Published on 18 Jun 2015

New duty of candour legislation creates ‘two-tier health system’

The Health Secretary has been warned that he faces legal action unless he revises the new regulations requiring NHS and social care institutions to hold their hands up and admit when something has gone wrong in a patient’s treatment.

The new regulations, called duty of candour, were widely welcomed when they were brought in following the scandal at Mid-Staffordshire trust.

They require patients or their relatives to be told when an incident during treatment has caused significant harm. The rules apply to NHS and private health care and social care providers.

But now leading patient charity, Action Against Medical Accidents (AvMA) has said the way the regulations have been drafted means that private clinics and hospitals and GP surgeries could avoid admitting harm in cases where cause and effect are less obvious.

AvMA has now given the Department of Health until tomorrow to respond or it will seek a judicial review.

Their argument hinges on the words “could lead to”.

Under the legislation, only NHS hospitals, community and mental health trusts, would have to tell the patient or relatives of an incident that “could lead to significant harm”. That is where the harm is not immediately obvious but “could lead to” a disability, for instance, or death.

But, because of the way the legislation has been drafted, AvMA argues that private hospitals, treating both private and NHS patients, and GP surgeries are exempt.

Peter Walsh, AvMA chief executive, said this had created a two-tier system.

“Whether this is cock up or conspiracy, there is a law of unintended consequences,” Mr Walsh told Channel 4 News.

“A private nursing home or a GP surgery might say that the spirit of the legislation means we would have to tell, but their lawyers would be obliged to advise them that they do not need to tell the patient because it is not in the statute.”

Mr Walsh gives the example of a baby starved of oxygen during a delivery.  It may not be apparent that it is at risk of a learning disability or cerebral palsy, but the NHS hospital would now, under the duty of candour rules, have to tell the parents.

If that baby was born in a private hospital, they would not be obliged to say a word.

If some test results go missing in a GP surgery, but they don’t know whether or not this could lead to premature death, they would not have to say it had happened.

AvMA a claims this specific element of the regulations was not consulted on and it creates an unequal system, which is inconsistent with the NHS Constitution.

The charity cites the case of Stuart Hurrell, who died at the age of 39, after the private centre where he was being tested failed to give him one of his drugs.

Mr Hurrell had a severe form of dystonia, which causes severe muscle contractions and spasms.   He could not speak or eat and had to be fed and given his medication through a tube.

Yet staff at the centre failed to give him clomazepan, a benzodiazepine used to calm his muscle spasms, because they did to have any in stock.

An inquest later recorded a narrative verdict saying he had benzodiapine withdrawal, an increase in muscle spasms and that this led to severe muscle damage and renal failure.

Mr Hurrell’s father Paul, who lives in Gloucestershire, told us that if the centre had told him that they had not given Stuart the drug he would have gone to the GP and got a prescription.

Stuart Hurrell was an NHS patient in a private centre.   Under the new duty of candour rules, if he had been in hospital they would have had to have said something.  Yet the private centre would still not be obliged to speak out.

Mr Walsh, from AvMA, said that they were taking legal action reluctantly because they were grateful to Jeremy Hunt, the Health Secretary, for bringing in the legislation.  But they said they felt forced to make the move because of cases like Stuart Hurrell’s and others.

A Department of Health Spokesperson said:

“We want to make the NHS the safest healthcare system in the world and our duty of candour means that all health and care providers, including GPs, private hospitals and care homes are legally obliged to inform patients about failings in their care.

“We have always intended to keep the new duty under review, and will seek further views on how it is working.”

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