Francis Report recommends criminal liability for not being candid with patients

On 6 February 2013, Robert Francis QC published the final report of the Mid Staffordshire NHS Foundation Trust Public Inquiry. One of the issues he covers is the extent of a healthcare provider’s duty to be open and transparent with patients. He discusses the fact that whilst there is already a duty in the Code of Conduct for NHS Managers to keep patients informed (Volume III Francis Report p 1481), this does not spell out the need for them to be open and candid with patients. He also points out that the Code does not apply to non-clinical managers and those in independent practice.

Francis ultimately recommends:

  • that there be a statutory obligation on anyone working in a healthcare organisation to inform patients (or their lawfully entitled personal representatives) where any death or serious harm has been or may have been caused to a patient by an act or omission of the organisation or its staff. The patient (or their personal representative in the event of death) should then be informed of the incident as soon as is reasonably practicable, be given full disclosure of the circumstances and be offered  appropriate support, whether or not the patient has asked for this information.(Recommendation no.174, Vol III p 1494)
  • that the provision of this information would not of itself be evidence of or an admission of any civil or criminal liability, but non-compliance with the statutory duty would entitle the patient to a remedy (Recommendation nos.174 & 181, Vol III p 1494-5). It is not clear what the remedy might be, but it is likely to include some form of compensation.
  • that it become a criminal offence for ‘any registered medical practitioner, nurse or allied health professional or director of an authorised or registered healthcare organisation to knowingly obstruct another in the performance of these statutory duties, to intend to mislead a patient or relative whilst providing information, or to dishonestly make an untruthful statement to a commissioner or regulator, knowing or believing that they are likely to rely on the statement in the performance of their duties’ (Recommendation 183, Vol III p 1495)
  • that the CQC would be charged with policing the observance of this duty and would ‘in the last resort’ have the power to prosecute in cases of ‘serial non-compliance’ or ‘serious and wilful deception.’ (Recommendation 184, Vol III p 1495)

The above provisions appear to be considerably more onerous than the current requirements of a registered provider or registered manager to notify the CQC or NHS Commissioning Board of the death or injury of a service user under the CQC Registration Regulations. It will be interesting to see whether this does become enshrined in legislation in the coming months.  We understand that the Department of Health will be responding to the Report in March 2013. We will do an update on this important issue as soon as the Government’s response is known.

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