The Department of Health is consulting on policy proposals to introduce a new Statutory Duty of Candour for both individuals and organisations involved in providing health and social care in Northern Ireland. We're seeking your feedback to help inform our response to these important proposals:
NorthernIrelandOffice@bda.org by 8 July.
In January 2018, Justice John O'Hara published his report on the Inquiry into Hyponatraemia-Related Deaths (IHRD). His first recommendation was that a statutory Duty of Candour should be enacted in Northern Ireland and that it should apply to Healthcare Organisations and everyone working for them. Justice O'Hara also recommended that criminal liability should attach to breach of this duty and to obstruction of another in the performance of this duty. He made further recommendations about the guidance, support and protection that should be provided for staff in order to create a more open culture.
In response, the Department of Health (DoH) established an Implementation Programme to take forward the recommendations arising from the Inquiry. The Duty of Candour Workstream, and its Being Open Subgroup, has been responsible for developing proposals to address the recommendations on candour.
As a profession, dentists accept and support the case for change towards creating a culture of openness. At the outset, we cannot condone those behaviours that fell short and were revealed by the Hyponatraemia Inquiry. Judge O'Hara was correct when he said that, 'a more comprehensive approach for learning from error is needed'. We fully accept the precept contained in the Francis Report that, openness and transparency are crucial elements of patient safety.
A cultural change is needed
A statutory duty of candour on organisations, as is the case elsewhere across these islands, should be introduced in Northern Ireland. However the vital ingredient to being open and honest with patients is not a statutory threat or sanction, but a cultural change, so that a
culture of candour is embedded in all healthcare organisations, large and small.
There is a danger of the Department of Health becoming fixated with statutory duties being a silver bullet to deal with a much deeper issue that does not affect all of healthcare in equal measure. While a strong case can be made in favour of a statutory duty of candour being introduced for organisations, a much wider focus is needed which looks at addressing those significant barriers that stand in the way of realising a culture of openness and culture change.
Dental professionals understand the privileged position in which we work and provide care for our patients. The responsibility to tell patients that something has gone wrong has always been part of a dental professional's life. The profession has always endeavoured to be open, transparent and candid. The introduction of a professional duty of candour to most professionals was merely the repackaging of a normal professional responsibility that existed previously.
The reality is that 'human factors' mean mistakes do happen, no matter how conscientious and well-trained a professional is. What is needed most is a development towards a 'no-blame' culture so that proper learning can ensue when things do go wrong.
Challenges we face
Within the practice of dentistry, there is a long history of the General Dental Council taking a punitive approach towards registrants. Every registrant fears legal retribution. This is a significant factor that stands in the way of realising a true learning culture. There is a key role for regulators in helping the profession develop a much-needed learning culture, and they must be brought into this process. Fear of professional and system regulators and threat of complaints is creating a culture of fear starting at undergraduate dental student level. It will take a huge amount of effort to reverse this tide. If the element of fear and punitive reprisal can be removed, then openness will flourish.
The time and resource pressures faced by dentists is another key variable that should be considered. Ensuring sufficient time and resources in the working lives of professionals, rather than placing what may be perceived to be 'additional' requirements is an essential practical consideration in making continuous learning around patient safety a reality.
Dental practitioners, in the main, operate in small general dental practices, where the practice owner will be both the organisation and the individual – this cannot be considered to be equal to a large Health Trust employing over 10,000 people. It is simply ridiculous to treat these two organisations in the same way.
Setting out what is required of professionals and organisations from a duty of candour is one thing; it's no less important to ensure adequate support mechanisms are there to enable staff and organisations to learn from error and improve their practice. All the literature around this issue confirms that legislation will not on its own bring about a change of behaviour or culture.
Openness and fear
We believe the introduction of a statutory duty of candour on health organisations in Northern Ireland could be an important step in promoting openness and honesty when dealing with patients and families at a corporate/organisational level. This would complement the extensive work already done in recent years at a professional level when it comes to admitting errors and communication with patients and families.
