Regulating the Statutory Duty of Candour

By John Tingle

Patients are very much the weaker party in the care equation. Doctors and nurses are always in a much more powerful position as they have the command of a discrete, specialised body of professional knowledge which the patient has not got and often urgently needs. To make the National Health Service (NHS) much more patient centered and to improve the quality of care we need to take account of this imbalance in the care equation which favours healthcarers. We can do this by explaining more carefully to patients about their treatment options and respecting their autonomy as individuals.

All organisations and those working in them need to be honest, open and truthful in all their dealings with patients and the public. A statutory duty of candour now exists in law in the NHS through regulations and is enforced by the Care Quality Commission (CQC), Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 20. The CQC can prosecute for a breach of parts 20(2) (a) and 20(3) of this regulation and can move directly to prosecution without first serving a Warning Notice. Additionally, CQC may also take other regulatory action.

The statutory duty of candour has the real and important potential to drive up the quality of care in the NHS and to strengthen the patient’s position in the care equation, to level the playing field a bit. However for this to work it’s very important that the CQC check properly that the statutory duty of candour is being implemented by care providers and to take action if it’s not. We don’t want to see the duty of candor, ‘wither on the vine’, because hospitals and others do not take it seriously and then the  CQC  does not bother to chase up those who do not comply.

AvMA, (Action against Medical Accidents) is the UK charity for patient safety & justice.They have recently produced a report on how the CQC has been regulating the statutory duty of candour. Unfortunately the CQC does not get a very good grade from AvMA in this report on its efforts to regulate the duty. The study shows that CQC inspections of NHS trusts in 2015 on the duty of candour were very inconsistent and often superficial. Where the CQC identified trusts as not complying with the duty there was little or no evidence that the CQC were taking measures to ensure that trusts improved and no CQC monitoring to this effect. The report could not point to a single instance where in the light of a trust breach, the CQC took action. The report calls for the CQC to make urgent improvements as to how it regulates the duty of candour and makes a number of important recommendations. These include the CQC developing a much more robust and consistent method of assessing implementation of and compliance with the duty of candour as part of all of its inspections. The CQC should be more consistent and robust in identifying and recording potential non-compliance, demanding improvement and monitoring that recommendations are acted on.

John Tingle

John Tingle

Global Patient Safety Consultant and Analyst, Formerly Associate Professor at Nottingham Law School, Nottingham Trent University in the UK. I have a fortnightly magazine column in the British Journal of Nursing where I focus on patient safety and the legal aspects of nursing and medicine. I have published over 500 articles and a number of leading texts in patient safety and nursing law .Visiting Professor at Loyola University Chicago, School of Law. I was a Visiting Scholar at Harvard Law School in November 2018.My current research interests are in global patient safety, policy and practice particularly in African health care systems.My most recent publication is: Global Patient-Safety Law Policy and Practice edited by John Tingle, Claytion O'neill and Morgan Shimwell, Routledge 2018.

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