The Emerging Concerns Protocol - a further means to share and act on concerns

07 Aug 2018

Background

Under the governance of the Health and Social Care Regulators Forum (HSCRF), the Emerging Conditions Protocol (‘the protocol’) has been developed to provide a clearly defined mechanism for sharing information and intelligence about potential risks to users of services, their families and carers, or healthcare professionals. Supported by NHS England and NHS Improvement, it has been signed by four healthcare organisations (The Care Quality Commission, Health Education England, Local Government and Social Care Ombudsman and the Parliamentary and Health Service Ombudsman) and four regulators (the General Medical Council, Nursing and Midwifery Council, General Pharmaceutical Council and the Health and Care Professions Council). Support for the Protocol has been confirmed by the General Dental Council (who we understand will be signing the protocol), NHS England and NHS Improvement. Further signatories are anticipated in the coming weeks.

Regulators have a statutory role in ensuring that healthcare and social care services promote, protect and maintain the health, safety and well-being of service-users. The new protocol imposes an additional responsibility upon each signatory when responding to any concerns raised. It envisages a joint approach when concerns are raised so as to avoid duplication and will provide opportunities for early intervention.

Each signatory has outlined the nature of concerns it expects to be informed of under the new protocol. Individual regulators will be informed about any concerns relating to their registrants’ fitness to practise and any systemic/thematic concerns that could impact their registrants in the future.

A number of working groups were already in place to facilitate information-sharing however, so far the process has been slow and inconsistent with little procedural clarity or transparency. The new protocol formalises the existing arrangements and provides clear guidelines for the signatory organisations about how to raise and escalate concerns at an early stage and how these will be managed under the protocol.

The protocol

There is no exhaustive list of concerns but it is clear that under the new protocol, no issue is considered too insignificant to be raised; whether or not to use the protocol will depend on the risk of harm or risk of bringing a profession into disrepute. The protocol contains guidance to facilitate the decision making process, deciding whether to share the information with other organisations and sets out the following questions, - “is there an immediate threat?”, is there a public protection concern?”, “ is it relevant to any other forum?”, “is it a one off or is it more systemic?”, “is it relevant to professional or system regulation?”, “is there a safeguarding risk?”, “where does the risk of harm come from?” and “could the information bring one or more professions into disrepute?”

It is envisaged that individuals or organisations will express any concerns about patient safety and non-emergency situations that have the potential to undermine or harm the reputation of the regulators and their registrants or have an impact on trust and confidence in professionals or the professions overall.

As part of the assessment process, information provided by an individual (as opposed to an organisation or group) will be graded according to three criteria: evaluation of the source; evaluation of the information, and the need to protect the source. The identity of the source will only be shared between organisations where it is necessary and proportionate, or in response to statutory requests.

If the protocol is triggered then the relevant organisations and regulators will be contacted and a meeting of the Regulatory Review Panel (RRP) will be convened, coordinated, chaired and minuted by the organisation raising the concern to enable a cross-organisational response. Although all partners in the protocol should be considered for invitation, if there is clearly no relevance to a particular organisation then they need not be invited or may decline. The newly established RRP will facilitate a discussion between the relevant organisations to develop a picture of the concern and coordinate a response, which will be shared with all the partners of the HSCRF secretariat for monitoring and report at the next forum.

The protocol will not replace existing responsibilities encapsulated in the Duty of Candour and the Fit and Proper Person's Regulations and each regulator or organisation will remain ultimately responsible for ensuring adherence to internal safeguarding procedures.

Commentary

The introduction of the protocol will lead to greater information sharing amongst partner organisations, providing an opportunity to tackle issues early and in a proactive rather than a reactive way. Healthcare organisations and regulators will be able to glean a clearer picture of what is happening on the ground, particularly as the HSCRF will receive additional information about concerns where the RRP decided to take no further action.

Whilst earlier identification of concerns is clearly something to be encouraged, there could be a temptation on the part of regulators to prematurely commence fitness to practise investigations rather than favouring local resolution as most regulators’ own policies suggest. We hope that this additional layer of information sharing will assist in identifying systemic failings.

If the signatories adhere to the protocol effectively, it will assist them to fulfil their statutory roles, both individually and collectively.

At present the protocol relates only to England however, given that the regulators have responsibilities across Great Britain or the UK, it is likely that relevant information relating to healthcare and social care professionals and providers will be shared in any event. We do not know whether the national organisations in Northern Ireland, Scotland and Wales have been consulted.

This article was co-authored by Clare Chapman, Partner; Jane Lang, Partner and Aliyah Hussain, Professional Support CILEX.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Clare Chapman

Clare Chapman

Partner,
Manchester


Jane Lang

Jane Lang

Partner,
Cardiff


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