The CQC Provides Information on Their Approach to the Duty of Candour

The CQC have recently published a document containing information about the processes that the CQC are proposing to follow in the light of the statutory duty of candour now applicable to all healthcare providers, within the NHS and the independent sector.1 The document is expressly stated as not to be regarded as guidance in itself but to be read in conjunction with the CQC’s guidance for providers on meeting the Regulations. It is nevertheless a useful insight into what steps healthcare providers need to take, if they have not yet done so, to ensure implementation of the duty of candour2 throughout their units.

When considering applications for registration, whether from new applicants or applications from existing providers to vary registration, the CQC will take into account the duty of candour. The CQC emphasise the need for openness in dealing with concerns and complaints, transparency in terms of information about performance and outcomes and the need to inform patients about any harm caused and the need to offer an appropriate remedy in accordance with the statutory duty of candour.

The CQC states that during the registration process, they will test providers about their understanding of the requirements of the duty of candour and ask what systems they have in place to ensure that they will be able to meet those requirements.

Inspections will involve checking that the provider has robust systems in place to meet the statutory requirements of the duty of candour. The CQC are likely to make enquiries of staff, from the most junior to the most senior, and enquire about their understanding of what is meant by the duty of candour and what training they have received to assist communicating with service users about “notifiable safety incidents”. They will also be looking at the methods of incident reporting put in place by the provider, as well as the support being provided to staff who are involved in notifying service users when something has gone wrong.

If a provider applying to be registered with the CQC cannot demonstrate that it will meet the requirements imposed by the duty of candour, the CQC may refuse its application for registration or impose conditions on registration.

The document makes it clear that the CQC will require the provider to understand its own role in the context of the duty of candour and to put policies and processes in place to ensure that there is implementation of the duty throughout the service. Policies need to support a culture of openness and transparency amongst staff and the CQC has indicated that they expect providers to take action to tackle bullying, harassment and any other such action where a member of staff may have obstructed another in exercising the duty of candour. It is also important to note that the CQC have stated that where staff have fulfilled their professional responsibility under the duty of candour but the provider has failed to put processes in place to provide assurance that the duty has been met, the CQC will take regulatory action for breach of Regulation 20.

The CQC states that when they have identified a breach of Regulation 20, they will assess the impact on people and decide whether or not to take regulatory action and what action to take in accordance with their enforcement policy on a case by case basis. This clearly will provide the CQC with wide discretion.

One of the central aspects of the duty of candour will be that health and social care providers need to consider what lessons have been learned from any incidents that they have needed to report in accordance with the duty of candour. The CQC will want to be satisfied that lessons have been learned and action has been taken by the provider to reduce the risk of a similar incident occurring in the future. It will be important for providers to be able to demonstrate to the CQC that changes have been put in place and that their staff are fully aware and, if relevant, have been trained in any new procedures. Part of this will be to consider in each organisation the extent to which candour issues are reported to the board.

Alexandra Johnstone

alexandra.johnstone@rlb-law.com
020 7227 7283
May 2015
© RadcliffesLeBrasseur

Footnotes

1. Information for all providers: NHS bodies, adult social care, primary, medical and dental care and independent healthcare regarding Regulation 20 – Duty of Candour, published March 2015.

2. Regulation 20, The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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