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Peers’ rejection of statutory duty of candour is a missed opportunity, say campaigners

BMJ 2012; 344 doi: http://dx.doi.org/10.1136/bmj.e1116 (Published 14 February 2012) Cite this as: BMJ 2012;344:e1116
  1. Matthew Limb
  1. 1London

The House of Lords has dashed campaigners’ hopes for a new law requiring the NHS to be open with patients about errors that cause harm after peers rejected a proposed amendment to the Health and Social Care Bill calling for a statutory duty of candour.

The amendment, which was tabled by the crossbencher Baroness Masham and had cross party support, was defeated by 234 to 194 votes after a two hour debate on Monday 13 February.

A coalition of patients’ charities and health organisations, led by Action against Medical Accidents (AvMA), had lobbied for the amendment and hoped that there would be enough support to defeat the government.

Peter Walsh, chief executive of AvMA, said afterwards, “This is a bad day for anyone who values patient safety and patients’ rights. It cannot be right that the current situation is allowed to continue, where there is no statutory obligation on a healthcare organisation to be open with a patient or their family over incidents which have caused harm.”

The government, which fought the amendment, has launched a consultation on introducing a “contractual” duty of candour, a standard clause to be included in hospitals’ contracts.

Critics argue that this measure would be woefully inadequate to protect patients’ rights because it would lack statutory force and would not apply to non-hospital care providers such as GPs and dentists.

They also say that it would relate only to incidents already reported to official bodies through the national reporting and learning system and therefore would be “useless” in preventing cover-ups.

Baroness Masham told the House of Lords that the government’s proposals would not enjoy public confidence. She said that any organisation registered with the Care Quality Commission (CQC) to provide healthcare should be under a statutory duty to be fully open with patients when their healthcare goes wrong and causes harm.

This would send a powerful message and would underpin and promote a culture change in the right direction, she said. “Not to do so sends the message that being open with patients is not really important at all,” she added.

Baroness Masham described as a “shocking anomaly” the requirement under CQC regulations for organisations to report incidents that have caused serious harm but not to be open with patients.

She said, “I do feel in this bill patients are not covered enough. Patients and their supporters always have to fight for everything. Why?”

The Labour peer Toby Harris, supporting the amendment, said that families of people who had died while detained under the Mental Health Act reported being denied information from NHS trusts.

“Even more alarming for families was the misinformation frequently provided to them,” he said. Lord Harris said that a statutory duty of candour was essential and that the CQC would not have to monitor every incident to uphold it. “It is simply about the expectation that it will be there as the backstop,” he said.

But the health minister Earl Howe said that a statutory duty was not necessary and would be impractical for the CQC to monitor and enforce. He told the House of Lords, “We don’t think more regulation is the right way to go.”

He said that responsibility for ensuring openness needed to rest “as close to the frontline as possible.” The contractual process was the best way to promote conversations between managers and clinicians and change culture in the NHS, he said.

Earl Howe said that this “would maximise the chance that a lack of openness would be detected and acted upon.”

He said that the contractual duty, if introduced, could be reviewed after an appropriate interval to see whether it was working effectively and whether a lack of reference to a statutory duty was preventing openness.

Notes

Cite this as: BMJ 2012;344:e1116