Healthcare providers’ duty of candour under scrutiny

Out-Law News | 10 May 2021 | 4:02 pm | 2 min. read

A fine imposed last month highlights that there is an appetite within the Care Quality Commission (CQC) to prosecute healthcare providers it considers have breached their duty of candour to patients and their families, an expert has said.

Sean Elson of Pinsent Masons, the law firm behind Out-Law, was commenting after a large London-listed hospital group was ordered to pay a £5,000 fine, a £120 victims surcharge and costs for breaching duty of candour responsibilities after it admitted it had failed to apologise and disclose details of care failures in a timely manner to patients.

Four patients were treated at the operator's Leeds hospital by an upper limb orthopaedic consultant but suffered prolonged pain requiring further remedial surgery. Despite the operator undertaking a review of the cases and instructing an independent consultant surgeon in May and June 2018, the operator did not issue letters to the patients informing them of its concerns until November 2018. The delay and lack of apology prompted the CQC to bring the prosecution – the first of its kind against an independent healthcare provider.

“Providers should not dwell on the particular facts in this case, instead providers should sit up and take notice that CQC chose to bring enforcement action in relation to the duty of candour at all,” Elson said.

The duty of candour is set out under Regulation 20 of the Health and Social Care Act 2008  (Regulated Activities) Regulations 2014. It puts a legal duty on every health and social care provider that CQC regulates to be open and transparent with people using services, and their families, in relation to their treatment and care. The duty of candour was introduced in 2014 in response to concerns raised following investigations into Mid Staffordshire NHS Foundation Trust and a campaign by the parents of Robbie Powell who died in 1990 and whose case highlighted the need for a statutory duty of candour.

In April 2021 the CQC updated its guidance for providers on how to comply with their duty of candour responsibilities. The guidance aims to assist providers to fully understand the duty and know what they must do to carry it out and drive further improvements. The revised guidance makes clear that apologising is not an admittance of liability.

The updated guidance sets out specific actions that providers must take when a notifiable safety incident occurs. Those actions include: informing the people affected about the incident; offering reasonable support; and providing truthful information and a timely apology.

In its guidance the CQC stated that “a crucial part of the duty of candour is the apology” and that apologising is “not an admission of liability” – something which is also emphasised in the NHS' ‘Saying Sorry’ leaflet, which further confirms that apologising will not affect a provider’s indemnity cover either. The CQC said that apologising is “the first step to learning from what happened and preventing it recurring”.

The CQC’s prosecution of Spire Healthcare was considered by Leeds Magistrates’ Court.

Sarah Dronsfield, CQC’s head of hospital inspection, said: “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.”