Duty Of Candour – Are We Beginning To See A Growth In Prominence?

Topics covered: challenging cqc, cqc draft inspection report, CQC prosecution, CQC prosecutions, duty of candour, duty of candour breaches, duty of candour regulation, Health & Social Care Act, Regulated Activities

As all Providers and Registered Managers will be aware, Regulation 20 of the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 (Duty of Candour) states that 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”. Regulation 20 further stipulates when notification(s) must be made, what information must be given, and to whom, as well as addressing notifiable safety incidents.

Looking at the list of CQC prosecutions on its website, in conjunction with information Ridouts’ has recently obtained from a Freedom of Information request, it appears the CQC has been quietly ramping up its enforcement of Regulation 20. This, in conjunction with other Duty of Candour developments across the healthcare sector as a whole, suggests the Duty of Candour is gaining momentum and growing in prominence.

How is the CQC enforcing Duty of Candour?

Since 2020, the CQC has criminally prosecuted two healthcare providers for breaches of the Duty of Candour. These being:

  • The prosecution of Plymouth Hospitals NHS Trust ( “Trust”) in 2020 for failing to share details about the death of Elsie Woodfield following an unsuccessful endoscopy procedure and failing to apologise to her family within a reasonable timeframe. The Trust was fined £1,600 and ordered to pay £12,565.43 in total which included the fine, costs and victim surcharge.
  • The prosecution of Spire Hospital Leeds (“Hospital”) in 2021 for failing to apologise or disclose details of surgical treatment failures to four patients in a timely manner. The Hospital was fined £5,000 and ordered to pay £20,104.36 in total which included the fine, costs and victim surcharge. This was also the CQC’s first prosecution against an independent healthcare provider.

In addition, the CQC has issued 17 Fixed Penalty Notices (“FPN”) to Providers for Duty of Candour failures between 1 January 2019 and 31 December 2022 totalling £21,250. In accordance with the CQC’s Enforcement Policy, FPN’s are used where the CQC are entitled to prosecute but deem the issuance of a FPN a more proportionate response. The CQC state that FPN’s ‘send a message’ to Providers that ‘the issue of concern will not be tolerated’ – in this case, the absence of transparency and candour.

What other Duty of Candour developments have there been? 

Alongside the CQC’s enforcement of the Duty of Candour Regulation, and the requirement for registered professionals to adhere to the professional Duty of Candour, the following developments have been implemented and/or are in the process of being implemented at the time of writing:

  • Implementation of the National Guardian’s OfficeThe National Guardian’s Office (“Office”) and the role of the Freedom to Speak up Guardian (“Guardian”) was created following the recommendations of Sir Robert Francis in the Francis report in 2015. In brief, and as readers will be aware, Sir Robert was tasked to conduct an independent review of the NHS following the occurrence of various healthcare scandals and found the NHS ‘did not always encourage or support staff to speak up’ and advocated the role of Guardians within the NHS. In combination with the introduction of Guardians, the NHS also introduced the ‘National Speak Up policy’ which provides a minimum standard for local ‘Freedom to Speak Up’ policies across the NHS.

Currently, there over 900 Guardians within the NHS, Independent sector organisations, national bodies and other organisations to ensure that workers can speak up in connection with any issues impacting the performance of their job. Of note to Providers, the CQC has a Guardian and accompanying policy in place and within the Office’s 2023 report to Parliament stated “We have been working with the Care Quality Commission on the inclusion of Freedom to Speak Up as a quality indicator in their new regulatory framework”. This overwhelmingly highlights the prominence of the Duty of Candour, and the importance of the Freedom to Speak Up policy to the CQC, and we wait to see how its inclusion will be framed in the new regulatory framework.

  • Introduction of the statutory Duty of Candour in WalesFrom April 2023, the statutory Duty of Candour will become applicable to all NHS organisations in Wales. According to the Professional Standards Authority’s website; the Professional Standards Authority oversee healthcare regulators, there is a commitment to introduce an equivalent duty for Independent providers from April 2024 in Wales. For readers’ reference, the statutory Duty of Candour was implemented in England in 2014 for NHS Trusts (2015 for other organisations) and in 2016 for Scotland with further Regulations introduced in 2018.
  • Refreshment of healthcare regulators existing Duty of Candour guidance and the increase in failure to comply charges – The joint Duty of Candour guidance produced by the Nursing & Midwifery Council and General Medical Council in 2015 was updated last year to reflect updates about reporting systems, terminology, and the support available to health and care professionals.” Meanwhile, the number of allegations brought by healthcare regulators in connection with registered professionals failing to comply with their professional Duty of Candour has increased in number and this is reflected in the Fitness to Practise determinations found online. 

What can we take away from this?

With reference to all of the above, it can be noted that all healthcare organisations and regulators are now taking the Duty of Candour seriously and providing more clarity and opportunity for staff members, patients and service users to call out poor behaviour and practice. Therefore, and as a direct result, it is now more important than ever for Providers to ensure that they are adhering to and meeting their Duty of Candour responsibilities and making the necessary notifications were required. Failure to adhere to the Duty of Candour, during inspections, may result in a poor rating for ‘Well-led’,  a breach of Regulation 20 of the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 being found and the service being rated as ‘Requires Improvement’ overall, or in extreme cases a prosecution being brought.

Should you seek assistance with a Duty of Candour prosecution or require assistance addressing Duty of Candour breaches within a draft CQC report, please contact Ridouts for assistance on 0207 317 0340 or info@ridout-law.com

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