The Department of Health have last week issued a consultation on how NHS organisations can be incentivised to implement the Duty of Candour and, specifically, how the NHS Litigation Authority might be given a role in its enforcement.

This DoH consultation will be of great interest and importance to any NHS organisation and responses have been requested by 27 March 2015 at the latest (a period of six weeks only). We would recommend that you respond to this

The commitment from the DoH to consulting on this approach arises from the Government response to the Francis Report,Hard Truths and was also tackled in the Dalton & Williams review of March 2014.

The essential proposal on which the DoH are seeking input is that the NHS LA may require its member trusts to reimburse part or all of the compensation costs paid out when they have not been open about a safety incident which subsequently becomes a claim for clinical negligence. There are some preliminary comments about how that may operate in practice, but clearly further detail would be required if this is to be implemented.

The document sets out the rationale behind the request and gives some preliminary comment about the options which might be taken forward, stating the likely advantages and disadvantages of each. Each of the options involves a mechanism of reimbursement by the member to the NHS LA, whether that is on a case by case basis or by an upward adjustment to the annual indemnity contribution.

From the point of view of the patient, there is no suggestion that this would limit the extent of cover provided and the NHS LA would continue to pay in full any compensation payments due to the patient.

The particular questions raised by the DoH are:

  1. 'Do you agree that the NHS LA should share information with the CQC when its members do not provide evidence that they have discharged their statutory duty of candour by being open with patients about the matters that result in a claim?
  2. Do you agree that NHS LA members should meet some or all of the costs arising from a compensation claim if they cannot confirm that they have discharged their statutory duty of candour in relation to that claim?
  3. Do you agree that any reimbursement arrangements should cover the same areas that have an offence attached in the statutory duty of candour – that is to the initial verbal notification and the content of such a notification?
  4. Which of the four options outlined (in the consultation) is your preferred approach, and why?
  5. Do you have any other ideas on how candour about service failings could be incentivised through the NHS LA?
  6. Do you have any concerns about the impact of these proposals on people sharing protected characteristics as listed in the Equality Act 2010 (the protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation)?’

While all NHS organisations will expect to comply with their Duty of Candour fully, there can be no doubt that this proposed additional enforcement option will need to be considered carefully and the opportunity taken to have your say as to whether this approach would help to deliver safer treatment for patients.