Medical Professional Indemnity - How To Comply With Duty of Candour

Tuesday, 22 December 2015, Jon Norman

Medical Professional Indemnity - How To Comply With Duty of Candour

Whether you work as a Doctor, Consultant, Nurse or any other Medical Practitioner, you have a responsibility to be honest with patients, or any person acting on their behalf — particularly when something unexpected or potentially harmful happens during their care or treatment.

A breach in your duty of care or other acquisition of negligence may lead to a claim under your Medical Professional Indemnity Insurance (malpractice), with associated costs such as policy excess and / or reputational damage.  As such, it is vital that you understand current regulation and adhere to best practice.

This obligation, or responsibility of care is known as the duty of candour and the Care Quality Commission (CQC) has developed a detailed guidance to help you fulfil that commitment.

What Is The Duty of Candour Overview and Requirements

The duty of candour affects any UK organisation that is regulated by the CQC, and applies to all registered persons  working with patients such as:

  • Domiciliary Care Providers
  • Nurse & Nurse Practitioners
  • Health Care Volunteer
  • General Practitioners
  • Surgeons

What Is a “Notifiable Incident”?

As a medical professional, if a ‘notifiable incident’ occurs during a patient’s care or treatment, you are obligated to comply with the regulations outlined by the duty of candour.

A notifiable incident is any unexpected incident that causes unintended physical or mental harm to patients while they are receiving care or treatment. The CQC has described the four following unintended consequences of care as notifiable incidents:

  1. Death: Immediate or resulting from the incident
  2. Severe harm: A permanent lessening of bodily, sensory, motor, physiologic or intellectual functions—including removal of the wrong limb or organ as well as brain damage
  3. Moderate harm: Significant but not permanent harm that requires a moderate increase in treatment, such as an unplanned return to surgery
  4. Prolonged psychological harm: Psychological harm that was experienced, or is likely to be experienced, for a continuous period of at least 28 days

What Should I Do If an Incident Occurs?

If a patient in your care suffered any of the four types of notifiable incidents, you would be obligated to take the follow action:

  1. Tell the patient, or the person acting lawfully on his or her behalf, as soon as reasonably possible, that an incident has occurred. This should involve providing a detailed account of how the incident occurred.
  2. You may apologise to the patient that the incident has occurred. However whilst it is natural to express sorrow or regret, you should also take care not admit nor imply fault or liability for the error.
  3. Offer a proposed solution or appropriate support or remedy — be it surgery, therapy or other action within your remit —in order to correct the incident.
  4. Explain carefully to the patient, or the person acting lawfully on his or her behalf, both the short- and long-term effects of what has happened and likely impact.

In addition to being forward and honest with patients, you must provide a written account of both the incident and your notification for your organisation’s records.

Breach of Duty of Care

In order to correctly comply with the duty of candour, all health care organisations must register with the CQC. During the registration assessment, the CQC will observe the facility, staff and culture to determine whether the health care organisation can provide safe, effective, caring, responsive and well-led service.

In addition to the inspection, the CQC will conduct an ‘interview’ process, during which the CQC representative will ask questions about the quality of care and what procedures will be put into practice by the staff to achieve the required standard.

If you, or any of your colleagues are found guilty of non-compliance, you could be charged with a criminal offence — which could result in a significant fine for both the guilty party and your health care organisation. The CQC may also refuse or revoke the health care organisation’s registration.

Yet, the CQC is unable to monitor every organisation full time in order to detect a breach of duty. It is therefore important that you understand your responsibility to be forward and honest with your patients, colleagues and relevant organisations in the event of a notifiable incident.        

Implementation & Guidance for the Duty of Candour

Developing an honest and open and culture between health care providers and patients is critical in terms of providing an adequate quality of care. To help to develop the right cultural environment within your health care practice, consider adopting these four key procedures:

  1. Provide regular training for all health care staff and volunteers on what constitutes a notifiable incident and what steps should be taken to address the issue.
  2. Offer health care staff training on how to properly apologise without implying or admitting liability.
  3. Draft a notification letter template to streamline the record-keeping process.
  4. Develop procedural documents which outline the organisation’s commitment to exemplifying the characteristics of candour.

Medical General Practice Examples

To clearly and effectively illustrate the kind of scenarios in which the duty of candour would be relevant, consider the following examples, both of which could highlight a breach and a potential Medical Malpractice Insurance claim:

Example #1

While treating a patient for pneumonia, the GP identified a ‘suspicious lung lesion’ on an X-ray which would require a follow-up. Upon discharging the patient, the GP carried out the appropriate investigations of the lesion — the results of which were normal. However, the practice failed to follow normal processes for relaying the results to the patient and he was not informed for more than one month. Consequently, the patient spent several weeks in a state of anxiety and extreme distress, concerned about the possibility of cancer, and he developed enhanced symptoms of depression and anxiety which lasted more than 28 days.

This example illustrates a notifiable incident resulting from prolonged psychological harm, as the practice failed to communicate the results of the test on the lesion in a timely manner.

Example #2

A patient has been prescribed to take 10 milligrams of morphine sulphate twice a day for chronic back pain. However, the prescription is incorrectly written down as 100 milligrams. The patient’s wife, unaware of the error, gives her husband the incorrect prescribed dosage. The next day, the patient is unresponsive and is rushed to the hospital where he goes into cardiac arrest and dies.

This example illustrates a notifiable incident resulting from death, as the prescription was incorrectly written down.

Both examples are likely to result in significant Medical Professional Indemnity claims, not to mention reputation damage and could easily have been avoided with adequate care and planning.

It’s YOUR Professional Duty & Reputation

Honesty is always the best policy, especially if an error was made which could be potentially harmful, and it is paramount when communicating with patients or the people acting lawfully on their behalf.

Neglecting that duty of care not only reflects poorly upon you, as a health care professional, but also on your health care practice.

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About the Author

Jon Norman

Jon Norman

I’m passionate about family, sport, technology and business.

In fact, I have always been fascinated by business, whether it was running the school tuck-shop or my Saturday job in the local store, I was always looking for ways to improve or view things differently.

I have enjoyed an amazing career fast approaching 25 years in the insurance industry, which has given me real insight into the challenges and opportunities faced by SME businesses in today’s ever-evolving marketplace.

I co-founded Insync Insurance, to offer companies a new way to buy and manage their business insurance. A synergy of digital servicing and personal expertise - utilising the latest technology to enhance relationships, not to replace them.