CQC prosecution for breach of the Duty of Candour

The papers recently reported what was said to be the first prosecution by CQC for breach of the duty of candour regulations. So what it is and why is the first one?

Duty of candour

Following the Mid Staffordshire Inquiry, regulations were made which introduced a statutory duty of candour. Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the Regulations”) gives rise to two separate duties:

a duty to act in an open and transparent way with people in relation to the care and treatment provided to them (“the general duty”): reg.20(1).
specific duty of candour applies in all cases where there has been a ‘Notifiable Safety Incident’ (“the specific duty”). In that situation, the specific duty includes duties to notify, provide an account which to the best of the provider’s knowledge is true and set out certain information. The specific duty also requires an apology: reg 20(2)(a) and 20(3).

Regulation 22(3) makes breach of reg 20(2)(a) and 20(3) a criminal offence. The person liable for a breach of these provisions is the health service body and any prosecution takes place in the Magistrate’s Court. The penalty is a fine only and may not exceed level 4 on the standard scale (currently £2,500).

The prosecution

Mrs Woodfield suffered a perforated oesophagus during an endoscopy in December 2017.

The procedure was abandoned and Mrs Woodfield was transferred to a ward for observations. She collapsed on the ward and later died.

Under the regulations, Mrs Woodfield’s family were entitled to a full explanation and a prompt apology. Unfortunately Mrs Woodfield’s family received neither a prompt apology nor full explanation regarding the tragic events that took place prior to her death.

CQC brought a prosecution against University Hospitals Plymouth NHS Trust for their failure to disclose the details of how she died and the failure to apologise within a reasonable timeframe.

The Trust admitted guilt and was ordered to pay a total of £12,565 at Plymouth Magistrates Court. It was also fined £1600, plus a £120 victim surcharge and £10,845.43 in court costs.

The first one?

It would appear that this one is the first prosecution to have actually gone to court. However, it was not the first prosecution for breach of the duty of candour obligation. That dubious honour goes to Bradford Teaching Hospital where in January 2019 the Trust was fined £1,250 for failing to apologise to the family within a reasonable period of time, following the death of their baby boy in July 2016. Whilst the Trust had recorded the care as a notifiable safety incident, the parents did not receive an apology or explanation until October 2016. There also appears to have been a prosecution resulting in the Royal Cornwall Hospitals NHS Trust being fined £16,250 for 13 fixed penalty notices, again for failing to comply with the duty of candour.

In any event 3 examples of prosecutions in nearly 6 years seems very low, given the cultural problems that can exist in settings. CQC’s stated position has historically been to say that their focus has been on increasing awareness and working with organisations and there is a lively debate about the extent to which prosecutions, especially ones for which the service as opposed to an individual is responsible, can improve regulatory compliance.

Nonetheless the signs are that this changing and across a range of enforcement areas. In December 2019 Derbyshire County Council was fined £500,000 in the first prosecution brought by CQC against a local authority for its failure to provide safe care and treatment in a care home. The Council was also required to pay £170 victim surcharge and £5,124 costs.

In June 2020 the owners of a homecare business were ordered to pay £44,003 at Portsmouth Magistrates’ Court after they were found to be operating illegally (of which £9,000 were costs, and £170 victim surcharge).

The trend of increasing prosecutions of health and social care providers by the CQC is seen from CQC’s annual report, which shows a sharp rise in the CQC taking criminal enforcement action across a range of areas. Civil enforcement action is also increasing.

Whether all of this will have the effect of improving regulatory compliance to the benefit of patients and their families remains to be seen. But in the meantime it means that providers would be well advised to keep a close eye on their own compliance procedures.

Samantha Broadfoot QC
Landmark Chambers
8 October 2020