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Potential for confusion about doctors’ different duty of candour obligations

Hospital doctors will need to distinguish between contractual and statutory duties, says MDU

Caroline White

Friday, 28 November 2014

There’s potential for confusion about hospital doctors’ statutory and contractual duties in light of new regulations on the duty of candour, which came into force yesterday, suggests medical defence body, the MDU.

The duty of candour regulation applies to providers regulated by the Care Quality Commission (CQC), and is distinct from the draft guidance for a 'duty of candour' that has been produced by the General Medical Council and the Nursing and Midwifery Council.

The duty of candour regulation aims to ensure that an open, honest and transparent culture prevails, particularly when things go wrong in trusts, foundation trusts, and special authorities regulated by the CQC.

It applies to organisations, rather than individuals, but the CQC guidance is clear that NHS staff must cooperate with it to ensure the duty is met. And hospital doctors will play a major part in their organisation's compliance with the new legal requirements, says the MDU.

Under the statutory duty of candour, NHS bodies in England must tell patients promptly about ‘notifiable patient safety incidents’, apologise, and explain what further enquiries will take place. This duty will be extended to primary care in April 2015.

The MDU has issued advice explaining how the new duty will sit with its members’ existing ethical duty to be open and honest if things go wrong, and with their organisation's contractual duty of candour.

“Being open and honest will be second nature to most doctors who are ethically required to apologise and provide an explanation to patients when an incident occurs,” commented  Dr Michael Devlin, MDU head of professional standards and liaison.

“Doctors may wonder how the new duty sits alongside their existing duties, including the contractual duty of candour that applies in NHS organisation whose services are commissioned under a post-April 2013 standard NHS contract,” he continued.

“They will remain at the heart of ensuring patients are told when something goes wrong and may often be their organisation's representative under the statutory duty,” he explained.

“Clinicians need to know that, unlike their ethical duty, which applies to all circumstances where a patient is harmed when something goes wrong, the statutory duty of candour only applies to incidents where a patient suffered (or could have suffered) unintended harm resulting in moderate or severe harm or death or prolonged psychological harm,” he said.  

“And the statutory duty of candour is slightly different to the contractual one, so there is potential for confusion among doctors, managers and patients about when and how each duty applies,” he suggested.

He continued: "Doctors will need to continue to tell patients when things go wrong and not delay because of any uncertainty as to whether a statutory or contractual duty of candour has been met.

“They will also need to cooperate with their organisation's policies and procedures, including the requirement to alert the organisation when a notifiable patient safety incident occurs. Careful note-taking will be important as will completing the appropriate paperwork if the duty applies.”

Meanwhile, thefit and proper persons requirement  for executive and non-executive directors of NHS trusts also came into force yesterday.

This regulation aims to ensure that appropriate checks are carried out before a job offer or appointment is made, including whether the person is of good character, is physically and mentally fit, and has the necessary qualifications, skills and experience for the role, says the CQC.

The duty of candour and fit and proper persons requirement for directors are part of new fundamental standards, the remainder of which will apply from April 2015.

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