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30th December 2015

The Duty of Candour

self made lament‘Candour’ is defined as openness and truthfulness. In the context of care services, it has been put forward as a duty for health and care services to be open and frank where serious mistakes, leading to harm for patients, have been made. The objective of candour is to ensure that mistakes are rectified, and that standards continue to improve. This is opposed to the tendency to perhaps cover up or to minimise failings to avoid litigation or loss of reputation in the care service.

Stafford Hospital Scandal

The recent history of the concept of candour arises from the investigations into the failings in the Stafford Hospital scandal. The hospital, which has now been renamed as ‘County Hospital’, appeared to be offering poor quality of care.

After a campaign started in 2007 by a relative called ‘Cure the NHS’, the Francis report ultimately, after four separate inquiries, was released in 2013. The inquiry covered the work of the Staffordshire Foundation Trust, and its findings were seen by many as shocking, and resulted in resignations at the highest level in the Trust.

Among its recommendations were the need for an enforceable new duty of openness, transparency and candour amongst NHS staff, to ensure that poor practice is detected and remedied as early as possible.

Legislation on Candour

This resulted in the welcome introduction of regulation 20 in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, whose purpose is described as ‘…to ensure that providers are open and transparent with people who use services and other ‘relevant persons…. when things go wrong with care and treatment, including informing people about the incident, providing reasonable support, providing truthful information and an apology when things go wrong.’

The CQC is empowered to prosecute people and organisations for offences under certain parts of these regulations, where these people are working in regulated services.

Developments in Scotland

In Scotland, a general duty of care is being debated under the progress of a bill through the Scottish Parliament called the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill. The Bill has received initial assent, and has now moved to the stage of considering amendments.

The discussion of the legislation points to the value of candour in services as:

‘Being candid promotes a learning culture and accountability for safer systems, better engages staff in improvement work, and engenders greater trust among patients and service users. When there has been harm, people want to be told honestly what happened, to be supported, to be informed of what will be done, and to know what actions will be taken to prevent what happened from happening again…to support continuous improvements in the quality and safety culture across Scotland’s health and care services….the duty of candour will apply to a wide range of health and care services across Scotland. Because it is an organisational duty, it will not apply to individuals who provide services.’

Part 3 of the bill creates offences of ill treatment and wilful neglect. The ill treatment and wilful neglect offences are intended to capture very deliberate acts or omissions. The duty of candour is about increasing openness and transparency when something unexpected or unintended has happened.

This is a welcome move which should ultimately improve the quality of the forthcoming integrated health and social care services in Scotland. We hope that it can be properly implemented and enforced. After all, everyone involved in care has a moral interest and duty in being open and accountable to ensure that the people we serve have the best possible outcome to meet their needs.

Tony Clarke – QCS Expert Scottish Care Contributor

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