Regulator updates its guidance on meeting the duty of candour

This new guidance is a must read for providers of health and social care services who would be well advised to check that their systems comply with their duty of candour obligations.

Last year we reported on what was said to be the first prosecution by the Care Quality Commission for breach of the duty of candour regulations following a patient death at University Hospitals Plymouth NHS Trust. So what is the duty and what does the updated guidance say?

Duty of Candour

In brief, the duty of candour is laid out in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

It defines a provider’s two separate duties – the first is to act in an open and transparent way with anyone receiving care or treatment from them and the second concerns a number of specific duties that apply where there has been a notifiable safety incident. This includes notifying the relevant person that an incident has taken place, providing a true account of what happened which covers everything the provider knows at that point and a written apology.  

Updated guidance

CQC explain that the guidance now contains :

• more specific explanation of what is defined as a notifiable safety incident and examples covering a range of scenarios
• further clarity that the apology required to fulfil the duty of candour does not mean accepting liability and will not affect a providers indemnity cover

Notifiable safety incidents

CQC confirm that a notifiable safety incident must meet all three of the following criteria:

1. It must have been unintended or unexpected.
2. It must have occurred during the provision of an activity it regulates.
3. In the reasonable opinion of a healthcare professional, already has, or might, result in death, or severe or moderate harm to the person receiving care. This element varies slightly depending on the type of provider.

Examples of notifiable safety incidents

Six case studies provide examples of how to apply the criteria in different settings:

1. Maternity
2. Care home
3. Surgery
4. Mental health
5. Dental
6. General practice

Saying sorry

CQC confirm that saying sorry is not an admission of liability – and applies in all settings whether in health or social care, or public or private sectors. To fulfil the duty of candour, the regulator explains that providers must apologies for the harm caused, regardless of fault, as well as being open and transparent about what has happened.

Commenting on the guidance, Helen Vernon, Chief Executive of NHS Resolution, said:

“NHS Resolution fully supports the CQC’s updated Duty of Candour guidance.

“Through our own guidance, Saying Sorry, we encourage an early apology when something goes wrong. This is not an admission of liability, is always the right thing to do and is the first step to learning from what happened.”

You can read the updated guidance here.                  

Comment

We would encourage all providers to take stock of their compliance procedures as there does seem to be an increasing appetite for the regulator to take both criminal and civil enforcement action across all sectors. While the duty of candour was first introduced in 2014 following the Mid Staffs inquiry, the duty has been referred to in subsequent inquiries into care failures (most recently the Paterson and Cumberlege reports) and is seen as a crucial, underpinning aspect of a safe and open culture.

Do get in touch with our healthcare regulatory team if you need support with your duty of candour policies or if you require training.