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Duty of Candour

Fourteen years ago, an inquiry was launched in to Hyponatraemia-related deaths in Northern Ireland hospitals. On Tuesday 31 January 2018, the chairman of the investigation, Mr Justice O'Hara delivered their findings and 96 recommendations including the establishment of a duty of candour. 

While a medical body and or medical professional will hold a duty of care to those charged under their care, a duty of candour imposes a duty to tell patients and their families about failures in care and to give a full and honest explanation. 

Fortunately for those living in England and Wales there already exists a statutory duty of candour pursuant to s. 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014-2939 ("the Regulations"). This regulation requires that medical service providers must act in an open and transparent way toward service users in relation to the care and treatment they receive.

The Regulations provide that when a medical service provider becomes aware of a "notifiable safety incident" they must, as soon as reasonably practicable, notify the relevant person that the incident occurred then provide reasonable support to the person in relation to the incident.

This leads to three questions; what is a notifiable safety incident, how should it be reported, and what should the notification include?

A Notifiable Safety Incident will include any unintended or unexpected incident occurring before, during, or after the delivery of medical treatment to the patient. The incident will be in services provided by NHS funded treatment or privately funded treatment, whether it is primary care, cosmetic, dental or any other treatment by a registered medical person or body.

In a situation where the medical services were provided by a medical body, this incident must (in the opinion of a health care professional) have resulted in, or appears to have resulted in death, severe harm, moderate harm or prolonged psychological harm of the patient.

A notifiable Safety Incident for a medical person will be the same as the medical body above but also be extended to include situations where there has been:

  • impairment of the sensory, motor or intellectual functions of the patient which has lasted, for a continuous period of at least 28 days;
  • changes to the structure of the patient's body;
  • prolonged pain or prolonged psychological harm;
  • a shorting of the patients life expectancy; or
  • a requirement to provide a preventative treatment which, if left untreated, would result in any of the above outcomes.

Therefore, in the unfortunate circumstances where a person has experienced any of the above while being provided services by a medical service provider (body or person), that provider must provide an account to the patient which is to their best knowledge true of all the facts known about the incident. The provider must advise what further enquiries are appropriate and they must include an apology.

If someone believes to have suffered an injury or received medical treatment which may have exasperated their injury, they have the right to follow the medical service providers complaints procedure. This can vary depending on the type of service and whether it was an NHS funded treatment. When in doubt a person should always seek independent legal advice.

  

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