The essential guide to The Duty of Candour

When we meet someone who has suffered as a result of a preventable medical mistake, often they are looking for more than just compensation. They are searching for explanations. A great deal of the anger and frustration felt by these individuals often stems from not knowing what caused their suffering, or from not receiving answers from the professionals who led their treatment.

This leads us into the subject of this article – The Duty of Candour. When a medical professional recognises or identifies that they have made a mistake during a patient’s treatment that has resulted in preventable harm, the Duty of Candour compels them to be open and honest with the patient about this.

This is not with the goal of preventing a future medical negligence claim, but to strengthen relationships between patients and their healthcare providers, lay the foundations for fixing the mistake, and guide actions that will prevent this kind of mistake occurring again.

In this essential guide to Duty of Candour, we will define what this responsibility means for both patients and medical professionals, outline the legislation surrounding it, and what impact these policies have had.

What is the Duty of Candour?

You are probably aware that medical professionals have a Duty of Care to protect their patients’ health, and to take all reasonable steps to ensure that an action or omission does anything to jeopardise their wellbeing.

In the vast majority of cases, this duty is met and patients receive an exceptional standard of treatment. However, as experts, we understand more than most how this is not always the case. Mistakes do happen, and when they do someone is often accountable.

That is where the Duty of Candour becomes relevant. If a medical professional makes a mistake or is negligent during the course of someone’s treatment and they recognise that this has happened, they have an obligation to inform the patient of this as soon as reasonably possible, as well as offer an apology.

Through this, the Duty of Candour helps ensure that:

• The patient is not left in the dark over an incident that happened during their treatment, which may lead to further frustration with their medical team
• Steps can be made quickly to mend the relationship between the patient and their medical practitioner
• The patient receives a genuine apology for what happened from those responsible
• Professionals are enabled to perform further treatments or offer guidance to remedy the mistake that took place
• Internal actions can be taken to prevent this type of mistake from occurring in future treatments by investigating the causes of this

Furthermore, in an ideal world, professional Duty of Candour does not just apply to actions that have caused a patient harm, but also for near misses. Again, this is all with the goal of reaffirming the trust that exists between a medical practitioner and their patient/client, and that they maintain an open, honest relationship.

It is worth highlighting here that when a negligent act is not immediately made apparent to a patient, this is not necessarily due to a lack of candour as much as a lack of awareness (i.e. the professional is unaware a mistake occurred). When this leads to further harm to the patient, this is where the thorough investigation of medical negligence specialists is vital to establish the likely cause of the mistake, so a claimant receives the explanations they are looking for.

When and why was the Duty of Candour introduced?

The concept of the Duty of Candour itself is not especially new – for a long time it has been expected that medical professionals are completely honest with their patients, including if mistakes occurred during their treatment.

However, it is a very human characteristic to not want to accept blame or responsibility when something goes wrong. A survey conducted by the Behavioural Insights Team (BIT) in 2018 revealed that 63% of patients who suffered a medical mistake were given no explanation for the incident in question by their medical professionals.

As such, the Care Quality Commission (CQC) introduced Regulation 20: Duty of Candour to formalise the procedure of medical professionals being open about a mistake they have identified during a patient’s treatment. The Duty of Candour policy came into effect for NHS bodies in November 2014 and all other bodies regulated by the CQC in March 2015.

The reason for this legislation relates to the findings of BIT’s survey, with most of the people surveyed having received their negligent care prior to the CQC’s regulations coming into force. Their findings also revealed that:

• Only 31% of patients felt they received an apology from their healthcare providers for the incident that occurred
• 71% believe the organisation did not conduct a satisfactory investigation into their incident
• Just 6% felt action was taken to prevent future cases of this incident taking place

Of course, while the Duty of Candour regulations are in place to add structure to this process, a great deal also depends on the individual organisations themselves to ensure this is followed. Indeed, professional bodies such as the Nursing and Midwifery Council (NMC), the General Medical Council (GMC), and the General Dental Council (GDC) have their own standards for being candid with patients.

Understanding Duty of Candour legislation

The principles of the statutory Duty of Candour presented by the CQC incorporate the following:

• Medical organisations must be open and transparent about their care to patients, and this must be delivered by individuals within the organisation
• Patients should be informed of a “notifiable safety incident” that affects them as soon as reasonably possible (this timeframe will vary on a case-to-case basis)
• The organisation must provide the patient with an explanation of what happened, what further action will be taken (both to remedy this mistake and ensure no future mistakes of this nature happen again), provide an apology and keep a written record of this
• The patient should receive a written record of this procedure
• All reasonable practical and emotional care should be provided to the patient to manage any trauma or suffering this mistake has caused them

The full Section 20: Duty of Candour can be found online, but the above gives you a broad understanding of what any organisation regulated by the CQC should offer when a patient has been identified as being affected by a medical mistake.

