11th December 2024
Part of the CEO Blog
This article is a part of the CEO Blog, a regular series written by Avma’s Chief Executive, Paul Whiteing.
With little subsequent publicity, the Department of Health and Social Care (DHSC) recently published the much-awaited outcome of their call for evidence on the statutory duty of candour — a statutory obligation requiring honesty and openness from healthcare providers, which was first introduced ten years ago. The Department outlined in considerable detail the responses from 261 people and organisations, including Avma.
It strikes me that good legislation is underpinned by 3 S’s:
- Statutory underpinning that is well-drafted legislation that those with an obligation to apply it can follow.
- Support that is meaningful and helps practitioners to adapt their practices efficiently and effectively to meet the new requirements.
- Sanctions that are meaningful and have a bite after a suitable transition period whilst those needing to adopt the new requirements quickly get to grips with them.
What the evidence tells us
Using the 3 S’s to assess the results of the call for evidence, it quickly becomes apparent that the implementation of the duty of candour legislation has fallen short of its desired aims. Much more needs to be done if we are to both improve the current application of the duty in the NHS and avoid repeating the same errors as the Government seeks to legislate to create a new duty of candour covering all public servants and officials (via the Hillsborough Law).
A summary of the call for evidence bears out quite how short the duty of candour has fallen from conception to implementation:
- Just 2 in 5 respondents thought the purpose of the statutory duty of candour was clear and well understood.
- 54% of respondents did not think staff working for health and social care providers knew and understood the duty of candour requirements. Many felt it was inconsistently applied and open to interpretation.
- Less than 1 in 4 respondents said that the duty of candour was correctly complied with when a notifiable safety incident occurred.
- Respondents were divided in their assessment of provider engagement, with 94% of patients or service users disagreeing that providers engage meaningfully and compassionately with those affected after a notifiable safety incident, compared to 27% of health or care professionals.
The last of these points is particularly disappointing, but of no surprise to Avma, confirming what we continue to hear from the people we support. The practical realities of this are borne out by those the system harms and are not treated with compassion. The lack of compassion causes needless upset, distress, and psychological trauma that compounds the original injury.
That is why we have advocated for a dedicated Harmed Patient Pathway grounded in compassionate support and restorative practice, as without that, on its own a duty of candour cannot overcome the practical barriers that exist in supporting harmed patients in a compassionate and considerate way.
The shortcomings in the current duty of candour
The data, coming as it does from a range of sources, demonstrates a range of shortcomings which I hope the Government will now reflect on as they take this work forward. Again, I would group those shortcomings around the 3 S’s.
Statutory underpinning
It is clear from the call for evidence that in rolling out the regulations that underpin the duty of candour, not enough thought was given to the room for ambiguity that can exist in trying to define concepts such as “moderate harm”.
Either the definitions themselves require amendment or, more likely, the guidance that underpins the regulations requires greater clarity and should be co-produced with practitioners to better ensure that areas for doubt and uncertainty are ironed out once and for all.
Support
It is abundantly clear from this call for evidence that the regulations were implemented in a way that did not provide staff with sufficient support, training, or guidance to interpret them properly and consistently.
Whilst it has been ten years since the regulations were introduced, it’s not too late to return to this issue and reaffirm the NHS’s commitment to the duty of candour with a new, refreshed programme of support and training with sufficient resources to make sure that this time the programme lands well.
Sanctions
The sense from a number of respondents was that the duty of candour is inadequately monitored, with limited enforcement action taken by the CQC.
If the duty of candour is to be a bedrock for patient safety, honesty, and openness, the CQC must assess compliance. Where evidence of non-compliance is identified, the CQC should take proportionate regulatory action, including imposing sanctions where necessary.
Moving forward
Overall, while it is a disappointing outcome, the evidence is of no real surprise to us at Avma. But meaningful change takes time, so we must not give up on the duty of candour and instead hone in on what more can be done to strengthen its application in securing honesty and openness. This is vital if the public is to have trust in the NHS.
Do you agree? What more do you think needs to be done to make the duty work better for everyone?