Duty of Candour

1. Introduction

The duty of candour requires registered providers and registered managers to be open and transparent with adults who receive care and support services from them and other relevant persons (that is people who act lawfully on the adult’s behalf). The service must be open and honest when things go wrong.

The regulation also defines ‘notifiable safety incidents’ (see Section 3, Notifiable Safety Incidents) and specifies how registered persons must apply the duty of candour if these incidents occur.

2. Openness and Transparency

As a provider of care and support services, the service must promote a culture that encourages candour, openness and honesty at all levels. This is an essential part of a culture of safety that supports organisational and staff learning. This commitment to openness and transparency extends to all levels of the organisation, from senior and middle managers, care and support workers and ancillary staff, including temporary staff. This policies and procedures site supports a culture of openness and transparency, as they can be accessed by adults and their families, as well as by staff.

The service should be committed to taking action to tackle bullying and harassment in relation to duty of candour, and must investigate any instances where a member of staff may have obstructed another in exercising their duty of candour. A possible breach of the professional duty of candour by staff who are professionally registered, including the obstruction of another person (for example another member of staff) in such a duty, may lead to an investigation, disciplinary action and referral to the Care Quality Commission (CQC) and / or their professional body.

3. Notifiable Safety Incidents

A notifiable safety incident’ is a specific term and should not be confused with other types of safety incidents or notifications. It must meet all three of the following criteria:

• it must have been unintended or unexpected;
• it must have occurred during the provision of an activity that the CQC regulates;
• in the reasonable opinion of a healthcare professional, already has, or might, result in death, or severe or moderate harm to the person receiving care. This may vary, depending on the type of service offered by the provider.

If any of these three criteria are not met, it is not a notifiable safety incident (but the overarching duty of candour – to be open and transparent – always applies).

The service should follow the notifiable safety incident definition relating to its specific type of organisation. See Notifiable Safety Incidents (CQC).

The duty of candour guidance for providers flowchart

(Click on the image to enlarge it)

An ‘unexpected or unintended’ incident is one that happens in the course of the regulated activity, not the outcome of the incident. ‘Regulated activity’ means the care or treatment provided. ‘Outcome’ means the harm that occurred or could have occurred. So, if the treatment or care provided went as intended, and as expected, an incident may not qualify as a notifiable safety incident, even if harm occurred. See also Examples of notifiable safety incidents, Care home (CQC).

Regulation 20 defines the notifiable safety incident harm thresholds. This is where, in the reasonable opinion of a healthcare professional, the incident appears to have resulted in, or requires treatment to prevent:

• the death of the person – directly due to the incident, rather than the natural course of the person’s illness or underlying condition;
• the person experiencing a sensory, motor or intellectual impairment that has lasted, or is likely to last, for a continuous period of at least 28 days
• changes to the structure of the person’s body;
• the person experiencing prolonged pain or prolonged psychological harm; or
• a shorter life expectancy for the person using the service.

The guidance defines the harms that relate to provider services, See Duty of Candour: Notificable Safety Incidents.

4. Notification Process following an Incident

See also Notification of Significant Events 

When a notifiable safety incident has occurred, the adult who uses the service and / or relevant person must be informed, as soon as reasonably practicable, after the incident has been identified. It is the registered person’s responsibility for carrying out or delegating responsibility for the duty and liaising with the adult / relevant person.

Someone may act on the behalf of the adult who was harmed if:

• the person has died;
• is over 16 and lacking mental capacity.

The regulation states that the registered manager must ensure that the following is carried out:

• tell the relevant person, face-to-face, that a notifiable safety incident has taken place;
• apologise;
• provide a true account of what happened, explaining whatever is known at that point;
• explain to the relevant person what further enquiries or investigations are believed to be appropriate;
• follow up by providing this information, and the apology, in writing and providing an update on any enquiries;
• keep a secure written record of all meetings and communications with the relevant person.

The purpose of these meetings and communications is to share whatever is known about the incident truthfully, openly and with compassion and support. The person who was harmed has a right to understand what happened to them. The meeting is not about trying to blame someone, and in any case, it is likely that investigations will still be underway at this point.

People are sometimes uncertain about how to apologise when an incident is still being investigated. But from the start, simple straightforward expressions of sorrow and regret can – and should – be made for the harm the person has suffered.

Throughout the process the service must give ‘reasonable support’ to the relevant person, both in relation to the incident itself and when communicating with them about the incident.

‘Reasonable support’ will vary with every situation, but could include, for example:

• environmental adjustments for someone who has a physical disability;
• an interpreter for someone who does not speak English well;
• information in accessible formats;
• signposting to mental health services;
• the support of an advocate;
• drawing their attention to other sources of independent help and advice such as AvMA (Action against Medical Accidents) or Cruse Bereavement Care.

If the relevant person consents, family members and carers should be involved in any discussions. It is about taking reasonable steps to make sure the service communicates in a way that is as accessible and supportive as possible.

The service must keep own clear records of cases where there has been a response to notifiable safety incidents. It may be that the incident also meets the notification thresholds and if so should be reported through the CQC notification system.

If the relevant person cannot or refuses to be contacted, the registered manager must ensure a written record is kept of all attempts to make contact. The service must still report the incident through the appropriate notifications system and investigate it in order to prevent harm occurring to others.

5. Record Keeping

See also Record Keeping.

Providers must keep a record of the written notification, along with any enquiries and investigations and the outcome or results of the enquiries or investigations. Any correspondence from the adult and / or relevant person relating to the incident, must be responded to in an appropriate manner and a record of communications should be kept.

6. Organisational Learning

The service will ensure a culture in which the organisation learns from incidents at all levels in order to ensure the future protection and safety of adults.

7. Training and Support

See also Safeguarding Training

Staff should receive appropriate training and there should be arrangements in place to support staff who are involved in a notifiable safety incident.