Duty Of Candour Research Articles

Will the new Duty of Candour fulfil its potential to be the biggest breakthrough in patients’ rights and patient safety in history?

Will the new Duty of Candour fulfil its potential to be the biggest breakthrough in patients’ rights and patient safety in history?

Honesty will always be the best policy.

Under the draft code nurses and midwives must comply with a proactive duty of candour, informing patients and relatives when care may have caused harm, acting immediately to put things right, and responding honestly to complaints and investigations.

How much will Mid Staffordshire Public Inquiry change things?

The dust is finally beginning to settle following the Government’s response to the Francis report, and we are beginning to see what is actually going to change as a result. A few things still need to be bottomed out of course – not least the question of whether England introduces a full statutory Duty of Candour or some pale shadow of it, which could actually make things worse. This was discussed in some detail in a previous issue. At the time of writing, an announcement has yet to be made about this. However, whilst we eagerly await the Government’s decision – arguably the most central and important potential outcome from the inquiry – some things are becoming clearer. The Government has made much of accepting the ‘vast majority’ of Francis’ recommendations. However, a closer look shows that many of these are accepted ‘in principle’, but the Government is actually going to do something rather different from what was recommended, if anything at all. Perhaps, the most noticeable changes have come in the approach to regulation, the need for which was so graphically exposed by the inquiry. Whilst some of the details of the recommendations such as merger of Monitor with the Care Quality Commission (CQC) were not accepted, the main thrust at least was taken to heart. We are already beginning to see a completely different approach from the CQC. A beefed-up inspection regime; a willingness to engage with and act on intelligence from patients and whistleblowers; and a much more open and principled style of leadership. Some of the disappointments were the refusal to accept recommendations about introducing guidance on minimum staffing levels or to bring in regulation of healthcare assistants. These are decisions which I fear may come back to haunt ministers. Questions about staffing levels and skill mix, and indeed the effect of 12-hour shift patterns are, I fear, going to remain a huge issue. Even more so due to the strain on resources. The issues are commonly a red hot topic of debate in Wales, which has been facing its own Stafford-style scandals. More of that later. Action against Medical Accidents (AvMA)

Duty of candour review calls for wider reporting of harm

Hospitals should have a statutory duty to report even 'moderate' harm caused to patients, according to an independent report into a proposed duty of candour published last week.

The future for Medico-Legal disputes – a patient perspective

This article, taken from a presentation to the Medico-Legal Society, discusses the prospects for patient safety and access to justice in the wake of the Mid Staffordshire NHS Foundation Trust public inquiry and the Legal Aid Sentencing and Punishment of Offenders Act. Particular reference is made to the arguments for and against a statutory Duty of Candour; clinical negligence litigation; patient complaints and specialist advice and support for people affected by medical accidents.

Patent Office Contested Proceedings and the Duty of Candor

The implementation of post-grant trial proceedings in the U.S. Patent and Trademark Office is one of the most significant aspects of the Leahy-Smith America Invents Act. Practitioners have a great deal of new subject matter to master, including the governing statutes and rules, and instructive Patent Trial and Appeal Board decisions. All of this new law is superimposed, however, on an existing legal landscape relating to the practitioner’s duty of candor and potential consequences for candor violations. Furthermore, the new law creates additional candor and disclosure obligations specifically applicable in post-grant contested proceedings.This paper discusses the “old” and “new” candor obligations of practitioners – their sources, their reach and applicability, and the potential consequences for their breach – in the context of the representation of clients in the new USPTO post grant contested proceedings. It identifies several examples of statements and conduct in post-grant proceedings that may particularly implicate the practitioner’s duties of candor and/or disclosure and, accordingly, warrant heightened care on the part of practitioners (registered and unregistered) and parties who participate in the new proceedings.

A duty of candour: A change in approach

This article (written in April 2013) considers the observations and recommendations made in the Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry as to a duty of candour and, in particular, the recommendation that there should be a statutory duty of candour imposed on healthcare providers, as well as on registered medical practitioners, nurses and other registered professionals, who believe or suspect that patient treatment or care has caused death or serious injury. The article details the Government's initial response to such recommendations, in which it indicated an intention to introduce a statutory duty for health and care providers, and sets out the contractual duty of candour that is currently included in the NHS Standard Contract for 2013/14 (SC35). There is then an analysis of the terms of the contractual duty contrasted with those of the proposed statutory duty; a look at the limitations of the contractual duty; a discussion of some of the issues that may arise in relation to when the relevant duty (either contractual or statutory) will be triggered; a consideration of the apparent novelty of a statutory duty of candour in English law; and a brief discussion in relation to the potential remedies, penalties and offences that may be adopted if such a statutory duty comes into force. In conclusion, on any basis the imposition of the contractual duty of candour and the intention to introduce some form of statutory duty heralds a new era in relation to candour in healthcare.

Will the promised statutory ‘Duty of Candour’ be worthy of the name ‘Robbie’s Law’?

Will the promised statutory ‘Duty of Candour’ be worthy of the name ‘Robbie’s Law’?

