Duty of Candour

For the first time, the Care Quality Commission (CQC) has prosecuted an NHS Trust for failing in its ‘duty of candour’, to be open and honest with patients and their families, when something goes wrong with their treatment or care.

University Hospitals Plymouth NHS Trust pleaded guilty and received a fine, for failing to adhere to its ‘duty of candour’ under Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

91 year old Elsie Woodfield suffered a perforated oesophagus during an endoscopy procedure in December 2017. The Trust had initially concluded no significant harm had been caused during the endoscopy, but the CQC had disagreed and found that the procedure may have caused Mrs Woodfield’s death.

At Plymouth Magistrates’ Court, the Trust pleaded guilty for failing to be ‘open and transparent’ with Mrs Woodfield’s family with regards to the surgical error, and a failure to apologise in a timely manner. The District Judge noted that the family had found it ‘impossible to grieve’, and all was sought was ‘openness and honesty’ from the Trust.

The Trust received a £1,600 fine, plus costs of over £10,800 and a £120 victim surcharge.

The Deputy Chief Inspector of Hospitals had advised that ‘patients and their families are entitled to the truth and a formal written apology as soon as practical after a serious incident, and the University Hospitals Plymouth NHD Trust’s failure to fulfil this duty is why the CQC took this action’.

What is the ‘Duty of Candour’?

The Care Quality Commission is an independent regulator of all health and social care in England, which places a legal duty on all healthcare providers to adhere to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Regulation 20, which details ‘the duty of candour’, requires all providers to act in an open and transparent way with patients and their families, in relation to their care and treatment, when something goes wrong.

In the event of an error in treatment, the provider must notify the patient or their family as soon as reasonably practicable after becoming aware of the error, and provide an explanation and an apology.

When should a patient be advised of an error with their care/treatment?

Regulation 20(8) requires the healthcare provider to act in an open and transparent way if there is a ‘notifiable safety incident’. This includes any unintended or unexpected incident that occurred which resulted in:

• Death (where the death relates directly to the incident)
• Severe harm
• Moderate harm
• Prolonged psychological harm.

How Burnetts can help

The case against University Hospitals Plymouth NHS Trust highlights the importance of the duty on healthcare providers to be open and transparent with patients in the event of treatment errors. It is important that healthcare providers develop a culture where staff are not afraid to report safety incidents and that measures are taken to ensure that similar incidents are avoided in the future.

If you or a family member have been notified of a safety incident in relation to treatment or care you may have a potential clinical negligence claim.

If you would like to speak to someone within our MNSI team to discuss whether you may have a clinical negligence claim or what you can do if you believe that you have suffered harm as a result of inadequate care which your healthcare provider has not been open about, then please contact our offices on 01228 552222 or e-mail hello@burnetts.co.uk. Please note that both telephone and video appointments can be arranged during this period of COVID-19.