The government's Francis response: line by line

Candour in the event of death or serious harm

Francis recommended that “where death or serious harm has been or may have been caused to a patient by an act or omission of the organisation or its staff”, the patient or a lawfully entitled personal representative should be “given full disclosure of the surrounding circumstances” and regardless of whether they requested the information. The government has agreed to introduce an explicit duty of candour as a Care Quality Commission registration requirement, outlined in its Care Bill 2013. This will apply to to health and adult social care providers and will be enforced by the CQC.

Statutory duty of candour for patients’ injury

The Francis Report recommended that a statutory obligation should be imposed to observe a duty of candour both on healthcare providers as well as registered doctors and nurses. The government accepted the recommendation in principle, but said that indviudal responsibility will be addressed by professional regulators. It has also asked David Dalton (chief executive of Salford Royal Foundation Trust) and Professor Norman Williams (president of the Royal College of Surgeons) to assess whether the duty of candour should be amended to cover moderate harm, as well as death or serious injury, by the end of the year.

Criminal offence to obstruct statutory duties

Francis called for it to be a criminal offence for doctors, nurses or other healthcare professionals who knowingly obstruct others in the performance of their statutory duty of candour, provide misleading information to a patient or nearest relative or to “dishonestly to make an untruthful statement to a commissioner or regulator knowing or believing that they are likely to rely on the statement in the performance of their duties.” The government rejected the recommendation.

Large scale failure of clinical services

Francis recommended that large-scale failures of clinical service require the “coordination of the activities of multiple organisations” so “the primary responsibility should reside in the National Quality Board”. The government said “while we also agree that such a response needs clear coordination across a number of involved organisations we do not agree that this should be a function of the National Quality Board”.

Local Healthwatch structure

Francis called for a “consistent basic structure for Local Healthwatch throughout the country”. The government rejected the proposal, saying: “We believe that local Healthwatch organisations should be set up in a way that best meets the needs and reflects the circumstances of their local communities; taking a top-down approach and imposing a fixed structure would undermine the need for flexibility.”

Commissioners intervening in management of complaint

Francis recommended that commissioners should be allowed intervene in the management of an individual complaint, on behalf of a patient, if it is not being dealt with satisfactorily. While government accepted the “spirit of this recommendation” it is “concerned that it risks creating uncertainty over roles and responsibilities in the management of complaints”.

Intervention and sanctions for substandard or unsafe services

Francis recommended that commissioners should be able to intervene “where substandard or unsafe services are being provided”. The government rejected the recommendation, noting “respective roles of commissioners and regulators in their relationships with providers are different and must be distinct “ and “to give regulators and commissioners equivalent powers of intervention would blur the distinction of these roles and risk causing confusion in the system, resulting in inaction because of assumptions that another body is intervening to address a problem”.

Commissioners’ contingency plans

Francis recommended that commissioners have contingency plans to protect patients who are found to be at risk from substandard or safe services. The government accepted that “Commissioners must develop plans to ensure that safe and effective services can continue to be provided in the event of a provider failure”. The Department of Health is working with the Care Quality Commission, NHS England, Monitor and the NHS Trust Development Authority on the development of a single failure regime.

Power of inspection for scrutiny committees

Francis recommended that scrutiny committees should have powered to inspect providers directly or should actively work with the existing patient involvement structures to trigger and follow up inspections. The government accepted this in principle, but noted the existing scrutiny powers of these committees and local Healthwatch, saying “giving further powers to local authorities would therefore be duplicative and potentially burdensome”.  It is due toto help local authorities with carrying out scrutiny in November.

Registered older person’s nurse

The report called for there to be a registered older person’s nurse. The Department of Health and its system partners “considered this recommendation and feels there are better ways of improving nursing care for older people”. The government has asked Health Education England to “work with Higher Education Institutions to review the content of pre-registration nurse education to ensure all new nurses have the skills to work with the large numbers of older people being treated in the healthcare system”, as part of its mandate for 2013-2015.

Providing food and drink to elderly patients

Francis recommended that procedure for providing food and drink to elderly patients should be constantly reviewed, and changed if necessary. The government agreed with this recommendation and widened its scope through a public consultation on fundamental standards of care including care, neglect, abuse, nutrition and duty of candour which began in June. These standards of care alongside the CQC’s guidance for providers will come into effect in 2014 subject to parliamentary approval.  

Administering medication

In the absence of automatic checking and prompting Francis recommended that the nurse in charge of the ward should be responsible for administering medication, or a nominated delegate. This was felt to be particularly important if a patient is moving between wards. The government accepted this recommendation and said that supervisory roles should be given to Ward Managers from cleanliness to staffing duties. However, no mandate has been given for Ward Managers to hold supervisory roles because the government wants to allow for flexibility for individual wards. The government also said that  organisations must encourage a culture which supports reporting and learning from medication mistakes and errors. Such systems and processes must be set out in local hospital medicines policies, signed off by the hospital Trust Board, with the board receiving regular reports on implementation and areas for improvement, together with remedial action plans.

