REGULATION

Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 20: Duty of Candour

RELEVANT CHAPTER

Whistleblowing

This chapter was added to the MAPP in November 2018.

1. Introduction

Duty of candour relates to the organisation being open and transparent with people who use its services and other relevant people (that is those who are acting lawfully on the person’s behalf) in relation to care and treatment. The organisation should be open and honest when things go wrong.

It applies to all NHS trusts, foundation trusts, special health authorities and all other service providers or registered managers.

Specific requirements must be followed in relation to an adult’s care and treatment, including:

  • Informing people about all notifiable safety incidents that result in harm ;
  • providing reasonable support;
  • providing truthful information;
  • giving an apology if procedures have not been followed or things go wrong.

2. Openness and Transparency

The organisation must promote a culture that encourages candour, openness and honesty at all levels. This is an integral part of a culture of safety that supports organisational and staff learning. This commitment to openness and transparency extends to all levels of the organisation, from senior and middle managers, care and support workers and ancillary staff, including temporary staff. These policies and procedures support a culture of openness and transparency, as they can be accessed by adults and their families as well as by staff.

Staff operating at all levels must understand their individual responsibilities in relation to the duty of candour, and are supported to be open and honest with adults and apologise when things go wrong. Staff should receive appropriate training, and there should be arrangements in place to support staff who are involved in a notifiable safety incident. In cases a manager is made aware that something untoward has happened, they should treat the allegation seriously, immediately consider whether this is a notifiable safety incident and take appropriate action (see Section 3, Notification Process following an Incident).

2.1 Bullying

The organisation should be committed to taking action to tackle bullying and harassment in relation to duty of candour, and must investigate any instances where a member of staff may have obstructed another in exercising their duty of candour. A possible breach of the professional duty of candour by staff who are professionally registered, including the obstruction of another in such a duty, may lead to an investigation, disciplinary action and referral to the Care Quality Commission and / or their professional body.

3. Notification Process following an Incident

When a notifiable safety incident has occurred, the adult and / or relevant person must be informed as soon as reasonably practicable after the incident has been identified.

The organisation should inform its regulator and / or commissioner of any unintended or unexpected incident that occurred in respect of an adult when providing regulated activity that, in the reasonable opinion of a health care professional:

  • appears to have resulted in:
    • the death of the adult, where the death relates directly to the incident rather than to the natural course of their illness or underlying condition;
    • an impairment of the sensory, motor or intellectual functions of the adult which has lasted, or is likely to last, for a continuous period of at least 28 days;
    • changes to the structure of the adult’s body;
    • the adult experiencing prolonged pain or prolonged psychological harm; or
    • the shortening of the life expectancy of the adult; or
  • requires treatment by a health care professional in order to prevent:
    • the death of the adult; or
    • any injury to the adult which, if left untreated, would lead to one or more of the outcomes mentioned above.

Where the degree of harm to the adult is not yet clear but may fall into the above categories in future, the adult and / or relevant person must be informed of the notifiable safety incident. There must be appropriate arrangements in place to notify the adult who is affected by an incident if they are aged 16 and over and lack the mental capacity to make a decision about their care or treatment. A person acting lawfully on behalf of the adult must be notified as the relevant person where they are under 16 and lack the mental capacity to make a decision regarding their care or treatment. A person acting lawfully on behalf of the adult must be notified as the relevant person, upon the adult’s death.

Other than the situations outlined above, information should only be disclosed to family members or carers where the adult has given their consent. A step by step account of all relevant facts known about the incident at the time must be given, in person, by one or more member of staff including a service manager as relevant. This should include as much or as little information as the adult and / or relevant person wants to hear, be jargon free and explain any complicated terms. The account of the facts must be given in a manner that the adult and / or relevant person can understand. Staff should consider whether interpreters, advocates, or other communication aids should be used, while being conscious of any potential breaches of confidentiality in doing so.

Staff must also explain to the adult and / or relevant person what further enquires they will make. One or member of staff should give a meaningful apology, which is an expression of sorrow or regret, in person, to the adult and / or relevant person. In making a decision about who is most appropriate to provide the notification and / or apology, the organisation should consider seniority, relationship to the adult, and experience and expertise in the type of notifiable incident that has occurred. Following the notification of the incident given face to face, the relevant person must receive written notification of the incident, even though enquiries may not yet be complete. This must contain all the information that was provided at the face-to face meeting, including an apology and as well as the results of any enquiries that have been made since. The outcomes or results of any further enquiries and investigations must also be provided in writing to the adult and / or relevant person through further written notifications, if they wish to receive them.

The organisation must make every reasonable attempt to contact the relevant person through all available means of communication. All attempts to contact the relevant person must be documented (see Section 5, Record Keeping). If the relevant person does not wish to communicate with the organisation or a senior manager, their wishes must be respected and a record of this must be kept. If the relevant person has died and there is nobody who can lawfully act on their behalf, a record of this should also be kept. The organisation is not required by regulation to inform an adult when a ‘near miss’ has occurred and the incident has resulted in no harm to that person.

4. Action following an Incident

The organisation must give the adult and / or relevant person all reasonable support necessary to help overcome the physical, psychological and emotional impact of the incident. This could include all or some of the following:

  • treating them with respect, consideration and empathy;
  • offering the option of direct emotional support during the notifications, for example from a family member, a friend, a care professional or a trained advocate;
  • offering help to understand what is being said, for example, through an interpreter, non-verbal communication aids, written information, Braille etc;
  • providing access to any necessary treatment and care to recover from or minimise the harm caused where appropriate;
  • providing the adult and / or relevant person with details of specialist independent sources of practical advice and support or emotional support / counselling;
  • providing the adult and / or relevant person with information about available impartial advocacy and support services, their local Healthwatch and other relevant support groups, for example Cruse Bereavement Care and Action against Medical Accidents (AvMA), to help them deal with the outcome of the incident;
  • arranging for care and treatment from another professional, team or provider if this is possible, if the adult and / or relevant person wishes;
  • providing support to access the organisation’s complaints procedure.

5. Record Keeping

The organisation must keep a record of the written notification, along with any enquiries and investigations and the outcome or results of the enquiries or investigations. Any correspondence from the adult and / or relevant person relating to the incident must be responded to in an appropriate manner and a record of communications should be kept.

6. Organisational Learning

The organisation should ensure a culture in which it learns from incidents at all levels in order to ensure the future protection and safety of adults who use its services.

7. Training and Support

Staff should receive appropriate training and there should be arrangements in place to support staff who are involved in a notifiable safety incident.