Recommendation 183

Criminal offence to obstruct statutory duties

Not accepted - agree with principle

It should be made a criminal offence for any registered medical practitioner, or nurse, or allied health professional  or director of an authorised or registered healthcare organisation:

  • knowingly to obstruct another in the performance of these statutory duties;
  • to provide information to a patient or nearest relative intending to mislead them about such an incident;
  • dishonestly to make an untruthful statement to a commissioner or regulator knowing or believing that they are likely to rely on the statement in the performance of their duties.

The duty of candour is a further drive towards openness and transparency.  We have set out in the Care Bill  that in future, as a registration requirement with the Care Quality Commission, providers must be open with patients about care failings.  We are working with the General medical Council, Nursing and Midwifery Council and other professional regulators to strengthen the references to candour in their work including clear guidance that professionals who seek to obstruct others in raising concerns or being candid would be in breach of their professional responsibilities. Recommendation 181 outlines the approach, and along with the new duty itself should drive an open culture throughout organisations, including its staff. We do not believe an individual obstruction offence is necessary at this time, but will carefully watch the impact of this approach as the new duty evolves.

In addition, in April, the Enterprise and Regulatory Reform Act 2013 strengthened the position of whistleblowers so that an individual now has the right to expect their employer to take reasonable steps to prevent them suffering detriment from a co-worker as a result of blowing the whistle.

As the regulator of health and care, the Care Quality Commission is using staff surveys and the whistleblowing concerns it receives as part of the data in its new intelligent monitoring system. This data will guide the Care Quality Commission about which hospitals to inspect. Since September the Care Quality Commission’s new inspection system includes discussions with hospitals about how they deal with, and handle, whistleblowers.

The Government does not intend to criminalise untruthful statements to commissioners and regulators made by healthcare professionals. However, the Government has already introduced the false or misleading information offence into the Care Bill [see recommendation 182], which will allow for the prosecution of directors and senior individuals, where the offence has been committed with their consent or connivance or through their neglect, and a successful prosecution has been brought against the provider. This will include a fine and/or custodial sentence of up to two years for directors/senior individuals.

There is an equivalent provision regarding consent or connivance, in relation to directors and senior individuals, in the Care Quality Commission legislation (Health and Social Care Act 2008) which applies to all registration requirements, including the duty of candour when it is introduced. In addition, professional regulators will be working to agree consistent approaches to candour and reporting of errors, including a common responsibility across the professions to be candid as set out in recommendation 181.

Update

The Secretary of State for Health commissioned Sir Robert Francis to carry out an independent policy review, called Freedom to Speak Up, in order to provide independent advice and recommendations on creating a more open and honest reporting culture in the NHS. The review was asked to identify measures to help to foster a culture of reporting and in future better protect people who do speak out about patient safety, as well as learning lessons from the existing culture in the NHS by listening to those who have experience to share, both positive and negative. The aim was to learn from other areas where safety is vital – such as aviation, nuclear power and the oil industry – about how to foster a culture in which it is simply the norm to flag up problems, risks and mistakes as they occur and in which everyone – from the CEO to the cleaners – does the right thing without hesitation and without fear of comeback.

The recommendations of the review were published on 11 February 2015. The Government and all the national NHS bodies welcome the recommendations of the review and the principles that underpin them.