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279WH<br />
Candour in Health Care<br />
1 DECEMBER 2010<br />
Candour in Health Care<br />
280WH<br />
[Dr John Pugh]<br />
the problems. Lots of things are going on, and we all<br />
want to applaud and support what the Government are<br />
doing on quite a few issues. We also applaud the previous<br />
Government for having initiated some of these things.<br />
Incident reporting has got better, which is wholly<br />
desirable. Complaints are monitored, which is good and<br />
a move wholly in the right direction. T<strong>here</strong> is more<br />
intensive recommending of procedures. The NHS is<br />
more of a learning body than it ever used to be; good<br />
practice is disseminated, while bad practice is identified<br />
and controlled. T<strong>here</strong> is a general beefing-up across the<br />
piece of NHS guidance—particularly to the secondary<br />
care sector—about things not to do, things that will<br />
help and things that will avoid mishap.<br />
Right across the profession, t<strong>here</strong> is a constant stressing<br />
of professional ethics, as spelt out by the General<br />
Medical Council or whoever. In the past few days, we<br />
have had the phenomenon of publicising outcomes,<br />
with efforts by Dr Foster and, presumably, the Department<br />
of Health to see that outcomes are properly tracked.<br />
Mr Syms: It is interesting that it is sometimes non-NHS<br />
organisations such as Dr Foster, rather than the NHS<br />
itself, that put their finger on the things that go wrong.<br />
The NHS is a wonderful organisation generally, but<br />
most of my constituents would be surprised that t<strong>here</strong> is<br />
not a duty of candour already. One reason why we have<br />
not got one is that we find out that we do not only when<br />
we actually have a problem.<br />
Dr Pugh: Dr Foster is probably doing what the<br />
Government will eventually get around to doing, and it<br />
will presumably prompt the Government to do that<br />
more expeditiously.<br />
In some cases, private organisations may find it slightly<br />
easier than the Department of Health to progress such<br />
matters, but a lot of internal consultations and procedures<br />
will need to take place. Such organisations do not need<br />
to be answerable for how they treat the bodies within<br />
the NHS. A recent key development is the Government’s<br />
willingness to ensure immunity for whistleblowers, and<br />
to encourage whistleblowing when appropriate. That is<br />
a good thing, but t<strong>here</strong> is evidence that whistleblowers<br />
still take genuine risks. For instance, they may not be<br />
sacked or redeployed, but they may experience difficulties<br />
getting employment elsew<strong>here</strong> in the health service. I<br />
know of cases in which genuine whistleblowers have<br />
regretted the professional outcome that has resulted.<br />
Such Government measures are self-evidently to the<br />
good, but they are not the same, equivalent to or a<br />
substitute for a duty of candour. Frankly, not all errors<br />
will be reported and not all complaints will get bottomed<br />
out. As others have said, guidance is ignored, professional<br />
ethics can be flexibly interpreted, and outcomes, whether<br />
published by Dr Foster or others, often come too late or<br />
are too general for individual cases. As I pointed out,<br />
although whistleblowers may have temporary immunity,<br />
that may not last. The Department of Health spoke of<br />
a culture of denial; but if such a culture exists, it needs<br />
to deal with it.<br />
The argument against a statutory duty of candour—that,<br />
in a sense, the simple duty to be open with patients or<br />
relatives when requested is otiose or redundant—is not<br />
sustainable. It cannot be used as a genuine reason for<br />
Government reticence or hesitation. I t<strong>here</strong>fore ask why<br />
the Government are hesitating when they are going<br />
ahead with so much else. A duty of candour is a<br />
disincentive to cover up, and it takes away the risk for<br />
whistleblowers.<br />
Statutory duties are important. I give a parallel example.<br />
Local authority reporting officers, usually directors of<br />
finance, have the job of identifying when a council is<br />
spending money in a reckless and improvident way.<br />
They have always been in that position, but prior to<br />
t<strong>here</strong> being a statutory duty to show the council the red<br />
card they were often bullied by the political establishment.<br />
As a result, they unwillingly had to consent to the<br />
deployment of council resources in ways that were<br />
reckless. Without a statutory duty, the same sort of<br />
thing can happen in health institutions. People can be<br />
put under a lot of pressure, and unless they can say,<br />
“But I have the statutory duty to report this,” they will<br />
find themselves in appreciable difficulties.<br />
If we all believe in transparency—and we do at the<br />
moment—the duty of candour must be part of it. It<br />
keeps patients informed of their genuine situation. It is<br />
entirely in line with what the Secretary of State says<br />
again and again—it is a good quote, which I paraphrase,<br />
about no action being done to me without my consent.<br />
That is the gist of what he says. Why, then, do we<br />
hesitate, given the coalition agreement? The Liberal<br />
Democrats are clearly on board, and many Conservative<br />
Members genuinely support it. Indeed, the coalition<br />
agreement is emphatic.<br />
I have the perception that somew<strong>here</strong> in the background<br />
in the Department of Health the voice of Sir Humphrey<br />
can be heard. Just as the Minister is about to initiate a<br />
statutory instrument on the subject, someone in the<br />
civil service—I do not accuse the Permanent Secretary—<br />
says, “That is a very brave decision, Minister.” The<br />
Minister is thus persuaded that his decision may not be<br />
as positive as appeared at first sight.<br />
If one thinks about it, a candid admission of error or,<br />
worse still, of negligence is intrinsically damaging and<br />
potentially expensive. I have seen stats suggesting that<br />
the potential damage to the NHS, if every person who<br />
had a complaint pursued it legally to the nth degree,<br />
might be a bill of something like £10 billion. That is half<br />
of the internal savings that the NHS needs to make.<br />
However, the stats also show that litigation costs<br />
against the NHS are far less than that. The unnerving<br />
feeling inside the Department of Health is that if it goes<br />
for a statutory duty—I believe that it should—that<br />
picture might change dramatically, as the number of<br />
complaints that end up in successful and expensive<br />
litigation mushrooms.<br />
Tom Brake: Does my hon. Friend agree that, because<br />
the information is now in the public domain, another<br />
consequence might be that the number of accidents will<br />
reduce because people will take the necessary action to<br />
ensure that such things do not happen?<br />
Dr Pugh: One sincerely hopes so. I was a member<br />
of the Committee that considered the NHS Redress Act<br />
2006, which I believe is not yet in force. The sort of<br />
thinking suggested by my hon. Friend was behind that<br />
Act, but the same forces that are delaying the duty<br />
of candour are probably responsible for delaying its<br />
implementation. I cannot recall t<strong>here</strong> being much dissent