4 October 2022: Expert Group on Public Health and Administration - C

The duty of candour theme began with a consideration of the trigger for that duty kicking-in of there being a “notifiable safety event”, in England. In Scotland the trigger is an “unintended or unexpected incident”. The duty of candour apparatus has not yet come into force in Wales, but will do soon. Northern Ireland has no statutory instrument. The Care Quality Commission has the oversight role in England. The Group could not speak about the situation of a recognised responsible body in Scotland, which was a shame since there was at least one person in the room who could explain where things were at with that situation, and more. (It was not this writer).

Various impacts and potential impacts of applying the Duty of Candour were reviewed, including the need to avoid a “tick-box” exercise. As applied to an individual clinician, there were possibly mitigating factors such as workload and a toxic working environment. Much of the thinking related to candour was already in place due to the established ethical foundations inherent in healthcare. It requires honesty and a culture open to learning and change to improve. In Australia it is called “open disclosure” and there have been the same perennial problems of doctors feeling fearful of litigation if mistakes are divulged. Things go wrong all the time in all organisations. The binding of every mistake to a procedure of reporting would be overwhelming. The objective is surely about creating a culture shift, however other bureaucratic processes are contra-indicated to this. The example was given of doctors having concerns over the possible impacts of cuts to a service which might or have caused a problem which should be disclosed under the auspices of candour. Such doctors have to go through a significant internal process before they can speak up, and this is not helpful to candour and openness being achieved. This bumps into the “climate of fear” issue which led to the efforts to protect whistle-blowers. But it also has far to go before the objectives for making this provision achieve the intended outcomes. It seems that there are two competing processes trying to advance improvements in healthcare. The relentless drive towards standardisation and regulation to drive up quality creates more possible pitfalls for healthcare workers be caught by, and so require them to be candid about when things go wrong.

It was highlighted that it can be very difficult for a team of healthcare professionals to recognise how their service, which they may have clung to preciously for a long time, could actually be flawed, or even the cause of harm to patients. The Chair asked about the Audit Cycle. An example was given of a surgical team who were told that an audit was about to start into the levels of infection arising from the procedures they were doing. Just the news that there would be an audit reduced the number of infections to zero. This is a very worrying revelation. Where else are corners being cut or sloppy practices below the “highest possible quality of care” happening unnoticed unless or until there is the threat of it being found out?

Counsel then asked how good apologies are when they come from Ministers. It opened up a discussion about the weaknesses of the whole societal and political system which discourages apologies due to the way an apparent weakness arising from an admission of something going wrong may be used as political capital. The opposition, the media, social media make it too risky to admit a mistake was made, so people end up “defending the indefensible”. The fear of being sacked, attacked, sued, hounded-out is seen to be too great. (This writer knows of civil servants who lived by the rule of never admitting to anything.)

The conversation moved to the concept of a “no-blame culture”. This was seen as an apparently reasonable concept, but it was also seen as not so straightforward a solution as it might initially appear. There is a place for blame in some situations, and there is a place for blame not to lead to a negative outcome for the person identified as culpable. It may be a case of a learning need having been identified where the error occurs. A modern commentator was referred who said that blamed workers on the front-line are often the inheritors of problems elsewhere (in the system). It was suggested that the actual examples of blame which should bring consequences could be if the realisation of the mistake did not lead to candour and correction. The concept of a “just culture” was seen as preferable to a “no-blame culture” as a response to a “blame culture”. Justice as an overarching cultural imperative brings further debatable points, however. The example was given of a child dying due to a healthcare action, but the treating clinician who might be sued for negligence might have been being unjustly managed. How does Justice achieve its ends in such cases?

Counsel then asked about Government record keeping. The civil service is “meticulous” at recording events said the senior civil servant, but the actual training or guidance on record keeping had been scant in the experience of the less senior civil servant. The questions then nimed-in on the decisions about whether and when to destroy official documents. Executive Officers, who may be the designated level for giving authorisation, are first line management, but it may not just be about the grade of the person authorised to initiate destruction of documents. It is more important for the person to know what is significant and should be kept, and what is past its use and thus of no value to retain.

Priority treatment for patients who have been harmed by the NHS was the final topic from Counsel. The overarching principle at play is that treatment should go to where it is needed. The Armed Forced Covenant was cited as an example of a group who had been identified as suitable for prioritisation. This topic raised an ethical question which could lead to queue-jumping by infected people over other NHS patients who could have a clinical need which is greater or more urgent than the infected person. It was suggested that the way to look at this type of situation was to see the patient as having not completed the treatment since some aspect of the previous treatment had not resolved the original problem or had actually made the situation worse and so was not an acceptable outcome.

All that remained was the questions from core participants. There had still been no mention of “cover-up”, so there are surely some expectation bubbles vulnerable to being burst. It seems like there has been a serious difference in understanding about the role of this Expert Group. This writer is prepared to accept the possibility of not understanding what was being said in more than a few conversations on this matter, but would proffer the question, “So, when and how will the weighty issues related to cover-up get a proper airing?”