The regulator’s first prosecution of an NHS Trust for breach of the duty of candour is a reminder to health providers – both health service bodies and other registered providers that the CQC “will not hesitate to take action” when providers fail to be open and transparent with patients or loved ones when something goes wrong.
University Hospitals Plymouth NHS Trust has been fined £1,600 and a £120 victim surcharge by Plymouth Magistrates Court after admitting it failed to disclose details relating to a surgical procedure or apologise, following the death of a 91-year-old woman. They also had to pay costs of £10, 845.43. The incident concerned the Trust’s failure to share details of what happened to Elise Woodfield’s family prior to her death, following an endoscopy procedure. The trust also failed to apologise to Mrs Woodfield’s family within a reasonable timeframe.
It is worth noting that while the Trust had a policy in place for dealing with duty of candour incidents it failed to record Mrs Woodfield’s death as a notifiable safety incident as her death was a recognised complication of the procedure. This was a mistake and, as a result, failed to follow its duty of candour policy.
Regulation 20: how are providers getting on?
Its nearly six years since the duty of candour regulations came into force but how are providers getting on with complying with their statutory obligations? We have seen two Trusts receive fixed penalty notices for breaches of Regulation 20.
In January 2019 Bradford Teaching Hospital NHS Foundation Trust was fined £1,250 for failing to apologies to a bereaved family following the death of a baby within a ‘reasonable’ time. A further similar fine was issued to Royal Cornwall Hospitals for 13 breaches of the duty of candour in October 2019 – in this case, the hospital was fined a total of £16,250 for failing to notify patients or their family of the facts available as soon as reasonably possible.
The CQC’s recent regulatory action serves as a reminder that “CQC can prosecute for a breach of parts 20(2)(a) and 20(3) of this regulation and can move directly to prosecution without first serving a Warning Notice. Additionally, CQC may also take other regulatory action.”
As a reminder, Regulation 20 of the Health and Social Care 2008 (Regulated Activities) Regulations 2014 sets out what is required of all providers and you can read our briefing here. If you would like more information on what counts as a ‘notifiable safety incident’ which will depend on whether you are a NHS body or other registered body such as a care home, you can read our briefing here.
When delivering training on the topic we had previously advised providers on our understanding of the regulators’ approach i.e. the duty arises from all known risks and consent of patients to risks did not have a bearing on whether the duty was triggered. We also emphasised the overarching wording of Regulation 20(1) “Registered persons must act in an open and transparent way… in relation to care and treatment provided…” and that it was also worth remembering that, separately, there is a professional duty of candour.
CQC’s latest regulatory action is a reminder that the duty of candour has teeth, to some extent and breach of the duty of candour has both financial and reputational consequences.
Boards should assure themselves that their policies are clear and their staff are aware of what is required, to ensure that organisations are compliant.