It is three years since the statutory duty of candour was introduced for primary care organisations registered with CQC in England and earlier this year, the duty was also introduced in Scotland.
While the duty of candour applies to specific situations when something goes wrong during treatment, individual doctors have long had an professional duty to be open and honest with the patient and to try to put things right.
A key difference is that that the threshold of harm triggering action by healthcare bodies in the statutory duty is higher than the professional duty. In the MDU’s experience, this can be confusing. Another important difference is that the statutory duty applies at an organisational rather than an individual level.
Under the duty of candour in England a patient safety incident is notifiable if it meets the following criteria 'in the reasonable opinion of a healthcare professional':
- An unexpected or unintended patient safety incident appears to have resulted in:
- Death (where this relates directly to the incident rather than the natural course of the disease);
- impairment of the patient’s sensory, motor or intellectual functions for a continuous period of at least 28 days;
- changes to the structure of the patient’s body;
- prolonged pain or psychological harm; and
- shortened life expectancy.
- Requires treatment to prevent the patient’s death or any injury which would lead to one or more of the outcomes above.
In Scotland the duty is similar and includes unexpected or unintended incidents not due to the natural progression of the disease that resulted in:
- a patient's death
- severe harm such as permanent lessening of bodily, sensory, motor, physiologic or intellectual functions (including removal of the wrong limb or organ or brain damage)
- harm, which is not 'severe harm', but which results in:
- an increase in the patient's treatment
- changes to the structure of the patient's body
- shortening of the patient's life expectancy
- impairment of sensory, motor or intellectual functions of the patient which has lasted (or is likely to last) for at least 28 days continuously
- pain or psychological harm that has lasted (or is likely to last) at least 28 days continuously.
- treatment required by a registered health professional in order to prevent the patient’s death or other outcomes listed above.
In Scotland, a doctor or other healthcare professional not involved in the incident needs to make the decision about whether the incident meets the threshold.
The Welsh government has consulted on introducing a statutory duty of candour and work is ongoing in this area. There is a provision in the NHS (Concerns, Complaints and Redress)(Wales) Regulations 2011 – regulation 12(7) – that has an effect that is very similar to a statutory duty of candour.
The regulation says that where a healthcare provider determines that there has been moderate or severe harm to a patient or death, the provider must advise the patient, or his or her representative, and involve the patient, or representative, in the investigation of the concern.
The duty of candour procedures in England require the patient to be notified as soon as possible after an incident (in Scotland the government’s guidance says that it is good practice for this to be within 10 days of the procedure start date) and for a face-to-face meeting to be arranged so information can be shared with the patient.
Along with an apology, an explanation should be given of further steps that are necessary to understand what went wrong. The patient should be provided with a written report of what was found, including any learning points and actions taken.
Apologising is an important part of the duty of candour, but apologising to patients and those close to them when things go wrong, whether the duty applies or not, is plainly the right thing to do. It fosters mutual trust and respect which forms the bedrock of the professional relationship.
An apology is not an expression of liability or an implicit acceptance of fault. When apologising, it’s best expressed in simple terms. The following general points may be helpful to bear in mind.
Speak in the first person
Speak and write as you would in a natural conversation – in the first person. 'I am very sorry that there was a delay in diagnosing your diabetes' will sound more sincere and less defensive than, 'the practice wishes to express regret for the delay'.
Set the scene
It will often help to explain (as fully as you can, bearing in mind that further investigation into what happened may be necessary) what exactly occurred. Once there is context, an apology can naturally flow.
Think about privacy and body language
Saying the right words, but standing over a patient with arms folded may not seem like an apology at all. Take time – choose a quiet moment to speak to the patient, with open body language and perhaps just one other colleague there.
A meaningful apology is a dialogue
Saying sorry is part of a process, and it is important to ensure that patients or their representatives can ask questions. Sometimes patients would prefer not to hear from the person involved in the incident that went wrong; conversely, some patients may prefer to have the opportunity to meet the staff member. It’s important to be receptive to such wishes and to be prepared to respond to questions.
Take one step at a time
You may be concerned that what you say in an apology may be harmful if there is a subsequent complaint or claim. The MDU’s experience is that the opposite tends to be true. The reasons patients make a complaint or bring a claim are complex, but a culture of openness coupled with a sincere, timely apology may go some way to preventing them in the first place or reaching an earlier resolution.
Discussions with patients after something has gone wrong can be challenging, but it’s a good starting point to understand an apology will do more good than harm to your professional relationship with the patient.
If you are ever in doubt about what to say to a patient, or how to say it, speak to the MDU or your medical defence organisation for advice.
- Dr Devlin is MDU head of professional standards and liaison