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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)

  • im sorry for not being perfect, imsorry youwere kept waiting 5 minutres as I was running behind because I took too long with the last patient who was upset

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  • Anonymous | 26-May-2015 7:46 pm

    'upset' probably isn't factored into managerial targets! <:-(

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  • Lily44 I didn't scroll far enough, I saw a name and assumed that this was the person who had made the comment so I attributed it to the wrong person. It was an error but not critical. Having said that I would ask that you do not patronise me as I am not someone who is just out of university. I only have 9 years nursing experience, but I have an additional 20+ years experience as a systems/software engineer. I am fully conversant with the problems of people failing to comprehend what is written in front of them, I first started working on the Tornado aircraft and was involved in writing user guides. There was also a system for users to raise queries against the operation of the software, one query kept reappearing even though the documentation clearly explained the operation of the software.

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  • Renal tech

    As with many things I think an element of balance is required. There should be systems in place to ensure that errors are minimised but that should not encourage an environment of false security where we no longer need to be meticulous. Because cars have better brakes than they did how many years ago does not remove the responsibility of safe driving from the driver.

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  • trevor tuitt, that is the whole ethos behind safety critical engineering, to reduce the risk to a minimum. Risk cannot be removed completely but needs to be managed, but why make mistakes easier to make? I return to the issue of drugs being in similar packaging, if the drug is iv only and is in a similar vial to one that is i/m or s/c only then this is creating an unsafe environment and that is a systemic failure as it does nothing to reduce the risk to patients and staff, no matter how meticulous the clinicians an error is almost inevitable at some point. It is the mean time between errors that needs to be determined and then a decision made on what constitutes an acceptable risk.

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  • As some of you have said,there can be " system failures " the couple of you that want to spend time arguing about sod all,get a grip.
    Drug labels,yep,they're there for us to read,with our eyes so we DONT get muddled up! The manufactures probably thing that the person opening the vial is a trained professional so simply having different writing on them should really be enough.You should all look at James Reasons research on human error,especially the bit about putting the cat food in the teapot.Human error exists and we can do anything about it.Thick stupid people exist and we need to get them off the pay role in our hospitals !

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  • michael stone

    Anonymous | 26-May-2015 6:15 pm

    Your specimen 'apology/explanation' isn't what I would want, as a patient - you write:

    '"I am sorry for what has occured during your stay in our care, as well as the physical and mental strains you are experiencing as a result. If I can do anything to make you more comfortable in any way, please let me know. I am certain that someone will discuss further with you the occurance you have experienced as soon as they have all the details necessary to provide you a complete explanation and a reasonable plan going forward. Please be patient and know that I am here to help keep you as comfortable as possible in the meantime."

    If you had no knowledge of what had happened, the response should be 'I'll find out who was there when it happened, and I'll ask them to come and talk to you about it'. A response with no information in it about the event I was unhappy about, and also containing 'waffle' such as 'reasonable plan going forward', wouldn't be what I wanted to hear - I would want to be talking face-to-face, with the people who were involved !

    There is a book by Henry Marsh, the neurosurgeon, titled 'Do no harm', which I'm reading at the moment. He doesn't like 'management-speak' any more than I do.

    p 260 There is an early morning meeting, when the doctors get together to discuss the patients who have arrived on the ward since the previous day. One of the junior (in effect, early in medical training) doctors was describing a 72 year old woman who had collapsed at home'. This junior doctor said:

    'Apparently she lived on her own and was self-caring and self-ambulating'.

    'Self-catering as well ?' Henry Marsh asked. 'And self-cleaning like an over ? Does she wipe her own bottom ? Come on, Speak English, don't talk like a manager. Are you trying to tell us that she looks after herself and can walk unaided ?'

    BasketPress | 26-May-2015 4:34 pm

    You have pointed at problem very clearly - lawyers (so Trust lawyers) will say 'don't admit to anything - don't APPEAR to admit to mistakes' while Francis, etc, 'want a culture of honesty and openness'.

    But one thing I am fairly certain of - IF 'both sides talk early on', sometimes an incident will be seen by all 'as an honest 'mistake'' and it will not go further: if it looks as if the professionals 'are defensive from the outset' then it is much more likely to escalate, and for both sides to become 'entrenched'.

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  • Yes, right from the get go…….the minute staff become defensive it will most certainly escalate and fromBOTH sides become entrenched.
    Patients used to be pretty vague about the treatment they received. But with patients becoming more aware of their condition and treatment (via the internet) staff need to be treating patients accordingly

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  • Mike...." an honest mistake " what is this ? and how does it differ from just a mistake ?

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  • Renal tech

    @ Anonymous | 27-May-2015 9:54 am
    I agree that human errors cannot be completely removed but in response to the different medications in similar packages if it is known by the people who administer it shouldn't some responsibility be expected of them to be extra vigilant, placing those drugs in physically different places, shelves, etc. All the responsibility should not be put on one group of people (manufacturers). I agree that they should try and make different meds as inconspicuous a possible but I come back to my original argument that a degree of balance is required. I work as a medical technician and I also see bad design by manufacturers but I have to mitigate for those where I can. It would be nice if they always took this into consideration but unfortunately they don't.

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