The law is ex­pected to cre­ate greater trans­parency in health and so­cial care

The Herald - - NEWS - DOU­GLAS WADDELL Dou­glas Waddell is a se­nior so­lic­i­tor in Brodies LLP’S Gov­ern­ment, Reg­u­la­tion and Com­pe­ti­tion di­vi­sion.

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.

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