Professional duty of candour

The consultation

The Professional Standards Authority circulated a questionnaire in April 2018 about the progress of healthcare professional regulators in embedding candour.

The AOP's response

We welcome the opportunity to respond to the Professional Standards Authority (PSA) questionnaire on the duty of candour. Our responses to the questions posed by the PSA are below.

In summary, our view is that the most important thing regulators can do to encourage candour is to provide more clarity, and where possible reassurance, about the relationship between the duty of candour and potential regulatory action.

Questionnaire responses

1. Do you think there has been a change in professionals’ attitudes to candour since 2014? If so, how?

We think that in general, registered optical professionals have become more aware of the requirement to be open with patients when things go wrong.

However, our members have also noted recent high-profile legal and regulatory cases which have highlighted the potential interplay between candour and legal/regulatory action. It could be said that while professionals are becoming more aware of the need for candour, they are also wary of it.

2. Is it possible to measure the extent to which professionals are complying with the professional duty of candour? Do regulators have a role in this task?

We doubt that general compliance levels could be measured accurately. Any attempt to do so would be complex and burdensome.

3. What role do professional regulators have in encouraging candour among their registrants?

Professional regulators have a central role in encouraging candour. The General Optical Council (GOC) has issued supplementary guidance on the duty of candour and how it links to the GOC’s standards of practice for individual registrants.

4. If regulators have a role in this, have they been successful?

We think the GOC has made some progress in encouraging candour, largely through the guidance it has issued. There is scope for it to do more.

5. Can professional regulators do more to encourage candour? If so, what?

We think the most important thing regulators can do is provide more clarity – and where possible, reassurance – about the relationship between the duty of candour and potential regulatory action.

Healthcare professionals realise that candour is a professional duty, and is key in enabling individuals, organisations and systems to learn from things that go wrong, and to do things better in future, for the ultimate benefit of patients.

Professionals also accept that sometimes an error which leads to an admission under the duty of candour will also raise concerns about fitness to practise, which could require investigation. However, as noted in our response to question 1, they are wary about the potential links between candour and regulatory action.

We think it is vital that the regulators’ rules and guidance, and their actions when investigating and sanctioning fitness to practise concerns, take the importance of candour into account. For instance, regulators should:

• Issue guidance that gives registrants a clear and rounded view of how regulators factor candour into their decisions
• Avoid acting in ways that unnecessarily deter registrants from being candid

There are links here to the Williams review into gross negligence manslaughter in healthcare. We gave evidence to the review about the need for the Government and regulators to ensure that reflection and openness is not compromised by regulators’ fitness to practise decisions.   

There are some specific opportunities for regulators, including the General Optical Council, to do more to encourage the use of candour, and we discuss these below.

Clarify how “when something goes wrong” relates to “distress”

The professional duty of candour applies (1) “when something goes wrong”, and (2) if this “causes, or has the potential to cause, harm or distress”. Distress is a very wide term, and the duty of candour does not explain whether it should be assessed objectively (for instance, by reference to what a reasonable person would find distressing) or subjectively. Distress can also be caused by many factors in a healthcare context, including factors beyond the control of healthcare professionals. To help professionals apply the duty of candour appropriately, regulators should clarify the meaning of “when something goes wrong” as it relates to distress.

One example of this difficulty from our members is the scenario where an appropriate referral to hospital for further investigation results in the patient being told there is no problem, and the patient (who may understandably have been distressed by the very act of referral) then demands an admission that the professional who made the referral has got things wrong.

Our view is that in such cases where the professional has done nothing wrong the professional duty of candour is not engaged. The distress the patient has experienced is simply a consequence of the provision of a healthcare service. The most appropriate next step will usually be for the professional to explain clearly to the patient what has happened and why, but this should not be confused with an admission that something has gone wrong.

Clarify the relationship between candour and mitigation in regulatory proceedings

Regulators already recognise that where a professional shows openness and insight where something has gone wrong, this may be a mitigating factor in regulatory decisions. For instance, the GOC’s guidance document “ “Fitness to Practise Panels Hearings Guidance and Indicative Sanctions” says that mitigation evidence can include “evidence of actions taken to apologies for and/or address the concerns which resulted in the proceedings being brought”, and that “a demonstration of insight of those concerns coupled with actions taken to avoid repetition of them may also be regarded as mitigating factors”.

It would be helpful if regulators could update their guidance on openness and mitigation to refer to the professional duty of candour.

Wider culture change

We think regulators could help to address professionals’ concerns about the relationship between the duty of candour and potential regulatory action by using their guidance and decisions to generate a culture change in attitudes towards mistakes. The aviation industry is often cited as a good example of this – building a good safety record because mistakes are learned from rather than concealed.

6. What barriers are there to professionals behaving candidly?

See our response to question 5 above.

7. How do professionals perceive the professional duty of candour?

See our responses to questions 1 and 5 above.

8. What materials or guidance relating to candour do professionals refer to?

Optical healthcare professionals refer to guidance issued by the GOC and by professional bodies including the AOP. They also refer to related material from other sources, including contractual requirements – for instance, NHS extended eye healthcare contracts include adverse incident reporting requirements.

9. What could be done in your sector and/or others to better encourage candour?

See our response to question 5 above.

10. How does your organisation encourage professionals to behave candidly?

We have issued guidance for our members on compliance with the GOC’s standards of practice for individual registrants, highlighting the need to be candid when things go wrong.

11. Are there any general comments, feedback, observations you wish to make?

Since individual healthcare professionals work within systems and organisations that can influence their behaviour, we think regulatory guidance and standards for employers should reflect the duty of candour that applies to individual professionals.

The GOC’s current Code of Conduct for business registrants does not refer to the duty of candour, although it does say that registered businesses should require the individual registrants they employ to comply with the GOC standards of practice for individuals, which reflect the duty. The GOC is about to consult on new draft standards for business registrants, and these will present an opportunity to require registered optical businesses to encourage candour.

More generally, our response to the Department of Health and Social care consultation Promoting Professionalism, Reforming Regulation in January 2018 highlighted the potential benefits of a strategic shift in the nature of healthcare professional regulation, to move beyond the current focus on individuals and take more account of the environments in which healthcare professionals work. This would apply to the duty of candour as well as to other regulatory requirements.