Many lawyers in healthcare law strongly argue that if nurses and doctors improved their communication practices between each other and with the patient then there would be less litigation and fewer complaints. The cases involving communication failures are various and can have fatal consequences (as we see in the reports of Never Events).
A patient who has suffered an avoidable adverse healthcare outcome may also resort to seeking legal advice or to making a formal complaint because they have been spoken to in a poor manner by a nurse or doctor. A condescending or evasive tone may have been used and the patient now feels that the only remaining course of action is to seek out legal help in finding out what went wrong with their treatment and care. Often all that patients want is an explanation of what occurred, an apology and an assurance that what happened to them will not happen to anybody else. These patient sentiments have been referred to by many legal and patient safety commentators over the years.
Good communication practices are essential to develop a patient safety culture. A defensive NHS cultural response to patients who have suffered an adverse healthcare event will only make matters much worse in the long term. It will result in aggrieved patients escalating matters.
The duty of candour
One way forward to ensuring good communication practices in health care is the proper implementation of the duty of candour.
The duty of candour is about being open and honest with people. There are professional duties of candour along with a statutory duty. In terms of the statutory duty of candour this comes under Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 20.
The Care Quality Commission (CQC) offers advice on compliance with the duty (CQC, 2022) and has prosecuted providers for not complying with it.
‘Spire Healthcare Limited has been ordered to pay a total of £20,104.36 after admitting it failed to apologise or disclose details of failures in their treatment, to four patients in a timely manner.’
CQC, 2021
‘The Care Quality Commission has fined Royal Cornwall Hospitals NHS Trust £16,250 for failing to apologise to patients within a reasonable period.’
CQC, 2019
In one sense, the need to ‘be open and honest’ with people should not need stating, it is such an obvious thing to do and to speak of. Doing this should be implicit in any care relationship. It is a professional duty, which should feature in all professions including those outside health care. Sadly, some health carers have shown major lapses in doing this obvious thing. It is also a key ethical import into caring for patients.
Statutory and professional duty
That we have statutory and professional duties of candour is a good thing, these can also be seen as safety nets. We know that in terms of patient safety culture development the NHS has had a tarnished history when it comes to learning from the patient safety errors of the past. Many also argue that there is a pervading defensive NHS culture when errors are made.
Professional regulatory organisations such as the Nursing and Midwifery Council or the General Medical Council maintain professional duties of candour for people in those professions.
CQC (2022) set out the difference:
‘Both the statutory duty of candour and professional duty of candour have similar aims – to make sure that those providing care are open and transparent with the people using their services, whether or not something has gone wrong … The statutory duty also includes specific requirements for certain situations known as ‘notifiable safety incidents’. If something qualifies as a notifiable safety incident, carrying out the professional duty alone will not be enough to meet the requirements of the statutory duty.’
The Medical Defence Union (2020) states in regard to the statutory duty of candour:
‘The duty applies to organisations rather than individuals, but staff should cooperate to make sure the organisational obligation is met.’
There have been discussions into how well the CQC enforces the statutory duty of candour and there have not been many prosecutions to date. The charity for patient safety and justice AvMA (Action against Medical Accidents) has been active in this area and have produced some excellent reports (Blythe, 2016; Negri, 2018).
‘Since our 2016 report the CQC has improved in their inspection and reporting on compliance with the duty of candour. However, our analysis showed that even where problems were found with trusts’ compliance with the duty of candour and are mentioned in the inspection report or the evidence appendix, often this still was not leading to a recommendation to address it.’
Negri, 2018: 7
Royal College of Radiologists
The Royal College of Radiologists (RCR) (2022) has recently produced guidance on the duty of candour. This covers topics including the principles of candour, definitions and assessment, and specific difficulties in radiology. There is a discussion of the professional duty and statutory duty of candour. There is also, early in the guidance, a discussion of harm, discrepancy, error, and the relationship between these concepts, which presents a good prompt for reflective thinking:
‘Not all discrepancies are errors, and not all errors result in harm. The number of errors that have resulted in harm will therefore be substantially less than the number of discrepancies identified within a department.’
RCR, 2022: 9
The point is made that assessing whether a radiological error has led to harm can be difficult. Radiologists will not have examined the patient or have seen them. The concept of ‘an incident’ is discussed and how difficult it is to apply this to diagnostic radiological practice:
‘Most diagnostic radiology discrepancies only become evident in hindsight. It is usually not immediately clear that they represent “something [that] has gone wrong…".’
RCR, 2022:11
This publication raises some fundamental issues in a reflective manner. I found the discussion of ‘reactive candour’ particularly informative – it states that ‘reactive candour is akin to the concept of openness in the Francis report’. This provides an excellent patient safety teaching and training resource.
Shared decision-making
The duty of candour, properly executed, works to enhance good patient–professional communication. Shared decision-making can also help do this. Both strategies can work towards the reduction of litigation and complaints through the promotion of good and reflective practices.
An involved patient has more access to information and a better view of what is happening to them. They would also seem more likely to have realistic, informed insights and perspectives on their own treatment and outcomes than those who were not so involved. There are key issues involved with shared decision-making, which are unpacked by a recent report on the issue by the Patients Association (2022).
This analysed the views of 1416 clinicians and professionals (GPs, hospital doctors, practice nurses and specialist nurses) on shared decision-making through an online survey. The report includes discussion of several issues, not only what clinicians and professionals think about shared decision-making, but also variations in responses by doctors and nurses, and barriers to shared decision-making.
‘Throughout the survey, nurses reported feeling more positive about shared decision making than doctors, and more confident in their knowledge about it. Perhaps not coincidentally, they also reported being more extensively trained in it, both before they qualified and later. Although the differences were sometimes modest, this pattern was remarkably consistent across multiple questions.’
The report makes several recommendations noting the current NHS resource constraints as an inhibiting factor. A more co-ordinated effort is needed on the part of the NHS to effectively use the resources that exist and promote good workforce practice.
Questions suggested for further research include whether the differing attitude identified in the survey results between nurses and doctors on shared decision-making are restricted only to the shared decision-making parameter. Could this be representative of a bigger cultural gap between the two professions? Clearly more food for thought and a very interesting research question to pursue.
Data from the survey also showed that specialist nurses were more positive towards shared decision-making than other groups surveyed. The report also flags this up for further research. This is an excellent, reflective report and the findings are clearly expressed with good recommendations. It lays out an important agenda for change.
Conclusion
It is clear from the many patient safety reports over the years that there is a direct correlation between professional communication failures, clinical negligence, and patient complaints. If nurses and doctors improve communication strategies between themselves and with their patients, then there would be less litigation and fewer complaints. The NHS would also move with greater velocity towards the development of an effective patient safety culture. Two tools to assist this are the duty of candour and the concept of shared decision-making.
As a matter of pure common sense these both must enhance the communication process and help the patient become more positively involved in their treatment and care. Both initiatives are to be welcomed.