Debate contribution: Statutory Duty of Candour

Debate contribution by Mr Mike Nesbitt on 11 November 2024.

MLA

Mr Mike Nesbitt

Party at the time

Ulster Unionist Party

Date

11 November 2024

Type

Debate contribution (made as a minister)

Business

Private Members' Business

Heading

Statutory Duty of Candour

Assembly identifier

Official Report component 4667966

Read the official Assembly record

Text

To begin with, I acknowledge not only the genuine passion with which Members have spoken but the frustration that nothing has been done in a long number of years. Members have alluded to the fact that the idea of a duty of candour has been around since the inquiry into hyponatraemia-related deaths and the conclusions of the chairman, Mr Justice O'Hara, that the arrangements to ensure the quality of service and the behaviour of certain individuals in the health service at the time were not acceptable. As Mr Frew pointed out, those failings led to the tragic deaths of five young children — Adam Strain; Claire Roberts; Lucy Crawford; Raychel Ferguson; and Conor Mitchell — who, along with their families, of course, were so badly let down. Mention was made of other disasters. In recent times, I have met representatives of the Ladies with Letters and, I think, 29 family members who lost loved ones to Dr Watt. Some people say to me, "Those must be difficult things to listen to", but I think that they are difficult things for the survivors telling their stories to trust to somebody in authority. We have seen recommendations for a duty of candour also arise from the urology inquiry and the UK-wide infected blood inquiry. That last one recommends that:

"statutory duties of candour ... should be extended to cover those individuals in leadership positions in the ... Health Service, in particular in executive positions and board members"

and that, specifically, Northern Ireland should introduce an organisational duty of candour, as we are the only part of the United Kingdom without such a sanction in place. I agree, and, if the legislative programme permits, it is my ambition that legislation will be introduced before the end of the mandate. It is a vital issue and one that must be addressed not only by my Department but by the Assembly and the health and social care sector at large. Our focus and the purpose of any legislative change need to be clear: to reduce patient harm and to support a culture where openness and honesty are at the centre of the services that we provide. As Members have made out, it would be remiss of me not to say that, in the vast majority of cases, openness and honesty as well as a relentless commitment to patients and their safety are evident in every ward and through every service in Northern Ireland. The staff in our health and social care sector continue to undertake some of the most difficult work in some of the most challenging environments. However, as is clear from the reports and reviews that I have referenced, much more needs to be done to ensure that, when things go wrong, there is openness and candour. As mentioned, my Department consulted on organisational and individual duties of candour in 2021, and, understandably, there was a great deal of interest in the issues raised. In fact, the consultation yielded 344 responses that the Department considered along with the hyponatraemia work stream structures that were established. Those structures included service users as well as the clinicians who provide them. While there was significant support for legislation to support a duty of candour, there was also a significant amount of concern and fear around the proposals. In the main, those concerns related to whether a culture of openness and candour is sufficiently present and supported in the systems that we currently have in place. There were also concerns around what the unintended consequences of an individual criminal sanction might be in Northern Ireland, when such a sanction does not exist elsewhere in the United Kingdom. I am conscious that a duty of candour for HSC staff is nothing new or, indeed, novel. It appears throughout professional codes of conduct, and, in that sense, nothing new is being asked of staff when it comes to being open and honest when things go wrong. The proposals, as Members will know, are not to sanction mistakes but to sanction attempts to mislead or cover up when mistakes are made. It is clear that a lack of openness when things go wrong can be devastating for patients and for families and can significantly frustrate our efforts to keep patients safe going forward. The Department's response to the consultation was outlined to the Assembly in October 2022, just days before the Assembly collapsed at the end of that month. The decision of my predecessor was to address, in the first instance, the cultural work that is critical to any successful legislation and, in parallel, to further consider the concerns expressed by some consultees around the impact of the proposed criminal sanctions. I am firmly of the view that new legislation, without also addressing the cultural issues that I have referred to, would not be particularly productive. However, I am aware of the time that has passed since the release of the hyponatraemia recommendations in 2018 and the frustrations that I have mentioned. I am on record as saying that I am in favour of every individual working in public service being honest and candid when people suffer unnecessary harm, whether that harm is physical, mental or psychological. That is my desired outcome in this important policy area. The key question, then, becomes how to create a regime that minimises the chill factor that deters individuals from being candid and maximises their willingness and responsibility to engage in an honest review of what went wrong. I am happy to report to the Assembly that we have made significant progress on a regional Being Open framework in recent months, and I expect to consult on that towards the end of the calendar year. That work was initiated in the autumn of 2022, with Professor Peter McBride, an experienced associate member at the HSC Leadership Centre, commissioned by the Department to lead on that work.

