Current priority – individual duty of candour with criminal sanctions
BMA NI has submitted a response to the consultation but it is important that the views of individual doctors are also put forward. The consultation is open until 31 August and you can use our campaigning tool to submit your own response.
Our response is based on evidence from key patient safety experts, the themes from our Better Culture Better Care conference and, most importantly, direct engagement with our wider membership.
In general practice, medical uncertainty, safety netting and good communication are core to our everyday practice. When the fear of criminal prosecution is hanging over every decision made, it can only erode this relationship.BMA survey response from a GP member
- The statutory organisational duty of candour to embed a culture of openness and honesty will be a welcome addition to the long-established existing professional duties. But we do not agree with the addition of criminal sanctions to this duty.
- We do not support the additional individual statutory duty of candour as doctors are already subject to a duty of candour, criminal and civil sanctions and other regulatory and employment sanctions.
- International evidence suggests that criminalising healthcare and staff will not enable the creation of the culture needed for openness and honesty.
- Implementing this in isolation of the current processes, procedures and the lack of understanding of clinical practice will cause irreparable damage.
- There is now a need in Northern Ireland to position this within a wider patient safety framework that reflects BMA NI model of cultural change to include:
- freedom to speak up guardians
- extending the work of the HSSIB to Northern Ireland
- fit and proper person tests
- regulation of medical managers.
It will discourage staff from working in the health service in Northern Ireland when there are other options in the UK and beyond. It will encourage early retirement and promote a worse blame culture, less of a learning environment and increase defensive medicine and fear culture which is already bad enough in trusts.BMA survey response from a SAS doctor member
The consultation explained
Candour means that you must be open and honest with patients when something goes wrong, that causes or has the potential to cause harm and distress.
This means offering an apology, putting matters right if possible, and explaining fully and promptly what has happened and the likely effects of your actions.
This is detailed in the GMCs Good Medical Practice which you are bound by.
Sanctions, in law and legal definition, are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations.
Criminal sanctions can take the form of serious punishment, such as corporal or capital punishment, incarceration, or severe fines.
The criminal sanctions outlined in the consultation refer to breaches of the duty of candour as punishable by fines, but it has not determined what these should be.
This would mean that as well as your current duty of candour – to be open and honest under Good Medical Practice, criminal sanctions would apply to you if you breached this duty.
The proposals for an individual duty of candour with criminal sanctions would apply to all staff including, but not limited to, doctors - regardless of their grade.
For you personally, you would be under a threat of criminal sanctions if you made mistake and did not report it or tried to cover it up. This would also apply if you witnessed a colleague making a mistake and did not report it.
You could be fined, face sanctions such as temporary suspension from the GMC register, be placed on restricted duties, or face disciplinary action from your employer under Maintaining High Professional Standards. You may also have increased indemnity charges going forwards.
Depending on the seriousness of the breach, you could also be struck off from the GMC register.
We have heard from our members that, if criminal sanctions are introduced, that they are likely to have to make more referrals for patients and put them through more procedures. This would be to protect themselves from potential threats of being accused of a misdiagnosis or incorrect treatment.
This has the potential to create a negative working environment and culture as all staff would be more aware that their work was being analysed and monitored in a negative way, and be afraid that they would be reported if they made a simple mistake.
I feel like I will begin to practice ‘defensive medicine’ whereby I am so worried about the consequences of potentially making the wrong decision that I will end up being overly cautious and over investigating or overtreating patients. I also feel that learning from serious adverse incidents will be less of a fact-finding mission and feel more like a blaming exercise.BMA survey response from a junior doctor member
Other lobbying activities
Current priorities for the BMA in Northern Ireland include:
- Brexit – we want to make sure that Northern Ireland’s unique position is considered
- workforce planning – we need the workforce plan implemented as a matter of urgency. Doctors’ terms and conditions must reflect the high level of training, skills and expertise they have. We need to make Northern Ireland an attractive place for doctors to work and live
- transformation – properly funded transition arrangements for the transformation programme that will address pressures currently preventing the delivery of timely, high-quality and safe care
- general practice – the service needs stabilising and there needs to be adequate long-term funding
- public health – investment must be made to tackle health issues such as obesity and the misuse of alcohol, including a minimum unit price for alcohol. The funds generated through the sugar tax need to be ring-fenced for health initiatives
- organ donation – we want to see a soft opt-out system introduced in Northern Ireland.
‘Health and Wellbeing 2026: Delivering Together’ is an ambitious programme launched in October 2016 to transform the way health and social care is delivered in Northern Ireland. It outlined what changes needed to happen to improve health and social care services in Northern Ireland.
The programme was informed by the report of an expert panel led by Professor Rafael Bengoa. This report and those that preceded it came to the same conclusions and recommendations, particularly around the delivery of acute care and the need for services and – crucially – resources, to shift to primary/community care in order to best meet patients’ needs.
Reviews are ongoing to ascertain how services need to change and the programme is developing an elective care plan to modernise and transform the delivery of elective care services by addressing the root causes of excessive waiting times – rather than through temporary, short-term approaches.
A workforce plan has also been written and it aims to ensure there are enough staff in the service, that staff feel valued and supported, and that there are systems to monitor workforce trends and address any issues quickly.
As the transformation programme progresses, we are responding and commenting on behalf of members to consultations and departmental announcements.