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New Legislation on 'Duty of Candour' Will Help to Raise Standards But Resources Are the Real Issue

21/07/2014 13:53 BST | Updated 17/09/2014 10:59 BST

New legislation intended to ensure patients treated by the NHS receive safe care is an important step forward but without more resources, it is difficult to say how much impact it will have, according to Bolt Burdon Kemp.

The new law comprises 11 fundamental 'standards of care' that all health and social providers must adhere to, including ensuring that staffing levels are adequate. Fines of up to £50,000 will also be imposed for providers that fail to protect patients from abuse, fail to provide safe care or if patients suffer as a result of not getting enough to eat or drink.

Included in these standards of care is an obligation for health and social care providers to own up to any 'mistakes' that cause a patient 'significant harm' - this new 'duty of candour' requirement will take effect in October this year.

Commenting on the new legislation, Caroline Klage, partner and medical negligence specialist at Bolt Burdon Kemp, said:

"This legislation will be seen as an important step in the quest to drive up standards of patient care. Providing safe and competent care to patients should be a given. However, the real challenge here is overcoming the practical barriers. How can we expect health and social care providers to ensure adequate staffing levels if the necessary resources are simply not available?"

Commenting specifically on the new 'duty of candour' requirement, Caroline Klage added:

"The 'duty of candour' is founded on the basic principle that it is only by being open and honest about mistakes and shortcomings that they can be properly addressed and effective steps taken to ensure that they are never repeated.

"Despite calls for a 'duty of candour', some Trusts have struggled to embrace the notions of openness and transparency and are continuing to try to silence those brave enough to speak out in the interests of patient safety. They are effectively sweeping concerns under the carpet and this legislation is intended to bring them out into the open.

"In most other professions, we would expect professionals to feel able to voice their concerns about colleagues who had performed poorly, made repeated mistakes and provided poor client care. They would expect their managers to listen to these concerns, investigate them and if necessary, take steps to prevent the mistakes from re-occurring and to manage poor performance with the help of training, performance reviews and grievance and disciplinary procedures. Such openness, prompting intervention where necessary is even more important in the NHS where poor care can cost lives.

Unfortunately, there is a widespread fear of recrimination within the NHS which needs to be tackled urgently in order to raise standards of patient care. There have been a number of reports of appalling treatment of whistleblowers. Whilst the move to legislate to require providers to adhere to a 'duty of candour' will be seen by many as a very important step forward, it will be meaningless unless steps are taken to ensure that there is full organisational support for healthcare workers who are courageous enough to voice their concerns. These people are the true champions of the NHS. They are prioritising patient care over their own job security.

"It may well be that Trusts are inclined to suppress complaints because ultimately they simply do not have the finances needed to properly address key issues such as understaffing. The effect of this lack of funding should not be under-estimated.

"To make real and lasting improvements to patient care, much more must be done to give people the confidence to speak out openly and honestly about their concerns. Potential whistleblowers must be able to voice their concerns safe in the knowledge that this will not impact negatively on their careers, that they will be listened to and that positive changes will be made. Equally, any financial problems must be addressed to ensure that funds are available to implement positive change and alleviate widespread problems such as understaffing."

Caroline Klage, partner and medical negligence specialist at Bolt Burdon Kemp