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

6 Public Reporting (Q3a And Q4)

6.1 The consultation sought views on the public reporting of disclosures which have taken place. Two questions were posed: the first sought views about the proposed requirement for public disclosure, and second about the appropriate frequency for such reporting.

Question 3a: Do you agree with the requirement for organisations to publically report on disclosures that have taken place?

Question 4: What do you think is an appropriate frequency for such reporting?

Views on the requirement for public reporting (Q3a)

6.2 In total, 96 respondents replied to Question 3a. Table 6.1 below shows that three-quarters of these (75%) agreed that organisations should have a requirement to publically report on disclosures that have taken place, while 13% disagreed. A further 12 respondents (13%) neither agreed nor disagreed with the proposal, or expressed unclear or mixed views.

Table 6.1: Q3a - Do you agree with the requirement for organisations to publically report on disclosures that have taken place?

Type of respondent	Yes		No		Other		Total
	n	%	n	%	n	%	n	%
NHS	19	79%	3	13%	2	8%	24	100%
Third sector	20	95%	-	0%	1	5%	21	100%
Professional associations, support agencies and trade unions	8	50%	3	19%	5	31%	16	100%
Local government organisations	9	90%	1	10%	-	0%	10	100%
Scrutiny / regulatory bodies	3	60%	-	0%	2	40%	5	100%
Partnership bodies	4	57%	2	29%	1	14%	7	100%
Other organisational respondents	3	50%	2	33%	1	17%	6	100%
Individual respondents	6	86%	1	14%	-	0%	7	100%
Total	72	75%	12	13%	12	13%	96	100%

Percentages do not all total 100% due to rounding.

6.3 Altogether, 90 respondents made comments at Question 3a, and these are discussed below.

The need for clarity regarding reporting requirements

6.4 A strong theme across the comments from all respondents - regardless of their stated agreement or disagreement with the requirement for public reporting - was a perceived lack of detail in the consultation paper and / or a lack of clarity in the question posed about the purpose of public reporting, and the nature of any reporting (for example, in relation to the intended audience, or the form and level of detail of reporting). Some respondents stated that they felt unable to comment because of the lack of clarity provided.

6.5 Specifically, respondents wanted clarity on: (i) what the requirement to report publicly would cover (e.g. information on actual incidents; policies and procedures in relation to the duty; or information on compliance with the requirements); and (ii) whether the requirement meant public dissemination of reports primarily intended for regulatory, scrutiny or internal governance purposes or publication of information specifically for a wider public audience.

Views of those supporting public reporting

6.6 As noted above the balance of opinion was in favour of public reporting. Respondents saw public reporting as being in line with openness, transparency and accountability in public services. There was a view that to not have such a requirement would be 'at odds with a duty of candour'.

6.7 Respondents identified specific benefits which they saw as accruing from public reporting, for both service users and organisations. For example, it was suggested that the requirement would:

• Support patient / service-user understanding of the health and social care environment, and help maintain confidence in services
• Empower patients / service users by providing information for those seeking care and treatment, and encouraging organisations to involve people fully in investigating adverse events
• Support learning and improvement within and across services
• Reduce time spent responding to Freedom of Information requests.

6.8 However, respondents often qualified their overall support for public reporting. Comments mainly focused on the following issues:

• The rationale for public reporting: Respondents commented that the duty was intended to benefit patients and service users through disclosing adverse incidents. Once the incident was disclosed to the person harmed, further public disclosure provided no additional tangible benefit for those directly involved, and indeed may add to stress and psychological harm. It was thus seen as important that publication was seen to achieve public value. An initial trial period for public reporting was also suggested in order to assess whether it was justified.
• Protecting the rights and privacy of those involved: Respondents noted the need to be mindful of the impact of public reporting on those involved (patients / service users, families, and staff). This was seen as a particular issue in rural areas or where events, and the individuals involved, might be more easily identifiable. Guidance was sought on how personal data would be protected in the reporting process, and respondents put forward suggestions for how privacy might be protected, such as: having the option to exclude individual cases from public reporting requirements; developing a 'privacy impact assessment tool'; and ensuring that service user / family wishes were taken into account in reporting.
• Interpretation of published information: There was concern that information could be misleading if taken out of context. Respondents noted that cases were often complex, could involve more than one speciality and service, and that different services were not comparable and carried inherently different risks. There were also cases which may involve issues of contested liability. Respondents were concerned that publication could lead to a 'league table' culture, with services and / or individual staff targeted by the media. It was also suggested that staff may become vulnerable to disciplinary action if organisations felt they had to take action in the face of media scrutiny. It was stressed that any release of information should emphasise organisational learning, and that systems would need to be in place for dealing with the media.
• Accessibility of published reports: Respondents stressed that any reports should be easy to locate and designed to be easily understood by the general public. They should also be available in formats suitable for those with a range of special needs.
• Unintended consequences: There was a concern that public reporting could impact on the way the duty of candour was interpreted by frontline practitioners or managers. It was suggested that the fear of public reporting (or public / media reaction to such reporting) may deter people from being candid or encourage staff to classify events in a way that avoided the duty. Respondents thought this could ultimately impact on service delivery by encouraging risk-averse culture and practice.
• Resource implications: Respondents noted that there would be resource implications in terms of staff time and related training. There was a concern that the requirement should be proportionate and additional administration kept to a minimum. The importance of avoiding duplication by aligning with other reporting requirements was noted.

6.9 These caveats and concerns were repeated in comments made by those who did not indicate clear agreement or disagreement in relation to Question 3a.

6.10 At a practical level, respondents emphasised the importance of consistency in reporting (albeit that this may allow for flexibility), and called for clarity on issues such as the content, style and timing of reports. Some respondents suggested a reporting template would help achieve consistency, and there was a suggestion for reports to be independently reviewed prior to publication.

