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275WH Candour in Health Care 1 DECEMBER 2010 Candour in Health Care 276WH [Tom Brake] for Poole (Mr Syms) on securing the debate and on lucidly and concisely setting out precisely why the Government should look carefully at a statutory duty of candour. I have not heard any effective arguments against it, but I will come on to some arguments from opponents. My hon. Friend set out why the duty would boost public confidence and he rightly pointed out that an apology—as we have probably all experienced—often, first, helps to secure closure for a family if a loved one has been involved in a tragic accident, and, secondly, can defuse a difficult situation that could end up in the courts for years afterwards. He has rightly set out the reasons why a duty of candour is a necessity. My hon. Friend started by quoting from the Liberal Democrat manifesto, and I would expect nothing less in the coalition, so there is no need for me, as a Liberal Democrat, to do so. He also mentioned that the proposal has been carried through to the coalition agreement and, subsequently, into the NHS White Paper, which— although it perhaps does not contain a proposal as specific as a duty of candour—certainly makes it clear that hospitals need to be open about mistakes and always tell patients if something has gone wrong. One development to which he did not refer was the fact that legal aid will no longer be available in cases of clinical negligence, which I hope the Minister will pick up on in her response. I wonder whether that will have an impact and whether that strengthens the case for a duty of candour. As I said in my opening remarks, there are opponents of a duty of candour. A briefing has been sent to Members by the Medical Protection Society, which is a “leading provider of comprehensive professional indemnity and expert advice to…health professionals around the world.” The briefing states that the society is committed to promoting openness in health care and supports the principle in the NHS White Paper that hospitals should be open about mistakes and always tell patients if something has gone wrong. However, it goes on to say that the MPS strongly believes that a change in culture would be more effective than a statutory duty. However, I agree with Action against Medical Accidents, which also briefed me for the debate. It said that perhaps the MPS is missing the point: it is not a question of a duty of candour or a change in culture, as it is perfectly possible to have both. Indeed, the duty of candour is one way of supporting and underpinning a change of culture so that health care organisations are always open and honest with patients when things go wrong. The MPS says that it has been advocating that change in culture, and it is true that a number of organisations have been advocating it for the past 50 years or so, but the desired change has not happened. I am not sure how much longer one can wait for it. There is an issue about guidance and about how seriously organisations take guidance when they are statutorily required to do other things. There is always a risk that guidance gets left aside while organisations focus on statutory duties. As the MPS said, it is correct that there is a professional duty for doctors and nurses to be open with patients in the event of a mistake, but there is a wider issue about there being no statutory duty on all health care organisations to promote and support that practice in their organisations. As my hon. Friend the Member for Poole said, the medical professionals may want to be open but, unfortunately, they are being advised by managers, who are not subject to the same professional codes and perhaps believe that less openness is the best course of action. My hon. Friend referred to the Stafford case, and, as I understand it, it was a legal officer who sought to suppress the doctor’s report in that case. When the General Medical Council was asked to confirm how many cases it had brought against a doctor specifically for a breach of this part of its code, it confirmed that it has not brought a case against a single one. My hon. Friend also referred to the very sad case of Robbie Powell and the sterling efforts that the family have made. I am pleased to see that Mr Powell has joined us here today. Mr James Gray (in the Chair): Order. Tom Brake: I am sure that Mr Powell will be listening carefully to what is said and reading the remarks in Hansard later. That family have played a major role in bringing this issue to our attention and are working with AvMA to promote what they hope will become Robbie’s law. The MPS has provided information that I think works against its case. Its research shows that, at the moment, a third of doctors are not prepared to be open and honest when an accident occurs. If so many doctors feel constrained from or concerned about being open when an accident has occurred, it supports the case for a culture of candour. The MPS also refers to states in the United States where there is a duty of candour and where it perceives that there may be a difficulty in enforcing the duty. In his remarks, my hon. Friend the Member for Poole made it clear that the Care Quality Commission has confirmed that it could and would enforce a statutory duty, and would be in a position to do so, if that were part of its regulations. Another issue that the MPS raised, which we need to respond to, is that the proposed duty would not include near misses. It is arguing against the duty of candour, but at the same time saying that it would be a problem if near misses were not included. I understand that there is a general agreement that, although it might the norm for near misses to be reported to the patient, there would be discretion in cases in which reporting a near miss might cause unnecessary harm. There is recognition that the near miss issue needs to be addressed carefully. One important fact is that, whether it is a duty or a requirement, it must apply to all health care organisations. If there was one thing in the coalition agreement that was slightly remiss, it was the fact that it referred only to hospitals, but there is a wider health body that we need to include. I am sure that the Minister will clarify in her response that the duty of candour, or the requirement, would need to apply not only to the patient but, sadly, if the patient has died as a result of the accident, more widely to include family members. It should not be strictly restricted to the person who had the misfortune of suffering the accident. Dr Pugh: My hon. Friend mentions hospitals, but does he not accept that there are severe diagnostic failures at primary care level? Failures to refer can seriously imperil life, so they, too, need to be encompassed in the duty of candour.
