Your duty to own up
Business Dilemmas
Dr Ellie Mein discusses the importance of the statutory duty of candour
Dilemma 1
Do I report my mistake?
QI am a consultant ophthalmologist and while carrying out cataract surgery on one of my patients, the irrigating cannula accidentally became disengaged from the syringe which resulted in a posterior capsule rupture.
The patient required an anterior vitrectomy and I had to replace their intraocular lens implant. I told the patient what had happened at the time, apologised and explained how I was going to manage the situation.
However, one of my colleagues believes the incident is notifiable under the statutory duty of candour because the patient required additional treatment to prevent sensory impairment. He says the hospital could be fined if we don’t comply. Is this correct?
AYour colleague is right that healthcare organisations which do not comply with the statutory duty of candour can face financial penalties and even prosecution by the Care Quality Commission (CQC).
The first such case was in January 2019 when the CQC issued Bradford Teaching Hospitals NHS Trust with a fixed penalty of £1,250 for failing to notify the parents of a notifiable incident involving their child, and to offer an apology, within a reasonable period of time.
In September 2020, the CQC prosecuted University Hospitals Plymouth NHS Trust for failing to disclose details of a surgical procedure or apologise, following the death of a 91-year-old woman. Magistrates ordered the trust to pay a total of £12,565
And in the first prosecution against a private hospital, Spire was ordered to pay £20,000 in April 2021 after it admitted four counts of non-compliance with the duty of candour in relation to potential harm to patients by a surgeon in Leeds.
In this case, you have met your own professional duty to be open and honest by telling the patient what had gone wrong, apologising and explaining how you were going to help them.
But the GMC also requires you to follow your organisation’s policy for reporting adverse incidents and your hospital would certainly expect you to co-operate with its statutory duty of candour procedures if an incident is notifiable.
Notifiable incident
Working out whether this threshold has been triggered can be difficult, as it is possible for an incident to trigger the harm threshold for NHS trusts, but not for other service types.
However, the CQC’s guidance for providers says that an incident is notifiable if it meant your patient then required treatment to prevent a sensory impairment.
If in doubt, it’s advisable to discuss this with the manager responsible for duty of candour arrangements rather than risk the hospital being fined and/or prosecuted.
If the threshold has been met, the statutory regulations require an organisation to tell the patient or their representative as soon as possible after the incident, apologise and explain what further inquiries or investigations will take place. The patient must be offered reasonable support.
In addition, the organisation must provide the patient with a copy of a written note of discussions including details of further inquiries and keep copies of all correspondence and meeting notes.
As the treating consultant, it is likely that the hospital would ask you to attend and even be its representative in meetings with the patient and you will certainly be involved in any investigation into what happened so lessons can be learned and shared as necessary.
Kids caught in a divorce
How should a doctor respond to a parental request to change their child’s name on medical records? Dr Ellie Mein gives her judgment
Dilemma 2
Do I acceed to mum’s request?
Q Two of my patients are currently going through an acrimonious divorce and ,as such, the mother now wants her children, who are also patients, to take her birth name.
She has asked if I can change their medical records, but I’m not sure if I can do this without the consent of the father.
What should I do?
A While adults are able to change their name as they wish, changing the name of a child is more complicated and requires the consent of all those with parental responsibility or a court order.
As the father was married to the child’s mother, he may have parental responsibility. Parental responsibility is given to the child’s father if he is married to the child’s mother or named on the birth certificate, but this does depend on when and where the child was born.
In England and Wales this applies to any child born on or after 1 December 2003, in Scotland any child born on or after 4 May 2006 and in Northern Ireland any child born on or after 15 April 2002.
Parental reponsibilty
Unmarried fathers who are not named on the birth certificate can also acquire parental responsibility if they obtain a Parental Responsibility Agreement from the mother or a Parental Responsibility Order from the court.
If you’re sure that both the mother and father have parental responsibility, then it may be difficult to fulfil the mother’s request and is likely to lead to a complaint from the father. You could also invite criticism for failing in your ethical duty to ensure that your records are accurate.
You may need to explain to the mother that you are unable to change her children’s names on their medical records. Explain to her the legal reasons why this is not possible and share with her the Government’s guidance for more information.
Dr Ellie Mein is a medico-legal adviser at the Medical Defence Union