An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Doctors are exhorted to be candid with their patients when clinical errors occur. Is candour simply a synonym for truthfulness, or does the word import more into a doctor’s or health care professional’s duty to patients?

What is candour?

The seventeenth-century origins¹ of the word candour have their roots from words for sincerity, kindness, freedom for deceit, purity and probity. Modern definitions of the word² include ‘stainlessness of character; freedom from reserve, frank in one’s statements’.

Candour is best construed as denoting a full disclosure of truth, motivated by wishing to confer benefit upon the person to whom the information is being disclosed. In many respects, this is the opposite of ‘spin’, where only selected truths are disclosed whilst others are withheld. Lacking candour, those employing ‘spin’ prevent the listener from being as well informed as the informant. Thus controlling the information, it is possible to avoid giving the listener an opportunity entirely to judge the situation for themselves. Doctors who employ this degree of control whilst selecting what information to disclose to their patients could reasonably be described as paternalistic. Such paternalism may on occasion be justified, but should in modern day practice be exceptional, rather than the norm.

In daily life, your son might borrow your car to pick up a newspaper from the local shop. On his return, if asked whether he had managed to find your favourite paper, he could truthfully answer that he had; but his candid answer would have been that he also scratched your car in doing so.

The legal history of candour

Inevitably, this is rooted in litigation over the disclosure of information. The earliest English case may be that of Gerber (1934)³, when a doctor failed to tell his patient that a broken hypodermic needle fragment remained inside him. Thirty years later in Canada⁴ where a patient’s bladder was inadvertently entered during a herniotomy, the surgeon failed to disclose this accident to the patient. Similarly, in the case of a patient⁵ who was not told of an ineffective sterilisation. In each case, ‘ignoring’ the injury or operative deficit deprived the patient of timely treatment of the ensuing complications; and for failing to provide the necessary additional post operative care, the surgeon was found to have fallen before the reasonable standard expected of him. Thus these courts held that it was failure to deal with the situation that had arisen, rather than the failure to disclose the accident, for which the surgeon was liable.

Kueper⁶ broke new ground; in the case of a dentist who sealed his broken drill tip within the patient’s root canal without telling her of this misadventure. He was held to have acted unreasonably, and ought to have informed his patient of the occurrence, as well as then discussing with her options for a remedy.

The stage was thus set for the English courts to speculate on the existence of a doctor’s duty to disclose medical errors. In the case of a burnt child⁷ who developed brain damage, the cause was probably anoxia as a result of failure of assisted ventilation during an inter-hospital ambulance transfer. Asserting that the duty to inform the patient is as relevant after the administration of treatment as it is before the therapy starts, the court noted that:

‘There is something seriously wrong with the law if it cannot be ascertained on the (claimants) behalf exactly what caused his brain damage’.

Lords Donaldson and Mustill agreed that ‘...(S)ome thought should be given to what is the duty of disclosure owed by a doctor... to a patient after treatment…’

This ‘thought’ was formulated in Ontario only a few months later. During a percutaneous lung biopsy, a trainee instead biopsied a man’s spleen⁸. When asked by the patient the results of the biopsy, the doctor replied that he had no results, since he had not obtained the necessary tissue. Further challenged to explain what had been obtained, the doctor replied “something else”, without other comment. Later, due to the injury, splenectomy was required. Irrespective of the harm to the spleen, the court found that as a matter of law, the doctor should have told his patient of the splenic biopsy; ‘The defendant’s failure to be candid with the plaintiff was a breach of duty’.

This language was echoed by Lord Donaldson in a later series of cases⁹, where his personal view was that ‘...(T)he duty of candid disclosure... is but one aspect of the general duty of care, arising out of the patient/medical practitioner...relationship...’

However, these English judicial utterings do not enjoy the status of binding precedent in the common law, since they are “obiter dicta”; words said during litigation, but which do not constitute a reasoned answer to the legal question asked of the court.

