Patient Safety Commissioner for Scotland Bill - Advisory Group: summary overview

Background

As discussed in previous meetings, this Bill seeks to create a Patient Safety Commissioner for Scotland who will work to bring together patient feedback and other sources of information to identify patient safety problems, amplify the voice of patients within the patient safety system, hold health boards and other healthcare providers to account for their responsibility to listen to patients and support providers to make improvements.

Our engagement with patients and the wider public showed clear support for an independent commissioner with statutory powers to fulfil the recommendation in the Cumberlege Review.

The Commissioner’s remit will cover all healthcare providers operating in Scotland, including NHS, NHS-contracted and independent healthcare providers. The Commissioner will work collaboratively with other organisations to improve patient safety, adding value to the patient safety system in Scotland rather than duplicating the work of existing organisations.

General purposes

The Patient Safety Commissioner will:

• promote and improve patient safety across the healthcare system in Scotland
• engage with healthcare professionals and organisations to amplify the weight given to patient feedback and the experience of patients in considering safety matters
• promote awareness of existing safety processes and guidelines both amongst the healthcare professions and with the public
• bring together information and patient feedback in order to undertake fact finding and horizon-scanning to identify wider safety issues
• carry out investigations into safety concerns
• promote better co-ordination between different healthcare providers (and providers of forensic medical services) in dealing with safety issues

Establishment, governance and accountability

• the PSC is to be appointed by His Majesty the King on the nomination of the Parliament and is accountable to the Parliament. This is consistent with arrangements for other independent scrutiny bodies
• the Scottish Parliament will recruit the Commissioner. The Commissioner will serve one term of a maximum of eight years. This is in line with the terms and conditions of other parliamentary commissioners
• we expect the Parliament will start recruiting the first Commissioner once the Bill has passed the final stage of its parliamentary passage and becomes an Act of law. The Commissioner would then appoint their own staff on terms and conditions which will need to be approved by the Parliament
• the first Commissioner will produce a set of principles governing their ways of working and set out how those principles will deliver the Commissioner’s functions. The Commissioner can review and revise these principles at any time as the need arises, but they should be reviewed at the very least by each new Commissioner upon taking up the role
• the Commissioner will convene an advisory group to provide ongoing guidance, challenge and input on difficult decisions. This group will be made up of patient representatives, specialists (including clinicians, academics, and people with expertise in ethics and equalities) and the third sector. patients and representatives of patients must make up at least 50% of the membership of the advisory group
• the Commissioner will prepare a strategic plan at four yearly intervals, setting out their objectives and priorities for that period along with the associated estimated costs
• the Commissioner will also prepare and publish an annual report on their activities, which will include a summary of their activity in the year the report covers, any investigations carried out and recommendations made, and a brief summary of the activities which the Commissioner intends to carry out in the year ahead. The annual report will be laid before the Parliament
• the Scottish Government will pay for the set-up costs and the first year’s operating costs incurred for the Commissioner. Thereafter, the Commissioner’s budget will be provided by the Scottish Parliament
• as the Patient Safety Commissioner will be independent of the Scottish Government and the NHS, it will be for the Scottish Parliament to decide their terms and conditions. However, we envisage that the Commissioner’s post will be full-time and that they will be supported by a small number of staff

Remit

• the Commissioner will be able to consider safety issues relating to any healthcare provided in Scotland. This includes NHS, NHS-contracted healthcare delivered by providers like NHS general practitioners and NHS dentists, and wholly independent or private healthcare providers (such as BUPA or Nuffield Health)
• the Commissioner will also be able to consider safety issues relating to forensic medical services delivered by NHS Health Boards
• patients and the general public will be able to raise concerns and relate their experiences directly to the Commissioner
• the Commissioner will not undertake complaints casework or advocacy on behalf of individual patients, their families or carers. This is because there are already established processes for patients to raise questions, give feedback and make complaints, in particular the NHS Model Complaints Procedure. There are also well-established responsibilities for other bodies to investigate issues relevant to individual complaints and patient safety
• the Commissioner’s role will be focused on preventing future harm. It is not to resolve or facilitate the resolution of past incidents, and they will not be able to make awards or any form of redress in individual cases, or assist individuals in seeking redress
• the Commissioner will be expected to work with other organisations in the healthcare sector, as well as the SPSO, to gather information to support the fact-finding and horizon-scanning activity
• the Commissioner will be able to carry out their own investigations into patient safety-related concerns where they decide there is a need for such an investigation. To support their investigations, they will have additional statutory powers to require information from any organisation and their staff which the Commissioner deems relevant. Organisations or staff members who fail to comply can be referred by the Commissioner to the Court of Session for consideration as a potential contempt of court
• the Commissioner will be required to make reports on the findings of their investigations to the Scottish Parliament and will make recommendations to which the organisations concerned are legally required to respond within a set period of time. A response of some form will be required but the content of the response is not restricted in any way. An organisation would not be bound to accept the recommendation or implement it, but if they do not they should give reasons as to why. Where an organisation fails to give any response at all, the Commissioner will be able to publicise that failure as they see fit
• in order to undertake meaningful and complete investigations, the Commissioner will have the power to require that organisations provide the Commissioner with confidential information which may include identifiable or anonymised patient information. The Commissioner’s office will be required to handle this information in a way that is compliant with data protection legislation. The Commissioner will be required to produce terms of reference for each investigation that justify their decision to require this patient information
• in order to guard against the possibility that someone in the Commissioner’s office mishandles patient identifiable information that is shared with the Commissioner to help with an investigation, the Bill will create a new criminal offence of breach of confidentiality of information which is shared with the Commissioner