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Five Minute Digest: Duty of Candour

Sue McNulty gives an overview of the new duty of candour.

What is it?

Clinicians have had an ethical duty of candour (DOC) to tell patients about mistakes for many years under their GMC/NMC registration.

Recently DOC has been in the headlines a great deal as the Francis report into Mid Staffordshire recommended a statutory duty of candour for all healthcare providers and the Government announced it intends to implement this recommendation.

It will take months, if not years, for the Government to flesh out the detail on a statutory DOC – not least who will police it - but in the meantime CCGs need to oversee a new contractual duty of candour by providers.

This was announced by the Government in December, when it said the standard NHS contract would include a duty of candour for providers from April 1.  This contractual duty places an obligation on NHS providers - not just individual clinicians - to be open with patients when things go wrong and harm has been caused.

The contractual duty means providers should:

  • Use National Patient Safety Agency definitions of moderate harm, severe harm and death that warrant a patient or family being informed an incident has occurred within 10 working days.   This notification should be done face-to-face if possible;
  • An apology provided where harm was caused;
  • A step-by-step explanation of what happened to be provided – an initial view pending findings of an investigation;
  • Full written documentation of meetings – kept separate from medical records and shared;
  • Appropriate investigations undertaken and shared within ten days

(source: Mills and Reeve website)

What does this mean for CCGs?

CCGs are going to have to ensure that providers meet their contractual requirements and volunteer information, an explanation and an apology following a patient safety incident.

If a CCG finds a provider has not volunteered information to a patient, it can invoke sanctions such as publication of the breach on the provider’s website and recovery of the cost of the episode from the provider.

But while this is essentially a contract performance role, experts say there is more to the CCG’s new responsibilities.

Ben Troke, partner at Browne Jacobson solicitors, which represents NHS and private healthcare clients, says:  ‘CCGs will naturally be concerned about another “Mid Staffs” scandal about the quality of care in their area, the devastating consequences for patients and families, and how this might be treated by the media in the current climate.’

‘The existence of a contractual duty of candour on the provider, breach of which would entitle the CCG to a contractual remedy, might not provide much comfort for the patient in those circumstances, when there may have been a lot more wrong with the provider’s performance than just a lack of openness.   As the Francis report emphasised, commissioners have got to be taking on more responsibility to make sure that we are getting what they pay for.’

There are several things CCGs can do to meet their new responsibility of ensuring the duty of candour is adhered to by providers.

1/ Keep an eye on numbers

It’s not known if the new contractual duty will result in more or fewer cases being brought by aggrieved patients.

Mr Troke says some law firms representing patients believe more cases will result from the new contractual duty, and the wider fallout from the Mid Staffs scandal and report, but the reality is we just don’t know yet.

‘We do see a number of cases where a relationship between a patient and a provider has broken down completely, and if a patient feels that there’s not been complete candour from the outset it can be really difficult to change that distrustful mindset.  The importance of openness with patients and their families has always been recognised in good practice, and in the guidance from the GMC, medical defence organisations, and the NHS Litigation Authority.  The new contractual duty of candour, and anything further that’s introduced in response to the Francis recommendations, will be a part of that wider picture.’

Mike Devlin of the MDU advises CCGs to analyse the numbers being reported to the NPSA and to identify any patterns that cause concern to with providers to explore if they are aware of those patterns and putting necessary training, education and so on, in place.

Duncan Astill, partner at Mills and Reeve, which represents a large number of NHS bodies, warns CCGs to be aware of any big drop in the number of incidents as a result of all the headlines about statutory duty of candour making staff believe there will now be bigger consequences if they report mistakes.

2/ Discuss DOC with providers

Mr Astill also recommends CCGs have discussions with their providers about how they will meet their contractual duty.

‘We had an acute trust client some years ago where the coroner legitimately asked in a case why the patient was not given a copy of an incident report form.

‘In this particular case, the family had picked up all sorts of whispers.

‘The acute trust now has a policy to give all patients a copy of an incident report form and is quite positive about it.

‘It also means what goes on the form is less emotional. For example, a ward sister in a case where a patient has fallen and suffers a head injury could write on the form ‘no observations were taken’ and people reading that report form later would take that as fact. But actually, (knowing the patient will see it) encourages such things not to be written until all staff involved have been spoken to.’

3/ Use GPs as a filter

CCGs can use GPs as their eyes and ears of whether the DOC is being adhered to by providers. So if a patient comes to a GP having come to harm because of the provider’s care, the GPs are clear about how they can relay that to the CCG via email or calling a particular officer.

There is also the question mark over whether the CCG should tell the patient directly their harm is as the result of the care they received.

Mr Troke says CCGs should again think beyond their contractual obligations.

‘If CCGs and other commissioners are to fulfil the Francis recommendations of providing greater scrutiny of the quality of care that they commission, then they have to think carefully about what they will do with the information that they will come by as part of that process.  If the CCG has concerns that a provider is not meeting appropriate quality standards, and starts to see a pattern emerging, would it be enough simply to raise the issue with the regulators?  Or should it tell current or prospective patients directly, to help them to make informed choices?  Specific advice may be needed on a case by case basis, as either approach could carry risks.’

GPs are a good filter, says Mr Astill as they will be better able to judge if harm was actually caused by poor care or whether it’s a case of a procedure not achieving a desired outcome.

The case against statutory DOC

As already mentioned, the Government has said it intends to implement a statutory duty of candour.

But already the BMA has issued a statement this month saying a statutory duty could be a blunt legislation instrument that could ‘backfire’ and lead to ‘defensive practice’ by doctors.

The argument against a statutory duty is that it would add nothing to the existing professional obligations including NMC and GMC registration. Lawyers also say defining an injury, which invokes the statutory DOC, is less than straightforward – causation arguments are difficult, for example establishing whether the patient died from their condition, side effects of appropriate treatment or from poor care.

Further reading:

http://www.mills-reeve.com/a-contractual-duty-of-candour-february2013/

http://www.bjhealthlawyers.com/resource/duty-of-candour-and-proposed-criminal-sanctions-francis-report/

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