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

10 Overview Of Cross-Cutting Themes

10.1 Chapters 3 to 9 of this report have presented respondents' views in relation to the questions set out in the consultation document. The questions sought views on the introduction of a statutory organisational duty of candour in health and social care settings in Scotland and on specific aspects of the introduction and implementation of such a duty. Across the questions, however, there were a number of recurring themes in the responses which could be seen both in the comments of those agreeing with the proposals and the comments of those disagreeing. These are drawn together in this final chapter of the report, providing an overview of the issues that respondents believed needed to be considered in any further policy development work.

The wider context

10.2 In general, respondents of all types saw the (continuing) development of a culture of openness and honesty as key to ensuring safe, high-quality health and social care services in Scotland. It was this openness and honesty which would support organisational learning and service improvement. Some saw the proposed legislation as helpful in promoting and supporting such a culture, while others saw it as potentially counterproductive. However, the general consensus amongst those broadly supportive of the introduction of the new duty was that it could not, on its own, be an effective lever for change. Change would require a clear message from management at all levels that openness and honesty were valued and encouraged.

10.3 A key theme in the responses was the importance of taking account of existing legislation and regulatory and professional requirements, as well as current initiatives relating to the development of policy and practice in this area. Respondents generally supported the introduction of the new duty - seeing it as complementary to existing arrangements - but were clear about the need for learning and alignment wherever possible to support a consistency of approach.

10.4 There was a strong view that the proposals were too health-focused. Respondents thought the duty and its implementation had to take full account of the entire health and social care landscape, particularly in the light of moves towards service integration. This meant that the duty had to fit the circumstances of health and social care services; the primary and secondary sectors; large and small (included single-handed) organisations; and a full range of professions and specialisms.

A person-centred approach

10.5 Respondents largely agreed that being candid with patients / service users when something went wrong should be inherent to a person-centred approach to service provision. It should reflect a positive relationship based on open communication between professionals and service users at all stages of care and treatment (e.g. in explaining care options and treatment risks). The duty of candour, thus, had to be developed to meet the needs of patients and services users, and that it should not result in worrying people unnecessarily about minor incidents. It was stressed that it would be important for the public to be aware of the duty and what it entailed, that the disclosable events should be meaningful to non-professionals, that those harmed were actively involved and supported at all points in the disclosure process, and that public reporting took account of the needs of a wide audience.

Equality considerations

10.6 The importance of taking account of the needs of different equality groups was raised by respondents in relation to a range of questions. The groups referred to most often were children and young people, those with communication difficulties and those who lacked mental capacity. It was argued that written information (e.g. summaries of disclosable events, information on sources of advice and guidance, public reports) should be provided in suitable formats for different groups, and that support should be provided by appropriately trained staff. It was further suggested that the provisions to inform 'relevant persons' should allow for carers, parents / guardians or 'named' persons to accompany or represent a harmed person . This would ensure that all groups understood and had the opportunity to be fully involved in proceedings.

Clarification and consistency

10.7 There were repeated calls for clarification in relation to specific aspects of the proposed new duty, its requirements and its implementation. In particular, respondents called for clarity about the definition of a 'disclosable event'; this was seen as crucial to the operation of the duty. However, clear definitions were also sought for terms such as 'relevant person', 'as soon as reasonably practical', and 'reasonable support'. Further information was also sought on issues such as the detail and format of written summaries and public reporting requirements.

10.8 The need for consistent application (albeit this might involve a degree of flexibility) across organisations and settings was highlighted, with clarity of definitions seen as one factor in achieving this. Respondents also called for a range of resources which would assist in achieving consistent implementation. These included: accompanying guidance with examples and case studies; national training courses and materials; and the development of templates for recording and reporting disclosable events.

Unintended consequences

10.9 Concern was expressed both by those in favour and those opposed to the proposed new duty about possible unintended consequences. These included the impact on professional practice and organisational culture; on compensation claims and litigation; and on public confidence in services.

10.10 In relation to professional practice and organisational culture, there was concern the new duty might lead to risk-averse decision-making in care and treatment, a tendency to classify events in ways which avoided the need for disclosure and the encouragement of a 'blame' culture with attention focused on the individuals involved in disclosable events. There was also concern that the definition of disclosable events might move attention away from the learning opportunities presented by less serious incidents and 'near misses'. In terms of claims and litigation, there was concern that any increase could impact on resources for services and in turn could impact on professional practice and organisational culture. Those concerned about undermining public confidence highlighted the need for careful handling of the public reporting requirements.

Resources

10.11 The resource implications for organisations in implementing a duty of candour were raised by respondents across all the consultation questions. Frontline staffing and staff training were seen as the key resources issues, although respondents also highlighted the resource implications of administrative, communication and system support, management input, and the provision of support services. In general, respondents argued that the resource implications would be significant and ongoing, and would impact disproportionately on smaller organisations.

10.12 It was also argued by some that a poorly resourced duty would 'do more harm than good'. There was a general plea that minimising the burden on organisations should be a key objective in developing the proposed requirements further, for example, in making use of existing procedures and systems for recording events and in setting the frequency of reporting.

Development and implementation of the legislation

10.13 Finally, across the consultation there were calls for further consultation with stakeholder groups - particularly in relation to the definition of disclosable events. A range of respondents noted interest in contributing to the further development and implementation of an organisational duty of candour.