Duty of Candour

The duty of candour applies specifically to the ‘relevant person’.

The ‘relevant person’ is either the person being supported by the service and/or, if applicable, any legal representative they have. This could be a Lasting Power of Attorney, or a Deputy appointed by the Court of Protection.

There is, however, an expectation that candour will be demonstrated more widely when interacting with each other, partner agencies and carers, family and friends of the person being supported by the service. This will build integrity, trust and enable us to provide the best quality of service possible.

If you are concerned about the candour (honesty and integrity) of a colleague this should be reported, either directly to the manager responsible or through the whistleblowing process.

See: Whistleblowing

All unexpected or unintended events or incidents that cause any kind of harm to a person being supported should be reported quickly to the registered person. 
This includes:

• Any incident where medical advice or treatment has been sought; 
• Any incident that has caused physical harm or psychological distress to the person;
• Any incident that could have been avoided.

See: Accidents, Injury and Incidents

Near misses are incidents and events that have occurred that could have caused harm to the person using the service but did not do so.

Near misses are not managed through the duty of candour procedure but should still be reported so they can be investigated and learned from.

See: Learning from Safeguarding Enquiries, Safety Incidents and Complaints

Decisions about whether an event or incident is a notifiable safety incident must be made quickly to ensure that the process can begin in a timely way and be as effective as possible.

An event or incident is a notifiable safety incident if either of the following sets of criteria apply:

1, 2 and 3 (a) 

or 

1, 2 and 3 (b)

*Prolonged pain or psychological harm is defined as ‘harm which a person using the service has experienced, or is likely to experience, for a continuous period of at least 28 days’.

Degree of harm not yet known

If the degree of harm is not yet known but may fall into the criteria, the regulation specifies that the duty of candour procedure should still be followed.

In all other circumstances

If an event or incident does not meet the criteria, the registered person should still consider whether to apply the duty of candour procedure. Often this can be helpful in building or restoring confidence and trust in the service. 

Considerations could include: 

1. Whether or not the incident has caused or is likely to cause distress; 
2. Whether or not the relevant person is already dissatisfied or concerned;
3. If the relevant person is a legal representative, whether the person being supported is likely to tell them (or wants them to be told).

The following procedure can be carried out by the registered person or delegated to another manager or employee if the registered person deems them better placed to carry it out and they possess the necessary knowledge and skills to do so.

Notifying the relevant person

Part 20 (2) (a) of the duty of candour regulation requires that: As soon as is reasonably practicable after becoming aware that a notifiable safety incident has occurred, the registered person (or their delegated representative/s) must notify the relevant person. 

Part 20 (3) of the duty of candour regulation requires that the registered person (or their delegated representative/s) must:

• Tell the relevant person, face-to-face, that a notifiable safety incident has taken place;
• Apologise*;
• Provide a true account of what happened, explaining whatever they know at that point;
• Explain to the relevant person what further enquiries or investigations they believe to be appropriate.

*An apology is defined in the regulation as an 'expression of sorrow or regret'. It is not an admission of wrong-doing or guilt.

Note: If the Care Quality Commission finds the service to be in breach of either part 20 (2) (a) or part 20 (3) of the duty of candour regulation, the registered person can be prosecuted without warning.

Verbal notifications must be considerate, compassionate and empathic. If the relevant person is the person being supported by the service, regard should also be had to their needs when notifying them: 

1. Do they have communication needs? 
2. Is an interpreter required? 
3. Is an advocate required? 
4. What is the best way to provide the information? 
5. How much information can be provided at once? 
6. Is the person likely to require support to manage the impact?

Providing information in writing

Part 20 (3) of the duty of candour regulation requires that the registered person (or their delegated representative/s) must: Follow up the verbal notification by providing all information, and the apology, in writing, and providing an update on any enquiries.

If the Care Quality Commission finds the service to be in breach of this part of the duty of candour regulation, the registered person can be prosecuted without warning.

If notification cannot be made

Every reasonable step must be taken to contact the relevant person, using all available communication means. All attempts should be documented, and attempts should continue for a period reasonable to the circumstances. The incident should still be investigated, and lessons learned.

