Duty of candour: a middle ground in the battle of treatment versus the remedy
The recent publication of the Francis Report in February 2013, an inquiry into the failings of the Mid Staffordshire NHS Trust Foundation, has brought back into focus long-running questions over remedy once negligence has been found. This case has proved to be more controversial given the harrowing facts. Investigations found at least 1,200 patients had died to poor care, with patients left lying in their own urine and excrement for days. Some patients were so desperate for water that they had to drink water from vases. Even more worryingly, the facts surrounding this case should not be seen in isolation, as the Care Quality Commission has said that it has worries about other hospitals across the country and will look to carry out on-the-spot checks.
Alongside recommendations surrounding the recruitment and training of NHS staff, The Francis Report is now urging transparency in the NHS. The report suggests that middle managers should face sanctions in cases of misrepresenting facts, as well as actively encouraging NHS staff whistleblowing. This should better highlight cases of medical negligence, and more importantly, should speed up the process between the moment of negligence and remedy. It will also avoid future cases of high profile scandals such as Mid Staffordshire, which has been so damaging in the relationship between public and National Health Service.
However, this proposal raises a number of ethical questions and forces us to address issues at the core of medical negligence. On the one hand, proposals looking to achieve greater transparency in the NHS seem intuitively just, as patients suffering harm should have access to compensation. On the other hand, a proliferation of claims poses other problems. Since 2008, claims registered have increased 80%, and in the last year alone the NHS has spent £1bn on settlements. This brings the topic of resource allocation into the light, and calls for a thorough analysis of what justice requires.
A duty of candour, suggested by the Francis Report, may provide some solution to our lawmakers. Such a duty places the onus on healthcare services to inform the patient of malpractice and offer an appropriate remedy, regardless of whether a complaint has been made or questions asked. This forces healthcare providers to be critical of their own services and strikes a balance between the transparency so desperately needed in the NHS and also providing compensation where appropriate. This may also better resolve the ethical notions of patient redress and resource allocation, as more resources would be diverted to the NHS being self-reflective and improving its services.
The Francis Report brings into the limelight a set of facts and subsequent recommendations that are difficult to ignore if there is to be any trust between healthcare service and the public. Whatever road is to be taken, a change in the balance of the competing ethical tensions will no doubt have far-reaching consequences within the field of medical negligence and its structure.