Medical union disputes calls to enforce duty of candour with criminal sanctions

A medical union has disputed claims from Northern Ireland’s Human Rights Commissioner that health workers should face criminal charges if they withhold information about patient safety and deaths.

In an interview with BBC NI, Alyson Kilpatrick discussed how to enforce a doctor’s duty of candour, where they have to be open with patients if mistakes in their care are made.

She argued this would be a more effective way to save lives.

The British Medical Association (BMA), however, said this would actually reduce a culture of openness and transparency.

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Claire Roberts (9) died at Belfast’s Royal Hospital for Sick Children in 1996.

The Hyponatraemia Inquiry later found there had been a “cover-up” into how she died, with her father Alan Roberts now arguing doctors should be legally bound to tell the truth.

He said the public would be “shocked” to find there was no legal binding duty on doctors to inform patients when they had been at fault, calling it “a very defensive and toxic system”.

“Why spend the money on a public inquiry if we aren’t going to learn the lessons from that public inquiry?”

Stormont health minister Mike Nesbitt said the question was on how to avoid a “chill factor” that made doctors afraid to be candid while encouraging “willingness and responsibility” to review when things go wrong.

“I wish to assess the impact defined sanctions is likely of have on that balance,” he said.

The BMA has said the Department of Health made an error when linking sanctions and duty of candour in a 2021 consultation.

Dr Alan Stout, outgoing BMA chair of the NI GPs committee, said while criminal activity should be punished, linking the duty of candour to criminal sanctions would threaten normal doctors trying to do their job.

“It will never work, and we will go backwards rapidly if we continue with that full sentence. But if we work together with an individual duty of candour and an organisational duty of candour, we can absolutely make it work.”

The issue has also been mentioned by the chair of the Infected Blood Inquiry, Sir Brian Langstaff, who suggested a statutory duty of candour on civil servants and healthcare leaders.

The 2018 hyponatraemia report had also recommended a legal requirement of honesty on those working in the healthcare system.

Ms Kilpatrick argued that a moral obligation for a duty of candour was no longer enough.

“I know there are disciplinary codes that require you to be open and honest with the patient, but who knows what that means. This is turning what is the right thing to do into the legal thing to do,” she told the BBC.

Despite numerous health inquiries, she said nothing had practically changed or in law.

“If these things keep happening over decades, you’ve got to change something, something has got to give,” she said.

“I do wonder why there seems to be something emotive about attaching the word criminal to it (duty of candour).

“It is unlikely people are going to end up in prison - but if somebody has deliberately failed to notify a serious adverse incident resulting in death, maybe that has to be a sanction that is available – it is a very, very serious failure.”