Official Report: Minutes of Evidence

The Chairperson (Ms Kimmins): I welcome Michael O'Neill, interim director of the quality, safety and improvement directorate; Ian Plunkett, duty of candour "Being Open" policy Iead and programme manager for the inquiry into hyponatraemia-related deaths (IHRD); and Professor Peter McBride, independent consultant from the Health and Social Care (HSC) Leadership Centre. We have about 45 minutes for the session, which will be reported by Hansard. I invite you to make some brief opening remarks, and then we will open up for questions.

Mr Michael O'Neill (Department of Health): Thanks for the invitation to provide an update on the development of the "Being Open" framework for the HSC in Northern Ireland. I will provide you with a summary of the background to that work stream and an update on our current position and intended next steps. I will then hand over to Peter, who will provide you with an update on our approach to engagement, the outputs of that work to date and emerging themes and issues.

The extensive work on "Being Open" developed out of the 15 recommendations from the inquiry into hyponatraemia-related deaths to introduce a statutory duty of candour in Northern Ireland. The recommendations relating to a duty of candour include the introduction of a statutory organisational duty of candour and a statutory individual duty of candour, with criminal sanctions for breaches of those duties. Critically, underpinning the duty of candour recommendations is a need to embed an open, just and learning culture throughout the HSC system. Following a public consultation on duty of candour in 2021, the decision of the then Minister was to focus attention on the necessary supports to enable and empower staff to be open and honest in their work and to better understand the impact that the introduction of a statutory duty of candour would have on the health service.

The work on a regional "Being Open" framework was initiated in autumn 2022. Peter, an associate member of the HSC Leadership Centre, was commissioned by the Department to lead on that work. A steering group was established, with membership consisting of departmental officials and independent consultants from the HSC Leadership Centre to provide direction, assist with the development of the framework and oversee the work carried out by Peter and the implementation team on progressing the framework. Significant engagement has been carried out across the HSC over the past number of months. Peter will speak to that.

A draft new regional "Being Open" framework has been developed by the steering group, and the intention is to launch a full public consultation towards the end of the year. Importantly, that process will include further engagement with service users in line with our co-production principles. The framework aims to ensure that individuals in the Health and Social Care system are fully empowered and supported to exercise candour and openness and that HSC organisations have in place the support systems needed to enable and nurture that approach and culture. The consultation will help to inform final decisions on the framework. As I mentioned in my written briefing, if a new statutory duty of candour were to be introduced in isolation from that key cultural piece of work, it would be unlikely to have the positive benefits that we need to see.

It is important to note that adopting the new framework will not preclude the potential benefits of introducing a statutory duty of candour. We have engaged with colleagues across the UK who are all at different stages of the process on that. Members will note that, in December 2023, in response to the report of the independent panel on the Hillsborough disaster, the Department of Health and Social Care (DHSC) announced a review of the duty of candour in England. That review seeks to understand to what extent the duty is being honoured, monitored and enforced and to ensure that the initial policy objectives are met. A call for evidence ended in May of this year. We 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 Prime Minister committed in the King's Speech to introducing the duty of candour Bill in Parliament before the next anniversary of the Hillsborough disaster in April 2025.

In addition to the related recommendations set out in the report of the IHRD, the infected blood inquiry report, which was published in May 2024 and extends UK-wide, made recommendations on individual duties of candour, with consideration to extend those beyond healthcare, and specifically that Northern Ireland should introduce an organisational duty of candour. Again, we are linked into discussions with counterparts in England, Scotland and Wales to consider those developments. Options for next steps for Northern Ireland on a duty of candour will also take account of those discussions and have related time frames that remain under consideration.

I now hand over to Peter for more detail on the engagement process and emerging themes. I will be happy to answer questions thereafter.

Professor Peter McBride (HSC Leadership Centre): Thank you very much for the opportunity to be here. I need to put my involvement in this in the context of the hyponatraemia implementation programme. That is when I first became involved. I was the chair of the work stream of the hyponatraemia implementation process that was connected with the duty of candour. Two work steams were interrelated: the implementation of duties of candour and "Being Open". Therefore, I was absolutely involved in the public and the sectoral engagement on the duty of candour.

