In September 2020 the Care Quality Commission (CQC) successfully prosecuted University Hospitals Plymouth NHS Trust for breaching duty of candour policies. At Plymouth Magistrates' Court the Trust was ordered to pay a total of £12 565 in the case of an elderly patient who died following an incident during an endoscopy in 2017 (Morris, 2020).
This case was the first prosecution, but was not the first time that the CQC has fined an NHS trust for a breach of duty of candour regulations. In 2019 the Royal Cornwall Hospitals NHS Trust was fined £16 250 for failing to apologise to patients within a reasonable period after incidents (CQC, 2019).
Candour, implying honesty and truthfulness, lies at the heart of the Government's continued mission to implement contractual arrangements with the NHS for use when things go wrong with the provision of health care. Birks (2014) has suggested that as few as 30% of harmful errors may be disclosed to patients.
Duty of candour
The introduction of the duty of candour was part of the Government's plans to modernise the NHS by making it more accountable and transparent and it remains an enforceable duty for providers to carry out (Glasper, 2011).
It is said that to err is to be human and everyone now recognises that the reporting of incidents by nurses and other health professionals requires a just culture not a blame culture, where the human fallibility of all individuals is recognised. Being open with patients when something goes wrong is a key component of developing a safety culture; a culture where all incidents are reported, discussed, investigated and learnt from. Being able to acknowledge a patient safety incident (PSI), and then to apologise and explain why things went wrong, is fundamental to the duty of candour. The subsequent investigative process should be made fully transparent to the affected patients, their families and carers, with the key goal of learning lessons to help prevent such PSIs happening again. This did not happen at University Hospitals Plymouth NHS Trust when, following the endoscopy incident, it failed to disclose details relating to the procedure or to apologise to the family within a reasonable time frame, following the death of the patient after suffering a perforated oesophagus (Morris, 2020).
The prosecution of the Trust by the CQC was brought under the Health and Social Care Act's 2008 regulations 2014: duty of candour regulation 20, which enforces openness and transparency, and the timely provision of an apology to those receiving care or their families, in the event of a serious incident (CQC, 2017).
The introduction of regulation 20 and the duty of candour was a direct response to recommendation 181 of the Francis inquiry report into the events that occurred at the Mid Staffordshire NHS Foundation Trust. This recommended that a statutory duty of candour be introduced for health and care providers and that any patient harmed by the provision of a healthcare service must be informed of the fact and an appropriate remedy offered, regardless of whether a complaint has been made or a question asked about it (CQC, 2015).
Mid Staffordshire inquiry
Readers will remember that the public inquiry into events at the Mid Staffordshire Trust was steered by Queen's Council Robert Francis, who was commissioned to investigate the role of the commissioning, supervisory and regulatory bodies in the monitoring of this Trust (Francis, 2013). His inquiry investigated a plethora of incidents that took place between January 2005 and March 2009. Analysis of the data from that period revealed that there were between 400 and 1200 more deaths than would have been expected when compared with similar institutions (Francis, 2013).
The Francis report aimed to help the NHS learn from its failings and to undergo a process of improvement by fully encompassing a care philosophy that positively embraced patient-centred openness, compassion and learning when aspects of that care delivery go awry. The inquiry report showed that many patients and, indeed, the health professionals who cared for them, were betrayed by a hospital culture that put cost-cutting and target-chasing ahead of the quality of care delivery. A significant finding of the report related to staff shortages and skill-mix issues, especially among nurses, which were largely implicated in the substandard care delivered at the Trust.
The report also highlighted a lack of compassion among staff at the Trust, emphasising the enduring importance of Florence Nightingale's famous quotation in her Notes on Nursing published in 1859, aimed at probationary student nurses, ‘to do the sick no harm’ (Nightingale, 1970).
