Duty of Candour Felicity Crockford Senior Legal Officer & Solicitor West Midlands & East Midlands

Objectives today What is ‘Candour’? The organisational duty The individual practitioner’s duty The practicalities Case studies

Historic attitudes to speaking up… Florence Nightingale, Notes on Nursing (1860) pages 92-93

…And learning from mistakes ‘A man should never be ashamed to own he has been in the wrong, which is but saying in other words that he is wiser today than he was yesterday’. Alexander Pope: Thoughts on Various Subjects

Francis Report Despite efforts in ECHR, no duty developed As a result and following Stafford Inquiry, Robert Francis wanted a duty of candour on individuals and organisations for cases involving death or serious harm What did Francis want?

Francis Inquiry – Duty of Candour Statutory ‘Duty of Candour’ Twelve recommendations considered openness, transparency and candour: Openness: Concerns raised and disclosed without fear and questions answered Transparency: Ensuring true information is being shared Candour: Ensuring that those harmed are informed of such and a remedy offered, regardless if complaint or not FOCUS: Providing an explanation Attack culture of silence

Francis Inquiry – Duty of Candour Consequences and effects: Increased examples of whistle blowing? Already covered by Code of Conduct? Extending to those not covered i.e. Managers and carers? Amendments to Code of Conduct to cover further? Further grounds for referral? More ‘conviction’ referrals for criminal aspect i.e. Conclusive of charge? Even more reliance of ‘upholding the reputation of the profession’ grounds? So, overall... Generally, closer scrutiny of nurses and more referrals to NMC and DBS...?

What is Candour? A professional duty to be honest with patients when things go wrong! What is candour? Recognising when an incident occurs that impacts on a patients in terms of harm Notifying the patient when something has occurred Apologising to the patient Supporting the patient further Following up the patients as your investigations evolve Documenting the above discussions and steps

When does it arise? When might is arise? Whilst the patient is an in-patient i.e. at the bedside When a patient is back home following discharge or via community based care Following the patient’s death

What does Candour look like? Open discussions between the patient and the healthcare provider when things go wrong Acceptance by healthcare staff that open conversations will take place at an early stage Reduction in overly defensive approaches to information sharing about incidents in relation to the patient in question Engaging the patient with the outcome of investigations; and An apology in relation to the incident

The Result in Practise There are two systems now in place which affect nurses: Organisational Statutory duty i.e. Government opted for a statutory organisational duty of candour (for cases of moderate harm and upwards) with sanctions in the criminal law Individual duty for registered practitioners i.e. Duty under NMC Code of Conduct

The Organisational Duty Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 Regulation 20 20(1) - A health service body must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity. Failure to comply can lead to sanctions placed on the organisation Staff have to comply with their employment duties For NHS organisations = November 2014 For organisations registered with the CQC = 1 April 2015

What is required? As soon as reasonably practicable after becoming aware that a notifiable safety incident has occurred a health service body must: (a) Notify the relevant person that the incident has occurred; and, (b) Provide reasonable support to the relevant person in relation to the incident

What are ‘notifiable safety incidents’? Any unintended or unexpected incident that occurred during regulated activity that in the reasonable opinion of a health care professional, could result in or appears to have resulted in: Death (when relates directly to incident and not as consequence of illness or underlying condition); or, Severe (permanent injury) or moderate harm (non-permanent); or Prolonged psychological harm to the service user (i.e. continuous period of at least 28 days)

What is ‘moderate harm’? Harm that requires a moderate increase in treatment and where there is significant, but not permanent, harm Eg. Unplanned return to surgery, extra time in hospital or as an out patient

What is ‘severe harm’? Permanent lessening or loss of function Can be bodily, sensory, motor, physiologic or intellectual functions, E.g. Removal of the wrong limb or organ or brain damage

What should be reported and how? The organisation must, as soon as reasonably practicable: Give an account in person to the patient/family member of all the facts known on that date; What further enquiries are being undertaken Should be an apology A written record kept and provided to the patient NB: If the relevant person cannot be contacted, record of all attempts to contact should be kept

The Individual Duty Registered practitioners Nurses = Governed by NMC Code of Conduct (2015) Preserving Safety

NMC Code of Conduct 2008 54 You must act immediately to put matters right if someone in your care has suffered harm for any reason. 55 You must explain fully and promptly to the person affected what has happened and the likely effects.

Current NMC Code - 2015 Section 14: Be open and candid with all service users about all aspects of care and treatment, including when any mistakes or harm have taken place 14.1 Act immediately to put right the situation if someone has suffered actual harm for any reason or an incident has happened which had the potential for harm 14.2 Explain fully and promptly what has happened, including the likely effects, and apologise to the person affected and, where appropriate, their advocate, family or carers 14.3 document all these events formally and take further action (escalate) if appropriate so they can be dealt with quickly.

Current NMC Code - 2015 Also… Section 16: Act without delay if you believe that there is a risk to patient safety or public protection Escalate concerns; raise if asked to act outside Code or competence; do not obstruct or prevent anyone who wants to raise concerns

Joint NMC/GMC guidance on Candour - ‘When things go wrong’ Sets out guidance on what is expected from doctors and nurses Reference to relevant parts of Code

Who should take responsibility? Acknowledge care usually given in teams i.e. MDT Not expect every member of team to take responsibility for reporting adverse incidents and speaking to patients if things go wrong. However: Do expect you to make sure that someone in the team has taken on responsibility Do expect you to support them as needed.

When to apologise and how? Not relate to incidents where patient’s condition gets worse due to the natural progression of their illness Rather, it applies when something goes wrong with a patient’s care and they suffer harm or distress as a result. Speak to the patient as soon as possible after you realise something has gone wrong Ensure someone around to support them Share all you know and believe to be true about what went wrong and why

What should be said? Ensure your apology is: In terms understood by the patient Done at a time and place to help ensure understood and retained Respect privacy and dignity Personal Details for contacting if any questions Record and follow in writing Patients are likely to find it more meaningful if you offer a personalised apology i.e. ‘I am sorry…’ Rather than a general expression of regret about the incident on the organisation’s  behalf.

What about near misses? Near misses = Adverse incident which has potential to cause harm but didn’t Near misses should be reported BUT you must use your professional judgement when considering whether to tell patients about near misses Balance damage to trust and confidence if do not tell vs. causing unnecessary distress and confusion

Potential issues Therapeutic non-disclosure When things go wrong that had been advised as risks while obtaining consent Self incrimination

Case Study Review NMC cases studies Moderate harm Severe harm Near miss What do you think?

Key Points Accountability Openness Transparency Responsibility Reflection Insight Prevention

Key contacts For information and advice contact RCN Direct: membership@rcn.org.uk 0345 772 6100 / (0)20 7647 3456 Read more: The NMC/GMC joint guidance on Duty of Candour: http://www.nmc.org.uk/standards/guidance/the-professional-duty-of-candour/read-the-professional-duty-of-candour/ NMC Duty of Candour – Case Studies: https://www.nmc.org.uk/standards/guidance/the-professional-duty-of-candour/