The Duty of Candour and Disciplinary Proceedings

Written by: Anthony Haycroft, Claire Watson KC
Published: 6 October 2015

Summary

  • The Regulators’ response to the Francis Report and the adoption of “A professional duty of candour”
  • The development of guidance to healthcare professionals.
  • The impact of “the professional duty of candour” on disciplinary proceedings: some practical tips on:
    • Rule 7 responses.
    • Witness statements: Should they be provided and if so when?
    • Giving evidence at a disciplinary hearing.

We are going to talk about how the Duty of Candour has practical application to fitness to practise proceedings in the regulatory field.

How in general have the Regulators responded to the Francis Report and the duty of candour? 

As many in the audience will know, long before the Francis Report and the statutory Duty of Candour there has been an existing requirement to be open in the codes of conduct for doctors and nurses. Taking the GMC’s Good Medical Practice as an example, this dates back to 1995:

  • In 1995 the requirements were quite basic.
    • Under the heading “maintaining trust: professional relationships with patients” doctors were required to “give patients the information they ask for or need about their condition, its treatment and prognosis” and to “respond to criticisms and complaints promptly and constructively” [para.11].
    • Under the heading “probity in professional practice” was the statement “you must be honest and trustworthy” [para. 37].
  • In 1998 under the heading, “if things go wrong” [paras. 16-19] there was the first substantive provision requiring co-operation with any complaints procedure or formal inquiry.  Doctors were also required to offer an apology “when appropriate” [para. 17].
  • By 2001 there were specific requirements to be open and transparent in relation to complaints and formal inquiries [paras. 29-32].  Practitioners were to:
    • Provide a prompt, open, constructive and honest response, an explanation of what happened and where appropriate an apology [para. 29].
    • Co-operate with any formal inquiry and with any complaints procedure; and
    • “…give, to those who are entitled to ask for it, any relevant information in connection with an investigation into your own, or another health care professional’s conduct, performance or health” [para. 30].
  • The first reference to whistleblowing appears in GMP 2006 which included new sections on “Raising concerns about patient safety” [para. 6] and “Being open and honest with patients if things go wrong” [paras. 30-31].

The earliest reference to “the professional duty of candour” comes from the Professional Standards Authority in a report to the Secretary of State for Health in October 2013. The report, entitled ‘Can professional regulation do more to encourage professionals to be candid when healthcare or social work goes wrong?’ is a response to a request for advice on the recommendations in the Francis Report some of which clearly do support the need for a professional duty. In particular, recommendations 173 to 184, which state (inter alia):

173: “Every healthcare organisation and everyone working for them must be honest, open and truthful in all their dealings with patients and the public, and organisational and personal interests must never be allowed to outweigh the duty to be honest, open and truthful.”

181: “A statutory obligation should be imposed to observe a duty of candour:

… 

On registered medical practitioners and registered nurses and other registered professionals who believe or suspect that treatment or care provided to a patient by or on behalf of any healthcare provider by which they are employed has caused death or serious injury to the patient to report their belief or suspicion to their employer as soon as is reasonably practicable.

The provision of information in compliance with this requirement should not of itself be evidence or an admission of any civil or criminal liability, but non-compliance with the statutory duty should entitle the patient to a remedy.”

The recommendation made by the Professional Standards Authority in its open letter of response was “as a minimum, it is our recommendation that regulators should unite to declare publically their support for the professional duty of candour and their shared expectation that health and care professionals meet it.”

This report was clearly the impetus for the joint statement on the professional duty of candour published by the chief executives of eight statutory regulators of healthcare professionals  on 13 October 2014.

In that joint statement the Chief Executives and Registrars of the statutory regulators of healthcare professionals confirm that the duty to be “open and honest with patients when things go wrong” is an “essential duty for all professionals working with patients.”

Under the heading “The Professional Duty of Candour” the joint statements sets out the expectations of the regulators that healthcare professionals must:

  • tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong;
  • apologise to the patient (or, where appropriate, the patient’s advocate, carer or family);
  • offer an appropriate remedy or support to put matters right (if possible); and
  • explain fully to the patient (or, where appropriate, the patient’s advocate, carer or family) the short and long-term effects of what has happened.
  • be open and honest with their colleagues, employers and relevant organisations, and take part in reviews and investigations when requested.
  • be open and honest with their regulators, raising concerns where appropriate. They must support and encourage each other to be open and honest and not stop someone from raising concerns.