The distinction between the two work streams is that the duty of candour focus was on legislation, and the "Being Open" focus was on culture and how we adopted a culture of openness. That became a divisive process. On the one hand, you had family members and the public saying, "Just introduce the duty of candour. What is there to be frightened of? This is just about telling the truth". That is impossible to argue with. On the other hand, the health system was getting extremely anxious about the individual duty of candour specifically. Nobody was overly exercised about an organisational duty, but people were very exercised about the individual duty of candour, specifically the proposed criminal sanctions associated with it. They believed that that was excessively punitive in an environment in which they already felt slightly under the cosh.

The challenge was that, at the end of that process of consultation, no resolution to that difference had been achieved. We still had those two camps, and it was clear that there were solid arguments on both sides. That process of co-production began in 2018 and lasted for two or three years until COVID. Then, because it was so important, it continued, in a form, through COVID. The recommendations went to the Minister at the time, who was Robin Swann. It was clear that that was not a resolved issue; there was not agreement across the system with the public. You always expect a bit of tension, but that was very polarised. Therefore, Minister Swann commissioned the work with which I have become engaged as a follow-on from the "Being Open" work that was part of the IHRD implementation programme. That was to really understand from a staff perspective in the system what the barriers were to being open.

There were multiple times in that process when the question was asked, "What is the real prize here? What is it, actually, that we are trying to achieve?". Arguably, the possibility of the introduction of duties of candour and the cultural work on "Being Open" should both be servants to openness and honesty in the system. That is the prize. Part of that was about understanding why there was such anxiety and ambivalence about the introduction of statutory measures on candour and what the felt experience of staff was on openness. Behind many of the questions that you asked in the previous session was the question of why staff would not speak up. What might stop staff coming forward, if they saw something that they were uncomfortable with? The really important question is this: would a statutory change affect whether they would be open to doing that?

The work that I have done over the past year and a half has involved direct engagement with all of the trusts, including the Ambulance Service. It started with the Belfast Health and Social Care Trust, which was the most extensive engagement that I had. I am clear that it is about a cultural approach; it is not about writing a formal report. It was about engaging with people on the ground, having conversations and asking two simple questions: "If you thought that you had done something wrong or had seen something that was causing you concern, what are the things that might stop you being open?", and "What are the enablers in the system that might make a difference in that regard?".

On the back of that, we have a tentative framework. It is a matrix that sets together the challenges of "Being Open" with cultural challenges. Northern Ireland is an outlier in statute, in that we do not have an organisational duty of candour. Anecdotal feedback that I received from staff in England about the organisational duty of candour there is that it precipitates a de minimis approach. As it is legislation, it requires prescription, so it applies only where there is a high-level serious adverse incident (SAI). In those circumstances, there is a statutory duty on people to tell the truth. The problem is that organisations tend to argue about whether a specific incident has reached the threshold for the duty of candour to apply. As "Being Open" is alongside a duty of candour and not a statutory approach, it allows us to be more expansive.

We are talking about three levels of openness. The first is routine openness: how do we create a culture in the system in which, day to day, people feel able to share information freely and without fear of repercussions? The second, which is relevant to some of your questions in the previous session, is about how we create openness with a focus on learning: how do we create an environment in which, when something has gone wrong, staff feel that they will not be unfairly punished, and there is capacity for mistakes to be made? We all know that mistakes will be made, so how do we create an environment in which that can be done with psychological safety and people knowing that they will be treated fairly? The third level, where a statutory duty of candour would tend to kick in, is where serious harm or death has been caused. Adopting "Being Open" has allowed us to take a more expansive approach.

On the culture piece, it is important to understand the three components of culture, which are the practicalities of culture. The first component is policies and procedures, and the second, importantly, is behaviours. We can have the best policies in the world, but, if managers do not behave properly, it disincentivises and frightens staff. The third component of culture is the narratives and beliefs that people hold about an organisation. When I ask staff, "What would stop you being open?", they told me stories. They told me stories about things that had happened to them and things that had happened to their friends or relatives in the organisation.

