Two duties of candour

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

The duty of candour

In the summer of 2015, the views of the Department of Health (DH), the Nursing and Midwifery Council (NMC) and the General Medical Council (GMC) on the implementation of the duty of candour finally became clear. Last November (2014), the eight regulators of the healthcare professions adopted a consensus that a duty of candour would be triggered by something ‘going wrong’ with clinical treatment or care, but the final result of consultations was awaited.

It emerges that there are now two distinct duties.

The professional duty

From the clinicians’ perspective of the children’s surgeon, all those registered by the NMC and GMC must notify the patient or the patient’s relatives (for the incapacitated adult) whenever ‘something goes wrong’ with a patient’s care which causes either harm or distress (or the risk of harm or distress) to occur. It is not further defined, and can be seen to be a low threshold. The guidance is not intended to apply where a patient’s condition deteriorates within the natural course of their illness.

This threshold, when crossed, triggers the professional obligation set by the NMC and GMC. The regulators’ joint guidance on how to fulfil this duty should be carefully read, and followed. The only formality that UHS requires is that our consultation with the patient or their relatives relating to the candid discussion is recorded in the notes.

‘Near misses’ should be dealt with like any other clinical problem. Some may, on the basis of common sense, quite obviously cross the threshold of the ‘risk of harm’ envisaged by our regulators. Others may not, and over the next few months we will learn to distinguish the two. It may be that ‘what the reasonable patient would want to know in the circumstances of this particular near miss’ will prove to be helpful in identifying which near misses we should or should not be candid about.

The statutory duty

Rather unhelpfully, a second and different threshold, identically named as a duty of candour has been created by the DH for all Care Quality Commission (CQC) registered providers. This is a corporate (as opposed to professional) obligation which the UHS must adhere to. While it applies directly only to organisations, the contractual link between Trust and employee nevertheless obliges us all to comply with the local arrangements. These are explained in our local duty of candour policy. In this way, our hospital attempts to ensure that its statutory duty is met. The CQC will be responsible for the oversight of this activity.

The threshold for the statutory duty is different from the professional duty. It is only engaged by the occurrence of a notifiable safety incident causing moderate harm (plainly, also harm that is worse than moderate, up to and including death) to the patient; or psychological injury lasting for more than 28 days. You will observe this duty in action when such an incident occurs to a UHS patient during clinical care, since it will be identified through the incident reporting system. It will be followed by a prescribed set of actions, including letters of candour being sent; and associated administrative actions will be carried out.

It is important to note that neither the professional nor contractual duty need a mistake to occur for their activation. Even if through no-one’s fault, when either ‘something goes wrong’ or ‘moderate harm’ occurs during clinical management, that is sufficient to engage the respective duties. An obvious difficulty may arise where the professional duty is triggered, but the ‘thing that has gone wrong’ falls short of the contractual threshold of moderate harm. At UHS, it has been decided that the hospital will concentrate on adhering to its statutory obligation, and leave it to the medical and nursing professional structures within the Trust to ensure that the professional obligation is fulfilled (and recorded in the patient’s notes).

This may not be the end of the evolution of candour in clinical practice in England. Plainly, to have parallel duties for individuals and organisations with different thresholds of activation will cause confusion. In addition, the anticipated extension of the statutory duty into private healthcare will cause additional conflict between the two sets of rules. Furthermore, for those staff who may seek work in the other countries in the UK, it should also be noted that the arrangements required in England by the CQC for the statutory duty are not identical to those in Scotland, Wales or Northern Ireland.

Robert Wheeler
Department of clinical law