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Hospital trust fined £1600 for breach of duty of candour in first CQC prosecution

Sarah Knight reports on the first CQC prosecution to be brought for breach of duty of candour.

Back in 2013, Jeremy Hunt, the Health Secretary at that time, reported in the House of Commons that hospitals and care providers must be open and transparent about their mistakes. This was a direct response to the Mid Staffordshire hospital scandal and one of the recommendations of the Francis Report which reflected that : A statutory obligation should be imposed to observe a duty of candour; on healthcare providers who believe or suspect* [emphasis added] that treatment or care provided by it to a patient has caused death of serious injury to a patient to inform that patient or other duly authorised person as soon as is practicable of that fact and thereafter to provide such information and explanation at the patient reasonably may request….. the provision of information in compliance with this requirement should not of itself be evidence or an admission of any civil or criminal liability, but non-compliance with the statutory duty should entitle the patient to a remedy [recommendation 181].

That recommendation was entrenched into statute with the powers of enforcement being given to the Care Quality Commission (CQC) in the Health and Social Care Act 2008. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) (s20) elevated the duty of candour to the status of a Fundamental Standard which gives the CQC the power to move to direct prosecution of a breach of the regulation without first issuing a warning notice.  

S20(1) provides: Registered persons must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity. Providers must promote a culture that encourages candour, openness and honesty at all levels. It specifically refers to the requirement to inform people about the incident, providing reasonable support, truthful information and an apology when things go wrong.

The regulation specifies that an apology is an expression of sorrow or regret in respect of a notifiable incident and sets out definitions for moderate harm, prolonged pain (pain over 28 days) and prolonged psychological harm as well as what constitutes severe harm and a notifiable safety incident (see s20(9). It would be sensible for all providers to revisit that section. It is also important to remember the purpose of the regulation which is to promote a culture of openness where there is a belief or suspicion of something going wrong that has caused harm or could potentially have caused harm.

After the initial flurry of concern in understanding the specific requirements of the regulation and how to ensure compliance, the duty of candour has become a familiar and necessary part of the governance systems for all hospital trusts and private care providers. Nevertheless, despite the definitions in s20(9) there is still a certain amount of subjectivity involved in some cases where it is not obvious or clear that things have gone wrong to the extent that harm has been caused. This appears to have been the case in the prosecution this week of University Hospitals Plymouth NHS Trust (“the trust”) for breaching section 20.

Most providers err on the side of caution. Enforcement action is rare. Indeed, the prosecution of the trust was the first of its kind by the CQC.

The case involved the sad death of Mrs Woodfield (who was 91) at Derriford Hospital after she had undergone an endoscopy procedure in 2017. Mrs Woodfield suffered a perforated oesophagus during the procedure. The endoscopy was abandoned but Mrs Woodfield sadly collapsed and died. Her family complained that the Trust had failed to be open with them by letting them know that an error might [emphasis added] have occurred.

The trust entered a guilty plea and was fined £1600 at Plymouth Magistrates Court for breaching section 20. This was the first prosecution of its type by the CQC despite the fact that enforcement action has been available to it for so many years. There has been previous enforcement action but this has never escalated to a court hearing.

What is surprising is that despite being given credit for an early guilty plea, the trust was ordered to pay legal costs in the sum of £10,845 as well as a victim surcharge of £120. The costs order was clearly punitive as the district judge stated that the maximum penalty guidelines were insufficient to reflect the distress caused to Mrs Woodfield’s family.

The trust’s representative explained that the trust did have proper policies in place but that there had been confusion as the death of Mrs Woodfield had not been seen as a ‘Serious Incident’. They went on to say that there had been numerous attempts to meet with the family and that there had been “multiple” communications with them too. Sadly, it would seem that those attempts were seen to be too little too late and the prosecution comes as a salient reminder to all providers to ensure that they write to service users and their families as soon as possible when they have reasonable cause to consider that a notifiable safety incident (or one of the other categories of harm) has taken place.

The judge said: “this offence is a very good example of why these regulatory offences are very important. Not only have [the family] had to come to terms with their tragic death, but their loss has been compounded by the trust’s lack of candour”.

This a very sad case for the family who have waited three years for satisfaction. The trust has also, despite its attempts to communicate with the family, suffered considerable reputational damage as well of course as the monetary penalty.

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