That brings me to my final point, which is about the feedback that I have received. There is variation in the system — not all trusts are the same — but there are certain general characteristics across the system. There is a high degree of fear and anxiety. There is a lack of trust among staff in the systems that are in place to protect them and allow them to raise concerns or speak up. When I ask, "What would stop you doing it?", the stories that they told me were about how they felt that it would diminish their career and stop their processes of advancement and that there would be ways in which they would be caught. There was a lack of confidence in any kind of anonymity in the system. With whistle-blowing or anything like that, they did not believe that their information would be kept private and confidential. Layer into that the challenges of a system that is under huge pressure from resourcing, and that adds yet another dynamic.

When it comes to the specific statutory proposals on duty of candour, the real danger is in seeing it as "either/or": either we adopt a cultural approach with "Being Open" or we introduce a statutory duty of candour. That will not work, in my opinion. Any statutory duty should support and, in a way, be a servant of the cultural piece. The feedback in the system is that there is absolutely no objection to or anxiety about an organisational duty of candour. That would bring us into line with the rest of the UK. Many other jurisdictions have an organisational duty of candour.

Specifically, if we want to get ahead of the game, constructing an organisational duty of candour that is focused on supporting the cultural work would be a really clever way of doing that. Organisations have a duty to support their staff to be open and transparent, and there are mechanisms that allow them to do that. The real anxiety in the system is about the possibility of an individual duty of candour, and there is extreme anxiety about the possibility of criminal sanctions. It is a complex issue that needs careful consideration in what feels like a fragile organisational environment at the moment.

The Chairperson (Ms Kimmins): Thank you, Michael and Peter, for your introduction. You have probably answered some of the questions that I was going to ask.

As I said in the earlier session, you may be aware of some of the conversations that we have had at Committee on individual and statutory duties of candour. You mentioned that people feel that it cannot be one or the other: I agree that it needs to be both. From my perspective, we would hope that people felt confident to be open and transparent at the earliest possible stage. Having an individual and an organisational duty of candour is not about wanting people to have criminal sanctions. It could mitigate the issues and deter people from getting to that point, so that they would be open and honest at the earliest possible stage, knowing that that is the best thing to do.

The hyponatraemia inquiry specifically showed how people covered up and that there was real reticence about being open. There has been guidance in place for over 25 years on being open and transparent. Clearly, that does not work. People have lost their lives as a result, so we can no longer rely on a "Being Open" framework in isolation. We have seen the recommendations from across the inquiries; we met families affected by the infected blood scandal; and we met the families of the deceased patients of Michael Watt. We heard some horrific stories. For me, it is coming to a tipping point where we cannot continue to allow this to go on as it is.

You mentioned an indication from Westminster to bring in primary legislation. Are you aware of the Minister having any appetite to consider doing that in the North?

Mr O'Neill: The Hillsborough one is more specific to specific events. The infected blood one is an organisational duty of candour across the public sector. The types of questions that are being asked now are the same, but the context has changed, in that Northern Ireland is an outlier in respect of organisational duty of candour. We do not have it. Everywhere else in the UK does. Similarly, if we were to implement an individual duty of candour, we would be an outlier, in that we would be the only place with an individual statutory duty of candour.

With "Being Open" being consulted on from towards the end of the year and the emerging recommendations, findings or conclusions from the English review of its organisational duty of candour — it has been in place for 10 years — the timing could be fortunate, in that we can learn how that organisational duty of candour has taken place.

The Minister has put on record his view that he wants people across the public service to be candid etc in their dealings with the public and in what they do. However, there was that concern around the chill factor: what would be the impacts on the workforce of an individual or organisational duty of candour? That is a natural conversation to have at the point when the "Being Open" consultation has finished and more is emerging about what the plans are across the UK: the wider piece.

The Chairperson (Ms Kimmins): You talk about that chill factor. I completely understand. I worked in the trusts as a Health and Social Care worker, so I get that. I hope that people can understand that this is as much about protecting staff as it is about protecting patients. I would say that everybody around this table has spoken to staff in Health and Social Care who may have wanted to raise a concern, whether it was about someone's conduct, something that they had witnessed or even being told by management not to contact their elected representatives about an issue. That fear is there, and, until we take a more stringent approach, that will continue, and we will go round in circles. I appreciate that.

We will meet the General Medical Council (GMC) and others in the time ahead, and those are the conversations that we would like to have, because it is about protecting everybody. It is not about trying to come down on people with a criminal sanction. That would be a last resort. Where that is necessary, that should be happening.