I thank the Member for her intervention, and I agree. I hear Members say that, even when individuals in HSC are willing to come forward and talk about what went wrong and why, they are sometimes discouraged — "discouraged" may be a light description — by their senior management or by people above them in their line of management. So, yes, it is important, and, that, I believe, links into the culture that has to go alongside any legislation. Significant engagement has been carried out by the Department over the past number of months about the Being Open framework. It aims to ensure that individuals in our system are fully empowered to exercise candour and openness and that HSC organisations have in place the necessary support and the systems required to enable and nurture a truly open culture, as the Member referred to. It is important too to recognise the wider duty of candour policy context across the UK. England, Scotland and Wales already have an organisational duty of candour in place. The legislation in Wales was implemented recently, in fact, in 2023. It is also important to note that, in December 2023, in response to the release of the Hillsborough disaster report, the Department of Health and Social Care in London announced a review of the duty of candour in England. Its statutory duty has been in place for 10 years now, and the review is taking place to understand to what extent the duty is being honoured, monitored and enforced and to ensure that the initial policy objectives are being met. In ensuring that our legislation is as effective as possible, the evaluation of the English duty will be of significant benefit to us. My officials continue to engage with colleagues in England to ensure that any future work in Northern Ireland is informed by the conclusions of that important review. The Assembly will also have noted that the Prime Minister committed, in the King's Speech, to a duty of candour Bill to be introduced to Parliament before the next anniversary of the Hillsborough disaster, which is in April 2025. The Bill is expected to be much wider-ranging, taking into consideration all public bodies so that they all act in the public interest with transparency, candour and frankness. Again, my officials are engaging with colleagues in England, Scotland and Wales to consider those wider developments. I have also written to the First Minister and the deputy First Minister, as there will be implications across the public sector that we will need to be alert to. While the duty of candour is under review throughout the UK, I am not content for Northern Ireland to remain an outlier on the organisational front. It is certainly important that I continue to take account of the experience and effectiveness of the duty in the rest of the United Kingdom over the coming months, but I do not want that to unduly delay progress. In principle, I repeat that I support the implementation of an organisational duty in Northern Ireland and expect to make a firmer commitment to its implementation following the outcome of the forthcoming consultation on the Being Open framework. I am optimistic about what we can achieve before the end of the Assembly mandate and the momentum that exists across the system on the issue. It is something that I very much welcome. I look forward to updating the Assembly again, following consideration of the Being Open framework consultation, on the next steps for that work and on the duty of candour issue more broadly in Northern Ireland. As we move forward on an organisational duty of candour, it will also give us a further opportunity to involve key stakeholders in the development of the policy. I talk often about trying to avoid the chill factor. One Member pointed out that not all clinical decisions will have successful outcomes, and perhaps a chill factor would impact a clinician in deciding whether to perform a certain procedure. There is also the question of whether people who know what went wrong will be willing to speak out. When I spoke to a lot of the victims who lost loved ones to Dr Watt, they were clear in their minds that people around Dr Watt knew exactly what he was doing and the harm that he was creating but were afraid to speak out. The question is whether an individual duty of candour that is legally binding and has criminal sanctions will further enforce that chill factor or open things up.

The final thing that we have not discussed around the chill factor is about applying for a job in health when a duty of candour with criminal sanctions for individuals applies only in Northern Ireland. We already have huge workforce issues: maybe we will lose more people to Sláintecare or to England, Scotland and Wales. I will give way.

I am clear that there should never, ever be a cover-up by an individual, a group — such as a group who had maybe operated a procedure in a theatre in a single day — a trust or the health and social care system.

Yes.

1,845 words. Text as published by the Northern Ireland Assembly.

Assessment

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Assessed 21 October 2026 at 11:35 UTC by jev-1.13.0 (requested as typesafe/jev) under rubric 2026.10-r9, methodology 1.9.

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