Consent and Ethics: Adults

Healthcare professionals are required to be open and honest with their patients. When something goes wrong with a patient’s care or treatment and if it causes (or has the potential to cause) harm or distress, then there exists a professional duty of candour. This is a professional duty to inform, apologise and support patients if such events occur. 

The General Medical Council (GMC) guidance, states that healthcare professional must:

• inform the patient (or if appropriate their family or advocate) that something has gone wrong or that something unanticipated has occurred
• apologise
• offer appropriate support and a remedy
• explain the short and long term consequences of what has happened.

It is clear in law that an apology is NOT an admission of negligence; for more detail, see the NHS Resolution (formerly the NHS Litigation Authority) guide below.

The professional duty of candour also extends to being open and honest with your employing organisation, and to encourage a learning culture (by reporting near misses and incidents leading to harm).

Statutory Duty of Candour

There is also now a statutory duty of candour in both England and Scotland. The English and Scottish versions of the law are not identical but they both describe the series of steps (including that of apologising both in person and in writing) that healthcare organisations are legally obliged to follow in the event of qualifying incidents. What makes an incident qualify as a ‘notifiable safety incident’ (in England) or a ‘patient safety incident’ (in Scotland) and therefore trigger the statutory duty is complex and links to the appropriate guidance are provided below.

It is highly likely that statutory duties of candour will soon be introduced in both Wales and Northern Ireland as well. 

Candour, learning and accountability

In response to several high profile investigations into deaths while under medical care, the CQC conducted an extensive investigation into the reporting and investigation of harm and failings in the NHS in England.

Deaths are investigated as part of the duty of candour, to support sharing information with families, to improve learning and to demonstrate accountability. Throughout the process, the CQC found that families and carers have told them that they often had poor experiences of investigations and were not always treated with kindness, respect and honesty. The report found that there is currently no single framework for NHS trusts that sets out what they need to do to maximise the learning from deaths that may be the result of problems in care. As a result, the CQC made several recommendations which they felt would improve candour and accountability, the experience of patients and relatives and promote learning and improvement in services. Though the report focuses on NHS England and mental health services in particular, many of its lessons are applicable through secondary care and the UK as a whole. The report and recommendations can be found here.

For further information, below are a selection of useful links:

• General Medical Council (GMC) Openness and honesty when things go wrong: the professional duty of candour
• NHS Resolution (formerly the NHS Litigation Authority) – Saying sorry 
• Statutory Duty of Candour in England – a detailed guide from the CQC, including details of the threshold
• Statutory Duty of Candour in England – e-Learning from the Royal College of Surgeons
• Statutory Duty of Candour in England – a useful summary from the MDU including case examples
• Statutory Duty of Candour in Scotland – a useful summary from the MDU 
• Statutory Duty of Candour in Scotland - key principles from the Scottish Government
• Statutory Duty of Candour in Scotland – guidance from the Scottish Government
• Statutory Duty of Candour in Scotland – e-Learning from the Scottish Government
• RCS England Duty of Candour review and further links