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Duty of Candour in Northern Ireland – a cause for concern

HomeResources & publicationsAnaesthesia News magazineAnaesthesia News Digital July 2021Duty of Candour in Northern Ireland – a cause for concern

Duty of Candour in Northern Ireland – a cause for concern

For six years a statutory Duty of Candour has existed in England, requiring organisations to be open and honest with patients if things go wrong and they experience moderate harm or worse. This adds to the long-standing professional duty of candour that the GMC requires for all doctors. Organisations failing to meet their obligations can be prosecuted and fined, for instance £16,500 for one hospital trust in 2019 [1]. Scotland introduced a comparable statutory duty for organisations in 2018, and it is anticipated that similar relevant provisions in Wales will come into force in 2022.

The introduction of a statutory Duty of Candour in Northern Ireland has followed a different path to other UK jurisdictions and is currently subject to a consultation that closes on 2 August 2021 [2]. Doctors in Northern Ireland should feel very concerned about the proposals, which recommend that individuals and organisations breaching the duty could be guilty of a criminal office.

The background to the recommendation that a statutory Duty of Candour be introduced in Northern Ireland came from a judge-led public inquiry into five paediatric deaths from hyponatraemia that were related to saline 0.18% infusions. The deaths occurred between 1995 and 2003; the long-running inquiry, established in 2004, finally reported in 2018. In his report, Justice O’Hara found that there had been a “repeated lack of honesty and openness with the families” of the children who had died. His recommendation that there should be a statutory Duty of Candour in Northern Ireland was entirely understandable. Less explicable was the recommendation that breach of the statutory duty should be a criminal offence applying to individuals as well as organisations. If the proposals are fully adopted, Northern Ireland will be unique as the only UK country where the statutory duty applies to individuals as well as organisations, and where breach of the duty could attract criminal liability.

History has taught us that criminalising medical errors of judgement does not make patients safer. The classic example is the inadvertent intrathecal injection of vincristine [3]. For decades doctors were convicted for causing the death of their patients through gross negligence, yet deaths kept happening – jailing doctors made not one jot of difference. What stopped the deaths was the introduction of robust national policies coupled with the introduction of physical preventive measures. We now have a national policy for intravenous fluid therapy in children: its adoption and dissemination is what will prevent future deaths [4].

The statutory Duty of Candour in Northern Ireland is likely to be complicated and hard to understand for those expected to comply. There may be arbitrary, complex thresholds that apply to what constitutes a notifiable incident. Even if criminal sanctions are reserved for the most egregious breaches of the statutory duty, it is inevitable that more individuals will be subject to a criminal investigation than are actually prosecuted which will have a chilling effect on the profession and a negative impact on the morale of healthcare staff - at a time that they will be recovering from the stresses of the pandemic.

If you are a doctor in Northern Ireland and you are worried about what you have read, you have until 2 August 2021 to make your voice heard in this consultation.

Michael Devlin
Head of professional standards and liaison, Medical Defence Union

Twitter: @the_mdu

References

  1. Care Quality Commission. Trust fined for failures in complying with Duty of Candour regulation, 2019. www.cqc.org.uk/news/releases/trust-fined-failures-complying-duty-candour-regulation (accessed 29/4/2021).
  2. NI Department of Health: Duty of candour and being open - policy proposals for consultation, 2021. https://consultations.nidirect.gov.uk/doh-1/duty-of-candour/ (accessed 29/4/2021).
  3. MDU Journal. Patient safety and a just culture, 2019. https://mdujournal.themdu.com/issue-archive/autumn-2019/patient-safety-and-a-just-culture (accessed 29/4/2021).
  4. National Institute for Health and Care Excellence (NICE). Intravenous fluid therapy in children and young people in hospital. NICE guideline [NG29], 2020. www.nice.org.uk/guidance/ng29 (accessed 29/4/2021).

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