December 21, 2023

Candour under the spotlight

Healthcare NewsInsight

By Will Marshall, Head of Legal and Risk Management

Candour under the spotlight

A new review for 2024

The statutory duty of candour is back in the news this month after the Government announced that it will be conducting a detailed review of the duty. The review will be carried out by the Department of Health and Social Care in collaboration with health and care providers and other stakeholders. It will focus on three key aspects relating to the duty:

  • The extent to which the policy and design of the duty remain appropriate for the current health and care system in England.
  • The extent to which the policy is being honoured, monitored and enforced.
  • The extent to which the policy has met its objectives.

The findings are scheduled to be published in the spring of 2024.

Statutory background

The statutory duty of candour was the key recommendation made by the Francis Report (the report of the Mid-Staffordshire NHS Foundation Trust public inquiry) that was published in December 2013 in response to the Mid-Staffs scandal. Not to be confused with the professional duty of candour imposed on individual health care professionals by the professional regulators, the statutory duty applies to all CQC registered organisations. It was first introduced under regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and has been in place for NHS trusts and NHS foundation trusts since 2014, and for all other CQC-regulated providers since 2015.

To recap: how the statutory duty operates in practice

The scope of the duty is by now familiar territory. However, in essence, it requires all CQC registered organisations to be open and honest with patients as soon as possible after they realise that something has gone wrong.  

Regulation 20 sets out the actions that providers must take when a ‘notifiable safety incident’ happens. A ‘notifiable safety incident’ is an event that is:

  • unintended or unexpected
  • that happens during the provision of an activity that the CQC regulates
  • and that – in the reasonable opinion of a healthcare professional – could, or already appears to have, result(ed) in death or severe or moderate harm to the person receiving care.

As soon as a notifiable safety incident has been identified, organisations must act promptly and are expected to:

  • tell the relevant person, face-to-face, that a notifiable safety incident has taken place
  • say sorry
  • provide a true account of what happened, explaining what is known at that point
  • explain what further enquiries or investigations will take place
  • follow up by providing this information and the apology in writing, and giving an update on any enquiries
  • keep a secure written record of all meetings and communications with the relevant person

How the duty is monitored and enforced

The CQC regulates compliance with the statutory duty of candour. Organisations must have clear policies and procedures in place and make sure staff understand their responsibilities. The CQC also expects senior managers to show they have a safe culture where staff feel able to speak up and are supported to carry out the duty of candour. Failure to comply with the duty can result in enforcement activity ranging from warning or requirement notices to criminal prosecution.

So why the need for fresh scrutiny?

It is nearly a decade since the statutory duty of candour was first introduced to the NHS. However, increasing concerns have been expressed this year that its underlying principles are still not being fully understood and implemented by those on the front line. Namely, that when something goes wrong, patients and families have a right to receive a meaningful apology and an explanation as soon as possible.

This perceived lack of compliance was highlighted in Broken trust: Making patient safety more than just a promise, a seminal report published this July by the Parliamentary Health and Service Ombudsman (PHSO). The PHSO highlighted instances where this duty was not followed and recommended that DHSC should scrutinise this lack of compliance. These key insights can be found in Altea’s blog – Patient Safety: Bridging Words and Action.

The high-profile patient safety incidents that have sadly become such a feature of 2023 – including the various maternity scandals and the dreadful events at the Countess of Chester Hospital – have again highlighted the importance of being open and honest. The announcement of this review underscores the urgency of addressing the identified shortcomings to ensure the duty's effective implementation and – it is to be hoped- to help make progress towards the seemingly ever elusive goal of improved patient safety.

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