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Duty of Candour - 10 Mark University Answer (Surgery PG)
Definition
The Duty of Candour is the professional and legal obligation of healthcare professionals and organisations to be open, honest, and transparent with patients (or their families/carers) when something goes wrong during their care that has caused, or has the potential to cause, harm or distress - regardless of whether a complaint has been made or a question asked.
In the words of Robert Francis (Francis Inquiry, 2013):
"Any patient harmed by the provision of a healthcare service is informed of the fact and an appropriate remedy offered, regardless of whether a complaint has been made or a question asked about it."
Historical Background and Legislative Origin
| Milestone | Year | Significance |
|---|
| Francis Report (Mid Staffordshire NHS Scandal) | 2013 | Recommended statutory duty of candour (Recommendation 181); exposed systematic cover-up of patient harm |
| Keogh Report | 2013 | Identified hospitals with high mortality; reinforced need for transparency |
| Berwick Report | 2013 | Advocated openness and learning culture in NHS |
| Health & Social Care Act 2008 (Amendment) Regulations - Regulation 20 | 2014/2015 | Introduced statutory duty of candour for all NHS bodies (April 2014); extended to all CQC-registered providers from April 2015 |
| GMC + NMC Joint Guidance "Openness and Honesty When Things Go Wrong" | 2015 (updated Dec 2024) | Defined professional duty for all registered doctors and nurses |
(Scott-Brown's Otorhinolaryngology, Vol. 1; Bailey & Love, 28th Ed.)
Two Distinct Duties
1. Professional Duty of Candour (Individual Obligation)
Applies to every registered healthcare professional (GMC, NMC). It requires the doctor to:
- Be open and honest when something goes wrong with a patient's treatment
- Offer an apology promptly
- Explain fully what happened and the likely short-term and long-term effects
- Put matters right if possible
This applies even when the complication is a known, foreseeable risk that was consented to - if it materialises, the doctor still has a duty to be candid. As Bailey & Love states: "Merely because the division of a ureter during hysterectomy appears as a foreseeable complication on a consent form cannot negate the duty to be candid should it occur."
2. Statutory (Organisational) Duty of Candour (Institutional Obligation)
Regulation 20 of the Health & Social Care Act 2008 (Amendment) Regulations 2015 imposes a legal duty on organisations (NHS Trusts, independent hospitals, GP practices) to notify and apologise to patients when a notifiable safety incident occurs.
Three Core Concepts (Robert Francis Definitions)
- Openness - Enabling concerns and complaints to be raised freely without fear; questions must be answered honestly
- Transparency - Sharing accurate information about performance and outcomes with staff, patients, the public, and regulators
- Candour - Proactively informing any patient harmed by healthcare, and offering an appropriate remedy, whether or not asked
Threshold for Triggering the Duty
Statutory Duty - Notifiable Safety Incidents
The statutory duty is triggered when a safety incident results in:
- Death (not expected as a result of the underlying condition)
- Severe harm - permanent significant harm
- Moderate harm - significant but not permanent
- Prolonged psychological harm (lasting >28 days)
What is EXCLUDED from the Duty
The duty of candour applies to safety incidents caused through the provision of care. It does NOT apply to:
- Complications of the disease itself (e.g., a patient with rectal cancer developing DVT from the cancer - not a care-related incident)
- Recognised complications that occur as part of the natural course of a patient's illness or underlying condition
- Foreseeable outcomes where no error occurred
Key surgical distinction (Bailey & Love): If the same patient, admitted for elective resection, develops a postoperative DVT because the unit's 28-day LMWH protocol was not prescribed - a duty of candour IS owed, as something went wrong in the delivery of care.
