So far, commentators have focused on the interplay between clinical negligence law and the Duty of Candour. But the latest requirements also have important repercussions for those in regulated professions such as doctors and nurses and their employment relationships. In this article, we look at steps which employers should now consider in light of the new Duty of Candour.
The new Duty of Candour is found in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which came into force from 27 November 2014. This places a requirement on providers of health and adult social care to be open with patients when things go wrong.
The 2014 Regulations introduce a Duty of Candour as a fundamental standard to be met by “health service bodies”. This currently includes NHS trusts, foundation trusts and some special health authorities who carry on regulated activities and are regulated by the CQC. It is understood that the Duty of Candour will be extended to all other CQC-registered providers from April 2015. However, this will require further legislation.
What is the duty?
There is a general duty under Regulation 20(1) on all health service bodies to be open and transparent with service users about their care and treatment.
The 2014 Regulations also impose a more specific and detailed duty to notify and provide “reasonable support” to a service user (or, in certain circumstances, a person acting on their behalf) where any harm to a service user from their care or treatment is above a certain harm threshold.
What is the “harm threshold”?
The specific duty under Regulation 20(2) is triggered where there has been a “notifiable safety incident”. This means an unintended or unexpected incident which results in moderate harm, severe harm, prolonged psychological harm or death, where death relates directly to the incident.
These harm thresholds are very similar to those which trigger the contractual Duty of Candour on organisations that provide services under NHS Standard Contract.
When the Duty of Candour is introduced for adult social care providers, the Government Consultation makes it clear that they will use the existing CQC notifiable requirement “for serious injuries” (under regulation 18 of the Care Quality Commission (Registration) Regulations 2009) to identify when a disclosure under the Duty of Candour is required.
What are the consequences for failing to comply?
It is a criminal offence to fail to notify a service user (or other relevant person) following a notifiable safety incident, with the consequence of a fine up to £2,500.
What should employers do?
Where the new Duty of Candour applies to an employer, it should consider the following steps:
1. Review contracts of employments and disciplinary policies
Responsibility for ensuring that the Duty of Candour is fulfilled will rest with numerous employees, many of whom will be in regulated professions. No doubt organisations subject to the Duty of Candour will consider it to be an act of misconduct (and often gross misconduct) if an employee causes or contributes to any breach. In most cases, existing contract of employments and disciplinary policies are likely to define “misconduct” and “gross misconduct” with sufficient breadth that any such actions (or inaction) would fall within these definitions. However, an employer would find it easier to justify dismissal (or other disciplinary action) if contracts and disciplinary policies were updated to reflect the Duty of Candour and its importance.
2. Promote awareness of the Duty of Candour
Similarly, employers should consider raising the profile of the Duty of Candour and specifically informing employees that any breach, or contribution to a breach, would be a disciplinary offence which could result in dismissal. Again, this would make it easier for employers to justify any subsequent disciplinary action.
3. Update whistle-blowing policies
Employers should ensure that employees are clear about the importance of reporting breaches or possible breaches of the Duty of Candour. In addition to training, whistle-blowing policies should be updated to set out clear mechanisms (and protection) by which employees can report their concerns.