Earlier this year the Department of Health and Social Care (DHSC) launched a call for evidence on the statutory duty of candour for health and social care providers.
The statutory duty of candour has been in operation for 10 years now. It places a direct obligation on organisations to be open and honest with patients and service users, and their families, when something goes wrong with their treatment (known as ‘notifiable safety incident’ / ‘NSI’). This is distinct from, but aligned with, the professional duty of candour on clinicians in the individual capacity.
The survey captured responses from individuals sharing their personal views, patients and service users, family members and caregivers, healthcare professionals and organisations.
Key Findings:
- Overall, only 40% of respondents felt the duty is clear and well-understood, whereas some described it as a ‘tick-box exercise’, with staff and providers not fulfilling the duty with compassion, e.g. using standard impersonal templates and wording in letters to patients and/or service users.
- Over half of the respondents (53%) did not think that healthcare staff know and understand the requirements, with some noting the inconsistent application of the duty, due to confusion between organisational and professional duty of candour, various interpretations, and some groups with less knowledge (e.g. non-clinical, new or agency staff).
- Less than 1 in 4 respondents (23%) said the duty is correctly complied with when an NSI occurs, however some felt that staff are hesitant in complying due to fear that it admits liability, leaving them open to blame. Others felt staff were empathetic and want to follow the process, but that senior management did not support them, with fears of being perceived as a ‘whistleblower’. Some highlighted a culture of covering up incidents, falsification of records and dismissal of complaints.
- The responses were divided in perspectives about provider engagement, with 94% of patients and service users disagreeing that providers engage meaningfully and compassionately with those affected after an NSI, compared to 27% of health or care professionals.
- Some patients and service users do not understand their rights, specifically their rights to access documents, receive an apology or response, and the next steps where their case meets the criteria, but communication has been inadequate or processes not followed.
- Overall, patients, service users, family members and caregivers were more critical of the duty and its application, compared to health and/or care professionals and organisations.
- The three prominent themes from the survey were:
- the importance of getting the right culture;
- inconsistency in understanding and applying the duty; and
- lack of training and a need for further training.
Feedback via the Consultation
- Review duties, safety frameworks and harm definitions to reduce confusion and maximise consistency.
- Standard training to improve staff understanding of the duty and ensure consistency.
- Criminalisation at an individual level for accountability and to deter future non-compliance.
- Increased resources to improve organisational learning from incidents and improved digital systems.
What to do now
We would recommend that you:
- look at your policy. Is it up to date? Do you have the latest case examples from the June 2022 CQC guidance. Is it easy for staff to find?
- review training for staff: who needs to be aware of the duty and what are the barriers in your organisation to achieving the highest standards?
- do you triangulate duty of candour incidents with themes identified from PSIRF, claims and inquest to improve services.
Open Consultation on NHS Managers via GOV.UK
On the same date the DHSC have launched a further consultation (closing on 18 February 2025) seeking views from all stakeholders including health and care organisations, regulators, professional bodies, health and care managers and senior leaders, the public, patients and other health and care staff on the most effective way to strengthen oversight and accountability of NHS managers, i.e.:
- the type of regulatory system most appropriate for managers
- which managers should be in scope for any future regulatory system
- what kind of body should exercise such a regulatory function
- what types of standards managers should be required to show as part of a future system of regulation
Regulatory options being considered by the consultation include:
(a) accredited voluntary register
Independently quality assured and publicly searchable list of individuals who demonstrate they have the skills and competencies to practise a certain profession. It won’t be a legal requirement to register however employers and service users may favour those on a voluntary register as it provides a competitive advantage.
(b) statutory barring mechanisms
A list of people who have committed offences or are unsuitable to practise a particular profession. The list will be enforced through legal obligations on employers not to appoint barred individuals. This mechanism would mean that a national code of conduct for managers or leaders would be introduced, with a body given legal responsibility to consider serious complaints.
(c) full statutory registration
Requiring professionals to register with a regulator, which publishes a list of people holding approved qualifications for entry on the register and thus deemed fit to practise a particular profession. This regulation will mean that managers will be required to meet certain standards to join the register, and where they do not, they may be struck off or have sanctions imposed on their registration.
The staff groups to which this may apply include: chairpersons, non-executive directors, and managers and leaders at all levels.
The consultation will also consider whether to introduce a new professional duty of candour on managers, to make them accountable for responding to patient safety concerns.
The consultation acknowledges that successive inquiries have identified a need for professional standards for NHS leaders and managers. A successful approach will increase accountability and provide support and development opportunities to help managers lead the NHS into the future and deliver the government’s manifesto commitment to the ‘10-Year Health Plan’.
Our team at Hill Dickinson LLP are here to support you should you have any questions or would like to know how this may impact your organisation.
The article was co-authored by Jia Ali.
For further information, please contact:
Jonathan Heap, Partner, Hill Dickinson
jonathan.heap@hilldickinson.com
