Southern NHS Trust failings and the Duty of Candour

A report commissioned by NHS England into the unexpected deaths of almost 1,500 patients with mental health and learning disabilities at one of the country's largest mental health trusts, has found that the trust could not demonstrate a comprehensive systematic approach to learning from the deaths.

Clinical negligence solicitors have since commented on the urgent need for transparency, arguing that "if this attitude and lack of transparency doesn't change, then more people are going to continue to suffer."

Data failures

Despite having comprehensive data, Southern Health NHS Foundation Trust failed to use it effectively.

Only 272 of the deaths, which occurred between April 2011 and March 2015, were treated as critical incidents; of those, just 195 were treated as being a serious incident requiring investigation.

The report stated that this was too few, and that some cases should have been investigated further. 

There was no family involvement in almost two-thirds of the investigations.

Placing culpability on senior executives and the trust board, the report concluded that the culture of Southern Health had resulted in lost learning, a lack of transparency when care problems occurred, and a lack of assurance to families that a death was not avoidable and had been properly investigated.

A Duty of Candour

Healthcare staff have always had an ethical requirement to be open and honest with patients if things go wrong, and in its core guidance for doctors, the General Medical Council (GMC), advises that:

"If a patient under your care has suffered harm or distress, you should put matters right (if that is possible), offer an apology, and explain fully and promptly what has happened and the likely short-term and long-term effects." 

In November 2014, the government introduced new statutory duty of candour, for NHS bodies in England (trusts, foundation trusts and special health authorities).

Its obligations are contained in regulation 20 of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Key principles include a legal requirement for care organisations to act in an open and transparent way in relation to care provided to patients; meaning an open and honest culture must exist throughout an organisation.

The statutory duty applies to organisations, not individuals, although it is expected that an organisation's staff cooperate with it to ensure the obligation is met.

The regulations specifiy that as soon as is reasonably practicable after a notifiable patient safety incident occurs, the organisation must tell the patient (or their representative) about it in person, in a full explanation of what is known at the time.

A notifiable patient safety incident is defined as one ?where a patient suffered (or could suffer) unintended harm that results in death, severe harm, moderate harm or prolonged psychological harm'. 

Once the patient has been told in person about the notifiable patient safety incident, the organisation must provide the patient with a written note of the discussion, and copies of correspondence must be kept.

Organisations must also provide an apology and keep a written record of the notification to the patient.

To help staff understand the new legislation, the NHS Litigation Authority (NHSLA) has issued guidance to "demystify how health providers can deliver on candour, achieving a wholly transparent culture in health provision - being open when errors are made and harm caused".

What triggers the Statutory Duty of Candour?

A wide range of incidents and failings could impose a duty of candour on medical staff, wherever harm to the patient has or could occur. The duty is very likely to exist in cases of:

  • The death of a patient when due to treatment received or not received (not just their underlying condition). 
  • Severe harm - permanent serious injury as a result of care provided. 
  • Moderate harm - non-permanent serious injury or prolonged psychological harm.

When might it arise?

  • Whilst the patient is an in-patient, at the patient's "bedside". 
  • When a patient is back at home following discharge or receiving community-based care. 
  • Following a patient's death.

Reducing the cost of litigation

This fundamental change in approach, where medical practitioners and institutions must quickly acknowledge to a patient and their family when mistakes are made, is intended to prevent future harm to others.

Healthcare staff may worry that being open with patients may compromise the ability to deal with a claim if one is subsequently made by the patient. The architects of the principle have stated that, in reality, 'candour' is about sharing accurate information with patients and should be encouraged. 

It is expected that fostering an open and honest culture in the NHS will ultimately help to reduce the legal bill faced by the NHS by improving care standards and thereby avoiding protracted legal disputes.