A new legal duty on the NHS to tell patients about care mistakes looks set to be limited to organisations rather than individuals, and may also be restricted to serious incidents.
More details on how the proposed statutory “duty of candour” will work and whether it will extend to individuals is expected in the government’s much anticipated full response to the Francis report, due this week.
In his report into care failings at Mid Staffordshire Foundation Trust, Robert Francis QC recommended that both organisations and individuals should face criminal sanctions if they failed to tell patients when mistakes had been made in their care.
A comprehensive duty of candour covering both clinicians and their employers is backed by Nursing Times, as part of our Speak Out Safely campaign.
However, it is widely expected the government will stop short of extending the duty to individuals.
Ministers have also recently suggested they intend to restrict the legal duty to only the most serious incidents. Health minister Lord Howe hinted this would be the case during a parliamentary debate last month.
But the charity Action Against Medical Accidents has warned that limiting the duty in this way would “legitimise cover-ups”. Its chief executive Peter Walsh described such a move as a “backwards step”.
He said: “It effectively legitimises cover ups of anything less than the most severe injury… at the time [something goes wrong]… how do you know whether the incident is going to lead to a certain degree of severity?”
His charity has been campaigning for a legally enforceable duty of candour for more than 10 years and is backing Speak out Safely.
Mr Walsh said he had made a “last ditch attempt” to persuade health secretary Jeremy Hunt to extend the duty to incidents where only moderate harm was caused. “We are doing all that we can to change [Mr Hunt’s] mind, but it is really on a knife-edge,” Mr Walsh said.
In the anticipated absence of a statutory duty on individuals, the charity is also calling on the government to ensure personal accountability by requiring organisations to take action against healthcare professionals found not to have been open with patients.
Mr Walsh added: “It is no good having a duty of candour that excludes any individual responsibility. At the very least, organisations need to be required to deal appropriately with rogue individuals who prevent them from meeting their duty.
“That, coupled with a more robust approach from the General Medical Council and the Nursing and Midwifery Council would help bridge that gap,” he said.
The government is expected to accept the vast majority of the 290 recommendations made Mr Francis in February.
However, those it rejects are likely to be the ones that involve the most expense or upheaval, such as the regulation of healthcare assistants.
Visit our website this week for full coverage of the government’s response to the Francis report.
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