When sorry seems to be the hardest word

25 Mar 2019

Laura Rowe, specialist Clinical Negligence solicitor, reviews the first case in which an NHS Trust was fined for not apologising to a family in good time.

Claimants pursuing Clinical Negligence claims often place very high importance on receiving an apology from the healthcare provider who provided them with what they claim to have been negligent treatment. However, our usual advice to Claimants as Clinical Negligence lawyers, is that it is not possible for us to force an apology and further, that apologies are often not forthcoming even if Clinical Negligence claims are ultimately successful.

However, the Care Quality Commission, the independent regulator of health and social care in England, has recently fined Bradford Teaching Hospitals NHS Foundation Trust for failing to apologise within a reasonable timescale to the parents of a baby who received negligent treatment. This is the first time such a fine has been issued and sends a clear message to healthcare providers about the importance of timely apologies to patients.

The Clinical Negligence Case

The baby in this case was admitted to Bradford Royal Infirmary in July 2016. There were delays in diagnosing the baby’s condition as well as missed opportunities to admit him to Hospital and sadly, the baby later died.

Although the Trust correctly recorded the incident as a notifiable safety incident for the purposes of Regulation (20) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (please see further below), the Hospital failed to comply with its Duty of Candour and did not apologise to the baby’s family until three months later in October 2016. The Trust was fined the sum of £1,250 for this failure by the Care Quality Commission in January 2019.

The Trust itself notified the Care Quality Commission of its breach of the Duty of Candour and following identification of the breach has apparently amended its policy and has put in place a major staff awareness campaign.

Ted Baker, the Care Quality Commission’s Chief Inspector of Hospitals said:

“Under the Duty of Candour, all providers are required to be open with patients or their families when something goes wrong that appears to have caused significant harm. The action 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.”

The Duty of Candour

The Duty of Candour is enshrined in Regulation 20(3) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This requires the healthcare provider to provide a notification of a notifiable safety incident to the relevant person (the patient) as soon as it is reasonably practicable to do so. A provider must:

  1. Ensure that the notification is given in person by one or more representatives;
  2. Provide an account, which to the best of the registered person’s knowledge is true, of all the facts known about the incident as at the date of the notification;
  3. Advise the relevant person what further enquiries into the incident the registered person believes are appropriate;
  4. Include an apology;
  5. Be recorded in a written record which is kept securely.

The Care Quality Commission is permitted, under the Health and Social Care Act, to serve a penalty notice where a provider has failed to comply with these requirements if the Care Quality Commission would have been entitled to prosecute.

The Care Quality Commission has extensive prosecution criteria but one of the circumstances in which it will consider prosecution is where there is evidence that there has been failure to notify and offer support to the relevant person following a notifiable safety incident.

Future Implications

The Care Quality Commission has previously used its powers to issue warning notices and requirement notices but this is the first time that the Care Quality Commission has exercised its criminal enforcement powers and fined a healthcare provider for delaying apologising to a patient. The decision to issue the Trust with a fixed penalty notice may suggest that the new Chief Executive of the Care Quality Commission, Ian Trenholm, intends for the organisation to pursue more criminal sanctions in the future.

Although the fine issued to Bradford Teaching Hospitals NHS Trust was comparatively small, the reputational damage that such a fine carries has the potential to be very damaging and should help to encourage all healthcare providers to be more vigilant regarding their compliance with the Duty of Candour in the future.

Do you believe that you have received treatment from a healthcare professional which justifies an apology? Do you suspect that they have failed to comply with their Duty of Candour? If so, the Clinical Negligence Team at Trethowans will be happy to advise you. You can contact specialist Clinical Negligence solicitor, Laura Rowe, on 02380 820537or submit an online enquiry.

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