Northern Ireland

New law compelling doctors to admit care failings or risk prosecution would 'victimise' staff, union chief warns

An inquiry which sent shockwaves through the Northern Ireland health service and called for an overhaul its culture has been sitting with government for three years. One of its key aims was to improve openness and honesty. A public consultation has just concluded and a decision on whether a new law should be introduced now rests with Robin Swann. Health Correspondent Seanín Graham speaks to a doctor and bereaved parent about the importance of NHS transparency.

The BMA's Dr Tom Black said medics is firmly opposed to the introduction of an individual Duty of Candour with criminal sanctions, saying it will create a "blame culture"
The BMA's Dr Tom Black said medics is firmly opposed to the introduction of an individual Duty of Candour with criminal sanctions, saying it will create a "blame culture" The BMA's Dr Tom Black said medics is firmly opposed to the introduction of an individual Duty of Candour with criminal sanctions, saying it will create a "blame culture"

A MONTH after the devastating findings of an inquiry into the hospital deaths of five children were published, a leaked letter revealed "extreme concern" among doctors about its central recommendation.

The February 2018 correspondence was issued to members of the British Medical Association (BMA) and warned legislation compelling healthcare professionals to admit failings could lead to a 'blame culture'.

Known as a 'Duty of Candour', it would apply to both NHS organisations and individuals to be honest with patients "in the event of death or serious harm". Crucially, the new law would contain criminal sanctions.

It was one of 96 recommendations made by John O'Hara QC, the high court judge who chaired the watershed hyponatraemia public inquiry,

Read More: 'For us as a family this is crucial': father who lost his child to medical failings calls be law to be introduced to prosecute doctors linked to 'cover ups'

The longest running inquiry of its kind, he laid bare a culture in which "too many people in the health service" put "reputation before honesty" resulting in parents being "deliberately misled" about catastrophic medical mistakes.

Mr Justice O'Hara concluded that four of the children's deaths were avoidable and called for a duty of candour to be implemented "as a matter of urgency"- noting that some witnesses had to have the truth "dragged from them" over the course of the 14-year inquiry.

More than three years on, a public consultation on the issue has only just concluded. It was extended by a month by the Department of Health to encourage more people to have their say.

If green-lighted, it will be first time an individual duty of candour for healthcare staff will operate in the western world. Legislation is currently in place in England and Scotland - but only applies to organisations.

For the north's current BMA chair, Dr Tom Black, the union's concerns about a law that would place individual doctors under threat of prosecution remain as "extreme" as those expressed by his predecessor.

With a haemorrhaging workforce reeling from the fallout of the pandemic, the Derry GP branded the introduction of such a measure as "extraordinarily punitive".

"The reasons we have concerns about an individual duty of candour with sanctions is that when you look at every other country that has modern healthcare systems, they’ve all decided it’s a bad idea," Dr Black told The Irish News.

"It's a bad idea because a blame and sanction culture creates more fear, more defensive practice and has the unintended consequence of making things worse.

"An organisational duty of candour is certainly something we think should be brought in as other countries have either brought it in or are about to bring it in."

The BMA chief insisted that individual sanctions for doctors are already in place under their professional regulator, the General Medical Council.

"We are also, just like everyone else in society, susceptible to criminal sanctions," he added.

"But to explicitly bring in legislation linked to criminal sanctions does seem to us an extraordinarily punitive reaction to a situation which is calling for more openness and a learning culture where people can talk openly about the problems they have.

"You then have a health service which we know is under pressure, underfunded and under-resourced. We get a pandemic on top of that and you suddenly think to yourself - why would anyone want to be a doctor?

"I’m a grey haired doctor nearing the end of my career and I have a fairly logical response to this. But younger doctors have an emotional response to this threat. They're horrified and think things are going to get worse, questioning why they are in this profession."

One of the most shocking findings of the O'Hara inquiry related to an attempted 'cover-up' by two hospital consultants involved in the treatment of nine-year-old Claire Roberts, whose death was found to be preventable.

Her parents were "deliberately misled" by doctors who failed to refer the child's death to the coroner because they didn't want to "draw attention to possible failings".

Mr Justice O'Hara referred to the culture at the time of Claire's death in 1996 as one "which concealed error".

When asked how he felt about these findings and families' anger at the lack of accountability almost 25 years on, Dr Black admitted he was angry.

"When I read the O’Hara report I was furious. I was furious at the behaviour of members of my profession and other healthcare professions. There’s no doubt that the medical profession and others have a case to answer here. We have to be more open, we have to have a more learning culture.

"But we’re being told the best way to do this is that we have to have duty of candour with sanctions. That's going to wreck workforce recruitment. It will have the opposite consequence to the consequence we’re looking for, which is a more open culture."

With an unprecedented three public inquires ordered into health failings in Northern Ireland over the past year, Dr Black said many of the cultural problems stemmed from 'systems' failures.

He supports alternative measures introduced in other countries such as a 'Freedom to Speak up Guardian' to encourage staff to come forward without fear of sanctions.

"There’s no doubt that we want anyone who wilfully misleads or misharms or neglects a patient to be accountable for that," the union chief added.

"But when they’re working in a system which lets them down and puts them in a position where a patient comes to harm, we don’t think that victimising an individual is the way to deal with that."