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Threat of prosecution could scupper transparency

People less likely to speak out if calls for prosecution are heeded

Louise Prime

Thursday, 07 February 2013

Calls for an atmosphere of transparency and greater candour within the health service, following yesterday’s publication of the Francis report, could be stymied by the push for more prosecutions, the King’s Fund has warned. Its director of policy, Anna Dixon, said that fear of criminal prosecution could prevent staff from speaking out when things go wrong.

There was universal support yesterday for Robert Francis QC’s call for a culture of transparency within the NHS. Chair of BMA Council Dr Mark Porter responded: “Unless and until medical staff and management jointly promote the ethos that raising concerns is not only acceptable but a positive thing, the shadow of Mid Staffs will put us all into darkness. Doctors, along with other clinical staff, have a professional responsibility to show leadership in helping to change this culture. We must no longer accept the attitude that it is someone else’s job to worry about.”

David Cameron in his statement to the House of Commons agreed that responsibility should be shouldered more broadly for maintaining standards, rather than leaving it to trusts’ boards. He said of Mid Staffordshire: “The primary care trust assumed others were taking responsibility and so made little attempt to collect proper information on the quality of care.”

Despite Francis’s insistence that the hunt for scapegoats should be avoided, there has been vocal support for the prosecution of healthcare staff involved in, or who fail to report, poor care.

David Cameron said later in his statement: “The regulatory bodies in particular are going to have some difficult questions to answer … the General Medical Council need to explain why, so far, no one has been struck off. The Secretary of State for Health has today invited them to explain what steps they will take to strengthen their systems of accountability in the light of this report.”

The King’s Fund cautions that it could be difficult to engender a culture of transparency and candour while people fear that they could be prosecuted. Its director of policy Anna Dixon said: “While on the whole [Francis’s] recommendations to strengthen accountability and to increase transparency are to be welcomed, there is a risk that the many changes to regulation and the increasing threat of criminal prosecution will stymie the changes in culture he calls for ...

“Francis also promotes a stronger requirement for organisations and staff to speak openly and honestly when things go wrong. It is not clear whether the new legal duty of candour together with the potential for criminal prosecution for failing to be open and honest will support a culture of openness. There is a risk this could heighten fear among staff and result in defensive rather than open practice. More important are the quality of clinical leadership and the culture of the ward and team in which staff work.”

Robert Francis QC will give the keynote address at the King’s Fund’s conference to discuss the outcomes and implications of his report, on 27 February.

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