Dentist’s duty of candour and fitness to practise

The duty of candour means dental professionals must be honest when something goes wrong and failure to do so can amount to misconduct.

What is the duty of candour?

The General Dental Council’s Indicative Sanctions Guidance defines candour as:

“Candour means being open and honest with a patient when something goes wrong with their treatment, whether or not the patient has suffered harm.”

A joint statement by medical regulatory bodies, including the GDC, set out the following practical approach to the duty of candour:

• tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong;
• apologise to the patient (or, where appropriate, the patient’s advocate, carer or family);
• offer an appropriate remedy or support to put matters right (if possible); and
• explain fully to the patient (or, where appropriate, the patient’s advocate, carer or family) the short and long term effects of what has happened.

The duty of candour is not limited to openness and honesty with patients.  There is also a duty to be open and honest with colleagues, employers, relevant organisations and regulators when taking part in reviews and investigations when requested and where appropriate.

Finally, the duty of candour is more than an ethical requirement.

Since April 2015, general dental practices and independent dental providers registered with CQC also have a statutory duty of candour, required and enforceable by law.  The obligations associated with the statutory duty of candour are contained in regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (as amended). The statutory duty of candour applies regardless of whether a complaint has been made or a question asked about it.

General Dental Council guidance

The GDC’s Standards require dentists and dental care professionals to:

• Put patients’ interests first (principle one);
• Be honest and act with integrity (standard 1.3); and
• Offer an apology and a practical solution if a patient makes a complaint (standard 5.3.8).

The GDC does point out that the duty of candour applies regardless of whether a patients has made a complaint or not.

This guidance also states that “when things go wrong” dentists and other dental professionals must:

• tell the patient;
• 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.

Apologising and admission of guilt

Apologising does not necessarily mean that you are admitting legal liability for what has happened. This is set out in legislation Compensation Act 2006 (England and Wales) and the NHS Litigation Authority also advises that saying sorry is the right thing to do.  In addition, a fitness to practise panel may view an apology as evidence of insight.

GDC advice states that when apologising to patients and explaining what has happened, it does not expect registrants to take personal responsibility for something going wrong that was not their fault (such as system errors or a colleague’s mistake). However, it points out that patients have the right to receive an apology from the most appropriate team member, regardless of who or what may be responsible for what has happened.

Duty candour and fitness to practise

Failure to be open with a patient can amount to misconduct.  The Indicative Sanctions Guidance is used in Professional Conduct Committee (PCC) hearings if the panel decides that a dental professional’s fitness to practise is impaired and is considering what sanction to impose.

The current version (effective from October 2015) states:

“Candour means being open and honest with a patient when something goes wrong with their treatment, whether or not the patient has suffered harm.  Failure to be open with a patient can amount to misconduct, and a panel should 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.”

The GDC’s guidance clearly takes a serious view on the issue.  It is worth noting that the threshold in the guidance is whether a dental professional “took deliberate steps” to avoid their duty of candour.

The Indicative Sanctions Guidance also refers to the joint statement by medical regulatory bodies that the PCC must refer to when considering what is expected of registrants regarding the duty of  candour.

GDC Professional Conduct Committee

The GDC’s Professional Conduct Committee (PCC) decides if an allegation referred to it amounts to misconduct. The PCC will decide if misconduct means that fitness to practise is impaired.  The PCC can:

• conclude that the registrant’s fitness to practise is not impaired and close the case
• issue a reprimand;
• impose conditions for up to 36 months (with a review) (immediate conditions can be applied if required);
• suspend the registrant for up to 12 months (with or without a review) (immediate suspension can be applied if required); or
• erase the registrant from the Register.

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