Duty of candour law will create confusion

by Alan Stout

Individual duty to be open may lead to a more risk-averse medical profession

Location: Northern Ireland
Last reviewed: 16 June 2021
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The proposal for a statutory organisational and individual duty of candour with criminal sanctions is a sensitive and important issue for everyone involved and it is critical that we all fully understand its implications for the profession.

The proposal is one of the recommendations from the O’Hara report from the hyponatremia inquiry involving the tragic death of five children.

We fully support the development of an open, honest, learning and improvement culture and strongly feel that this should be part of everyone’s day-to-day practice.

There should be a safe space for discussion and reflection, honest and open conversations with colleagues and most importantly with patients and families, and we should all be prepared and strive to learn and to improve.

Any deliberate attempt to cover up, to tamper with or to hide evidence, or to deliberately lie or to conceal information or facts should be dealt with appropriately and punished according to the law and we believe that this criminal recourse already exists. To add another layer to this would create confusion for patients and healthcare professionals.

The main difficulty with this proposal is combining the two. A statutory individual duty of candour with criminal sanction risks achieving the exact opposite to the primary aim of an open, learning and honest culture.

Individuals will become so concerned about implications that they will be less likely to own up to even simple mistakes, they will become nervous and risk adverse and the whole dynamic of medical care and of general practice will change.

Reflecting on my own work, general practice is unique because we will have both and individual and an organisational (through the organisation of the practice) duty, with criminal sanction associated with both.

At best this will result in a nervous, over cautious risk averse system with significantly increased prescribing, referral and reviews.

At worst it will produce a toxic system, looking for excuses and looking to pass blame, which will stagnate in records, in checks, in meetings and in legal process which will create significant and lasting harm to patient care.

It is vital that the process and the aim that we all agree with does not become the problem.

Alan Stout is chair of the BMA Northern Ireland GPs committee