NI could be alone if it criminalises individual medics over ‘duty of candour’

Sir John O'Hara last January, announcing the findings in his hyponatraemia inquiry
Sir John O'Hara last January, announcing the findings in his hyponatraemia inquiry

Northern Ireland would potentially stand alone if it decided to impose criminal punishments upon individual medical staff for falling short of rules about “candour”.

That is one of the things to emerge from research published by the Department of Health this week, which noted concerns that such a move could end up fostering a “culture of fear” for hospital staff.

It all follows an inquiry last year into the deaths of five children in Northern Irish hospitals between 1995 and 2003.

That inquiry had been led by judge Sir John O’Hara and focussed on hyponatraemia, a shortage of sodium in the blood. It found four of the five deaths were preventable.

Summarising the findings of his 14-year £13.8m inquiry, the judge had said some people behaved “evasively”, “dishonestly” and had to have the truth “dragged out” of them.

One of his recommendations was for “a statutory duty of candour”, backed up by the threat of “criminal liability”.

This should mean “every healthcare organisation and everyone working for them must be open and honest in all their dealings with patients and the public [his emphasis]”.

The Department of Health then began to consider these findings and a group called the “duty of candour workstream” was set up.

Some of its research has just been released this week, and found that where such laws exist elsewhere they only apply to organisations – not to the individual nurses and doctors on the hospital floor.

“The research conducted for this paper could find no example of a government introducing such a duty with criminal sanctions for its health service staff,” the researchers said.

“The matter has been considered at length by the other three countries in UK and has been rejected by England and Scotland with Wales yet to announce an outcome to its consultation... A statutory duty on individuals has not been applied elsewhere.”

They added: “[It] is clear from developments elsewhere in the UK and other jurisdictions that the concept of a statutory duty of candour on organisations has been accepted and has been or is in the process of being enabled by legislation.

“A statutory duty on individuals has not been applied elsewhere. The inquiry report while recommending such a duty acknowledges that the issues involved are not straightforward and that there are matters for legitimate debate.”

The researchers had looked specifically at the law in Great Britain, Australisia, and Canada.

Despite the department only publishing it this week, the research actually dates back to spring 2018 (it failed to give an explanation for the delay when asked).

When it came to arguments against applying criminal offences to individual staff, the researchers noted that Sir Liam Donaldson – who had looked into the matter for the department in 2014 – believed “the threat of criminal sanctions on staff could promote a culture of fear rather than openness”.

This has echoes of a leaked letter the Irish News said it had obtained last year in the wake of the hyponatraemia inquiry, written by a senior British Medical Association figure in Northern Ireland to members.

The paper quoted them as saying members had been left “extremely concerned” over “the issue of medical error being subject to criminal sanctions”.