Duty of candour and fundamental standards of care

The Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 make important changes to health and social care standards which are regulated by the Care Quality Commission. They represent one of the main ways in which the Government is responding to the Francis Inquiry, which recommended the enforcement of fundamental standards to prevent problems like those at Mid Staffordshire, Winterbourne View and elsewhere.

duty of candour thumbClick here to read our comprehensive step guide about the duty of candour, fundamental standards of care and fit and proper persons requirements.

Fundamental Standards – All Providers

The new Fundamental Standards of Care replace the 2010 Regulations and are a response to the Second Francis Report into events at Mid Staffordshire. Whilst the 2014 Regulations cover, in broad terms, the same subject matter as those dealt with under the 2010 Regulations, the Standards are now much more focused, the language is more direct and they set out clearly the standards to which all Health & Social Care providers must adhere in providing services. This dovetails with the requirement in the newly enacted Health and Social Care (Quality and Safety) Act 2015 which will in the future require the Secretary of State to make any regulations considered necessary to secure that services cause no avoidable harm to those that use them.

Duty of Candour – now applies to social care

Whilst the new Duty of Candour has been in force since the end of November 2014 for NHS providers, from 1st April 2015 there is a new Duty of Candour to which all social care providers in particular must adhere. This provides that where a notifiable safety incident occurs within a service, there are certain notification requirements which must be followed. The Regulations prescribe the definition of a notifiable safety incident and steps which must be taken. It is essential that all providers review systems and processes to ensure any notifiable safety incidents would be captured, and that staff have been trained so as to ensure the duty of candour is followed and implemented in applicable circumstances.

Potential criminal prosecution

Criminal prosecution for breaches of the Standards will now be more straightforward for the Regulator, as some of the Fundamental Standards are directly prosecutable criminal offences if breached, and can be prosecuted without the need for a Warning Notice from CQC – a new development.

Conclusions and Further Information

It is essential that regulation guide thumball providers and their managers are familiar with the detail of the Fundamental Standards. Services will now be judged and rated by CQC by reference to the new standards. Hempsons have provided extensive advice and training to health and social care providers on all aspects of the new Fundamental Standards, including the Duty of Candour, demonstrating compliance to CQC and on the Inspection model now applied by CQC.

In addition, Hempsons also produced an exclusive supplement with HSJ which was published in December 2014.

Click here to contact one of our specialists for more information.

 

Key Contacts

 
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Adam Hartrick

Partner, Harrogate
Mental Health, Healthcare Litigation, Healthcare Advisory, Clinical Negligence
01423 724014
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Stephen Evans

Partner, Newcastle, Harrogate
Mental Health, Healthcare Litigation, Healthcare Advisory
01423 724010
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John Holmes

Partner, London
Mental Health, Healthcare Litigation
020 7484 7557
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Racquelle Morris

Partner, Manchester
Healthcare Litigation, Clinical Negligence
0161 234 2413