As we discussed in the previous session, not all of the issues that arise are deliberate, so, if we could get those addressed at the earliest possible stage, ideally, that is where we would all like to be.

Professor McBride: If I may, I will respond to that. I understand the logic of that completely. The real question is this: will it work? The feedback that I have heard from staff is that individual criminal sanctions are unlikely to work. The danger with that is the unintended consequences and setting Northern Ireland apart in a competitive environment, particularly for medics, in order to have a system that appears more punitive. I take your point completely. Actually, it should provide people with more protection, but the way in which it is likely to be experienced by staff — this is the nuance — is that it becomes more punitive. That was certainly the impression given during the last consultation. There is a danger of unintended consequences. I am just saying that we should be cautious about that.

The Chairperson (Ms Kimmins): I take your point, and that is what we would like to explore as a Committee. I do not think that anybody will rush into anything without considering all potential consequences. I would like to explore the unintended consequences a wee bit, what staff perceive as the challenges around it or why they think that it would not work. It is also important that we look at what is happening where it is in place.

It is important that we have the conversations and look at this in the round, because it could protect lives, which, for me, is key. I certainly do not want to see more and more inquiries coming down the road. Not only does what sparks an inquiry affect individuals' lives — people are losing their lives — it affects families and is generational. An inquiry also puts huge pressure on the health service. Those inquiries cost millions of pounds and take years and years. I am not talking just about the big inquiries that we referred to as part of these discussions. In many of the more serious adverse incidents that I have been dealing with, there were numerous opportunities to stop something getting to the stage that it did, but they were all missed, and people were failed. It is about addressing all those things. There is no perfect answer to any of this, but we really want to explore it.

I could go on, but I will open the meeting up to other members. I know that many of them are looking to speak.

Miss McAllister: Thank you for that briefing. It was helpful, especially on engagement with the trusts.

I wanted to come back to the argument from trusts that an incident may not meet the threshold at which the duty of candour applies. I want to clarify that: did you mean the trusts in England and Wales where there is an organisational duty of candour?

Professor McBride: In England.

Miss McAllister: Do you know what has been put in place to prohibit trusts from putting in their own mitigations to stop things reaching the threshold?

Professor McBride: It is important to say, first, that this is anecdotal, so it is from those who have been involved in it. The definitions around duty of candour are linked with the SAI processes. For SAIs at the highest level, the duty of candour applies, but not below that. The facetious implication of that is that you have to tell the truth if it is at a particular level, but, if it is below it, you can do whatever you like. I am not saying that that is what happens, but that is why, with a de minimis approach, some may take the route of least resistance to get the minimum outcome, whereas we are, I think, trying to have a whole-system approach here. We are trying to create a culture of openness so that, when something goes wrong and those circumstances are hit, people's instinct is to be open and transparent, rather than it being something where they think, "Right, there is a duty of candour. I now have to do this". It is the fundamental difference between a legislative framework, which requires definition, and a cultural approach, which allows for a more expansive engagement.

Miss McAllister: I understand that, and I understand the fear from staff. It is really important, however, especially for us as Committee members looking at the individual duty of candour, that it would come into effect only in instances where there has not been full disclosure. That is really important to highlight. It is not a witch-hunt against anyone who makes a mistake. We know that the majority of our Health and Social Care staff act in good faith. The reality is that mistakes happen. It is about what follows.

Professor McBride: In a way, that is the problem, because the legal experts that we have spoken to have said that an individual duty of candour would have such a high threshold that it would apply only in really exceptional circumstances. There is an argument about how that would work as a disincentive. The reality is that staff experience it as a threat: there is a threat of the duty of candour. The reality is that it is unlikely that it would ever hit, which is part of the rationale that we might have in saying that it will not be used very frequently, but staff on the ground experience it as a personal threat and something that will affect them.

I am relatively sanguine about this. It is complex, because, whilst I have engaged extensively with the system, I have also engaged extensively with the public and families and know the depth of feeling around this. I will go back to my point about what the actual prize here is: the prize is that we do not go through, as you have said, Chair, another set of inquiries where the same issues around non-disclosure come up. When John O'Hara did the hyponatraemia inquiry, he clearly became really irritated at not getting an honest experience of information out of the system. That is just not acceptable.

