Over the past few years, public inquiries into the Mid-Staffordshire NHS Trust and other health crises, including, most recently, the Hyponatraemia Inquiry (2018) in Northern Ireland, have led to the demand that any culture of secrecy and cover up in public health must be challenged. The result has been a focus on making candour in health mandatory. Candour is defined by the Professional Standards Authority (PSA, 2019) as ‘being open and transparent when something has gone wrong’. Currently, nurses are affected by professional and statutory duties of candour. This article tracks the development of those duties, unpicks the slightly different requirements of each duty and discusses some considerations about the future role of candour in dealing with fitness to practise concerns at the Nursing and Midwifery Council (NMC). Additionally, it presents a commentary on the potential barriers and concerns for community nurses when complying with the duty.
History of the duty of candour
Nurses have been subject to a professional duty of candour under all recent versions of their code (NMC, 2018b), and the wording in the current code is as follows:
‘You [the nurse] must:
However, the 2013 Francis report on the failings uncovered at the Mid-Staffordshire NHS Trust public inquiry voiced doubts about whether the duty that healthcare professionals held under their respective codes of conduct was sufficient to break habits of concealment. The Francis (2013) report recommended that a duty of candour with greater teeth be put in place, commenting:
Unless steps are taken to evidence the importance of candour by creation of some uniform duty with serious sanctions available for non-observance, a culture of denial, secrecy and concealment of issues of concern will be able to survive anywhere in the healthcare system.
A debate ensued about whether the sanction of criminal consequences should be attached to individuals or organisations that fail to maintain this duty. Eventually, in November 2014, Regulation 20 of the Duty of Candour of the Health and Social Care Act 2008 placed a statutory duty on organisations registered with the Care Quality Commission (CQC) in England (Department of Health and Social Care (DHSC), 2014). These organisations ran the risk of criminal sanctions (fines and the threat of de-registration) if they failed to comply. Through inspection, the CQC can monitor whether organisations are compliant. The duty of candour became a more prominent concern for organisations and, consequently, for their nursing staff, and the hope was that a new open culture would follow.
Similar provisions came in to effect in Scotland on 1 April 2018 (Scottish Parliament, 2016; 2018). Similarly, a bill has been prepared in Wales, and the issue is under consideration in Northern Ireland.
Understanding the duty
When to report and how serious the harm must be
So, what is the duty on an individual nurse when something has gone wrong while caring for a patient?
The rules for the professional duty are set out in the duty of candour guidance ‘Openness and honesty when things go wrong: the professional duty of candour’, produced jointly by the NMC and General Medical Council (GMC) (2015) and available on their websites.
This guidance states that the professional duty to explain what has happened to a patient applies when something ‘goes wrong with their treatment or care and causes, or has the potential to cause, harm or distress’(NMC and GMC, 2015). Some professionals have commented that this threshold, for when an event or a near miss should be explained to the patient, is unclear as there is no measure of how serious the harm or distress has to be. They have stated that the decision to discuss the problem with the patient relies on the professional exercising their judgement, and the guidance does not provide much assistance (PSA, 2019).
The statutory, or organisational, duty on providers of healthcare services has more measurable thresholds of seriousness. The duty is to report back to the patient or relatives if there has been a ‘notifiable safety incident’, which is defined as:
‘any unintended or unexpected incident that … in the reasonable opinion of a healthcare professional could result in, or appears to have resulted in
Helpfully, further explanation about what these levels of seriousness mean in practice is provided, including this guidance about the meaning of moderate harm:
moderate harm confers ‘significant, but not permanent harm … that requires a moderate increase in treatment … [such as] an unplanned return to surgery, an unplanned readmission, a prolonged episode of care, extra time in hospital, cancelling of treatment or transfer to another treatment area such as intensive care’.
The organisational duty does not include a requirement to tell the patient about near misses, although this is recommended.
What must be reported, in what way and by whom?
The duty of candour involves providing an account of the facts that are known at the time, face-to-face if possible, as soon as possible after the mistake has been discovered. The practitioner should also advise on what further enquiries might need to be made and should make an apology.
The NMC/GMC guidance (2015) offers quite specific advice on how to make an apology that is meaningful, and points out that an apology does not mean that the practitioner is accepting legal liability for what has happened, nor that that practitioner is accepting any personal responsibility for the mistakes of others or for systemic failings.
The notification must be followed up in wr iting, containing the same infor mation as the face-to-face interview.
Helpfully, the guidance does reflect upon who should take responsibility for these actions, as follows:
We recognise that care is normally provided by multidisciplinary teams, and we don't expect every team member to take responsibility for reporting adverse incidents and speaking to patients if things go wrong. However, we do expect you to make sure that someone in the team has taken on responsibility for each of these tasks, and we expect you to support them as needed.
Community and district nurses will have to consider who is the most appropriate professional to engage with a patient or relatives. If a community nurse is to undertake the role, then they should have had training and access to local policies before undertaking the task, bearing in mind that the statutory responsibility lies with the employing organisation. The CQC expects the organisation to adequately prepare and have arrangements in place to support staff involved in a notifiable safety incident (CQC, 2017). The Royal College of Nursing (RCN) has witnessed instances of nurses contacting the college having been asked to prepare ‘the candour letter,’ and the college has advised them to seek further support from their employer, as it is the provider of the service that must take responsibility for this.
Barriers to candour and potential concerns for healthcare professionals
Healthcare staff worry that if they tell a patient or their family that something has gone wrong, then they might be making some sort of admission of guilt that will later mean that they will not be covered by their indemnifier or that may land them in trouble with their employer or regulator, or even the law. Certainly, in the past, indemnifiers have discouraged medical staff from making admissions that might be used by claimants seeking compensation for clinical negligence.
It is possible that a healthcare professional complying with their duty of candour will make an admission that might later be used against them in other proceedings. It is also the case that the law has protections against self-incrimination and, sometimes, this principle sits uncomfortably alongside a nurse's duty under the code to be candid and to co-operate with investigations. Any nurse who is concerned that they may face serious consequences following an incident should seek advice from their union or other legal representative.
However, it is the author's experience at the RCN that those who immediately alert others when something has gone amiss and who show full insight and involve themselves in ensuring that it will not happen again are the practitioners deemed safe by their employers and their regulator. On the other hand, those who are not candid at an early stage can be accused of concealment, which may be seen as a form of dishonesty leading to the harshest outcomes at the NMC.
For those working in the NHS, and, from April 2019, for those working in GP services, indemnity cover is administered by NHS Resolution, which has offered the reassurance that the NHS ‘will never withhold cover for a claim because an apology or explanation has been given’(NMC and GMC, 2015).
The NMC assures registrants that they will not be punished if they admit to, and show they have learned from, past mistakes, because this will support them in positively engaging with their professional duty of candour and help promote, rather than discourage, the kind of professional culture that has been shown to keep people safe (NMC, 2018a).
Conversely, the NMC (2018a) has identified ‘deliberately covering up when things go wrong’ as behaviour that seriously undermines patient safety. The direction of future practice is clear: a failure to be candid and comply with the technical requirements of the duty of candour will be severely frowned upon and could lead to a strike off by the NMC.
Conclusion
The new fitness to practise strategy under development by the NMC (2018a) is highly focused upon creating a more transparent learning culture by moving away from the ‘blame culture’ of old, and candour lies at the heart of this. Nurses in the community must ensure that they are familiar with the technical aspects of both the professional and statutory duties, and they must make sure that their employers have equipped them with the training and information to support them in exercising these duties properly.