Enforcement of the duty Statutory duties of candour in relation to harm to patients

Accepted in principle.
As set out in recommendation 174, the Government will introduce an explicit duty of candour as a Care Quality Commission registration requirement. The duty would apply to health and adult social care providers of regulated activities. This duty will be enforced using the Care Quality Commission powers. The Care Quality Commission consulted on the potential introduction of a Duty of Candour in its document A new start – Consultation on changes to the way Care Quality Commission regulates, inspects and monitors care. Its consultation response, published in October 2013, showed respondents were strongly in favour of a statutory duty. As a mark of the Government’s commitment to the duty of candour, the Care Bill puts a requirement on the Secretary of State to include a duty of candour in the requirements for registration with the Care Quality Commission. The Department of Health will consult on the regulations setting this duty which would require providers to inform people of the incident, provide an explanation, and where appropriate an apology. The Department will seek advice from experts on how to improve the reporting of patient safety incidents, including whether or not the threshold for the statutory duty of candour should include moderate harm. The final details will be set out in new regulations, which provide the flexibility to amend or vary the regulations over time as the new duty is established.
As a further incentive for Trusts to promote a culture of openness across their organisation, the Government will consult on proposals about whether Trusts should reimburse a proportion or all of the NHS Litigation Authority’s compensation costs when they have not been open about a safety incident. Where the NHS Litigation Authority finds that a Trust has not been open with patients or their families about a patient safety incident which turns into a claim, it could have the discretion to reduce or remove that Trust’s indemnity cover for that claim. The NHS Litigation Authority will continue to make compensation payments due to patients. Trusts who were not open with their patients could be required to reimburse the NHS Litigation Authority for a proportion or all of the payment.
The Government agrees that the professional values of individual clinicians are critical in ensuring an open culture in which mistakes are reported, whether or not they cause actual harm. General Medical Council, Nursing and Midwifery Council and other professional regulators will be working to agree consistent approaches to candour and reporting of errors, including a common responsibility across doctors and nurses, and other health professions to be candid with patients when mistakes occur whether serious or not, and clear guidance that professionals who seek to obstruct others in raising concerns or being candid would be in breach of their professional responsibilities. The Department of Health will ask the Professional Standards Authority to advise and report on progress with this work. The professional regulators will develop new guidance to make it clear professionals’ responsibility to report ‘near misses’ for errors that could have led to death or serious injury, as well as actual harm, at the earliest available opportunity and will review their professional codes of conduct to bring them into line with this guidance. The professional regulators will also review their guidance to panels taking decisions on professional misconduct to ensure they take proper account of whether or not professionals have raised concerns promptly.

There is a duty of candour professional and statutory, The statutory duty of candour is a general duty to be open and transparent with people receiving care which applies to all health and social care providers that the CQC regulates. Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulation 2014.The CQC can take enforcement action for breaches of the regulation.

There is also a professional duty of candour, and although not statutory, every health and care professional has a professional responsibility to be open and honest when things go wrong.

Please see our response to recommendation 21 above for further detail on the statutory Duty of Candour, including DHSC’s review.

The Department of Health s put in place a new statutory duty of candour as a requirement for registration with the Care Quality Commission. This has applied to NHS organisations since November 2014 and will come into effect for other organisations from April 2015. .

As stated in the update to recommendation 175, eight of the UK professional regulators issued a joint statement on candour in October 2014 and the General Medical Council and the Nursing and Midwifery Council are consulting on joint draft explanatory guidance for the professional duty of candour.

In a nutshell, the discharge of the duty of candour, organisational and professional, is patchy.

This recommendation was accepted by the Government in principle.

In the January 2014 Hard Truths report, the Government said it would consult on proposals about where trusts should reimburse a proportion or all of the NHS Litigation Authority’s compensation costs when they had not been open about a safety incident.

Reg. 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 imposed a duty of candour on health service bodies. It did not impose a statutory obligation on individual medical practitioners or nurses.

A joint statement was issued on behalf of the Chief Executives of the statutory regulators of healthcare professionals (including the General Medical Council and the Nursing and Midwifery Council) in October 2014 stating their common approach to the professional duty of candour.