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Duty of candour could lead to criminal prosecution

Boards of hospitals that breach the government’s proposed new statutory duty of candour could face criminal prosecution, the government has confirmed.

Health secretary Jeremy Hunt announced plans for the duty of candour today, in the government’s response to the Francis report.

He revealed the government would for the time being stop short of imposing such a duty on individuals, due to concerns about creating a “culture of fear”.

However, he said the issue would be revisited when patient safety expert Don Berwick’s review on “zero harm” care in the NHS reported this summer.

The statutory duty on providers will require health and care organisations to inform people “if they believe treatment or care has caused death or serious injury”, and to “provide an explanation”.

Mr Hunt said the duty would be in place in less than two years, and would be introduced through the Care and Support Bill currently going through parliament.

Corinne Slingo, healthcare regulatory partner at law firm DAC Beachcroft, told Nursing Times the announcement was an important step, but was light on detail and did not help providers understand how the duty would work in practice.

Nursing Times understands much of the detail on how the duty would be policed and enforced is still being worked through, but it is likely the Care Quality Commission will have a role.

The government response also set out plans for the new chief inspector of hospitals, based in the CQC, to refer organisations to the Health and Safety Executive where they have identified “criminally negligent practice” in hospitals.

Ms Slingo said this was not “massively different in theory”, as the CQC and other regulators can already make referrals to the HSE. However, she said in practical terms it would mean the chief inspector had to actively consider whether to make a criminal referral.

She said this was unlikely to lead to many more prosecutions, not least because the HSE would still have to weigh up whether it was in the public interest to prosecute and spend public money on a legal battle.

 

Sign our Speak Out Safely petition to support a transparent and open NHS. We are calling on the government to implement recommendations from the Francis report that will increase protection for staff who raise concerns about patient care.

 

 

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