NHS building

Health Care Providers’ Legal Duty to Be Open and Honest with Patients

By John Tingle

Last September, the first ever prosecution of a National Health Service (NHS) trust for failure to comply with the regulation concerning duty of candor was adjudicated.

University Hospitals Plymouth NHS Trust was ordered to pay a total of £12,565 after admitting it failed to disclose details relating to a surgical procedure and to apologize following the death of a 91-year-old woman.

Duties of candor require that patients be informed of adverse events as soon as possible after they occur. These duties serve as mechanisms to help balance power dynamics in health care and to advance patient rights. In England, duties of candor are contained in the professional codes of ethics of doctors and nurses, and in statutory regulations.

The National Health Service in England has a statutory duty of candor, with the possibility of criminal sanctions being imposed for breach. This is an important mechanism for safeguarding and advancing patient rights. The statutory duty of candor was introduced in 2014 as Regulation 20 of the Health and Social Care Act 2008.

The regulation puts a legal duty on all health and social care providers to be open and transparent with people using services, and their families, in relation to their treatment and care. The regulation also sets out some specific actions that providers must take when a notifiable safety incident occurs, including providing support to the patient, as well as an apology.

The Care Quality Commission (CQC), the independent regulator for health and social care in England, has recently updated advice regarding duties of candor. Further advice on the duty of candor is also available through the patient safety and justice charity, AvMA (Action against medical accidents) and NHS Resolution.

The CQC gives a more specific explanation of what is defined as a “notifiable safety incident” and gives examples covering a range of resources. It also specifies that “the apology required to fulfil the duty of candour does not mean accepting liability and will not affect a provider’s indemnity cover.”

In 2009, the seminal National Patient Safety Agency (NPSA) report, “Being Open,” stresses the importance of health care staff being open and honest with patients when adverse health care events. Patient safety events occur. Acknowledging this fact, the report stresses the importance of discussing patient safety incidents promptly, fully, and compassionately.

The report states that openness and honesty may help to prevent the escalation of such events to the level of formal complaints and litigation claims.

In the health care context, patients suffer a power imbalance. They have an urgent need for the professional knowledge of the doctor or nurse. They are not in their usual environment, and are perhaps thinking the worst about their condition. Doctors and nurses, conversely, are in their normal working environment, and patient consultations are a normal part of their daily work.

The NHS Constitution for England recognizes this issue and attempts to re-balance the power dynamics in health care:

“4. The patient will be at the heart of everything the NHS does.

It should support individuals to promote and manage their own health. NHS services must reflect, and should be coordinated around and tailored to, the needs and preferences of patients, their families and their carers.”

But further mechanisms are needed to help redress this inherent power and influence imbalance. Good patient communication strategies are essential to ensure the safety of care. These strategies are equally important when things go wrong and an adverse health care incident occurs.

Statutory duties of candor are one such tool to promote patient safety. Professional health duties of candor also work to assist in this regard. These strategies all help to balance power in health care encounters. We can expect the CQC to take more action in enforcing the statutory duty of candor.

John Tingle

John Tingle is a regular contributor to the Bill of Health blog. I am a Lecturer in Law, Birmingham Law School, University of Birmingham, UK; and a Visiting Professor of Law, Loyola University Chicago, School of Law. I was a Visiting Scholar at Harvard Law School in November 2018 and formerly Associate Professor at Nottingham Law School, Nottingham Trent University in the UK. I have a fortnightly magazine column in the British Journal of Nursing where I focus on patient safety and the legal aspects of nursing and medicine. I have published over 500 articles and a number of leading texts in patient safety and nursing law. My current research interests are in global patient safety, policy and practice, particularly in African health care systems. My most recent publication is: "Global Patient-Safety Law Policy and Practice," edited by John Tingle, Clayton O'Neill, and Morgan Shimwell, Routledge 2018.

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