Tough new laws for care professionals

  • Care providers are getting to grips with two important new laws
  • The penalties for breaching the new duty of candour and wilful neglect laws range from fines to prison sentences
  • We take a look at what care organisations need to know

Two significant pieces of legislation have come into force, which could have serious implications for care providers.

Duty of candour is a statutory requirement for care professionals to be open and honest with patients when something goes wrong with their care.

Meanwhile, a new criminal offence of wilful neglect in health and adult social care has been introduced under the Criminal Justice and Courts Act 2015 from April 2015.

Here we look at what these two pieces of legislation mean for care providers, and what you need to do in order to comply with them.

Duty of candour

Duty of candour was hailed as potentially the biggest advance in patients’ rights in the history of the NHS when it was announced in 2014.

Its introduction was one of the recommendations of the Francis Report, published in 2013, into the Stafford Hospital public enquiry.

Originally applying only to NHS bodies, duty of candour was extended in April 2015 to other organisations providing care, whose services are registered with the Care Quality Commission (CQC). This includes a large number of charities, GP surgeries, care homes and hospices.

Notifiable safety incident

Duty of candour applies following a ‘notifiable safety incident’.

The definition of a notifiable safety incident is broad, but it can include any unintended or unexpected incident that leads to death, prolonged pain or shortened life expectancy.

Organisations should consider whether staff or volunteers need additional training or guidance, on what constitutes a notifiable safety incident.

Zurich Municipal has also outlined some of the other major considerations for care providers regarding duty of candour here.

Organisations found not complying with their responsibilities under duty of candour could be fined up to £2,500, or even face having their registration with the CQC revoked.

Wilful neglect

Meanwhile, another new law makes it a criminal offence for a care worker to ill-treat or wilfully neglect an individual user of health care or adult social care.

Organisations can be prosecuted if their “activities are managed or organised in a way which amounts to a gross breach” of their duty of care, and which makes neglect more likely.

Individuals convicted could face a fine or a prison sentence of up to five years. Organisations could attract penalties that include fines, publicity orders and remedial orders.

Under pre-existing legislation, care workers have been jailed for wilfully neglecting patients who lacked mental capacity. The new law aims to bridge a gap in legislation by including adult patients who do have mental capacity.

Honest mistakes

Like duty of candour, the law on wilful neglect was introduced in part as a response to the Stafford Hospital enquiry. Announcing the proposed law last year, the then Care Minister, Norman Lamb, said: “This is not about punishing honest mistakes – it is about closing the gap in current laws so that poor care cannot go unpunished.”

Concerns have been raised that the definition of ‘wilful neglect’ could be interpreted in a number of ways, and also about how the wilful neglect law will sit alongside duty of candour.

A consultation on wilful neglect last year found organisations perceived a “risk of adverse effects on the new culture of openness and candour” and “the possibility of staff being less open and honest when things go wrong out of fear that doing so may expose them to criminal charges of ill-treatment or wilful neglect.”

Need for training

Employees and volunteers were also concerned that they could become scapegoats for their employers when their actions had been constrained by management or organisational practices, and had not been given appropriate training or a proper induction.

Care providers should ensure staff are not only briefed on the latest legislation, but are also given any necessary training to help them comply with these pieces of legislation.

Looking ahead

Just as duty of candour originally applied only to NHS providers before being introduced more widely, a consultation is also being launched on plans to extend the law on wilful neglect to children’s social workers who fail to report on abuse.

This shows the importance of tracking legislative developments in other sectors, as they may have potential implications for your organisation in the future.