6.11 Clarity was also sought on how the requirement would be monitored and enforced, and what the sanctions for non-compliance would be.

Views of those opposed to public reporting

6.12 Those who opposed public reporting gave reasons which largely overlapped with the caveats and concerns put forward by those supporting the proposal:

• Public reporting of disclosures was of questionable value and would provide no additional benefit to those who had been harmed by an adverse event or in relation to organisational learning. Existing reporting requirements were already in place, or information could be requested under FOI rules. Therefore, there was no need for additional reporting as part of the new duty.
• Public reporting would have resource implications for organisations.
• Public reporting would be counterproductive in developing a culture of openness and continuous improvement, and could lead to individual staff or organisations classifying events in ways which avoided the requirement to report. Respondents thought public reporting should focus on identifying themes and implications for service improvement rather than the number or detail of individual cases.
• Public reporting could have a negative impact on public confidence in health and care services with the risk that information could be misinterpreted when taken out of context.

Views on the frequency of public reporting (Q4)

6.13 Question 4 in the consultation paper sought views on the frequency of public reporting, inviting comment in relation to annual, bi-annual or quarterly reporting. Altogether 78 respondents replied to Question 4. Table 6.2 below shows that the majority (48 out of 78, 62%) were in favour of annual reporting.

Table 6.2: Q4 - What do you think is an appropriate frequency for reporting?

Respondent type	Annually	Bi-annually	Quarterly	Other	Total
NHS	13	2	-	5	20
Third sector	8	1	6	2	17
Professional associations, support agencies and trade unions	5	1	2	3	11
Local government organisations	9	-	1	-	10
Partnership bodies	6	-	-	-	6
Scrutiny / regulatory bodies	2	-	-	1	3
Other organisational respondents	1	-	1	3	5
Individual respondents	4	-	2	-	6
Total	48	4	12	14	78

Support for annual reporting

6.14 Annual reporting was, by and large, seen as 'manageable', 'proportionate' and 'reasonable'. A key theme in the comments was the need to balance the potential resource implications of public reporting with the benefits of openness and effective scrutiny. Annual reporting was seen to deliver this.

6.15 On a more practical level, respondents believed that annual reporting would allow time for cases to conclude and, in some cases, for legal action to be resolved. It would also allow time for organisations to assess the incident and identify any learning points.

6.16 Some respondents suggested that annual reporting would align well with other reporting requirements - in particular, the NHS annual review process, and requirements regarding reporting of NHS complaints and feedback.

6.17 Others highlighted potential disadvantages of more frequent reporting which, it was suggested, may be perceived as punitive by staff involved in incidents; would make it harder to protect the identity of those involved; and would be too onerous for smaller organisations.

6.18 Some of the respondents who supported annual reporting nevertheless suggested that more frequent public reporting may sometimes be merited. It was suggested that this may depend on the type of organisation, while others suggested this may apply in more specific circumstances, for example:

• In 'high-volume' health settings
• For incidents that merited speedy escalation to the public domain
• On reaching a specified threshold for the number of incidents disclosed
• On request, in response to particular circumstances.

6.19 Those who favoured annual public reporting often suggested that this could be supplemented by more frequent internal reporting - operating as part of organisational (or partnership) governance mechanisms. It was also pointed out that many incidents that might give rise to a duty of candour in the social care sector would be reported to the Care Inspectorate almost immediately.

Support for bi-annual reporting

6.20 Those favouring bi-annual reporting suggested that this would allow enough time for investigations to conclude, or would be 'sufficient' if public disclosure was required as part of the legislation.

Support for quarterly reporting

6.21 Comments made by those who favoured quarterly reporting were similar to the comments made by those who supported annual reporting, i.e. they suggested this was reasonable or proportionate without being overly bureaucratic. Respondents also made reference to existing reporting requirements: several third sector respondents offered the requirement to report incidents in the social care field to the Care Inspectorate within 24 hours as a benchmark; while a professional body referred to the requirement for quarterly submission of complaints reports under the Patients' Rights (Scotland) Act 2011. However, two slightly different views offered by this group were that regular (i.e. quarterly) reporting was merited because it reflected the seriousness of the issue or because it would allow speedy identification of common themes.

The view of those opposed to public reporting

6.22 Several respondents opposed to, or with concerns about, public reporting nevertheless indicated a preferred frequency for reporting. The objective of aligning with other existing reporting requirements was a common theme in the views of this group, although those opting for annual reporting also thought that this was the most practical or least onerous option. Two respondents commented that the question assumed agreement with the principle of public reporting.

Views of those not indicating a clear preference for frequency of reporting

6.23 Respondents who did not indicate a clear preference for frequency of reporting offered comments which reflected those made by other respondents, focusing on: (i) the lack of clarity about the purpose of public reporting; (ii) the need to balance the burden on organisations with the benefits of openness and public confidence; and (iii) the benefits of aligning with existing local governance arrangements, and other sector-specific disclosure and reporting duties or scrutiny activities.

Other points relating to frequency of reporting

6.24 Additional points made by respondents in relation to frequency of reporting were as follows:

• Some called for a flexible approach to reporting, suggesting that frequency should take account of the level of harm experienced in any incident; the perceived level of risk; or the evidence of previous failure to disclose.
• Others suggested a two-stage approach, combining immediate reporting to a regulatory body in the first instance, followed by subsequent public reporting. There was also a suggestion that the regulatory body could collate reports for quarterly or annual reporting.
• There were also suggestions for: (i) a fixed timetable for reporting and (ii) a time lag (e.g. two months) to allow investigations to conclude prior to reporting being required.