Duty of candour

In recent years there has been increasing emphasis on honesty and transparency in health care – particularly following a number of public inquiries into patient care failures. Any culture of secrecy or cover-up in health care is to be challenged, which has led to a focus on making ‘candour’ in health care mandatory.

Candour has been defined by the Professional Standards Authority as 'being open and transparent when something has gone wrong'. Currently, nurses are affected by both professional and statutory duties of candour.

Organisations registered with the Care Quality Commission (CQC) in England have a statutory duty of candour. Such organisations run the risk of criminal sanctions (fines and/or possible de-registration) if they fail to comply with the requirement to be open and honest when issues of concern are raised.

Part of the duty is to report back to the patient or relatives if there has been a ‘notifiable safety incident’, defined as:

 ‘any unintended or unexpected incident that … in the reasonable opinion of a healthcare professional could result in, or appears to have resulted in

 a) the death of the service user or

 b) severe harm, moderate harm or prolonged psychological harm to the service user’

The organisational duty does not include a requirement to tell the patient about ‘near-misses’, although this is recommended.

Similar provisions came into force in Scotland in 2018 and in Wales from 1 April 2023.

The provision remains under consideration in Northern Ireland.

The General Medical Council (GMC) and the Nursing and Midwifery Council (NMC) have produced joint guidance on the professional duty of candour: Openness and honesty when things go wrong: the professional duty of candour. It sets out professional standards on what nursing staff in the UK should do if something goes wrong during patient care.

Failure to comply with these principles could lead to Fitness to Practise processes against registered nurses, midwives and nursing associates.

The combination of the above duties means that when things go wrong, practitioners provide an account of the facts that are known at the time - face to face if possible - as soon as possible after the mistake has been discovered. The practitioner should also advise on what further enquiries might need to be made and should make an apology.

The NMC/GMC guidance offers quite specific advice on how to make an apology that is meaningful, and points out that an apology does not mean that the practitioner is accepting legal liability for what has happened, nor that that practitioner is accepting any personal responsibility for the mistakes of others or for systemic failings.

The notification must be followed up in writing, containing the same information as the face to face interview.

Helpfully, the guidance does reflect upon who should take responsibility for these actions, as follows:

We recognise that care is normally provided by multidisciplinary teams, and we don’t expect every team member to take responsibility for reporting adverse incidents and speaking to patients if things go wrong. However, we do expect you to make sure that someone in the team has taken on responsibility for each of these tasks, and we expect you to support them as needed.

If you are asked to prepare ‘the candour letter,’ the RCN advises you to seek further support from your employer as it is the provider of the service that must take more responsibility.

If you are worried about what to do or find your employer is not being supportive, read the guidance above and contact us for further advice as needed.

Martha’s Rule: the introduction of a process for raising concerns about a patient’s deteriorating condition

The first phase of the introduction of Martha’s Rule was implemented by the NHS (England) in April 2024. Once fully implemented, patients, families, carers and staff will have round-the-clock access to a rapid review from a separate care team if they are worried about a person’s condition.

The three proposed components of Martha’s Rule are:

1. All staff in NHS trusts must have 24/7 access to a rapid review from a critical care outreach team, who they can contact should they have concerns about a patient.
2. All patients, their families, carers, and advocates must also have access to the same 24/7 rapid review from a critical care outreach team, which they can contact via mechanisms advertised around the hospital, and more widely if they are worried about the patient’s condition.
3. The NHS must implement a structured approach to obtain information relating to a patient’s condition directly from patients and their families at least daily. In the first instance, this will cover all inpatients in acute and specialist trusts.

This first phase will take place across 2024/25 and will focus on supporting adult and paediatric acute provider sites to devise and agree a standardised approach to all three elements of Martha’s Rule.

It is anticipated that there will be an adapted model for roll out in community and mental health settings. 

CQC

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