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Published On: June 21, 2024 | Blog | 0 comments

Duty of Candour – does it work?

Following the infected blood scandal – much publicity has been given to the idea of a general duty of candour extending to all those involved with public service . There are many who believe that the government, senior civil servants and administrators should have a general duty of candour. But what is it and does it work?

Put simply -the duty of candour is a general duty to be open and transparent with people . There are two types of duty of candour, statutory and professional. Currently it applies to health professionals .

Both the statutory duty of candour and professional duty of candour have similar aims – to make sure that those providing care are open and transparent with the people using their services, whether or not something has gone wrong. The duty of candour requires registered providers of health services  to act in an open and transparent way with people receiving care or treatment from them. Health professionals should admit when there have been problems  or errors.

The duty of candour came in in 2014 as a result of failings in clinical care and the realisation that patients were not routinely told of problems, particularly (but not exclusively)when the issue resulted in an injury.   There was a culture of maintaining a discrete silence or plainly ignoring issues. This was not universal but it was certainly very common.

Since 2014 therefore, there have been duty of candour investigations to consider the circumstances and outcomes of care.  It is all very laudable but does it make a difference?

My experience is that is doesn’t make as much difference as often as it should. Occasionally now I receive (when specifically asking for them)  documents which highlight problems that have happened.  Occasionally clients get a full letter explaining what went wrong and why.  When I have a collection of medical experts confirming things should have been handled differently however, I don’t always have a report from the NHS which echoes at least some of the comments. Of course, much as I would like to, the NHS will not always agree with our experts, which they are entitled to do. But there is really quite a disparity between what sometimes I would expect to be in the documents and what I receive and not in a way that is helpful to Claimants.

For example, I have a client who attended the Emergency Department daily over three days complaining of pain and numbness in his foot, a sign he could have a problem with the blood supply.  He was sent home on occasion one and two on the basis that his GP should review if it hadn’t resolved within 48 hours. On the second presentation it was very clear he was having significant problems.  Ultimately when he presented the third time, by which time his foot was critical, he was admitted, transferred to a major London hospital and  had an amputation. The question for us is really is the second attendance – surely somebody should have taken a more careful view as to whether it was appropriate for him to be discharged or whether indeed he should have been admitted and transferred.  No one thought about the previous attendances, the developing problems and the  time critical element of a foot with  a deteriorating blood supply.

The duty of candour document merely says referral earlier would have been desirable, it could have been done,  but it wasn’t essential. It has lessons to learn but it rather vague about the past care . It is a detailed document which clearly took a great deal of time to prepare but it doesn’t say what it should in my view.

If you take the view of the family who have had to live with this , they have to deal with a Trust which  in essence says this  isn’t an ideal world, we could have done more but we will make sure we do better next time.  I’m not sure how that helps them. A duty of candour document is only as good as the willingness of those who prepare it to be candid, honest and forthcoming.

Perhaps the trust think they are being as honest as they can with these investigations.  What they are actually doing is closing down some clients who will feel that it has been investigated and they have no case. Unless those people are either fairly resilient or they come into contact someone or something that pushes them to go further, they can give up before they have actually begun.

Everyone  will no doubt  applaud the idea that there should be a duty of candour in public life. It should not  just be limited to the medical,  nursing or the other healthcare professional involved. We can all hope that the duty of candour makes a difference, but the reality is that in many of the cases that we are getting actually it is providing a detailed document which does simply not have the information and the critical approach that claimants want.

The duty of candour is a step forward but it is not a panacea. There is a long way to go before the culture of organisations changes.

I continue to seek duty of candour reports and there is usually something of assistance in them, but they take a long time and they often do not actually answer the question that the claimant actually wants to have answered.  We will have to wait and see whether Sir Brian Langstaff’s version of duty of candour going forward is more helpful, but the medical and nursing professions in particular need a good deal more education and training in putting together documents that are actually answering the concerns, worries and fears of the claimants that we represent.  We are ten years into the process and the claimants are still waiting.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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