From the jaws of the Care Quality Commission this month comes the first ever fine issued for breach of the Duty of Candour. Bradford Teaching Hospitals NHS Foundation Trust have been given a fixed penalty notice for £1,250 for failing to apologise to a bereaved family within a ‘reasonable’ time.
A baby had been admitted to Bradford Royal Infirmary in July 2016. Delays in diagnosis and missed opportunities to admit him had been recorded as a notifiable safety incident, yet the family were not informed of this and did not receive any apology until October (writes the CQC).
The CQC’s action does not relate to the actual care provided to the child, but rather to the fact that the NHS Trust was slow to inform the family that there had been delays and missed opportunities in his treatment.
Apparently the hospital identified and reported their breach to the CQC themselves, and have implemented an awareness-raising programme across their staff to avoid this happening again. Whilst in theory the CQC have powers of prosecution, in the circumstances, this relatively small fine seems more proportionate.
The Duty of Candour and inquests
This case serves as a useful reminder that the Duty of Candour has teeth, and it should be kept in mind when engaged in healthcare inquest cases. When shortcomings have led to a death documents relevant to the duty’s exercise may be informative both during the Coroner’s investigation and at the inquest itself. Coroners may want to ask NHS Trusts for disclosure of their Duty of Candour letters as potentially containing relevant information, whilst those representing bereaved families in inquests will no doubt consider carefully what the inquest reveals about the Trust’s previous awareness of shortcomings. Families may choose to bring matters to the attention of the CQC where significant failings, known to a Trust in advance of the coroner’s investigation, have not been frankly acknowledged to the family in accordance with the duty from the outset.
As a reminder, Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936) provides that:
The CQC have issued detailed guidance on how to comply with the duty that can be accessed here.
Notifiable safety incident
What counts as a ‘notifiable safety incident’ will depend on whether the body concerned is a health service body (such as an NHS Trust), or whether it is any other registered person/body (such as a care home). Under Regulation 20(8), in relation to health service bodies, a ‘notifiable safety incident’ is any:
“….. unintended or unexpected incident that occurred in respect of a service user during the provision of a regulated activity that, in the reasonable opinion of a health care professional, could result in, or appears to have resulted in
(a) the death of the service user, where the death relates directly to the incident rather than to the natural course of the service user’s illness or underlying condition, or
(b) severe harm, moderate harm or prolonged psychological harm to the service user.”
Whereas under Regulation 20(9), for any other registered person/body, a ‘notifiable safety incident’ is any:
The duty of candour obligations are separate and additional to those obligations arising under Regulation 18 of the Care Quality Commission (Registration) Regulations 2009. The 2009 Regs set out an obligation on registered persons to notify the CQC of certain (adverse) incidents arising in the provision of care, and is aimed at enabling the CQC to take prompt and effective regulatory action. For more on that, take a look at the CQC’s guidance page, which can be accessed here.
If seeking disclosure of Duty of Candour letters, why not jump in fully, and seek disclosure of notifications to the CQC also? This author recently acted in an inquest where, in breach of the statutory obligations, a care home’s management had failed for weeks to notify the CQC of a grade 4 pressure sore which contributed to death. This was indicative of problems in leadership and management of that home, and staff’s basic regulatory knowledge. The home had been shut down by the time of the inquest, but had it still been operating, further exploration of such issues would have been instructive in relation to the Coroner’s PFD duties.
 The regulations that require providers to be open and honest with patients or their families if there is an incident in which they suffer harm. See our earlier blog on its application in inquests here. If the underlying DoC documents are disclosed to coroners, and the duty has been properly complied with, they are likely to be more candid and more contemporaneous than even SUI/SI/RCA internal investigation reports.