A new law on avoidable harm in health and social care is set to receive royal assent today.
The private members bill successfully cleared the Commons yesterday after support from both the government and opposition.
It amends the Health and Social Care Act 2008, which established the Care Quality Commission, and removes discretion over whether services registered with the CQC should be safe. Instead, the regulations require the health secretary “to secure that services provided in the carrying on of regulated activities cause no avoidable harm”. The application and implementation of this requirement is expected to fall to the CQC.
The amendment defines harm as being avoidable “unless the person providing the service cannot reasonably avoid it”.
Patient safety legislation experts have said that in practice, the bill means the CQC will have a responsibility to consider whether services are safe and do not cause avoidable harm to patients. The CQC will be able to take action against providers under its regulatory regime on this basis.
A spokesman for the CQC confirmed the regulator would be responsible and added it will “be guided by the Department of Health and the Secretary of State” on how to implement the law.
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Stephen Evans, a partner at Hempsons Solicitors, told HSJ: “It seems difficult to avoid the conclusion that the result of the bill will be a working assumption by the CQC that if there is harm it should have been avoided. The onus would therefore be on the provider to show it could not have been reasonably avoided.
“That is likely to prove a heavy burden and could easily lead to a defensive approach to service provision and therefore the options available to service users.
“There is arguably a disconnect between this provision and reality when trusts have warned of not being able to deliver safe care if tariffs are cut, and the care home sector is saying similar things about what local authorities are prepared to pay.”
The Department of Health has said it expects the CQC will use its new fundamental standards regime, which was already due to come into effect on 1 April, to comply with the new law.
Jeremy Lefroy, the Stafford MP who introduced the bill, told HSJ he was “absolutely thrilled” it would become law. He added: “This means the CQC will be looking at every health and social care provider to see if they have the safety systems in place which make care safe for patients.
“It’s going to have a real effect on patient safety, which was a real driver for me following the events at Mid Staffordshire.”
The bill also includes new powers designed to help integration across the health and social care sector with provisions for a single “consistent patient identifier”, such as the NHS number.
It includes a new duty on providers to share information about patients across health and social care organisations. An impact assessment by the DH estimates this will have a one-off transition cost of £11.2m.
The Health and Social Care (Safety and Quality) Bill also changes the objectives of professional regulators such as the Nursing and Midwifery Council to include a new requirement “to promote and maintain public confidence” in the professions.