The government proposes to introduce a duty of candour as part of its health reforms, requiring hospitals to tell patients when they have made mistakes - a move that follows a long campaign by Action Against Medical Accidents (AvMA) and other patient safety bodies. While the plans are welcome and mark an important step towards transparency in health care, they fall a long way short of what is needed.

The proposal to introduce a duty was in the Liberal Democrats’ manifesto and found its way into the coalition programme – the white paper, Liberating the NHS, promised to require openness and honesty. However, a provision was only introduced into the Health and Social Care Bill following the government’s ‘listening exercise’, and the proposal is a watered down duty. There is a clear reluctance to create an enforceable statutory duty.

The need for a duty: patient rights

Most patients would be surprised to know that hospitals are not required to tell them when something has gone wrong. There are no sanctions for failing to disclose mistakes and patients have no right to know the truth. This is particularly shocking when mistakes in hospitals, which are often avoidable, lead to death or disability.

The situation is made worse because of an inequality of power between doctors and patients. Medicine is extremely complex and patients sometimes leave short appointments confused or with little understanding of their treatment. When their diagnosis turns out to be wrong or their treatment produces a poor outcome they may not know when there has been an error.

Even if they do, they may be told only of a ‘recognised complication’, without the suggestion that it was avoidable with proper care. Although doctors still have a professional duty to be frank with patients the duty is not legally enforceable and therefore gives patients no actual rights. Furthermore, the duty does not bind other hospital staff, managers or boards, which is problematic because when a patient makes a complaint the response normally comes from administrators in the complaints department. All lawyers working in this field will have stories of complaint responses that are far from honest; some conceal the mistake with a smokescreen of detail and some may even be deliberately misleading.

There is NHS guidance on openness in guidelines produced by the National Patient Safety Agency (NPSA) – ‘Being Open’. However, this is no more than guidance and does not create any enforceable obligation, nor does it bind private healthcare providers.

The previous government introduced Care Quality Commission regulations in April 2010 that required healthcare providers to report adverse incidents to the NPSA. Yet the reporting system is anonymous and the NPSA does not investigate individual cases. Patients are also completely unaware of the report and so it offers no benefit to the patient. It seems likely that there was a deliberate decision at this stage not to include a duty to inform the patient of adverse incidents.

Claimant solicitors frequently hear stories of patients who have not been told of serious errors during their care. While the patients may be completely in the dark, the medical records often produce surprising evidence of avoidable errors. The evidence is not just anecdotal. According to a report by the National Audit Office in 2005 less than one quarter of NHS trusts routinely informed patients of patient safety incidents and 6% never informed patients.

The NPSA estimates there are as many as one million patient safety incidents in England every year, half of which cause harm. While the number of incidents reported each year runs into the hundreds of thousands, the number of medical negligence claims is small.

The NHS Litigation Authority reports that only 6,000 claims were reported in 2010 – suggesting that most patients do not claim damages. One of the reasons for this is undoubtedly because they simply do not know errors have been made. Indeed, the Department of Health itself accepted in 2006 that there was a ‘culture of denial’ within the NHS.

Colin Freeman’s story

When Colin Freeman, a 39-year-old scientist, was left hemiplegic and needing full-time care after treatment at Frimley Park Hospital, his wife made a written complaint. The family received a seven-page written response with a smokescreen of detail diverting attention from the real issue. His treating doctor even said that she would not have changed any of the care given to Mr Freeman.

However, what the response failed to say was that a planned echocardiogram, which would have revealed a dangerous heart infection, had not been carried out. If it had, Mr Freeman would have been treated accordingly and avoided a devastating stroke a few days later.

Fortunately the family was not deterred by the hospital’s lack of candour and proved that there had been negligence. Following an award of damages five years later Mr Freeman now receives full-time paid-for care and his wife no longer has to look after him around the clock. They have been able to move to a house he can access with greater ease and with space for his wheelchair, and he can take part in family life again.

With the benefit of a lift, Mr Freeman is no longer confined to the ground floor and he has a suitable vehicle so he can pursue leisure interests outside the house, making his life considerably better.

