Under the statutory duty of candour which has been introduced, NHS bodies in England (trusts, foundation trusts and special health authorities) must tell patients promptly about ‘notifiable patient safety incidents’, apologise and explain what further enquiries will take place. The duty of candour will be introduced to primary care in April 2015.
The Medical Defence Union (MDU) has issued advice explaining how the new duty of candour will sit with its members’ existing ethical duty to be open and honest if things go wrong and with their organisation’s contractual duty.
Michael Devlin, MDU head of professional standards and liaison, commented: “Health service bodies in England now have a legal duty of candour to tell the patient or their representative if a notifiable patient safety incident occurs, providing a full explanation of what happened and an apology. Compliance will be overseen by the Care Quality Commission (CQC). While the duty of candour applies to organisations, not individuals, it is clear from CQC guidance that NHS staff must cooperate with it to ensure the duty of candour is met.
“For over 50 years, the MDU has advised doctors to tell patients when things have gone wrong, to apologise and to try and put things right. Being open and honest will be second nature to most doctors who are ethically required to apologise and provide an explanation to patients when an incident occurs.
“Doctors may wonder how the new duty sits alongside their existing duties, including the contractual duty of candour that applies in NHS organisations whose services are commissioned under a post-April 2013 standard NHS contract. They will remain at the heart of ensuring patients are told when something goes wrong and may often be their organisation’s representative under the statutory duty.
“Clinicians need to know that, unlike their ethical duty which applies to all circumstances where a patient is harmed when something goes wrong, the statutory duty of candour only applies to incidents where a patient suffered (or could have suffered) unintended harm resulting in moderate or severe harm or death or prolonged psychological harm. And the statutory duty of candour is slightly different to the contractual one, so there is potential for confusion among doctors, managers and patients about when and how each duty applies.
“Doctors will need to continue to tell patients when things go wrong and not delay because of any uncertainty as to whether a statutory or contractual duty of candour has been met. They will also need to cooperate with their organisation’s policies and procedures, including the requirement to alert the organisation when a notifiable patient safety incident occurs. Careful note-taking will be important, as will completing the appropriate paperwork if the duty applies.”