Getting it right when things go wrong: how to ensure compliance with the Duty of Candour

Regrettably there are going to be occasions where things go wrong when providing care and support. While it is important to ensure the necessary steps are taken to put things right, do not lose sight of the duty of candour.

The duty of candour is a specific statutory obligation found at Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (‘the Regulations’). In short, it is an obligation to ensure that providers are open and transparent with those who use their services (and anybody acting on their behalf) in relation to the care and treatment they receive. It also sets out some specific steps that must be followed when things go wrong.

In the context of registered providers of social housing, this will encompass activities where you are registered with the Care Quality Commission (‘CQC’) by providing, for example, personal care or accommodation for people who require the same and/or nursing.

This article will provide you with a short overview of the duty, details on how to comply with it and when to seek legal advice.

What is the duty of candour?

This obligation is placed on all healthcare providers who carry out regulated activities (as per Schedule 1 of the Regulations) and who are registered with the CQC.

The regulation requires you to be open and honest with service users (or their families in appropriate cases) when something goes wrong that appears to have caused significant harm. The intention of the duty is to promote openness and transparency between providers and service users about their care and treatment.

The duty in full can be found on the CQC website here.

When will it apply?

The duty will only engage where there has been a safety incident (i.e. an unintended or unexpected incident) that has resulted in:

  1. moderate harm;
  2. severe harm or;
  3. death of a service user.

Being able to spot severe harm should be relatively easy. The threshold of ‘moderate harm’ may be trickier however and this is further defined in the Regulations as either:

  1. a moderate increase in treatment;
  2. a significant, but not permanent, harm, or;
  3. prolonged psychological harm.

This will therefore include examples like a return to surgery, an unplanned re-admission to hospital, a prolonged episode of care or perhaps extra time in hospital.

What do you have to do?

Once a safety incident has occurred the duty will be engaged. That sets in hand step by step obligations the provider must then comply with:

  1. Notify

Tell the service user in person (which includes someone lawfully acting on their behalf) that the incident has occurred. This must also include an apology. Take legal advice if you think the service user lacks capacity to make decisions about their care or treatment.

  1. Record

Make sure a written record of the meeting (providing the notification in step 1) is made.

  1. Provide

Ensure a truthful account of the incident based on the information you have is provided all the while providing any reasonable support necessary.

  1. Advise

Inform (and agree where possible) what further enquiries will need to be carried out.

  1. Provide again

This step is to ensure all information relevant to the incident (once obtained) is provided to the service user.

  1. Inform

Write to the service outlining the above steps and detailing what further enquiries are necessary (and then the results of those further enquiries once concluded). This must also include a written apology.

What if you don’t comply?

Failure to comply can result in a summary conviction and a fine. While there is a defence available this will require you to show that you took all appropriate steps and exercised all due diligence to ensure that the duty had been complied with.

The duty remains a regulatory requirement and the CQC will be able to take enforcement action if it is breached.

When to seek legal advice?

Given the sensitivity and gravity of such incidents we recommend specific legal advice is taken on a case by case basis. Providers should seek advice urgently whenever a safety incident has occurred (or where a provider thinks the duty may be engaged). We are able to help providers understand their obligations and assist you in complying with them. We are also on hand to deal with any regulatory repercussions that could follow.

The CQC guidance also requires adequate policies and procedures are in place and we can assist in reviewing or preparing those where necessary.

For more information in relation to your regulatory obligations, or your policy or training requirements, please contact Lee Russell.

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