277WH Candour in Health Care 1 DECEMBER 2010 Candour in Health Care 278WH Tom Brake: I thank my hon. Friend for his intervention, and I entirely agree. A duty of candour must not be restricted simply to hospitals, because, as he rightly says, GPs in primary care and other health care providers regrettably also make mistakes. A duty would need to encompass more than simply hospitals, as was initially proposed in the coalition agreement. I entirely support the points that my hon. Friend the Member for Poole made in opening the debate. There is strong, overwhelming evidence in support of a duty of candour. Guidance has not done the job, and a duty of candour really would open up the system and make sure that families and those who have suffered are, and know they are, entitled to receive information about an accident. That would make it much easier for them to arrive at closure. Regrettably, under the current system, people must all too often use great energy and perseverance to extract with great difficulty information that they should be entitled to from the outset. 10 am Dr John Pugh (Southport) (LD): I thank the hon. Member for Poole (Mr Syms) for introducing this important and timely debate and for putting the Government’s dilemma so succinctly and accurately. I also pay tribute to my hon. Friend the Member for Carshalton and Wallington (Tom Brake), who has done as much as anybody in this place to raise the issues of a duty of candour and patient rights. I do not know whether anybody caught Ian Hislop’s programme about do-gooders on the BBC this week, but in it he described the creation of the journal The Lancet. It was set up by a young doctor, who, among other things, wished to expose some of the deficiencies in the appalling surgical practices at that time. He was greeted with wholesale acrimony from much of the medical profession and he was successfully sued. That shows that there is resistance in most businesses and professions to acknowledging error. In an excellent book published some time ago, the sociologist Erving Goffman suggested that people in all organisations—whether in health, business, teaching or policing—have a vested interest in supporting their colleagues, playing as part of a team and working together to minimise the reputational loss that their organisation can suffer. He analysed in particular detail how that can happen in health services right across the world, although it must be said that such things do not always happen for bad reasons. People have duties of loyalty to colleagues and a genuine concern for the organisation to which they belong—for its reputation and, where admitting to errors might seriously imperil it, for its very survival. People inside organisations often recognise that mistakes will happen in their organisations. I have worked in the teaching profession all my life, and I have not always been very overt about my colleagues’ deficiencies, even when that sometimes has involved people suffering from alcoholic intoxication when they should not. There are therefore circumstances in which people cover up. There is also probably a belief in many organisations that the internal resolution of problems is the best way to proceed. However, there is a huge downside; confidence is eroded by simply taking such a path. Worse still, false confidence persists; in other words, there are palpable and demonstrable errors in organisations, but nobody finds out about them until it is too late. Errors remain uncorrected, and poor performance is undeterred or, in some cases, it worsens. That is where the duty of candour fits in, because it will, on a voluntary or simply a request basis, lessen the problems. There is an enormous amount of evidence not only that patients want the NHS to be candid with them, but that the NHS finds it hard to be candid. The Department of Health itself spoke of a culture of denial in the NHS—denial about error and, more seriously, about negligence. No one believes that things will necessarily improve if nothing is done. No willing provider entering the frame will find it easier to be more candid than NHS organisations; in fact, they might have other motives for covering up. They might be answerable to others apart from members of the public, such as shareholders and the like. There is therefore a genuine concern to get things right. Every Member of the House of Commons has probably come across a case, or several cases, where they feel that things have gone badly wrong. In my intervention on my hon. Friend the Member for Carshalton and Wallington, I mentioned primary care. A young man in my constituency—he was a relative of a friend of my daughter’s—went to his GP five times to complain of listlessness, a lack of energy and so on. He was brushed off with suggestions that he needed more rest and less stress. He was told that he perhaps had glandular fever, but no blood test was done. Eventually, when one was done, it was discovered that he had late-stage leukaemia. My children attended his funeral. That clearly was a failing. I am also familiar with the ongoing case in my constituency of a TV soap star with a disabling condition that was brought on by receiving the wrong diagnosis and the wrong treatment. Similarly, I had the long-running case of a lorry driver with severe hypertension who was prescribed Viagra for other complaints, even though Viagra increases blood pressure. The thought of a lorry driver being prescribed a drug that can imperil not only him but members of the public is quite disturbing. A woman in my constituency was falsely diagnosed with cancer and treated for it until, on the spur of the moment, she decided to request a check of the X-rays. Staff then found that the X-rays that they had been using, and which they had assumed were correct, were those of another person. That woman had spent a year in absolutely harrowing circumstances. More disturbingly, we do not know whose X-rays were assigned to her. Presumably, that person was not given the treatment that this woman was wrongly given. Each of those cases leads to a prolonged complaints procedure, involving the ombudsman and the Care Quality Commission. In other cases, as other Members have indicated, there have been accusations that records have been altered. The whole process is inordinately cumbersome and difficult. To some extent, it exists because there is no candour where candour would probably be the solution. On top of that, there are the systemic failures—the Mid Staffordshires, the Bristol heart babies and so on. To be fair, the Government recognise that this all comes with the territory of running the modern health service, and they are, to some extent, endeavouring to deal with
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