Monthly Archives: March 2014

Will Hunts vision of a ‘duty of candour’ really bring about cultural change in the NHS?

Department of Health Media have contradicted my suggestion in a previous blog that Mr Hunt has ignored David Behan and CQCs guidance regarding a ‘duty of candour’.  I’ve conteacted them four times for clarification without success. i can find no record evidence to support their assertion.

So what does Clause 80 actually say about the level at which healthcare service providers need to adhere to a duty of candour.  Is it ‘moderate harm’ and/or ‘serious injury?

(See the blog below that started this discussion)

Minutes from CQC’s public board meeting on the 22nd January 2014 state David Behan gave evidence to the ‘Duty of Candour’ review on the 9th January, followed up by a letter on the 16th January 2014. At that review David Behan expressed CQC’s view that the threshold should be set to include death, serous injury and moderate harm, to be consistent with the guidance published in the ‘Being Open Framework‘ and CQC’s interpretation of the term ‘serious’ in Robert Francis’ recommendations.

On the 23rd January 2014 the House of Commons Public Bill Committee published its’ latest amendments. One related to the ‘duty of candour’. Clause 80 on page 72, line 20, now reads

‘The duty of candour specified in regulations made under this section shall require
healthcare service providers who believe or suspect that treatment or care
provided or contributed to death or serious injury to a patient…..’

It appears the committee chose to ignore CQC’s views as ‘moderate harm’ is not included.

From my perspective this makes little sense and does not demonstrate an understanding of the potential of thresholds to provide not just openness in an organisation but also a preventative strategy. Surely enabling individuals to speak up if they identify any harm at all may then prevent poor, or abusive, practice developing into serious injury, or even death.  The fact that policies and legislation appear to be allowing mild (or even moderate) harm to occur surely will contribute to developing the culture we are seeking to eliminate.

Whilst a duty of candour is welcomed , I wonder now is the threshold set too high to really change the ‘culture’ Robert Francis identified as contributing to poor standards of care at Mid Staffordshire.

The latest overview of adult social care in England from the National Audit Office again highlights problems that exist when it clearly states

Safeguarding vulnerable adults from abuse and neglect remains a major risk throughout the sector…….In 2012-2013, 36% of safeguaridng referrals were about alleged abuses by social care or health workers.’

The report also suggests a rise in incidents of abuse could be related to systematic cuts across the sector.  If this is the case the system will need more than a duty of candour and an emphasis on whistle blowing to make a difference.

Thresholds can be effective as a preventative mechanism, but not if they are set too high or used as an administrative convenience to ensure the number of reports are kept at a manageable level for the organisation, which is surely counter productive to changing the ‘culture’ of any failing provider of care.  In my view to really change cultures within organisations we need to take a zero tolerance approach to harm, whether its mild, moderate or severe, it has no place in health and social care.

I came across a quote this week which I find very pertinent in regards to how government policy/legislation translates into frontline practice

‘To assume that an official plan and its implementation in practice are the same is to fly in the face of facts. Invariably to some degree, the plan as put into practice is modified, twisted and reshaped, and take on unforeseen accretions’ (Herbert Blumer)


To change the current culture within some care provider organisations will require far more than the Care Bills ‘Duty of Candour’, it will require 100% commitment from all involved to adhere to not just the letter of the law but the spirit. I do believe this is a positive step forward, however, Government needs to take an active lead, and listen to people like David Behan, to ensure it is implemented to change organisational priorities at the highest level, otherwise the ‘duty of candour’ risks becoming just more empty words and another box to tick.

BASW call for ‘powers of access’ to protect vulnerable people…

Campaigners want to end the situation  where professionals in the UK, except in Scotland, feel powerless to help abused adults in their own homes.  Action and Elder Abuse and BASW are seeking additional powers of access into individuals own homes for professionals to help protect those most vulnerable, however, whilst this makes sense to many this issue is about much more than simply protecting the ‘vulnerable’.

At the heart of this debate is an attempt to understand how the relationship between the state and individual might be formulated to fulfill a mutual responsibility in enabling  individuals to live lives free from abuse without compromising their right to freedom.  In regards to the introduction of law to protect people from abuse we must ask how far the state can go in its interference with an individual’s right to autonomy and self-determination.  Is it possible to incorporate adequate safeguards into any developed public law that would ensure an appropriate balance between the two rights?

