What does an institutional Duty of Candour mean for patients?

27 November 2014

Individual doctors have long had responsibility to let patients know when something has gone wrong.  This is embodied in General Medical Council Guidance (Good Medical Practice para 55) and is a personal duty.  A doctor must be open and honest with patients if things go wrong and if a patient under the doctor’s care has suffered harm or distress the doctor should:

  1. Put matters right (if that is possible)
  2. Offer an apology
  3. Explain fully and promptly what has happened and the likely short term and long term effects

The new regulations place a similar duty upon organisations and are enshrined in a new statutory instrument attached to the Health and Social care Act 2008. They follow in the wake of the scandal at Mid Staffs and the recommendations of the Francis Inquiry.  Now it is not only the doctors who now have a duty of candour.  Healthcare institutions must now provide a truthful account of the events and details of the next step of investigations along with an apology
as soon as reasonably practicable after a Notifiable Safety Incident.  A Notifiable Safety Incident is an event which is could result in, or appears to have resulted in death, severe harm, moderate harm or prolonged psychological harm to the patient.  New penalties for failure to comply are also introduced.

What does this add up to for the patient?

So patients may ask what is the significance of the new, institutional, duty of candour?  We have yet to see.  Certainly the new regulations mean there is an even stronger imperative to notify a patient if there has been an unexpectedly poor outcome.  As NHS employees doctors have to follow the steps set out in the guidance published by their employer and, in any event, they are still subject to their personal duty of candour under the GMC guidance.  This has got to be good news for patients who often struggle to understand why an adverse incident has occurred and what is being done as a result of it.  It remains to be seen whether the new duty of candour produces more litigation.  There are respectable arguments that it might reduce the number of patients who resort to litigation. What the new regulations do signal is a significant shift in the landscape and the collective taking of responsibility for adverse incidents which is to be applauded.

However this must only be the first step towards really understanding why things go wrong, why adverse incidents happen.  The next important drive is to look at these incidents in a way that permits important lessons to be learned and similar situations to be prevented in the future.  If this goal is achieved this is not only a positive step for patients who are affected by adverse incidents but it is also a very important step for the general public (who are, after all, the consumers of healthcare) if it starts to create an environment where mistakes are not only acknowledged but also prevented in the future.

If you believe an adverse incident has occurred and need advice, please email our clinical negligence team: claims@kingsleynapley.co.uk

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