Updated Guidance on the Statutory Duty of Candour: Greater Clarity for Registered Providers

The Care Quality Commission (CQC) have published updated guidance on meeting the duty of candour.

The updated guidance, which can be viewed here, applies to all health and social care providers registered with the CQC.

The update provides a more detailed explanation of what a notifiable safety incident is and now makes clear that the apology which is required as part of fulfilling the duty does not equate to an admission of liability. As such, an apology will not affect a provider’s indemnity cover.

First introduced in 2014, following the Mid Staffordshire Inquiry, led by Sir Robert Francis QC, Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets out a provider’s duty to notify an individual that an incident has occurred, provide an account of all facts known as of the notification date, advise on what further enquiries are appropriate, apologise and securely maintain a written record of the discussion.

The CQC can prosecute where the above is not complied with. For example, in 2020 University Hospitals Plymouth NHS Trust admitted a breach and were ordered to pay £12,565.

The more detailed explanation of a notifiable safety incident confirms the three criteria that apply for an incident to be defined as ‘notifiable’. The incident must have been unintended or unexpected, must have occurred during the provision of a regulated activity and in the reasonable opinion of a healthcare professional has or might result in death or severe or moderate harm to the person receiving care. Specific examples are also now given for some organisations regulated by the CQC including care homes, dental practices and in general practice.

The CQC confirm that whether there is evidence of fault on the part of the provider, there is no impact on the definition of a notifiable safety incident. Providers should therefore ensure that the overarching duty of candour is complied with and that they act in a way which is open and transparent.

Previous guidance published by NHSR confirms that an apology does not equate to an admission of liability. The CQC now confirm that this is the position. The update now quotes from that guidance, confirming that an apology is always the right thing to do, is not an admission of liability, acknowledges that something could have gone better and is the first step to learning from what happened and preventing a recurrence.

Although the statutory duty of candour (and associated guidance) applies to providers regulated by the CQC, the update can also inform the actions of individual practitioners given the need to comply with the professional duty of candour overseen by the professional regulators (GMC, GDC, NMC).

Research  has demonstrated that it is often the absence of an apology, made in good time, that causes people to commence legal action. Saying sorry and taking action to understand what caused or contributed to an incident, along with taking steps to avoid a recurrence helps to demonstrate compliance with both the statutory and professional duty. The updated guidance, assists individuals and providers in understanding how and when the duty of candour can be complied with.

Clare Chapman, Partner, BLM
clare.chapman@blmlaw.com

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