Discussions with providers often identify confusion regarding the Duty of Candour, including around:

  • what are "notifiable safety incidents" triggering the full communication, reporting and recording requirements of the Duty;
  • the different thresholds for "notifiable safety incidents" between NHS and independent sector providers; and
  • how CQC will inspect against the Duty of Candour.

Helpfully, a paper to CQC's latest Board Meeting acknowledges, and refers to further work being undertaken to address, these issue. Particular points to note include:

When the Duty is Triggered

CQC accepts there continues to be uncertainty around the Duty of Candour and will issue further guidance to provide a consistent message.  Significantly, the Paper makes the clearest statement to date that the guidance will clarify that:

"the Duty applies not just to incidents caused by 'mistakes' or 'failings in care', but to all notifiable safety incidents that result in harm [above the relevant threshold], even if these arise from known risks".

Getting the Specifics Right

The Paper also states that guidance will make it clear that, even though the aim of the regulation is to encourage a more open culture in the way providers communicate with people using services whenever they are harmed, "demonstrating an open culture does not however guarantee compliance with the regulation, which prescribes specific communication, reporting and recording requirements in relation to notifiable safety incidents".

Inspecting the Duty of Candour

As a further sign that clarification of the Duty of Candour may be accompanied by tougher inspection of the requirement, CQC state they will be sampling relevant safety incidents in three forthcoming hospital inspections "with a view to developing a simple, practical method for assessing the implementation of the Duty… for use by teams in all our inspections… in every sector".

Different thresholds in the NHS and independent sector providers

CQC also refer to the forthcoming Department of Health consultation this Autumn on the differences in the thresholds for "notifiable safety incidents" between independent sector and NHS providers.

Issues for GPs

The Paper also highlights a particular issue in General Practice which has emerged following the introduction of the Duty of Candour: that some GPs are reporting incidents to the National Reporting and Learning System ("NRLS") (presumably using the thresholds for reporting under that system) rather than notifying incidents directly to CQC as required under the Care Quality Commission (Registration) Regulations.  CQC state that they will work with the Department of Health and NHS England on this which could lead to a formal change to bring primary care in line with the NHS in terms of using the NRLS as the main system for reporting incidents.  For the time being, however, the regulatory requirement for GPs to notify incidents to CQC remains.