The duty of candour; being open, honest and transparent
DENTAL BULLETIN, ISSUE 62
When the CQC comes to inspect your practice, they will be looking to see if you are complying with the duty of candour. You therefore need to show you have policies and practices in place that meet this requirement.
However, it doesn’t end there. The duty of candour is also a legal requirement and if breached your practice could be open to criminal prosecution. It is therefore important that you and your staff practice what you preach.
In this article we explain what the duty of candour is and provide some practical tips to help you comply with this requirement.
The duty of candour was introduced into the CQC inspection regime as a result of the Francis Report, which looked at the failures of care at Mid Staffordshire NHS Foundation Trust. In particular, the report recommended:
Openness – enabling concerns and complaints to be raised freely without fear and questions asked to be answered.
Transparency – allowing information about the truth -of performance and outcomes to be shared with staff, patients, the public and regulators.
Candour – any patient harmed by the provision of a healthcare service is informed of the fact and an appropriate remedy offered, regardless of whether a complaint has been made or a question asked about it.
As such from 1st April 2015 every dental practice now needs to show they are complying with the duty of candour when they are inspected by the CQC.
What is the Duty of Candour?
Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 states:
Registered persons 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.
This requirement is placed on the provider registered with CQC. It is not an individual requirement. However, dental professionals still have a professional duty to report colleagues to the GDC if they have concerns.
It places a positive duty on providers to report to patients when a notifiable safety incident occurs.
What is a Notifiable Safety Incident
A Notifiable Safety Incident is an unintended or unexpected incident that results in:
– The death of the patient, where the death relates directly to the incident rather than to the natural course of the patient’s illness or underlying condition; or
– Severe harm, moderate harm or prolonged psychological harm to the patient.
It does not include ‘near misses’.
The CQC has given examples and in the dental context the case studies include an overdose of midazolam as a sedation agent and severe hypochlorite extravasation during endodontic treatment.
How do you notify a Patient?
– Notify the patient as soon as reasonable practicable if a notifiable safety incident has occurred and provide reasonable support to the patient;
– Notify the patient in person;
– Provide an account, which to the best of your knowledge is true, of all the facts you know about the incident as at the date of the notification. Remember to explain in a way that the patient will understand;
– Advise the patient what further enquiries into the incident you believe are appropriate;
– Include an apology. This is not the same as accepting legal liability;
– Keep a written record securely in relation to the incident.
Once you have notified the patient in person you must follow this up in writing. Keep a copy of this with your log of notifiable safety incidents.
What if you cannot contact the patient or the patient refuses to be contacted? You will need to keep a record of this also. We recommend setting out what attempts you have made to contact the patient.
You cannot report the incident to anyone else unless you have either express or implied consent to do so. You will need to assess this on a case by case basis. The exceptions to this are:
a. on the death of the service user;
b. where the service user is under 16 and not competent to make a decision in relation to their care or treatment, or
c. where the service user is 16 or over and lacks capacity in relation to the matter;
In the above circumstances you can report the incident to a person acting lawfully on behalf of the service user. You cannot therefore automatically report to the family, simply because the patient has died. They must be ‘lawfully acting’ on behalf of the service user. Again you will need to assess this on a case by case basis.
– Lead by example – the CQC requires you to be ‘well-led’ and so this should start from the top down;
– Put in place policies and procedures – this ensure all staff know what they must do should a notifiable safety incident occur;
– Train staff – when staff join the practice train them on your policies and procedures. Don’t just stop there; provide refresher training either in staff meetings or externally.
– Monitor staff – this can be done via appraisals where training needs can be identified. If an incident does occur consider if that member of staff needs more training, performance manager or disciplinary action;
– Make it easy for patients to report incidents – this may sound counter intuitive but putting notices on your website, in reception and even in surgeries so patients come to you first. This can help prevent the situation escalating to the GDC, CQC or a solicitor.
Laura Pearce, Senior Solicitor