If notification cannot be made because the relevant person is the person using services, they have died and they have no legal representative a clear record of this should be made. The incident should still be investigated, and lessons learned.

If the relevant person does not engage

If the relevant person does not wish to engage in communication about the incident, their wish should be respected.  Any reasons provided for not engaging should be clearly documented. The incident should still be investigated, and lessons learned.

If the relevant person is a Deputy or Lasting Power of Attorney, they may be in breach of their legal duty to act on the person’s behalf. If this is the case the Office of Public Guardian should be notified. 

Keeping the relevant person updated

The relevant person must be kept informed of the progress of any enquiries made. 

This must be done in writing but should also be done verbally if requested by the relevant person. 

If the relevant person is a legal representative who contacts the service for an update and leaves a message, their call should be returned as soon as possible.

The regulation requires reasonable support to be provided to the relevant person, to help them overcome the physical, psychological and emotional impact of the incident.  
This support is more likely to be required when the relevant person is the person being supported by the service, or a legal representative that is also a family member.
Any support needs should be considered from the point of notification and throughout the course of any enquiries.

Support could include:

1. Help to access health treatment needed to treat an injury;
2. Help to access psychological therapies or counselling;
3. Help to find out about local support groups;
4. Help to access occupational therapy for equipment or an environmental adaptation;
5. Help to access housing services if accommodation is no longer suitable;
6. Listening to concerns and worries and offering reassurance;
7. Access to bereavement support if the person being supported has died.

Sometimes the relevant person may remain dissatisfied with the outcome of any enquiry and wish to take the matter further. If this is the case, they should be provided with information about how to make a complaint, and how to contact the CQC and the commissioning body.

Depending on the circumstances, it may also be appropriate to support the person with care and support needs to find an alternative support service. 

Part 20 (3) of the duty of candour regulation requires that the registered person (or their delegated representative/s) must: Keep a secure written record of all meetings and communications with the relevant person.

If the Care Quality Commission finds the service to be in breach of this part of the duty of candour regulation, the registered person can be prosecuted without warning.

Further clear and secure records should also be made of the following:

• The incident and impact on the person using services; 
• The rationale behind whether the event or incident meets the criteria of a notifiable safety incident;
• Where it is not a notifiable safety incident, the rationale behind any subsequent decision to notify/not notify the relevant person; 
• The support offered and provided to the relevant person; 
• Details of any enquiries into the incident undertaken; 
• Where applicable, any attempts to contact the relevant person without success; 
• Where applicable, any concerns about the appropriateness of a Deputy or LPA; 
• Any learning or training needs to be taken forward by the service.

If another service provider contributed to the incident, the services should work together in any investigation that follows.

Each service provider still has its own individual responsibilities under the duty of candour and must assure themselves that they have met them.

Under the regulation, there is no duty to notify carers or family members of the incident or involve them in subsequent communications (unless they act as the person’s legal representative). However, this does not mean that they cannot be involved. In fact, the CQC expects to see that their involvement has been considered and, with the consent of the relevant person, facilitated.

Notifying and involving carers and family members promotes the general candour of the service and enables the person being supported to receive informal advocacy, emotional support, or support with communication throughout the process.

If the relevant person lacks capacity to provide this consent, carers and family members can still be involved if a best interests decision is made to that effect under the Mental Capacity Act 2005.

Submitting a notification to the CQC

It is extremely likely that a notifiable safety incident will meet the criteria for a notification to the Care Quality Commission. 

In this instance the registered person must ensure such notification is made.

For further guidance see: Regulations 14-18: Notifications

Raising a safeguarding concern

Depending on the circumstances a safeguarding concern may need to be raised to the local authority.

For further information see: Disclosure and Raising a Concern 

Commissioning bodies

The registered person should check any service level agreement it has with the local authority, ICB or NHS Trust to establish whether there is a contractual obligation to report the incident to them. If so, it should be reported.

Being involved in or witnessing a notifiable safety incident can be emotionally distressing for staff. It is important for managers to check in on individual members and identify any support they may need to manage their mental wellbeing and build resilience.