The Clinical Disputes Forum code to candour

Medical authorities have historically either been silent or circumspect about the role of candour in clinical relationships. Hippocrates told doctors to abstain from doing harm, not entertaining the possibility that they might be negligent, while in 1847 the American Medical Association declared that doctors have: ‘a sacred duty … to avoid all things which have a tendency to discourage the patient and depress his spirits’. Being candid about an injurious mistake in the course of treatment would no doubt discourage even the worldliest of 19th century patients. However, in recent years, the focus has shifted: doctors in 21st century have an obligation to disclose even the most depressing of mistakes. This modern ‘duty of candour’ is found in a mish-mash of moral principles, regulatory guidelines and contractual agreements but following the Francis Report it will be buttressed by statute.

Duty of candour

Duty of candour

Proposed “duty of candour” breaches pharmacists’ human rights, says Royal Pharmaceutical Society

Proposed “duty of candour” breaches pharmacists’ human rights, says Royal Pharmaceutical Society

A duty of candour imposed from above is not enough

A duty of candour applies when things have already gone wrong. This is intended to reduce further distress by preventing institutions and their employees trying to conceal their errors. The story of Robbie Powell’s death at the age of 10 years provides a harrowing example of how the devastating distress from the death of a child can be compounded and prolonged for all concerned by a lack of candour. However, by far the greatest tragedy was that a child died due to a breakdown in communication.

Duty of candour

Duty of candour

A statutory duty of candour: The pros and cons of imposing the duty on individuals

In the wake of the Mid Staffordshire Public Inquiry, this paper considers the arguments for and against the imposition of a statutory duty of candour on individuals, examining the validity of claims that such a duty would result in greater secrecy among healthcare professionals and lead to defensive practice. Examination of arguments for imposing an individual duty, highlights the pre-existing moral obligation on healthcare professionals to inform patients who have suffered harm, has not yet been sufficiently embedded throughout the NHS by professional codes of conduct, and the need to establish systematic formalised error reporting in order to continue to minimise clinical error.

Duty of candour and the definition of moderate harm for radiation overexposure and exposures much greater than intended in diagnostic radiology.

On 1 April 2013, a new standard National Health Service (NHS) contract came into use for all organizations commissioning NHS healthcare services, with the exception of services commissioned under primary care contracts. The contract requires all NHS and non-NHS providers of services to NHS patients to comply with a duty of candour. This requirement arose from a recommendation of the Francis Report into the failings at Mid-Staffordshire NHS Foundation Trust.1 Under this duty of candour, if a reportable patient safety incident occurs or is suspected to have occurred, the healthcare provider must give information on the affected patient(s) about the incident and conduct an investigation within 10 days. Only incidents resulting in moderate or severe harm or death are covered by this contractual duty. Harm is defined using the definitions provided in the National Patient Safety Agency (NPSA) document “Seven steps to patient safety”.2 The question arises as to how exposures much greater than intended reported to the Care Quality Commission under the Ionising Radiation (Medical Exposure) Regulations 2000 (IRMER)3 or patient overexposures reported to the Health and Safety Executive under the Ionising Radiations Regulations 1999 (IRR)4 should be interpreted within this definition of harm, so that the duty of candour can be complied with appropriately. This article makes some pragmatic proposals for numerical patient dose thresholds that could be taken as broadly corresponding to the definition of moderate harm required to trigger the duty of candour. It is accepted that the concept of a firm link between the numerical values of radiation exposure and the actual harm is questionable, as explored by the International Commission on Radiological Protection (ICRP) when originally developing the concept of an index of harm.5 The broader question regarding the range of possibilities for causing harm by radiological misdiagnosis is not covered in this discussion, and it should be emphasized that justified high patient doses are by definition not incidents and would, therefore, never trigger the duty of candour as defined above.

Duty of candour is enough, says Hunt

Duty of candour is enough, says Hunt

Legal advice

Richard Griffith on the duty of candour

Better protection for nursing: reporting poor practice

The government has responded to criticism about a legal loophole in the protection of those who report poor practice in the interest of the public. The gap in protection, which limited any liability for the detrimental treatment of whistleblowers to their employers and excluded detriment caused by co-workers, threatened to derail plans for the introduction of a duty of candour on healthcare providers as recommended by the Francis Report. In this article, the author describes how changes to the law set out in the Enterprise and Regulatory Reform Act 2013 will improve protection for nurses who report poor practice and explains the role of Public Concern at Work in providing advice and support to nurses who wish to report poor practice.

Statutory duty of candour rejected.

The government is holding off from agreeing to criminal sanctions for NHS staff who fail to be open and transparent about poor care.

Duty of candour requires better protection for nurses

The report of the Mid Staffordshire NHS Foundation Trust public inquiry has a statutory duty of candor at its heart and the requirement for openness and transparency running through most of its 290 recommendations. While many will consider such a legal duty essential if a repeat of the Mid Staffordshire scandal is to be avoided, the duty is unlikely to be effective unless nurses can discharge their obligations without fear of recrimination. This article argues that current protection for nurses who report poor practice is inadequate and must be improved if the openness and transparency recommended is to become a reality in the NHS.