Cover-ups and whistleblowers
A recently published independent inquiry into the death of premature baby Elizabeth Dixon in 2001 has revealed a 20-year cover-up of mistakes by health workers. This report reveals that, following her death, her parents were met with indifference, rejection and outright deception instead of openness and honesty. Furthermore, the chair of the inquiry suggested that some of the healthcare staff had been ‘persistently dishonest’ (Kirkup, 2020).
At the core of the duty of candour is the promotion of honesty and truthfulness when things go wrong during care delivery. Subsequent to the publication of the Francis report, guidance on the duty of candour was published jointly by the Nursing and Midwifery Council (NMC) and General Medical Council (GMC) (2015).
There is no doubt that the duty of candour has its origins in the climate of fear among whistleblowers at the Mid Staffordshire Trust (Samuels, 2017). Staff at the trust were too frightened for their own jobs to speak out, and, according to Hilton (2016), when they did senior staff were hostile towards them, pressurising them to either ‘give in or get out’.
Debates about the rights of nurses to whistleblow when patient care is compromised are not new. The case of charge nurse Graham Pink, who in 1989 blew the whistle over staff shortages that he believed were leading to a reduction in standards of care at the Stockport hospital where he worked, was widely debated. Pink was dismissed from his post after he was accused of breaching patients' confidentiality (Pink and Brindle, 1990; Brindle, 2013).
The fostering of a culture of transparency and patient safety that underpins the duty of candour is modelled on processes introduced by the Virginia Mason Institute in Seattle, USA (Virginia Mason Institute, 2018).
It remains important for all nurses to identify and reduce risks and promote a culture within which they and their multidisciplinary colleagues feel personally safe, without fear of recrimination, in acknowledging mistakes, raising concerns and challenging risk (Glasper, 2018).
Conclusion
Patients and their families are entitled to the truth and a formal written apology as soon as is practical after a serious incident and the CQC will continue to be vigilant in ensuring that service providers fully comply with the duty of candour (CQC, 2019).
The NMC policy on the duty of candour specifically instructs nurses to be open and honest with patients when something goes wrong with their treatment or where the delivery of care actually causes, or has the potential to cause, harm or distress. In the event of this happening, the patient or, in situations where the patient may not have capacity, the patient's advocate, carer or family member, must be told about the incident and an apology offered in addition to suggesting, where possible, an appropriate remedy or support to put matters right. Furthermore, a full explanation must be given to the patient or their proxy advising them of the short- and long-term effects of what has happened. The NMC also stresses that health professionals must be open and honest with their colleagues, employers and relevant organisations, and take part in reviews and investigations when requested. It is important that such staff are also open and honest with regulators, such as the CQC, in raising concerns where appropriate. Additionally, staff must support and encourage each other to be open and honest and not stop or discourage colleagues from raising concerns (NMC and GMC, 2015).
The CQC insists that, in all duty of candour situations, all aspects be documented in a written record that is kept securely by the registered person. When CQC staff and their specialist advisers conduct inspections of care institutions they inspect such records for transparency and compliance. In its guidance to health and social care providers, the CQC expects policies and procedures to be in place to support a culture of openness and transparency, and to ensure that all staff follow them. Furthermore, the CQC expects providers of services to take action to address bullying and harassment in relation to duty of candour in the workplace and to investigate any instances where a member of staff may have obstructed another in exercising their duty of candour. Among other aspects of guidance, the CQC expects organisations to provide staff with appropriate training, and that there should be arrangements in place to support staff who are involved in a notifiable safety incident (CQC, 2017).
Despite the efforts of the CQC in endeavouring to promote the duty of candour, the publication of a review of maternity services at the Shrewsbury and Telford Hospital NHS Trust has revealed shocking breaches of this duty. The review of 250 cases revealed evidence of a lack of kindness and compassion from staff towards women whose babies died, coupled with a failure by staff to learn when things went wrong (Ockenden, 2020).
It is important to stress that being able to raise a patient safety concern without fear of retribution lies at the heart of the duty of candour.