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Regulation should mean patients hear the truth following medical negligence

Lindsay Holt
In March 2021, the Care Quality Commission (CQC) updated its guidance for healthcare providers on how to tell the truth to those they have harmed.

Previously, statutory duty of candour became law in 2014 for NHS Trusts, and for other providers in 2015, to ensure that patients and their families could be assured that when something went wrong, they would be told and receive an apology.

Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 was introduced after extensive lobbying, and ultimately legal action by patients, lawyers and charities after the death of Robbie Powell in 1990, and in the aftermath of the acknowledged cover-up at Mid-Staffordshire NHS Foundation Trust (The Francis Enquiry 2013).

These regulations mean that when a notifiable safety incident occurs, providers must:

  • Inform the people affected about the incident
  • Offer reasonable support, for example counselling
  • Provide truthful information and a timely apology

Incidents are events that must have been unintended or unexpected, occurring during the provision of a regulated activity and which, in the reasonable opinion of the healthcare professional, has already or might result in death or severe or moderate harm to the person receiving care.

Harms are defined as death, a sensory, motor or intellectual impairment lasting for a continuous period of at least 28 days, changes to the structure of the person's body, prolonged pain or psychological harm or a shorter life expectancy.

Patients and those close to them are entitled to be informed if something has gone wrong as soon as practical, and should be provided with written notes of any discussions, investigations or enquiries arising out of the investigation, as well as the short and long term effects of what has happened.

In September 2020, the CQC successfully prosecuted University Hospitals Plymouth NHS Trust for failing to disclose details of surgery causing the death of a 91-year-old patient.

The statutory duty of candour sits alongside the established professional and ethical duty on healthcare providers to tell their patients when things go wrong.

While being truthful or apologising for an incident causing patient harm does not amount to an admission of liability, providers should ensure patients receive an explanation for what can be devastating events, and review how the harm could have been avoided.

Our experience has shown that initiation of these discussions by healthcare providers is becoming more common, but they are still slow to volunteer information or  provide support and tend to follow an expression of concern or complaint about treatment raised by our clients. More often than not, the review of the incident is incomplete and fails to acknowledge the consequences of the incident.

If you have been invited to a duty of candour meeting after suffering serious harm, or received a letter which sets out concerns about an incident, our team of specialist medical negligence solicitors at Fieldfisher can advise you further.

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