The MDU in action

Not proactively acknowledging mistakes or being defensive with patients and their families could potentially destroy their trust and make them less willing to access care in future.  It’s also likely to harm your organisation’s reputation and wider public confidence in healthcare.

 
Organisations that don’t comply with their legal duty of candour face enforcement action, including conditions, removal of registration and even prosecution and fines. The CQC can and does prosecute providers for failures under the duty of candour and publishes details on its website where they’re often picked up by the local news media.  

Eight healthcare regulators (including the GMC, GDC and NMC) issued a joint statement in 2014 which said ‘Every health and care professional must be open and honest with patients and people in their care when something that goes wrong with their treatment or care causes, or has the potential to cause, harm or distress.’ Under their ethical duty of candour, healthcare professionals are expected to:

They include:

• Tell the person (or, where appropriate, their advocate, carer or family) when something has gone wrong; apologise; offer an appropriate remedy or support to put matters right (if possible); and explain fully the short- and long-term effects of what has happened.
• Be open and honest with colleagues, employers and relevant organisations, and take part in reviews and investigations when requested. 
• Be open and honest with regulators, raising concerns where appropriate. 
• Support and encourage each other to be open and honest, and not stop someone from raising concerns.

There’s more detailed guidance for healthcare professionals in The GMC and NMC’s Openness and honesty when things go wrong: The professional duty of candour (2015) and the GDC’s Being open and honest with patients when something goes wrong (2016). 

For organisations, the legal duty of candour for organisations applies in slightly different forms in all UK countries except Northern Ireland (which is committed to introducing one). You can find the relevant law and guidelines below:

England - regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The duty applies in NHS and private healthcare and is overseen by the CQC which has produced guidance for providers. 

Scotland - The Health (Tobacco, Nicotine etc and Care) (Scotland) Act 2016 and the Duty of Candour Procedure (Scotland) Regulations 2018 apply to NHS and private organisations The Scottish Government has produced accompanying guidance.

Wales - The Duty of Candour Procedure (Wales) Regulations 2023 and accompanying statutory guidance. The duty currently applies to NHS organisations but the Welsh Government hopes to extend this to private ones. 

Your organisation’s obligations under the legal duty of candour depend on your location and the healthcare setting. In England, for example, the threshold for notifiable incidents is different for primary care and private providers, compared with NHS trusts. These complexities mean that it’s important to seek MDU advice if you’re unsure what you need to do to comply. 

Remember that regardless of where your organisation is in the UK, your registered staff will have their own professional duty of candour in addition to the statutory duty.

However, these general principles should help you ensure that your practice responds in the right way and meets your legal obligations.

Insist on openness and honesty if something goes wrong
Ensure patients or their representatives are told as soon as is reasonably practical about errors during their care, even if it seems to be a relatively minor matter which hasn’t caused injury. This task should be entrusted to a member of the healthcare team with the communication skills and knowledge to give a full and frank account of what happened (based on the known facts rather than speculation), an explanation of what your practice is going to do to put things right and an apology. Your practice’s first concern must be openness and honesty with those affected, not the potential damage to your reputation. 

Say sorry for causing distress and/or injury
A genuine apology to a patient or their family can help restore trust. It might also prevent a complaint or resolve one more quickly. 

Contrary to what many people think, saying sorry isn’t an admission of legal liability. Section 2 of the Compensation Act 2006 says 'an apology, offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.' 

Support the patient and their loved ones
The patient may be distressed, confused or even angry to discover something has gone wrong. Given them time to digest the information, ask questions and express their feelings and provide access to appropriate support such as a counselling service. Ensure the practice has the patient’s contact details so you can check in on them and also update them on the progress of any investigation. Ensure the patient can get in touch with someone who knows about their case if they need to. 

Put things on the record
Follow up any discussions with patients in writing, including details of further enquiries and outcomes. This is a legal requirement under the duty of candour but it’s sensible in any case because it’s difficult for people to take everything in when receiving bad news. Keep copies of all correspondence with patients – you may need to refer back to these to ensure continuity of care or in the event of a complaint.

Review your policies and procedures 
If an adverse incident occurs there should already be clear guidance in place for practice staff to follow, which is in line with your legal obligations. This should include immediate actions required in the aftermath of an incident, the process for reporting and investigating what happened  and the relevant threshold for notifying incidents under the duty of candour. It should be clear who is responsible for key tasks eg who will represent the practice in discussions with patients under the duty of candour (generally the treating clinician). 

Organise regular staff training and encourage them to raise concerns
Adverse incident policies and procedures should be covered during staff inductions and rehearsed regularly in training sessions so they’re ingrained within the practice team. This will help foster a culture of openness and honesty where staff are expected to cooperate with investigations and raise patient safety concerns but will also be supported to do the right thing.

 
Learn from errors 
Patients and their loved ones appreciate honesty and an apology but this is more meaningful if they also see that an incident has been thoroughly investigated and improvements made. This shouldn’t be about finding someone to blame but rather looking at the root causes and identifying areas that need attention such as better systems, training or equipment, along with a plan to implement change. This is also another way to demonstrate good governance to health regulators like the CQC.

As an MDU Connect policy holder, you and your team have access to expert medico-legal and dento-legal guidance and support. 
We encourage you to address issues early to pre-empt problems, so contact us for specific advice or explore our resources. 

This page was correct at publication on 13th March 2025. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.