Duty of Candour and the implications for insurance

Duty of Candour Introduction Header

CQC-registered health and care providers are required to adhere to the Duty of Candour. The CQC have been clear on what this means, but how does it affect your insurance when something bad happens? This blog discusses the Duty of Candour and its implications.

The Duty of Candour is an obligation imposed on all health and social care providers who are regulated by the Care Quality Commission (CQC). Broadly speaking, the Duty of Candour relates to the response that care providers must provide if something goes wrong. If there have been mistakes in service provision that have led to significant harm, then care providers must be open and transparent about what has and will happen and an apology must be provided.

The CQC dictate that the Duty of Candour applies whenever a notifiable incident occurs. A notifiable incident is when a service user has died or experienced harm or prolonged psychological pain.

In addition to notifying the CQC, when a notifiable event occurs the service provider must communicate openly with the affected person or a person lawfully acting on their behalf, such as a member of their family. This communication should include a factual account of the circumstances. In addition, the service provider should communicate what investigations or enquiries are going to take place and how these will be communicated going forward. Lastly, an apology must be provided. Both the notification and communication with the affected person should happen as soon as is reasonably practical.

Any apology should be sincere and expressive of sorrow and regret but it should not admit fault or liability and should avoid the use of emotive language. It is key that this apology is a not an admission of guilt.

If the notifiable event may have implications on insurance either due to civil or criminal liability, the service provider’s actions related to the Duty of Candour become even more important. If you provide an apology to a servicer user in line with the Duty of Candour but you include or infer an admission of fault or error, this could be used to prove your liability in the courts and may invalidate your insurance, depending on the wording of your policy. It is important that you word the apology appropriately and it is not unreasonable to discuss this with insurers before you issue any formal communication.

Any apology should be sincere and expressive of sorrow and regret. It may include a recap on what led to the notifiable event. However, the apology should stick to the facts known at the time and should not feature any projections of what may have happened or opinion. It should not admit fault or liability and should avoid the use of emotive language.

The CQC requires organisations to have reporting procedures in place and, whenever a notifiable incident occurs, it is sensible to notify your insurers as well as the CQC.