Duty of Candour in Healthcare

There are an extensive number of health and social care processes, policies and procedures in place to ensure that treatment and care is delivered to a high quality, however, there are times when things go wrong. At such times health and social care professionals have a responsibility to inform patients, their carers, advocates or family members and offer an apology. This is a requirement of the Health and Social Care Act 2008 and is known as Duty of Candour.

Duty of candour is a general duty to be open and transparent with those receiving care and treatment. It applies to all health and social care providers and practitioners.

The duty requires registered providers and registered managers, also known as ‘registered persons’ to act in an open and honest way with their patients when something goes wrong. Legally, care providers must ensure that those affected by an unwanted incident are informed, receive sufficient support, are provided with honest and factual information on the matter and, importantly, receive a swift apology.

Up until 2014 care providers were not legally bound to share information with patients who had been harmed, or their family members. The tragic case of 10-year-old Robbie Powell, who died at Stafford Hospital due to medical negligence in 1990 and the continued perseverance of his parents through the courts to gain the truth behind what happened, exposed the need for there to be a legal duty.

A public enquiry was set up in 2010 and chaired by Robert Francis QC, to look at the serious failings at Stafford Hospital, which is run by Mid Staffordshire NHS Foundation Trust. In 2013 the Francis Inquiry concluded that candour – the qualify of being open and honest, is paramount in the delivery of high-quality healthcare. The statutory duty has been effective since November 2014.

Duty of candour forms part of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 20, which sets out specific requirements that providers must follow, as soon as reasonably practicable after ‘notifiable safety incidents’ occurs. This legislation is part of the NHS contract and embedded in Care Quality Commission (CQC) regulations.

Regulation 20 defines a notifiable safety incident as, ‘any unintended or unexpected incident that occurred in respect of a service user during the provision of a regulated activity that, in the reasonable opinion of a health care professional, could result in, or appear to have resulted in:

• the death of the service user, where the death relates directly to the incident rather than to the natural course of the service user’s illness or underlying condition, or
• severe harm, moderate harm or prolonged psychological harm to the service user

Duty of candour must be applied when a patient experiences harm. Harm in this instance is categorised as:

Harm that requires a moderate increase in treatment such as an unplanned return to surgery, an unplanned re-admission to hospital, additional time in hospital or an extended episode of care, either in hospital or as an outpatient. It also includes cancelling of treatment and transferring of treatment area, like moving to intensive care.

Example: A patient arrived at hospital for planned surgery but had not been correctly advised to discontinue taking certain prescribed medications before the surgery. Due to this the surgery had to be postponed.

Pain experienced for, or likely to be experiences for a continuous period of at least 28 days.

Example: After a fall during a game of football, a patient visits their GP with a swollen ankle and painful foot. The GP sends the patient home without ordering an x-ray to be done and tells them to apply a cold compress, The GP advises that weight can be put on the affected foot. After a number of days with no improvement and worsening conditions the patient returns to the GP surgery and is told by another doctor to go for an x-ray, only to find they have sustained a fracture that should have been managed with a plaster cast. Due to this mismanagement the patient was left not only distressed and in pain for a number of weeks but needing surgery to rectify the error.

Psychological pain experienced for, or likely to be experiences for a continuous period of at least 28 days.

Example: During an elective Caesarean section a patient experienced pain due incomplete anesthesia. This resulted in a traumatic experience for the patient which led to depression and anxiety that lasted more than 28 days.

Permanent lessening of bodily, sensory, motor, physiologic or intellectual functions. This includes the amputation of the wrong limb or removal of the wrong organ or brain damage, that is directly related to the incident not related to the natural course of the patient’s underlying condition or illness.

Example: The identities of two service users are mixed up, resulting in one undergoing to wrong operation on the wrong site, leading to permanent harm.

When something goes wrong, health and social care professionals have a responsibility to:

• inform the patient, or their carer, advocate or family (where appropriate)
• apologise to the injured person
• give a detailed explanation to the injured person, or their representative on the short- and long-term effects of what has happened
• offer a remedy or appropriate support to put things right, if possible

As well as telling the patient, health and social care professionals must also be open and transparent with their employers, colleagues, regulators and relevant organisations. They must take part in any reviews and investigations. This extends to encouraging each other to be honest and open; never trying to stop a colleague from raising any concerns they have.

A written record of all meetings must be made and associated documents kept safely.

Healthcare professionals have an ethical duty to tell patients within their care when something goes wrong. This has been the approach for a number of decades now. Their duty is to explain what went wrong and how it is to be remedied. They must own up to mistakes they or those working under them have made, that has caused a patient to suffer harm or distress.

Professional duty of candour is regulated by specific professional bodies such as the General Medical Council (GMC) and the Nursing and Midwifery Council (NMC). The duty states that all health and social care professionals are duty bound to inform the service user, or their carer, advocate or family when something goes wrong.

Similar to professional duty of candour in that it requires professionals to be open and honest, statutory duty of candour covers all healthcare providers that are registered with and regulated by the CQC. What differentiates the professional duty to the statutory duty are the specific notifiable safety incident requirements.

Professional duty of candour is not enough when a notifiable incident occurs.

So why is duty of candour important? Ultimately, where harm has occurred, it is only right to acknowledge it and apologise. Offering a timely and sincere apology can reduce the likelihood of those who have been harmed taking legal action. A lack of apology or delay can lead to reputational damage, which may be irreversible.

Saying sorry is not an admittance of fault. The NHS’s ‘Saying Sorry’ leaflet advises that saying sorry when mistakes are made is always the right thing to do, it is not an admission of liability and does not affect indemnity cover.

Being open and honest can be difficult, but it is essential, especially when someone could be left with life altering issues or a family has lost a loved one. It is important that health and social care professionals work in environments where they are encouraged to be candid and not one where there is a blame culture.