Breach of the Duty of Candour:  First time prosecution

30th November 2020 Clinical Negligence

In the first criminal prosecution of its kind, University Hospitals Plymouth NHS Trust were recently found to breach the Duty of Candour, for failing to be open and transparent with a bereaved family.

What is the Duty of Candour?

The Duty of Candour is a statutory (legal) duty to be open and honest with patients or ‘service users’, and their families, when something goes wrong that appears to have caused or could lead to significant harm in the future, which is known as a ‘a notifiable safety incident’.

The aim of the regulation is to ensure that health service bodies are open and honest with service users and other 'relevant persons' who are acting lawfully on their behalf, in relation to care and treatment.

The duty is contained in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and applies to all health and social care organisations registered with the regulator, the Care Quality Commission (CQC) in England.

Following the occurrence of a notifiable safety incident, all registered organisations must:

  • Notify the relevant persons of the incidents. This should be done in person and provide an explanation of what's known at the time, what further enquiries will be made, offer an apology and be recorded in a written record that is kept securely.
  • The patient should be given reasonable support; this could be practical support such as providing an interpreter or emotional support e.g. counselling.
  • The patient must be provided with written notes of the initial discussion and of the notification, including details of further enquiries, their results and an apology. The organisation is also required to keep copies of all correspondence relating to the incident.

In this case, Elsie Woodfield died at Derriford Hospital in Plymouth after suffering a perforated oesophagus during an endoscopy.  

The Care Quality Commission (CQC) brought an action against University Hospitals Plymouth NHS accusing it of not being open with Woodfield’s family about her death and not apologising in a timely way.

Her daughter, Anna Davidson eventually received a letter apologising for her mother’s death in December 2017. However she felt this lacked remorse and left many unanswered questions, making it “impossible to grieve”.

This trust admitted its failings at court and pleaded guilty for breaching its duty under Regulation 20. They were ordered to pay £12,565 by District Judge, Joanna Matson.

Speaking afterwards, Nigel Acheson, the CQC’s deputy chief inspector of hospitals, 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.”

Patients and their families place a large amount of trust in health and social care providers and it is therefore essential for them to feel confident that should anything untoward occur, they will be entitled to an open and honest response.

Furthermore, this allows a level of scrutiny to be applied, which provides an opportunity to consider the situation objectively, look at what could have been done better and implement any necessary changes to improve patient safety in the future.

A failure to comply with the Duty of Candour can not only lead to a breakdown in trust between patients and health service bodies but may lead to service users distancing themselves from vital services they require in the future.

In clinical negligence cases, many Claimants are simply looking for an apology. Failing to comply with the Duty of Candour can lead to further tensions between parties and prolong any future litigation process.

This may be the first prosecution of its kind, however, we are likely to see more cases being brought under these regulations in the future. This is a stark reminder to health service bodies that duties imposed under these regulations should not be taken lightly.

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Ashleigh Francis is a Paralegal located in Manchesterin our Clinical Negligence department

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