Duty of Candour – NHS Trust fined for failing to be open to patient’s family

A doctor holds a patient's hand

An NHS trust in England has become the first in the country to be fined for failing in its legal duty to be open and honest with patients and their families about mistakes.

University Hospitals Plymouth NHS Trust pleaded guilty to failing in its ‘duty of candour’ following the tragic death of a 91-year-old patient. She had suffered a perforated oesophagus during an endoscopy in December 2017.

What is the ‘duty of candour’?

NHS bodies have a legal duty of candour. Healthcare professionals (including doctors, nurses and midwives) also have an ethical duty of candour. The legal duties arise under the Health and Social Care Act 2008 (Regulated Activities), Regulations 2014.

All healthcare professionals (including doctors, nurses and midwives) must be open and honest with patients when something goes wrong with their treatment or care.  If something goes wrong, healthcare professionals must tell the patient (or their carer or family) what has happened and:

  • Apologise;
  • Offer to put matters right (if possible);
  • Explain the short and long-term effects.

An apology is not an admission of liability. People should not avoid apologising because they worry it might prevent them defending a claim.

When should a patient be advised that something has gone wrong with their care?

Since the 2014 regulations, NHS bodies have been legally required to act in an open and transparent way if there is a ‘notifiable safety incident’. This is an unintended or unexpected incident that could result in, or appears to have resulted in:

  • Death (not due to the ordinary course of the patient’s illness or condition);
  • Moderate harm (e.g return to surgery, unplanned re-admission to hospital or extra time in hospital);
  • Severe harm (described as a permanent lessening of bodily, sensory, motor, physiological or intellectual function. This includes, for instance, amputation, organ damage, brain damage and other serious harm);
  • Prolonged psychological harm.

Patients must be told regardless of whether anyone is at fault. The duty does not apply when there is only a ‘low level’ of harm or a near miss.  This is regrettably. The airline industry has learned a lot from investigating near misses. Failing to do so is a lost opportunity to learn from mistakes.

In April 2015 the legal requirement was extended to cover all other care providers registered with the Care Quality Commission. This includes NHS and independent hospitals, GPs and adult social care providers (e.g care homes).

University Hospitals Plymouth NHS Trust’s failure to uphold its duty of candour

Plymouth magistrates court heard that the Trust at first said the endoscopy caused ‘no significant harm’. This was despite the patient dying during what should have been a straightforward procedure.

The Trust eventually apologised to the family, but the court said that apology lacked remorse. For failing to provide a full explanation or apology, the Trust was fined £12,565.

Woman with her hand on a mans back

Why is the Duty of Candour so important?

Patients and their families are entitled to know when things go wrong, and the duty respects that right.

It is also important to acknowledge mistakes and understand what went wrong, as without doing this it is impossible to learn lessons and improve care. The duty of candour is therefore essential in ensuring mistakes are not repeated.

If staff are concerned that being open about mistakes will lead to more claims, research suggests the opposite. People say they are less likely to bring clinical negligence claims when doctors are open and honest with them. Only 20% of patients bringing claims are primarily seeking damages.

Unfortunately, internal investigations are often slow. This is unsatisfactory for patients and their families. Poorly worded apologies, as was the case in Plymouth, can also harm patient and doctor relationships.

The conviction in this case is an important reminder to healthcare professionals and trusts to investigate incidents properly and provide full explanations when things go wrong.

We are always happy to review Serious Untoward Incident Reports/Root Cause Analysis Reports that you or a family member may have received to see whether there may be grounds to make a claim for clinical negligence.

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