Private healthcare providers should ensure they do not fall foul of duty of candour regulations or they will face fines running into thousands of pounds.
The warning follows a recent case involving Spire Healthcare who were ordered to pay £20,000 after delaying telling four patients of concerns over their care at the private healthcare provider’s Leeds hospital.
Commenting on the case brought by the Care Quality Commission (CQC), Laura Hannah, partner at law firm Stephensons (pictured), explained that the first reported prosecution by the CQC for a breach of duty of candour was in September 2020 against an NHS Trust.
Hannah added that while the CQC had only taken action to issue fixed penalty notices for these breaches, this recent case is reportedly the first of its kind against an independent provider.
Hannah told Health & Protection: “This regulation requires all registered health and social care providers to act in an open and transparent way with service users and their relatives in relation to the care and treatment provided to them.
“It sets out a clear requirement for providers to notify them of all the details of an incident; any enquiries being made; and to provide an apology, as soon as reasonably practicable after becoming aware that a notifiable safety incident has occurred.”
According to Hannah, one of the most common downfalls of registered providers who fall foul of this duty is the delay in notifying a person of a notifiable safety incident, or failing to include all relevant facts in the notification.
“It is a defence for a registered provider to prove that they took all reasonable steps and exercised all due diligence to prevent the breach.
“It is therefore advisable that detailed records of any attempts to contact the relevant person, or their refusal to speak with the registered provider, are kept and that all of the facts of the incident are notified in full, both in person and in writing.”
But the penalty for firms falling foul of the rules can be hefty in terms of reputation, Hannah added.
“The maximum fine that can be imposed in a prosecution for this offence is £2,500 per breach, and although this is small, a prosecution of this nature can arguably cause more reputational damage to a health and social care provider,” she continued.
“It is therefore important that health and social care providers ensure strict compliance with their statutory duty and that prompt action is taken to remediate any breaches as quickly as possible in order to mitigate the risk of any prosecution.”
Carlton Sadler, partner at law firm Bevan Brittan, told Health & Protection that all healthcare providers, in the NHS and independent sectors, need to focus carefully on their procedures for complying with the duty of candour.
“This is increasingly an area which CQC is looking to enforce, and can result in fixed penalties or prosecutions being pursued,” he said.
“Healthcare providers should be open and honest with patients. However, the question of whether a particular case falls within the definition of a ‘notifiable safety incident’ which requires specific steps to be taken can, in some circumstances, be nuanced and complex.
“CQC’s own draft guidance which it issued for consultation late last year got this wrong in one of the examples it gave. Although CQC corrected that error in its finalised guidance, this shows that these judgements are not straightforward and it is hoped that the regulator will take a proportionate approach.
“With that in mind, it is surprising that some of the first cases to be pursued by CQC are ones where the steps required by the duty of candour were taken, albeit not quickly enough.”