In 1998, the General Medical Council supported these judicial hints at what constitutes ethical practice by incorporating them into its guidance¹⁰;

‘If a patient under your care has suffered serious harm…you should explain fully to the patient what has happened, and the likely long and short-term effects.’

None of this advice was controversial, although the problem of harm to which the patient was oblivious was not explicitly addressed.

The Francis Report; Mid Staffordshire NHSFT public inquiry

The advent of the Francis report¹¹, and the ensuing government response causes us to consider ‘hidden harm’ more carefully, since both shine light on candour. Robert Francis QC lays out the evidence from those involved in the events at this hospital, together with the accumulated words of previous allied enquiries and interested public bodies. He addresses openness, transparency and candour in Chapter 22 in the second volume. Recommendations 173 to 184 flow from this section, with five directly applicable to doctors. Included in these are recommendations that practitioners should be honest, open and truthful in their dealings with patients; and provide full answers to any reasonable questions related to treatment. Francis recommends that:

‘A statutory obligation should be imposed to observe a duty of candour on registered medical practitioners... who believe or suspect that treatment or care provided to a patient by or on behalf of any healthcare provider by which they are employed has caused death or serious injury to the patient... to report their belief or suspicion to their employer as soon as is reasonably practicable’.

This he supports by recommending a criminal offence for doctors who obstruct this reporting, or who mislead patients in relation to such an incident.

In Hard Truths¹², the government’s reply to Francis, it seems very likely that statutory obligations and criminal sanctions will not be applied to clinicians. Rather, the existing professional obligations will be strengthened. Nevertheless, this is an opportunity to ensure that clinicians are clear as to how they can be candid with their patients.

Why is candour necessary?

To fully understand why Robert Francis QC felt that a statutory duty of candour was necessary, his report on Mid Staffordshire should be read. But in more general terms, bearing in mind the distinction already made between candour and truth-telling, candour is needed to put the patient in the same position as the doctor, in terms of what clinical events have taken place. Simplistically, most clinical activity proceeds out of the patient’s sight. Every pill swallowed; every infusion administered; all act invisibly. The patient will be oblivious of any inadvertent harm caused, whilst the doctor has investigations to reveal it. Patients having radiological or surgical procedures will be oblivious either because they are anaesthetised, or because the operative field is screened from their view. If untoward events occur, how will the patient know, unless they are told? How will they know that there are questions to ask, unless they are told?

For the man who unexpectedly loses his leg or his eyesight during surgery, the loss will be self evident. In modern times, bearing in mind the GMC guidance, any prevarication by the surgeon in fully explaining these outcomes should now be only of historical interest. But surgery provides endless opportunities for the type of misadventure that will only become evident months or years later. Losing broken drills down marrow cavities of bones or root canals of teeth; dividing the vas deferens during an inguinal hernia repair; using enough diathermy on a ureter to cause stricture but not perforation.

Equally applicable to non-surgical specialities, doubtless you can envisage circumstances arising from investigation and treatment where the patient will be oblivious to a misadventure, unless you are candid with them.

It is still fair to ask whether non-disclosure matters. It can certainly be argued that trivial ‘misadventures’ are ubiquitous, and to report them all would be absurd (see below). It was once commonplace to assert that selective reticence is part of good medical practice; that to burden patients unnecessarily will cause distress without providing them with any tangible benefit (unless it would put them in a favourable position to litigate).

Western society has for the moment settled firmly on the principle that autonomy of the individual has precedence over other considerations, reflected in the numerous opportunities for choice in all fields of public services, from the education of your children to the timing of your bin collection. In this environment, choosing on the patient’s behalf what they may or may not wish to know about themselves is anathema.

The threshold for candour

It follows that there must be some form of threshold for the engagement of candour. Breaking the thread during arterial ligation creates delay; difficulty controlling the venous oozing may foreseeably amount to the need for transfusion that was otherwise avoidable; but surely no reasonable colleague would suggest that we fall below the acceptable standard if we withhold these details postoperatively?