The Nursing and Midwifery Council’s power to intervene prior to disaster

Francis recommended that the Nursing and Midwifery Council have the power to investigate systemic concerns as well as individual ones. While the government accepted this recommendation in part the Nursing and Midwifery Council made clear that they do not want to be responsible for investigating systems issues as this is currently the Care Quality Commission’s remit. However, they do intend to work closely with the CQC and other regulators on the most serious matters.

The administration of the Nursing and Midwifery Council

The Francis review was concerned that several other reviews had found issues within the NMC’s administration that had not yet been dealth with. The government accepted this proposal and made clear its wish for the NMC to be an effective regulator. The Government also outlined an order they are working on under section 60 of the Health Act 1999 to amend the Nursing and Midwifery Order 2001 in advance of the Law Commission review. The government wants to see this section 60 order provide greater efficiency in fitness to practice cases, including a shorter timeframe for cases.

Common Independent Tribunal

Francis focused on the Professional Standards Authority as the relevant body for overseeing fitness to practice cases that involved NHS staff members who were covered by more than one body. It was also recommended that the government look into introducing a common independent tribunal procedure to determine fitness to practice issues. The government partly accepted this recommendation. However, rather than a focus on the PSA, which does not have the power to intervene in professional regulator cases, it has instead tasked the Law Commission with reviewing current legislation in view of putting together a draft Bill with the intention of speeding up regulator cases looking into complaints against healthcare professionals. The government plans to legislate based on these proposals and the Law Commission’s consultation also included the possibility that regulators would be able to use these powers to share tribunal services for fitness to practice cases.

Communication with patients

This recommendation focused on the patient experience, both in hospital and after discharge. Francis said that the procedure of sending summary discharge letters followed by a more detailed letter some time later should be reconsidered. All parts of this recommendation were accepted. The government added that the most vulnerable elderly patients should have a primary care professional in charge of their care and who would be accountable for their care. Although the clinician may not be directly responsible for the patient’s care they would be the person “with whom the buck stops”.

Training facility for leaders

Francis called for training facility for leadership staff to work towards an accredidation scheme, so that all leadership posts would ultimately be “filled by persons who experience some shared training and obtain the relevant accreditation”,  thereby “the spread of the common culture”. The government said it does not acceot the need for a formal accreditation scheme, but has developed a “a new suite of national leadership development programmes”, launched by the NHS Leadership Academy.

Merger of system regulatory functions

Francis recommended that there be a single regulator dealing with corporate governance, financial competence, viability and compliance with safety and quality standards across all trusts. The government has not accpeted this recommendation, although they have said that they agree with the principle of a single regulatory process, in line with what they said in March when their initial reaction to the Francis report was released.

Immediate steps following a suspected breach of standards

Francis has recommended that the healthcare regulator must be free to require or recommend immediate protective steps where a breach of fundamental standards is reasonably suspected, even if it has yet to reach a concluded view or acquire all the evidence. The test should be whether it has reasonable grounds in the public interest to make the interim requirement or recommendation. The government has accepted this and plans for the CQC to have increased powers from 2014 to prosecute a provider for failing to provide fundamental levels of care, without having to issue a formal warning first.

Regulators sharing information

Francis recommended that the sharing of intelligence between regulators needs to go much further than sharing of existing concerns identified as risks. Arrangements should, he added, extend to all intelligence which may raise concern when pieced together with information from partner organisations. The government has accepted this recommendation and have laid out a wide response laying out what they are doing to this end. The National Quality Board is currently conducting a review of how the quality surveillance group network is operating, and what support it needs to be as effective as possible.  It will publish revised guidance and support materials by the end of the 2013 to support all quality surveillance groups.

Representatives of professions on the Care Quality Commission Board

Francis recommended that the Care Quality Commission should consider introducing a category of nominated board members from representatives of the healthcare professions, e.g. the Academy of Royal Medical Colleges, and patient representative groups. The government have said that they accept this recommendation in principle and that steps have already been taken by the CQC to create a number of sector specific advisory groups – including representatives from royal colleges and patient groups.

Patient and public involvement in Monitor

Francis has called for Monitor to incorporate greater patient and public involvement into its own structures, for as long as it retains responsibility for regulating foundation trusts. This, he said, is to ensure those groups’ voices are heard in the course of the regulator’s work. The government accepted this recommendation, making the point that Monitor is currently engaging with the Department of Health on the recruitment of a Medical Advisor and Director of Patient and Clinical Engagement. The response also says that a central theme of the regulator’s Quality Governance Framework is whether the boards of NHS organisations actively engage with patients, staff and other stakeholders on the issue of quality.

