1. Duty of Candour Felicity Crockford Senior Legal Officer & Solicitor
West Midlands & East Midlands

2. Objectives today What is ‘Candour’? The organisational duty
The individual practitioner’s duty
The practicalities
Case studies

3. Historic attitudes to speaking up…
Florence Nightingale, Notes on Nursing (1860) pages 92-93

4. …And learning from mistakes
‘A man should never be ashamed to own he has been in the wrong, which is but saying in other words that he is wiser today than he was yesterday’.
Alexander Pope: Thoughts on Various Subjects

5. Francis Report Despite efforts in ECHR, no duty developed
As a result and following Stafford Inquiry, Robert Francis wanted a duty of candour on individuals and organisations for cases involving death or serious harm
What did Francis want?

6. Francis Inquiry – Duty of Candour
Statutory ‘Duty of Candour’
Twelve recommendations considered openness, transparency and candour:
Openness: Concerns raised and disclosed without fear and questions answered
Transparency: Ensuring true information is being shared
Candour: Ensuring that those harmed are informed of such and a remedy offered, regardless if complaint or not
FOCUS:
Providing an explanation
Attack culture of silence

7. Francis Inquiry – Duty of Candour
Consequences and effects:
Increased examples of whistle blowing?
Already covered by Code of Conduct?
Extending to those not covered i.e. Managers and carers?
Amendments to Code of Conduct to cover further?
Further grounds for referral?
More ‘conviction’ referrals for criminal aspect i.e. Conclusive of charge?
Even more reliance of ‘upholding the reputation of the profession’ grounds?
So, overall...
Generally, closer scrutiny of nurses and more referrals to NMC and DBS...?

8. What is Candour?
A professional duty to be honest with patients when things go wrong!
What is candour?
Recognising when an incident occurs that impacts on a patients in terms of harm
Notifying the patient when something has occurred
Apologising to the patient
Supporting the patient further
Following up the patients as your investigations evolve
Documenting the above discussions and steps

9. When does it arise? When might is arise?
Whilst the patient is an in-patient i.e. at the bedside
When a patient is back home following discharge or via community based care
Following the patient’s death

10. What does Candour look like?
Open discussions between the patient and the healthcare provider when things go wrong
Acceptance by healthcare staff that open conversations will take place at an early stage
Reduction in overly defensive approaches to information sharing about incidents in relation to the patient in question
Engaging the patient with the outcome of investigations; and
An apology in relation to the incident

11. The Result in Practise
There are two systems now in place which affect nurses:
Organisational Statutory duty
i.e. Government opted for a statutory organisational duty of candour (for cases of moderate harm and upwards) with sanctions in the criminal law
Individual duty for registered practitioners
i.e. Duty under NMC Code of Conduct

12. The Organisational Duty
Health and Social Care Act 2008 (Regulated Activities) Regulations 2014
Regulation 20
20(1) - A health service body must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity.
Failure to comply can lead to sanctions placed on the organisation
Staff have to comply with their employment duties
For NHS organisations = November 2014
For organisations registered with the CQC = 1 April 2015

13. What is required?
As soon as reasonably practicable after becoming aware that a notifiable safety incident has occurred a health service body must:
(a) Notify the relevant person that the incident has occurred; and,
(b) Provide reasonable support to the relevant person in relation to the incident

14. What are ‘notifiable safety incidents’?
Any unintended or unexpected incident that occurred during regulated activity that in the reasonable opinion of a health care professional, could result in or appears to have resulted in:
Death (when relates directly to incident and not as consequence of illness or underlying condition); or,
Severe (permanent injury) or moderate harm (non-permanent); or
Prolonged psychological harm to the service user (i.e. continuous period of at least 28 days)

15. What is ‘moderate harm’?
Harm that requires a moderate increase in treatment and where there is significant, but not permanent, harm
Eg. Unplanned return to surgery, extra time in hospital or as an out patient

16. What is ‘severe harm’? Permanent lessening or loss of function
Can be bodily, sensory, motor, physiologic or intellectual functions,
E.g. Removal of the wrong limb or organ or brain damage

17. What should be reported and how?
The organisation must, as soon as reasonably practicable:
Give an account in person to the patient/family member of all the facts known on that date;
What further enquiries are being undertaken
Should be an apology
A written record kept and provided to the patient
NB: If the relevant person cannot be contacted, record of all attempts to contact should be kept

18. The Individual Duty Registered practitioners
Nurses = Governed by NMC Code of Conduct (2015)
Preserving Safety

19. NMC Code of Conduct 2008
54 You must act immediately to put matters right if someone in your care has suffered harm for any reason. 55 You must explain fully and promptly to the person affected what has happened and the likely effects.

20. Current NMC Code
Section 14: Be open and candid with all service users about all aspects of care and treatment, including when any mistakes or harm have taken place
14.1 Act immediately to put right the situation if someone has suffered actual harm for any reason or an incident has happened which had the potential for harm
14.2 Explain fully and promptly what has happened, including the likely effects, and apologise to the person affected and, where appropriate, their advocate, family or carers
14.3 document all these events formally and take further action (escalate) if appropriate so they can be dealt with quickly.

21. Current NMC Code - 2015 Also…
Section 16: Act without delay if you believe that there is a risk to patient safety or public protection
Escalate concerns; raise if asked to act outside Code or competence; do not obstruct or prevent anyone who wants to raise concerns

22. Joint NMC/GMC guidance on Candour - ‘When things go wrong’
Sets out guidance on what is expected from doctors and nurses
Reference to relevant parts of Code

23. Who should take responsibility?
Acknowledge care usually given in teams i.e. MDT
Not expect every member of team to take responsibility for reporting adverse incidents and speaking to patients if things go wrong.
However:
Do expect you to make sure that someone in the team has taken on responsibility
Do expect you to support them as needed.

24. When to apologise and how?
Not relate to incidents where patient’s condition gets worse due to the natural progression of their illness
Rather, it applies when something goes wrong with a patient’s care and they suffer harm or distress as a result.
Speak to the patient as soon as possible after you realise something has gone wrong
Ensure someone around to support them
Share all you know and believe to be true about what went wrong and why

25. What should be said? Ensure your apology is:
In terms understood by the patient
Done at a time and place to help ensure understood and retained
Respect privacy and dignity
Personal
Details for contacting if any questions
Record and follow in writing
Patients are likely to find it more meaningful if you offer a personalised apology
i.e. ‘I am sorry…’
Rather than a general expression of regret about the incident on the organisation’s  behalf.

26. What about near misses?
Near misses = Adverse incident which has potential to cause harm but didn’t
Near misses should be reported BUT you must use your professional judgement when considering whether to tell patients about near misses
Balance damage to trust and confidence if do not tell vs. causing unnecessary distress and confusion

27. Potential issues Therapeutic non-disclosure
When things go wrong that had been advised as risks while obtaining consent
Self incrimination

28. Case Study Review NMC cases studies Moderate harm Severe harm
Near miss
What do you think?

35. Key Points Accountability Openness Transparency Responsibility
Reflection
Insight
Prevention

36. Key contacts
For information and advice contact RCN Direct: / (0) Read more: The NMC/GMC joint guidance on Duty of Candour: NMC Duty of Candour – Case Studies: