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The Department of Health and Social Care is to review the effectiveness of the statutory duty of candour for health and social care providers in England, which has been in place since 2014.
The duty of candour is about people’s right to openness and transparency from their health or care provider. It means that when something goes wrong during the provision of health and care services, patients and families have a right to receive explanations for what happened as soon as possible and a meaningful apology.
The review will consider the design of the statutory (organisational) duty of candour and its operation (including compliance and enforcement) to assess its effectiveness and make advisory recommendations.
The review will also focus on solutions in response to concerns within independent reports that the duty is not always met as intended. It will not consider the professional duty of candour, which is overseen by regulators of specific healthcare professions.
Duty of Candour not always implemented
The Parliamentary and Health Service Ombudsman Rob Behrens said that he has long called for closer openness and transparency when things go wrong in the NHS. He said that the duty of candour was intended to reinforce this but the Broken Trust report into avoidable deaths in the NHS found that the duty is not always implemented as it should. Since then the Ombudsman has called for a full review to assess its effectiveness.
He added: “I welcome this announcement and the opportunity to contribute the expertise and evidence from my office. Despite it being a statutory duty to be open and honest when things go wrong with a patient’s care, I know from the cases we investigate that this doesn’t always happen. Patients and their families deserve better.”
Regulation 20 puts a legal duty on health and social care providers to be open and transparent with people using services and their families. It sets out actions that providers must take when a ‘notifiable safety incident’ happens.
As soon as a notifiable safety incident has been identified, organisations must act promptly and are expected to:
- tell the relevant person, face-to-face, that a notifiable safety incident has taken place
- say sorry
- provide a true account of what happened, explaining what is known at that point
- explain what further enquiries or investigations will take place
- follow up by providing this information and the apology in writing, and giving an update on any enquiries
- keep a secure written record of all meetings and communications with the relevant person.
The CQC regulates compliance with the duty. Failure to comply with the duty can result in enforcement activity ranging from warning or requirement notices to criminal prosecution.
The review will be published in Spring 2024.