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DUTY OF CANDOUR AT A GLANCE

The Medical Defence Union (MDU) has produced an excellent document (available here) which summarises Duty of Candour.

What is Duty of Candour?

  • Duty of Candour applies to all CQC registered care providers
  • It applies to organisations but individuals are responsible for delivering it
  • Many NHS organisations have a contractual duty of candour
  • Doctors also have an ethical duty of candour to be honest and open when things go wrong.

Duty of Candour categories

  • Ethical duty – The GMC state that “Every healthcare professional must be open and honest with patients when something that goes wrong with their treatment or care causes, or has the potential to cause, harm or distress.”
  • Contractual duty – The standard NHS contract contains a higher threshold than the ethical duty which applies to incidents, real or suspected, resulting in moderate or severe harm or death.
  • Statutory duty – Applies to organisations, but delivered by individuals, and includes prolonged psychological harm.    The  principles of statutory duty of candour are:
    • Care organisations must be open and transparent in relation to care
    • Applies to organisations but delivered by individuals
    • Patients to be informed of a ‘notifiable safety incident’ as soon as possible
    • Definition of a notifiable safety incident dependent upon whether the organisation is a member of the NHS or not.
    • Organisation must explain to the patient what has happened, what further actions will be taken, offer an apology, and keep a written record of all of the above. Failure to comply may be a criminal offence. Copies of all correspondence with the patient should be kept.  An apology should not be seen as an admission of negligence.
    • Patient to receive a written copy of the above record.
    • Patient to be offered all reasonable support – both practical and emotional

Definitions of Harm

  • Severe harm – a permanent lessening of bodily, sensory, motor, physiological or intellectual functions directly related to the incident
  • Moderate harm – requiring a moderate increase in treatment and significant but not permanent harm
  • Prolonged psychological harm – experienced, or potential to be experienced for at least 28 days.

Threshold for Notification

The threshold for a notifiable safety incident under the statutory duty of care differs for NHS and non-NHS bodies:

  • NHS Body (Trust, Foundation Trust etc) – an unexpected or unintended incident in the care of the patient that in the reasonable opinion of the health professional has or could result in:
    • Death (unrelated to natural progressions of an illness or condition)
    • Suffering severe or moderate harm or prolonged psychological harm
  • Non-NHS Body (GP, Independent Practitioner etc) – an unexpected or unintended incident in the care of the patient that in the reasonable opinion of the health professional has or could result in:
    • Death (unrelated to natural progressions of an illness or condition)
    • impairment of sensory, motor or intellectual function, lasting or likely to last for 28 days
    • changes to the structure of the body (e.g., amputation)
    • pain or psychological harm likely to be experienced for 28 days or more
    • shortened life expectancy
    • the need for treatment to prevent death or the above adverse outcomes.

Scottish Law

In Scotland the duty of candour is governed by the Health (Tobacco, Nicotine and Care etc.) (Scotland) Act 2016.  At present the provisions of this Act are not yet in force.  They are very similar to the English duty, but with slight differences;

  • In both countries a notifiable incident is something that a reasonable health care professional would view as resulting in one of the defined outcomes. In Scotland the person giving this view must not have been involved in the incident itself.
  • Re the notification: the Scottish Act says that the patient involved should have a choice about whether they want to receive more information about the incident.

To read the full MDU summary please click here.