Duty of candour may be a legal term that you hear in the process of making a claim for medical negligence and can form the basis of some clinical negligence claims. If you feel that a medical professional hasn’t been honest about their mistakes, this term could form part of a route to securing compensation.
What is the meaning of ‘duty of candour’?
Duty of candour refers to the responsibility health professionals have to be honest and open with patients in their care when things go wrong. NHS bodies have a legal duty of candour under the Health and Social Care Act 2008 (Regulated Activities).. Healthcare professionals (including doctors, nurses, and midwives) also have an ethical duty of candour.
There have been cases where medical providers have failed in their duty of candour, such as the incident at Bradford Teaching Hospital NHS Foundation Trust, where a baby’s family were not told about a care incident recorded internally.
Ethical duty
If something goes wrong, healthcare professionals must tell the patient (or their carer or family) what has happened and:
- Apologise
- Offer to put matters right (if possible)
- Explain the short and long-term effects of what has happened1.
It’s important to remember that issuing an apology is not an admission of liability. Medical professionals should not avoid apologising because they worry it might prevent them defending a claim.
Statutory duty
NHS bodies are legally required to act in an open and transparent way if there is a ‘notifiable safety incident’, in line with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
Duty of candour legislation defines this as an unintended or unexpected incident that could result in, or appears to have resulted in:
- Death (where it relates to the incident and not due to the ordinary course of the patient’s illness or condition)
- Moderate harm (e.g., return to surgery, unplanned re-admission to hospital or extra time in hospital)
- Severe harm (described as a permanent lessening of bodily, sensory, motor, physiological or intellectual function)
- Prolonged psychological harm.
The Care Quality Commission (CQC) must also be notified in the event something goes wrong. This is treated separately to the statutory duty of candour. The organisation must provide the patient(s) with a full explanation of everything they know at the time, as well as what further investigations need to be carried out. Written records must be recorded, and an apology must be provided, plus a written record kept.
In April 2015, the legal requirement was extended to cover all other care providers registered with the CQC. This includes NHS and independent hospitals, GPs and adult social care providers (such as care homes).
Threshold for for Duty of Candour
The relevant person must be notified about medical errors and given reasonable support as soon as it is practical to do so. The notification must:
- Be given face to face
- Include an account of what happened (to the best of their knowledge)
- Advise on what further investigations are needed
- Include an apology
- Be recorded in a written format2.
Who does duty of candour apply to?
Duty of candour applies to every health and social care provider that is regulated by the CQC. This includes the NHS, as well as independent hospitals and adult social care providers, like care homes.
How is duty of candour legislation different in Scotland?
In Scotland, the equivalent legislation is called the ‘Organisational Duty of Candour’, emphasising that the legal responsibility is with the organisation rather than the individual. Similarly, the relevant person must be notified and issued an apology. They must also be involved in a review where they can discuss actions for improvement.
The Scottish duty of candour legislation aims to promote openness and a culture of learning when unexpected things go wrong.
Duty of candour rules in the NHS vs private practice
The duty of candour policy applies to every health care provider in that is registered with the CQC. This means that the principles are the same for NHS hospitals, GPs and care homes as well as for independent or private organisations – as long as they are registered with the CQC.
How does duty of care relate to duty of candour?
While duty of candour and duty of care may sound similar, and you may hear both terms as part of a medical negligence compensation case, there are some key differences. For example, duty of care legislation refers to the legal obligation for individuals to take reasonable steps to protect others from harm and to uphold a standard of reasonable care.
Duty of candour is the responsibility of the health care organisation to act in an open and transparent way with their patients – and to notify them if anything goes wrong.
Effectively, duty of care is the obligation to treat patients with reasonable care, and duty of candour is the requirement to inform the relevant person if there has been a mistake in this care.
What are some examples of duty of candour?
University Hospitals Plymouth Trust scandal
An NHS trust in England became the first in the country to be fined for failing in its legal duty to be open and honest with patients and their families about mistakes.
University Hospitals Plymouth NHS Trust pleaded guilty to failing in its ‘duty of candour’ following the tragic death of a 91-year-old patient. The patient suffered a perforated oesophagus during an endoscopy in December 2017.
Plymouth Magistrates Court heard that the Trust at first said the endoscopy caused ‘no significant harm’. This was despite the patient dying during what should have been a straightforward procedure.
The Trust eventually apologised to the family, but the court said that apology lacked remorse. For failing to provide a full explanation or apology, the Trust was fined a total of £12,565.
Royal Cornwall Hospital NHS Trust scandal
The CQC completed a routine check of serious incident investigations at Royal Cornwall Hospital NHS Trust in 2017. It was found that there had been seven separate safety incidents between September 2016 and October 2017, where the trust had not followed duty of candour regulations.
The trust failed to notify the relevant person of the mistakes in care as soon as reasonably possible. Some of these mistakes included medication errors, diagnosis delays and missed opportunities.
13 fixed penalty notices of £1,250 were issued to the trust, totalling £16,250, as they failed to notify and apologise to the families involved within a reasonable time.
Liverpool University Hospital NHS Foundation Trust: Duty of candour in practice
It was found that more than 1,800 patients on a two-week wait for potential cancer screenings had not been offered a second consultation when they should have been. The second appointment should have been given automatically.
An incident management group was formed, and a team of experts rapidly reviewed the cases. The incident was reported to the CQC, and the duty of candour was applied. The trust issued an apology and began reviewing and notifying patients.
Why is the duty of candour so important?
The duty of candour is important as patients and their families are entitled to know when things go wrong, and the duty respects that right. It’s also important to acknowledge mistakes and understand what went wrong, in order to learn and ensure the same mistakes are not repeated. This will help improve the level of care in the future.
Some medical staff may be concerned that opening up about mistakes will lead to more claims, but research suggests that people are less likely to pursue clinical negligence claims when doctors are open and honest with them. In helping people to take action for medical negligence, we’ve found that o
Unfortunately, internal investigations are often slow, and poorly worded apologies can harm patient and doctor relationships. The conviction in this case is an important reminder to healthcare professionals and trusts to investigate incidents properly and provide full explanations when things go wrong.
If you think you may have grounds to make a claim for clinical negligence, Enable Law is happy to review Serious Untoward Incident Reports or Root Cause Analysis Reports that you or a family member may have received.
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Our experienced Plymouth-based medical negligence team can help you find out if you have a claim. Contact us today to find out how we can help.
Duty of candour: Key questions
Does duty of candour apply to low harm?
No, duty of candour does not apply to low harm. Duty of candour legislation can be applied to unexpected incidents that result in death, moderate harm, severe harm, or prolonged psychological harm. Moderate harm is significant and requires a moderate increase in treatment – for example, a return to surgery or extra time in hospital.
What legislation is duty of candour part of?
Duty of candour legislation forms part of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. It applies to all health care providers regulated by the CQC.
What is CQC responsible for?
The Care Quality Commission is responsible for regulating health and social care providers in England. It works to ensure the safety of care within these services, such as hospitals, ambulances, dentists and care homes. Its fundamental care standards came into force in April 2015.
