Statutory duty of openness and transparency

Accepted.
Subject to the passage of the Care Bill, a new criminal offence will be introduced applicable to care providers that supply or publish certain types of information which is false or misleading, where that information is required to comply with a statutory or other legal obligation. The offence 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 offence will give providers an additional incentive to ensure data and the information it provides are accurate. The offence will aid transparency and accountability in the provision of care so that regulators, commissioners and the public have a more accurate picture about a provider’s performance. The offence will apply to those care providers that falsify certain types of management and performance information and fail to exercise due diligence. Providers that make a genuine administrative error would not be convicted, providing they have processes and procedures in place to demonstrate they took all reasonable steps and exercised due diligence.
Our current intention is that regulations will limit the application of this offence in the first instance to providers of NHS funded secondary care and, more specifically, to the patient level information on outpatient, elective and accident and emergency activity that they are required to provide to the Health and Social Care Information Centre. However, we intend to test and confirm our thinking through further consultation before draft regulations are laid.

The Thirlwall Inquiry has noted action taken following the conclusion of the Mid-Staffordshire Inquiry 2013.

Please see our response to recommendation 21 above for detail on the statutory Duty of Candour. Also see response to recommendation 81 for comments on the fit and proper person framework and relevant legislation.

The Care Act 2014 sets out the framework of a criminal offence for a provider to supply or publish false or misleading information. The offence in the Act is very wide in its application, but can be limited via secondary legislation to apply to specific providers and information.

The Care Act received Royal Assent in May 2014 and will implement the offence in the following way:
• extends to any information supplied, published or otherwise made available in response to a statutory or other legal requirement, and not just to information provided to a regulator or commissioner, subject to the information being specified in regulations;
• is focused at an organisation level, whether corporate bodies or partnerships (referred to as “care providers”). It will only apply to Directors and other senior individuals where the offence is committed with their consent or connivance or through their neglect, and the provider organisation is also guilty of the offence; and
• is a strict liability offence at care provider level. This means that the prosecution would not have to prove that there was intent to supply or publish false or misleading information on the part of the corporate body or partnership (whether dishonestly, knowingly or wilfully). The offence will be specific to the patient level information on outpatient, elective and accident and emergency activity that providers of publicly funded NHS secondary care are required to provide to the Health and Social Care Information Centre. The offence will also be applied to Quality Accounts published by NHS Trusts. The Government intends to commence the regulations which set the scope of the offence in April 2015.

This recommendation was accepted by the Government.

The Government enacted the offence of supplying, publishing or otherwise making available false or misleading information under section 92 of the Care Act 2014. The offence extended to any information supplied, published or otherwise made available in response to a statutory or other legal requirement. Public bodies which provide health services, as well as those who provide health services pursuant to arrangements made with a public body, can be prosecuted for the offence, as well as directors of such organisations.