Robert Francis relies on death or serious harm as his threshold for disclosure. Whilst Hard Truths indicates that individuals will avoid a statutory duty, it still behoves doctors to find a workable response to this challenge. The answer may lie in the law of disclosure for consent, where the legal history of candour began.

For many years, clinicians have had to provide sufficient information during consent to pass the threshold of the amount and quality of information that their peer group would provide in the circumstances, thus passing the Bolam test. In more recent times, the courts have abandoned any reliance on expert witnesses to tell them what the professional standard should be. Rather, the judges have relied on their own construction (as potential patients) as to what the reasonable patient would need to know in the circumstances to make an informed decision as to whether they wish to have the suggested procedure. This has led to the unchallenged judgement of Lord Woolf¹³:

“If there is a significant risk which would affect the judgement of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine... what course he or she should adopt”.

It may be that this can be transposed to serve as a template for the threshold for engaging the duty of candour: If significant harm has occurred which the reasonable patient would wish to know about, then in the normal course it is the responsibility of a doctor to inform the patient of that significant harm, and the way in which it was caused.

Whether candour is engaged then becomes a matter for clinical judgement, just in the same way as you judge which potential operative complications need to be disclosed during the disclosure for consent.

The danger of abusing the obligation

Doctors are perforce innovative creatures, and may be tempted to use their obligation of candour to improve, as they see it, the standard of care that their service provides. There may be danger in over-egging potential harms. If, for example, your screening service is under-funded, or insufficiently supported by the hospital’s administration (as you see it), it may seem possible that an assertion that patients will come to harm without more funding or more comprehensive support will help to change the situation.

In these circumstances, employing the obligation to be candid with your patients over the risks they face due to the lamentable standards of screening is not prudent. Firstly, you may find yourself forced to prove your assertion that the patients have suffered harm; and secondly, you leave yourself open to the criticism of ‘gaming’; and causing patients’ distress without any solid evidence that harm has been caused. Legislation following the Francis report is likely to consolidate the position of those who report shortcomings in patient care to their trusts, and it is this route that should be used to address shortcomings in services.

Conclusion

Certainly some form of threshold is required to allow us to judge when we are obliged to disclose misadventure to patients or their relatives. We cannot expect explicit advice to be soon forthcoming on the degree of harm required to engage the obligation of candour to patients and their relatives from the government. At present, the threshold for disclosure offered by the GMC is ‘harm or distress’, but is not otherwise defined¹⁴.

Provided doctors understand that a duty of candour is engaged at a certain threshold of harm, (measured as suggested above), then disclosure of misadventure to patients or their relatives becomes simply a matter for clinical judgement, just in the same way as you judge which potential complications of treatment need to be disclosed during the disclosure for consent.

Historical Thesaurus of the Oxford English Dictionary, Oxford University Press, 2009, Oxford
Oxford English Dictionary, Oxford University Press, 1971. Oxford.
Gerber v Pines (1934) 79 Sol Jo 13 (KB)
Melvin v Graham [1973] DRS 659 (Ontario High Court)
Cryderman v Ringrose (1978) 3 WWR 481 (Alta CA)
Kueper v McMullin (1986) 37 CCLT 318 (NBCA)
Lee v South West Thames RHA [1985] 2 All EWR 385 (CA)
Stamos v Davies (1985) 21 DLR (4th) 507 (Ontario High Court)
Naylor v Preston AHA [1987] 1 WLR 958 (CA)
Good Medical Practice (1998) The General Medical Council, London
Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry: Volume 3external link
Hard Truths: The Journey to Putting Patients Firstexternal link
Pearce v United Bristol Healthcare NHST (1998) 48 BMLR 118 (CA)
Good Medical Practice (2013) para 55(a-c) The General Medical Council, London

Clinical candour: The absence of spin