Candour

Justice and safety: a dialogue on the case of Dr Bawa-Garba

 

Everyone must have a view. Thousands have expressed theirs. Many have committed to funding an independent legal review. None were there. None heard what the jury heard. Most have read the essentials of the case, and we are worried that if we commit a serious clinical error, we may be ‘hounded’, ‘scapegoated’ or ‘persecuted’, first by the criminal justice system, and then by the GMC. But the GMC says this was no ordinary error. The court found her performance to be ‘truly exceptionally bad’. Yet the system in which she worked was limping, and unable to provide the support a doctor should expect. What would have been a proportionate punishment, if indeed punishment was required?

I present a dialogue between two doctors of differing views. This allows me to present both sides of the case, and also to explore my own ambivalence behind a creative framework. Because my response to this sad case is not straightforward, and it is still consuming my thoughts.

If you are unfamiliar with the case, it will help to read this BMJ article. Also useful is the MPTS (Medical Practitioners Tribunal Service) report [link subsequently taken down] and the transcript of the recent High Court judgment. [On 13.8.18 the Court of Appeal overturned the High Court’s judgement]

Dr A, you will soon realise, is hawkish and unsympathetic to her plight.

 

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Dr A. You know, my first reaction when reading about the errors made that night was – What? Lactate 11, pH 7.0, that’s clearly a sign of extreme physiolgical stress, actually of imminent dying… there can have been no sicker patient in the hospital… how could a doctor go off and do something else for several hours before checking up on the child?

Dr B. At the start she treated the child correctly, that has been accepted. But she had no choice but to ‘go off’. She was running the entire service, carrying the crash bleep, and struggling against a failed IT system. If she’d stayed with one child the other patients would have been neglected.

Dr A. It was busy. We’ve all been there. So when the pressure is on you have to prioritise, and if that results in two equally deserving cases needing simultaneous attention, and you can’t give that attention, you escalate.

Dr B. To the consultant you mean?

Dr A. Yes. He was there, there was a meeting in the afternoon. The blood gas results were read out. He could have been asked to help.

Dr B. But he didn’t offer to see the patient, did he, despite having heard the result?

Dr A. So what? A registrar of that seniority would be expected to ask, and assert themselves if they didn’t get the answer they needed. No consultant would refuse.

Dr B. We don’t know what was said. What does your consultant do – offer proactively to see anyone who sounds sick, or wait to be directed by you?

Dr A. A mixture, it depends who it is, keen, passive… they vary.

Dr B. But you insist she was the prime coordinator, the clinical leader in that situation, the one who should have coped. It was all on her?

Dr A. She was the one with the first-hand knowledge of the patient. So yes. I am critical. The enalapril – again, it sounds like a lack of asserting her impression on the plan, i.e. she should have said, don’t give that drug, whatever happens. And the DNACPR error, that seems to belie a mind sinking in the tide of events…

Dr B. So you accept that events, the environment, the circumstances, were also a factor.

Dr A. Yes, of course. We all work in similar circumstances, we always have done. And we cope, or recognise that we are sinking and ask for help.

Dr B. You really are a hawk on this. Do you feel sorry for her?

Dr A. Yes, but this is beyond emotion. This is about safety. And, based on what I have read, there was justification in the gross negligence manslaughter judgement. Moreover, I don’t see how the GMC had any choice but to press the point by overturning the MPTS who, the High Court judge feels, over-reached themselves in downgrading her culpability. You can’t have doctors guilty of gross negligence running acute paediatric services… surely. The GMC are, if you like, accommodating a decision made by a higher power in the land, a jury. It doesn’t matter if a tribunal panel feels it was over-harsh, given the extenuating circumstances, to take away her career and livelihood forever. The GMC have to cut the regulatory cloth to fit the ‘criminal’ form, i.e. strike her off.

Dr B. But the MPTS saw evidence of remediation. She was employed for two years after the incident, seeing children every single day. Clearly, she was not unsafe. She had learned, improved. Isn’t our training all about learning from the mistakes we have made to become better doctors?

