Posted by Kerstin Scheel, Partner
The Statutory Duty of Candour – is it making any difference to patient safety?
The duty of candour was designed to ensure hospitals deliver an open and honest account when things go wrong – is this happening though? Kerstin Scheel reviews how the duty has been implemented so far.
In April 2013 the then Secretary of State for Health and Social Care, The Rt Hon Jeremy Hunt MP, introduced a new legal requirement (the statutory duty of candour) for NHS medical professionals. This would provide patients with an open and honest account of a patient safety incident (involving death or moderate or severe harm) which may have occurred in their medical treatment, the aim being to afford the patient the right to have an informative explanation as to why things had gong wrong. It also gives medical staff the opportunity to learn from mistakes, collating and sharing knowledge to improve future patient care.
But has the ethos of the duty of candour (for the NHS to create a safety and learning culture) been embraced by hospital Trusts’ leadership and senior clinicians? For if not used then it is simply another failed Department of Health initiative; a nice idea, but pretty pointless in practice.
How have things changed with the duty of candour?
In August 2016 the Charity Action Against Medical Accidents (AvMA) published its report on how the Care Quality Commission (CQC) had regulated the Duty of Candour regulations; unfortunately the reading was not encouraging.
“The study shows that CQC inspections of NHS trusts in 2015 were very inconsistent and often superficial in how they assessed compliance with the duty, and that even where they identified there was non-compliance, there was little or no evidence that the CQC was taking steps to ensure that NHS trusts improved. It was also found that the CQC could not identify a single example where they had taken action over an alleged individual breach of the duty reported to it, and had no system in place to monitor these.”
The next year a further review was undertaken by AvMA, which was reported in the Health Services Journal in 2018. This review noted continued failures by the CQC to properly enforce the duty of candour:
“[AvMA] said the CQC did not centrally record alleged breaches of the duty of candour. It added: ”The continuing lack of clarity about how the CQC deals with individual allegations or reports of potential breaches of the duty of candour is very worrying. The CQC was unable to provide any information on how many such reports it receives or what had been done about them. Without access to complaints or an ability to realise patterns of breaches, the CQC can’t be relied upon to ensure the duty of candour is adhered to.”
Has anything been done to enforce the duty?
Since then the CQC has, in fact, made its first prosecution under Regulation 20 of the Health and Social Care Act 2008 when it fined Bradford Teaching Hospitals NHS Foundation Trust £1,250 in 2019 following the death of a baby in July 2016.
This is certainly a step in the right direction in demonstrating to Trusts that this is no “Mickey Mouse” statutory regulation. However, in the same vain, one can hardly call a fine of £1,250 a serious deterrent. Patients need to be able to put their faith in the CQC to uphold their rights as vulnerable patients – I fear a lot more work is required within the culture of the NHS and it’s regulatory body before this goal is achieved.
During World Patient Safety Day we have a prime opportunity for our new Secretary of State for Health and Social Care, The Rt Hon Matt Hancock MP, to focus his mind and review this regulation and its efficacy in protecting patients and the sharing of medical knowledge- oh wait, he can’t, he’s totally focused on something much more important called Brexit and the £350million a week it’s going to bring into the NHS…
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