Every single person serving patients are required by the recommendations to contribute to a safer, committed, compassionate and caring service. The first recommendation sets out that all commissioning, service provision , regulatory and ancillary organisations in healthcare should consider the report and its recommendations, decide how to apply them to their own work, indicate whether they accept them and, where they do, set out plans for implementation and thereafter report regularly on progress.
The report recognises that the role of the registered, professionally qualified, nurse is crucial in the provision of healthcare and recommends that all healthcare providers and commissioning organisations should be required to have at least one executive director who is a registered nurse and should be encouraged to recruit nurses as non-executive directors.
At the same time, Francis notes that there is a "great deal of confusion among patients and the public who often attribute the incidents of poor care of which they complain to "nurses" when in fact what they have experienced are the actions or inactions, of a category of staff variously named "healthcare support workers" or nursing assistants or some other similar title."
Recommendations to address this issue range from a registration system for healthcare workers together with a national code of conduct to a uniform description for healthcare support workers, with the relationship with registered nurses made clear by the title.
The proposed registration system would apply to all healthcare support workers regardless of whether they are working for the NHS , independent healthcare providers, in the community or for agencies and would be prepared and maintained by the Nursing and Midwifery Council (NMC)
With the nursing profession already subject to a vast and often seemingly confusing and contradictory array of legislation and regulation, it is of note that a number of the recommendations add to these further. There is recognition that this should be achievable within existing structures but it is not as clear from the report as to how the recommendations will fit with existing legal duties and interface with existing standards and the NMC Code. Recommendations particularly pertinent to the nursing profession from a legal perspective include:
A statutory obligation to be placed on nurses for a duty of candour so they are honest, open and transparent with patients about mistakes
The report recommends a duty of candour to be imposed and underpinned by statue. Where death or serious harm has been caused to a patient due to an act or omission of the hospital or its staff, patients should be informed of the incident and given full disclosure of the circumstances. Nurses who believe that treatment they have provided has caused death or serious injury should also reported their belief to their employer as soon as possible. Gagging clauses which might prevent a concerned nurse (whether employed / agency or ex-employee) from raising honestly held concerns about patient safety should also be banned.
Hiding information about poor care to become a criminal offence, as is to cause death or serious harm to patients by non-compliance with fundamental standards
It should be a criminal offence for any nurse to obstruct another in the performance of their statutory duty of candour. It should also be an offence to provide information to a patient intended to mislead them about incidents, which may have caused death or serious injury. Enforcement of this offence would rest with the Care Quality Commission. However there is an urgent need for unequivocal guidance to be provided to those handling disclosure of information to coroners, patient and families, as to the priority to be given to openness over any perceived material interest.
An increased focus on recruitment, training and education of nurses, including an aptitude test for new recruits and regular checks of competence as for doctors
In addition to this training, without introducing a revalidation scheme immediately, the NMC should introduce common minimum standards for appraisal and support which responsible officers would be obliged to comply with. They could be required to report to the NMC on a regular basis. It would be "highly desirable" for the NMC to introduce revalidation, similar to that of the GMC, to reinforce the status and competence of registered nurses, as well as providing additional protection for the public.
Francis has advised that his recommendations represent not the end but the beginning of a long journey. It is therefore inevitable that significant legal changes will be required. Pending the Government's detailed response, implications for nurse's remains a road less travelled.
Duncan Bain (pictured) lawyer at UK law firm Morgan Cole
