What does the duty of candour ask of us when care goes wrong?

What is the duty of candour?

The duty of candour is a legal duty to be open and honest with the people you support when something goes wrong with their care. CQC's guidance on Regulation 20 describes it as a general duty to be open and transparent with people receiving care from you. It applies to every health and social care provider that CQC regulates, care homes and home care services included.

The duty sits in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. That makes it one of the fundamental standards, which CQC's page on how it regulates the duty calls the standards below which care should never fall.

It has two layers, and it helps to keep them apart. The regulation itself opens with the general duty: registered persons must act in an open and transparent way with relevant persons in relation to the care they provide. That part applies all the time. The rest of the regulation sets out a specific procedure that applies only when something called a notifiable safety incident happens.

This post covers services registered with CQC in England. Services in Scotland work to different rules, so do not read this across to a Scottish service.

What counts as a notifiable safety incident?

CQC's page on notifiable safety incidents says an incident must meet all three of its criteria. It must have been unintended or unexpected. It must have happened while the care CQC regulates was being provided. And, in the reasonable opinion of a healthcare professional, it must have caused, or might cause, death or harm above a set level.

For care homes and home care, the level is set out in paragraph 9 of the regulation. The incident must appear to have caused, or need treatment to prevent, one of these: a death directly due to the incident rather than the natural course of the person's illness or underlying condition; a sensory, motor or intellectual impairment that has lasted, or is likely to last, at least 28 days; changes to the structure of the body; prolonged pain or prolonged psychological harm; or a shorter life expectancy. Prolonged means a continuous period of at least 28 days.

Three points in CQC's guidance settle most arguments. Fault does not matter: the presence or absence of fault on the part of a provider has no impact on whether something is a notifiable safety incident. Near misses are not in scope. And an incident does not need a member of staff in the room. CQC gives the example of an unwitnessed fall in a care home, which could qualify if the harm thresholds are met.

CQC's worked examples include a care home resident who broke his arm getting out of the bath after an occupational therapist's advice was not passed on to staff. He made a full recovery, and CQC still concludes that it was a notifiable safety incident.

What do we have to do when one happens?

CQC's page on what you must do says you must start the procedure as soon as reasonably practicable. The registered person, meaning the registered manager or the registered provider, carries it out or delegates it, and stays responsible either way.

The steps are set out plainly. Tell the relevant person face to face that a notifiable safety incident has taken place. Apologise. Give a true account of what happened, explaining whatever you know at that point. Explain what further enquiries or investigations you think are appropriate. Then follow up in writing with the same information and the apology, and give updates on any enquiries. Keep a secure written record of every meeting and communication.

The relevant person is the person who was harmed, or someone acting lawfully on their behalf, for example where the person has died or lacks mental capacity.

You must also give reasonable support. CQC's examples include an interpreter, information in accessible formats, the support of an advocate, and signposting to mental health services. If the person agrees, CQC expects to see family members and carers involved in the discussions.

If the relevant person cannot be contacted, or refuses to talk to you, you keep a written record of every attempt. You still report the incident through the right notification system and investigate it, so that others are protected.

	The general duty	A notifiable safety incident
When it applies	All the time, whether or not anything has gone wrong	When all three criteria are met
Who you speak to	The people receiving care from you	The relevant person: the person harmed, or someone acting lawfully for them
How	Openly and honestly, in everyday care	In person first, then in writing
What it must include	Honesty about what has happened	A true account, the enquiries you plan, an apology, and later the results
What you keep	Your usual care records	A secure written record of meetings, and copies of all correspondence

Why do providers get the duty of candour wrong?

The first mistake is treating it as the same thing as a CQC notification. They are different duties. CQC says a notifiable safety incident should not be confused with other types of safety incidents or notifications. A notification tells CQC. Candour tells the person and their family. The same incident can need both, and my post on which incidents must be notified to CQC covers the other half.

The second is waiting for the investigation to finish before saying sorry. CQC's guidance is clear that from the start, simple straightforward expressions of sorrow and regret can and should be made for the harm the person has suffered.

The third is fear that an apology admits fault. CQC says plainly that apologising is not an admission of liability. It also says that in many cases it is the lack of timely apology that pushes people to take legal action. Holding back the apology to protect the service can do the opposite.

The cost of getting it wrong is real. CQC says it can prosecute breaches of the regulation, and that Regulation 20 allows it to move directly to criminal enforcement action. It also says it follows up incidents in notifications that were not marked as triggering the duty of candour but appear, from the descriptions and harm levels, to have required it.

How does CQC check the duty of candour?

CQC looks at it through three things: whether the service is well led, whether it has an open and safe culture, and whether it meets the specific requirements of the regulation. It says a provider can be open and transparent under Regulation 20(1) and still fail some of the specific requirements in Regulation 20(2).

Its methods include asking you about recent incidents, questioning frontline staff about their understanding of the duty, and questioning the registered person about policies, records and training. It may also ask people who experienced an incident how you responded.

The duty also appears in the single assessment framework. The learning culture quality statement lists duty of candour as one of the subtopics it covers, alongside organisational learning and actions, and continuous improvement. The statement asks for a proactive and positive culture of safety based on openness and honesty.

What does a good candour conversation sound like?

In my view, the conversation matters more than the letter.

Decide who goes. It should be someone senior enough to answer questions and known to the person or family where possible. Meet somewhere quiet, not in a corridor. Say what happened in plain words, say sorry early, and mean it. Explain what you know and be honest about what you do not know yet. Avoid guessing at causes or naming individual staff. Say what happens next, who their contact is, and when they will next hear from you.

Then write it down the same day while it is fresh: who was there, what was said, the apology, and what was agreed. The letter that follows should match that record.

When does the procedure not apply?

If an incident does not meet the three criteria, for example a near miss, the specific procedure does not apply. The general duty to be open still does.

If you discover that harm happened at another provider, such as a hospital, CQC says you should inform that provider and be open with the person about what you have found. The provider where the incident happened carries out the procedure.

If someone is still at risk, make them safe and follow your local safeguarding procedures first. Candour sits alongside that work, not in place of it.

And if a family has started a legal claim, or CQC has raised a possible breach with you, take advice from a solicitor who knows regulatory law. A consultant can help you put the system right, but not with the legal process.

Where should I start?

Take the last three months of incident records and test each one against the three criteria. Mark any that met them and check that a conversation, an apology, a letter and a secure record all exist. Then ask two or three staff on shift what they would do if a resident was hurt tonight. Their answers will tell you more than the policy file.

If you would like help, my policy and procedure development work can give you a duty of candour policy and a simple record your team will use, and my training and development sessions help senior staff hold the conversation with confidence. When you are ready, book some time with me and we can look at your incident records together.