Ministers are facing the threat of legal action after watering down a key improvement to patient safety across the NHS introduced after the Mid Staffs scandal.
The new “duty of candour”, which obliges healthcare providers to tell patients when treatment has inadvertently caused harm, will give fewer rights to patients who have visited a GP, are in a nursing home or use private medicine than those who have been in hospital.
It means GP practices and private providers will not have to disclose some serious lapses in safety which have the potential to result in significant future harm for patients, even though hospitals would need to do so if they occurred there.
“It makes no sense at all to create two different duties of candour. It is unfair for patients and bewildering for healthcare providers”, said Peter Walsh, chief executive of the patient safety charity Action Against Medical Accidents (AvMA).
The charity has written to Jeremy Hunt, the health secretary, warning him that it will seek a judicial review of his decision, which it says will bring in a “two-tier” approach to the duty of candour.
The duty, hailed by AvMA as “one of the biggest advances in patients’ rights and patient safety ever”, was recommended by Robert Francis QC’s landmark report in 2013 into the poor care at Stafford hospital, which contributed to some patients dying.
AvMA’s lawyers have told Hunt that the creation of a full and lesser duty of candour is unlawful and that they will challenge it in the high court unless he indicates that he will ensure it covers all care providers equally.
The Department of Health hinted that it might be prepared to amend the duty of candour to avoid a legal challenge to its conduct. “We want to make the NHS the safest healthcare system in the world and our duty of candour means that all health and care providers, including GPs, private hospitals and care homes are legally obliged to inform patients about failings in their care,” said a spokeswoman. “We have always intended to keep the new duty under review, and will seek further views on how it is working.”
The controversy comes two weeks after Hunt’s credentials as a champion of patient safety came into question when he backed a controversial change that will see NHS England take over responsibility for setting safe levels of nurse staffing in NHS premises from the National Institute for Health and Clinical Excellence.
