The statutory duty of candour is the biggest advance in patient safety and rights that has taken place in recent years. It applies to healthcare providers in England with effect from November 2014 and to all social care providers from 1 April 2015. The statutory duty applying to healthcare providers requires the provider to be open and honest with patients if things go wrong with their care. A failure to be candid can lead to criminal sanctions.
So what does the duty actually mean and when does it apply? In brief, if a patient is harmed then they ought to be informed of the fact and offered an appropriate remedy. The duty is triggered when an incident meets the threshold of a “notifiable safety incident”, specifically an incident that has resulted or has the potential to result in moderate harm, severe harm or death. There is, of necessity, a degree of professional judgement required as to what constitutes moderate harm but guidance is provided by the relevant professional bodies. Once the threshold has been met then there is a defined process of disclosure which has to be followed.
This article examines the extent to which the duty of candour applies to individual doctors. Whilst the statutory duty does not apply directly to individual clinicians, doctors are often relied on to discharge it on behalf of organisations. They therefore need to have a clear understanding of their own professional duty and the statutory duty as it applies to organisations and the differences between them. It is also of particular importance that there is a supportive partnership between a health service body and its staff.
Doctors have for many years been subject to a professional duty to be open to their patients when harm occurs. In addition, there is an ethical requirement to be open and honest. Given the existing professional duties, most commentators and professional bodies do not support the introduction of a statutory duty of candour with criminal sanctions for individuals. It is thought that this could have a negative effect on the rationale behind the duty which is to create a culture of openness and honesty.
In April 2015, the Royal College of Surgeons of England launched a best practice guide on how to implement the principles of duty of candour in everyday practice. This was followed by the recent (June 2015), guide produced by the Nursing and Midwifery Council together with the GMC on the professional duty of candour applying to the 950,000 nurses and midwives in the UK registered with the NMC and all doctors registered with the GMC.
The guidance is divided into two parts:
- The duty to be open and honest with patients, or those close to them, if things go wrong. This includes advice on apologising.
- The duty to be open and honest with the healthcare organisation to encourage a learning culture by reporting errors as well as “near misses”.
The duty to be open and honest with patients
The guidance provides that the duty includes discussing the risks before treatment or providing care. This includes checking the patient understands what he/she has been told. Therefore even at the outset before treatment commences, the professional should ensure that the patient is made fully aware about their care and their options and provide clear and accurate information about the risks and the risks of any reasonable alternative options. This places a high duty on healthcare professionals, including doctors and a comprehensive record of the discussion that takes place should be made.
If a mistake occurs and something has gone wrong with the patient’s care or treatment which causes or has the potential to cause harm or distress then the patient needs to be informed as soon as possible. The most appropriate team member will usually be the lead or accountable clinician.
The patient should be told about what is known about the incident, what is thought went wrong and why and what the consequences are likely to be. The patient should be offered an apology.
This can create concerns particularly as it is often thought that an apology amounts to an admission of legal liability which is not strictly the case. The guidance suggests some helpful hints which should be considered when apologising to a patient such as:
- Providing the patient with the information they want or need to know in a way that they can understand.
- Speaking to the patient in a place and at a time when they are best able to understand and retain information.
- Providing information that the patient may find distressing in a considerate way.
- Offering a personalised face to face apology.
- Ensuring that the patient knows who is the contact in the healthcare team, to raise any further questions or concerns.
- Making sure that you record the details of the apology in the patient’s clinical record.
There is also guidance in relation to being open and honest with patients about near misses, defined as adverse incidents which had the potential to result in harm but did not do so. The guidance states that a doctor must use their professional judgement when considering whether to tell patients about near misses.
The duty to be open and honest with your organisation
Organisations should have a policy for reporting adverse incidents and near misses and that policy ought to be followed. As healthcare providers they have a duty to support their staff to report adverse incidents.
The guidance also contains additional duties for those clinicians with management responsibilities and for senior or high profile clinicians. They largely deal with the requirement to have adequate systems in place to ensure adverse incidents are promptly reported. There should also be systems for conducting audits and for patient feedback.
In a healthcare setting it is especially important to good and effective patient care that a culture of honesty and openness prevails. The new guidelines will assist doctors and nurses in knowing when and how to respond when mistakes occur as they inevitably will in keeping with their professional duties so that lessons can be learned quickly and patients can be protected from harm in the future.