Hi Sheila,

We met at the Road Care show in Epsom and I had posed a question to you regarding DOLS which you were going to speak to your lawyers about.

I’ll paste the question here again in case you did not receive the original email.

“Further to your talk at the Care Road show in Epsom I had posed a question on DOLS, and you had requested an email from me to try and decipher what the responsibilities of the service provider is in relation to the DOLS assessment being done and not receiving authorisation from the Council for a good few months. ie do the serive providers carry on with the best interest of the service user or wait until authorisation is received.

Furthermore, you had also requested I email you with regards to sending some guidance on the duty of candour and fit an proper person test.

I look forward to receiving your guidance and any suitable material on these issues.

Thanks,

Ali

Answered by Sheila Scott

Dear Ali,

Thank you for your question.

I was at a meeting with officers from CQC yesterday and I raised the question that you pose about what is the status of the service user when an application for a DoLS authorisation has been properly submitted to the local authority but there has been no response from the local authority for several months.

CQC said that they would carefully consider this matter and issue guidance about how this should be handled.

This is a complex issue but this is what I think you should do whilst waiting which I am well aware can be for several months:

• Take a copy of the application.
• You must I believe continue to make best interest decisions about any matters which could be perceived to be inappropriately restricting the service user’s freedom.
• Do not forget that you have a statutory duty to inform CQC of applications for DoLS and whether or not the application was authorised. You can read more about this at http://www.legislation.gov.uk/uksi/2009/3112/made from clause 18 2(c) and (d).

When CQC issues the guidance I will share it with you through this column.

Furthermore, you had also requested I email you with regards to sending some guidance on the duty of candour and fit and proper person test.

I haven’t finished yet my guidance on the fit and proper person but I will get it done during the Christmas holidays.

This is my advice about the Duty of Candour:

Top 10 Tips

Many care providers expressed concern about the new ‘duty of candour’ regulations which came into effect on 1 April 2015.

They outline requirements providers must follow when things go wrong with care and treatment, including informing people about the incident, providing reasonable support, providing truthful information and an apology when things go wrong.

As is often the case with new regulations, both the consultation and implementation proved to be significantly less complex than many anticipated.

It is vital that care providers implement a policy and procedure relating to the Duty of Candour regulations because the potential consequences of not implementing include imposition of fines and other penalties.

Sheila’s 10 top tips for approaching the Duty of Candour

1. You cannot ignore this piece of legislation – it is vital to be proactive and have a policy and procedure about the duty of candour in place. This should include a step-by-step guide for staff outlining what to do when a notifiable incident occurs and preparing a template notification letter.

2. Remember that the duty of candour only applies to the notifiable incidents that you already have a responsibility to inform CQC about, as listed in the legislation at the Government website http://www.legislation.gov.uk/uksi/2009/3112/made Regulation 18 ‘Notification of other incidents’, which came into effect in April 2010.

3. As was previously the case, you must decide whether or not you should inform CQC of a particular incident, including: the death of the service user; an impairment of the sensory, motor or intellectual functions of the service user for a period of at least 28 days; changes to the structure of the service user’s body; the service user experiencing prolonged pain or prolonged psychological harm, or the shortening of the life expectancy of the service user. If you do then you must now take the duty of candour into account as well.

4. It is the Registered Manager’s responsibility to notify CQC about any notifiable incident. This means that the Registered Manager will deal with the duties imposed by duty of candour regulations.

5. There is a responsibility to issue an apology. The apology should be regret that the incident has happened and what, if any, action will be taken. It should not be an admission of liability or an expression of opinion.  That may come after the incident has been thoroughly investigated if appropriate.

6. It is important that all staff receive in-house training on the duty of candour because they have a responsibility to report incidents to the Registered Manager.  It is from the information provided by staff that the Registered Manager should then decide whether or not the incident is notifiable.

7. Providers will be expected to promote a culture that encourages candour, openness and honesty at all levels and this must be reflected in your policy and procedure.

8. CQC has useful guidance on its website which can be found at http://www.cqc.org.uk/content/regulation-20-duty-candour

9. If you need further assistance I would suggest that you contact your insurer or insurance broker.

10. The regulation is subject to change. In the life of regulations this is still very early days. As things develop it is important to look out for further advice, especially considering eventual case law which may also impact on the how the duty of candour is implemented.

I hope this is helpful.

Best wishes.

Sheila