Miss McAllister: I agree. However, many families do not feel that it is complicated. For them, it is, "What are you covering up?". In 2019 or 2020, it came to light that, in just one ward in Muckamore Abbey Hospital, there were 1,500 crimes. Just recently, when Cathy Jack gave her evidence to the Muckamore inquiry, she stated that, when those staff knew that the CCTV cameras were on, behaviour changed. To me, that says that those who are willing to cover up are willing to act not only negligently but criminally. They would think again if there was something like CCTV or, perhaps, something like a legislative duty of candour.

I do not know whether you have any role in the adult protection Bill, but the Bill will place a statutory duty on the trusts, the PSNI, the HSC board etc to provide health and social care services, to report to the relevant trust any cases where, they believe, there is reasonable cause to suspect that an adult meets the criteria of an adult at risk and in need of protection. To me, that says that a duty of candour would strengthen it in a positive way.

Professor McBride: It would.

Miss McAllister: There is already legislation in place. Could we anticipate that, perhaps, the adult protection Bill, which, we understand, has now been delayed, could include the duty of candour? If we are going to have the open framework next March, it needs to be for both. Perhaps, the Department could look at whether the adult protection Bill could include a duty of candour.

Mr O'Neill: I have not been involved in that side of the work. I am not too sure what the answer to that question is. The other thing on the anecdotal side about whether it works and the unintended consequences is that the English review, which has finished its evidence gathering, will at least provide us with conclusive non-anecdotal information about what the unintended consequence has been. On the point of the Bill that you referred to, I would need to double-check the plans around that and the legal framework.

Miss McAllister: It would be helpful if you could. It is important that, at every opportunity, the Department reassures staff that this would only ever come into effect when there was not full transparency or disclosure. Indeed, you could have levels of mitigations within legislative proposals for whether it was, for example, deliberately withholding disclosure. There are different levels of what it could be. The law could be complex, but there are ways to do it. It is important because, when it came out about Dunmurry Manor care home, it talked about duty of candour. The very first recommendation of the hyponatraemia inquiry was for that, and it will probably happen with Muckamore. We will have to decide once and for all to do it. My preference is that the Department would lead on it, but I would not be shocked or surprised if a private Member's Bill or amendments were to come forward to include it in another way, because it needs to be done.

Mr Donnelly: I have a couple of questions. There has clearly been a long history of issues. Dishonesty, withholding information, covering things up and deliberately giving misleading information have come up again and again in the inquiries that you have mentioned. The families that have been pushing for those inquiries for many years finally got them and have seen duty of candour being part of the recommendations. Given everything that has been pushed for throughout those inquiries, how do we not deliver duty of candour for the families of loved ones who, in many cases, have been seriously injured or have passed away? How do we not deliver for those families?

Professor McBride: That is an important question, but it creates a binary view. The introduction of a statutory duty of candour will not solve those problems. It is an end in itself and may go some way towards creating a framework by which people will be punished, but the mechanisms beneath that, through which people are either incentivised or disincentivised to tell the truth, are much more complex and are to do with context and all the rest.

I will go back to the point that I made about talking to families and that issue coming up. I am sanguine about a duty of candour, but success is not represented by introducing a duty of candour; success is having a more open and honest health service in which, when things go wrong, people feel empowered and safe enough to speak up. That is success.

My real concern is around unintended consequences: the possibility that we would introduce a statutory duty of candour, pat ourselves on the back and say, "That job is done," when the fundamental problems underneath that, which I alluded to and which are becoming clearer, are not addressed. I would want to engage the families on what we actually want to achieve. A duty of candour will be part of the answer, but it is not the whole answer.

Mr Donnelly: I am conscious that it has been mentioned time and again. I looked back over 20-odd years. I think that it was first mentioned in the 1980s that this needs to be implemented. It would be hard to explain to families who have lost a loved one why it is not being implemented. I get what you say about the culture piece having to come, and I agree with what has been said about those things having to happen together.

Having worked in the health service and having had a lot of briefings at the Health Committee about the pressures in the health service, I can absolutely see how staff would see it as a threat. The pressures that staff in our health service are under are growing, and you can see how mistakes can be made in an environment in which wards are understaffed and have excess patients. When our A&E departments are overcrowded, you can see how that would lead to mistakes being made. This is not about punishing people who make mistakes; it is about punishing people who cover up, lie and seek to deceive. That distinction has to be made clear.

