Legal duty to tell the truth must apply to all

‘How can you trust a doctor who doesn’t tell you the truth?’ So said Maria Shortis, founder of the Bristol Heart Baby Action Group, 15 years ago. Will Powell, father of Robbie, agrees. He’s spent 23 years, and all his savings, trying to get the truth about how and why Robbie died. He was promised a public inquiry, which never materialised, although he did make it to the European Court of Human Rights in 2000, which judged that ‘doctors have no (legal) duty to give parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records.’ (Eye…. )

For the 65 years of its existence, NHS organizations and staff have not been in breech of any statutory rule if they cover up a medical accident. The Bristol Inquiry recommended that ‘when things go wrong, hospitals and healthcare professionals have a duty of candour: to be open and honest.’ In 2003, chief medical officer Liam Donaldson observed ‘to err is human, but to cover up is unforgiveable’ and recommended a legal duty of candour. Labour resisted. Professional codes of conduct laid out by the GMC and NMC for clinical staff make telling the truth a duty, but these have been so widely ignored, not least at Mid Staffordshire, that Robert Francis QC recommended both a statutory duty of candour and criminal liability  if serious death or harm results from a breach of ‘fundamental safety and essential care standards.’ It would also be a criminal offence to make false statements in a trust’s quality accounts or to a regulator, and to knowingly obstruct another in the performance of these statutory duties.

Francis makes a convincing argument for candour. ‘How can patients and relatives be involved in their care and make informed choices if they are not told what has happened to them and the reasons why?’ He also believes that if telling the truth became a legal obligation in the NHS, it would give whistleblowers the authority, confidence and support to speak up, and it would become legally impossible to gag them.

The government’s response thus far has been an acceptance that gags on whistleblowers have to go, but it is far from clear whether those who have already taken gags will not be legally threatened if they now break them. And the whistleblower support group Patients First believe they’re still being used in various guises as lawyers are employed by NHS trusts to protect and defend their corporate and financial interests, not to be open and honest. There will also be a contractual and statutory duty of candour for NHS organizations to tell the truth to patients and relatives, but no such legal duty yet for individual members of staff. And there will be legal sanctions on NHS organizations that deliberately withhold information or mislead. The government is awaiting the outcome of the Berwick safety review before deciding on criminal liability for a serious breach of standards.

Whatever legislation emerges, fair and meaningful enforcement would require ethical behaviour at every level of the NHS, including its lawyers, and the criminal sanctions would need to extend up to managers and politicians, not just clinical staff. The 111 disaster is a great example. Coordinating out of hours (OOH) care is complex and a joined up service staffed by clinicians is critical for safety. Instead, Andrew Lansley fed the OOH service to the market and put it out to tender. There are now over 40-odd independent call centres, who are making a profit margin by manning the phone lines not with nurses as NHS Direct did, but with ‘non-clinicians’, who are trying to sort out urgent from less urgent calls using algorithms. NHS staff warned of the dangers and called for a slow down, the government’s response was to rush it through while the PCTs were in meltdown and now, with at least 3 deaths and 22 serious incidents  alleged to have occurred, the blame is passed from Dr Barbara Hakin at NHS England back to the GP commissioners who had no say in the services when they were introduced but must now sort out the mess. In response, GP leaders are kicking the blame back to the government, Hakin and the rest of the NHS England board.

If death and harm has occurred in the 111 cock-up, who should the Francis recommendations criminalise under these circumstances? And who’s version of the truth should patients and relatives accept? Francis rightly observed that there needs to be a relentless focus on the patients’ interests and the obligations to keep patients safe and protected from substandard care’ but no senior manager or politician was held accountable for Mid Staffs. It remains to be seen whether the proposed criminalisation of appalling care in the NHS reaches all the way to the centre. Don’t hold your breath.