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.

All eight regulators that scrutinise the clinical professions jointly set the threshold for us all; that ‘if something goes wrong’, we need, in effect, to have a dialogue with the patient, or their family, providing an explanation and/or apology, as appropriate.

In most instances, sharing one’s regret and sympathy that something has gone wrong for the patient may in reality be the most tangible human response to their distress. Our clinical duty is purely a professional one; the government refused to create a statutory duty that could be imposed on clinicians. Naturally, if we fail to be candid to patients, we may have to answer to our regulator.

Quite separately, the government’s response to the Mid Staffs report was to impose a statutory duty (on all health and social care organisations that are registered with the CQC) requiring the organisation, in our case the hospital Trust, to be honest and open with patients or their families when something goes wrong that appears to have caused or could lead to significant harm. It is due to this statutory requirement that we have a now well-established mechanism for ‘duty of candour'.

Failure to comply with duties usually results in a penalty, but this is the first year we have seen any levied in England. The CQC is empowered to issue fines, or embark on a prosecution, likely to inflict a grave wound on a hospital’s reputation. The first fixed penalty notice for £1250 was issued to a hospital in Bradford for failing to issue a timely explanation and apology to the family of a child whose diagnosis had been delayed, and opportunities for hospital admission missed. The CQC’s action did not relate to the clinical care, during which the child died; the fine was imposed solely for failure of candour.

In October, a Cornish hospital was issued with separate fixed penalty notices totalling £16,250 for seven instances where the statutory duty of candour relating to safety incidents was not followed. These included cases of diagnostic delay, losing opportunities to manage deteriorating patients and medication errors. The Trust accepted that the communications with patients and family were, put simply, not good enough. On thirteen occasions, the Trust failed to notify the patient or family of the available facts as soon as was reasonably possible.

More recently, the conclusions of an inquest asserted that a hospital in Lincoln had not carried out any investigation into the death of one of their patients, nor contacted her family in line with its duty of candour. The coroner was concerned that despite serious failures in the care of their patient, the Trust had not taken the opportunity to learn from them. A relevant medical witness (presumably requested by the court to attend) had not been sent to the inquest, nor had a Trust representative attended the inquest to hear the coronial conclusions.

As a result, the CQC proposed a prosecution of the Trust. Doubtless the hospital was relieved when the CQC could not adduce sufficient evidence, and the prosecution was not pursued. But it can be seen in all three actions that timely provision of information to patients and/or their families and engagement with all relevant actors in course of safety investigations may well have avoided the scrutiny of the CQC.

But above all else, in each case the families involved would likely have valued contact with the hospital and exchange of information so they could have better understood how and why their loved ones were harmed; what was the ‘something’ that went wrong, and why did that happen? This really is not a difficult concept to understand, and to empathise with. The CQC, on behalf of patients, has put a price on candour.

Robert Wheeler
Department of clinical law
November 2019

Patients value candour