Dr A. There is a limit. And by year 6 of specialty training, most of the basic lessons should have been learned. Look at it through the prism of public confidence, which I suppose is what the GMC must do. If she goes back to work, even under supervision, will a parent be told that the doctor on call who is coming to see their child was, in the last few years, found guilty of gross negligence? Wouldn’t you want to know, if it was your child? Or do you have sufficient faith that remediation, and training, are good enough to ensure that those traits that led to a guilty verdict have been abolished for good? The high court said it couldn’t be sure that she wouldn’t suffer another ‘collapse’ in performance one day. I agree. It happened once…

Dr B. But look at any hospital. There is a spectrum of competence. There has to be, because there is human variability. And I do not expect to be made aware of the competence level of each doctor I see. I must have faith, in the training system, in the deaneries and in the Trusts – actually, in the GMC, that each of them is safe. If the MPTS felt that she was safe, and had remediated, why not believe them? Why look simplistically at the jury’s verdict and use that as a permanent, inerasable, measure of performance, one that was made without some pertinent facts.

Dr A. So you wish to re-try the case, in your own head. You would overturn the jury’s decision?

Dr B. Yes. I believe it was unjust.

Dr A. You know better?

Dr B. Perhaps.

Dr A. Naïve. That is not how justice works in this country. The jury has the final word. I’m sorry. You can’t second guess it.

Dr B. Juries have been wrong.

Dr A. Yes, when miscarriages of justice have occurred. But that is not the case here. The High Court examined the question of what the jury were told, and found no problem with it. There has been no miscarriage of justice. No-one is saying that.

Dr B. Yet… it is unjust.

Dr A. Once the ball of justice began to roll, once it became a police matter, there was no going back.

Dr B. So perhaps the thing that should have been done differently would be for her not to have been arrested and tried. Perhaps the very concept of gross negligence manslaughter is wrong. Where there is no will to cause harm, only failure to do well (whatever the circumstances), perhaps we should not involve the courts.

Dr A. But a child died, possibly needlessly, definitely earlier than he should have. How can that not arrive at the door of Justice?

Dr B. Avoidable deaths are all around us. We see them, we discuss them, we learn from them, every week and month. Avoidable deaths are grist of the mill of patient safety. I saw an estimate that there are 9000 per year attributable to poor care in hospitals. We must accept that avoidable deaths will occur, not pounce on them and send each to Law. This is the problem, don’t you see? This is the harm. By raising the fear of recrimination and sanction in the minds of doctors, those weaknesses in our systems, all those near-misses or harms that could signal a fatal accident to come, will go unexamined. Who, having been involved in a clinical incident that caused any meaningful harm, or even death, will now put up their hands to attract attention and bring on a good investigation? Fewer, now. Because if the patient or the family decide to pursue the individual, and by degrees the incident moves into the view of the Crown Prosecution Service, then they could end up losing everything. That is the harm here. The future of patient safety.

Dr A. You ask too much of the GMC and the courts. I would rather base decisions on the definite past than the possible future. It happened. The worst thing that can happen to a patient, neglect, incompetence, happened. On that day she was ‘truly, exceptionally bad’ – did you read the judgement? There are very few people who disagree with that assessment. The MPTS also accepted that there was gross underperformance, as far as I understand. A boy died, despite having signs and clinical features that anyone, paediatrician or not, would have recognised as deserving of the closest attention, and escalation, and absolute prioritisation. There is more to this than her career, and her ability to improve. There is a wrong, of such magnitude that time cannot just be allowed to roll on, allowing her to resume her career.

Dr B. I am surprised. You really have no sympathy, no sense of professional camaraderie?

Dr A. It’s irrelevant. And dangerous. Camaraderie is also called ‘closing ranks’. Just because we belong to the same professional group does not mean that I should automatically support her in this. I know there are bad doctors out there, I’ve worked with them. A line has to be drawn. Look… her qualities have been examined to the utmost, by intelligent people from all walks of life, and mitigating circumstances have been examined, and despite this, her fitness to be a doctor has been found lacking in the High Court. What more can you ask for?

Dr B. Perhaps, one day, you also will find yourself sinking in events, off your A-game, unable to make good decisions, unsupported by a passive consultant… wouldn’t you expect sympathy from your colleagues?

Dr A. I would expect a fair process.

Dr B. And you think the process has been fair here?

Dr A. Harsh, yes… but fair.

 

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Note: today (30.1.18) the GMC has undertaken to examine the role of Gross Negligence Manslaughter cases, ‘ in situations where the risk of death is a constant and in the context of systemic pressure. That work will include a renewed focus on reflection and provision of support for doctors in raising concerns’.

