UK government wants to expand duty of candourBMJ 2013; 347 doi: https://doi.org/10.1136/bmj.f6972 (Published 20 November 2013) Cite this as: BMJ 2013;347:f6972
All rapid responses
The UK government recently released its full response to the inquiry of events at Mid Staffordshire NHS Foundation Trust. It wholly or partially accepted 281 of the 290 recommendations made by Robert Francis QC in his final report.[1,2] The interesting aspects of the response are in the recommendations that the government only partially accepted - particularly with regards to medical training and leadership in the NHS.
Doctors are highlighted in both the report and the government response as a source of leadership that should be harnessed and nurtured. With this in mind it is peculiar that the government response was keen to promote the development of a “fast-track leadership programme” for senior clinicians. The implied notion that managers can be built after an intensive course is contradictory to the view, within the same document, that doctors who wish to become leaders should be supported early on and throughout their careers.
The Francis report suggested that a facility should be created with the aim of training healthcare leaders. The ultimate goal being a form of accreditation scheme, that eventually would provide “the basis for a regulatory regime.” The government accepted this in part stating that it did not accept the need for a medical leader to have a formal accreditation. However it felt that non-mandatory programmes from the NHS Leadership Academy such as the fast-track leadership programme were needed and would develop leaders with the right skills and behaviours.
Accreditation is defined as: “A means of assessing, in the public interest, the technical competence and integrity of the people or organisations offering services.”
One would assume that it must be in the public interest, that people who lead and organise services in the NHS are competent. It could also be assumed that it would also be in the public interest that these leaders have their competency assessed by others fit to do so. If this is not the case then why are doctors choosing to develop leadership skills and competencies, rather than jumping into leadership roles?
Some doctors will innately have aspects of these skills and competencies, and others will have to learn. In any case, all must develop these to a particular standard, maintain them and if possible improve upon them. The creation of the Faculty of Medical Leadership and Management was due to recognition that there are a growing number of doctors who wish to develop leadership skills and become involved in management. This recognition of the need of doctors to learn and maintain skills by is explicit agreement that there are standards that need to be achieved in leadership - fertile ground for the creation of a formally accredited programme and regulator for healthcare leaders.
The UK government currently doesn’t feel that the accreditation and regulation of leaders and managers of healthcare services is warranted. This begs the question - why are doctors, and now nurses, who deliver these services subject to both regulation and accreditation in the form of revalidation?
1. Department of Health. Mid Staffordshire NHS Foundation Trust public inquiry: government response. 19 Nov 2013. http://francisresponse.dh.gov.uk/
2. Mid Staffordshire NHS Foundation Trust Public Inquiry. Final report. 6 Feb 2013. www.midstaffspublicinquiry.com/report
3. NHS Leadership Academy. Professional leadership programmes. http://www.leadershipacademy.nhs.uk/grow/professional-leadership-program...
4. Faculty of Medical Leadership and Management. http://www.fmlm.ac.uk/
Competing interests: I am a member of the Trainee Steering Group of the Faculty of Medical Management and Leadership
The UK government’s wish to enlarge its proposed new statutory duty of candour - for the hospitals required to tell patients or their relatives that something has gone wrong (1) - clashes with the well-established human right to silence.
This right was based on a legal maxim in Latin: “nemo tenetur prodere (accusare, detegere) se ipsum”. It states that no one is bound to incriminate or accuse himself and it was introduced for the protection of the people against the exercise of arbitrary power.
The authorities on English legal history are all agreed that this right is comparatively recent in the Common law; it is originated in the 1600’s (2).
In England the privilege to refuse to answer incriminating questions has been accorded to accused persons since 1649 (King Charles Trial, 1649, 4 S.T. at p. 1101) in reply to the odium excited by the proceedings of Star Chamber, in which the examination of the accused upon oath was the central feature (3).
Very recently, Erwin N Griswold, Dean of the Harvard Law School, declared: “It seem quite clear that we owe the privilege of today to ‘Freeborn John Lilburne’. […] In 1637 he was haled before the Star Chamber; […] He refused to take the oath to answer truly, and the Council of the Star Chamber condemned him to be whipped and pilloried, for his ‘boldness in refusing to take a legal oath’. […] This event seems to have been enough to establish the privilege” (4).
Common law has developed no fewer than six separate immunities loosely collected together under the general umbrella of right to silence (5) and suitable for protecting all citizens (not only the suspects or the defendants) “from abuse of power by those investigating crimes […]; what all share in common is that they relate to the freedom to be silent in the face of questioning […]” (6).
In particular, among the six mentioned immunities, Lord Mustill (5) identified “a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies” and “a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them” (7).
Thus, also the legal persons may be appeal to the right to the silence: in Orkem v Commission of the European Communities (8) the Commission had to admit that it could not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement, which it is incumbent upon the Commission to prove.
This rule applies to all types of criminal offences without distinction from the most simple to the most complex (9).
The public interest cannot be invoked to justify such a marked departure from one of the basic principles of a fair procedure.
The patient has the right to know if a doctor has committed any diagnostic or therapeutic error: fair and good.
Also the doctor (and the hospital) has (have) the right to silence to avoid potential damaging consequences (not only economic) from his (their) disclosure, especially when the doctor lives in a country where medical errors were still subjected to criminal law and its sentences which jail the doctor who makes a fatal mistake (10).
If medical misadventure still orbits criminal law, it’s utopian to expect doctors to tell the truth.
No-fault legal systems for iatrogenic injuries are a viable alternative to the criminal law scenario.
These systems are not a panacea, but they may be a starting point, because they recognize the nature of medical fallibility and consequently distinguish among culpability, injury and compensation (11).
Where “no-fault” systems were adopted, doctors are certainly freer to express themselves to their patients, without reserve, and to display their personal errors, making them public in international journals, as the Australasian and Scandinavian medical experience has been showed for time.
1. Dyer C. UK government wants to expand duty of candour. BMJ 2013;347:f6972;
2. Horowitz G. The privilege against self – incrimination. How did it originate? Temple Law Quarterly, 1958; 31, 121;
3. Holdsworth W S. A History of English Law, London: Methuen & Co., Ltd., 1922-1926; 199;
4. Griswold E N. The 5th Amendment Today. Cambridge: Harvard University Press, 1955; 2, 3;
5. R. v. Director of Serious fraud Office ex p. Smith, 1993, AC 1, at 30 per Lord Mustill;
6. Mirfield P. Silence, confessions and improperly obtained evidence. Oxford: Clarendon Press, 1997; 15;
7. Owusu-Bempah Abenaa. Penalising defendant non-cooperation in the Criminal Process and the implications for English Criminal Procedure. See:
http://discovery.ucl.ac.uk/1364564/1/Penalising%20defendant%20non-cooper..., look at page 135;
8. Judgment of the Court of 18 October 1989. - Orkem v Commission of the European Communities. - Competition - Commission's investigative powers - Rights of the defence. - Case 374/87. See: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61987J0374:E..., look at point 35;
9. Saunders v. United Kingdom, 1996-VI Eur. Ct. H.R. 2044, 2065;
10. Dyer C. Surgeon jailed for manslaughter after postponing surgery on man with perforated bowel. BMJ 2013;347:f6722;
11. Hubbard C. Culpability and Compensation in Canadian Health Care: Much Ado About No-Fault?. MJM, 1999; 5: 111-116.
Competing interests: No competing interests