This site is intended for health professionals only

Sponsored: What the new Duty of Candour guidance means for practices

1 June 2021

Share this article

This article has been provided and sponsored by Quality Compliance Systems.

Author: Alison Lowerson, GP policy lead, QCS

It is legislation that requires a culture of open and transparent communication with patients, but in an unprecedented court case brought by the CQC, a hospital was found to have breached its Duty of Candour responsibilities.

The case, which centred an orthopaedic surgeon, who has since retired, revealed that the hospital delayed telling four patients that their operations had resulted in poor practice.[i]

After admitting to ‘non-compliance with the duty of candour’, the hospital was fined £20,000.

Not only is the case the first of its kind, according to Pinsent Masons, which specialises in healthcare law, it also demonstrates ‘that there is an appetite within the CQC to prosecute healthcare providers’ that have breached duty of candour.[ii]

GPs, practice managers and nurses need to be aware of the GMC and NMC guidance relating to Duty of Candour, which outlines their professional responsibilities, but for the purposes of this article, I’m going to focus on the statutory requirements, which are upheld by the CQC.

Around the same time as this landmark case was being heard, the CQC chose to publish updated Duty of Candour guidance. While it is unclear as to why it felt it necessary to do so, a recent CQC board meeting offered up some clues. In the meeting it was revealed that during the last year, in the absence of face-to-face inspections, safety incidents, which were being reported after the event has occurred, had increased. Therefore, perhaps this was one of the reasons why the CQC decided to publish updated guidance – including examples – as to what constitutes a notifiable safety incident (NSI), and what doesn’t.

It is a rich source of debate and so rather than discuss it in this article, it’s an area I’ll be focusing on with my colleague Tracy Green in our podcast, which you can tune into by clicking here.

QCS policies and procedures

At QCS, a leading provider of content, guidance and policies for the healthcare sector, we’ve received queries relating to Duty of Candour and have updated our Duty of Candour Policy and Procedure in line with updated CQC standards. Following the CQC’s decision to update Regulation 20 of the Health & Social Care Act 2008, we’ve also updated a number of policies, which overlap with Duty of Candour, including our Supervision Policy and Procedure, our Complaints, Suggestions and Compliments Policy and Procedure, our Audit Policy and Procedure, and our Accident and Incident Reporting Policy and Procedure.

We’ve also created a Significant Event Register with a drop down menu to indicate whether or not Duty of Candour applies, which can be used as evidence at a CQC inspection of openness and honesty when things go wrong.

To raise greater awareness around the Duty of Candour Policy and Procedure, we’ve not only made it the QCS Policy of the Month, but we’ve created a short quiz comprising of 13 questions. Here’s a selection of some of the questions posed. Could you answer them without referring back to the policy?

  1. Whose responsibility is it to report an incident?
  2. When should the duty of candour be discussed?
  3. Which form should be used to report an incident?
  4. Does apologising mean admitting liability?

If you’re struggling to answer any of these questions, which have been specifically designed to shed light on any knowledge gaps, then as part of your Duty of Candour responsibilities, it would be best to seek advice from your practice manager.

But, I have shortlisted these questions as examples for another reason. In a nutshell, they highlight the individual and collective responsibilities that providers face to meet updated CQC Duty of Candour guidance.

Updates to the guidance

In addition to providing a clear explanation and examples as to what constitutes an NSI, I think the CQC’s decision to clarify the fact that making an apology is not the same as accepting liability is a highly significant and welcome step for providers.

That said, having worked as a practice manager for over 18 years, there is still a feeling in some surgeries, no matter how open and transparent the culture, that saying ‘sorry’ is an admission of guilt and liability. While the CQC has actively emphasised that the two are in no way connected, written apologies may often contain defensive language. That’s not to say that apologies are not issued, but there’s a big difference between apologising to someone that they are upset about an incident and saying sorry for actually doing something wrong. 

The hope is, going forward, that the updated Duty of Candour guidance will give practices the confidence not to equate issuing an apology with culpability. But, I think it’s also important to stress one key point in defence of practice managers and GPs. On the surface, a defensively written apology may seem to denote a lack of openness and transparency, but NSIs are rarely straight-forward or binary. They often involve a complex chain of events and an incident is often unexpected or unintended. Therefore, detailing the complexity and nuance surrounding an error can be incredibly hard to put into words – hence the tendency to use more guarded language.

The CQC provides a clear direction of travel for providers

This doesn’t mean to say, however, that Duty of Candour responsibilities can’t be met. I think the CQC’s new guidance not only provides a clear roadmap to providers, but a robust scaffold on which to build a culture of Duty of Candour within their practices. But what does that mean? Essentially, practices must be able to satisfy themselves that they have followed the correct procedures, and are able to evidence this to the CQC. If they have done so, then it is much easier to write the letter of apology because a practice manager can instantly see if the practice is in breach of its statutory responsibilities around Duty of Candour.

It may be, however, that it quickly becomes evident that an error has been made. That said, if the provider can demonstrate to the CQC that it has reflected on its mistake, fixed it and put corrective steps in place to prevent it from occurring again, the CQC is likely to be satisfied.

Culture comes from the top

To really affect change, the culture of openness that the CQC is championing should be replicated in GP practices. This requires practice managers, registered managers and senior clinicians to lead the way. The culture should enable staff to feel that they can share mistakes they have made with the rest of the practice without fear of being disciplined or criticised. They should feel supported to be open, no matter how big the error. QCS’s Supervision Policy and Procedure, which advocates a safe and confidential environment for staff to reflect upon and discuss their work, takes this open and inclusive culture to the next level.

When a rich culture of transparency and accountability has been instilled, accident and incident reporting policies and procedures often prove to be far more effective. Why? Well, with greater openness, the policy is designed not just to record accidents and incidents, but to identify potential safety issues before they impact negatively on patients and staff. But in order for it to really work well, it relies on staff coming forward and reporting all accidents and incidents. Where the culture in a practice is strong, they’re much more likely to do so, enabling lessons to be learned and improvements made before a member of staff or a patient is harmed.

The fewer incidents and accidents, the fewer Duty of Candour breaches there are likely to be. When you consider the huge fines that Practices could incur, not to mention the mental and physical trauma sustained by patients, it is wise to stay on the right side of regulation.

If you wish to find out more about QCS’s Duty of  Candour policies, why not contact QCS’s compliance advisors on 0333-405-3333 or email [email protected]? Or for more coverage on the Duty of Candour debate, please tune into our podcast.

[i] BBC News

Spire Leeds: Hospital delayed telling patients about surgeon concerns

Date: 29, April, 2021

[ii] Pinsent Masons

Healthcare providers’ duty of candour under scrutiny

Date: 10, May, 2021