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New legislation was passed in 2016 which will place a duty of candour on health and social care organisations, as well as a new criminal offence of ill treatment or wilful neglect.
Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016
The Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill was introduced to the Scottish Parliament on 4 June 2015 by the Cabinet Secretary for Health and Wellbeing and was passed by the Scottish Parliament on 3 March 2016.
Provisions in the Act include the following measures:
- Duty of Candour – The Act includes a duty of candour on health and social care organisations. This creates a legal requirement for health and social care organisations to inform people (or their carers/families) when they have been harmed as a result of the care or treatment they have received.
- Ill-treatment and wilful neglect – The Act establishes a new criminal offence of ill-treatment or wilful neglect which would apply to individual health and social care workers, managers and supervisors. The offence also applies to organisations.
The Health and Sport Committee was designated lead committee for scrutiny of the Bill at Stage 1. All evidence submissions to the Committee have been published and the Committee published its Stage 1 report. Following amendments at Stage 2 and Stage 3, the Bill was passed by the Scottish Parliament.
Ahead of the implementation date of 1 April 2018, regulations were developed using powers created by Section 22 of the new Act. These will set out the detail of the duty of candour procedure to be followed by each organisation. These Regulations will be legally binding and require the approval of the Scottish Parliament.
Guidance will also be issued to support implementation of the duty of candour part of the Act and outline supportive information on how the Act is applied in practice. It will address how the duty can be integrated with existing processes for responses to complaints, adverse event and incident reporting and emphasise the requirements for support, training and identification of learning and improvement actions.
Duty of Candour
The duty of candour is a legal requirement for health, care service and social work organisations to inform people (and their families) when they have been harmed (either physically or psychologically) as a result of the care or treatment they have received.
The Act describes the incidents which would give rise to duty of candour procedure and also states that a registered health professional must decide whether the incident resulted in a certain outcome, a list of which is also set out in the Act.
The duty of candour procedure, which covers actions to be taken by ‘responsible persons’, will be set out in regulations. However, the Bill sets out the actions the regulations may make provision about, including meeting with, apologising to and providing support to those involved, as well as providing support and training to those carrying out the procedure.
Among others, the term ‘responsible person’ covers Health Boards, local authorities or any other person (other than an individual) who provides a care service or a social work or health care service, or an an "individual who provides a care service and who employs, or has otherwise made arrangements with, other persons to assist with the provision of that service."
Ahead of the Act's implementation on 1 April 2018, the Scottish Government published guidance on the organisational duty of candour. The guidance focuses on the implementation of the new procedure for all organisations that provide health services, care services or social work services in Scotland. Following an unintended or unexpected incident, organisations are encouraged to follow the guidance in implementing the processes outlined, to help ensure consistency of approach and equity of response across organisations.
Offences of wilful neglect or ill-treatment
Part 3 of the Act establishes offences relating to the wilful neglect or ill-treatment of adults receiving health care or social care. There are two main offences in this part: an offence that applies to care workers, and an offence that applies to care providers.
'Care worker’ is defined as:
- an employee who provides adult health care or adult social care (as defined in the Public Services Reform (Scotland) Act 2010);
- a volunteer who provides adult health care or adult social care;
- an individual who supervises or manages employees or volunteers providing adult 30 health care or adult social care; or
- a director or similar officer of an organisation whose employees or volunteers provide adult health care or adult social care.
The offence is committed where a care worker is providing care for another person and ill-treats or wilfully neglects that person. If providing that care is only incidental to the worker‘s other activities (for example, where the worker is a cleaner) then such a person would not fall within the definition.
Wilful neglect with regard to children's services
A consultation on proposals for a new criminal offence of wilful neglect or illtreatment with regard to services for children was launched by the Scottish Government. Provisions on the wilful neglect of children were not initially included in Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill after it was agreed that there were further issues which needed to be explored. The Scottish Government later confirmed that it would not extend the criminal offence to services for children and that the amendment proposed in the consultation paper is not the correct way to offer additional protection against wilful neglect or ill-treatment to children.
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