While we fully support the desired outcome of ensuring that staff will be open and honest to patients and families about their errors, imposing a legal duty with fear of criminal sanctions on individual professionals is untested anywhere else in the world, and we fear would be wholly counterproductive.
Furthermore, it should not be the intention of the duty of candour to promote a culture of fear; however, the perception caused by disregarding existing professional obligations, imposing the threat of criminal sanctions, and applying a position of distrust to professionals would only serve to setback the culture-shift which we all want to see.
The DoH is now seeking views on the policy option proposals developed by the Workstream and Subgroup contained within the consultation document, as follows:
- Policy options for the statutory
organisational Duty of Candour; and
- Policy options for the statutory
individual Duty of Candour; and
- The policy framework for Being Open guidance.
Section 4 of
the Consultationsets out a range of policy options to implement a statutory
individual Duty of Candour. Here, the Workstream presents a number of options for public consultation.
Comparing the proposals
Please take the time to read these proposals as we will all be directly impacted by the outcome.
Original Proposal
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Policy Proposal to introduce a statutory individual Duty of Candour with criminal sanction attached for breach.
This policy approach would introduce a statutory individual Duty of Candour, which would include a series of legislative requirements that have to be adhered to by staff within its scope.
Breach of these requirements would constitute a criminal offence. Adoption of this policy option would fully implement the recommendations made in respect of the statutory individual Duty of Candour. It enshrines Justice O'Hara's view that existing oversight mechanisms within health and social care have not been sufficient to ensure that candour takes place. Criminal liability in this context would relate to a breach of the requirements of the statutory individual Duty of Candour and to obstruction of another in the performance of this Duty. In respect of any criminal sanction, the evidential threshold for conviction requires proof "beyond reasonable doubt" regarding the act and the intention. Criminal prosecutions for breach are likely only when investigation has found evidence of deliberate and intentional breach of the Duty.
Alternative Proposals
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Statutory individual Duty of Candour without criminal sanction
This approach would introduce a statutory individual Duty of Candour with specific legislative requirements for staff within its scope, without attaching criminal liability for breach of these requirements. In the event that an individual member of staff breached these requirements, employers and professional regulators would continue to be ultimately responsible for oversight.
This proposal goes further than the approach adopted in England and is closely aligned with the draft legislation shortly due to commence parliamentary scrutiny in the Republic of Ireland. The proposal removes the threat of criminal liability for breach of the statutory individual Duty.
Statutory individual Duty of Candour without criminal sanction for breach, and separate criminal offences for withholding information, destroying information, or providing false or misleading information.
The approach would introduce a statutory individual Duty of Candour with specific legislative requirements for staff within its scope, without attaching criminal liability for breach of these requirements. Instead, a criminal offence would be separately introduced which applies to staff in the health and social care sector who are proven to have
- wilfully, intentionally, or maliciously suppressed or concealed information
- or distorted or altered information
- and / or destroyed information which would assist an inquiry or investigation that has been initiated into an incident which has resulted in serious harm being caused to, or the death of, a service user.
Other behaviours which have been suggested for inclusion within the scope of this offence include "aiding and abetting" another person to conceal the truth, or "conspiring to hide the truth". Whilst the Workstream has not agreed upon a maximum penalty for breach of the statutory individual Duty, comparable offences in other sectors tend be punishable with a fine being the maximum penalty.
BDA NI Council is currently considering its response to the consultation on behalf of the profession. We have engaged with the Workstream from the beginning, attending face to face events including round-table event for the dental profession, an online engagement event with the Workstream Chair, and most recently taking part in a Panel Debate alongside the Royal Colleges, Professional Bodies and Trade Unions.
We want to hear from you. Please let us know your thoughts no matter how brief, so that we can best represent the profession's views in the BDA consultation response.
Send your comments to us marked 'Duty of Candour' to:
NorthernIrelandOffice@bda.org by 8 July.
You can also
respond to the Duty of Candour Consultation as an individual. The consultation will close on 2 August 2021.
Caroline Lappin
Chair, BDA NI Council
