There has been much discussion about the duty of candour - what it means and how professionals and providers need to comply with their duties.
What is clear is that part of the duty of candour (as set out in NHS Standard Contracts for Reportable Patient Incidents) involves giving an appropriate apology to patients, their families or carers when something has gone wrong.
There are a number of reasons why people may be concerned about giving an apology in the NHS. These could include a fear of saying the wrong thing or admitting liability; the result of which could impact on the NHS Litigation Authority (NHSLA)'s approach to dealing with a claim. Interestingly the NHSLA has issued further Guidance on apologising to patients called "Saying Sorry". A meaningful apology is defined as "a sincere expression of sorrow or regret given verbally and in writing, for the harm that has resulted from the incident". The NHSLA Saying Sorry Guidance states: "saying sorry is not an admission of legal liability: it is the right thing to do. The NHSLA … will never withhold cover for a claim because an apology or explanation has been given". Interestingly, there is the possibility that a failure to be open or transparent with patients or families at the earliest reasonable opportunity could in fact have the reverse effect in terms of the effects on any claim.
Sometimes an apology can be given but then further information comes to light and things are not as first thought. When giving an explanation and apology, this should be based on the facts known at the time. The NHSLA Guidance states that professionals should explain that new information may emerge as an investigation takes place, and those patients, their families or carers will be kept updated.
The Guidance also highlights the importance of having regard to "Being Open" documentation (National Patient Safety Agency) www.nrls.npsa.nhs.uk as well as policies on complaint handling.
Overall the key messages from the Guidance are:
- Timeliness – the initial discussion should occur as soon as possible.
- Explanation – patients and their families should be provided with a step by step explanation of what happened, which takes account of their individual needs and is delivered openly.
- Information – should be clear and unambiguous, avoiding medical jargon and acronyms – not conflicting messages from different members of staff.
- On-going support – there should be a single point of contact for patients/their families. Also consider whether the patient requires a patient advocate or a translator?
- Confidentiality – there must be consideration of policies and procedures and respect for privacy and confidentiality.
- Continuity of care – if a patient expresses a preference for their healthcare to be taken on by a different team, appropriate arrangements should be made.
- An apology - Above all, the message is clear – saying sorry should not be the hardest word!