This joint statement might be considered a ‘rebranding’ of existing communication, probity and co-operation provisions in the regulators’ professional codes – a restatement of the core principles of GMP perhaps, in light of the Francis report.

However, this was not the end of the matter and following on from this joint statement, in June 2015, the GMC and NMC jointly published new guidance on the professional duty of candour entitled “Openness and honesty when things go wrong: the professional duty of candour.”

In light of this “new” guidance we have considered whether “the professional duty of candour” is likely to have any practical implications on the approach to be taken to disciplinary proceedings.

We think it will. Exactly how is unclear at the moment as there is no specific guidance yet. But as the October 2014 Joint Statement on the professional duty of candour says professionals must be open and honest with their regulators, it is a short step to incorporate this across the whole system of regulation especially if (when?) the duty of candour itself is applied directly to individuals.

In general as the culture changes the expectations of the regulators will change as well. The more doctors are open, the more likely any failure or perceived failure to be open and transparent will be regarded at the very least as an aggravating feature. However, we predict that we will probably see a development making such a failure a trigger for misconduct itself. There are likely to be further changes to Good Medical Practice and other codes of conduct to reflect this.

By way of example – Claire was recently made aware of a case that is due to be heard by a Fitness to Practise Panel of the GMC in which a doctor who self-referred is facing an allegation of misconduct arising from the failure to include all of the details of the case in the referral. The case has not yet come to a hearing but it provides some insight into what may be on the horizon. It will be interesting to see how the GMC and MPTS approach this case and others like it.

Rule 7 responses

If we focus on GMC proceedings, for ease of reference: will the professional duty of candour have any impact on the way doctors respond to the GMC during an investigation, for example, rule 7 responses?

So far as Rule 7 letters are concerned, in the past there would be occasions when you did and when you did not provide a response to a Rule 7 letter.

  • If you felt on safe ground and were hopeful of persuading the Case Examiner to take no action or issue a warning you would want to put in a detailed Rule 7 response.
  • However, if a referral was inevitable you may have been reluctant to commit to paper a definitive position for a variety of tactical reasons and mainly because you would not wish to say something that was later proven to be incorrect.

If you want to put a reply in, tactically, you would continue to adopt the same approach as before. If anything, you might want to stress how keen the doctor was to cooperate and how mindful he was of his professional duty of candour.

The tricky situation is where you do not want to respond to the Rule 7 letter. Now, if you fail to reply at all this could be viewed as a failure to comply with the professional duty of candour and so be regarded as demonstrating a lack of insight at least, it may dilute any apology made at a later stage or at worst, it could be regarded as a trigger for a misconduct allegation. We will just have to wait and see on that one.

So, tactically, given the greater emphasis that is now placed on the duty of candour by the regulators, we take the view that one should make some form of reply at the Rule 7 stage, however anodyne.

Witness statements

We then move onto witness statements. Must we provide them?

At the time of writing, our view is, strictly speaking, probably not. I considering the provision of statements, it may be helpful if we first remind ourselves about the criminal approach in England and Wales. There is a statutory obligation to provide a Defence Statement in a criminal case under s.5 Criminal Procedure and Investigations Act 1996 and s.6 sets out what the contents should be.

In short, the obligation is to state in a Defence Statement what will happen at trial, e.g. if there is a positive defence it must state what it is but if no positive case is advanced, it can merely say that the Defendant does not admit the offence, that he calls upon the prosecution to prove it, and that he advances no positive case. A mere denial however is inadequate. It should be remembered that a defence statement cannot require a defendant to incriminate him or herself.

If there is a failure to give a defence statement a judge could not prevent you calling your client to give evidence. The sanction is that the Crown can question the defendant about the absence of the statement and make an appropriate comment about it.

