This consultation invites views on proposals to introduce legislation that will require organisations providing health and social care in Scotland to tell people if there has been an event involving them where the organisation has recognised that there has been physical or psychological harm as a result of their care or treatment.
A recent report from England emphasised the importance of the requirement that people affected by serious incidents should be notified and supported. However barriers to being open after serious safety incidents have been identified to include fear, worry, embarrassment and lack of institutional support. As few as 30% of incidents resulting in harm are disclosed to people who have been affected.
The Scottish Government seeks to introduce a duty of candour which will require services to make sure they are open and honest with people when something has gone wrong with their care and treatment resulting in harm. The statutory duty of candour is an organisational duty and would not apply to individuals providing services. The statutory duty will require that an organisation must act in an open and transparent way with people when things go wrong. It will outline the minimum requirements that must be in place to support the duty of candour and require that reports are made to describe the implementation of arrangements.
Organisational Requirements for Duty of Candour:
- Identify instances when there has been an event resulting in physical or psychological harm. Report the occurrence of these instances in person to the relevant person.
- Offer the opportunity to be involved in review of the events.
- Offer access to emotional and practical support following the event (to staff, patients and relatives).
- Confirm in writing the details of the personal discussion.
- Have arrangements to ensure that those involved with disclosure have the necessary knowledge and skill to undertake this work.
- Identify and inform relevant person of the learning that was identified following the disclosure and review of the adverse event.
- Report publically (according to an agreed frequency) on all ‘disclosable events’, including on details of the organisational training and support arrangements in place to deliver the organisational duty of candour. The learning and improvement actions arising from disclosable events would also be included.
- If there have been delays in being notified of an instance of harm, organisations should report on actions being taken to improve on monitoring and reporting arrangements.
Do you agree that the arrangements that should be in place to support an organisational duty of candour should be specified in detail?
Should the organisational duty of candour encompass the requirement that adequate provision be in place to ensure that staff have the support, knowledge and skill required?
Do you agree with the requirement for organisations to publically report on disclosures that have taken place?
Do you agree with the proposed requirements to ensure that people harmed are informed?
Do you agree with the proposed requirements to ensure that people are appropriately supported?
What do you think is an appropriate frequency for reporting?
What staffing and resources that would be required to support effective arrangements for the disclosure of instances of harm?
The statutory duty of candour legislation would include a nationally agreed definition of the types of harm that would trigger the organisational duty of candour. These definitions need to be developed and informed through discussion with health and social care professionals.
Disclosable events in relation to health care would involve:
- The death of someone receiving care where the death relates to the event itself (as opposed to the natural course of their illness or underlying condition
- The permanent lessening of bodily, sensory, motor, physiological or intellectual functions (including removal of the wrong limb or organ or the occurrence of brain damage)
- Returns to surgery, an unplanned re-admission to hospital, a prolonged episode of care, extra time in hospital or as an out-patient, cancellation of treatment or transfer to intensive care should also be included within the scope of events that result in harm.
- Prolonged pain and prolonged psychological harm also needs to be taken into account when framing definitions (e.g. prolongation for a continuous period of 28 days).
- The shortening of the life expectancy of someone using social care services would be disclosable. If a user of social care services required treatment by a healthcare professional in order to prevent death this should come within the scope of the duty to disclose. The occurrence of an injury that if left untreated would lead to death, impairment, harm or shortened life expectancy would also be within the scope of disclosable events for social care providers.
- Children’s social care services, alongside keeping children safe, are primarily focused on a child developing as well as it can and reaching his or her full potential. Decisions taken to that effect, such as taking children into care, may have unintended consequences, though it may not always be possible to attribute trauma to any particular action.
Do you agree with the disclosable events that are proposed?
Will the disclosable events that are proposed be clearly applicable and identifiable in all care settings?
What definition should be used for ‘disclosable events’ in the context of children’s social care?
What are the main issues that need to be addressed to support effective mechanisms to determine if an instance of disclosable harm has occurred?
Monitoring of the statutory duty of candour
The proposed organisational duty of candour would be monitored through the existing performance monitoring, regulation and/or scrutiny arrangements that apply to the organisation. This will differ according to the organisation responsible for the provision of care. This has been proposed in recognition of the importance of embedding organisational requirements within existing mechanisms that are already familiar to providers of health and social care. The consequences that will be applied to those who do not demonstrate that they are implementing a duty of candour will vary depending on the organisation concerned.
The duty of candour is to apply to all providers of health and social care. The intention is to consider the extent to which such a duty can be monitored using the existing regulatory mechanisms in Scotland. These are outlined below in respect of Scottish Government, Healthcare Improvement Scotland and the Care Inspectorate. Disclosure, reporting and follow-up of harm episodes is regarded as a key dimension of good corporate governance and, as such, it is expected that the proposed new duty will support and enhance existing provisions already in place.
Scottish Government National Health Service (Scotland) Act 1978 states that it shall be the duty of each Health Board to put and keep in place arrangements for the purpose of monitoring and improving the quality of health care which it provides to individuals.
Healthcare Improvement Scotland The 1978 Act places a number of statutory duties upon HIS, including a general duty of furthering improvement in the quality of healthcare and a duty to provide information to the public about the availability and quality of services provided under the health service.
The Care Inspectorate The Care Inspectorate regulates around 14,000 individual care services. This includes registering/deregistering and inspecting services, supporting services improve, investigating complaints and undertaking enforcement action. The Care Inspectorate also scrutinise the delivery of local authority social work functions
How you think the organisational duty of candour should be monitored?
What should the consequences be when it is discovered that a disclosable event has not been disclosed to the relevant person?
The full consultation and information on submitting a response is available at: http://www.scotland.gov.uk/Resource/0046/00460832.pdf