 

 

A few excerpts:

The MPTS, quoting a previous tribunal in which a doctor found guilty of gross negligence manslaughter was NOT struck off – “The Committee was rightly concerned with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards. But this should not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment.”

MR JUSTICE OUSELEY, in the high court –However […] the Tribunal (MPTS) did not respect the verdict of the jury as it should have. In fact, it reached its own and less severe view of the degree of Dr. Bawa-Garba’s personal culpability. It did so as a result of considering the systemic failings or failings of others and personal mitigation which had already been considered by the jury; and then came to its own, albeit unstated, view that she was less culpable than the verdict of the jury established.’

MR JUSTICE OUSELEY, on systemic failings that were not shown to the jury in the original GNM hearing – ‘There were two “systemic” failings not explored at trial which Mr Hare acknowledged, but we accept his submission that Dr. Bawa-Garba was convicted notwithstanding the difficulties to which they gave rise, and that they could not have affected the verdict.’

MR JUSTICE OUSELEY – ‘Dr. Bawa-Garba, before and after the tragic events, was a competent, above average doctor. The day brought its unexpected workload, and strains and stresses caused by IT failings, consultant absences and her return from maternity leave. But there was no suggestion that her training in diagnosis of sepsis, or in testing potential diagnoses had been deficient, or that she was unaware of her obligations to assess for herself shortcomings or rustiness in her skills, and to seek assistance. There was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or was something wholly out of the ordinary for a Year 6 trainee, not far off consultancy, to have to cope with, without making such serious errors. It was her failings which were truly exceptionally bad.’

LORD JUSTICE GROSS (sitting with Ousely in the High Court) – ‘Like Ouseley J, I reach this conclusion with sadness but no real hesitation.’

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Exercises in candour

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I am presenting some cases on the Duty of Candour next week, so I thought I would explore them on the blog first. The Duty of Candour is now a legal requirement rather than a vague, moral imperative. If a patient comes to avoidable and significant harm the patient must be informed within 10 days of it being recognised, an apology must be made and an explanation given which should include what will be done to ensure that it does not happen again.

Error is a fact of life in medicine. Not all error leads to harm, and not all harm is significant. But working out when the Duty of Candour should be invoked is harder than it looks on paper. Over the last few months many of us will have been involved in discussions with colleagues, or in our own heads, as to whether something that happened that was not quite right should be explored with the patients or their family as part of this Duty. You cannot check an adverse event off against a list of significant harms. A judgement first needs to be made whether the harm was significant, but even having done that it is not easy to progress.

These cases are intended to be based on everyday life in hospital, and the responses to these cases are just my first thoughts. I don’t know the right answers!

 

1] A house officer is tabulating her patients’ blood results first thing on a Friday morning before the ward round. She finds that yesterday a man’s potassium was extremely high at 6.9. The blood was taken in morning and the result was on the system by the middle of the afternoon, but for one reason or another the result was not checked and no action was taken. The doctor knows that this put the patient at risk of cardiac arrest, and even as she sits at the computer looking in horror at the number on the screen, she knows that her patient could drop dead any second. She runs onto the main ward and sees from a short distance that a patient is absolutely fine. He glances up and sees the concern on her face. She steps forward and says… What should she say?

There has been an error, a significant omission. The patient’s life has been put at risk. But the patient is fine. No harm has been done. If she chooses not to tell the patient what she is worried about, but quietly rechecks the blood or prescribes some insulin and dextrose, he may never know the danger he was in. The problem will just receded into history. What would you do?

My feeling here is that the Duty of Candour is not invoked because harm was not done. It is a near miss, and you could argue that the event should be recorded on hospital’s register of adverse events. But I think the reasonable doctor would tell the patient that she was concerned about a blood test, and should probably come out with it and say “we checked your potassium yesterday, it was very high, but I’m afraid the result did not get through to the team,” or something like that. There is no denial, but there is no dramatic telling of what might have happened. Or perhaps she should say more, or her consultant should, along the lines of, “I’m afraid there was a mistake made yesterday. You were at risk of having a heart attack overnight and thankfully that did not happen. We are very sorry… we think we know why it happened, and we have made sure that all results are seen every evening…” That sounds better.

