Government proposes contractual requirement for openness on patient safety

The government is consulting on plans for a new contractual “duty of candour” that would see secondary care trusts financially penalised if they fail to appropriately disclose and apologise for patient safety incidents.

All organisations that provide services under the NHS standard contracts will be required to publish a “declaration of a commitment to openness” that will require them to offer written and face to face apologies within five working days to patients involved in a moderate or severe safety incident, in addition to investigating the incident.

Any provider that fails to publish a commitment to openness will be regarded as being in breach of contract and could sustain a financial penalty each month until the declaration is published.

“A more transparent NHS is a safer NHS where patients can be confident of receiving high quality care,” said the secretary of state for health, Andrew Lansley. “That’s why we are introducing a requirement on providers to be transparent in admitting mistakes. We need to find the most effective way to promote openness and hold those organisations [responsible] who are not open to account.”

The consultation proposals put forward no such openness obligation on GPs, because of the legislative difficulty in changing primary care contracts.

GPs will, however, be at the heart of identifying where patients have not been given sufficient explanation and apology, given that they refer patients to secondary care and also provide follow-up care afterwards, says the consultation document. GPs will be expected to take up any concerns over a lack of openness at secondary care level with the relevant clinical commissioning group, which could then take action against the organisation under the terms of the NHS standard contracts.

As a result, GPs could be perceived as “policing” the openness requirements without having to meet the standards themselves, the Department of Health has acknowledged.

GPs and other clinicians already have a responsibility to raise concerns about patients’ care, so a contractual obligation isn’t the right approach, said Richard Vautrey, deputy chairman of the BMA’s General Practitioners Committee.

“This should be seen as a professional responsibility and should apply to professionals right across the board rather than be treated as a contractual issue, which brings accusations of blame rather than allowing people to learn from situations,” he said. “It becomes more of a witch hunt, and that is something that is completely counterproductive.”

What GPs are not going to become is the police of the NHS, he added. “This shouldn’t be seen as a new responsibility but part of an existing professional responsibility to ensure that we learn from our mistakes.”

More than a million patient safety incidents are reported every year, nearly a third of which result in harm to the patient. The NHS spent £863m on litigation costs from clinical negligence claims last year.

• The consultation is open until 2 January 2012 and is available at www.dh.gov.uk/en/Consultations/Liveconsultations/DH_130400.