We are one step closer to a statutory duty of candour, as the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill has gained the backing of the Scottish Parliament’s Health Committee.
In its stage 1 report published today, the committee gives the Bill its full support. If passed, it will introduce not only a legal duty of candour for health and social care organisations but also a new criminal offence of wilful neglect or ill-treatment
The majority of responses at the consultation stage supported the duty of candour. The committee recognised that for doctors regulated by the GMC, this is nothing new. Saying sorry and being honest when things go wrong has long been a respected professional obligation. Yet inconsistencies can arise, as other health care workers are not subject to such a stringent code of conduct. The Bill’s proposal to apply the duty to organisations, rather than directly on individuals, was welcomed by the committee as it ensures a consistent approach. Importantly, the committee agreed that an apology should not be treated as an admission of negligence – that would make the duty unworkable.
The new offence of “wilful neglect or ill-treatment” proved more controversial, attracting the support of only 60% of responses. Care workers convicted would face a maximum of five years in prison, or a hefty £10,000 fine. Care organisations could also be prosecuted and made subject to a remedial or publicity order. The Royal College of Nursing expressed concern that people might face criminalisation for simple errors, or that those taking orders from more senior staff might be unfairly penalised. The Medical Protection Society highlighted that the new offence might deter people from entering the medical or social care sector at all.
In response, the committee clarified that the offence will only be triggered by actions which are deliberate and called on the Scottish Government to provide training, support and education. One wonders whether they had in mind junior doctors who deliberately vote for strike action and wilfully don’t come in to work.
As the Bill progresses to stage 2, it looks ever more likely the duty of candour will become law in Scotland. In future, when healthcare organisations find themselves in a sad, sad situation... sorry can no longer be the hardest word.