Can more legislation raise care standards?

Effectively tackling harm, abuse and neglect in health and care settings is vitally important, but is more legislation the best way to address this issue?

I was giving evidence to the Scottish Parliament Health Committee today on the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill. The Bill covers three distinct policy areas: controlling non-medicinal nicotine vapour products (NVPs); tobacco control and smoking on NHS hospital grounds; ill-treatment and wilful neglect; and duty of candour.

UNISON supports the regulation of NVPs on the precautionary principle as we can see the potential risks of these products becoming a gateway to tobacco smoking that has done so much damage to public health. We also support a ban on smoking in hospital grounds.The more controversial proposals relate to legislating for a duty of candour and new criminal offences for ill treatment and wilful neglect.

Care professions generally operate within culture of openness that supports an open discussion of potential harm and the management of risk. It is not clear that a new duty of candour on health and social care services is the best or only way of securing a culture of openness and transparency. It can be argued that consideration should be given to all other avenues for achieving this policy goal. The desired culture change could be secured through guidance, training and improvement support, rather than legislation.

The Bill will certainly create additional costs in excess of the optimistic assumptions in the Bill's financial memorandum. It will increase workload and probably add some bureaucracy that front line staff can do without. IT systems are generally not adequate or joined up to be of much assistance. There will need to be significant training and support.

This legislation could also have unintended consequences. Criminal offences can lead to defensive practice and even a culture of hiding bad practice, rather than the intended transparency. The development of a culture where open and transparent reporting is the norm requires employers to establish clear, no-blame incident reporting systems from which to learn and improve. It is also the case that some definitions in the Bill are less than clear and there is a risk for double or even triple jeopardy, with employment and regulatory procedures.

On the other hand we have to accept that there is inconsistently of approach. Observations made by Healthcare Improvement Scotland has shown that ethical and policy guidance has largely failed on its own to improve rates of disclosure. Research by the Professional Standards Authority outline the impact on health and social care professionals to exposure to stressful situations and heavy workloads, often linked with a requirement to process complicated information and focus on specific goals and targets. This 'stimulus overload‘ is cited as a potential contributor to unreliable implementation of best practice regarding a duty of candour. Normalisation of abnormal events becomes a way of coping with high risk situations.

Legislation can help to change culture although it rarely does so on its own. It will also need leadership, better staffing ratios and proper training and support for staff. All of these are likely to be in short supply with budgets stretched because of austerity. However, the Scottish Government's approach is inconsistent. When we made a similar case for new legislation to protect workers from violence at work, they produced similar arguments against legislation as those who are critical of this Bill. We are at least consistent in recognising the role of legislation!

While the evidence to support legislation in NHS Scotland is thin, it is somewhat stronger in the social care sector. The introduction of commercial contracts has put enormous pressure on staff and managers to cut corners in care. UNISON Scotland's 'It's Time to Care' report highlighted these pressures and they have if anything increased with the introduction of self-directed care. Staff reported that they were not encouraged to report safety or even carer abuse issues, because managers were concerned that they would lose the care package. A recent Employment Tribunal case involving a care manager showed that she was instructed to accept packages even when there were no staff to deliver them.

One reason to welcome the legislation is the emphasis on organisations and not individual practitioners. In remains to be seen how this will work in practice, but it should mean that organisations and their managers recognise their responsibility to provide the necessary support to staff. We have to improve organisational cultures rather than just create a monitoring tool. The remedial and publicity orders in the Bill are useful tools, although we should recognise the internal pressures within commercial organisations to suppress adverse reports.

On balance we believe that legislating for a duty of candour and the new offences could assist in achieving the stated aims. The Bill places important duties on organisations and managers, not just front line staff. However, care services have to be properly funded, otherwise there is a real risk that this Bill will simply result in staff being scapegoated for the system's failings.