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By Debbie le Quesne

Duty of candour – exploring the real cost of legalities

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Duty of candour – exploring the real cost of legalities

Like all computer users, the Google search engine is never far away from my fingertips, but I was amazed at the rash of links I found when I typed “CQC duty of candour.”

Page after page popped up – mostly because of some comprehensive work by the Commission search engine optimisation techy geeks. Clearly this is something CQC is going big about.

But these top of the pile listings were followed by law firm information articles, sinking in legal jargon and promoting their compliance services to avoid big trouble.

Some care observers branded the new regulation, introduced as ‘live’ at the start of the month, as “the rebirth of the CQC.” Indeed, the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 makes important changes to health and social care standards which now being regulated with fresh zeal.

They represent one of the main ways in which the Government is responding to the Francis Inquiry that recommended the enforcement of fundamental standards to prevent problems like those at Mid Staffordshire, Winterbourne View and elsewhere.

Lets get legal (promise I’ll be short): The new Fundamental Standards of Care replace the 2010 regulations and are a response to the Second Francis Report into events at Mid Staffordshire.

Whilst the 2014 regs cover, in broad terms, the same subject matter as those dealt with under the 2010 regulations, the ‘Standards’ are now much more focused, the language is more direct and they set out clearly the higher bars which all health and social care providers must adhere. This dovetails with the requirement in the newly- enacted Health and Social Care (Quality and Safety) Act 2015 which “will in the future require the Secretary of State to make any regulations considered necessary to secure that services cause no avoidable harm to those that use them.”

As part of that raft of change, the new duty of candour has been implemented. This provides that where a notifiable safety incident – basically those that cause harm –occurs within a service, there are certain notification requirements which must be followed.

Already emerging is confusion over the definition of ‘a notifiable safety incident’ and it’s critical all care workers are up to speed with this knowledge.

Under the Health and Social Care Act 2008 (Regulated Activities)(Amendments) Regulations 2015 the definition of ‘harm’ for independent sector health and social care providers is as follows:

  • Death of the service user, where the death relates directly to the incident rather than to the natural course of the service user’s illness or underlying condition;
  • An impairment of the sensory, motor or intellectual functions of the service user which has lasted or is likely to last, for a continuous period of more than 28 days;
  • Changes to the structure of the service user’s body;
  • Prolonged pain or prolonged psychological harm;
  • The shortening of the life expectancy of the service user;
OR
  • The service user requires treatment by a healthcare professional to prevent death or any of the above injuries.

Already the lawyers must be rubbing their hands at the potential money-spinning services they can offer providers to ensure the procedural steps in satisfying the duty, and evidencing it to demonstrate compliance, are in place.

It’s early days, but the impact of this new legal duty already appears to be looming as an extra training cost for managers and their staff. Who could possibly afford the consequence of getting this wrong?

Checklist: Having defined the notifiable incident, care providers must:

  1. Notify, and support, the relevant person as soon as reasonably practicable after becoming aware of a notifiable safety incident
  2. Provide an account of the incident as known at the time
  3. Advise what further enquiries the provider will be taking
  4. Offer an apology
  5. Follow up the above in writing, and provide an update on the enquiries
  6. Keep a written record of all communications

Guess WMCA will be running courses soon, but I promise we will do all we can in out bi-monthly member’s meetings so that no extra cost of taking people away from the workplace will be incurred.

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