Legal Opinion

The Duty of Candour: The CQC’s first prosecution

Laura Hannah, Partner, Stephensons Solicitors

It was recently reported that the CQC prosecuted the University Hospitals Plymouth NHS Trust for breaching the duty of candour, contrary to Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This is the first reported prosecution of its kind, with the CQC previously reporting to have only taken action to issue Fixed Penalty Notices for this breach.

Regulation 20 requires all health and social care providers to act in an open and transparent way with service users and their relatives in relation to the care and treatment provided to them. It also sets out a clear requirement for providers to notify them of an incident as soon as reasonably practicable after becoming aware that a notifiable safety incident has occurred.

It is reported that the NHS Trust pleaded guilty to the breach of Regulation 20 and was fined £1,600 at Plymouth Magistrates Court on 23 September 2020, plus a victim surcharge of £120 as well as costs of £10,845.43. The NHS Trust was therefore ordered to pay a total of £12,565.

In a press release issued by the CQC on 23 September 2020, it is confirmed that the CQC brought the prosecution after it emerged that the NHS Trust failed to communicate the details of what had happened to a patient following an unsuccessful endoscopy procedure at Derriford Hospital in Plymouth. It is also stated that the Trust had failed to apologise to the patient’s family for what had happened within a reasonable timeframe.

The Deputy Chief Inspector of Hospitals, Nigel Acheson, stated within the press release that: “All care providers have a duty to be open and transparent with patients and their loved ones, particularly when something goes wrong, and this case sends a clear message that we will not hesitate to take action when that does not happen.”

Whilst this is the first prosecution of its kind, the CQC have previously taken action to issue Fixed Penalty Notices of £1,250 to other providers. In January 2019, Bradford Teaching Hospital was issued with a Fixed Penalty Notice for £1,250 for failing to apologise to a family of a baby in a reasonable period of time, after there were delays in diagnosing the baby’s condition and missed opportunities to admit the baby to hospital.

Following this, in October 2019, the Royal Cornwall Hospitals NHS Trust was also issued with 13 Fixed Penalty Notices totalling £16,250 for failing to apologise to patients within a reasonable period. These related to seven separate safety incidents between September 2016 and October 2017, which were identified by the CQC during a routine review of serious incident investigations at the trust.

Whilst the only reported prosecution, and the examples provided, demonstrate the enforcement action taken against large NHS Trusts, the CQC have the power to prosecute and issue Fixed Penalty Notices to all health and social care providers, including residential care homes. The statistics contained within the CQC’s annual report 2018/2019, which was published back in July 2019, clearly demonstrate that the CQC are increasingly using their criminal enforcement powers and it is expected that the next annual report will also reflect this continuing trend. The 2018/2019 report confirms that the CQC took criminal enforcement action against 211 care providers in 2018/2019, which was a 32% increase from 2017/2018.

The maximum fine that can be imposed in a prosecution for this offence is £2,500, and although this is small, a prosecution of this nature can arguably cause more reputational damage to a health and social care provider. It is therefore important that health and social care providers ensure strict compliance with their statutory duty under Regulation 20 and that prompt action is taken to remediate any breaches as quickly as possible in order to mitigate the risk of any prosecution.

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