You mentioned the threshold for the duty of candour in England. I am curious about why that threshold is so high and what it would take for it to be triggered. Are you talking about a patient death? Is that the trigger?

Professor McBride: Yes. It applies for the highest level of SAI.

Mr Donnelly: So, duty of candour applies only in cases of a patient death.

Professor McBride: It applies only in the case of a high-level SAI. That does not always equate to death; it equates to serious harm.

Miss McAllister: Is it just organisational?

Professor McBride: It is just the organisational duty of candour, not the individual. Most professional bodies have a duty of candour as part of their professional standards.

Mr Donnelly: I was coming to that. In the case of a nurse, the Nursing and Midwifery Council (NMC) — the oversight body for nurses — would investigate that. Part of the investigation would be to look for dishonesty. A nurse who is found to have been dishonest would be struck off. I think that it is similar for the GMC. What sanctions apply to an organisation that is found to have broken —

Professor McBride: In England?

Mr Donnelly: Yes.

Professor McBride: A fine.

Mr Donnelly: A fine?

Professor McBride: A nominal fine. I do not know the up-to-date statistics, but very few have been issued.

Mr O'Neill: The first prosecution was six years after the implementation of the law, and I think that it was a fine of £12,000 or £13,000 from a local trust. I imagine that a key part of the review is to look at how the enforcement of the law has worked and a big return to what the policy objectives were and whether they have been met. It is fortunate that that is happening at the minute, and we will have key information from that review.

Mr Donnelly: So there is no sanction apart from a fine. No threat of deregistration, for example?

Professor McBride: It is organisational, so it is not individuals in the organisation. It is that sort of generic organisational responsibility.

Mr Donnelly: Can an organisation be taken out or punished in any other way?

Professor McBride: That is not my understanding.

Mr O'Neill: That is just how it stands. Even before that, there will be stages of enforcement. That is what was referred to in the explanation of why it took so long to prosecute initially. It would not just go straight to a fine. Organisations may have been given opportunities to change policies or change tack, but the fine was the final and full punishment at the end of the case.

Mr Donnelly: We have spoken about the duty of candour. How can you be sure that the "Being Open" culture that we are looking for is enough to ensure openness and transparency?

Professor McBride: That is a binary question. I do not think that you can. When you are dealing with culture, all the issues around context become incredibly important. You know better than I do that the system is under incredible pressure. There are issues in this around, for example, the trust and our culture's attitude towards mistake making. All the evidence shows that an environment in which mistakes are not actively punished but there is a restorative approach, where staff feel safe to speak up if something has gone wrong, is much better for patient safety. However, that is not at all attractive to the public.

It goes back to a point that a member made about the loss of confidence. That is the biggest challenge that we face. The public have lost trust in the health service. The danger with that is that the response to that is to bring in layer upon layer of accountability, which just silts the whole system up and does not improve patient safety outcomes. There is lots of evidence to show that.

A really important engagement and conversation is required to happen now with the public about how we deliver health services and how they understand that modern medicine is risky. The delivery of services in a constrained environment is risky. The staff working in our health service make life-and-death decisions every day and try to manage really difficult risk. Understanding what it is that supports them and to then, in that context, be open, honest and transparent is an important question. The answer that I have been getting, certainly around the duty of candour, is that it simply will not work. It will have a negative impact in that way. That is not to say that there are no other reasons for doing it, but it depends on what we are trying to do.

Mr Donnelly: I absolutely agree with your point about the public losing confidence. We get that all the time. I get that on the doorsteps in my constituency — waiting lists, people not being able to get through. I would add to that by saying staff as well.

Professor McBride: Yes, I know.

Mr Donnelly: There is a serious moral injury that staff feel painfully, and they have lost confidence in the health service. That is something that we have to consider as well.

Mr O'Neill: On that issue, it is about confidence in the service and accessing it, but there are still high rates of confidence in doctors and nurses. In the vast majority of people's experiences in hospitals, they rate the doctors and nurses highly. Across all employment groups in the sector, doctors and nurses are right at the top. People's confidence has been shaken in the access to and provision of the service and how they can rely on the service. There are two elements to that confidence question.

