David Oliver: How well is the duty of candour enforced in the NHS?
BMJ 2024; 385 doi: https://doi.org/10.1136/bmj.q1009 (Published 08 May 2024) Cite this as: BMJ 2024;385:q1009Linked News
Duty of candour: BMJ investigation reveals patchy enforcement by regulatory agencies
- David Oliver, consultant in geriatrics and acute general medicine
- davidoliver372{at}googlemail.com
Follow David on Twitter @mancunianmedic
Readers of The BMJ who are registered clinicians working in the UK will be well aware of the professional duty of candour and transparency over incidents that put patients at risk or harm them. It was strongly reinforced in 2015 (updated in 2022) in joint guidance by the General Medical Council (GMC) and the Nursing and Midwifery Council (NMC),12 as well as in updated professional codes of practice.34 This duty, which can also feature in our employment contracts, comes with a “must” and not a “should”: it applies equally to registered doctors, nurses, and midwives in management and professional leadership roles, who are expected to create a culture where staff can raise concerns without fear and can have them listened to and acted on.
Aside from the professional duty of candour, some readers may be less aware of the statutory duty of candour for healthcare organisations and their executives. It’s still fairly rare to see the “duty of candour” referred to explicitly in this context in reporting about the NHS—yet this legal duty has existed since 2014 and is encompassed in regulation 20 of the Care Quality Commission (CQC) regulations, updated in 2022, which state that organisations must act openly and transparently with the relevant people when things go wrong.5 Regulation 20 also defines “notifiable safety incidents” and specifies how senior managers must apply the duty of candour if such incidents occur. Failure to comply can lead to criminal prosecution or CQC enforcement action.
In the light of numerous reports on serious care failings, scandals, cover-ups, and mistreatment of whistleblowers in the NHS, as well as the ongoing covid public inquiry6 and the upcoming public inquiry into the Lucy Letby case,7 this issue is more important than ever. The CQC’s guidance says, “The duty of candour is one of the fundamental standards—below which care should never fall . . . Every provider should be creating an environment that encourages candour, openness, and transparency at all levels. Candour underpins a culture of safety; it is only when organisations are open and honest that they can effectively learn from incidents that cause harm and improve the care that people receive.”
Yet the 2023 NHS staff survey, with over 700 000 respondents, found that only 70% felt safe speaking up about concerns, and only 50% believed that they would be listened to.8
FOI requests
In March I sent freedom of information requests to the CQC, GMC, and NMC asking them how often over the past five years they had taken regulatory action over failure to exercise the duty of candour. With regard to the GMC and NMC I also asked whether regulatory actions had been applied to registered clinicians in management roles for failing to provide a safe environment for staff who raised concerns or failing to investigate those concerns. The responses are summarised in our related BMJ news story of 8 May.9
The CQC was forthcoming, listing 30 cases of enforcement action against trusts from 2018 to 2023, including three fixed penalty notices and one prosecution. So, even though the culture of failing to be candid and transparent could be more widespread than the threshold for enforcement action suggests, at least the CQC takes the duty seriously.
The GMC told me in its response that it didn’t routinely categorise its fitness to practise or conduct hearings under the heading “duty of candour” and that it had no way of knowing which registrants were in formal executive, director, or senior management roles.
Like the GMC, the NMC doesn’t distinguish on its register between nurses and midwives in formal management roles and those in other roles. But the NMC does at least classify its fitness to practise or conduct hearings under the heading “duty of candour.” From 2019 to 2024 the NMC reported 33 investigations and actions into failing to report incidents or act on them. It also listed a further 41 cases around “not abiding by the duty of candour,” although its data didn’t differentiate staff in management roles from other groups.
So, to varying degrees, it seems that neither of the professional regulators has an adequate mechanism for knowing how well it is enforcing or investigating breaches of its own code. Considering that the duty of candour for practitioners and managers is in their code of practice, I believe that this is an issue they need to look at internally.
In December 2023 the Department for Health and Social Care launched a consultation on the effectiveness of the duty of candour policy for health and social care providers,10 amid ministerial concern about “variation” in how it was applied in some settings. I suspect that BMJ readers will be interested in responding to it, as well as reading the eventual report and recommendations.
We still have a long way to go.
Footnotes
Competing interests: See bmj.com/about-bmj/freelance-contributors
Provenance and peer review: Commissioned; not externally peer reviewed.