Comment: ‘Ambiguous’ NHS guidelines are working against already strained health service

26th March 2019

Fletchers Solicitor’s Medical Negligence Solicitor, Susan Healey believes convoluted NHS guidelines are preventing the health service from providing a better quality of care.  

Writing in response to a recent Care Quality Commission report that highlighted, amongst other areas of concern, that NHS staff are reportedly too afraid to engage with bereaved families, Susan considers that when it comes to improving the quality of care the health service can offer, too many cooks are spoiling the broth.

“The principle of Duty of Candour is supposedly well established and prior to the Duty of Candour being put on a statutory footing, it is known that the MDU and GMC have encouraged members to provide explanations when things go wrong.

“However, it has been argued that the MDU, GMC, RCS and other medical defence unions and governing bodies have had to cognise two systems pertaining to the Duty of Candour.

“That being organisations encouraging and guiding as to what should be said and done whilst medical staff adhere to the statutory obligations of Regulation 20 Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

“The guidelines to which the NHS have to adhere cause ambiguity, uncertainty and anxiety. Terms and expressions do not cover every eventuality for example what constitutes a ‘near-miss’ is subject to interpretation and opinion, as does ‘moderate harm’.

“Who is the ‘relevant person’ to be informed? If the patient has self- discharged on acrimonious terms, what is to be done? Who is to attempt to contact the patient? What if there is internal disagreement as to who was to blame for the wrong doing, what if the surgeon ‘blames’ the anaesthetist and the anaesthetist ‘blames’ the post- operative care by the nursing staff.  Who wants to ‘carry the can’ as to fulfilling the duty of candour responsibility?  

“The issues that may have to be deliberated before taking duty of candour action can only induce delay in reporting within ten days as there are multiple considerations.

“Litigation between patient and healthcare provider is painful enough, but conflict and blame shifting clinician against clinician is damaging for all who have to work in that environment. Healthcare providers will be defensive in acknowledging that duty of candour needs to be addressed if this is then fed back into departmental reviews and audits.

“Such a defensive attitude is of no surprise and it is likely that departments will want to make their own enquiries without discussing or divulging information about the issue certainly until it is determined who was to blame.

“Opportunities to improve patient care and to learn from errors are missed and this is often as a result of NHS staff not understanding Duty of Candour; the terms and definitions are not clear and often the purpose is lost amongst infighting and attempts to shift blame internally.”

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