The duty of candour – a review

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2020-11-23

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The duty of candour arose out of the inquiry into the breakdown of care at Mid Staffordshire NHS Foundation Trust, led by Robert Francis QC (the Francis Report, published in February 2013). It is a legal duty for a care organisation to be open and honest with patients and/or their families when something goes wrong that appears to have caused or could lead to significant harm in the future.

The duty of candour was introduced in Regulation 20 of the Health and Social Care Act 2008 (Regulated activities) Regulations 2014 and came into force in November 2014 for NHS bodies and April 2015 for all other care organisations registered with the Care Quality Commission (CQC) in England. It is enforceable by the CQC.

Every healthcare professional also has a professional duty to be open and honest with patients when something goes wrong. All of the regulators have standards relating to candour and can and do bring fitness to practise proceedings against those not complying.

CQC enforcement

The CQC has the power to fine or even prosecute hospital Trusts and other care organisations for failures to comply with the duty of candour. Fines have been imposed on several Trusts for incidents including medication errors, delays in diagnosis and missed opportunities to investigate patients’ deteriorating condition. Trusts have been criticised for failing to notify the patient or their family of the facts available as soon as reasonably possible and/or failure to offer a prompt apology.

In September 2020, University Hospitals Plymouth NHS Trust was the first Trust to have been prosecuted for failure to fulfill its duty of candour. In that case, a patient, Elsie Woodfield suffered a perforated oesophagus during an endoscopy in December 2017. The procedure was abandoned and she was transferred back to a ward where she collapsed and died. Mrs Woodfield’s death was not categorised as a serious incident requiring investigation as her death was a known complication of the procedure. This was an error which meant the Trust did not follow its process for duty of candour. At Plymouth Magistrates Court, the Trust admitted the charges and accepted it had not provided a prompt apology nor a full explanation of what had happened. The Trust was fined £1,600 and ordered to pay a victim surcharge of £120 and court costs of £10,845.43. The Trust’s Chief Nurse and Director of Integrated Professions reassured the court and the public that significant changes have been made at the Trust. Specifically, investigations will be undertaken in all cases where a patient dies from a complication following a procedure, even if it is a known complication.

Promoting a culture of learning

The Professional Standards Authority (PSA) reported in January 2019 on the progress of regulators in encouraging healthcare professionals to be open and honest with patients when something goes wrong. Although the PSA found barriers to professionals being candid remained - fear of litigation, fear of fitness to practise proceedings, fear of public and media perceptions - it also found evidence of organisations and regulators focussing on candour as a positive attribute and one to be valued rather than just a regulatory requirement to be complied with.

By viewing candour as a positive attribute, professionals and organisations can promote a culture of learning from mistakes rather than a culture of blame. This learning can directly impact on patient care and bring about an improvement in patient safety.

As well as understanding what went wrong, it is very important that patients and their families are reassured that lessons have been learnt and future patients will not suffer a similar mistake. This communication helps to bolster trust in the medical profession.

Read others items in Healthcare Brief - December 2020

Related items: The General Medical Council: rebuilding trust