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Nursing staff 'mistakenly believe apology leaves them liable for error'


Senior nurses have been warned that when trying to implement the new legal duty of candour they may face resistance from some staff who fear having to offer an apology to patients when harm has occurred.

The law means clinicians will increasingly be asked by their employers to say “sorry” when a patient safety incident has taken place, but many will resist doing this because they may falsely believe they will be held liable, according to a serious incident investigator at a trust in Sussex.

“There can be awkward silences you feel you have to fill”

Elaine Spencer

However, nurses should be aware that their employer is obliged by the regulator to provide both a written and verbal apology within 10 days of the incident being reported or highlighted, said Elaine Spencer, serious incident investigator at Brighton and Sussex University Hospitals Trust.



Ms Spencer, who was speaking about the duty of candour at an event run by Health Conferences UK and who trialled the new requirements at her trust during the early stages of development, said the 10-day period was “quite a challenge” due to the time required to assess the level and type of harm.

The duty of candour law applies to patient safety incidents that either appear to have, or could in the future, result in death, severe harm, moderate harm or prolonged psychological damage. It does not include “near misses”.

She also warned nurses who may be asked to apologise that although they will be expected to explain fully to patients what has happened, they should be careful to only provide the basic facts initially and wait until after an investigation to provide more details.

Ms Spencer said: “I would say within those 10 days you couldn’t possibly understand what has happened. You may think you know…but you will not know until you’ve investigated it.”

She added: “Within those 10 days we explain what we are going to do…Of course as soon as you tell someone harm has occurred or may occur they want to ask questions and there can be awkward silences you feel you have to fill. I would say don’t. Give the facts you know at that point.”

The statutory duty of candour for organisations was recommended following the Francis Inquiry which investigated care failings at Mid Staffordshire Foundation Trust.

“You both have the same responsibly to be open and transparent”

Elaine Spencer

It was introduced for NHS providers in November 2014 and all other CQC-registered providers in April 2015.

The Francis report also recommended the legislation apply to individual members of staff, but the law stopped short of this and instead professional regulators – including the Nursing and Midwifery Council – were asked to strengthen their guidance on the duty of candour.

Ms Spencer said the new law brought employers into line with nurses’ existing professional responsibility to be open and transparent with patients and removed any potential “tension”.

She said: “Before the legal requirement – there could have potentially been a tension between what you wanted to be open and candid about with patients and what your organisation wanted to say to your patients.

“It’s bringing that together now – you both have the same responsibly to be open and transparent,” she added.


Readers' comments (24)

  • I'd hardly blame "system failures" contributing or causing a situation in the instance given with the injection.

    I work in Governance and the first question I would ask is didn't you check the label, both the drug and dose should be checked against the drug chart before administration.

    Our perception of colour differs from person to person so going by vial colours is an absolute "no no".

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  • michael stone

    Julie Laidlaw | 27-May-2015 2:32 pm

    It was a 'quick and dirty' term, Julie.

    By 'an honest mistake', I mean something 'with a bad outcome' but which most 'competent' staff (or, indeed, people) 'could have made, in the same situation'. So I mean, in essence, something which 'inevitably sometimes happens'.

    But if the reason is something like 'poor co-ordination', or 'dubious procedure', you then try to prevent the same 'mistake' from happening in the future, by changing the way things are being done.

    If the mistake was 'basically down to 'bad luck'' then you can't do anything about it.

    The point is, somehow we need a bit more 'it needs to be prevented - but perhaps there isn't any blame here'. Like if you keep hitting your own thumb, when hammering in nails - you know that you definitely did not intend to hit your own thumb, but you still need to figure out why it happens, to stop doing it.

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  • michael stone


    I can use something from my own experience, to better explain 'honest mistake'. I got into this EoL stuff, when my mum died at home late 2008 - I'm not going to explain the details, although they can be found in the link below. The basic situation, was that my mum had been peacefully terminally comatose for about 4 days when she finally died, I knew 'she wanted to die' and the GP knew she had strongly refused hospitalisation. My arrangement with the GP, was to call her at the Surgery, or to tell any cover GP 'that it was an expected death'.

    My mum died at 8-15 on a Friday morning - and things did not go well (especially for me), for the 7 hours after 9am.

    I decided to be sure that my mum had died, before I called anyone - and, as it happened, I wasn't sure if the GP arrived at the Surgery, before 9am. So I decided to go and buy my newspaper, then check that my mum was dead by checking that her skin was getting colder, which I did: then at 8-55am I phoned the DNs to cancel their visit, and to phone the GP to get her to come and certify my mum's death.

    When I phoned the Surgery, it turned out that the GP had disappeared to Europe at the start of a long weekend. The Surgery was 'busy' (translate as 'the other GPs were all with someone') and the receptionist told me to call 999 - not something I would do again, if the situation were repeated.

    But about a month or two after my mum's death, the GP phoned me up. The GP had 'analysed what happened' and her analysis was exactly the same as mine, except I was still puzzled by something. I asked the GP 'Why did your receptionist tell me to phone 999 - why didn't she wait until one of the other GPs could talk to me ?'. The GP looked at her notes and said 'The receptionist wasn't very sure about what you said to her - she thought you said 'I think my mum has died, but I've just been out to buy a paper and I can't tell because my hands are cold'.

    So I said down the phone 'Ah - what I actually said, was my mum had died, and I knew she had died because I went and bought a paper, and when I came back her skin was getting cold' - and 'instantly' the GP and I both agreed 'Ah - not the receptionist's 'fault''.

    We 'both immediately saw' that my phone call - 'my mum died a while ago, send the GP to certify' - isn't what receptionists 'are expecting': almost all calls would be 'I think my mum has died ...'. The receptionist 'scrambles the call between ear and brain' (which is why she was 'unsure about' what I had said to her) to 'fit what she normally hears', but SHE CAN'T CHECK. The receptionist wasn't going to say 'did you just tell me, that your mum died 40 minutes ago ?' because if she had 'misheard' a panicky relative would at that point 'shout at her down the phone', and later on the GP would do much the same.

    So neither the GP nor I, had considered what might happen if my mum died shortly before Surgery hours, and we could both see that the receptionist was inevitably going to do what she actually did (because she was a receptionist). I was 'immediately persuaded' that the GP would make sure that particular 'confusion' didn't happen again when other patients were dying at home.

    But this ISN'T my experience of trying to discuss why things happened with the PCT, the Ambulance Service or the police - unlike the GP, none of those 'organisations' just talk to you, 'like normal people'. One reason might be that GPs are 'much more autonomous' - GPs have got a few things they must follow, but they don't 'have a boss': paramedics, police sergeants, etc, all have 'someone higher up in the organisation 'imposing a party-line'' (another 'quick and dirty' phrase). And the 999 services all in essence used an argument of 'we were inadequately informed and we followed our own guidance/protocols correctly' - it is those 'protocols' which I have an issue with (it is very difficult and frustrating, to 'argue against guidance/protocols' !).

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  • Protocols are in place to protect patients first and foremost.

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