Why does it always have to be such a battle?

by Peter Walsh

Chief Executive of AvMA
September 2015

Why AvMA had to threaten a judicial review to correct serious flaws in the Duty of Candour

We might have been excused for cracking open a bottle of champagne or two to celebrate when it was first announced that there was finally to be a statutory Duty of Candour in England. Every government and every Secretary of State had refused to give serious consideration to introducing such a duty over the 24 years since the heroic efforts and sacrifices of the Powell family had graphically illustrated the need following the alleged cover-up of the circumstances of their son Robbie’s death. (Hence the name of our campaign – “Robbie’s law”). Even recommendations from the Health Select Committee in 1999 and the chief medical officer Sir Liam Donaldson in 2003 failed to convince them to take action. They preferred to frown on cover-ups but continue in effect to tolerate them. Jeremy Hunt’s eventual conversion as a result of AvMA’s campaign, bolstered by Sir Robert Francis’s recommendation from the Mid Staffordshire inquiry, which we worked so hard to get, was an historic breakthrough.

However, before this the Government had tried to palm us off with a so-called ‘contractual duty of candour’ – a standard clause in contracts with NHS trusts. Even when the statutory duty was accepted, there was an attempt to restrict it only to cases of death or permanent severe disability. We had to persuade Sir Norman Williams and David Dalton as well as Jeremy Hunt that any significant harm had to be covered, which to their credit they fully accepted. Then we had to persuade the Department of Health that the definition of the threshold for the Duty of Candour used in the CQC regulations had to include incidents that “could lead to” significant harm – not just be restricted to cases where the harm was already clearly evident. They eventually agreed and this was included in the definition applying to NHS bodies (trusts and health authorities) which came into force in November 2014.

However, to our horror, when the draft regulations for primary care and private healthcare were published the Department of Health had created a significantly different definition of a ‘notifiable safety incident’ to apply to NHS primary care and private healthcare providers – something there had been no consultation at all about. Whether due to ‘cock-up’ or ‘conspiracy’ this means that with effect from 1st April 2015 NHS primary care providers and private healthcare providers are not legally obliged to tell patients about incidents which could lead to significant harm, whereas NHS trusts are!

We tried very hard to persuade ministers not to go ahead with this two tier approach, pointing out it is a recipe for chaos and confusion as well as unfair to patients and inconsistent with the NHS Constitution. However they pressed ahead. Only after we had served the Secretary of State with a letter before action threatening a judicial review did we succeed in securing a commitment to consult on creating one consistent definition of the Duty of Candour – the one which currently applies to NHS bodies – applying across sectors. Thankfully this will now happen and hopefully the situation will be put right by early 2016. But it really shouldn’t be such a struggle to get the right attention to detail over something so fundamentally important as the Duty of Candour!