Only 2 in 5 see the Duty of Candour as being clear – why?

Estimated reading time: 3 minutes

With little subsequent publicity, the Department of Health and Social Care recently published the much-awaited outcome of their call for evidence on the statutory Duty of Candour – a statutory obligation requiring honesty and openness from healthcare providers, first introduced 10 years ago.

The Department outlined in considerable detail the responses from 261 people and organisations, including AvMA.

When thinking about the law it strikes me that good legislation is underpinned by 3S’s:

Statutory underpinning that is well-drafted legislation that those with an obligation to apply it can follow.

Support that is meaningful and helps practitioners to adapt their practices efficiently and effectively to meet the new legislative requirements.

Sanctions that are meaningful and have a bite after a suitable transition period whilst those needing to adopt the new requirements quickly get to grips with them.

What the evidence tells us

Using the 3S’s to assess the results of the call for evidence, it quickly becomes apparent that the implementation of the Duty of Candour legislation has fallen short of its desired aims. Much more needs to be done if we are to both improve the current application of the Duty of Candour in the NHS and avoid repeating the same errors as the Government seeks to legislate to create a new Duty of Candour covering all public servants and officials (via the Hillsborough Law).

A summary of the call for evidence bears out quite how short the Duty of Candour has fallen from conception to implementation:

  • Just 2 in 5 respondents thought the purpose of the statutory Duty of Candour is clear and well understood.
  • 54% of respondents did not think staff working for health and social care providers know of and understand the Duty of Candour’s requirements. Many felt it was inconsistently applied and open to interpretation.
  • Less than 1 in 4 respondents said that the Duty of Candour is correctly complied with when a notifiable safety incident occurs.
  • Respondents were divided in their assessment of provider engagement, with 94% of patients or service users disagreeing that providers engage meaningfully and compassionately with those affected after a notifiable safety incident, compared to 27% of health or care professionals.

The last of these points is particularly disappointing but of no surprise to AvMA and confirms what we continue to see through the contacts we have from those we support. The practical realities of this are borne out by those the system harms and are not treated with compassion. The lack of compassion causes needless upset, distress and psychological trauma that compounds the original injury.

That is why we have advocated for a dedicated Harmed Patient Pathway grounded in compassionate support and restorative practice as without that, on its own a Duty of Candour cannot overcome the practical barriers that exist in supporting harmed patients in a compassionate and considerate way.

 

The shortcomings in the current Duty of Candour

The respondent data, coming as it does from a range of sources demonstrates a range of shortcomings which I hope the Government will now reflect on as they take this work forward. Again, I would group those shortcomings around the 3S’s:

Statutory underpinning:
It is clear from the call for evidence that in rolling out the regulations that underpin the Duty of Candour not enough thought was given to the room for ambiguity that can exist in trying to define concepts such as “moderate harm”. Either the definitions themselves require amendment, or more likely, the guidance that underpins the regulations requires greater clarity and should be co-produced with practitioners to better ensure that areas for doubt and uncertainty are ironed out once and for all.

Support:
It is abundantly clear from this call for evidence that the regulations were implemented in a way that did not provide staff with sufficient support, training and guidance to interpret them properly and consistently. Whilst it has been 10 years since the regulations were introduced, it’s not too late to return to this issue and reaffirm the NHS’s commitment to the Duty of Candour with a new, refreshed programme of support and training with sufficient resources provided to make sure that this time the programme lands well.

Sanctions:
The sense from a number of respondents was that the Duty of Candour is inadequately monitored, with limited enforcement action taken by the CQC. If the Duty of Candour is to be a bedrock for patient safety, honesty and openness, the CQC must assess compliance. Where evidence of non-compliance is identified, the CQC should take proportionate regulatory action, including imposing sanctions where necessary.

Moving forward

Overall, while it is a disappointing outcome, the evidence is of no real surprise to us at AvMA. But meaningful change takes time, so we must not give up on the Duty of Candour and instead hone in on what more can be done to strengthen its application in securing honesty and openness. This is vital if the public is to have trust in the NHS.

Do you agree?

What more do you think needs to be done to make the duty work better for everyone?

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Action against Medical Accidents (AvMA) is the UK’s leading patient safety and access to justice charity.  We offer a range of services to patients and families impacted by avoidable medical harm. We are completely independent and rely on volunteers, fundraising and generous donations from supporters to enable us to help patients and bring about change. Find out more at www.avma.org.uk

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