Implementation of the duty Ensuring consistency of obligations under the duty of openness transparency and candour

Accepted in principle.
We agree that staff should be honest and open with patients, and The NHS Constitution already emphasises the importance of honesty and openness in its values and sections outlining staff responsibilities, rights and pledges. In addition, wording was included in the March 2013 update of The NHS Constitution to reflect the contractual duty of candour.
We note that the Inquiry has made a number of recommendations which relate to openness and transparency in policies and guidance of providers and other healthcare organisations, along with the reporting processes of these organisations and how they interact with regulators. While we generally agree with the importance of these recommendations, The NHS Constitution focuses specifically on setting out the values of the NHS along with the rights and pledges to patients and staff, and their responsibilities. As it is not intended to address organisational reporting processes and interactions with regulatory bodies, it is not considered appropriate to reflect these issues in The NHS Constitution.
If, as is currently planned, a new legal duty of candour is created, we will consult on how best to reflect this in The NHS Constitution when it is next updated.
We do not think that including a duty of openness, transparency and candour into contracts of employment is relevant, not least because of the difficulty in defining these terms for contractual purposes. We think that this recommendation can be best delivered through improved appraisal and, for example, revalidation arrangements being developed by the Nursing and Midwifery Councils (see response to recommendation 193) and other professional regulators. Steps have already been taken to improve staff performance and appraisal systems (as set out in the response to recommendation 7).
NHS Employers will support NHS organisations in strengthening local policies on appraisals so that there is a clear link on the need for candour, openness and transparency in local appraisals and performance arrangements.

The NHS Constitution (last updated February 2024), advises that staff should aim to be open with patients, their families, carers or representatives, including if anything goes wrong; welcoming and listening to feedback and addressing concerns promptly and in a spirit of co-operation.

The NHS Terms and Conditions of Service Handbook (as revised February 2024) requires that local appraisals are consistent with the NHS Constitution for England (53).

Sir Robert Francis QC was clear in his Inquiry report that the principal message of the NHS Constitution should be that patients and their safety come first. In Hard Truths, the Department of Health committed to strengthening the NHS Constitution to make this clearer for patients, staff and the public. To this end, The Government has launched a consultation into, amongst other things, refreshing the NHS Constitution to reflect the recommendations made by Sir Robert Francis QC. These are:
• duty of candour;
• safe care and avoidable harm;
• staff guidance, and;
• a patient-centred NHS.

This recommendation was accepted in principle by the Government.

In the January 2014 Hard Truths report, the Government said wording was included in the March 2013 update of the NHS Constitution to reflect the duty of candour.

However, the Government said that the NHS Constitution was not intended to address organisational processes and interactions with regulatory bodies, so it was not appropriate to reflect such issues in it. Similarly, the Government’s view was that including a duty of openness, transparency and candour into contracts of employment was not ‘relevant’, partly due to the difficulty in defining these terms. The recommendation was better delivered, in its view, by improved appraisal systems.