 

2] A registrar inserts a central line into a patient’s neck having obtained their written consent. On the list of potential complications, on the consent form, are infection, bleeding, inadvertant cannulation of the artery and pneumothorax (collapsed lung). Two hours after the central line insertion, while the patient is waiting for the check x-ray which has been somewhat delayed, the patient experiences chest pain and breathlessness. He is examined and there is clear evidence of a pneumothorax on the side where the line was inserted. A portable chest x-ray is done straight away and shows a large pneumothorax. A chest drain is inserted as an emergency, the patient symptoms are relieved, but he stays in for 10 days longer than intended.

Was this an error? It was a known complication certainly, but it was not intended that the sharp needle would pierce the pleura. Whoever pushed the needle pushed it into the wrong place. That sounds like an error. But the patient agreed to have a procedure knowing that this could happen. Is Duty of Candour invoked here?

Well, the patient did come to significant harm (an extra procedure, 10 more days in hospital). If I was the doctor I would certainly come back to the patient, when they were feeling better, and explain what happened; but I would explain also that this is not a particularly infrequent problem, hence the reason we take a focused consent. I would probably say sorry, but not as a personal admission of guilt, but more to say that I was sorry for the situation and sorry that it happened to him. I would feel able to maintain this attitude if I felt that I went into the procedure confident that I was well trained and that I had done everything by the book – be it the use of ultrasound or a good track record of successful insertions. If everything was done as well as it could, then you could argue that the complication was not avoidable.

Such a conversation would be an example of openness, transparency and certainly in the spirit of candour, but I’m not sure if it would tick the box for a formal Duty of Candour response from the Trust.

 

3] An SHO prescribes the antibiotic Tazocin for a patient who is known to be penicillin allergic. Tazocin contains penicillin, and all competent hospital doctors should know that. The drug chart states clearly that the patient is penicillin allergic. It is a grave error and should not have happened. The patient suffers an anaphylactic reaction, spends three days in intensive care and an extra seven days in hospital. Their recovery from a minor operation is seriously impeded.

The SHO is called in by his educational supervisor, and the circumstances behind the mistake and prescription are explored. It was probably just a consequence of the doctor being in a hurry. He admits to that, and says he cannot even recall looking at the front of the drug chart for the list of allergies. The consultant and the SHO agree that the harm must be explained to the patient, and that Duty of Candour requires them to apologise, explain how it happened and how they will try to stop this in the future. There is no question of not admitting that an error occurred, because it is obvious. The question is how to apologise. The SHO decides that he must do this himself, under supervision, but he feels morally obliged to initiate the conversation. He wonders, as the time scheduled for the meeting with the patient and her husband draws near, what he will say. Will he cry? He certainly came close to crying on the day itself. He was horrified with himself. He wanted to give up medicine. He had nearly killed someone who had come in for a minor operation. But he has asked around, and he knows that better people than he have made the same mistake. That is no excuse of course, and he knows he will never do it again because the scar is burned deep into his memory. He cannot talk like this in front of the patient. It will depend on the patient’s attitude. Sometimes they feel sorry for a clearly regretful or distraught doctor, and they wish to comfort them. Sometimes they, or their relatives, appear to be burning with anger and resentment; they want someone to pay a price. He decides that he will say sorry straightaway. Then he will explain how it happened, but he can’t make it sound like he’s blaming the hospital for keeping him busy. He will just have to say that for those few moments he did not pay enough attention during an important task. And then, well, the conversation will go in the direction the conversation wants to go.

 

4] The medical registrar on call, Lucy, spends several hours of the night with one particular patient, trying to make her better. She is 79 and appears to have a horrible infection. Her blood pressure and temperature are very low and however much fluid the registrar gives she cannot increase it. Intensive Care say they will come down to review, but in the meantime the registrar writes up bag after bag of fluid (which is a reasonable initial treatment of severe sepsis.) She does all the other things that she should, takes blood cultures, gives antibiotics, monitors closely, arranges a high dependency bed. The BP eventually comes up a few points, just enough to avoid the patient going to intensive care. The consultant comes in next morning to see the patient with the registrar, and immediately recognises something is wrong. As he examines the patient there is a rapid deterioration. The blood pressure falls to dangerously low levels and the oxygen saturation goes down to less than 60%, barely compatible with life. The consultant, holding the ECG, cannot hold himself back. He turns Lucy and says “Have you seen this? She’s had a posterior infarct, this isn’t sepsis, this is cardiac failure. You’ve drowned her!” And then all hell breaks loose. The patient crashes, the cardiac arrest team run onto the ward and the patient is intubated then rushed off intensive care. She is literally drowning in the fluid the registrar prescribed overnight, 6 litres of it.

