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The Scottish Statutory Duty of Candour

Document Cited authorities 4 Cited in Related
Vincent
Published date01 May 2016
DOI10.3366/elr.2016.0345
Date01 May 2016
Pages224-229
Author
<p>At the time of writing, the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill has completed stage 2 of the Scottish Parliament's legislative process.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref> Part 2 of the Bill would impose a duty of candour on health service, care service, and social work providers requiring them to investigate and inform service users of harm actually or potentially caused to them as a result of unexpected or unintended events occurring during their treatment or care. As a government measure with cross-party support the Bill is likely to be enacted. Further amendment is possible at stage 3 but, for present purposes, it is assumed that Part 2 will be enacted in its current form.</p> BACKGROUND

A key recommendation of the 2013 report of the public inquiry into Mid-Staffordshire NHS Foundation Trust (the “Francis report”)2 was that there should be openness, transparency, and candour throughout the NHS, underpinned by statute. Longstanding professional and ethical duties requiring candour having failed to prevent serious harm to patients, it was considered essential that there should be a statutory system if a common culture of being open and honest with patients and regulators was to develop.3

The problems identified by Francis were not unique4 and the recommendations were accepted by the Westminster government5 . There is broad UK-wide political consensus that a statutory regime is desirable and should include healthcare, social care, and social work services. Legislation has been enacted in England to implement the recommendations,6 and is under active consideration in Wales7 and Northern Ireland.8

In Scotland, openness about adverse events in the course of health and social care has been national policy since September 2013.9 However, the Scottish Government decided that a statutory system was desirable, introducing the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill to the Scottish Parliament on 4 June 2015. Evidence given to the Health and Sport Committee at stage 1 was supportive of the principle of candour, but some questioned the need for a statutory scheme, and whether the system proposed would be effective.10 Such arguments as were made against Part 2 at the subsequent stage 1 debate were muted but to similar effect.11 Minor amendments were made to Part 2 at stage 2.12

THE SCOTTISH DUTY OF CANDOUR Upon whom is the duty incumbent?

The duty is incumbent upon a “responsible person” as currently defined by section 25(1)(a)–(f).13 All Scottish health boards constituted under section 2 of the National Health (Scotland) Act 1978, as amended, are included within the definition, as is the Common Services Agency for the Scottish health service. Definitions (a), (b), (c), and (d) collectively impose the duty of candour on all health service14 and health care service providers within Scotland, except for those providing such care as individuals, who are excluded. Definition (b) would, therefore, seem to include NHS general practitioner partnerships but not single-handed NHS GPs. The private health care service providers specified in section 10F(1) of the 1978 Act (independent hospitals, private psychiatric hospitals, independent clinics, independent medical agencies, and independent ambulance services) are included by definition (d), except for those providing such services as individuals. All Scottish local...

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