Mr Donnelly: There are members of staff at the minute who have lost confidence, many who are suffering huge pressures and some considering even industrial action.

Professor McBride: The idea of moral injury is important. The feedback that I got from staff was nuanced in the sense that they trusted their colleagues. They felt that they could be open and transparent with their colleagues, that they could share with their immediate colleagues if something had gone wrong. Their lack of trust was with "the system" — the layers of management above them, where they did not feel that they would be treated fairly, openly or in a way that was interested in learning. They felt that they would be scapegoated, so there is an interesting nuance.

The other thing is that NI is so small that our health service is the public. Vast numbers of the public work in the health service, so there is a really important interface.

Mrs Dillon: Thank you for the presentation. It has been interesting to have that conversation about the duty of candour. People have given their views on that, so I just want to have a wee focus on the other side of it, which is culture and openness. Everybody thinks that people are not open because they are afraid, but, often, people stop being open because they think, "What is the point?". They have repeatedly reported issues and said that something is not working for a particular reason and is unsafe or is causing a risk to patients or they have said something about an individual, and they feel that they are not being listened to. Sometimes, that can be down to individuals, but it can also be down to the system. It can be about saying, "We need that person" or "I do not have time to deal with that". We need to address that now.

Human culture tells you that, if you keep saying that something is wrong and nobody listens or does anything about it, you just get to the point of saying either, "I do not want to be here any more" or, "I am just going to keep my head down and get on with my job. I will not raise it again". It is often the people who keep raising issues who end up being almost punished for raising them. They are told, "Keep quiet. Get on with your job. It is not hurting you". That is another side of it. People often think that it is about the fear, but it is often about, "What's the point?".

The second bit of it is accountability. I accept what you said about that, and, at the end of our previous session, I raised the point about how we needed to be careful not to have so many layers of bureaucracy and accountability that we do not invest in the people who do the job of preventing things from happening. I accept that, but there needs to be accountability. The answer to Danny's question about the organisational duty of candour is that the sanction is a fine. Who pays that? It is the patients who suffered. You pay the fine for your injury; that is the reality. There needs to be some accountability, and there are plenty of layers that need to be held accountable.

Accountability does not mean punishment. It means this: "What have you done? What have you tried to do? What have you been prevented from doing, because you are not being resourced to do it?". It is about being allowed to say that. A lot of work needs to be done. I do not expect it to be done overnight, but I want to understand a bit more about that end of it and how we deal with, "What's the point?". If people feel that nothing will or can be done, they will stop raising their hand.

Professor McBride: I could not agree with you more, Linda. It is for that explicit reason that the second level of openness is openness with a focus on learning. That is because a consistent message came through from staff in exactly the words that you just used. One of the disincentives to being open with learning was feeling that, "When I raise a concern, nothing is done about it". That is why that has a section of its own and is a specific focus in the "Being Open" framework. It is about how we begin to deal with that.

The challenge of accountability is a really important one when it comes to dealing with public confidence and reassuring staff that they will be dealt with fairly. There are staff who feel that accountability means being punished rather than taking responsibility and being able to make amends for what has happened. It is a really important question that needs detailed understanding. I believe that there is an effort in the trusts to move towards more restorative models around mistake-making, for example, but that is in the face of significant challenge and opposition because of the anxiety about what that means in terms of accountability.

This is a really important issue that requires public engagement. Unless we deal with it, we will not deal with the issue of public trust.

Mr Chambers: On a couple of occasions, Peter, you mentioned the concept of unintended consequences. That is something that we, as politicians, have to recognise when we craft legislation. Did you get any sense from the feedback from your consultation engagements that a statutory duty of candour would have any negative impacts on clinical decision-making regarding patients' treatment?

Professor McBride: The feedback that I got from medics specifically is that, for some of them — only some — there was a risk that it would lead to what they described as "defensive medicine". In other words, they possibly would have heightened anxiety around taking clinical risks that would normally be in the purview of their professional judgement, and that would lead to defensive medicine. The feedback was that, in their view, that would be a step backwards in the quality of service that could be provided.

