Policy Statement

The organisational duty of candour provisions of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (The Act) and The Duty of Candour Procedure (Scotland) Regulations 2018 set out the procedure that organisations providing health services, care services and social work services in Scotland are required by law to follow when there has been an unintended or unexpected incident that results in death or harm (or additional treatment is required to prevent injury that would result in death or harm).

Openness and honesty should be central to the actions of those providing care to others. It should be at the heart of every relationship between those providing, receiving and/or experiencing treatment and care. Trust and effective communication can be difficult to maintain and easy to lose when things have gone wrong.

This policy is a guide to inform staff when the Company needs to have candour conversations with residents and their representatives and how staff are required to assist with fulfilling these obligations.

Purpose

To ensure that Candour incidents are recognised, reported, investigated and managed in a way which ensures a residents is made aware of the incident and receives an honest explanation of what has happened.

To promote openness, transparency and candour when things go wrong with care/treatment of a resident within the care home.

To deliver a consistent and appropriate approach needed to comply with statutory requirements.

To ensure that organisations tell those affected that an unintended or unexpected incident has occurred; apologise; involve them in meetings about the incident; review what happened with a view to identifying areas for improvement; and learn (taking account of the views of relevant persons).

To set out in an annual report the way that the duty of candour procedure has been followed for all the cases that they have identified.

When should the Duty of Candour Policy be activated

The clinic (as responsible persons) must activate the duty of candour procedure as soon as reasonably practicable after becoming aware that:

• an unintended or unexpected incident occurred in the provision of the health, care or social work service provided by the organisation as the responsible person;

• in the reasonable opinion of a registered health professional not involved in the incident:

  (a) that incident appears to have resulted in or could result in any of the outcomes mentioned below; and

  (b) that outcome relates directly to the incident rather than to the natural course of the person’s illness or underlying condition.

It is important to note that where the duty of candour procedure start date is later than one month after the date on which the incident occurred, an explanation of the reason for this has to be provided to the relevant person.

The relevant outcomes are as follows:

A. The death of the person.

B. Permanent lessening of bodily, sensory, motor, physiologic or intellectual functions (including removal of the wrong limb or organ or brain damage) (“severe harm”).

C. Harm which is not severe harm but which results in one or more of the following criteria:

•  an increase in the person’s treatment;

•  changes to the structure of the person’s body;

•  the shortening of the life expectancy of the person;

•  an impairment of the sensory, motor or intellectual functions of the person which has lasted, or is likely to last, for a continuous period of at least 28 days;

•  the person experiencing pain or psychological harm which has been, or is likely to be, shared by the person for at least 28 days.

D. The person requires treatment by a registered health professional to prevent:

•  the death of the person;

•  any injury to the person which, if left untreated, would lead to one or more of the outcomes mentioned in paragraphs B or C.

When does the Duty of Candour Procedure start date commence

The procedure start date is the date that the care home receives confirmation from a registered health professional that, in their reasonable opinion, an unintended or unexpected incident appears to have resulted in, or could result in, an outcome listed above and that relates directly to the incident rather than to the natural course of the relevant person’s illness or underlying condition.

Notification

The duty of candour legislation states that the relevant person should be notified as soon as reasonably practicable. Still, informing the appropriate person within ten working days of the procedure's start date should be considered good practice.

This notification can be by telephone, face-to-face or by letter. It is important to remember that where a duty of candour procedure start date is more than a month after the incident, the Home Manager must provide the relevant person with an explanation of why this is.

The notification must include:

• an account of the incident to the extent that the clinic is aware of the facts at the date the notification is provided; and

• an explanation of the actions that the clinic will take as part of the procedure;

• if the procedure start date is later than one month after the date on which the incident occurred, explain the reason for the delay in starting the procedure.

The clinic will also be responsible for notifying the relevant authorities, including Health Improvement Scotland.

Communication with the Relevant Person

The Clinic Manager must take reasonable steps to find out the relevant person’s preferred method of communication. They must also take reasonable steps to ensure that contact with the appropriate person is in a manner that they can understand.

It is recognised that in some instances, communication channels may not exist, or preferences are unknown. The Clinic Manager must make contact by telephone in the first instance to find out what method of communication to use and to begin a dialogue on what steps might need to be taken in following the duty of candour procedure.

