CQC issues its first fine in respect of a failure to comply with the duty of candour
Bill Dunkerley
05/02/2019

Bradford Teaching Hospitals NHS Foundation Trust has been issued with a fixed penalty notice of £1,250 by the Care Quality Commission as a result of its failure to apologise to a family in a reasonable period of time.
Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 requires regulated providers to, “act in an open and transparent way,” and to notify the ‘relevant person’ (being either a service user or their representative) as soon as reasonably practicable after becoming aware that a ‘notifiable safety incident’ has occurred. The Regulations explain that a notifiable incident in relation to a health service body is:
“Any unintended or unexpected incident that occurs 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 [either] the death of that service user… or severe harm, moderate harm or prolonged psychological harm.”
In practice, Regulation 20 serves to foster a culture of candour, openness and honesty by obliging regulated providers to:

– Inform service users when something goes wrong;
– Offer appropriate support and a remedy; and
– Issue an apology.

In the case of Bradford Teaching Hospitals NHS Foundation Trust, a baby was admitted to Bradford Royal Infirmary in July 2016. There were delays in diagnosis and missed opportunities in the care that was provided and whilst the Trust recorded the case as a ‘notifiable safety incident’, it did not inform the baby’s family that it had done so or issue an apology until October 2016.
Professor Ted Baker, the CQC’s Chief Inspector of Hospitals, said of the fine:
“The action that we have taken against Bradford Teaching Hospitals does not relate to the care provided to this baby, but to the fact that the Trust was slow to inform the family that there had been delays and missed opportunities in the treatment of their child. Patients or their families are entitled to the truth and to an apology as soon as practical after the incident – which didn’t happen in this case.”
Comment
Whilst the issue of this fine, the first of its kind, is perhaps further evidence that the CQC is increasingly willing to exercise the full range of its enforcement powers in holding providers to account, it is questionable to what extent the fine achieved the general aims of sentencing.
Although the CQC considered that a fixed penalty notice was a proportionate alternative to prosecution in this instance, it is difficult to understand how a low fine (likely representing only a tiny fraction of the Trust’s turnover) can be considered a deterrent to other providers.
In addition, Regulation 20 does not give any indication as to what would be considered to be a ‘reasonably practicable’ time period in which to issue a notification. In the above case three months was held to be too long, but it is not clear if this period was intended to be of universal application, or specific to the facts at hand.
Only time will tell whether the CQC considers fixed penalty notices to be a useful tool at its disposal, or whether it deems it necessary to use its additional enforcement powers, including prosecution, to hold healthcare providers to account. In any event, care providers should consider this an opportunity to review their crisis response systems and to seek further advice if required.

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