There was a second issue. The view of specialists and medics was that, if Northern Ireland were to be out of kilter with the UK or other jurisdictions in a way that was perceived as being punitive, no matter about the intention behind it, the recruitment of people as senior doctors in Northern Ireland, which is already challenging, would be compromised.

Those were the two main potential negative consequences that they anticipated. To be specific, the focus was particularly on the individual duty of candour with criminal sanctions.

Mr Chambers: We are trying to improve patient care and so forth, but there is a possibility that, in certain cases, we could do the opposite. I can imagine a case in which a clinician who is dealing with a patient with a condition from which they will die — maybe within days or even hours — and feels that there is some intervention that he could attempt but that that intervention could lead to the accelerated death of the patient would not take that chance. That is not a good outcome for patients.

Mrs Dodds: It is an interesting conversation. I accept that there are unintended consequences, but there are consequences to everything. This is the 28th anniversary of young Claire Roberts's death. Her family had to go to court and through inquiries, and, if it had not been for the persistence of her parents and family, they might never have discovered the truth behind their daughter's death. That is why people want there to be accountability in the system. It is really important to say that in a meeting such as this.

The reason that there is demand for a duty of candour is that we have to drag that out of the system bit by bit. It is the same if you look at the debacle over smear tests in the Southern Trust, in which 17,500 women's results had to be reviewed. Because of that debacle, there are women who are no longer with us today. I will again mention Erin Harbinson, who passed away a few weeks ago. Her smear test was misread in 2012, 2015 and 2018. I understand that there are unintended consequences, but you can understand why people demand more from the trusts and the organisation. I do not include the individual staff in that. It would not be fair to do that, because, in many ways, our staff are broken by the conditions that they have to work in.

Having considered those two cases, I will go back to something that the Health Minister and permanent secretary said at last week's Health Committee, when I asked who holds the trusts to account and how they account for the performance of the trust and the decisions about what information is released. It really transpires that, apart from Ministers themselves, there is not an awful lot holding the trusts to account. Would earlier interventions and better accounting mechanisms be better at this stage as well? I still think that we need a duty of candour. The situation has gone on for too long. I am also interested in how we can get those mechanisms at all levels that ask for accountability.

The Chairperson (Ms Kimmins): Thank you, Diane. Did you want to respond, or are you happy enough?

Professor McBride: I agree with Diane. There is not too much disagreement in the system about the value of an organisational duty of candour, especially if it is focused, as you say, Diane, on how we support staff at all the different levels in those circumstances. That would be welcomed. It would be seen as supportive. I agree with you 100%.

Mrs Dodds: Make no mistake: I veer towards the individual duty of candour as well, but we do not have mechanisms by which to hold trusts to account, and that is to our detriment. Sadly, we have seen that in Northern Ireland.

Mr O'Neill: On the individual duty of candour, one of the concerns is that people are envisaging the individual duty of candour with criminal sanctions in an unchanged culture. That is why the cultural change is so important.

The Chairperson (Ms Kimmins): It goes back to my original point that we must have both. We need both so that we will never really have to take that criminal sanction route. At the end of the day, we know of cases where people have acted with impunity. That is why we have ended up with the inquiries that we have seen, which have been referenced. People were able to voluntarily de-register themselves, and there were all the things that came with that. That is shocking in this day and age, given the scale of the impact of their actions.

Key to all this is engagement with the sector, but the voices of the families and the public need to be part of that. As you said, Peter, the health service staff are the public. It is about putting it across so that people understand what we are trying to achieve. We can never completely eliminate the risk of those things happening, but the ultimate goal is to ensure that we do everything that we can to ensure that they do not happen, to make people feel safe in their work and to make people feel safe when they are in the hands of healthcare professionals.

Professor McBride: I really hope that the consultation that we are just about to go into around the framework will be an opportunity to raise those issues and have that debate with the public. I am not a civil servant, so I view that as part of the co-production process. The framework is written as a draft, and the possibility now is to get really meaningful engagement on it so that it creates a bit of a platform for those complex debates to be had and for the public to engage with the system a bit in order to understand that.

The Chairperson (Ms Kimmins): You are 100% right. The duty of candour is not the answer to all our issues, but it is an important tool that we should really explore and look at seriously.

Thank you, all. It has been a really important and useful discussion. It will certainly help us as a Committee. I really appreciate your time. Thanks very much.