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A tale of two duties (of candour)

Amy Hopwood, Policy Manager at the Care Quality Commission, writes about the organisational duty of candour: the difference between it and the professional duty of candour; the barriers that can hinder both organisations and professionals from being candid; and CQC's plans for launching new guidance in the spring.

It has been fascinating reading the recent blogs about candour on the Professional Standards Authority website, and I’m pleased to be asked to respond with a view from the Care Quality Commission (CQC). Although the Authority, and the organisations it regulates, are primarily concerned with the professional duty of candour and CQC with the organisational duty, there is a great deal of overlap, and it seems that many of the barriers to proper implementation of these duties are common to both. It also seems that as our regulation of the two duties matures, we are both increasingly focusing on the role that organisational culture plays. In this blog I will explain what the organisational duty of candour covers; how it aligns with the professional duty; CQC’s experience of regulating the duty; and our plans for the future.

What is the organisational duty of candour?

The Duty of Candour is laid out in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. It applies to any organisation carrying out health and/or social care activities which are regulated by the Care Quality Commission.

Regulation 20 is specific about the procedure to carry out the duty of candour, and lays out:

  • the thresholds of harm which should trigger the duty
  • the various steps, meetings and records that should be carried out
  • what those meetings and records should cover
  • that the process should be carried out in a timely manner
  • that appropriate support should be provided to the person using the service or their representatives.

How does it work with the professional duty of candour?

Both duties have similar aims, that is, to ensure that those providing care are open and honest with the people using their services, particularly when something has gone wrong; however, the organisational duty of candour applies only in certain situations, known as ‘notifiable safety incidents’. These are defined in detail within the regulation.

This means that there will be cases where the professional duty applies but not the organisational one. Where the organisational duty does apply, it may well be carried out by the same person who carries out the professional duty, so it is important to remember that the organisational duty carries with it particular steps that must be covered and records that must be made. Carrying out the professional duty alone will not be enough to meet the requirements of the organisational duty of candour.

While the responsibility for carrying out the professional duty is clearly located with the individual professional, the responsibility for the organisational duty is located with the provider of regulated activities, and in particular the ‘registered person’ who represents that provider to CQC. In practice, however, notifiable safety incidents will occur at the point of care, so the registered person is more often responsible for ensuring that the duty of candour is being carried out appropriately by the professionals they employ, rather than actually carrying it out themselves. The two duties should mutually reinforce each other, creating a culture where it is in the providers’ interests to encourage their staff to be candid, and where professionals feel safe and supported to speak up and be honest when things go wrong.

How CQC currently regulates the duty of candour

The Care Quality Commission has been responsible for regulating the organisational duty of candour since November 2014 for NHS Trusts and April 2015 for other health and social care providers. During the registration process, we look for evidence that a prospective care provider understands Regulation 20 and will have robust systems in place to adhere to it from day one of operation. When we inspect an existing service, we review the provider’s performance around the duty, by interviewing staff, looking at data and reviewing their records. The evidence we find will affect the overall ratings we award to the service and may even lead to enforcement action.

CQC can enforce breaches of parts 20(2)(a) and 20(3) of the regulation and is able to move directly to criminal enforcement action, including prosecution following an investigation. In 2019 we issued 14 Fixed Penalty Notices, in respect of eight incidents, occurring at two NHS Trusts.

Future plans

Towards the end of 2018, CQC undertook a review of the way we regulate the duty, consulting with our own staff, providers and other external stakeholders. We found that there remained some confusion around various aspects of the Regulation. For example, it can be hard for providers to determine which incidents fall into the harm threshold and require action (especially where thresholds are differently defined for different sectors). Others have queried what the Regulation means by ‘reasonable’ in terms of timescales and the support offered; how the duty applies in retrospective case reviews; and what to do when the notifiable incident has occurred in a different organisation.

We are planning to clarify these and a wide range of other questions when we launch new guidance for both providers of care and our own inspectors in the spring.

Any contributions to help us improve the guidance would be very welcome, please email Amy Hopwood

Related material

You can find all our work, including research on the duty of candour on our website.

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Please note the views expressed in these blogs are those of the individual bloggers and do not necessarily reflect those of the Professional Standards Authority.