Our position on the Duty of candour

The contractual duty of candour was introduced into standard NHS contracts in England in 2013 and applies to organisations, rather than individuals. It requires that patients or their relatives be told about moderate or severe harm, or incidents that result in death, and recognises it is almost always doctors who do this

Since the publication of the Francis report, the Secretary of State has asked David Dalton and Professor Norman Williams to conduct a review focussed primarily on the duty of candour threshold for health provision.

Below is a letter from Anna Bradley, Chair of Healthwatch England, to Professor Williams and Mr Dalton on Healthwatch England’s perspective on the important commission they have been given by the Secretary of State to review the scope or the proposed extension to the Duty of Candour.

As you will know, Healthwatch England is the consumer champion in health and social care. We welcomed the Government’s proposed expansions to the duty of candour which was announced on 19th November 2013. As I told the Minister of State for Care and Support, Rt. Hon. Norman Lamb MP, in my advice to him on 8th November 2013, the introduction of an organisational duty will be an important step in protecting people from harm and increasing openness and transparency in treatment and care.

Having seen an early set of draft regulations and having regard to the CQC’s current reporting requirements on patient safety issues, we are concerned that the threshold at which a duty of candour would be set and urge you to recommend candour in all incidents of moderate harm and worse. We also ask you to recommend a statutory duty of candour applying both to individuals and organisations, which we believe would be the clearest and best articulation of the principle.

The right to honest information about one’s treatment should not be limited to those who have suffered severe or fatal injury. Any level of harm can have profound ramifications for the person who suffers it, as well as for that person’s family. Additionally, we have seen repeated examples of minor harm escalating into serious harm, because the person was unaware of the condition and thus could not take corrective actions.

Applying the duty to only the most serious of cases would mean significant incidents could still be covered up resulting in the tragic failings documented in the reports of Sir Robert Francis QC, Sir Bruce Keogh, Professor Don Berwick, Rt. Hon. Anne Clwyd MP and Professor Tricia Hart.

We also continue to believe that a statutory duty of candour is necessary, as anything weaker than this (i.e. the contractual duty or the professional codes of candour and openness) will not act as a sufficient deterrent to, and safeguard from, poor practice.

Many alarming incidents relating to candour have come to light after the implementation of the professional and contractual duties, and we have serious concerns about the potential for differential application of the duty across the professional regulators under the proposed new regime.

We believe that a universal statement on candour would be a far more powerful tool for creating the cultural intervention needed to promote greater openness and transparency in health and social care. We also believe that efforts to improve training to protect and support staff in applying the duty will be crucial in making sure that the duty is realised in practice, and serves as a powerful force for protecting patients’ rights.

If you would like to discuss this further or require any more detail do not hesitate to contact me.

Best wishes,

Anna Bradley
Chair, Healthwatch England

Our Chair, Anna Bradley, has also written to the Secretary of State, Norman Lamb MP clarifying our position on the duty of candour.

In addition, our Chief Executive, Katherine Rake, has written to David Dalton and Professor Norman Williams to share Healthwatch England’s views before the review on the proposed extension of the duty of candour.