Regulating the Statutory Duty of Candor in the NHS

A recent report for the patient safety and justice charity, AvMA (Action against Medical Accidents) identifies some short comings in the way the NHS statutory duty of candor is regulated. The report is not all doom and gloom, however. Some improvements are also noted.

The statutory duty of candor

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 20 is the relevant law here. The statutory duty of candor is designed to ensure that health providers are open and transparent with people who use services and other ‘relevant persons’ (people acting lawfully on their behalf) in general in relation to care and treatment. The NHS Health and Social Care regulator, the Care Quality Commission (CQC) regulates the statutory duty of candor.

The CQC describe the duty:

“Providers must promote a culture that encourages candor, openness and honesty at all levels. This should be an integral part of a culture of safety that supports organizational and personal learning. There should also be a commitment to being open and transparent at board level, or its equivalent such as a governing body.”(p8).

The CQC can prosecute for breach of Regulation 20 in accordance with their enforcement policy or can take other regulatory action.

Duty of candor reporting standards-2017 inspections

Whilst the CQC has improved in their inspection and reporting on compliance with the duty of candour, issues remain such as making recommendations to address candour issues.

Issues of implementation and non-compliance

Since 2015 NHS trusts (hospitals) have improved in how they implement the duty of candor provisions but there are still problems with compliance. The report makes several improvement recommendations.

Staff training

To properly implement the statutory duty of candor, NHS hospital staff must firstly be aware of the concept.

Categorization of incidents

CQC Inspectors found varied application of the duty of candor within hospitals. Triggering events for the duty of candor to come into effect can range from death to moderate harm or psychological harm. During inspections, CQC inspectors weren’t always assured that incidents were correctly categorized as triggering the duty.

Inspections and monitoring

The quality of inspections and the detail of the analysis in the CQC inspector’s reports were found to be varied highlighting the need for a standardized approach by CQC inspectors.

The CQC found that many hospitals lacked systems or where they had them, they were inadequate to monitor the application of the statutory duty of candor.

Active implementation of the duty of candor

Some good NHS hospital duty of candor implementation practices was found. Most hospitals have a duty of candor policy. Many use electronic reporting systems to record and monitor duty of candor compliance

CQC enforcement action

The report found that the CQC had used its statutory enforcement powers 108 times against providers who were not fully compliant with the duty of candor. The report notes that no examples were given at all for 2016.

The CQC according to the report, have no idea as to how many individual allegations about organizational breaches of the duty of candor it receives. Also, no system in place to ensure that allegations, indicating serious breaches are dealt with. The CQC are also weak on publicizing that it is taking breach of the duty of candor enforcement action.

The report makes several recommendations to the CQC on how it can improve its duty of candor regulation. It points to a significant improvement in the way the CQC regulates the statutory duty of candor. NHS hospitals can also be seen to be improving on the application of the duty. There are however problems identified in several key areas which must be addressed.

 

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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