A strong doctor-patient relationship is dependent on both parties being open and honest with each other. Dr Philip Zack (right) discusses two clinical scenarios where this principle is put to the test
Do I have duty of candour here?
Q. Yesterday, I operated on a middle-aged man with an inguinal hernia.
The following morning, the patient complained of discomfort in his abdomen and, on examination, the site of the operation was bruised and painful.
Further investigations revealed an uncontrolled bleeding point in the wound and he will need another procedure to stop the bleeding.
Of course, I will apologise to the patient and explain what has gone wrong, but I’ve heard about a new legal duty of candour and wonder if this applies?
As you know, you have an existing professional duty of candour which is set out by the GMC in paragraph 55 of Good Medical Practice (2013) and this should be your priority.
This states: ‘You must be open and honest with patients if things go wrong. If a patient under your care has suffered harm or distress, you should:
- Put matters right, if that is possible;
- Offer an apology;
- Explain fully and promptly what has happened and the likely short-term and long-term effects.’
A statutory duty of candour, which became law in November last year, now applies in NHS
hospitals and it is due to be introduced to other Care Quality Commission providers, including private hospitals in England, in April 2015.
The duty applies to the organisation where you have practising privileges rather than to you, the individual doctor.
Once the statutory duty of candour applies, you should co-operate with the hospital’s internal reporting policies and procedures and help it meet the obligations set out in the relevant regulations.
These include notifying the manager responsible for duty of candour arrangements.
He or she will decide whether an incident reaches the threshold for notification under the statutory duty.
This decision may not be straightforward because a notifiable patient safety incident has a specific statutory meaning: it applies to incidents where a patient suffered – or could have suffered – unintended harm that results in death, severe harm, moderate harm or prolonged psychological harm.
In this scenario, your ethical duty to tell the patient that something has gone wrong will apply.
Should a similar incident happen after 1 April 2015, the statutory duty of candour would almost certainly apply, as it fulfils the criteria for moderate harm because it includes an unplanned return to surgery and a prolonged episode of care.
You may already have experience of how the reporting procedures might work in the private sector if you have seen them in operation in the NHS.
It may be useful to talk to the relevant hospital manager to clarify what the specific requirements of your hospital will be in due course and what will be expected of you as the senior clinician caring for the patient.
What if patient won’t open up?
Q. A man in his 50s and his wife have come to see me together. The wife is clearly worried about her husband’s memory, explaining that she pestered him into coming to see me ‘under protest’ because he kept losing his keys and missing appointments.
I assessed the patient and carried out a mini mental state examination, which made me think there was something wrong. However, the patient, doesn’t want to discuss it and refuses to take the matter any further.
What should I do?
This is a difficult situation and it is advisable to ask the patient’s wife if she will leave so you can talk to the patient alone.
This will give you the opportunity to explain to him why you think a referral to a memory clinic is appropriate in his case and address the reasons for his reluctance. You can also find out what, if anything, he wants you to tell his wife.
In this situation, the GMC advises you to explain to the patient why it is important that he understands the options available to him and try to find out why he doesn’t want to know more about his recent memory lapses.
For example, it is possible he may reveal that he fears a diagnosis of early-onset dementia because nothing can be done to help him.
If this is the case, you could reassure him that support is available, as well as treatments that might slow the progress of the condition.
However, if you cannot persuade the patient to agree to a more detailed investigation, you must respect his wishes. Even then, it is still important to leave the door open so make it clear he can change his mind at any time.
Even if the patient insists he doesn’t want any further information, it is likely his wife will take a different view, but you will need the patient’s consent to discuss his condition further with her.
The GMC’s confidentiality guidance says you should ‘establish with the patient what information they want you to share, who with, and in what circumstances’.
Again, if the patient doesn’t want his wife to know, you are obliged to respect his wishes, although you could encourage the couple to discuss the matter together.
Make sure you keep a record of the consultation and the outcome of your discussion with the patient, including his wishes about disclosing information to his wife.
This will be a useful reminder if he returns at a later date and could be important if you are later asked to justify your approach.
Dr Philip Zack is a medico-legal adviser at the Medical Defence Union