The Duty of Candour Process - Step by Step
For Low-Harm Incidents (Professional Duty)
Step 1: Detect the incident and, where possible, act immediately to put things right
Step 2: Notify the patient - acknowledge the incident, factual explanation of known facts, verbal apology
Step 3: Record details in the clinical notes
For Notifiable Safety Incidents (Statutory Duty - RCS England Framework)
Step 1 - Incident Detection and Initial Response
- Detect the safety incident
- Act immediately to prevent further harm
- Make initial severity assessment and report through local governance processes
- Acknowledge the incident verbally with a factual explanation and verbal apology
- Explain that further information will follow after investigation
Step 2 - Team Discussion
- Multidisciplinary team review of the incident
- Establish the facts; involve clinical governance/risk management
Step 3 - Formal Notification and Open Disclosure
- Provide written apology following verbal apology
- Explain fully the short-term and long-term effects
- Offer an appropriate remedy or support
- Explain steps to be taken to prevent recurrence
- Record all details of the discussion in the patient's clinical record
Step 4 - Follow-Up Actions and Process Completion
- Formal investigation (Serious Incident review, Root Cause Analysis)
- Maintain all documentation and correspondence in the patient's record
- Provide ongoing support to the patient and family
- Share final investigation findings with the patient
(RCS England, Duty of Candour guidance; Scott-Brown's Vol. 1)
Who Should Have the Conversation?
- Notification and apology are undertaken by one or more representatives of the Trust
- Should be a senior clinician familiar with the patient's care
- As most surgery is multidisciplinary, local candour policy applies to all staff with key roles
- The surgeon directly involved should ideally be present
- Trust medicolegal team or patient safety officer may advise but should not replace the clinical conversation
Practical Aspects for the Surgeon
- Timing - Should not give an immediate "knee-jerk reaction" before full facts are known; but should inform the patient that an adverse event has occurred and is being investigated without delay
- Fault is not required - The obligation to be candid persists regardless of whether fault or substandard care has occurred; fault and causation require investigation
- Apology is not an admission of liability - Under the Compensation Act 2006 (UK), an apology is not of itself an admission of negligence
- Documentation - Every conversation must be documented in the notes; written apology must follow the verbal one
- Involve the patient's family/carers - Where appropriate, especially if the patient lacks capacity or has died
Ethical Underpinning
The duty of candour is rooted in all four pillars of biomedical ethics:
| Principle | Relevance |
|---|
| Autonomy | Patients have a right to know what happened to their body - "nothing about me without me" |
| Beneficence | Being honest supports healing, reduces anxiety, and maintains therapeutic trust |
| Non-maleficence | Denial of truth causes additional emotional harm to already injured patients |
| Justice | Patients deserve fair access to accurate information, especially when they are victims of harm |
Consequences of Breach
- GMC fitness to practise proceedings - Failure to be candid can lead to regulatory action and erasure
- CQC enforcement action against the organisation
- Increased litigation risk - Patients who discover information was withheld are more likely to sue
- Loss of trust - Undermines the doctor-patient relationship
- Criminal liability - Knowingly providing false information is a criminal offence under the regulations (for organisations)
Duty of Candour vs Apology vs Consent
| Concept | When | Purpose |
|---|
| Informed Consent | Before treatment | Autonomy; patient decides based on risks/benefits |
| Duty of Candour | After harm occurs | Openness, honesty, and accountability post-event |
| Apology | During/after candour | Acknowledgement of harm; not admission of fault |
Summary Points for Examiner
- Duty of candour = professional (individual) + statutory (organisational) obligation
- Triggered by harm caused by healthcare delivery - NOT by complications of the disease itself
- Arose from the Francis Report (Mid Staffordshire scandal, 2013); statutory since 2015 under Regulation 20
- Key elements: inform, apologise (verbal then written), explain, support, document, prevent recurrence
- Fault does not need to be established before the duty applies
- An apology is not an admission of negligence (Compensation Act 2006)
- Applies even to foreseeable, consented-to complications that materialise
- Failure to comply: GMC proceedings, CQC enforcement, litigation risk
- Ethically grounded in patient autonomy, beneficence, non-maleficence, and justice
- Promotes a culture of safety and learning rather than blame
Key Sources: Bailey & Love's Short Practice of Surgery (28th Ed.), Scott-Brown's Otorhinolaryngology Head & Neck Surgery (Vol. 1), Royal College of Surgeons England - Duty of Candour Guidance, GMC/NMC Joint Guidance "Openness and Honesty When Things Go Wrong" (updated December 2024),
Francis Inquiry Report 2013.