Beliefs about the role of the state,and ‘big society’, in supporting those most vulnerable have their roots in philosophy.  This provides the foundation from which government  identifies society’s needs, defining who is deserving and/or undeserving of support, along with providing a framework to shape how need will be met and protective services are structured in law to balance the rights and responsibilities of both government and the individual.

For example, Hobbe’s (1588-1679) thoughts on rights in the Leviathan suggests if everyone were to pursue their own rights at the expense of others life would be violent and dangerous. Therefore, he suggested a contract whereby individuals give up their natural freedom to do anything they want in exchange for personal security from a supreme ruler.  This is one of the earliest examples of a theory of government known as the social contract, which outlines the relationship between citizens and government.  John Locke (1632-1704), like Hobbe’s, was a major social contract thinker who identified three central rights he felt should be upheld by the state; the right of life, liberty and property. These were viewed as natural and inalienable, which meant they should be universal i.e. applicable to all.

Locke suggested that by living within a state we have an obligation to obey the laws enacted by the majority of its citizens to protect these rights.

Both Hobbe’s and Locke considered humans as inherently selfish whose pursuit of individual pleasure is destructive to society. Locke viewed poverty not as a result of structural economic failure but as the result of individual failure, suggesting that law can be used by the state as an apparatus to modify human desires which in the longer term will be of more benefit to the well-being of all society. This approach underpinned the development of the welfare  state throughout the 18th, 19th and 20th centuries.  However, such thinking has been criticised with Jessie Norman suggesting Hobbes and Lockes vision ignores the diversity of human motivation and has led to the polarisation of the individual and the state.  Hobbe’s social contract explains ‘the rightful existence of a moral state, giving it authority and legitimacy over the individual’ (Norman, 2010, p96), but Norman suggests this ignores two important factors.  Firstly, the influence of institutions, such as the family, church and marriage, which are based on affection rather than the need for procedure and purpose to give shape and meaning to human life; and secondly, how these might mediate between state and society to ensure the state does not undermine the caring spirit of society.

This is important in understanding how ‘Big Society’ might safeguard vulnerable people from abuse.  Norman (2010) presents Big Society as a return to previous patterns of care and protection based on phillic associations,  a ‘golden age’, where  people were consistently valued, respected  and protected by family and the institutions that make up wider society.  However, the World Health Organisation (2002) suggest whilst traditionally family harmony has been assumed by governments in the care of people, reinforced by philosophical traditions and public policy,  the abuse and maltreatment of family members is actually a timeless phenomenon across the developed and developing world.   The World Health Organisation states

‘The abuse of family members dates back to ancient times. Until the advent of initiatives to address child abuse and domestic violence in the last quarter of the 20th century, it remained a private matter, hidden from public view’ (2002,p125).

The proposed system from Action on Elder Abuse is also taking a philosophical stance.

The period in which governments have responded to the abuse of vulnerable people has developed in an era dominated by the liberal political philosophy of John Stuart Mill.  His work On Liberty (1859) has provided the foundation on which the legitimate nature and limits of the state has been established in the safeguarding of adults and children at risk of harm.  Mill stated ‘the struggle between Liberty and Authority is the most conspicuous feature in the portions of history with which we are earliest familiar’ (1859).  Going onto suggest liberty meant protection against the excessive use of power by government to interfere with individuals lives.   Mill’s notion of liberty supports the freedom of the individual against unlimited state control where individuals are regulated through legal or social coercion. The only time state action might be justified is in relation to those who might be deemed as possessing their full faculties is outlined in Mill’s harm principle, which suggests the state ‘should only regulate actions that directly cause, or have a very high probability of causing, unacceptable harm to others.  State intervention would be automatically justified where children are concerned, or for those adults who lack mental capacity, for example older people with dementia.  Decisions for such individuals can be taken legitimately by the state, or a representative of the state, in an individuals’ best interest if they are at risk of harm from others, however, individuals outside of these specific conditions always have a right to take risks, provided these do not harm others.

Whilst there should be a strong commitment to supporting those most vulnerable in society, I also believe it is important responses are framed from a philosophical perspective. Most professionals are not interested in exercising ‘power’ unless their is a sound philosophical and ethical foundation to do so. Get these in place and then the rest can follow….