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Can I be candid?: How lack of leadership could derail the new proposals

November 26, 2013

There’s a contradiction at the heart of Hard Truths, the government’s final response to the Francis  Report, published last week. On the one hand, the formal regulation of Health Care Support Workers was rejected on the grounds that ‘regulation by itself does not prevent poor care’ (Vol 2, p179). On the other, the drafting of legislation to make it an offence for a registered practitioner to  ‘provide information to a patient or nearest relative intending to mislead them’ was rejected – this time in favour of asking those same regulators (who, remember, cannot by themselves prevent poor care) to ‘strengthen the references to candour in their work’ (Vol 2, p158). So, Jeremy Hunt, one simple question: should we have confidence in the regulator? Or not?

For most nurses, the Nursing and Midwifery Council stands in a relation akin to that of the creaky old aunt to whose fossilised abode my mother used to drag me once a year on a ritual visit “because she loves children”. She didn’t have a clue about children. After patting me on the head and asking me if I liked playing with dollies (I didn’t), she’d spend the next two hours completely ignoring me while she yakked away to my mother about things I didn’t understand.

It’s a disconnectedness that was clearly illustrated in last week’s Nursing Times. Asked by the magazine  what advice she would give to a nurse who was starting out, Jackie Smith, the NMC’s Chief Executive replied: “Read the NMC code every so often. If your role does not allow you to live up to it, say so”. It’s not that it’s bad advice, exactly; it’s more that it completely underestimates the complexity of health care reality. ‘Saying so’ is rarely that simple.

The situation is even more dispiriting when one considers possible reasons why the government rejected Francis recommendation 183 (It should be made a criminal offence for any registered… nurse…to provide information to a patient or nearest relative intending to mislead them about [an incident that resulted in death or serious injury to a patient]). This is a recommendation that apparently covers all possible circumstances: there is nothing to indicate it would be limited to the gathering of information only after an investigation has begun – as it stands, it could equally apply to the heat of the moment. Could it be that the government feared implementation would create a legal minefield?

Because I mean – how easy is it going to be to adjudicate on conversations that might well be taking place in a pressurised, fast-moving environment where what appears to be true one minute turns out to be the reverse of true the next? Where untimely disclosure could prejudice future investigation? Where the only witnesses are the health care professional and the patient or relative? And where ‘intention’ is the product of many variables?: “I judged the truth would be too distressing for you to bear right then and my intention was to shield you from it until you felt stronger” – couldn’t that be a legitimate – and humane – defence?

And yet despite all this – the fact that it’s an issue that’s so fraught with difficulty that even the lawyers won’t touch it – we are somehow expecting the Nursing and Midwifery Council, a body whose existence – let’s not forget –  ‘does not by itself prevent poor care’ to police interactions right down to the granular level of one-to-one conversations. Is this realistic? Is it even desirable? Doesn’t something as important as this deserve to be better served than by a bit of beefing-up of the NMC Code of Conduct followed by a collective crossing of fingers?

Consider the following scenario: it’s Saturday afternoon, and you are nurse-in-charge. An agency HCA leaves a confused elderly lady unsupervised in the toilet while she prepares a bed for an ‘urgent’ admission. Trying to get up, the patient falls over and sustains what will probably turn out to be a serious fracture. The HCA says no one told her the patient should not be left on her own. The nurse who briefed her when she arrived for duty insists she did tell her. The printed handover sheet the HCA also received contains no information on this point. The lady’s daughter arrives and demands to know how the incident occurred, including names of staff. You try to contact the bleep holder (or home manager) for advice but they are unavailable or ‘busy’. You reflect on the duty of candour and flip open your NMC Code of Conduct…

All right. OK. This isn’t a recently-dug s*** creek. That you’re going to require guidance is already recognised by rules 52 (‘You must give a constructive and honest response to anyone who complains about the care they have received’) and 55 (‘You must explain fully and promptly to the person affected what has happened and the likely effects’) of the Code. But even without the intervention of Robert Francis QC, this would be ripe for revisiting: does ‘complaining’ encompass  informal expressions of concern or is it limited to formal complaint?; does ‘the person affected’ include family? In a post-Francis world where publicity about ‘openness, transparency and candour’ will inevitably lead service users to expect much, much more, it’s debatable whether any short set of guidelines, which by their very nature are general in tone, can be sufficient to address the complexity of these situations.

Added to this is the fact that Francis almost completely fails to recognise as a problem the remoteness of the NMC from practitioners. Instead, the emphasis in both the Francis Report itself and the government response is on raising the public profile of both the General Medical Council and the NMC. The wording of the agreement to appoint a number of NMC regional advisers to support ’employers and others with concerns about nurses and midwives’ (Vol 2 p195) makes it sound as though the focus will be on those individuals whose fitness to practice has already been called into question, rather than on supporting providers to facilitate staff compliance with the Code. And what about those providers?

Since 2009, all health care providers have had access to the Being Open manual published by the National Patient Safety Agency. Although aimed at ‘boards and…staff responsible for ensuring the infrastructure is in place to support openness’ rather than a individual practitioners, the ‘best practice framework’ it delineates actually provides far more detailed and relevant advice than the NMC Code of Professional Conduct. It makes clear, for example, that ‘any information given [should be] based solely on the facts known at the time. Healthcare professionals should explain that new information may emerge as an incident investigation is undertaken’. Unfortunately, it contains no guidance at all on how staff should be trained in this area, and evidence gathered as recently as this year for Ann Clywd’s Review of NHS Hospitals Complaints System gives reason to fear that implementation so far has been patchy to say the least.

Service users and practitioners alike want to see openness, transparency and candour fast-dyed  into every fibre of the NHS. Achieving it however – pace patients’ groups – is not straightforward; it is a highly complex area, and a great deal of staff training and support is required to make it a reality. But if regulation ‘by itself does not prevent poor care’; and if, furthermore, the NMC has declined to be involved in the overseeing of, for instance, how service providers assist practitioners to comply with its Codes (Vol 2 p191-192); and if the behaviour of Trusts leads one to suspect that many have failed to grasp the inherent problems; and if the Care Quality Commission has only very general compliance standards on training staff in this area – who will make it work? And how can nurses be reassured that they won’t, once again, find themselves in an extremely uncomfortable limbo?



Hard Truths: The Journey to Putting Patients First:

The Being Open document is available as a download from this web page:

The Nursing and Midwifery Council document The code:Standards of conduct, performance and ethics for nurses and midwives is available as a download from:

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