The Freemans’ story shows how important it is to have transparency in healthcare. Had the family believed what they had been told, they would still be struggling. Many patients will not know they have been subjected to negligence because there is no duty for hospitals to tell them. Introducing a duty of candour would mark a significant step towards transparency and better patient rights.

Will candour increase claims?

The government is clearly concerned about limiting the cost of claims to the NHS. It is withdrawing legal aid for clinical negligence claims and changing the rules governing conditional fee agreements, both of which will make it increasingly difficult for people to enforce their rights. Patients' rights and access to justice are being sacrificed in the hope of cutting the NHS budget.

Greater candour is bound to lead to claims that would not otherwise have been made. If patients have been harmed by negligence it is the mark of a decent and just society that they are able to seek redress. There is also a body of evidence internationally that shows being open with patients and admitting errors can actually reduce claims. Claimant lawyers regularly hear clients tell them that they are only bringing a claim because no one had the grace to admit an error or say ‘sorry’. There is evidence suggesting that this may be true.

The proposed duty is not a blanket obligation on all healthcare staff, medical and non-medical, to tell patients the truth, and it does not provide patients with any remedy. It merely forms part of a contractual term in service agreements between NHS bodies and providers. Failing to fulfil the duty will presumably be one of many factors influencing whether the provider is offered a new contract.

But it leaves patients exactly where they are now, reliant on the integrity and honesty of those involved in their care to tell them of mistakes, which is not enough. Patients, who are most affected by medical errors, need a properly enforceable right to information and a form of redress where that right is infringed. The new duty is one small step in the right direction, but no more.

The shortcomings have recently been accepted by the Health Select Committee on complaints and litigation. The select committee takes a small step further by recommending that in addition to a duty in the service agreement it should be part of the terms of authorisation from Monitor and of licensing by the Care Quality Commission, and there should also be a contractual duty of candour to individuals and to local Healthwatch organisations.

It fell short of recommending that patients have an enforceable right. The select committee was apparently sceptical about whether statutory duties were the best way to generate a culture of transparency, although it is hard to see in practice how to bring about real change without it.

There would be wider benefits from a duty of candour. As well as addressing individual cases, greater openness would benefit all patients. Ensuring doctors admit mistakes is likely to lead to more internal investigations and a greater understanding of where errors are made. Hospitals will know more about what goes wrong and why, which should lead to changes in practice. The government’s own statistics suggest over half a million medical accidents cause harm each year.

The National Audit Office has suggested that 50% of medical accidents could be avoided ‘if only lessons from previous incidents had been learned’. The government’s own research therefore suggests that greater candour would reduce mistakes. Apart from benefits to patients fewer mistakes would mean reduced treatment costs for the NHS, besides fewer payments of damage to the injured.

Although the picture is variable, there is in many NHS trusts a culture of silence that inevitably leads to cover-ups. The lack of a duty of candour nurtures that silence. For NHS hospitals to improve standards we need a cultural change in which honesty and openness is the norm.

There is a further feature of the government’s proposed reforms that makes the need for a duty of candour more urgent. If health provision is to be increasingly fragmented, with hospitals contracting services from private suppliers, there is a danger of a lack of continuity in care.

Already it is not uncommon for patients to suffer neglect as a result of the difficulties of coordinating care between different agencies. In one current case a man underwent a leg amputation after developing a diabetic ulcer on his foot. The podiatry service decided his GP was outside their patch, despite having treated him for years, and referred him to another. Either the referral was not sent or not received but by the time he was offered medical help four weeks later, it was too late to save his leg.

Unfortunately this is not an isolated case. Research in the International Journal of Clinical Practice has highlighted failures in coordinating care causing medical errors. Nearly a quarter of patients were critical of poorly coordinated care and 9% reported medication errors.

The government’s proposal to introduce a duty of candour is therefore to be welcomed by patients as well as legal professionals but only as one very small step in the right direction. It is however not enough and we need more than a mere contractual duty between healthcare providers if we are not only to empower patients but also promote safety in healthcare.

Paul Sankey is a partner specialising in ­clinical negligence at Russell Jones & Walker