Duty of Candour Thresholds - Clarity for Independent Healthcare Providers

The amendments to the NHS Standard Contract in the newly released 2015/16 version provide welcome clarity for independent healthcare providers providing NHS services over the question of when their duty of candour to patients is triggered.

Previous versions of the NHS Standard Contract (in 2013/14 and 2014/15) stated that the contractual duty was triggered by incidents (which the contract then called ''Reportable Patient Safety Incidents'') which caused death, severe harm, or moderate harm; these terms of ''moderate harm'' and ''severe harm'' themselves, being defined in the NPSA guide ''Seven Steps to Patient Safety: a full reference guide''.

However, the new, Statutory, Duty of Candour under CQC's Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (''the 2014 Regulations'') set different thresholds for 'trigger events' (called ''notifiable safety incidents'' under the Regulations) depending on whether the provider is a health service body (e.g. an NHS trust or foundation trust) or an independent sector provider.  The definition of ''notifiable safety incident'' for independent sector providers under the Regulations (based largely on the types of incident providers are already required to notify to the CQC under regulation 18 of the Care Quality Commission (Registration) Regulations 2009) differed from the definition of the ''Reportable Patient Safety Incident'' under the 2014/15 Contract.  This created a potential difficulty as providers would have had to incorporate both threshold tests in their candour policies and procedures in order to comply with both the contractual and statutory duties. 

Happily, sense has prevailed, and in the 2015/16 Standard Contract , which now (like the 2014 Regulations) uses the term ''Notifiable Safety Incident'' to identify incidents which trigger the duty of candour, this definition has been amended so that it matches the definition of ''Notifiable Safety Incident'' under the 2014 Regulations.

This means that the nature of events triggering the Contractual Duty of Candour will differ depending on whether the provider is an independent sector or NHS organisation.  However, this simplifies the picture for providers considerably in that they only need to have regard to one threshold in their policies and procedures.

Independent sector healthcare providers will need to revisit their Duty of Candour policies and procedures.  It may be best to remove any language which replicates triggers under the previous NHS Standard Contracts (eg "moderate harm" and "severe harm") and, instead, ensure policies and procedures are aligned solely with the thresholds for incidents set out in the 2014 Regulations. Using this single threshold as the trigger for the duty of candour will ensure that independent health care providers comply with both their Statutory and NHS Contractual duties.