NHS will benefit from legal duty of candour, says lawyer

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A legal duty of candour will save the NHS money in the long term through more transparent clinical negligence claims, a leading specialist lawyer has predicted.

Health secretary Jeremy Hunt yesterday confirmed that the NHS will have a legal duty to be honest about mistakes, following the Francis report into the Stafford hospital scandal.

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A statutory duty of candour will apply to health and care providers to inform people if they believe treatment or care has caused death or serious injury, and to provide an explanation.

Where the chief inspector of hospitals identifies criminally negligent practice in hospitals, he or she will refer the matter to the Health and Safety Executive to consider whether criminal prosecution of individuals or boards is necessary.

The government’s response to the Francis report notes that a spirit of candour will be ‘critical’ to ensuring that problems are identified quickly and dealt with promptly.

Ed Fletcher, chief executive of Southport firm Fletchers, said the NHS had nothing to fear from a new era of openness and accountability despite a likely increase in the number of negligence cases.

‘If the duty of candour is as effective as we hope the admittances of liability will shoot up due to extra transparency,’ said Fletcher. ‘But I have cases that go for 10 years where nine and a half years are taken up with wrangling over liability. These cases would instead last six months and legal costs will be slashed as a result.

‘What will cost the NHS a lot more is for the government to adopt none of the recommendations and let standards slip further with more and more negligence occurring and liability taking an age to sort out.’

However doubts have been expressed about the legacy of the Francis report if the duty of candour is not applied to all individuals working in the NHS.

National firm Irwin Mitchell, which has investigated more than 50 cases of alleged negligence at Mid Staffordshire NHS Foundation Trust since 2005, said it was crucial the government responds directly to all 290 recommendations made in the Francis report last month.

Lisa Jordan, partner at Irwin Mitchell’s Birmingham office, said: ‘Openness and transparency throughout all levels of the NHS, from managers to healthcare assistants, must be at the forefront of the "lasting legacy" of the Robert Francis Inquiry which is why a legal duty of candour is so important.

‘In the report following the public inquiry it clearly stated that had this legal duty been in place previously, lives would have been saved. This is why we believe it is so important that it is extended to cover all NHS workers, not just those at the top level.’

Health secretary Hunt said the response on Tuesday marked the start of a ‘fundamental change to the system’.

‘We cannot merely tinker around the edges - we need a radical overhaul with high quality care and compassion at its heart,’ he said.

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