Our response to consultation ‘The Duty of Candour’

We welcomed the opportunity to comment on the proposals and the constructive discussions with Welsh Government Officials regarding our particular areas of concern.

Specifically, we commented on two aspects of the consultation: firstly, relating to the introduction of the Duty of Candour and secondly, on the proposed changes to the Putting Things Right (PTR) Regulations. Here is the summary of our main points:

• We wholeheartedly welcome the imminent introduction of the Duty of Candour. If successfully implemented, the Duty should support the move within the NHS towards more openness and transparency, ultimately improving patient experience and confidence in the service.
• However, we are conscious that successful implementation of this Duty will be a significant undertaking for the NHS in Wales and require additional resources. We would welcome more detail on what resources will be committed to support the successful implementation of this Duty.
• While this consultation necessarily deals with the processes and procedures that will be put in place to support the introduction of the Duty of Candour, we consider that these proposals will only be successful when organisations have the right culture in place to encourage openness and to give staff confidence that they can raise issues without fear of consequences to them personally.
• The introduction of the Duty of Candour may generate more complaints to our office. In order to prepare for that possible increase, we are keen to learn more about the anticipated volume of the Duty of Candour reviews and PTR responses.
• Following the introduction of the Duty of Candour, when investigating relevant healthcare complaints, we are likely to consider whether and how the Duty was discharged. We will issue further communication to health bodies to ensure that they and the Welsh Government are aware that we will begin to consider whether the requirements of the Duty of Candour have been met during our consideration of cases.
• We would strongly oppose any changes to the PTR regulations and guidance scheme that would allow health bodies to re-consider complaints following our findings. To avoid any misunderstanding that health bodies can re-consider a complaint already investigated by us, we suggest some amended wording in the relevant sections of the regulations and guidance.
• For the avoidance of doubt, we want to ensure there is absolute clarity for the public that the PSOW’s independence and impartiality when determining cases is maintained. We wish to emphasise that in our casework decisions we are not bound in any way by the terms of the PTR Regulations or any of the financial limits within the Scheme. The PSOW’s powers are such that we have wide discretion to determine case and to make recommendations. The Ombudsman is not bound in any way by the terms of the PTR scheme or the financial redress limits within the scheme. In cases where serious injustice has arisen, recommendations for appropriate financial redress may be made by the Ombudsman within the terms of the Ombudsman’s remit, having considered the circumstances of any particular case.
• We suggest an amendment to the Duty of Candour Statutory Guidance 2023 to the effect that the learning from cases considered by us should form a part of NHS bodies’ assessments of how effectively they are complying with the Duty of Candour.

Our full response can be found on our website here.