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Shared Insights: The Duty of Candour - family and patient engagement

6 October 2020

These insights were shared at our fortnightly online forum for NHS professionals on 6 October 2020. To find out more please visit our Shared Insights hub.

Ed Pollard, Partner at Browne Jacobson specialises in Healthcare Advisory law. His work includes inquests, mental health and mental capacity law, the court of protection, DOLs, fitness to practice and data protection issues. He spoke about the statutory and general Duty of Candour, the importance of embedding a “culture of candour” and the approach that Trusts should take to candour when dealing with issues arising from Covid-19.

Louise Pye, Head of Family Engagement at Healthcare Safety Investigation Branch (HSIB) highlighted how important it is to give families a voice and what HSIB has learnt from working with over 1,000 families during investigations into patient safety.

Clare Cooper, Family Liaison Officer and Isobel Thistlethwaite Head of Legal Services from Nottingham University Hospitals NHS Trust and Amy Johnson Family Liaison Officer and Andrew Coburn Head of Legal Services from Derbyshire Healthcare NHS Foundation Trust all provided us with the Trust perspective of Family Liaison Officers and how they work with their Trust’s legal teams.

The Shared Insights were:

  • The Duty of Candour is triggered when there has been a ‘notifiable safety incident’ and it is failure to comply with this duty that can attract statutory sanctions. Compliance is governed and policed by the Care Quality Commission. In September 2020, the CQC successfully prosecuted an NHS Trust for breaching the Duty of Candour for the first time.
  • As well as the statutory duty, there is also a general duty of candour for providers to act in an open and transparent way with people who use their services. This does not carry any statutory sanctions. The statutory duty and the general duty are inextricably linked. Providers should not get wrapped up in the legalities of the Duty of Candour – the important thing is to embed a culture of candour within your organisation. To read more about the Duty of Candour click here.

    The approach to candour when dealing with issues arising from Covid-19 is no different and Trusts should follow their usual process. However, there is national work underway looking at how the NHS as a collective will respond to Covid-19 complaints and claims – so speak to us and to NHS Resolution if you are dealing with complaints and claims arising from Covid-19 so that you can feed in to the national response as it evolves.
  • HSIB has published a report entitled “Giving families a voice: HSIB’s approach to patient and family engagement during investigations”, to share what it has learnt from working with over 1,000 families during its investigations.
  • When engaging families, it is important to remove barriers to communication, such as literacy, language or hearing issues for example by creating accessible content. Communication is key and simple things can go a long way – for example meeting deadlines and phoning when you said you will. Meeting families at home can also be important to ensure they feel comfortable and build trust.
  • There is no “one size fits all” approach to candour - the approach should be flexible to meet the needs of the patient or family you are dealing with. An apology should be genuine, timely and individualised.

    Trust staff must be empowered to support families and patients. Continuity is also important so that the patient or family can build a relationship of trust with a named point of contact.

    Some Trusts now have Family Liaison Officers, who act as a single point of contact and support families throughout the investigation process from start to finish. FLOs can work with Trust legal teams in different ways, for example by helping to prepare for inquests. Family Liaison Officers and those in associated roles can seek support and advice from the Family Liaison Forum – contact Michelle.Barber@cpft.nhu.uk for more information.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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