The duty of candour means healthcare professionals must be honest when something goes wrong and failure to do so can amount to misconduct.
What is the duty of candour?
All healthcare professionals have a duty of candour – a professional responsibility to be honest with patients when things go wrong.
A joint statement by medical regulatory bodies sets out the following practical approach to the duty of candour:
- tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong;
- apologise to the patient (or, where appropriate, the patient’s advocate, carer or family);
- offer an appropriate remedy or support to put matters right (if possible); and
- explain fully to the patient (or, where appropriate, the patient’s advocate, carer or family) the short and long term effects of what has happened.
The duty of candour is not limited to openness and honesty with patients. There is also a duty to be open and honest with colleagues, employers, relevant organisations and regulators when taking part in reviews and investigations when requested and where appropriate.
Statutory duty of candour
The duty of candour is more than an ethical requirement. Since 2014, organisations registered with the CQC in England have a statutory duty of candour.
Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 intends to make sure that providers (both NHS. independent healthcare bodies and providers of social care) are open and transparent in relation to care and treatment with people who use their services.
It also sets out some specific requirements that providers must follow when things go wrong with care or treatment, including informing people about the incident, providing reasonable support, giving truthful information and apologising when things go wrong. The CQC can prosecute for a breach of parts 20(2)a and 20(3) of this regulation.
Apologising and admission of guilt
Guidance issued jointly by the NMC and GMC, “Openness and honesty when things go wrong: the professional duty of candour”, states that patients expect to be told three things as part of an apology:
- what happened
- what can be done to deal with any harm caused
- what will be done to prevent someone else being harmed.
Apologising does not necessarily mean that you are admitting legal liability for what has happened. This is set out in legislation Compensation Act 2006 (England and Wales) and the NHS Litigation Authority also advises that saying sorry is the right thing to do.
Candour in practice
The “Openness and honesty when things go wrong: the professional duty of candour” guidance offers specific advice on candour in practice:
- Discuss risks before beginning treatment or providing care – Patients must be fully informed about their care. When discussing care options with patients, you must discuss the risks as well as the benefits of the options.
- When to apologise to the patient – When you realise that something has gone wrong, and after doing what you can to put matters right, you or someone from the healthcare team must speak to the patient. The most appropriate team member will usually be the lead or accountable clinician.
- When to speak to a patient or those close to them – You should speak to the patient as soon as possible after you realise something has gone wrong with their care. When you speak to them, there should be someone available to support them (for example a friend, relative or professional colleague). You do not have to wait until the outcome of an investigation to speak to the patient, but you should be clear about what has and has not yet been established.
- Being open and honest with patients about near misses – A ‘near miss’ is an adverse incident that had the potential to result in harm but did not do so. Sometimes failing to be open with a patient about a near miss could damage their trust and confidence in you and the healthcare team.
Reflection, Insight & Remediation
In addition, a fitness to practise panel may view an apology as evidence of insight. The reality is that sometimes things do go wrong. When this happens, reflection is important for any healthcare professional to gain insight into the circumstances that led to things going wrong and from this to demonstrate remediation.
Insight and remediation must be genuine and demonstrable. When evaluating the strength of insight, healthcare regulators will consider, for example, whether a healthcare professional has:
- recognised what went wrong, why their actions, behaviour, or decisions are concerning;
- recognise and understood the potential public safety risks;
- fully engaged with the investigation process, including completing a reflective statement and action plans; and/or
- taken demonstrable steps and actions to remediate.
Duty candour and fitness to practise
Failure to be open with a patient can amount to misconduct. Fitness to practise panels are likely to see failure to be open with a patient as potentially a serious form of misconduct particularly if there is any element of deliberate steps or intent to avoid being candid with a patient or to prevent someone else from being so.
Such a finding of impairment could lead to serious sanctions including Suspension Orders or erasure.
Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.
I am a HCPC Defence Barrister who has represented a large number of health and care professionals before the HCPC and other regulatory bodies in either first instance proceedings or appeals.
I can help with all matters relating to HCPC Fitness to Practise referrals issues including:
- Applications for Registration
- Registration Appeals
- International Registration
- Temporary Registration
- Internal Disciplinary and Grievance
- HCPC Referrals
- Fitness to Practice Hearings
- Conduct and Competence Hearings
- Health Committee Hearings
- Interim Orders Hearings
- Preparation for hearings
- Representation at hearings
- Preparation of witness statements
We are expert HCPC Defence Barristers
Speak to an expert HCPC Defence Barrister for expert legal advice and help.