The Procedure

CommunicationThe Scottish Government Organisational duty of candour: guidance [1] details the implementation of the legal duty of the Duty of Candour Procedure (Scotland)  2018 [2]. The Guidance outlines how the ‘responsible person’ organisation must respond to people when an unintended or unexpected incident that results in harm or death has occurred. The procedure must be carried out as soon as practicable after becoming aware that a person has been the subject of an unintended or unexpected incident. The key stages of the procedure include:

(a) Identifying and contacting the relevant person.
(b) Notifying the person affected and/or their family/relative, where appropriate.
(c) Arranging a meeting with the person affected and/or their family, where appropriate and providing an apology.
(d) Carrying out a review into the circumstances leading to the incident.
(e) Providing the person affected with an account of the incident.
(f) Providing information about further actions taken and lessons learned.
(g) Making available, or providing information about, support for the person affected and staff involved.
(h) Preparing and publishing an annual report on duty of candour incidents.

Notification of a duty of candour incident by NHS dental practices should be made to the health board for which the practice is providing services.

The Duty of Candour Procedure – Factsheet [No 1] provides a definition of the ‘responsible person’; incidents that activate the duty; and key stages of the procedure.

Triggers for the procedure

In order for the duty of candour procedure to be triggered, an incident must fulfil the definition, i.e. an unexpected or unintended incident resulting in death or harm, that is not related to the course of the condition for which the patient is receiving care. An explanation of what constitutes harm can be found in the legislation and in the Scottish Government’s Organisational Duty of Candour guidance [1].

If you suspect a duty of candour incident has occurred, you will need to seek the opinion of another registered healthcare professional who was not involved in the incident. It will be the reasonable opinion of this healthcare professional that determines whether the incident should activate the duty of candour procedure.

The NHS Education for Scotland, TURAS website offers examples of Dental Specific Scenarios of situations where the Duty of Candour procedures may or may not be triggered.

Providing an apology

It is important that an open and honest apology is provided from the outset as this can reassure the person and/or their family and can help set the right tone for progressing matters. An apology given in accordance with the Duty of Candour procedure will not amount to an admission of negligence or breach of statutory duty. This is in line with the treatment of apologies under the Apologies (Scotland) Act 2016 [3].

The Duty of Candour – apology [Factsheet No 2] gives brief information about providing an apology. Full details are available in Scottish Government’s Organisational Duty of Candour guidance (Annex D) [1] and on the webpage.