FEATURE Frankly My Dear


With the duty of candour regulation now expanded to cover all services registered with CQC, Adam Hartrick, Partner for Health and Social Care at Hempsons, offers advice on how to ensure you are playing by the new rules.


A significant new legal requirement came into force on 1st April 2015 for all providers that offer regulated activities to service users, including charities. In practice, this will apply to all social care providers that are registered with the Care Quality Commission (CQC) for the provision of regulated activities.


The new requirement is the duty of candour, which came into force in relation to NHS providers at the end of November 2014. On 1st April 2015 it expanded to cover all providers registered with the CQC, but it is important to note that the regulation in relation to non-NHS bodies is different in some material respects.


All providers of regulated activities must by requirement of statute act in an open and transparent way in relation to care provided to service users. As soon as reasonably practicable after becoming aware that a “notifiable safety incident” has occurred, a provider must notify the relevant person and provide reasonable support to him or her in relation to the incident. A notifiable safety incident is one which, in the reasonable opinion of a healthcare professional, appears to have resulted in:


• The 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 28 days


• Changes to the structure of the service user’s body – e.g. pressure sores or loss of limb


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• Prolonged pain or prolonged psychological harm


• Shortening of life expectancy


• The need for treatment by a healthcare professional in order to prevent the death of the service user, or any injury to the service user which, if left untreated, would lead to one or more of the outcomes noted above


Notification must comply with specific requirements – it must be given in person, provide a true account of the facts as known to the provider about the incident, advise on any enquiries into the incident that are considered appropriate, apologise and keep a written record of all of these matters.


It is important to note that it is a criminal offence to fail to comply with the notification requirements and, on conviction, a provider would be liable to a potential fine of £2,500 – together with the significant collateral damage to reputation if prosecuted.


In order to achieve compliance, it is important that all providers engage with the requirements of the new duty. It is vital that all notifiable safety incidents are captured and the requirements of the duty are followed. In practical terms:


• Staff must understand the new duty. They will need training, so as to understand their own obligations and the roles of those around them in relation to the duty


• This needs to be led from the top – from the Board of Trustees or Directors. The focus of the Board should be on ensuring that systems are in place to deliver compliance, including audits of incidents


All providers of regulated activities must by requirement of statute act in an open and transparent way in relation to care provided to service users.


• Staff need to understand how to identify when the harm threshold has been reached


• Have a clear organisational reporting requirement understood by all


• Staff need to be trained on how to communicate with service users and their representatives once the duty has arisen and how to apologise – expressing sorrow or regret, without admitting fault


• Investigation processes and procedures need to be robust to ensure that the full facts of a matter are revealed and communicated


Compliance forms are a key part of any CQC inspection and it is essential that all providers take steps to ensure their staff are trained and that they implement processes that will achieve full adherence to the rules and regulations.


www.hempsons.co.uk


www.tomorrowscare.co.uk


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