AvMA’s legal challenge over “two-tier” Duty of Candour

Published: 18 Jun 2015


Lawyers acting for AvMA have written to Health Secretary, Jeremy Hunt, demanding changes to the ‘Duty of Candour’ regulations, or face a potential judicial review. A deadline of Friday 19th June has been given for a response after which, if there is not a satisfactory response, AvMA intends to instruct lawyers to apply for a judicial review.

AvMA campaigned for many years for a legal duty of candour (a duty to be open and honest with patients when things go wrong in Healthcare).  Eventually, the Government agreed and the Duty of Candour came into effect for NHS organisations in England in November 2014. However, in April 2015 the Government, in spite of representations from AvMA, introduced revised regulations which in effect create a different duty of candour for providers of NHS primary care (GPs, dentists and pharmacists) and for private healthcare than that which applies to NHS organisations.

As well as being confusing for health professionals, patients and regulators to follow, this means that private patients, and even NHS patients being treated in primary care or in private hospitals under arrangement with the NHS, have lesser rights. Some serious incidents which still have the potential to result in significant harm will not have to be disclosed to the patient if they are treated in primary care or in a private provider, whereas the same incident would need to be disclosed under the Duty of Candour pertaining to NHS organisations. A

vMA chief executive, Peter Walsh, said:  “It makes no sense at all to create two different duties of candour – it is unfair for patients and bewildering for healthcare providers.  We have reluctantly taken the decision to reserve our right to challenge this by way of judicial review because of time limits.  However, we have made representations directly to Jeremy Hunt and we hope he will agree to put this matter right without the need for legal action. AvMA has put its heart and soul into getting the Duty of Candour, which represents one of the biggest advances in patients’ rights and patient safety ever. Jeremy Hunt should be rightly proud to be the first Secretary of State to have the wisdom and courage to introduce such a duty, and we hope he will be as keen as we are to get it right”.

AvMA believe that the present arrangements are unlawful because the Secretary of State is under the obligation to consult over significant changes to regulations, and there was no consultation at all over the idea of creating two versions of the Duty of Candour within healthcare.  Also, this arrangement is at odds with the NHS Constitution, creating inequality of rights for NHS patients depending on where they happen to be treated.