Recommendation 184

Duty of candour to be policed by Care Quality Commission

Accepted
Observance of the duty should be policed by the Care Quality Commission, which should have powers to prosecute in the last resort in cases of serial non-compliance or serious and wilful deception. The Care Quality Commission should be supported by monitoring  undertaken by commissioners and others.

This is accepted in respect of the statutory duty of candour. This new duty will be a requirement for registration with the Care Quality Commission. In line with other registration requirements, Care Quality Commission will monitor compliance with the duty of candour and has a range of enforcement powers it can use where providers fail to meet the registration requirement.

Update

The duty of candour is a legal requirement and Care Quality Commission will be able to take enforcement action when it finds breaches. The duty of candour has applied to NHS organisations from November 2014 and will apply to all other organisations from April 2015. Where an unintended or unexpected incident appears to have resulted in, or could still result in, significant harm to a specific service user, the regulations prescribe a formal set of notification procedures that the provider must follow when informing the service user (or their representative) of that harm. Providers must notify the service user about incidents where significant harm has occurred or could have occurred, give an apology and follow up the incident in writing. Failure to comply with the duty of candour registration regulation requirement could result in prosecution or, in the worst cases, an organisation could have their Care Quality Commission registration removed and so effectively be shut down.

The Care Quality Commission’s ‘safety’ domain that helps guide its inspections, looks in detail at the quality of reporting, investigating and most importantly learning from things that go wrong, and together with the ‘well-led’ domain will assess how well the new statutory Duty of Candour is being introduced and supported.

Hard Truths proposed that where the NHS Litigation Authority finds that a Trust has breached the statutory duty of candour about a patient safety incident which results in a claim, the NHS Litigation Authority could have the discretion to reduce or remove that Trust’s indemnity cover for that claim. This would serve as a further incentive for organisations to develop a culture of candour, transparency and honesty. The Government plans to consult on how this could be taken forward. The NHS Litigation Authority has also issued guidance to the NHS on Saying Sorry and have reiterated that to support a duty of candour an apology is not an admission of guilt but the right thing to do.