Our medical negligence clients tell us time and time again how the thing they want most isn’t compensation, but an acknowledgment of failing and an honest explanation of why the mistake happened in the first place.
In fact there is an obligation for medical professionals to be honest and transparent if there has been preventable medical negligence – otherwise known as Duty of Candour - enshrined in law. This legal guide explains what Duty of Candour legislation is and the consequences if medical professionals fail to abide by it.
What is the Duty of Candour?
Duty of Candour is the responsibility of a medical professional to inform a patient if they believe they have been a victim of preventable harm because of medical error.
The hope is that, by doing this, the medical professional can quickly sort out what went wrong and make sure similar errors do not happen again, rather than ignore the issue and let it develop into something more serious and/or happen again.
How does Duty of Candour relate to Duty of Care?
Medical professionals have a Duty of Care to safeguard their patients’ health, taking reasonable precautions to limit – as far as is possible – the risk of medical negligence.
Most of the time there isn’t a problem, but accidents do sometimes happen and the Duty of Candour means the medical professional must inform the patient of the error and apologise as soon as possible, as well as seek to redress the negligence, such as through follow up surgery.
Is Duty of Candour a legal requirement?
Yes – but this wasn’t always the case. While the idea of honesty and transparency has been an unwritten rule within healthcare for years, and while the vast majority of medical professionals followed it, much was left open to individual interpretation.
That’s why the Care Quality Commission (CQC) introduced Regulation 20: Duty of Candour which came into force in November 2014. This created a formal procedure for medical professionals to follow, which was enshrined in law. There is now legislation around Duty of Candour for NHS staff and it came in for other bodies regulated by the CQC in March 2015.
The regulations define negligence – or in the CQC’s words a ‘notifiable safety incident’ - as ‘an unintended or unexpected incident… that could result in, or appears to have resulted in the death of a service user… or severe or moderate harm or prolonged psychological harm to the service user’.
There is no legal obligation for a medical professional to inform a patient of incidents that cause a ‘low level of harm’, such as minor or short-term harm or ‘near misses’, but it is good practice to be open and to learn from all incidents.
What happens when a patient is told about an incident of negligence?
Patients will be informed by a medical professional, ideally as part of a face-to-face meeting, although this may not always be possible. This should happen as soon as is reasonably possible after the error occurred and should be followed up by a written account of what happened and an apology.
The communication should detail steps to rectify the negligence for the patient’s health, as well as wider steps to ensure it doesn’t happen again. The patient should also be made aware of any investigations and the results of these, as well as support services should they need them.
What happens if a medical professional fails to fulfil the Duty of Candour legal obligation?
A breach of the Duty of Candour can lead to the organisation facing regulatory action from the CQC. In severe cases, such as fatalities, there may be criminal prosecutions too.
Patients who believe their medical professional failed to adhere to Duty of Candour legislation can raise this with that individual or, failing that, they can issue a formal complaint to the relevant department. If those avenues fail, independent bodies, such as Action against Medical Accidents (AvMA), may be able to help.
It is important to note that reporting Duty of Candour breaches do not have an impact – positive or negative – on any civil compensation claim, which should be discussed with a medical negligence legal expert such as the team at Thompsons Solicitors.
Making a claim
If you have suffered as a result of medical negligence, you might be able to make a compensation claim. Contact us on 0800 0 224 224 or start a claim online.