In GMC proceedings, Rule 34(9) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004, as amended (“the FTP Rules”) requires each party to serve on the other copies of any document which they intend to rely upon. Although this rule does not actually require a witness statement to be provided, Rule 34(11) provides that:

“A Committee or Panel must receive into evidence a signed witness statement containing a statement of truth as the evidence-in-chief of the witness concerned, unless— (a) the parties have agreed; (b) a Case Manager has directed; or (c) the Committee or Panel decides, upon the application of a party or of its own motion, that the witness concerned is to give evidence-in-chief by way of oral evidence”

Tactically we would suggest that a doctor should provide a witness statement in most cases.  The content will, of course, vary depending on the circumstances:

  • In a very technical clinical case you might want a very detailed and cross-referenced account so it can use referred to in evidence. This can prove very useful for the practitioner.
  • In a more sensitive case such as an alleged sexual touching you might want to make a statement which is more like a defence statement in a criminal case.
  • Again the doctor cannot be required to incriminate himself but will be expected to be open and honest about the incident.

If there is pressure to put in a statement but tactically you want to avoid doing so –it is possible to mount an argument based on the wording of Rule 34(11) and s.35A of the Medical Act 1983:

  • The requirement in Rule 34(11) for the Panel to receive into evidence a signed witness statement as the evidence in chief of the witness concerned only bites where there is no agreement or direction (by the Case Manager or Panel) that the witness is to give oral evidence. If it is agreed that the doctor is or should be permitted to give oral evidence, it can be argued that it is not necessary to provide a witness statement.
  • Further or in the alternative, it could be argued that rule 34 has no application to the practitioner against whom the case is brought and refers only to witnesses to be called on his behalf or on behalf of the GMC. This would be consistent with section 35A of the Medical Act 1983, which excludes the practitioner from the GMC’s power to require disclosure of information.

However, change is afoot.  With the amendment of the Medical Act 1983 in the pithily titled statutory instrument: The General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015:

  • Article 15 (not yet in force) sets out an amendment to s.35A conferring power on the GMC to require practitioners to provide information or produce documents.
  • Article 14, in force on 3 August 2015, provides for the MPTS to appoint case managers with the power to make directions and requiring directions to be treated as binding.
  • Article 8, in force on 3 August 2015, makes provision for rules to be made allowing sanctions to be imposed for a failure to comply with directions given by the Tribunal or a case manager, including the power to refuse to admit evidence, the power to draw adverse inferences and the power to award costs.

Giving evidence

A doctor cannot be compelled to give evidence but by analogy with criminal cases is an adverse inference is likely to be drawn if he fails to do so?

Although there is currently no statutory footing for the GMC or GDC to draw adverse inferences from the practitioner’s decision not to give evidence, we are all aware that they are likely to do so (despite many Legal Advisors in the GDC advising Committees not to do so). This is especially so given the duty to be open and honest. 

If the doctor has provided a witness statement that is presumed to be his evidence in chief unless the parties agree, a case manager directs or the Panel agrees to allow him to give evidence in chief orally (Rule 34(11)). This will apply if tactically the doctor has provided a brief witness statement or indeed none at all. However, we cannot see how in the face of a doctor wanting to “tell his story” and speak in his own defence a Panel could fairly refuse to allow him to do so on the basis that no statement has been served. Some explanation would be needed to justify the stance, but we can envisage a Panel agreeing to hear from a practitioner and then seeking to question him about why he has not provided a more detailed statement (or any), as in criminal proceedings. As set out above the Panel may, and indeed we think they will, also draw adverse inferences against any practitioner who adopts this approach.

This ties in with what we have said about witness statements and we would therefore suggest a witness statement should say that it is not a full explanation and the doctor reserves the right to seek permission to give evidence orally in chief pursuant to Rule 34(11) to try and draw any sting out of such an approach.

Of course once the practitioner is giving evidence he will be asked direct questions about the events in question and at that stage must be prepared to answer them else he could be found to be in breach of his professional duty to be open and honest. However, the privilege against self-incrimination remains. Although absent from GMP 2013, this guidance has in the past specifically recognised that a doctor may remain silent in a Coroner’s Inquest if their evidence may lead to criminal proceedings being taken against them. The same should apply to regulatory proceedings.  We recognise that there is now an obvious tension between the professional duty of candour and the right not to incriminate oneself.

How this tension is resolved remains to be seen.