Recommendation 181

Statutory duty of candour for patients injury

Accepted in principle
A statutory obligation should be imposed to observe a duty of candour:

  • On healthcare providers who believe or suspect that treatment or care provided by it to a patient has caused death or serious injury to a patient to inform that patient  or other duly authorised person as soon as is practicable of that fact and thereafter  to provide such information and explanation as the patient reasonably may request;
  • On registered medical practitioners and registered nurses and other registered professionals who believe or suspect that treatment or care provided to a  patient by or on behalf of any healthcare provider by which they are employed has caused death or serious injury to the patient to report their belief  or suspicion to their employer as soon as is reasonably practicable.

The provision of information in compliance with this requirement should not of itself be evidence or an admission of any civil or criminal liability, but non-compliance with the statutory duty should entitle the patient to a remedy.

As set out in recommendation 174, the government will introduce an explicit duty of candour as a Care Quality Commission registration requirement. The duty would apply to health and adult social care providers of regulated activities. This duty will be enforced using the Care Quality Commission powers. The Care Quality Commission consulted on the potential introduction of a Duty of Candour in its document A new start – Consultation on changes to the way CQC regulates, inspects and monitors care. Its consultation response, published in October 2013, showed respondents were strongly in favour of a statutory duty. As a mark of the government’s commitment to the duty of candour, the Care Bill 2013 puts a requirement on the Secretary of State to include a duty of candour in the requirements for registration with the Care Quality Commission. There is a range of views on extending the threshold for the duty of candour to cover moderate harm as well as death or serious injury.  The government has therefore asked David Dalton and Professor Norman Williams to assess these arguments along with the practical implications involved in such a threshold by the end of the year.The Department will consult on a draft set of regulations, which also provides the flexibility to be amended or varied over time as the new duty is established.  

As a further incentive for trusts to promote a culture of openness across their organisation, where the NHS Litigation Authority finds that a trust has not been open with patients or their families about a patient safety incident which turns into a claim, it will have the discretion to reduce or remove that trust’s indemnity cover for that claim.  The NHS Litigation Authority will continue to make compensation payments due to patients.  Trusts who had not been open with their patients may however be required to reimburse the NHS Litigation Authority for a proportion or all of the payment.

The government agrees that the professional values of individual clinicians are critical in ensuring an open culture in which mistakes are reported, whether or not they cause actual harm.  The General Medical Council and Nursing and Midwifery Council will be working with the other regulators to agree consistent approaches to candour and reporting of errors, including a common responsibility across doctors and nurses, and other heatlh professions to be candid with patients when mistakes occur whether serious or not.  The Department of Health will ask the Professional Standards Authority to advise and report on progress with this work.  The professional regulators will issue new guidance to make it clear professionals’ responsibility to report ‘near misses’ for errors that could have led to death or serious injury, as well as actual harm, at the earliest available opportunity and will review their professional codes of conduct to bring them into line with this guidance.  The professional regulators will also review their guidance to panels taking decisions on professional misconduct to ensure they take proper account of whether or not professionals have raised concerns promptly.

Update

The Department of Health s put in place a new statutory duty of candour as a requirement for registration with the Care Quality Commission. This has applied to NHS organisations since November 2014 and will come into effect for other organisations from April 2015.

As stated in the update to recommendation 175, eight of the UK professional regulators issued a joint statement on candour in October 2014 and the General Medical Council and the Nursing and Midwifery Council are consulting on joint draft explanatory guidance for the professional duty of candour.