• Action Against Medical Accidents analysed 59 CQC inspections of NHS trusts in 2017
  • CQC has never prosecuted a provider for breaching the duty of candour
  • The duty of candour was introduced in 2014 as a fundamental standard which trusts must meet
  • Separate data shows action taken against 15 trusts since 2014

The Care Quality Commission “can’t be relied upon” to ensure NHS trusts comply with the statutory duty of candour, a new analysis shared with HSJ has claimed.

Since the duty of candour came into force in November 2014, requiring NHS trusts to be upfront with patients about incidents of harm, the quality regulator has not prosecuted a single organisation for breaching the regulations.

The charity Action Against Medical Accidents, or AvMA, has analysed reports from the 59 CQC inspections of NHS trusts carried out in 2017.

It said the CQC did not centrally record alleged breaches of the duty of candour. It added: ”The continuing lack of clarity about how the CQC deals with individual allegations or reports of potential breaches of the duty of candour is very worrying. The CQC was unable to provide any information on how many such reports it receives or what had been done about them.

“Without access to complaints or an ability to realise patterns of breaches, the CQC can’t be relied upon to ensure the duty of candour is adhered to.”

Responding to HSJ yesterday, the CQC said it was reviewing how it regulates the duty of candour. Chief inspector of hospitals Ted Baker said the review would seek to “identify where our regulatory processes may be strengthened further”.

AvMA’s analysis of CQC inspections found 39 per cent of inspection reports included a detailed assessment of duty of candour processes, with 49 per cent having a moderate assessment.

Five per cent of reports did not mention the duty of candour at all while 8 per cent had only a superficial mention.

While AvMA said this was an improvement compared to a similar study it did in 2016, it added that in some cases the regulators’ recommendations were “inconsistent and often vague”.

It gave three examples:

  • Weston Area Health Trust was criticised for staff having inconsistent knowledge of the duty but no recommendations were made.
  • King’s College Hospital FT hadn’t applied the duty of candour in 10 per cent of cases but CQC suggested no improvements or recommendations.
  • West Suffolk NHS FT was criticised for a lack of mandatory training but CQC did not follow up with a recommendation.

AvMA chief executive Peter Walsh said: “In the CQC’s own terminology, it still ‘requires improvement’ when it comes to the duty of candour.”

Meanwhile, separate information released by the CQC shows it has taken action against 15 NHS trusts for breaches of the duty of candour since it was introduced in 2014. These trusts have been issued with a total of 17 requirement notices. One trust was issued with two warning notices and another with an enforcement notice.

This data was provided to campaigner Will Powell, whose son Robbie died in 1999. In addition, the CQC told Mr Powell last month it had taken action against 95 other non-NHS trust providers, including private hospitals and adult social care operators.

Mr Powell said: “Not one provider had been prosecuted or received a financial penalty, which clearly demonstrates there is no deterrent to comply - the current statutory DoC is therefore useless and toothless and was, in my view, intentionally set up to fail. What we need is a freestanding legal duty of candour for all healthcare professionals – Robbie’s law.”

Ted Baker, CQC chief inspector of hospitals, said: “We are fully committed to ensuring a robust and consistent assessment of duty of candour at registration, on inspection and through our ongoing monitoring activity. We recognise there is more we can do to improve and as part of this we are currently reviewing our approach to assessing compliance with the duty of candour regulation across all sectors to identify where our regulatory processes may be strengthened further.

“This includes a review of the training and guidance for inspectors and guidance for providers. We are working closely with providers, inspection staff, people who use services and our colleagues at AvMA as part of this work and we will report on the findings at a public board meeting later in the year.”