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Telling the truth about medical harm

Medicine Balls

Phil Hammond

Tuesday, 05 February 2013

doctor conversation.jpgDo you always tell patients if they have been harmed by their health care? It sounds like the right thing to do, but the reality is more complex. We know from research in many countries that around 1 in 10 patients are harmed by hospital care, and the sicker you are the more likely you are to suffer an adverse event. We’re not sure what the figure is in primary care, but it’s likely to be similar. It’s also likely that many cases of harm pass us by without us even noticing. Medicine is fast moving and the demands are huge, and we often don’t have the time to reflect on whether a patient may have been harmed by care, particularly as patients often won’t bring it to our attention. And often the harm isn’t clear cut – there is significant doubt as to what may have caused it.

When we do spot harm, or likely harm, the fear is always that we may be blamed or punished if we own up. I’ve sat in many significant even meetings over the years, both in hospital and general practice, when serious harm has gone unnoticed by patients and relatives and the response has been a collective sigh of silent relief, rather than a sense of duty to tell the truth. But all this may change if the Francis Inquiry into care failings at Stafford hospital recommends a statutory – i.e. legally enforceable – duty of candour.

Back in 2001, the Kennedy Inquiry into the high death rate for babies undergoing heart surgery in Bristol concluded that ‘when things go wrong, hospitals and healthcare professionals have a duty of candour: to be open and honest.’ The culture of blame and bullying in the NHS prevented this from taking root and in 2009, the Health Select Committee first proposed a statutory duty of candour, following a long-standing campaign by Action Against Medical Accidents and the relatives of Robbie Powell. Labour resisted legislation, as have the coalition, opting instead for a weak contractual obligation for providers to publish a ‘declaration of a commitment to openness’ on their website, or face a fine. The ‘principle of openness’ has also been enshrined in the NHS Constitution, but is not legally enforceable. The bereaved relatives at Mid Staffs are hoping Robert Francis QC, himself a negligence lawyer, may force the NHS to finally be honest about the harm and distress it causes, often lasting decades.

In 1990, 10 year old Robbie Powell died in Morriston Hospital, Swansea after many doctors failed to diagnose his Addison’s disease. 22 years later, the Welsh Government published a report into his avoidable death and the lessons that need to be learned1. The Health Authority admitted liability and offered a payment of £80,000 in respect of the death, but the Court of Appeal judged that doctors were not legally obliged to explain the circumstances surrounding the death of Robbie to his parents. The Powell family was refused leave to appeal to the House of Lords and was unsuccessful at the European Court of Human Rights, which in 2000 endorsed that ‘doctors have no 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.’2

Had the Powells settled out of court, they might have received £300,000 in compensation. But truth and justice has always been more important to them, and they lost everything to fight for Robbie’s Law. The Robbie Powell cover up and the legal legitimacy of a doctor’s right to lie – which still exists today – is one of the most shocking and astonishing stories in the history of the NHS. If you doubt the need for a duty of candour, follow this link.

The avoidable death of baby Joshua Titcombe at Furness General Hospital in November 2008 is a typical example of failed candour.3 Joshua had a low temperature due to lung infection that would have been easily treatable had it been diagnosed. Sadly, it wasn’t. Joshua’s crucial observation chart disappeared soon after his death, despite ‘extensive’ searches, leading the coroner to deduce – just 32 months later – it may have been ‘deliberately destroyed.’ He concluded there was a ‘very worrying mark of suspicion hanging over the maternity unit at FGH’ and identified ten serious failures. A previous review into the service had also found serious failings but was not passed onto the Care Quality Commission. The Parliamentary Health Service Ombudsman refused to investigate, claiming it was the CQC’s job. No-one, it seems, is much interested in candour.

Stories of repeated cover up and denial are commonplace in the NHS, often with claims of deliberate falsification or destruction of evidence. If a duty of candour could be successfully introduced, it would represent the biggest shift towards a culture of transparency the NHS has ever seen. A National Audit Office report in 2005 found that only 24% of English hospital trusts routinely informed patients who had been victims of ‘adverse incidents’. NHS staff often won’t disclose harm if they think they’ve got away with it, and fear being blamed, sacked and sued. Usually the system is at fault as much as the individual, but denial and a desire to protect the reputation of the trust stops lessons being learned, and causes untold psychological damage to patients, relatives and whistleblowers.

A statutory duty to disclose would need staff skilled in communication and the time for them to do it properly, focusing on the most serious cases. Although patients have a legal right to information before they consent to any medical intervention, they have no right afterwards if it goes wrong. Yet American studies suggest that claims, lawsuits, time for resolution and costs all decrease after open disclosure, and patient satisfaction increases4. In a culture where NHS whistleblowers are routinely punished for their ethics and honesty, a duty of candour can only work if staff are praised for owning up, rather than sanctioned by their employers or regulatory body. Those whose conduct suggests criminal behaviour or a continued risk to patients are unlikely to own up, whatever the law says, which is why we will always need whistleblowers.


References

  1. http://wales.gov.uk/topics/health/publications/health/reports/powell/?skip=1&lang=en
  2. Powell v UK Application No 45305/99 admissibility decision of 4 May 2000.
  3. http://www.guardian.co.uk/society/2011/jun/07/joshua-titcombe-inquest-cumbria-coroner
  4. Patient Safety and the Problem and Potential of Law – Oliver Quick

Author's Image

Phil Hammond

Phil Hammond is an NHS doctor, journalist, author, broadcaster, speaker and comedian. He qualified in 1987 and worked part time in general practice for over 20 years. For the past seven years he has worked in a specialist NHS team for young people with chronic fatigue. He presented five series of Trust Me, I’m a Doctor on BBC2, encouraging patients to be more involved, assertive and questioning. Phil is Private Eye’s medical correspondent; in 2012, he was shortlisted with Andrew Bousfield for the Martha Gellhorn Prize for Journalism for ‘Shoot the Messenger’, an investigation into the shocking treatment of NHS whistleblowers. In 2013 and 2014, he was judged to be one of the top 100 clinical leaders in the NHS by the Health Service Journal. As a comedian, Phil was half of the award-winning double-act Struck Off and Die, with Tony Gardner. He has done five solo UK tours, appeared on several TV shows, and has written five books.
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