New duty of candour for health and social care providers in Scotland

United Kingdom

From 1 April 2018, a new duty of candour applies to health, care and social work organisations in Scotland, requiring them to inform people (or their families) when they have been harmed as a result of the care or treatment they have received. They will also be required to provide an apology.

A duty of candour was one of the recommendations of the Mid Staffordshire NHS Foundation Trust public enquiry in 2013, which pointed to a need for openness, transparency and candour throughout the health system about matters of concern. As well as helping to promote public confidence, it is hoped that a duty of candour will promote a culture of learning and continuous improvement in health and social care settings. The Act recognises the fact that a fear of blame and liability surrounds candour and the making of apologies generally, and accordingly an apology given in accordance with the duty of candour procedure will not amount to an admission of negligence or breach of statutory duty. This is in line with the treatment of apologies under the Apologies (Scotland) Act 2016.

The duty

The duty is set out in the Health (Tobacco, Nicotine etc. and Care)(Scotland) Act 2016 (“the Act”), with the procedure to be followed in the event of a duty of candour being triggered being set out in the Duty of Candour Procedure (Scotland) Regulations 2018 (“the Regulations”). Both the Act and the Regulations came into force on 1 April 2018. Essentially, where a person receives care or treatment from a health, care or social work organisation, and an unintended or unexpected incident occurs in the provision of those services which, in the opinion of a registered health professional results, or could result, in the person suffering physical or psychological harm that is more than trivial and relates to the incident rather than the natural course of the person’s illness/underlying condition, the health or social care provider must follow the duty of candour procedure.

The procedure

In terms of the duty of candour procedure, responsible health, care or social work organisations will be obliged to:

  • notify the affected person i.e. the patient (or, where they have died or lack capacity, someone acting on their behalf);
  • offer a written apology, and provide one where the affected person would like one;
  • invite the affected person to a meeting about the incident and the steps being taken to investigate the cause, as well as giving the affected person the opportunity to ask questions;
  • review and report on the circumstances which led or contributed to the incident;
  • provide training, supervision and support to those carrying out the duty of candour procedure on behalf of an organisation; and
  • keep a written record of all incidents that trigger the duty of candour procedure.

In addition to the obligations imposed by the duty of candour procedure, Part 2 of the Act also imposes on the responsible health and social care providers a duty to report annually on:

  • the number and nature of incidents triggering the duty of candour procedure; and
  • the policies and procedures in place to deal with such incidents. 

Who does the duty of candour affect?

The duty falls on health, care and social work service providers (defined in section 25 of the Act). It includes Health Boards, the Common Services Agency, independent health care services, and local authorities. They must ensure that they have policies and procedures in place, that staff are aware of the duty, and that those who will carry out the duty of candour procedure are trained and supported.

The duty of candour will be of interest to support organisations and patient groups, as well as other health and social care professionals even though they are not directly burdened by the legislation. The introduction of a duty of candour is also likely to be of interest to others in the healthcare sector, including manufacturers of medical and health care products, and their insurers, particularly where incidents involving their products trigger duty of candour procedures. Legal advisers to responsible organisations will also be watching with interest from a risk management perspective. With the Apologies (Scotland) Act 2016 less than a year old (it came into force in June 2017), offering a written apology is still a counter-intuitive step despite its inadmissibility in civil proceedings as evidence of liability.