Scottish Duty of Candour Regulations to come into force on 1 April 2018

Organisations are also under a statutory duty to ensure that employees receive relevant training on the duty of candour

Executive summary

The Duty of Candour Procedure (Scotland) Regulations 2018 (“the Regulations”) to come into force on 1 April 2018, setting out the procedure that health, care, and social work services will be required to follow in the unfortunate event that an individual suffers harm as a result of the care or treatment that they have received.

Duty of Candour

The Scottish Parliament has previously introduced a statutory duty of candour to apply to health, care, and social work providers by way of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (“the Act”). The Regulations, which will come into force on 1 April 2018, have been passed to accompany the Act and to prescribe the procedure which organisations must follow to create open and honest working environments. The procedure fundamentally involves the reporting of incidents and building a culture of learning from mistakes. The statutory duty applies to health services and all care services registered with the Care Inspectorate.

The duty of candour procedure must be followed whenever an unintended or unexpected incident occurs during the course of care or treatment of an individual which results in death or harm which is not related to the course of the condition that is being treated. The harm suffered may be physical or psychological.

In detail

When an organisation to which the duty applies becomes aware of an incident falling under the Regulations, it must take steps to follow the statutory procedure as soon as reasonably practicable. The organisation should either correspond directly with the affected individual or, where that person has died or lacks mental capacity, a person who is acting on their behalf (“the relevant person”) and:

  • Notify them within one month of the incident. This should include an account of the incident and an explanation of the steps that will now be taken under the duty of candour procedure.
  • Offer them a written apology. This is in addition to any apology provided at the time of the incident. The Act provides reassurance that an apology will not be treated as an admission of negligence or breach of a statutory duty.
  • Invite them to attend a meeting. The objective is to ensure that the relevant person is fully informed and that the process is as transparent as possible. The relevant person should be given the opportunity to ask questions before the meeting as well as during and should be allowed to express their own opinion of the circumstances surrounding the incident.
  • Provide them with a note after the meeting which includes a full account of the incident along with an explanation of the steps which will now be taken including information about any legal or review procedures which will now be followed.
  • Carry out a review of the circumstances which led to the incident within three months of the date of the incident. This review should take account of the relevant person’s views and they should also be provided with a written copy of the review upon its completion which sets out the steps to be taken to improve the quality of service on offer and details of any services which may be of assistance and support.

In addition, organisations must also produce an annual report on the duty of candour for each financial year which includes information such as the number and nature of any incidents which fell under the Regulations, avoiding the identification of any individuals. A written record of every incident must also be kept and stored along with a copy of every document and correspondence relating to the procedure under the Regulations.

Organisations are also under a statutory duty to ensure that employees receive relevant training on the duty of candour and the procedure that must be followed. Any employee who becomes involved in an incident must also receive further support.

Conclusion and implications

While the duty of candour already applies to many organisations and individuals through their professional regulators’ codes of conduct, the Regulations now impose a statutory obligation on service providers to follow one consistent, prescribed procedure.

Organisations should ensure that they have the correct systems in place to deal with the procedure when it enters into force on 1 April. For example, providers will need to have adequate training and support available to employees and will need to think about their own procedures for identifying incidents which fall under the scope of the Regulations. It is also important to consider how incidents are recorded to satisfy the reporting requirements and produce the necessary annual reports.

If this raises any questions please speak to your usual contact in Weightmans or contact Pamela Stevenson

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