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South East Independent Sector Newsletter - Duty of Candour

3 Mar 2017

Duty of candour in the independent healthcare sector by RCN Senior Legal Officer and Solicitor Graeme Irvine

Over that last two years there has been a great deal of talk about “duty of candour” - so what does it mean and how does it affect nurses and HCAs working in the independent sector?

History

During 2005-8 Mid Staffordshire NHS Trust recorded an abnormally high mortality rate, and a subsequent investigation found that patient mortality was higher than expected by up to a figure of 1200 cases. The Francis Inquiry, set up to investigate the problems at the trust, was highly critical of what it concluded was a defensive culture. 

Sir Robert Francis reported that the trust had failed to prioritise patients and act with transparency and honesty, and he recommended that changes needed to be made to impose a “duty of candour” to patients on organisations.

The Law

The Government’s response was the introduction of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The act created a duty of candour on “health service bodies”, and to a greater extent, NHS trusts.

Regulation 20(3) of the Act sets in place a protocol for the prompt reporting of “notifiable safety incidents” to patients and their families. It goes on to specify that a disclosure must;

  • Be given in person,
  • Provide a truthful account of the full facts known at the time of the disclosure,
  • Set out what future enquiries are appropriate,
  • Include an apology,
  • Be recorded in writing which must be held securely.
In response to this legislation, relevant health care bodies have made changes to their policies, protocols and employment contracts to ensure that the requirements of Regulation 20(3) are carried out by staff members.

Limitations

The “duty of candour” imposed by the act seems limited; the duty extends only to NHS bodies and not to individuals. 

In 2015 NMC and GMC issued specific guidance to all members on the duty of candour - “Openness and Honesty - When Things go Wrong: the Professional Duty of Candour (Nursing and Midwifery Council and General Medical Council, 2015)”. 

It sets out a clear message that the regulators expect registrants to work towards the objective of fulfilling the “duty of candour” but accepts, “This guidance is for individuals. We recognise that care is normally provided by multidisciplinary teams, and we don’t expect every team member to take responsibility for reporting adverse incidents and speaking to patients if things go wrong. However, we do expect you to make sure that someone in the team has taken on responsibility for each of these tasks, and we expect you to support them as needed.”

Does that mean that nurses and HCAs working in the independent sector have nothing to worry about? I’m afraid not.

For nurses in the independent sector, the duty of candour still has an effect on their practice in three separate ways. Firstly, through regulation. The NMC 2015 code was redrafted with duty of candour in mind, the code focuses on the duty to act with honesty and transparency and to comply with investigations (paras 14.2, Para 20, para 23). A wilful breach of the code will be treated seriously.

Secondly, through employment contracts. Evidence suggests that private companies often mirror their policies on NHS protocols. It is likely that private providers will amend their contracts accordingly. For a nurse breaching a term of their contract, the effect could be dismissal.

Finally, the effect of the Disclosure and Barring Service (DBS). It is reasonable to assume that the DBS will factor adherence to the duty of candour into consideration when determining risk from a health care professional.

For HCAs working in independent bodies the risk of disciplinary action under their employment contracts and the action of the DBS set out above are all factors to take into consideration.

In conclusion, the “duty of candour” is a significant change in how healthcare is conducted, it is here to stay and pervades all levels of practice. 

Read the RCN's advice guide on 'Duty of Candour'.