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The CQC's first prosecution for a breach of duty of candour

View profile for Laura Hannah
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It was recently reported that the CQC prosecuted 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 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, states 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.”

Mr Acheson further comments that, “Patients and their families are entitled to the truth and a formal written apology as soon as is practical after a serious incident, and the University Hospitals Plymouth NHS Trust’s failure to fulfil this duty is why CQC took this action.”

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, 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.

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 dame 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.

If you are a health and social care provider facing a criminal investigation or prosecution by the CQC, we have a team of specialist CQC lawyers who can advise you further. You can contact our specialist CQC lawyers now on 0161 696 6250.

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