I am glad to say that we have had a positive relationship with Scottish Government ministers and officials. I have already held one meeting with officials who are working on the bill, and I was reassured to hear that the policy intention behind it sits neatly with what we ask for in our submission. It is perfectly possible to amend the bill and to frame the eventual regulations and guidance in such a way that they underline those points.
One of the key points for us is that we must be absolutely clear that potential harm, or harm that might arise in the future, is included. It should not be the case that the NHS or the nursing home conducts its own investigation and that it is only when, as the result of a rigorous investigation, it is found that harm has been caused or there was an unintended harmful incident that the patient or their family is spoken to. They should be involved at the very first stage when it is suspected that harm might have happened, so that they can be involved, if they want to be, in the investigation. Many of the investigations that we see were conducted with no input from the family, and when they see the investigation report, they say, “If you’d only asked me, I could have told you that it didn’t happen that way,” and it all has to start again. That is fundamental.
Training and support must be there from the beginning. We all agree about that. This is mostly about underpinning culture change and supporting services and staff to do the right thing. However, there needs to be a stick at the end. Otherwise, what is the point of passing legislation? We need to be clear about that.
There is a point about the definition of incidents. It is important—I understand that this is the policy intention—to include omissions. A failure to diagnose or a delayed diagnosis, when something is subsequently recognised, is an incident. It does not have to be a physical slip of the scalpel or something that we can physically see and define. It is something that has gone wrong in someone’s care that has the potential to result in harm.
I agree with Professor Britton’s point about apologies. When carrying out the duty of candour procedure, we would all want and expect there to be an apology, but we have a conceptual difficulty about requiring an apology. If families or patients feel that the only reason why they are getting something with the words “I apologise” in it is that they have to because it has been set in statute, there is a danger that the apology might be diluted.
Good practice is best dealt with in the guidance. Lots of good things could be said in the guidance about how to deliver information and how to make a meaningful apology. To my mind, an expression of sorrow or regret is not a meaningful apology. That is just human regret that something has happened. If that thing should have been avoided, we want people to take responsibility for it as well.
I totally agree with Christine Lang’s point about support. We are talking about a very difficult time for people, and the patient advice and support service and specialist charities such as ours are well equipped to help with specialist support.
We pointed out a potential gap in the bill to officials and I think that they are minded to have a good look at it. When there was an unintended harmful incident, what will happen if the treatment comes to somebody’s attention but they were not the provider of the treatment? Quite often, a GP will see or surmise that something went wrong in hospital treatment, or vice versa.
I am not saying that what happens in England is exactly the right way to deal with that, but the problem was recognised there and it is now a requirement that, if something comes to light about treatment that an individual received from another provider, people cannot just say, “It’s nothing to do with me, so I’ll keep my lips sealed.” They have to go back to the original provider and say, “Do you know what? I think you need to have a discussion with my patient about X, Y and Z.” The duty carries on, and that would be a nice way to close the gap in the bill.
We hope and expect that our constructive dialogue with officials will continue. They have indicated that they would like us to be involved in discussing the regulations and guidance when those are available. We hope to be involved in the training as well, to get it across to people that this is not something that they should be frightened of. They should welcome it, but they will need understanding and skills to do it well.
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