Lucy, remaining on the ward, looks at the ECG. She remembers seeing it in the emergency department, but she didn’t make much of it. It was not that dissimilar to a previous one, but it’s all a blur now and she can’t remember correctly. The truth is she missed an acute myocardial infarction, and she treated this patient incorrectly, as incorrectly as it is possible to do. The patient follows a rocky course, but survives intensive care and makes it out of there onto the cardiac ward. Her brain is not what is was, and there is talk that the period of low oxygen levels in her blood led to a mild degree of brain injury.

During this time Lucy subjects herself to much criticism. How could she get it so wrong? She is aware of the ‘new Duty of Candour’ and finally, having considered it carefully, asks her consultant if they should tell the family that their relative was mismanaged for the first five hours of her admission. What would you say, as the consultant?

Treatments given are often on the basis of diagnoses which are not clear cut. This is a case in point. I remember myself mistreating a patient who had cardiogenic shock when I was a junior doctor, and I remember the look on my registrar’s face when she recognised my error the next morning. In this era of candour how do we manage misdiagnosis? Diagnosis is a skill and sometimes an art, and cannot always be correct. The point about the Duty of Candour is avoidable error. To avoid this error the registrar would have had to have been a different person. Let us assume that she is of good medical standing, has maintained her continuing education and is generally up to scratch. Nevertheless a gap in her knowledge was revealed that night. She failed to identifying an important medical condition, one that many would expect a medical registrar to have done successfully. But we all have gaps in our knowledge. She made a diagnosis based on the data before her, processed that data through the mind of someone educated to the same level as any other doctor in the hospital. Yet she made the wrong diagnosis. Was that avoidable? Probably not. Yet this lady, now permanently injured, might well have had a much better outcome if only another doctor had been on duty that night.

This scenario I find very challenging. I honestly do not know whether it should be expected of the medical team, or the doctor in person, to apologise for what happened. Yet the decent doctor, I believe, would want to meet with the family and go through things, to communicate – to tell the story of what happened and why. This might include describing how patients with cardiogenic shock can sometimes look as though they have severe sepsis, and that this is what happened. The diagnostic ‘mistake’ is revealed, but not in way that would categorise it as formal ‘medical error’. Perhaps this is splitting hairs, or over-thinking the whole issue.

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What I take home from these cases is that the formal process of applying the Duty of Candour may not be well suited to the wide spectrum of everyday medical error, and the many grey areas that exist. The message that I take away is that we must develop the habit of explanation, be quick to tell the story of what happened and why, but not to dwell too long on the emotional or moral weight that comes with the concept of apology. If we have made a mistake we must say so, but all error occurs within a context of uncertainty, and without trying to make excuses it is reasonable to explore mitigating circumstances. We must find a way of displaying candour while preserving the ability to pick ourselves up and deliver care to the next patient.

Unreconstructed: the challenge of delivering candour

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.

 

Conclusion

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.

oOo

New book… (click to explore)

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Candour crunch: being honest about risks in healthcare

The report Building a culture of candour – A review of the threshold for the duty of candour and of the incentives for care organisations to be candid’ makes very interesting reading. It seeks to define levels of harm that should trigger an approach to patients and relatives, and explores how organisations can be encouraged or compelled to develop a culture that facilitates this. It also touches on the realities of the ‘post-paternalistic’ era and the demonstration of candour in day to day practise.

Two excerpts:

‘Modern medicine offers an abundance of hope, but very few absolute certainties. One of the comforts (some would say benefits) of paternalism was to obscure this lack of certainty for patients. This is no longer sustainable, and it means that being candid when things go wrong needs to be grounded in being honest about what could go wrong from the start. Better conversations about risk and the potential for harm are essential for fostering a culture of candour…’

‘Clinical care is inherently risky, and while organisations and individual clinicians must do all they can to minimise those risks, it will never be possible to eliminate them fully.’

