‘Duty of candour’ for healthcare professionals could duplicate existing patient protections

Alison Britton, convener of the Law Society’s Health and Medical Law Committee is set to give evidence on the Health (Tobacco, Nicotine etc. and Care)(Scotland) Bill before the Scottish Parliament’s Health and Sport Committee today.

Ms Britton said: “We fully support the aims of the bill. In terms of part one of the bill, the harmful effects of tobacco and smoking are undisputed and we recognise that it has the potential to address health and wellbeing and reduce the risk of harm caused by smoking and smoking related disease.

“We also embrace the duty of candour, also set out in the bill, 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.

“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.”

Ms Britton added: “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.

“The wide scope of the concept of an unintended or unexpected incident in the health care 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.

“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.”

To read the Law Society of Scotland’s full written evidence see our website.