The proposal for new contractual requirements follow on from the statement made in the Coalition Government’s Agreement in 2010 which made clear ‘....we will require hospitals to be open about mistakes and always tell patients when something has gone wrong’. Messages were further strengthened in the Government response to the NHS Future Forum which requires openness through a contractual mechanism.
The contractual Duty of Candour, which forms part of the Government’s plans to modernise the NHS by making it more accountable and transparent, will be an enforceable duty on providers in health services across England (inclusive of NHS trusts, NHS Foundation Trusts, the independent, charitable and voluntary sectors and social enterprises, where they are providing NHS funded care).
The new requirements will be aligned with existing legislation and frameworks such as The Health Act 2009, professional codes of practice for doctors, nurses and NHS managers, the Care Quality Commission (CQC) registration and guidance about compliance ‘Essential standards of quality and safety’, good clinical practice guidance issued by the NHS Litigation Authority, and the Data Protection Act 1998.
Requirements of Duty of Candour
Although the precise mechanism that will be added to contracts is still unclear, new requirements being considered are as follows:
- organisations will need to publish an annual declaration of a commitment to openness, including a commitment to telling patients if something has gone wrong with their care. This declaration may simply be something published on the organisation’s web page and/or their NHS Choices pages
- where a provider breaks their commitment by not being open, the commissioner could take action through the contract management process
- where a provider is found to have failed to be open, through a direct or indirect notification received from a patient or someone acting on their behalf (including a clinician), or through any other means, the commissioner shall implement the consequences outlined in the Duty of Candour
- any failure to publish a commitment to openness would be treated as a contractual breach. Any serious breach of the contractual requirement or persistent breaches would have escalating levels of consequence that would include notification being sent to the Regulators, suspension and/or termination of the provider’s contract.
Have your say
The NHS Employers organisation have gathered views from employers to identify what the likely impact would be if any such contractual requirements were imposed, to inform a response to the Department of Health.
View a copy of our joint response with the NHS Confederation here.