The statutory duty of candour

All practices should already have clinical governance procedures that support adverse incident reporting by staff and let the practice meet its obligations as a registered organisation. In England and Scotland, this internal clinical governance process should dovetail with the practice's statutory duty of candour.

This legal obligation is distinct from the ethical duty of individual dental professionals and applies to healthcare organisations, including general dental practices and NHS Trusts. The details are set out in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (as amended) and the Health (Tobacco, Nicotine and Care etc) (Scotland) Act 2016 and the Duty of Candour Procedure (Scotland) Regulations 2018.

A statutory duty of candour is not yet in force in Wales or Northern Ireland, although a bill has recently been introduced to the National Assembly for Wales, and if passed will become law in summer 2020.

In addition to a general duty to act in an open and transparent way, the statutory duty of candour sets out what organisations must do when an incident meets the threshold for notification. In a practice setting, this applies when where something unintended or unexpected has occurred in the care of a patient and appears to have resulted in:

their death, where this relates to the incident and is not simply due to the natural progression of the illness or condition
impairment (of sensory, motor or intellectual function) that has lasted or is likely to last for 28 days continuously
changes to the structure of the body (for example, erroneous extraction)
prolonged pain or prolonged psychological harm - this must be, or likely to be, experienced continuously for 28 days or more
shortening of their life expectancy
or where the patient requires treatment by a healthcare professional in order to prevent death, or the adverse outcomes above.

A different threshold applies within NHS Trusts, where notification is required in the event of:

the death of the service user, where the death relates directly to the incident rather than to the natural course of the service user's illness or underlying condition, or
severe harm, moderate harm or prolonged psychological harm to the service user.

As soon as is reasonably practicable after a notifiable incident occurs, the organisation's representative must tell the patient about it in person. Most will already have been made aware of a problem at the time of the incident, but the organisation is required to provide a full explanation of what is known at the time as well as an apology. Failure to make that notification may amount to a criminal offence.

There is also a statutory duty to provide reasonable support to the patient after a notifiable incident. This might take the form of giving emotional support or providing an interpreter to make sure discussions are understood.

While the statutory duty applies to organisations, dental professionals may act as the practice's representative under the statutory duty and are expected to cooperate with governance procedures. The GDC's Indicative Sanctions Guidance advises fitness to practise panels to 'take very seriously a finding that a dental professional took deliberate steps to avoid being candid with a patient or to prevent someone else from being so'.

DDU members can call our advisory helpline if they are unsure about their dento-legal position under the statutory duty of candour.

Responding to adverse incidents

Responding to adverse incidents

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