In April 2015, a new legal duty “of honesty and transparency” brought in at the NHS towards the end of 2014, will be extended to all other health and social care providers in England and Wales.
Following the 2005-09 inquiry into the fatal abuse and neglect of patients at two Mid Staffordshire hospitals, new "statutory duty of candour" rules introduced at the NHS will force hospitals to disclose all harm caused to patients. Also under the legislation, medical and social care staff are required to apologise and inform patients when something has gone wrong.
According to a recent statement by APIL (Association of Personal Injury Lawyers), “People want answers, they want to hear the words ‘I’m sorry’ and to find out the truth, but often they face a bureaucratic brick wall.”
“Many people look for something positive after a tragedy. The knowledge that whatever has gone wrong will not be repeated, thereby sparing others, can be a comfort to them.”
However, the newly introduced rules are also thought to fall short of a key recommendation to make non-disclosure of any harm caused a criminal offence for NHS doctors, nurses or managers following the Mid Staffs enquiry in published in 2010.
Under the new legislation, a health-service provider is expected to provide notification, including an apology and provide reasonable support when any harm has been caused to a patient. However, it is understood that the actions would “not amount to an admission of liability.”
If medical staff do fail to tell patients that something has gone wrong, and the patient suffers further harm as a result, they will be liable for negligence. But legal action on the grounds of medical negligence is only to be available if a patient suffers harm as a consequence of non-disclosure.
As of spring 2015, the new duty of candour rules will also apply to social care ‘events’ where procedures are found to have been “misapplied or ignored.”