Duty of Candour Procedure ((DOCP) – what is it?)
DOCP was set up by the terms of Sections 21 and 22 of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016.
Where someone receives a health, care or social work service and this results in: -
(a) death;
(b) severe harm;
(c) harm resulting in the reduction of life expectancy; or
(d) other harm which results in the impairment of the sensory, motor or intellectual functions, pain or psychological harm continuing for more than 28 days and;
(e) is an unintended or unexpected outcome of the healthcare or social work service,
(f) and is a consequence of (in a medical context) the medical treatment then DOCP is activated.
Requirements of DOCP
These are set out in the Duty of Candour Procedure (Scotland) Regulations 2018. For incidents resulting from medical treatment, a significant adverse event review (SAER) has to be carried out. The SAER investigates:-
(a) what happened;
(b) what went wrong;
(c) whether the death or harm could have been prevented;
(d) if the death or harm were preventable, to make changes to the treatment and procedures in question so that the significant adverse event doesn’t happen again.
Does the patient or patient’s representative get involved?
Yes. Those carrying out the SAER must notify and liaise with the patient or patient’s representative and keep them informed throughout the SAER process. If it’s accepted something has gone wrong, then an apology should be made.
Does DOCP apply to both Hospitals and GP’s?
Yes. They both have the same duties under the DOCP procedure.
How soon should DOCP be activated?
It should be done as soon as reasonably practicable. This will vary depending on the type of treatment and how long the treatment takes.
What if death or harm occurs and the hospital or GP don’t activate DOCP?
Initially, it is a decision for the hospital or GP to activate DOCP. But, if they don’t you can challenge their decision. Initially you can complain to the Hospital or GP and ask them to activate DOCP. If they still refuse, then their decision is challengeable by the process of judicial review.
How does a SAER help in medical negligence claims?
Very often in the SAER if something has gone wrong this will be identified and responsibility for what has gone wrong accepted. You can then use the SAER to support a medical negligence claim. If, in the SAER the hospital/GP accept something has gone wrong which could have been prevented then liability for a medical negligence claim may be accepted on the strength of the SAER. Consequently, the SAER can make help settling medical negligence claims a lot easier.
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