The Duty of Candour in Social Care

duty of candour in social care

The duty of candour in social care is a legal obligation for care providers to be transparent and honest with patients and their families when something goes wrong with their care or treatment. This duty aims to foster a culture of transparency and accountability within health and social care services.

When a safety incident occurs, providers must inform the patient or their family as soon as possible, offering a sincere apology and a clear, comprehensible explanation of what went wrong, how it happened, and its immediate effects. They must also inform patients or their families about the investigation process and the results once the investigation is concluded, explaining the steps being taken to prevent similar incidents in the future. All communications regarding the incident must be documented in writing, and a written apology and summary of the incident and actions taken must be provided.

Support for the patient and their family is also crucial, including offering necessary psychological support and further information about additional steps or rights the patient or family may have. The duty of candour in social care builds and maintains trust between patients, families, and healthcare providers, demonstrating a commitment to patient safety and quality care. It encourages healthcare providers to learn from mistakes and improve practices, helping to identify and address systemic issues within healthcare settings.

The duty of candour applies to all healthcare providers, including hospitals, care homes, and individual practitioners. It is particularly relevant in cases where incidents result in significant harm or have the potential to affect the quality of life or care of the patient. By adhering to this duty, healthcare providers not only comply with legal requirements but also promote a culture of continuous improvement and person-centred care.

The Background to the Duty of Candour in Social Care

Until 2014, there was no legal duty on care providers to share information with individuals who had been harmed or their families. This lack of legal obligation was starkly highlighted by the tragic case of Robbie Powell. His parents’ determined pursuit of justice through the UK courts and eventually the European Court of Human Rights exposed the absence of such a duty. Additionally, in 2013, the Francis Inquiry uncovered significant failures in openness and transparency at Mid Staffordshire NHS Foundation Trust. The inquiry criticised the Trust’s handling of avoidable deaths, noting that despite commitments to candour and rectifying wrongs, there was a tendency within the system towards concealment, formulaic responses, and avoidance of public criticism.

 

The Francis Inquiry recommended the introduction of a statutory duty of candour in social care, supplementing the existing professional duty of candour and the requirement for candour in the NHS standard contract. This recommendation led to the establishment of a statutory duty of candour in 2014 for NHS Trusts and in 2015 for all other providers. This duty is now regarded as a vital component of a safe, open, and transparent culture within healthcare. It is so closely associated with the principles of openness and transparency that related policies and procedures are often known by names such as ‘Being Open’, ‘Saying Sorry’, and ‘Just Culture’.

Saying Sorry

A crucial part of the duty of candour is the apology, which should not be viewed as an admission of liability. This principle applies across health and social care, and both public and private sectors. Often, the absence of a timely apology is what drives individuals to pursue legal action. To meet the duty of candour, it is essential to apologise for the harm caused, irrespective of fault, and to be open and transparent about the incident.

NHS Resolution, the organisation managing clinical negligence claims against the NHS, reinforces this in their ‘Saying Sorry’ leaflet. The leaflet clarifies that apologising does not affect indemnity cover. It emphasises that saying sorry is always the right thing to do, is not an admission of liability, acknowledges that something could have been better, and is the first step in learning from the incident to prevent its recurrence.

Notifiable Safety Incidents

Notifiable safety incidents in care are specific events related to patient safety that health and social care providers must legally report to regulatory bodies. These incidents typically involve harm or the risk of harm to patients or service users. In the context of healthcare in England, the Care Quality Commission (CQC) outlines these requirements under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Examples of notifiable safety incidents include any unexpected death of a patient while under care, where the death may have resulted from the care provided or from a failure in the care process. Incidents that result in a patient experiencing permanent or long-term harm that significantly impacts their life, such as the loss of a limb or severe brain injury, are also reportable. Additionally, events leading to significant but not permanent harm to a patient, requiring intervention or prolonged recovery, such as a serious infection or significant surgical complications, fall under this category. Incidents causing psychological trauma lasting at least 28 days, resulting from the care provided or an adverse event in the care setting, must also be reported. 

Situations where a safety incident could have occurred but was prevented before any harm happened, known as near misses, are often reported to improve safety protocols and prevent actual harm in the future. Furthermore, certain incidents outlined by regulations, such as medication errors, surgical mistakes, or failures in medical equipment, are also considered notifiable.

