Medical Negligence

The duty of candour – slow and steady progression

November 3, 2022
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By Andy Tindall, Litigation Executive in the Medical Negligence team

After the publication of AVMA’s report on the inspection and regulation of the duty of candour earlier this month, the NHS’s ability to implement one of the fundamental standards of care and the CQC’s ability to ensure compliance, was once again put under the microscope.

The report can be accessed by clicking the following link:

In a sector which, largely in the past, has been considered by some to be rather ‘paternalistic’ in its handling of patient transparency, the findings of this report are encouraging and show NHS Trusts increasing overall willingness and adherence to their duty to be open and honest with their patients when mistakes occur.

However, the report does also highlight inconsistencies amongst Trusts’ implementation of the duty, especially when it comes to complete compliance and knowledge/ awareness amongst staff and patients.

In order to completely adhere to the duty of candour, the following must occur:

  1. The victim of the incident must be notified as soon as practically possible
  2. An apology must be offered
  3. The victim must be provided with support after the incident and they must be included in the incident investigation

A written notification must then be provided in person, including an apology, with an accurate and comprehensive account of the incident and the victim must also be advised of the relevant enquiries that can be taken regarding the incident as well as any results from the investigation.

In a number of the CQC reports that were analysed by AVMA, it was identified that certain Trusts failed to adhere to all aspects of the duty of candour requirements; for example conversations with individuals were not recorded or there was evidence of an apology but not a written one. This is something which I have personally come across when reviewing medical records as part of my role as a Litigation Executive. The clinical notes may include reference to a ‘duty of candour conversation and apology given’ but a written apology is then not provided.

The importance of a full and frank apology, both verbally and then followed up in written format, cannot be underestimated and is often a source of comfort and appreciation for victims of medical mistakes. By adhering in full, not only do Trusts prevent themselves from regulatory action but it also ensures that the public can have confidence in an open and transparent system.

A further issue that came out of AVMA’s research into the CQC reports was lack of staff knowledge and training. This is concerning, especially given the varying amounts of knowledge between different Trusts.

It would seem that the most appropriate solution to this problem would be to ensure that universal and mandatory duty of candour training is provided to each Trust to ensure a consistent understanding of the meaning and importance. In addition, regular refresher sessions and information leaflets for both staff and patients (which it must be noted has been implemented by a number of Trusts) would also ensure a full and up-to-date knowledge.

It is important to reiterate, that despite the areas that require improvement, a large percentage of Trusts follow good practice and implementation of duty of candour awareness in an environment with increasingly stretched resources. However, consistent application amongst all Trusts is the key to ensuring overall public confidence and allowing lessons to be learned from when mistakes are made, resulting in future prevention.

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