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

3 Introduction Of A Statutory Duty Of Candour (Q1)

3.1 The consultation paper proposed that such a duty would apply to health and care services provided by NHS boards, local authorities, all organisations providing services regulated by the Care Inspectorate, independent hospitals and hospices, general practices, community pharmacies, dental practices and optometry practices. Views were invited as follows.^[4]

Question 1: Do you agree that the arrangements that should be in place to support an organisational duty of candour should be outlined in legislation?

3.2 A total of 108 respondents replied to Question 1. Table 3.1 below shows that 80% agreed with the proposal and 12% disagreed. Eight percent (8%) neither agreed nor disagreed, but expressed mixed or unclear views.

Table 3.1: Q1 - Do you agree that the arrangements that should be in place to support an organisational duty of candour should be outlined in legislation?*

Percentages do not all total 100% due to rounding. *Question wording as in the consultation questionnaire.

3.3 Altogether, 95 respondents made comments at Question 1, and their views are discussed further below. There was significant overlap in the points raised by different respondents, regardless of their degree of overall support for the introduction of a statutory duty of candour. In addition, all respondents stated clear support for the principles of openness and transparency in health and social care services when thing go wrong.

Reasons for agreeing with the introduction of a statutory duty of candour

3.4 Respondents who agreed with the introduction of a statutory duty of candour offered different explanations for their position, with some offering explicit support for the benefits of legislative action, while others expressed support for the underlying principles and policy aims which the legislation aimed to promote. The main themes from the comments were as follows:

• Legislation was seen to be a useful lever in bringing about changes in attitudes, practices and behaviour.
• A legislative approach with detailed requirements and guidance would ensure that the principle of candour was embedded in all health and social care organisations, and that it was implemented consistently.

3.5 Respondents also occasionally offered the following views:

• A statutory duty of candour would help to promote a positive culture in health and care services by encouraging openness, honesty and transparency, and facilitate learning from adverse events. In turn, it would enhance service quality and safety, help build trust and confidence among patients and service users, and may ultimately bring about savings through reductions in complaints and claims.
• A statutory duty of candour could support and complement current regulatory arrangements, and arrangements regarding the reporting of significant adverse events.

Qualifications to support

3.6 However, respondents who agreed with the introduction of a statutory duty of candour also often qualified their support in a range of ways, stating that legislation was helpful but, in isolation, would not be enough to bring about the desired policy outcomes. They stressed that any new organisational duty of candour would need to:

• Be implemented in a way that supports the continuing shift in organisational culture which values openness, transparency, and commitment to organisational learning
• Complement existing professional codes
• Take full account of existing disclosure, scrutiny and regulatory requirements and other current policy initiatives in the patient safety, service quality and service improvement fields
• Be aligned with other legislation relevant to the health and social care fields (including that relating to data protection and human rights, and any new approach to wilful neglect and ill-treatment)
• Minimise additional administrative burden and make use of existing procedures where possible - the importance of fully resourcing the implementation of the duty was also noted.

3.7 In addition, respondents highlighted the need to:

• Clarify how the duty related to the complaints system
• Take account of the needs of all groups, including children and young people and those with reduced mental capacity and mental health issues, and the full range of health and social care settings
• Learn from systems where a duty of candour was already in place.

Reasons for disagreeing with the proposed statutory duty of candour

3.8 Respondents who disagreed with the introduction of a statutory duty of candour offered reasons which largely overlapped with the points raised by those who agreed with the proposal. While this group supported the Scottish Government's stated policy aims, they did not think that a legislative solution was the best way to achieve those aims. Instead, they thought that openness with patients and service users would be best promoted through staff training, guidance and professional codes. Their main concerns were that:

• A case had not been made for introducing a statutory duty of candour, particularly in relation to the social care sector. Respondents suggested that the nature of the social care sector - with long-term care arrangements often leading to the development of positive relationships, and with well-established inspection and reporting regimes already in place - reduced the need for a statutory duty of candour.
• A statutory duty of candour would not address the issues of organisational culture which currently inhibit disclosure: Respondents thought that the introduction of the new duty, with associated monitoring and reporting requirements, could be counterproductive in bringing about positive change in this area. They identified a range of possible unintended consequences including: negative impacts on team working, creating a culture of blame and fear, encouraging risk-averse behaviour, and discouraging openness in relation to less serious events.
• The duty and its related reporting requirements would represent a burden on organisations. Respondents were concerned that the legislation was inflexible, top-down and bureaucratic and risked duplicating many existing practices and requirements. It was suggested that an emphasis on monitoring and reporting could be detrimental to learning and improvement, whereas a regulatory regime was seen to offer more flexibility in implementation and greater scope for practice to evolve.
• The focus on 'harm' and more serious adverse events was thought to be unhelpful. Respondents argued that all adverse events - including minor events and 'near misses' which would not be captured by the legislation - provided valuable learning opportunities.

3.9 Those who disagreed with the introduction of a statutory duty of candour nevertheless went on to respond to the subsequent consultation questions offering a range of views very much in line with those of other respondents.

Comments on the extent to which arrangements should be specified in detail

3.10 There were mixed views among all respondents in relation to how detailed or prescriptive the legislation should be. Some welcomed specified arrangements and consistency in practice. Others favoured less restrictive legislation which allowed for local arrangements and discretion in responding to individual cases. Still others favoured legislation based on overarching principles which would then build on existing arrangements and processes.

Other points raised

3.11 Other more specific points raised by all respondents included the following:

• The current proposals did not provide sufficient clarity or detail, particularly in relation to terms such as 'harm' and 'disclosable event'; there was also a view that the term 'disclosure' was preferable to 'candour'.
• The proposal was less relevant and presented difficulties for certain types of services / organisations (e.g. small community-based organisations and prison health services were both mentioned).
• Any new duty would need to operate in an integrated way across the health and social care sectors.
• The legislation should require a lead person within each organisation to take responsibility for implementation and operation. An advice body for staff involved in disclosable incidents might also be helpful.
• It would be important for the public to be made aware of the new duty and its implications, and how they could raise concerns.