The law is expected to create greater transparency in health and social care
FROM tomorrow the duty of candour will be brought into force under the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016.
The duty of candour is a legal duty on health and social care organisations to inform patients, or their carers/families, when they have been harmed as a result of their care or treatment.
The duty applies where an unexpected or unintended incident occurs in providing a health, care or social work service that, in the opinion of an independent health professional, has or may result in death or harm to the person receiving care or treatment.
Harm must have been caused as a direct result of the incident rather than due to a patient’s underlying condition or illness.
Responsibility for exercising this duty of candour falls to the organisation in charge of delivering a health, social care or social work service to the patient.
This may include local authorities, health boards, care homes, and private health and care providers. Generally, the responsible person is not an individual, except where a person provides a care service and employs or contracts other people.
Organisations who fail to comply with the duty of candour would be served with a public notice by Healthcare Improvement Scotland or the Care Inspectorate ordering them to carry out certain actions by set date. It will not be enforced by sanctions such as fines or prosecutions.
When an incident of serious harm occurs, the service provider must notify the patient affected or a carer/family member in situations where the person has died or is lacking in capacity. Any notification must be made within a month of the incident taking place and must include a description of what happened, and an explanation of actions that will be taken.
The patient or carer/family member must then be invited to attend a meeting that must include: an account of the incident; an explanation of steps to be taken; an opportunity for the patient/carer/family member to ask questions and express their views; information about any additional legal or review procedures being carried out.
If the patient, carer or family member refuses or is unable to attend the meeting, they can still request relevant information, which must then be provided.
The service provider is also obliged to carry out a review, which should be completed within three months of the date of notification and must include input from those affected and an outline of actions to be taken. A written apology must also be sent to the patient or carer/family member.
Many health and social care professionals are already subject to a duty of candour as part of their professional practice requirements. However these are personal rather than organisational duties.
The new regulations are important because they are expected to create greater transparency in health and social care services in Scotland, particularly in relation to how improvements are being made.