Duty of candour could threaten patient trust: Society

Proposed legislation for a duty of candour in healthcare could duplicate existing processes and potentially threaten the trust between patient and healthcare practitioners, according to the Law Society of Scotland.

Speaking ahead of giving evidence to MSPs on the proposals on behalf of the Society, Alison Britton, convener of the Society’s Health & Medical Law Committee, said the Society supported the duty in principle but more clarity was needed as to when it would apply.

Holyrood's Health & Sport Committee is currently examining the Health (Tobacco, Nicotine etc and Care)(Scotland) Bill. In relation to smoking it imposes further controls on smoking and the use of e-cigarettes, measures that the Society fully supports. Separately, the proposed duty of candour would create a legal requirement for health and social care organisations to inform people when they have been harmed as a result of the care or treatment they have received, and to provide support to all involved. 

Professor Britton, who also teaches at Glasgow Caledonian University, said the Society embraced the duty of candour in principle, "however we think more clarity is needed as to when it would apply so as to be sure that it was proportionate and fair".

She continued: “We believe that as a starting point, there should be a robust review of existing procedures to confirm whether or not the proposed legislation is really required or whether there are other more effective ways, to enhance openness and dialogue. Has there been persuasive evidence that legislation is required?

“We are concerned some of the bill’s proposals would be resource intensive and possibly cumbersome and impractical to apply. For example, the duty of candour would come into effect when, in the reasonable opinion of a registered health professional, an 'unintended or unexpected incident' results in a particular outcome. The professional giving the opinion must not have been involved in the incident. This could mean that if a patient had an unexpected adverse reaction to a drug, the whole hierarchy of the medical team treating that patient – from junior doctors to the consultant – would be barred from giving an opinion. It is easy to see the practical difficulties that could arise.

“We also believe that there needs to be more clarity in the bill on exactly what an ‘unintended or unexpected incident’ means. Health care involves a myriad of outcomes which are personal to individuals, depending on age, general state of health, genes, nutrition and social factors to name just a few."

Professor Britton added that the wide scope of the concept of an unintended or unexpected incident in this context could potentially lead to the reporting of a large number of ‘incidents’.

“We absolutely support the need for vigilance and understand that transparency is important, however informing patients about every slight incident, even if there was no harm, may have quite the opposite intended effect and cause patients to lose confidence in hospital and care.

“Any additional legislation should add value to what is already in existence, and different forms of statutory regime need to work in harmony and enhance good communication and practice.

“We also question whether the regulations for the duty of candour procedure should include an ‘apology to be provided by the responsible person’ to the patient and if a member of the public would feel that an apology compulsorily provided by statute is sincere or met their needs.

She concluded: “We fully appreciate the intentions of the bill, but we need to be sure that it will bring the desired improvements without creating unnecessary additional bureaucratic burdens or that it simply duplicates patient protections that are already in place.”