The duty of candour is now a law of candour. Regulation 20 of the Health and Social Care Act came into force on November 27th 2014, and requires a Trust to inform patients swiftly after the recognition of significant harm events. 10 working days appears to be the expected timeframe (this document from the CQC explains it well.)
Trusts around the country are now frantically working out how to incorporate this regulation into their systems and patient safety processes. Making it happen will require the engagement of all medical staff, and a change of culture (that well-worn phrase!). Changes in culture occur over years rather than over specific dates in November, and this article will explore the challenge that lies before us; specifically, the nature of traditional medical mind sets – the ‘unreconstructed’.
Easy truth, hard truth
Being open about error does not come naturally. The unreconstructed might say – ‘Error is inevitable, it is part of medical life…’ and ‘Our systems are already self-improving, we notice error and make changes… we don’t need to tell patients about every little incident…’ Truth spills easily when mistakes are obvious – it is revealed to patients when procedures prove injurious or disastrous, when unexpected things happen, or when confidently stated predictions do not come to pass. Sometimes it is revealed in the faces of those involved, be they junior doctors or senior consultants. In these situations it takes a positive effort of concealment not to be open – a conspiracy of silence, the complicity of nurses – ‘They don’t really need to hear it…’; something along those lines.
Candour over less obvious or historical incidents relies on a sustained effort to break through the patient’s shell of medical ignorance. Details of what has gone wrong need to be explained. A mini-education in ‘normal’ or expected process or behaviour is followed by a description of what actually happened – the variance – why it happened, what will be done to make sure it doesn’t happen again, and, importantly… an apology.
‘What difference will this make?’ – an analogy
Doctors are impelled by their training to ask a question before making any intervention – ‘How will this change my management?’ By this I mean that any decision or action has to be justified by its consequence. Every intervention carries risk, be it a drug, an operation… or the delivery of information. Only if the likely good that to come of an intervention outweighs the potential harm will it be undertaken.
Consider the decision to perform a colonoscopy on an asymptomatic 92 year old man with anaemia. The investigation will cause discomfort and could cause injury. Even if a bowel tumour is found he will not be considered for major abdominal surgery. An ‘intervention’ that seems justifiable at first is likely to bring nothing but harm. The weighing of harm and benefit needs to be examined in relation to candour.
Harm – rekindling grief, complicating the past
Doctors worry about the distress that ‘open and transparent’ conversations might cause. This applies particularly to cases of death (conversations with relatives) or irreversible harm. Will a letter or phone-call coming out of the blue in the midst of grief or convalescence add to the pain? Such concern is undoubtedly over-paternalistic. The issue of ‘protecting’ patients from such harm has been rehearsed in another arena – resuscitation, the Janet Tracey judgment – where it was found that over-sensitivity to a patient’s distress is not a good enough to reason to shy away from difficult discussions. Nevertheless, it is a factor, and a hurdle. A doctor considering whether to ‘come clean’ over a mis-interpreted blood result or a mislaid CT report might find, after deep and sincere reflection, that there really is nothing to gained for the patient, or for future patients, from an unasked for communication weeks after the event. The damage has been done, the lesson learned. Why kick the hornet’s nest?
Gatekeepers to knowledge
Returning to the analogy, a lay person unused to the ways of medical staff might ask, ‘Isn’t it up to the patient to decide if he wants the colonoscopy? After all, he might well want to know what’s going on inside his own body. And it is his body.’ The unreconstructed doctor might reply, ‘Wanting to know is not enough. It’s how the knowledge will change what we do that matters.’ Knowledge in and of itself has no intrinsic value, only its consequence; such as knowing about a bowel tumour when no surgeon will remove it. This is the unreconstructed, utilitarian view. The reconstructed doctor would say – ‘The right to withhold knowledge does not flow automatically from ones role as gatekeeper to that knowledge.’ Knowledge, in the patient’s hands, might lead down an entirely different path. It may augment self-awareness, it may cast a different contextual light on their days, months, years or decades to come. Without such knowledge, patients will progress through life knowing only half the story – half their story. Ownership of knowledge lies at the heart of candour, and wresting it away from doctors is a major part of the culture change.
Pressing the right buttons
I have tried to show how, if candour is to become second nature, doctors need to understand what good will come of it. The bare instruction to be ‘open and transparent’ is not enough. It does not press the right buttons. So what buttons can be pressed?
How about ensuring that the same thing does not happen again? This is getting closer. This is the leverage, in my view.
Nothing makes more of an impression on a doctor than sitting before a wronged or wounded patient and explaining. The emotional work involved in laying out the details, treading the fine line between self-flagellation and blaming the ‘system’ is immense. The result is a memory scar. Whatever happens, the doctor won’t let that happen again. There is now a motive to go out and change practise (be it heightened vigilance, focussed training or improved supervision of trainees – just a few examples) or work to strengthen the weak links within the system.
So, candour may have a motivating role – as a sort of punishment. This still feels unsatisfactory. There has to be a more methodical justification.
A pre-candour routine
The work that precedes a duty of candour approach should not only include an analysis of what went wrong, but how it can be avoided in the future. This analysis is undertaken coolly, away from the demanding emotional work of the discussion itself. It is here, around tables with colleagues, over timelines and written accounts, that weaknesses in the system can be identified and suggestions as to how they might be reinforced offered. Then, when conclusions have been drawn and commitments to change made, the doctor can enter the room armed… with the promise of genuine improvement. The experience provides motivation, but the process that has come before provides progress.
The move to ensure candour is borne of respect for patients as people rather than receivers of care. The actions required by the new regulation seems uncontroversial in principle. Most reasonable people would argue that no further persuasion should be required to bring doctors into the process. But this is not enough. Doctors working within a hugely pressurised system are pulled from patient to patient without pause, and there is little space for reflection, regret or reaching out to families after the event. There is always another cohort of patients coming through the front door. To achieve candour routinely, such that good intentions are not trampled in the incessant flow of illness (and inevitable error), the NHS needs to make it easy. For like it or not, most of us are, at heart, unreconstructed.
New book… (click to explore)