The Health (Tobacco, Nicotine etc & Care) (Scotland) Bill 2015 will not win the prize for the most imaginatively-named piece of legislation passing through the Scottish Parliament this year. However, hiding away towards the end of the bill are two interesting developments for healthcare organisations and professionals – the introduction of a statutory duty of candour and a new criminal offence of wilful neglect and ill treatment.
The bill introduces a duty of candour on health and social care organisations to stand alongside the professional duty of candour already incumbent upon all healthcare professionals, but will only have the desired effect if those treating the patient co-operate. Regulators have made it clear that they consider professionals must be fully open and honest with patients when things go wrong. They must tell the patient when something has gone wrong; offer appropriate support to put matters right; offer a full explanation of the short- and long-term consequences; and apologise.
The bill specifically provides that this apology will not amount to an admission of fault. This does not alter the current position. Contrast that with the proposed Apologies (Scotland) Bill which would make evidence of an apology inadmissible in civil court proceedings but not criminal proceedings.
The very laudable motive for this is to promote a culture of transparency and full disclosure to avoid a repeat of situations such as those which arose in Mid Staffordshire. By encouraging candour rather than attributing blame, errors should be identified and resolved – with the hope that lessons are learnt and mistakes not repeated.
The bill would also create two offences, one aimed at carers and the other at care organisations. Both would create new statutory offences of ill-treatment or wilful neglect.
The new care worker offence will apply to everyone working in the adult health and care sectors (though not those working with children). Conviction could lead to a custodial sentence. An individual commits the offence if they ill-treat or wilfully neglect a person under their care. There is no definition of ill-treatment or wilful neglect and there are doubts about the precise scope of the new offences.
The care provider offence will apply to organisations. It concerns the management and organisation of the provider’s activities. It bites when a carer within the organisation ill-treats or wilfully neglects someone within their care but only if the way the provider’s activities are managed or organised amounts to a gross breach of a duty of care towards the victim and if in the absence of breach, the individual’s criminal conduct would have been less likely.
The principal justification for the new individual offence is to deter those who might otherwise wilfully neglect or ill-treat those under their care.
There is no particularly convincing explanation as to why an additional criminal sanction is the best means of protecting patients. There are already safeguards in the form of regulatory, disciplinary and complaint mechanisms. Furthermore, existing criminal offences are arguably broad enough to encompass situations which will arise.
Anomalously, the offence will not apply to someone providing gratuitous care in a private capacity. However, it will apply to volunteers providing gratuitous care. It is difficult to understand why this distinction is valid. The fear is that an offence would discourage such gratuitous care. However, there is as much, if not more, prospect of discouraging those in the voluntary sector from providing gratuitous care. Regulatory and disciplinary mechanisms are not available for private care arrangements but already provide a deterrent in the voluntary sector.
There is inherent tension between the professional duty of candour and the right of healthcare professionals not to incriminate themselves. The introduction of new criminal offences in the healthcare setting is not necessarily conducive to promoting a culture of openness and transparency. That is particularly so when there is continuing uncertainty over the definition and scope of those offences.
Clinicians faced with a complaint or investigation may have to think twice before answering any questions if there is a possibility that an allegation of wilful neglect or ill treatment may be made. If they refuse to answer questions they may face local disciplinary proceedings and a referral to their professional regulator for failing to comply with the professional duty of candour. If they answer candidly they may provide the authorities with sufficient evidence to prosecute them. Healthcare professionals will be damned if they do and damned if they don’t. The courts will have to determine whether the right not to self-incriminate trumps the professional duty of candour.
• Duncan Batchelor is Healthcare team partner, Clyde & Co www.clydeco.com