Consultation on Proposals to Introduce a Statutory Duty of Candour for Health and Social Care Services

CHAPTER 1: Existing approaches regarding candour

4.1. There has been strong support for the benefits of improving organisational arrangements for disclosure of harm in recent years. The Dalton-Williams review^[20] clearly outlined the expectations that all those involved in caring roles have a responsibility to be open and honest to those in their care. The recommendations from this review are summarised below from 4.2 to 4.4.

4.2. Organisations should support the development of a culture that values and supports staff to be candid. Providing health and social care services is associated with risk and things will inevitably go wrong from time to time. When this happens, people want to be told honestly what happened, what will be done in response, and to know how actions will be taken to stop this happening again to someone else in the future. This is one of a series of actions that should form part of organisational focus and commitment to learning, improvement and support of a culture where there is psychological safety.

4.3. Organisations must ensure that there is a clear commitment to ensure that a culture of candour is built as part of a wider culture of safety, learning and improvement. This includes the development of a process to ensure candour and open disclosure, systems and processes to assure that actions arising from learning are implemented and that staff are trained and support in work to improve a culture of candour.

4.4. The review recommended that there should be a statutory duty on organisations and that this would provide a powerful signal of what is considered essential and this should act as an important catalyst for care organisations to improve their systems and commit to a learning culture for their staff.

4.5. Healthcare Improvement Scotland have visited all NHS Boards in Scotland as part of the national programme supporting learning following adverse events. This confirmed that there is variation across the country in respect of the rigour and standard of open disclosure and support for families and staff when harm occurs.

4.6. Extracts from the review reports illustrate the variation that currently exists across the NHS in Scotland:

"The three significant cases showed evidence of a consistent, robust approach to the involvement of patients and families throughout the process"

"…there was no consistent approach for involving patients, families and carers in the incident investigation, or a systematic process for documenting these events."

"Of the four cases we reviewed, only two documented some level of engagement with the family or relatives"

"We were unable to identify from the policy how NHS Board X actually involves patients, families or carers in investigations of adverse events"

"However the level of support provided to staff was sometimes variable"

"The level of engagement with the patient or family varied across the six cases"

"Most policies lacked guidance on how to involve stakeholders and there were significant inconsistencies in practice"

4.7. The observations made by Healthcare Improvement Scotland are consistent with observations from work that has shown that ethical and policy guidance has largely failed on its own to improve rates of disclosure.^[21]

4.8. The 2013 Health and Care Survey^[22] asked respondents whether they believed a mistake was made in their treatment or care by their GP practice. 6% of respondents believed such a mistake had been made in their treatment or care. Of those that felt a mistake had been made in their treatment or care:

7% indicated that it did not require a response

Of those that required a response:

19% were completely satisfied with how it was dealt with
44% were satisfied to some extent
38% of those where were not satisfied

4.9. The Care Inspectorate regulate around 14,000 care services including care homes, care at home, childminders, daycare of children, adoption and fostering, housing support, secure care, school accommodation, nurse agencies, and offender accommodation. All services are required to notify the Care Inspectorate of the death of a service user and the circumstances of the death under The Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002. Additional requirements are placed on providers of care home services to notify the Care Inspectorate of any serious injury of a service user, accident or any allegation of misconduct by the provider or any person who is employed by the care service.

4.10. For care services registered on or after 1 April 2011, additional notification requirements are in place. These are not specified in legislation, but are determined by Care Inspectorate under the terms of the Social Care and Social Work Improvement Scotland (Registration) Regulations 2011 and includes accidents, incidents or injuries to a person using a service. The Care Inspectorate regards accidents requiring notification as unforeseen events resulting in harm or injury to a person using the service which results in a GP visit or a visit or referral to hospital. An incident is defined as a serious, unplanned event that had the potential to cause harm or loss, physical, financial or material. The Care Inspectorate also requires notification of allegations of abuse in relation to a person using a service. These additional notification requirements relate to all services regulated by the Care Inspectorate except childminders.

4.11. Ethically and morally health and care professionals are already required to tell people about instances of harm. However of the eight UK wide professional regulatory bodies only the General Medical Council (GMC) and Nursing and Midwifery Council's (NMC) standards explicitly require their registrants to be candid with people harmed by their practice. The General Pharmaceutical Council has a standard that requires their registrants to respond 'appropriately' when care goes wrong however it does not specify that this involves being candid with the patient. As a result the NMC has been working with the GMC to develop guidance on candour on behalf of all of the regulators. The Professional Standards Authority is overseeing this work, with the intention that all the regulatory bodies will undertake to modify their codes of conduct and guidance to reflect a common position on candour.