Overview of consultation

Between April and May 2024, the Department of Health and Social Care opened a call for evidence to consider the operation (including compliance and enforcement) of the statutory duty of candour for health and social care providers in England. 

Consultation questions

Please note, not all questions were answered by MPS as part of our submission. The full list of questions can be found on the 'Duty of candour review' consultation page. 

Question 1) Do you agree or disagree that the purpose of the statutory duty of candour is clear and well understood? 

• Agree
• Neither agree nor disagree
• Disagree
• Don’t know

We do not agree that the purpose of the statutory duty of candour is clear and well understood. It is MPS’ long-held belief that legislating ethical principles, such as is the case with duty of candour, is counterproductive to the development of an open learning culture in healthcare.

When implemented in Scotland, the Government ensured an online training module and plentiful resources were available on the new statutory duties. This is not the case for NHS England, where provision is varied across the country. The lack of guidance and variation in learning opportunities adds to the lack of clarity for healthcare professionals.

Question 2) Do you agree or disagree that staff in health and/or social care providers know of, and understand, the statutory duty of candour requirements?

• Agree
• Neither agree nor disagree
• Disagree
• Don’t know

As above, we do not agree that healthcare professionals clearly understand the statutory duty of candour requirements. There is a lack of training and guidance, and the complex and multidisciplinary nature of modern medicine makes understanding statutory duties and triggers for notifiable incidents increasingly complicated.

From our experience, doctors understand the morality of duty of candour; they are keen to apologise and explain when things go wrong and go a long way in carrying out their duties towards a culture of openness. However, duties of notification are not always first point of call for a healthcare professional trying to do the right thing by their patient. In setting statutory duties which prioritise the notifying of the CQC above transparent conversations with a doctor’s patients quickly after an event as occurred, we believe that duty of candour distracts from the original objective of ensuring openness with patients and learning from mistakes. Codifying this ethical principle into legislation has been counterproductive in ensuring that genuinely open conversations with patients happen when things go wrong.

Question 3) Do you agree or disagree that the statutory duty of candour is correctly complied with when a notifiable safety incident occurs?

• Agree
• Neither agree nor disagree
• Disagree
• Don’t know

MPS believes that it is often unclear when thresholds for a notifiable safety incident are met; when adverse outcomes occur, it isn’t always apparent from onset whether the care provided was a factor in the incident, or whether there are more complex factors involved. It is easy for incidents to fall into ‘grey areas’ which makes it difficult to identify a single cause or clear fault and puts healthcare professionals at increased risk.

The multidisciplinary nature of modern healthcare, with various healthcare professionals, teams and specialists contributing to patient care, also adds further complexity. Individuals will likely have different perspectives on incidents, and this divergence can lead to inconsistent interpretations of when the duty of candour applies. This is why we maintain our view that the statutory duty of candour should be limited to healthcare organisations and not be imposed upon individual clinicians.

Question 12) Provide any further feedback that you feel could help shape our recommendations for better meeting the policy objectives of the duty of candour.

MPS believes that the statutory duty of candour requirements should be limited to healthcare organisations and not be imposed upon individual clinicians. When something goes wrong in healthcare, the patient and/or the relatives want to not only seek information about what has occurred, but to also understand why and what steps are being taken to mitigate this from happening again. It is the organisation and not the individual practitioner which is best placed to address the range of factors leading to the adverse outcome, and to reflect on any changes introduced across the organisation to stop this from happening again.

We are also of the opinion that ringfenced funding for training on duty of candour should be secured. Current training provision is patchy and not accessible to healthcare professionals across the entirety of NHS England; it should be ensured that all employees who carry out duty of candour statutory duties receive continuous, ongoing training and guidance as well as support.

About MPS

MPS is the world’s leading protection organisation for doctors, dentists and healthcare professionals with more than 300,000 members around the world. 

Our in-house experts assist with the wide range of legal and ethical problems that arise from professional practice. This can include clinical negligence claims, complaints, medical and dental council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal accident inquiries.

MPS is not an insurance company. We are a mutual non-for-profit organisation and the benefits of membership of MPS are discretionary as set out in the Memorandum of Articles of Association.

Contact

Should you require further information about any aspects of our response to this consultation, please do not hesitate to contact us.

Megan Ball
Policy and Public Affairs Manager
[email protected]