Zero tolerance of fundamental standards

Francis called for services incapable of meeting fundamental standards should not be permitted to continue. He added that such breaches should result in regulatory consequences for organisations in cases of a system failure and on individuals where individual professionals are responsible. Criminal liability should follow if necessary. The government has agreed with this recommendation. The CQC is set to introduce new fundamental standards below which no organisation should fall. If they do, the commission has pledged to intervene and demanding improvement within a set period. If this fails further intervention will be carried out.

Staff commitment to the NHS values and Constitution

Francis recommended that all NHS staff should be required to enter into a specific commitment to abide by NHS values and the Constitution through their contracts of employment. While the government have agreed to this in principle they have placed the emphasis on getting NHS Employers to support NHS organisations in strengthening policies locally – clearly linking them to the values in the NHS constitutions. The DH has also been keen to emphasise the fact that pay progression will be linked more strongly to performance in future, a measure that took effect in March.

Subcontractors abiding to NHS values

Mr Francis’ report recommended that those providing outsourced services to the health service should also be required to abide by the requirements and values of the NHS Constitution and to ensure that staff employed by contractors do the same. Francis suggested such requirement could be included in the terms on which providers are commissioned to provide such services. Although the NHS Standard Contract requires providers to have regard to the NHS Constitution, NHS England have pledged to amend the Standard Contract by December 2013 to require providers to ensure subcontractors abide by the Constitution’s principles. There are no other details beyond this.

Complaints to Members of Parliament

Francis advised MPs to “consider adopting some simple system for identifying trends in the complaints and information they receive from constituents”. This was accepted in principle. The government said it was “not for the government to advise individual MPs on the systems they employ to identify the wider significance of individual complaints about health and care services”, but it “would be willing to highlight the scope – for MPs who desired it or believed it appropriate – to identify themes and patterns in complaints by sharing correspondence with regulators” and “building strong relations with their local Healthwatch organisations”. The Department of Health would be willing to work with regulators and MPs who are interested to share best practice.

Quality accounts certified by trust directors

Francis recommended that quality accounts should either include a declaration signed by all directors stating they believe the contents to be true, or an explanation of why the director hadn’t signed. The government accepted this recommendation in part but said that a signature from every director was not necessary, instead a responsible person for the provider could sign. This is then reviewed and signed by the Chairman and Chief Executive of the trust. The government plans to review Quality Accounts before the 2014–15 cycle to ensure that they give patients clear information regarding the services they use, and that they add value to the quality assurance infrastructure used by trusts, local and national organisations

Incorrect information in quality accounts

It should be a criminal offence for directors to knowingly sign a declaration of truth on a quality account which they know to be untrue, according to Francis. The government agrees with this in principle and the Care Bill proposes a new offence when providers give false or misleading information. Providers who make a genuine error would not be convicted if they can prove they exercised due diligence. The government’s 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, further consultation will take place before draft regulations are laid.

National consistency of access to patient and public comments

Francis recognises that there are likely to be many different forums through which patients can make comments he recommends that this information is presented consistently to allow for easy comparison between organisations. The government accepted this recommendation and states that the refreshed NHS England mandate includes an agreement to devise an easy way for patients to give regular feedback so that patient comments on NHS services “become the norm”.

Oversight of healthcare information

Francis recommends that the Information Centre should be independent. The government accepted this recommendation in principle and agrees that the Health and Social Care Information Centre should be more independent.  However, they do not accept that the NPSA’s previous information responsibilities should be transferred to the HSCIC because NHS England took over its key functions in 2012 and to transfer these powers again would be “unnecessarily disruptive”

Full inspection as a pre-condition of foundation trust authorisation

Francis recommended that organisations applying for foundation trust status should be subjected to physical inspections of their primary clinical areas and all their wards. This would be to determine whether the organisation is compliant with fundamental safety and quality standards. The government has accepted this suggestion, with the CQC pledging that in future it will inspect NHS trusts while the NHS Trust Development Authority assesses whether to support their foundation trust application to Monitor.

Reporting of executive and non-executive contract termination

Francis proposed that bodies providing NHS services should be obliged by the terms of their licenses to report to relevant regulators when the contracts of executive or non-executive directors are terminated in circumstance in which there are reasonable grounds for believing that he or she is not a fit and proper person to hold such a post. The Francis report stated that in such a situation, it should be obligatory to report the matter to Monitor, the CQC and the NHS Trust Development Authority.

The government accepted the recommendation in principle and said that a government consultation on strengthening corporate accountability in health and social care, launched in July this year, proposes a new requirement that all board directors of providers registered with the CQC must meet a new fitness test.