Although the duty of candour aims to ensure events surrounding patient harm are discussed openly, compliance need not be daunting, says Peter Walsh.
The Department of Health has decided to introduce a contractual duty of candour – a requirement for staff of NHS and foundation trusts to be open and honest with patients or their families about patient safety incidents that cause harm. However, the decision to limit this duty to a mere contracting issue is shrouded in controversy.
Patient groups, led by Action against Medical Accidents (AvMA), and many other stakeholders have consistently and vociferously called for the same kind of statutory, enforceable duty that applies to other essential standards of quality and safety. The government has accepted that something more meaningful than merely issuing guidance needs to be done so NHS trusts will be under a contractual obligation to their clinical commissioning group to live up to the duty of candour. Patient groups will watch like hawks to see how the duty is implemented, monitored and enforced.
In most cases of a patient safety incident resulting in harm, trusts are open and honest with the patient or family, but there are a small but significant number of cases when this does not happen. Neither the government nor the proponents of a statutory duty believe setting a rule, either in statute or contract, will in itself change culture and behaviour but, if accompanied by appropriate education, training, support and intervention, it will be a powerful catalyst for change. Tolerating the situation while frowning on it is no longer an option.
Excellent guidance and training already exists in the form of the National Patient Safety Agency’s Being Open guidance and accompanying support materials and packages. The difference now is that living up to this is a must rather than optional good practice.
The Department of Health has not yet announced when the clause in providers’ contracts will be introduced but here are some suggestions of how trusts and clinical commissioning groups can be ready.
Build awareness: Let your board know the change is coming and the organisation will be held to account if it does not comply with the duty. Explain that, as well as non-compliance having serious financial and relational consequences with commissioners, following the Being Open principle is fundamental to building a positive patient safety culture.
Build enthusiasm for rolling out awareness through the whole organisation. Refresh and circulate your Being Open policy; if you don’t have one, agree one fast – you are already non-compliant with the relevant Patient Safety Alert.
Train staff: Determine how many of your staff have had Being Open training. Set a budget aside to roll it out for all staff and management teams with responsibility for care. Packages are available that were developed by the NPSA. Contact other organisations such as AvMA, which may be able to help. Circulate the Being Open guidance to all staff.
Review and amend your incident reporting system: Under the terms of your registration with the Care Quality Commission, you have a statutory obligation to report to the National Reporting and Learning System incidents that have caused harm. A question about informing patients/relatives can be added to the form used to report incidents (that is, the form an individual member of staff submits, one for organisation-wide data or both). The question could be: “Has the patient or their next of kin been fully informed about the incident in line with the trust’s Being Open policy?” Record and report the data on this at board meetings.
Audit what is happening in practice: As well as monitoring and reporting on the data from incident reporting as above, carry out periodic audits of complaints and litigated cases. Analyse the audits for instances of a divergence from Being Open. Report the results openly to the board.
Be prepared to take action where necessary: When you encounter instances of the Being Open framework not being followed, do something about it. Make sure the situation is rectified, the patient fully informed and the staff member(s) made aware they are in breach of trust policy.
In serious cases involving cover-up, falsification or lies (perhaps rare but they do happen) do not be prepared to take disciplinary action. Any health professional acting in this way is in breach of their professional code and should be referred to their regulator. Report all incidents openly to the board.
Celebrate success: Being open when things go wrong and cause harm can be the most difficult thing anyone in healthcare ever has to do in their career. If someone does it well, it can have a therapeutic effect on them, their colleagues and the people directly affected by a medical accident. Celebrate good practice and share it with others.
Get evidence trusts are doing the above: Clinical commissioning groups should take action if trusts are failing and support them where they are struggling. Report all this openly and publicise that you will investigate patients’ or families’ complaints about breaches of the duty.