Government decisions after the Francis Report

The Mid-Staffordshire NHS Foundation Trust scandal prompted the Francis Report, which reviewed the failings of the Trust board and outlined recommendations to prevent such a situation ever happening again. The Report was published in February 2013, with the Government Response being published in November. In total the Francis Report made 290 recommendations, all bar 9 of these have been accepted in part or fully by the Government.

Some of the Government decisions that are of particular interest are:

  • The creation of a new criminal offence of wilful neglect.  Such an offence already exists under the Mental Capacity Act in instances where an individual lacks capacity or there is a reasonable belief that they do. However, this move has been criticised by the British Medical Association, who argue that criminalising healthcare professionals will not create the culture of openness that is being strived for, discouraging them from speaking out, fearing any mistakes could fall under the offence. This is certainly not the intention. One of the key issues arising out of Mid-Staffordshire is that it seems employees may have been aware of issues but were reluctant to speak out, this is being sought to be addressed through a variety of the recommendations.
  • The Coroners and Justice Act 2009 requires that where a Senior Coroner has conducted an investigation and it reveals anything indicating a risk of other deaths, they are required to report this to anyone whom s/he believes may have the power to act.  It is intended that Future Death Reports will be more routinely shared, in particular with the Care Quality Commission (CQC). Such a move is likely to encourage the sharing of Future Death Reports more generally with other bodies.
  • Recommendation 87 proposed that the CQC be given powers to prosecute under the Health and Safety at Work etc Act 1974, or alternatively that the CQC should be given powers to prosecute a new offence with comparable provisions. This has been accepted in principle. There will be changes to the CQC’s registration requirements.  The CQC are also to adopt a stronger stance on prosecutions. At present they have the power to prosecute providers, directors and unincorporated associations, however, they have done so infrequently.  

However, the Health and Safety Executive (HSE) will continue to have a role, albeit the Liaison Agreement between the HSE and the CQC will be updated and this should help to clarify the involvement of each regulator and how they will work in unison.

  • The much discussed duty of candour, whereby individuals who believe or suspect that treatment or care provided by or on behalf of their employing healthcare provider has caused death or serious injury should report this.  A duty of candour should also be placed on healthcare providers to inform the patient. This recommendation has been accepted in principle. A contractual duty is already placed on providers through the NHS Standard Contract for 2013-2014.  It will also become part of the CQC registration requirements through the Care Bill. 

However, there is less certainty as to how this will be applied to individuals. The General Medical Council, Nursing and Midwifery Council and other regulators are to work together to agree a consistent approach.  It remains to be seen what will come from this. The remit of the duty being restricted to serious harm or death has been criticised with some arguing that patients should be informed of all harm to them.  Such a move has been rejected because of concerns of increased bureaucracy on organisations. However, it remains to be seen whether defining serious harm will present its own difficulties.

  • One of the key recommendations that the Government have declined to accept is recommendation 19 which proposed that there be a single regulator for all trusts.  The intention was that the regulator would deal with corporate governance, financial competence, viability and compliance with patient safety and quality standards.  This proposal was rejected, with the aim that the CQC, Monitor and the NHS Development Trust Authority will work more closely together.  The move to combine the functions was rejected because of potential conflicts of interest arising if one regulator was responsible for turning around failing organisations as well as assessing quality.  Keeping these functions separate is particularly understandable in light of the need for greater transparency.

View a copy of the Francis report and the Government’s response.

If you have any questions or would like more information please contact Laura Wilmhurst, Solicitor, or Paul Matthews, Director, Regulatory.  

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Paul Matthews

Partner - Head of Regulatory (Yorkshire and North East)

I am a Partner in the Regulatory team and a corporate defence specialist who provides up-front regulatory compliance advice and representation to businesses and senior managers in relation to investigations and prosecutions by regulatory bodies.