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

CHAPTER 4: Monitoring of the statutory duty of candour

10.1. 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.

10.2. 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

10.3. 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. This is referenced in regulations governing services provided by independent contractors such as General Practitioners ( National Health Service (General Medical Services Contracts ) Regulations 2004) and pharmacists (National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009).

Healthcare Improvement Scotland

10.4. Healthcare Improvement Scotland (HIS) was created through the Public Services Reform (Scotland) Act 2010, which amended the National Health Service (Scotland) Act 1978 ("the 1978 Act"), on 1 April 2011. The HIS strategic plan 2011-2014 sets out the purpose for the organisation as;

"Our purpose is to support healthcare providers in Scotland to deliver high quality, evidence-based, safe, effective and person-centred care; and to scrutinise those services to provide public assurance about the quality and safety of that care."

10.5. The 1978 Act places a number of statutory duties upon HIS, including:

• a general duty of furthering improvement in the quality of healthcare
• a duty to provide information to the public about the availability and quality of services provided under the health service
• when requested by the Scottish Ministers, a duty to provide to the Scottish Ministers advice about any matter relevant to the health service functions of HIS

10.6. The 1978 Act sets out the functions of Scottish Ministers that HIS is to exercise:

• Functions in relation to supporting, ensuring and monitoring the quality of healthcare provided or secured by the health service including providing quality assurance and accreditations;
• Functions in relation to supporting, ensuring and monitoring the duty to encourage public involvement of each NHS board
• Functions in relation to supporting, ensuring and monitoring the duty to encourage equal opportunities of each NHS board
• Functions in relation to the evaluation and provision of advice to the health service on the clinical and cost effectiveness of new and existing health technologies including drugs

10.7. The 1978 Act also sets out the general principles in accordance with which HIS must exercise its functions, which includes that:

• the safety and well-being of all persons who use services provided under the national health service and independent health care services are to be protected and enhanced
• Good practice in the provision of those services is to be identified, promulgated and promoted
• Provision of those services taking account of guidance and information published or endorsed by HIS should be promoted and encouraged.

10.8. The 1978 Act provides HIS with powers to inspect any service provided by the National Health Service or independent health care services, in pursuance of its general duty of furthering improvement in the quality of healthcare in Scotland.

10.9. It also sets out that HIS must conduct joint inspections with other scrutiny authorities when requested by Scottish Ministers.

The Care Inspectorate

10.10. The Care Inspectorate (formal name Social Care and Social Work Improvement Scotland) was established on 1 April 2011 under the Public Services Reform (Scotland) 2010 Act as the new single improvement and scrutiny regulator in Scotland for social work and social care (taking over the functions of its predecessors, the Care Commission, the Social Work Inspection Agency and some of the functions of HMIE.

10.11. The Care Inspectorate's statutory duties include:

• Furthering improvement in the quality of social services.
• Undertaking joint inspections of services for adults and children.
• Providing information to the public about the availability and quality of social services.
• Providing advice to Ministers about any matter relevant to the functions of the Care Inspectorate.
• Taking into account standards and outcomes relating to care services and social work services and the Scottish Social Services Council's codes of practice in the performance of its functions.

10.12. The Care Inspectorate regulate 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.

Monitoring of Organisational Duty of Candour

10.13. The introduction of a statutory duty of candour would require that monitoring of implementation be undertaken in accordance with the statutory provisions set out in this Chapter and operational arrangements set out in Chapter 2.

Question 8: How you think the organisational duty of candour should be monitored ?

Question 9: What should the consequences be when it is discovered that a disclosable event has not been disclosed to the relevant person ?