The call for evidence on the statutory duty of candour and government proposals to regulate NHS managers

The Department of Health and Social Care (‘DHSC’) launched a call for evidence on the statutory duty of candour (‘the duty’) for health and social care providers in England in April 2024. The duty has been in operation for 10 years and places a direct obligation on organisations to be open and honest with patients and service users and their families when something goes wrong with their treatment, known as a ‘notifiable safety incident’ (‘NSI’).

This call for evidence forms part of a wider review of the duty, which was announced by the government in response to the Hillsborough disaster report.

The survey aimed to find out:

• the extent to which the purpose of the duty is understood
• the extent to which the criteria and thresholds set out in the duty are understood
• whether and how the duty is complied with, monitored, and enforced
• any challenges limiting the proper application of the duty
• suggested improvements.

A total of 261 responses were received from patients, service users, families and caregivers, healthcare professionals, healthcare providers, healthcare regulators and healthcare organisations.

Main findings

The DHSC published the findings of the survey on 26 November 2024, which can be summarised as follows:

• 34% of patients or service users felt that the purpose of the duty is clear and well understood, compared to 45% of health or care professionals
• 71% of patients or service users did not think providers know of and understand the duty’s requirements, compared to 53% of health or care professionals
• 39% of health and care professionals said that the duty is correctly complied with when an NSI occurs, compared to 31% of organisations. 0% of respondents who are family members and only 4% of patients or service users believed that this was the case.
• 94% of patients or service users disagreed that providers engage meaningfully and compassionately with those affected after an NSI, compared to 27% of health or care professionals
• 39% of health and care professionals agreed that the harm thresholds for trusts and services regulated by the Quality Care Commission (‘CQC’) are clear and well understood, compared to 28% of organisations. 11% of the respondents who are family members and only 10% of patients or service users believed that this was the case.
• 31% of health and care professionals and 30% of organisations thought that health and care providers are correctly categorising and recording NSIs which trigger the duty. Only 7% of family members and 3% of patients or service users agreed with this
• 38% of health and care professionals and 30% of organisations said that providers have adequate systems and senior level accountability for monitoring the duty’s application and supporting organisational learning 
• 52% of all respondents did not think that the CQC has adequately regulated and enforced the duty. Only 16% of organisations, 2% of patients or service users and 3% of family members felt regulation and enforcement of the duty was adequate
• when asked what challenges limit the proper application of the duty, respondents commonly referred to the wider culture, noting that it should move away from being focused on blame and instead focus on safety, openness, and transparency
• when asked to provide suggestions to better meet the policy objectives of the duty, responses focused on a shift in culture away from avoiding blame and towards openness and transparency, increase in education, increase in accountability, and introduction of stricter consequences for non-compliance with the duty.

The full publication can be found here.

Prominent themes

It is undeniable that perceptions of the duty vary extensively by role. Respondents who were patients, service users, family members or caregivers were much more critical of the duty and its application, compared to health and care professionals and organisations.

The findings revealed three prominent themes:

1. A focus on the culture of the health and care system. Some respondents believed there to be a culture of blame, as well as a culture of covering up incidents, falsification of records and dismissal of complaints. Some respondents reported instances where staff were empathetic and aimed to follow the process, but senior management did not support them and they feared being considered a ‘whistleblower’ and not being protected.
2. Inconsistency in understanding and applying the duty. Some respondents said that whilst the overarching purpose and principal of the duty is clear, many respondents felt that there is an inconsistent understanding of the duty across provider types, locations, and roles. Some even considered the duty to be an impersonal tick-box exercise, characterised by standard wording and templates, rather than one of compassion.
3. The lack of and need for further training. Respondents considered that some groups of staff such as non-clinical, new or agency have less knowledge of the duty. There was also reference to confusion between organisational and professional duty of candour, as well as variations in staff interpretation of criteria for triggering an NSI.

What to do next?

In light of the above we would recommend you consider the following:

• review your Duty of Candour policy to ensure it is up to date and easy for staff, patients and families to understand;
• ensure there is triangulation between incidents, complaints, claims and inquests to identify themes and trends and ensure lessons are learnt and improvements can be demonstrated
• training for staff is vital to ensure they understand the duty.

Please do not hesitate to contact our team at Weightmans if we can help you with these recommendations.

Regulation of NHS Managers

The government has launched a further public consultation to gather views from managers, regulators, patients, the public, healthcare staff and employing organisations, on options and considerations for the regulation of NHS managers.

The consultation will contain questions on the possibility of delivering a professional duty of candour for NHS managers and leaders, and on the existing statutory (organisational) duty of candour in respect of managers. It will also seek views on making managers accountable for responding to concerns about the provision of healthcare patient safety.

Some of the possible options being considered are:

• accredited voluntary register
• statutory barring mechanisms
• full statutory registration.

The staff groups to which this may apply include chairpersons, non-executive directors, and managers and leaders at all levels.

The consultation closes on 18 February 2025. It is understood that the government will consider both the call for evidence on the duty and the further consultation to inform ongoing policy development on the duty in healthcare.

Follow the link for further information and look out for details of our upcoming webinar in January 2025.

Author

This insight was authored by Maisie Heeley, a Trainee Solicitor on our Regulatory Healthcare team. If you have any queries regarding this article, please contact Maisie: maisie.heeley@weightmans.com