This is a statutory duty, originally introduced for NHS bodies in England (trusts, foundation trusts and special health authorities) and now applies to all other care providers registered with CQC.
The obligations associated with the statutory duty of candour are contained in regulation 20 of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
The key points on duty of candour:
- Essentially it is a duty to be open with Patients.
- It is imposed on the organisation, not on individuals.
- It is now a criminal offence if you don't comply.
The key principles are:
- Care organisations have a general duty to act in an open and transparent way in relation to care provided to patients. This means that an open and honest culture must exist throughout an organisation.
- The statutory duty applies to organisations, not individuals, though it is clear from CQC guidance that it is expected that an organisation's staff cooperate with it to ensure the obligation is met.
- As soon as is reasonably practicable after a notifiable patient safety incident occurs, the organisation must tell the patient (or their representative) about it in person.
- The organisation has to give the patient a full explanation of what is known at the time, including what further enquiries will be carried out. Organisations must also provide an apology and keep a written record of the notification to the patient.
- A notifiable patient safety incident has a specific statutory meaning: it applies to incidents where a patient suffered (or could suffer) unintended harm that results in death, severe harm, moderate harm or prolonged psychological harm. Severe and moderate harm definitions are derived from the NPSA's Seven Steps to Patient Safety. Prolonged psychological harm means that it must be experienced continuously for 28 days or more.
- There is a statutory duty to provide reasonable support to the patient. Reasonable support could be providing an interpreter to ensure discussions are understood, or giving emotional support to the patient following a notifiable patient safety incident.
- Once the patient has been told in person about the notifiable patient safety incident, the organisation must provide the patient with a written note of the discussion, and copies of correspondence must be kept.
Doctors are already under a professional duty of care through the Good Medical Practice code, so this legislation changes very little for them. The BMA support the duty on organisations but consider it unneccessary for individuals, and the government has taken a similar view.
If you are a GP Partner, this is a double whammy as both you as an individual and your practice as a whole are at risk of prosecution, even for the actions of your employees who are not bound by the same duty. Unless you are prepared to take employees to court for fraud or obstructive dishonesty as suggested by the BMA, you had better make sure that your contracts of employment are water tight on how the Practice protects itself if staff don't report things.