Background
The drive for a statutory duty of candour in Northern Ireland was given particular impetus by the Report of the O'Hara Inquiry into hyponatraemia-related deaths, published in January 2018. Among other things, Sir John O'Hara QC, who headed up the inquiry, recommended that a statutory duty of candour should be in place. You can find out more on the IHRD Duty of Candour Workstream here.
However, O'Hara's ideas go further than both England and Scotland, in that he states the duty should apply to individuals as well as organisations, and also that breaches should attract criminal sanctions.
As we explain in our submission to the workstream, we do not believe these additional features should form part of the new statutory duty.
Individual or organisational?
Doctors are already under professional and ethical obligations to be open and honest with patients on an individual level when things go wrong, with associated sanctions if they fail to do so. Because the statutory duty as it currently stands in the rest of the UK applies only to organisations, patients are afforded two tiers of assurance that they will be told when an incident occurs.
Applying the statutory duty to individuals would simply constitute an unnecessary duplication of the obligations doctors are already under.
Criminalisation of candour
We also believe that the criminalisation of candour could potentially lead to lower levels of reporting of patient safety incidents. As the MDU's Dr Michael Devlin explains in the submission document, 'A just culture, whilst retaining accountability on the part of individuals, expressly recognises that an incident must be looked at not through the narrow prism of blame, but through a broader appreciation and acknowledgement of systemic factors.'
This view is echoed by Sir Norman Williams' report into gross negligence manslaughter in healthcare, which states that where an investigation focuses on blaming an individual, 'patient safety is jeopardised as [healthcare professionals] become cautious about being open and transparent'.
Click here to read the MDU's full submission document (PDF download).
This page was correct at publication on 17/09/2019. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.