Admitting when mistakes are made

How has the law changed?

Among the results of the Francis report into the failings at Mid Staffordshire NHS Foundation Trust was the introduction of a statutory duty of candour aimed at obliging NHS organisations in England to be open and honest with patients when things go wrong.

The law applies to organisations, not individuals. Breaches are a criminal offence, which can be punished by fines, but the real damage is reputational. Breaches do not depend on the degree of harm a patient may have suffered: the offence is to have breached the regulations. This is akin to driving at 100 mph on a motorway, which is an offence even if no accident occurred.

But aren’t doctors already obliged to be open and honest with patients?

Yes. A professional duty of candour has existed for many years and is enforceable by the General Medical Council. The GMC and the Nursing and Midwifery Council recently issued new guidance on what this means in practice.3

Critics such as Action against Medical Accidents (AvMA) argue that this obligation was ineffective because the GMC was inconsistent in enforcing it, and doctors were under pressure from hospital management not to speak out. “Doctors were told, ‘Don’t say anything about it’ when things went wrong,” says Peter Walsh, chief executive of AvMA. “It put them in an impossible position.”

So the statutory duty of candour now puts managers in the same position as doctors?

Not quite. The thresholds for action in the two systems are different. The statutory code covers “notifiable safety incidents,” defined by the Care Quality Commission (CQC) as those causing death, severe harm, moderate harm, or …