Do 400 duty of candour events show an NHS system on its knees – or that negligence is becoming more common?

Earlier this month it was revealed there were 389 duty of candour events in two years at NHS Greater Glasgow & Clyde.

These incidents are typically of the most serious nature where patients received treatment that fell below expected standards. In many cases it is likely that the patient suffered life-changing consequences as a result of these failures.

A tragic detail of the important Daily Record investigation, based on freedom of information data, also found that of the 389 incidents a total of 85 incidents were linked to a patient who lost their life.  

One key, and arguably alarming, point of freedom of information investigation, is that all these incidents occurred in just one health board over a two year period.

This means the actual picture of duty of candour and SAER-related incidents is more than likely going to be significantly higher – and affect even more people.

But why is this?

Do these figures represent unreported incidents where patients and families were left in the dark? Or are they reflective of increasing strain on the NHS resulting in falling standards of care?

Requiring medical care can be an incredibly stressful experience for patients and their families.

It can be distressing if treatment does not go as expected or mistakes are made, as this can result in unnecessary illness, injury, or a person losing their life.

Since April 2018, in healthcare settings, a Duty of Candour (DoC) is triggered when an unintended or unexpected incident occurs which results in:

• The death of a patient
• Severe harm to a patient (permanent lessening of bodily, sensory, motor, physiological, or intellectual functions) 
• Specific moderate harm to a patient (a sensory, motor, or intellectual impairment for 28 days or more; pain or psychological harm for 28 days or more; an increase in treatment; changes to the structure of the patient’s body; or a shortening of the patient’s life expectancy)

The aim of implementing DoC was to move towards a culture of transparency, recognising where improvements can be made, learning from mistakes, and focusing on apologising to patients and families at one of the most vulnerable times in their lives.

Ordinarily, when treatment does not go as expected, patients and their families want to understand what happened to them or their loved one and, if something has gone wrong, receive an acknowledgement of and apology for this.

When a DoC is triggered, the responsible person or body must:

• notify the person affected (or family/relative where appropriate)
• provide an apology
• review the circumstances leading to the incident
• offer and arrange a meeting with the person affected and/or their family
• provide the person affected with an account of the incident
• provide information about further steps taken
• make available, or provide information about, support to persons affected
• prepare and publish an annual report on the organisational duty of candour.

But even after a DoC report it is important to understand two things: while DoC indeed indicates treatment may have gone wrong it does not necessarily mean care was negligent (in a legal sense); and an apology is not an admission of liability in a legal sense.

The Duty of Candour process is focused on transparency in a bid to strengthen the relationship between patients and clinicians. It could be considered similar to that of a fatal accident inquiry (FAI) where the aim is to establish what went wrong and how processes can be made safer – but not to attribute blame or establish a binding admission of liability that can be used legally.

When we talk about the legal sense this relates to the standard of proof needed to make a successful claim possible.

The DoC investigation can confirm what went wrong and it can give patients or families the chance to ask questions to help them come to terms with what happened.

But the legal test for negligence is different. To make a successful legal claim you need to know:

•    Did the care follow standard practice?
•    Did the treatment provider deviate from this standard practice?
•    And would no ordinarily competent treatment provider have made this deviation?

This is why a clinical negligence lawyer can help as we can work with independent experts to establish these very points to help recover compensation. The findings of the DoC report may be used as part of the claim’s evidence, but they are not ‘proof’ in their own right.

Going forward it will be important to see further information from the 13 other health boards because even after eight years of DoC application it remains unclear how consistently this review process is being applied across Scotland.

A more complete picture will also help assess whether these events are a sign that health boards need urgent investment to deliver a better standard of patient care.

Read more about the reported investigation.

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Anna Davidson, Senior Solicitor