Scottish ministers warned to be careful in establishing ‘duty of candour’ for health workers

Scottish ministers have been warned by lawyers to be careful over moves to make it incumbent on social care and medical staff to disclose medical blunders to patients.

The Scottish government is proposing a statutory “duty of candour” but the Association of Personal Injury Lawyers (APIL) has warned there is a possibility that disclosable event may include unnecessary near misses which would be worrying to the patient as well as “too burdensome” for healthcare workers.

If approved, the duty of candour, would impose an obligation on health and social care services staff to inform families of when a patient has been harmed by accident.

The plans, revealed last October, are part of a UK-wide attempt to end cover-ups of abuse and neglect of NHS patients brought to public attention in the Francis Inquiry which examined the deaths of up to 1,200 patients at two hospitals.

A consultation has been launched to examine the proposals intended to make the system more transparent and improve standards.

For over 50 years, the Medical Defence Union (MDU) has advised doctors they should tell patients when something goes wrong, apologise and attempt to rectify the error.

The duty of candour would make this ethical obligation a legal one.

Gordon Dalyell, Scottish representative of APIL (pictured), said: “Telling patients about every slight incident, even if there was no harm, may cause patients to lose confidence in hospital and care staff.

“But while the duty should not be overbearing, near misses should still be taken seriously. We need balance.”

APIL said disclosure should encompass incidents that cause some harm – as detailed in the consultation document.

APIL added: “This strikes the balance between providing the patient with an apology if something has happened to them, without requiring the doctors to divulge every ‘near miss’.

“This is not to say that near misses and slight incidents should not be taken seriously and addressed to ensure that they do not occur again, but this is a separate issue to the duty of candour.

“The purpose of the new statutory duty is to increase openness between the service provider and user. This can be achieved without the need to cause unnecessary worry to the patient; and without overloading health and social care professionals with an unmanageable administrative burden.

“If the duty is not overbearing, health and social care professionals are likely to embrace a new culture of openness.

“This would hopefully lead to more openness and transparency as a whole, and not just in the situations specified in the consultation.”

The government’s proposals provide: “Disclosable events would be defined as an unintended or unexpected event that occurred or was suspected to have occurred that resulted in death, injury or prolonged physical or psychological harm being experienced by a user of health and/or social care services.”

The Francis Inquiry actually recommended that non-disclosure be made a criminal offence for NHS doctors, managers or nurses.

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