Is the duty of candour working?

A recent case concerning the death of a patient has re-ignited the debate as to whether the duty of candour is an effective tool.

The duty of candour is a statutory duty which has several key principles.  Organisations which provide care have a duty to be open and transparent.  The duty applies to the organisation rather than specific individuals.  A patient should always be told where there is a notifiable safety incident as soon as is practical but it is noteworthy that “safety incident” has two different definitions depending on whether it is an NHS institution or not.  Regardless, an organisation has a duty to explain to the patient where this has occurred, what is known at the time, what further enquiries are likely to be made, offer an apology and keep a written record.  The patient should be provided with written notes of the initial discussion and notification, any details of further enquires, results and an apology.

For an NHS body the notifiable patient safety incident is one that results in either death, severe or moderate harm or prolonged psychological harm.

In a non-NHS body the notifiable patient safety incidents include  death, impairment of sensory, motor or intellectual function lasting more than 28 days, changes to the structure of the body such as amputation, or prolonged pain or psychological harm, again for at least 28 days.

It can therefore be seen that the duty of candour has become a little more complicated than a simple obligation to be open and honest about things that have gone wrong.  It can also be seen that there are cases which may fall along the edges of those definitions where a Trust or a non-NHS body may decide that the duty of candour does not apply.

In January 2019 the CQC (the Care Quality Commission) announced that Bradford Teaching Hospital NHS Foundation Trust was the first Trust to be prosecuted for failings in its duty of candour.  This related to an incident where a baby died in 2016.  The family were not informed despite this being a clearly notifiable safety incident and in fact did not receive an apology or indeed explanation until the October of that year.

Largely however, the duty of candour has not proved to be the effective tool that perhaps the clinical negligence lawyers acting on behalf of claimants would have hoped.

More recently the University Hospitals Plymouth Trust  https://www.theguardian.com/society/2020/sep/23/nhs-trust-fined-lack-of-candour-first-prosecution-of-its-kind-   was fined in September and ordered to pay legal costs of  £12,565 after being taken to court by the CQC.  Again, this was related to a handling of a death.  The patient was a 91 year old woman who suffered a perforated oesophagus during an endoscopy procedure in December 2017.  The Trust failed to tell the family that the death might have been caused by a mistake in the procedure, did not share details of what happened after the unsuccessful procedure and failed to apologise to the family within a reasonable time frame.

The effect on the family in these circumstances  was significant.

It is important to note that the Trust admitted breaching Regulation 20 of the Health & Social Care Act which brought in the duty of candour although it did say that it was fully compliant elsewhere.

It is worth noting that the duty for candour has been in place for many years.  Somehow I doubt that there are only two notable cases where Trusts have failed to comply.

It is important to note that the duty of candour remains even in the midst of the pandemic.  It has to be accepted that it is likely to take longer for a response from any legal department because there are competing time commitments . Nevertheless the current emergency does not mean that a hospital or a trust can evade its obligations in relation to the duty of candour.

Although the duty of candour has been in place  for some time it has to be said that the responses by trusts have not been as helpful as perhaps could have been anticipated.  Whether the recent prosecution will be sufficient to re-emphasise the matter to trusts is a difficult point.  The level of fine (which was the maximum) clearly was not going to be significant enough to have a financial impact on a Trust even if that was considered to be desirable.  Some adverse publicity may encourage more compliance but it is noteworthy that the District Judge in the case indicated that the maximum penalty guidelines were not sufficient in this instance to cover the distress caused to the family.  In those circumstances, although it is good to see the CQC taking matters forward, it is likely that their ability to bite at a trust for not complying is somewhat limited.

It remains to be seen whether during the current emergency the CQC has the resources, the time, or the enthusiasm quite frankly, to take these issues forward again for other trusts that may well be breaching their duty of candour on a fairly regular basis.  The jury is out as to whether the duty of candour is an effective tool.  Currently, it appears to be fairly piecemeal.

The hope was that the duty of candour would make a difference to claims and to costs.  Currently it is not clear it achieves either.  That is a great tragedy for clients and patients who deserve better.