If the Clinic Manager cannot contact the relevant person or the relevant person does not wish to speak with a care home representative, the attempts made to contact them need to be included as part of the care home’s written record of following the duty of candour procedure. If applicable, these notes should be added to the relevant personal plan under the ‘Communication – Duty of Candour’ section.

Apology

In addition to any apology provided at the time of the incident, as part of the duty of candour procedure, the care home must offer the relevant person a written apology (this can be by electronic communication if that is the appropriate person’s preferred means of communication) in respect of the incident. The clinic manager must provide a written apology if the relevant person wishes it.

The written apology should be personal and be provided at an appropriate time during the duty of candour procedure, taking account of the facts and circumstances of the particular incident.

This should take account of the circumstances relating to the relevant person and, wherever possible, the known personal meaning or impact of the unexpected or unintended incident.

The Four Rs are an easy way to remember how we can get this right:

• Reflect – stop and think about the situation.

• Regret – give a sincere and meaningful apology.

• Reason – if you know, explain why something has happened or not happened, and if you don’t know, say that you will find out.

• Remedy – what actions you will take to ensure that this won’t happen again and that the organisation learns from the incident?

It is important that an open and honest apology must be provided from the outset, as this can reassure an individual and/or their family and will also set the tone for moving things forward from here.

Meeting

The clinic must invite the relevant person to attend a meeting and allow them to ask questions in advance. The clinic must take reasonable steps to ensure that the meeting is accessible to the relevant person regarding their needs.

For example, linguistic needs or reasonable adjustments might need to be made for someone with a disability. In some circumstances, it will be necessary to have an interpreter, an advocate and/or someone the relevant person chooses to support the present.

The Meeting Must Include:

• a verbal account of the incident;

• an explanation of any further steps that the organisation will take to investigate the circumstances which it considers led or contributed to the incident;

• an opportunity for the relevant person to ask questions about the incident;

• an opportunity for the relevant person to express their views about the incident; and

• the provision of information to the relevant person about any legal, regulatory or review procedures that are being followed in respect of the incident in addition to the procedure.

After the meeting, the relevant person must be provided with:

• a note of the meeting;

• contact details of an individual member of staff acting on behalf of the organisation who the relevant person may contact in respect of the procedure – this will usually be the home manager and/or clinical lead.

Review

The clinic must carry out a review of the circumstances which they consider led or contributed to the unintended or unexpected incident. The legislation does not specify the manner in which the review is undertaken.

Best practice requires that reviews involve clinical and care professionals with the relevant subject matter expertise, as appropriate.

In the case where the review is not completed within three months of the procedure start date, the home manager must provide the relevant person with an explanation of the reason for the delay in completing the review.

Written Report of the Review

The written report of the review must include the following:

• a description of the manner in which the review was carried out;

• a statement of any actions to be taken by the care home for the purpose of improving the quality of service it provides and sharing learning with other persons or organisations in order to support continuous improvement in the quality of health services

• a list of the actions taken for the purpose of the procedure in respect of the incident and the date each action took place.

The review report should give an opportunity to demonstrate that the views of relevant persons have been considered and that a review has been conducted that has focused on systems analysis that takes account of best practice in review and investigation of human factors.

The clinic must offer to send the relevant person:

• a copy of the written report of the review;

• details of any further information about actions taken for the purpose of improving the quality of service provided by the organisation or other health services

• details of any services or support which may be able to provide assistance or support the relevant person, taking into account their needs

Records

The clinic must keep a written record for each incident to which the duty of candour procedure is applied, including a copy of every document or correspondence relating to the application of the duty of candour procedure to the incident.

Reporting and Monitoring

It is the clinic manager’s responsibility to ensure the ‘Duty of Candour record of notification’ form (Appendix A) is completed and compiled for the annual report. The annual report will include the following information:

• information about the number and nature of incidents to which the duty of candour procedure has applied in relation to the clinic

• an assessment of the extent to which the responsible person ( manager) carried out the duty of candour;

• information about the responsible person’s policies and procedures in relation to the duty of candour, including information about procedures for identifying and reporting incidents, and support available to staff and to persons affected by incidents;

• information about any changes to the responsible person’s policies and procedures as a result of incidents to which the duty of candour has applied;

• such other information as the responsible person thinks fit.

The report must not mention the name of any individual, or contain any information that could identify any individual.

References:
The Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (The Act)
The Duty of Candour Procedure (Scotland) Regulations 2018
Organisational Duty of Candour Guidance – Scottish Government (March 2018)