Reporting these incidents is crucial for ensuring transparency, accountability, and continuous improvement in care quality. It helps regulatory bodies monitor and investigate care providers, ensuring they meet safety standards and implement necessary improvements to prevent future incidents.

Which Incidents Must be Reported to HSE?

In the UK care industry, certain incidents must be reported to the Health and Safety Executive (HSE) under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 2013. These include work-related deaths that occur as a result of a work-related incident or occupational exposure. Specified injuries to workers also need to be reported, which encompass serious injuries such as fractures (excluding fingers, thumbs, and toes), amputations, injuries that cause permanent loss or reduction of sight, serious burns, scalping requiring hospital treatment, and loss of consciousness caused by head injury or asphyxia.

Additionally, any injury that results in a worker being unable to perform their normal work duties for more than seven consecutive days must be reported. Work-related illnesses, including certain occupational diseases like carpal tunnel syndrome, severe cramp of the hand or forearm, occupational dermatitis, occupational asthma, tendonitis or tenosynovitis, and any disease attributed to an occupational exposure to a biological agent, are also reportable.

Dangerous occurrences, which are specific events with the potential to cause significant harm, must be reported as well. These events include the collapse or failure of lifting equipment, explosions, fires causing work stoppage for more than 24 hours, accidental release of a biological agent likely to cause severe human illness, and electrical short circuits or overloads causing fire or explosion.

If a member of the public is injured in connection with a care activity and is taken directly from the scene to a hospital for treatment, the incident must be reported. Gas incidents, where someone has died, lost consciousness, or been taken to hospital due to a gas leak or exposure, also fall under this requirement. 

Reporting these incidents to the HSE is essential for monitoring workplace safety, enforcing regulations, and developing strategies to improve health and safety standards within the care industry.

Which Incidents Must be Reported to the CQC?

In the care industry, certain incidents must be reported to the Care Quality Commission as mandated by the Health and Social Care Act 2008 Regulations 2014. These reportable incidents include any unexpected death of a patient while under care, particularly if the death may have resulted from the care provided or from a failure in the care process.

Serious injuries that significantly impact a patient’s life, such as permanent or long-term harm like the loss of a limb or severe brain injury, must also be reported. Additionally, incidents leading to significant but not permanent harm, requiring medical intervention or prolonged recovery, such as a serious infection or surgical complications, fall under this category. Incidents causing prolonged psychological harm, which lasts at least 28 days, must be reported if they result from the care provided or an adverse event in the care setting.

Near misses, or situations where a safety incident could have occurred but was prevented before any harm happened, are also important to report. These help improve safety protocols and prevent actual harm in the future. Specific incidents outlined by regulations, such as medication errors, surgical mistakes, or failures in medical equipment, are required to be reported as well.

Reporting these incidents to the CQC is crucial for ensuring transparency, accountability, and continuous improvement in care quality. It helps the CQC monitor and investigate care providers, ensuring they meet safety standards and implement necessary improvements to prevent future incidents.

The Duty of Candour in Social Care and Safeguarding

The duty of candour and safeguarding are two critical aspects of healthcare that, while distinct, often intersect to ensure the protection and well-being of patients and service users.

The duty of candour in social care refers to the legal obligation of healthcare providers to be open and honest with patients when something goes wrong that causes or has the potential to cause significant harm. 

Safeguarding, on the other hand, involves measures and practices aimed at protecting individuals, especially vulnerable populations such as children, elderly people, and those with disabilities, from abuse, neglect, and harm. Safeguarding policies ensure that any concerns about the well-being of these individuals are promptly and appropriately addressed.

The relationship between the duty of candour and safeguarding becomes evident when an incident involves harm or the risk of harm to a vulnerable individual. In such cases, healthcare providers must fulfil their duty of candour by being transparent about the incident with the patient or their representatives while also adhering to safeguarding protocols. This means that any disclosure of harm must also trigger a safeguarding response to ensure the safety and protection of the individual involved.

For example, if a patient in a care home suffers harm due to neglect, the care provider must inform the patient and their family about what happened, apologise, and explain the steps being taken to prevent future occurrences. Simultaneously, the incident must be reported to the relevant safeguarding authorities to ensure that protective measures are put in place and that a thorough investigation is conducted to prevent further harm.

While the duty of candour in social care focuses on transparency and accountability in the event of an incident, safeguarding ensures that measures are in place to protect individuals from harm. Together, they create a comprehensive approach to maintaining high standards of care and ensuring the safety and well-being of patients and service users.

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