Regarding the “notifiable safety incident”, this varies between NHS practices and non-NHS organisations. Within the NHS, Duty of Candour applies to any unexpected or unintended incident that in the reasonable opinion of a health professional has or could result in a patient’s death, severe (permanent) or moderate harm, or prolonged psychological harm.

For non-NHS bodies, a notifiable safety incident relates to any of the following:

• The death of the patient
• An impairment to sensory, motor or intellectual function which is expected to last 28 days or more
• Any changes to the patient’s body structure, such as an amputation
• Any pain or psychological harm expected to last for 28 days or more
• The patient faces a shortened life expectancy
• Where there is a need for treatment to prevent death or other adverse outcomes

Although organisations are not legally obliged to inform patients about mistakes that cause “low-level” harm or near misses, the regulations do encourage that this takes place for the sake of best practice.

Within the apology to the patient, which should be delivered in person by either the person deemed responsible for what took place or the most appropriate member of the team/department responsible (even if they were not necessarily at fault personally), three points should be covered:

1. What happened to the patient? (explained as clearly and sensitively as possible)
2. What will be done to remedy the mistake (if possible), and what care will be offered to the patient and/or their loved ones?
3. What will be put in place to ensure that these kinds of mistakes do not occur in the future?

Again, this is all designed with the goal of maintaining or restoring the all-important relationship between patients and their medical professionals – preserving this can minimise the frustration or emotional trauma that the patient suffers as a result of this mistake, and that action can quickly be taken to address this.

What are the consequences of breaching the Duty of Candour?

While this will vary from organisation to organisation, those found to have breached their legal Duty of Candour under the CQC’s regulations can expect to face regulatory action and, in the most severe cases, potentially criminal prosecution.

If a patient does believe that their healthcare provider did not follow Duty of Candour law, then they are encouraged to raise this with the medical professional in question, a member of their department, or issue a formal complaint to the organisation in question. You can also seek out independent advice from bodies like Action against Medical Accidents (AvMA).

However, it is important to note here that, in relation to medical negligence claims, whether Duty of Candour has been met or not does not affect a claim one way or the other.

While the implementation of these regulations can be useful in our investigations, with more details available in serious incident reports or root causes analysis, this will not impact your ability to make a claim or the amount of compensation you are entitled to. In fact, according to legislation under NHS Resolution, apologising for a mistake as part of Duty of Candour policy does not mean they are admitting legal liability for the incident in question.

Has Duty of Candour policy made a difference?

There is not a great deal of solid evidence to suggest that Duty of Candour legislation has made a significant difference. Speaking about this topic in January 2020, Peter Walsh, Chief Executive of AvMA, highlighted how more needs to be done to ensure that medical professionals across the UK are fulfilling their duty to inform patients of when a mistake has occurred during their treatment.

For those working in the medical negligence field, we have witnessed a rise in the availability of serious incident reports and root case analysis, which supports our efforts to investigate the events that affected our clients and their journey to receive the answers, justice and compensation they are owed.

Speak to true specialists

We hope this has given you a stronger understanding of the Duty of Candour, and what you should expect from your healthcare providers if a mistake occurs during your treatment. While an explanation and apology cannot undo any harm caused by an act of negligence, it can go a long way in filling a void that we know can cause patients a great deal of emotional and psychological harm.

That is why at Gadsby Wicks, we work closely with all of our clients to understand the extent of their suffering and thoroughly investigate the events to help determine the likely cause of this, and the likelihood of a claim proving successful. As true medical negligence specialists, we only take on a case that we truly believe we can win and secure the maximum compensation for our clients.

If you would like to talk to our team about your situation, get in touch with us today.

Disclaimer

All content contained within this article is meant for general information only – this should not be treated as a substitute for medical advice from your doctor or another healthcare provider. If you require legal advice specific to your situation, please contact our team directly.

Gadsby Wicks is not liable for any diagnosis made from the content of this article, nor does it endorse any service or external site linked to within the article.

Always consult your GP if you are concerned about your health and wellbeing, or speak to us if you require legal advice.