Better regulation is needed for duty of candour to fulfil its potential
by Peter Walsh
Chief Executive of AvMA
AvMA’s report on how the CQC has so far regulated the duty of candour makes mostly for depressing reading. In spite of the high profile ‘fundamental standard’ becoming law in 2014 our study found that many of the CQC reports on inspections of NHS trusts in 2015 were very superficial in how they dealt with the duty of candour. Six of them did not even mention it!
Worse still, even where the inspections appear to be quite thorough over the duty of candour and are critical of how it has been implemented, with most of them this did not materialise in an actual recommendation to improve. This was the case in 20 of the 34 reports which criticised trusts’ implementation of the duty.
As a result of a Freedom of Information Act request we found that even where recommendations had been made to improve, the CQC could not provide a single example of a trust having responded about the action they would take to improve. They simply did not know whether these trusts were doing anything as a result of their recommendations – even where the trusts were judged as not complying with the duty.
Our Freedom of Information Act request also brought to light the fact that the CQC did not know how many reports it had received from the public or other sources concerning alleged breaches of the duty of candour. It simply had no system for recording this or whether it had taken any actions as a result. This is quite staggering.
The CQC makes a lot of its ‘Tell us about your care’ initiative which encourages members of the public to provide feedback about organisations registered with the CQC. If it doesn’t even know whether it has received reports of breaches of one of the fundamental standards it is charged with regulating, this does not help public confidence in how seriously they are taking this feedback.
Whilst no-one envisages CQC being a policeman over every alleged individual breach of the duty it needs to be able to assess allegations that come to it and be seen to investigate at least some. Although it is quite right for their focus to be mainly on organisations having the rights policies and systems in place and training and support for staff, the wording of the regulations is very clear and a serious individual breach should spark some form of regulatory action.
I firmly believe that the duty of candour is potentially the biggest advance in patients’ rights and patient safety in modern times. However, we have always said that its success is reliant not only on the goodwill of provider organisations but on robust regulation. It is no good the duty being set in statutory regulations if the regulator does not regulate it properly and is not seen to take any action even when it spots non-compliance.
In fairness, the CQC has begun to improve the way it assesses compliance in the course of its inspections in 2016. However, it needs to be seen to do much more and in particular to take individual reports of non-compliance seriously and be seen to take robust action over non-compliance.
Having seen what lack of honesty and cover ups do to so many families, and having fought so long and hard to get a statutory duty of candour, we are determined to make it a success. Our study did find some examples of very good practice and we are having conversations with staff all over the country who share our passion for making it a success.
If we can spread this passion and good practice and back it up with robust regulation then we can see the duty of candour reap its full potential – make cover ups a thing of the past and ensure there is learning to improve patient safety.
Read the full report here.