern to Action against Medical Accidents (AvMA – the UK charity for patient safety and justice), based on the experience of many of the thousands of people we advise and support every year.
The case of Robbie Powell had become a powerful symbol of the need for change, and no individual has done more to make the case than Robbie’s father Will Powell. AvMA will always be grateful for the Powell family’s work and for them allowing AvMA to use Robbie’s name in our campaign for a statutory duty of candour on organisations and more rigorous regulation of the professional duty.
In spite of stern resistance from some parts of the system, our campaign was eventually successful in England. It has been followed by the introduction of a statutory duty in Scotland, and plans to bring one in in Wales and Northern Ireland. It is undeniable that awareness has been raised. It even featured in a recent episode of Holby City! There is now a stated determination in all parts of the United Kingdom to give this issue the priority it deserves. However, the jury is out as to just how much difference the duties of candour are making in practice.
The duty of candour (both organisational and professional) is primarily about changing culture and giving prominence to the necessity of openness and honesty when things go wrong. It is about avoiding cover ups rather than having to punish those responsible for them. Changing culture can never be a quick fix, but we now have five years’ experience since the statutory duty was introduced in England and the health professional regulators refreshed their guidance on the professional duties. Anecdotally, things have got better. The health professionals and managers I speak to overwhelmingly agree that we are better off having a statutory duty of candour. Investigators and complaints staff tell me that they feel more empowered to be fully honest. Research led by Professor Graham Martin found that this had been the most effective of a range of measures designed to improve openness in the NHS in England. However, this is tinged with the feeling that the quest for compliance has in some places led to a ‘tick box’ approach. Added to that, it is still the case that some patients and families have continued to experience a lack of openness and honesty. Research by AvMA in 2016 Regulating the Duty of Candour found that the Care Quality Commission’s (CQC) regulation of the statutory duty had so far been pretty woeful, and that no organisations had been held to account for breaches. Our report in 2018 Requires Improvement found that the situation had improved and regulatory action had begun to be taken over breaches but there were still significant weaknesses in regulating and promoting the duty. The Professional Standards Authority report on the professional duty of candour in 2019 found that regulators had improved their approach to regulating the duty of candour but that much more remained to be done system-wide to create the right environment for honesty and candour to flourish.
England is still playing catch up over its statutory duty of candour. One has to remember that the Department of Health had been strongly against bringing it in and this was something that was forced upon it by the Mid Staffs inquiry recommendations and a mixture of public and political pressure. It was introduced in a hurry without the necessary preparation and training. AvMA even had to produce the only national information leaflet for the public on the duty of candour (endorsed by the CQC). There remains no central training and awareness campaign to support the implementation of the duty of candour in England and a review of the legislation and guidance is well overdue.
Nonetheless, progress has begun to be made and the introduction of statutory duties in Scotland, Wales and Northern Ireland provide an opportunity to learn from the experience in England. As the Professional Standards Authority report concluded, what is needed is a joined-up approach by Government, regulators and others to both design, implement and regulate for openness and honesty in a meaningful way. The statutory duties on organisations and those that apply to individual health professionals need to complement and support each other. If we get the duty of candour right, it will be the biggest and most overdue advance in patients’ rights and patient safety that we have ever seen in health and social care.
You can find out more about Action against Medical Accidents (AvMA) from their website at www.avma.org.uk
You can find all our work, including research on the the duty of candour on our website.