These appear to encourage a greater degree of upfront honesty about the risks of healthcare, rather than waiting for mistakes or unavoidable adverse events to happen before ‘owning up’. We could, fancifully, call this ‘pre-candour’.

I find the balance between upfront honesty and the provision of ‘too much information’ a hard one. Not all patients need or want the same depth of information about risk, even if, objectively, they face similar chances of accidental injury or death.

Opportunities to be open about risks begin in the Emergency Department or Admission Unit. Here I sometimes find myself explaining that coming into hospital is never routine, and that being on a ward brings with it physical and psychological risks. Sometimes this is part of the explanation as to why a patient should not be admitted. An example would be a young patient with a headache that does not sound suggestive of meningitis or haemorrhage; coming into hospital will not achieve anything, but they may have been led to expect admission to a ward, and may require convincing that it is right not to come in. The same might be true of a more elderly patient with a mild chest infection; they are weak and tired, they might benefit from three days in hospital, but if it is not entirely necessary, medically. A case may need to be made about why the risks outweigh the advantages. One begins to speak of ‘infections’ or ‘picking up bugs’. Is it appropriate to be negative about hospitals, and their inherent risks?

The ‘hospitals are dangerous’ mantra is unhelpful, but it is dishonest to portray hospitalisation in a neutral way. Henry Marsh, a (clearly disillusioned) neurosurgeon, wrote in the Independent newspaper recently that hospitals are

‘… like prisons and there’s a huge lack of insight into what a ghastly environment they are.’

This is depressing, but he has a point. An alert patient admitted to a general ward for more than a few days is likely to witness distress, disability, physical dependency, acute confusion, wandering, incontinence, the ravages of addiction and sadly, death at close quarters. Even with the most attentive and compassionate nursing, these aspects of frailty and illness cannot be hidden from the watchful.  Patients of all ages have mentioned to me how eye-opening and challenging the experience of being an in-patient was. It does not seem unreasonable to explain some of these things in advance.

As to the physical dangers of hospitalisation, the degree of detail we should go into varies. Hospital acquired infections overall are less frequent nowadays (the incidence of MRSA and C Diff has fallen dramatically in recent years), but hospital acquired pneumonia does remain a common development in the frail population. Should we explain this, or quote the incidence? Do elderly patients and their families, who are coping with the news that they are ill and need to be admitted, need to be told that ‘…by the way, there’s a chance you could catch something else as well…’?

A discussion about upfront candour is essentially a discussion about informed consent. In the context of planned procedures, this is clear and simple; we know which risks require explanation, the patient is enabled to understand these risks in relation to the benefits, and they agree or decline. But when we are discussing admission in the context of acute illness, the use of powerful antibiotics or drips that might facilitate the entrance of organisms into the blood stream, consent seems less relevant. The patient has no real choice about whether to come in or not. They are ill. To compound the stress of the situation by enumerating the additional risks may well be ‘too much information’.

The post-paternalistic culture in which we work emphasises that patients are our equals, partners in care, and nothing should be hidden. However, we must surely remain sensitive to the fact that patients are also vulnerable, and may, in certain circumstances, be happy to ‘have things done to them’ without full and frank discussion. All doctors will recognise the scenario of the patient who has halted them mid-explanation with the phrase, ‘Doc, just do what you need to do, OK.’

The key, it seems to me, is in modulating the degree of openness according to the patient’s condition, its severity, its acuity, and the signals given off by the patient regarding their need for information. This modulation depends on the doctor’s ability to understand the context and judge the person in front of them. Perhaps this requirement on the part of the doctor is itself paternalistic, as we are once again putting the doctor’s interpretation centre stage.

Paternalism is always tempting. It makes life simple. As the authors of the report write, ‘One of the comforts [ ] of paternalism was to obscure this lack of certainty…’ If things go to plan, and nothing goes wrong, the patient who was not been subjected to a conversation about risk will leave the hospital oblivious to the dangers that they faced, and their experience will in retrospect seem serene. If we are to encourage more ‘pre-candour’, we must be prepared to help our patients understand and accommodate the anxiety that may be engendered. This will require time to talk, time to listen, and time to answer. This is the price of candour, and of true partnership in healthcare.

oOo

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