Duty of Candour

The Duty of Candour is a legal duty on hospital, community and mental health trusts to inform and apologise to patients if there have been mistakes in their care that have led to significant harm. All NHS provider bodies registered with the CQC have to comply with the Duty of Candour.

What is candour?

Candour can include:

• Recognising when an incident occurs that impacts on a patient in terms of harm;
• Notifying the patient something has occurred;
• Apologising to the patient;
• Supporting the patient further;
• Following up with the patient as investigations evolve;

What triggers the statutory duty?

The statutory duty of candour is triggered by:

• The death of a patient as a result of treatment received or nor received (not just their underlying condition);
• Severe harm – in essence permanent serious injury as a result of care provided;
• Moderate harm – in essence non-permanent serious injury or prolonged psychological harm.

When might it arise?

It can arise in any circumstances, for example:

• Whilst the patient is an in-patient;
• When a patient is back home following discharge or following community based care;
• Following a patient’s death.

What does candour look like?

It can include any or all of the following:

• Open discussions between the patient and the healthcare provider when things go wrong;
• Acceptance by healthcare staff that open conversations will take place at an early stage;
• Reduction in overly defensive approaches to information sharing about incidents in relation to the patient in question;
• Engaging the patient with the outcome of investigations; and
• An apology in relation to the incident.

What is an apology?

Clinical staff may worry that being open with patients may compromise the ability to deal with a claim if one is subsequently made by the patient. In reality candour is all about sharing accurate information with patients and should be encouraged. The facts are the facts and staff should be encouraged and supported to help patients understand what has happened to them.

Saying sorry when things go wrong is vital for the patient, their family and carers as well as to support learning and improve safety.

Verbal apologies are essential because they allow face-to-face contact between the patient, their family and carers and the healthcare team. This should be given as soon as staff are aware an incident has occurred. A written apology, which clearly states the healthcare organisation is sorry for the suffering and distress resulting from the incident must also be given.

Who should say sorry?

Information about a patient safety incident must be given to patients and their families in a truthful and open manner by an appropriately nominated person. Staff may be unclear about who should talk to patients when things go wrong and what they should say; there is a fear that they might upset the patient, say the wrong things, make the situation worse and admit liability. Having a local policy that sets out the process of communication with patients and raising awareness about this will provide staff with confidence to communicate effectively.

The local policy should state who is the most appropriate member of staff to give both verbal and written apologies to patients and their families; the decision should consider seniority, relationship to the patient, experience and expertise. Most healthcare provision is through multidisciplinary teams so any local policy on openness should apply to all staff that have key roles in the patient’s care.

What if there is a formal complaint or claim?

Poor communication may make it more likely that the patient will pursue a complaint or claim. It is important not to delay giving a meaningful apology for any reason, including where there is a formal complaint or claim.

It is also essential that any information given is based solely on the facts known at the time. Healthcare professionals should explain that new information may emerge as an investigation is undertaken, and that patients, their families and carers will be kept up to date with the progress of an investigation.

Is an apology the same as an admission of liability?

Saying sorry is not an admission of legal liability; it is the right thing to do.

The NHSR is not an insurer and will not withhold cover for a claim because an apology or explanation has been given.

What about the staff involved?

Healthcare organisations must create an environment in which all staff, whether directly employed or independent contractors of NHS care, are encouraged to report patient safety incidents. Staff should feel supported throughout the investigation process because they too may have been traumatised by being involved.

Sometimes patients can suffer significant harm. In these circumstances the member(s) of staff involved may find it hard to participate in the discussion with the patient and their family. Every case needs to be considered individually, balancing the needs of the patient and their family with those of the healthcare professional concerned.

Key messages

• Timeliness – the initial discussion with the patient and their family should occur as soon as possible after recognition that something has gone wrong.
• Explanation – patients and their families should be provided with a step-by-step explanation of what happened, that considers their individual needs and is delivered openly.
• Information – patients and their families should receive clear, unambiguous information. They should not receive conflicting information from different members of staff.
• Ongoing support – patients and their families should be given a single point of contact for any question or requests they may have. They should also be provided with support in a manner appropriate to their needs.
• Confidentiality – policies and procedures should give full consideration of, and respect for privacy and confidentiality for the patient, their family and staff.
• Continuity of care – patients are entitled to expect that they will continue to receive all the usual treatment and continue to be treated with dignity, respect and compassion. If a patient expresses a preference for their healthcare needs to be taken over by another team, the appropriate arrangements should be made for them to receive treatment elsewhere.