RCN Joint Representatives Conference 2013 – Francis Inquiry and RCN Accredited Representatives

1. RCN Joint Representatives Conference 2013 –Francis Inquiry and RCN Accredited Representatives Chris Cox Director of Legal Services Royal College of Nursing

2. Responding to some of the criticisms • Purpose of Inquiry? • Bodies with ‘Commissioning, supervisory or regulatory functions’ • Position of RCN? Contrast with CQC, NMC, SHA, Monitor etc • Bodies with statutory powers/public funding -v- voluntary membership body funded by those members • To devise and promote standards is not to enforce the same • A gender issue?

3. Role of representatives • Legal rights of accredited representatives • Understanding of joint union activities in recognised employing organisations, e.g. staff sides • Numbers of representatives in any organisation • A voluntary role • “..the importance of nursing representation in providers needs to be recognised by ensuring that adequate time is given to staff undertaking this role” Paragraph 23.82 • Time off for trade union activities

4. Professional trade union – cannot promote standards? • Conflicts of interest? • “The inherent conflict between the representation of the interests of nurses as employees and the representation of their interests as a profession is capable of diminishing the authority with which the RCN’s views are received in relation to the standards of care capable of being provided by its members” Paragraph 23.82 • Example of acting for whistleblower and those against whom she/he is whistleblowing (i.e. an employment conflict) • Promoting standards and representing employee interests “..very difficult for the same organisation to do both at the same time”

5. What standards? Whose standards? • What evidence is there that devising and promoting professional standards around patient care inherently conflicts with representing the interests of those professionals? • Promotion is not the same as inspection and enforcement • Medical defence organisations devise and promote standards and give advice (not least, to minimise claims against them), as well as representing medics before their regulatory body • BMA promotes standards (alongside Medical Royal Colleges) and represents their members’ interests • Impact of separate structures in medicine? • RCN members’ views

6. Special register bodies • Special register bodies – meaning and history • Industrial union and professional organisation • Representatives in management positions? • Managing the conflict situation

7. Duty of candour • Greater openness, transparency and candour in healthcare • Candour - volunteering all relevant information to persons who have been harmed • Trust and respect between health professional and patient rooted in culture of openness and honesty • Guidelines and policy statements of DH, NPSA, CQC and NHSLA (and equivalent bodies in other countries) • NMC Code • Compensation Act 2006

8. Duty of candour • 2012 DH (England) contractual duty of candour under NHS Standard Contract • Duty on providers (systemic errors and environment of care) • Applicable to all providers (primary and secondary care) • Not on individual practitioners • Don Berwick review of patient safety • Relevant professional codes reinforced • Better training in communication

9. Increasing use of criminal law • Criminal sanctions for failure to observe ‘fundamental’ care standards • Criminal sanctions for failing to report • Corporate manslaughter legislation – impact? • Legal solutions to societal problems

10. Criminalising breaches of patient safety • Does it deter unsafe or bad practice? • Increase in gross negligence manslaughter prosecutions since mid 1980s; poorly defined offence; uncommon and hence difficulty in drawing conclusions • Focus on individual rather than flawed systems • Lessons learned? • Fuels a culture of secrecy and shame about errors • Application of health and safety legislation (1974 Act) • Not a priority for HSE

11. Roles of learning and safety representatives • Section 3 1974 Act: ‘it shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their H&S’ • Applies equally to patients • Communication skills when things go wrong • Addressing patient safety issues • Learning from errors • Equality and dignity issues in patient care • Promoting RCN standards and publications

12. Roles of learning and safety representatives • Patient safety ambassadors • Sharing good practice and what works • Joined up working across professional and employment issues

13. Whistleblowing and beyond - the RCN steward • Recent reforms • RCN published guidance/supporting the member through the process • Reinforcing an open culture • Modelling good behaviour – starting at the top • Legal rights beyond the whistleblowing legislation? • Erosion of statutory employment rights • Health and safety; Equality; Human Rights • Role for reps if RCN isn’t recognised?