A Duty of Candour – Will it encourage more compensation claims?

18 November 2014

Amongst healthcare professionals, and those who represent them, there is some concern that the Duty of Candour regulations will lead to an increase in civil compensation claims.

Speaking as a claimant clinical negligence solicitor I think that they need not be concerned.  On the contrary, I believe that the regulations will lead to a reduction in claims.

There are two reasons for this.  First, it has to be remembered that these regulations spring substantially from Sir Robert Francis QC’s inquiry into the tragically poor healthcare provided in Mid Staffordshire.  So these guidelines are about improving healthcare, and if that happens, then it follows that there will be less clinical negligence claims.

Secondly, the Duty of Candour seeks to bring about cultural change, and to create an environment where staff are not afraid to talk about mistakes, and where lessons can be learned.  When mistakes are made, staff will be encouraged to talk to patients, and to be open about what went wrong.

This in itself is likely to reduce the number of potential claims against the NHS.  Often prospective clients approach us, because something has gone wrong, and they are simply not getting an effective explanation from the hospital concerned.

The Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the legal framework within which the Duty of Candour will operate.

The Duty of Candour arises where there is a “notifiable safety incident”, i.e. one which appears to have resulted in :

(a) The death of a patient where the death relates to the incident rather than the natural course of the illness or underlying condition, or

(b) Severe harm or moderate harm to the patient.

As soon as practicable after becoming aware that a notifiable safety incident has occurred the patient or their family must be notified that the incident has occurred.  All information directly relating to the incident must be given, and reasonable support must be provided.

The notification has to be given in writing, and must provide a truthful account of all the facts, and, if possible, agree what further enquiries are appropriate, and include an apology.

Failure to comply with the regulations can be an offence under the Act, and is liable, on summary conviction to a fine.

The regulations make no reference to civil liability, and in this respect they are not unlike the health and safety regulations used in the workplace.  Therefore, a “notifiable safety incident” within the meaning of the regulations, and a subsequent report will not, automatically give rise to a successful compensation claim.

To succeed in a civil claim for compensation arising from clinical negligence it must be shown that:-

(a) There was a breach of the duty of care, which is defined as the standard to be expected from a reasonably competent practitioner in the field at the time.

(b) That the breach caused some loss or injury.

The Duty of Candour regulations do not talk about breach of duty and causation.  Instead they talk about a “safety incident that appears (my italics) to have resulted …” in injury.

Thus a report under the regulations will not, on its own, be sufficient to meet the legal tests for a successful compensation claim.  In lay terms the report will be saying no more than something happened which was not intended or expected, and this might have resulted in some injury.  It will not be an admission of legal liability, and it will still be open to the hospital to defend any subsequent claim on a conventional basis.

So in legal terms the hospital will concede nothing of significance, but what it will gain will be a fantastic opportunity to prevent a mistake from turning into a legal claim.  Alternatively, in the event that the circumstances or the degree of injury are so serious that the patient and his or her family has no choice but to seek compensation, the legal process will be less confrontational and damaging for all concerned.  Furthermore, and of equal importance, there will be greater opportunity to learn from that mistake, and, perhaps, to prevent it from happening over and over again, as so often appears to be the case under the present system.

Of course rules can only take us so far, and it is underlying cultural change that will be more important.  Therefore, whilst I acknowledge that there will have to be a degree of standardisation in the way that duty of candour reports are prepared, I hope that there will be a genuine effort to provide clear communication.

At the time of writing (6 November 2011) the Statutory Instrument that will introduce the duty of candour is still awaiting parliamentary approval.  Let us hope that Jeremy Hunt MP, the Secretary of State for Health will ensure that that does not remain the case for long.

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