Providers of regulated healthcare are obliged by law to say “Sorry” to patients when something goes wrong. The Care Quality Commission (CQC) details this in its Regulation 20: Duty of Candour. This post examines whether it is possible that BPAS failed to meet this statutory requirement in at least 5,000 cases during the last year.
What is Duty of Candour?
The duty of candour regulation requires all registered healthcare providers to act in an open and transparent way with people receiving care or treatment from them. The regulation defines ‘notifiable safety incidents’ and specifies how registered providers must apply duty of candour if these incidents occur. This is a statutory requirement that all CQC regulated providers must comply with.[1]
Notifiable safety incident
‘Notifiable safety incident’ is a specific term defined in the duty of candour regulation; to be notifiable an incident must meet each of the following three criteria:
- It must have been unintended or unexpected.
- It must have occurred during the provision of an activity regulated by the CQC.
- In the reasonable opinion of a healthcare professional, already has, or might, result in death, or severe or moderate harm to the person receiving care.
The CQC defines ‘moderate harm’ as “Harm that requires a moderate increase in treatment and significant, but not permanent, harm.”
It further defines ‘moderate increase in treatment as “An unplanned return to surgery, an unplanned re-admission, a prolonged episode of care, extra time in hospital or as an outpatient, cancelling of treatment, or transfer to another treatment area (such as intensive care)” [2]
In its recently updated ‘Patient Safety Incident Response Framework’, BPAS defines moderate harm as when at least one of the following apply: “…has needed or is likely to need healthcare beyond a single GP, community healthcare professional, emergency department or clinic visit, and beyond dressing changes or short courses of medication, but less than 2 weeks additional inpatient care and/or less than 6 months of further treatment, and did not need immediate life-saving intervention.” [3]
Do abortion complications qualify?
Sometimes complications arise as a result of an abortion treatment; these might include e.g. haemorrhage and/or infection and/or retained products of conception.
- These are known side effects of the abortion treatment but, as noted in the CQC guidance, qualify as notifiable safety incidents because they are unintended. There is an argument that these might also be unexpected given the significant variance between the numbers of women being treated for such complications compared to either the official reported numbers or even the rates declared by the abortion providers during the consenting process.
- These complications occurred during the provision of an abortion, which is an activity regulated by the CQC.
- Accredited official statistics published by the NHS for the year 2023/24 show 12,287 women admitted for hospital care diagnosed with abortion complications.[4] For these women, this is unplanned extra time in hospital resulting in an unplanned admission and subsequent unplanned treatment, diagnosed and treated by a healthcare professional who was not their original abortion provider. This meets the above stated requirements of moderate harm and a moderate increase in treatment.
What must providers do?
Regulation 20 states that when there is a notifiable safety incident, providers must: [5]
- Tell the relevant person [the patient], face-to-face, that a notifiable safety incident has taken place.
- Say Sorry.
- Provide a true account of what happened, explaining whatever is known at that point.
- Explain to the relevant person what further enquiries or investigations will take place.
- Follow up by providing this information, and the apology, in writing, and providing an update on any enquiries.
- Keep a secure written record of all meetings and communications with the relevant person.
In the previously cited section of this regulation, ‘Notifiable safety incidents’, the CQC states that if a healthcare provider discovers a notifiable safety incident that occurred in a different provider, then they should inform that previous provider. This indicates that the hospital team who diagnoses the abortion complication and admits the woman for subsequent treatment, should inform the abortion provider. The hospital team does not need to carry out the specific procedures relating to notifiable safety incidents, that responsibility remains with the original provider.
On its website, BPAS asks NHS staff to report any complications or clinical incidents regarding care provided by BPAS, and it provides an electronic form and specific email address for making such a report.[6]
BPAS and duty of candour
In its Annual Quality Report for the year 2023/34, on page 20, BPAS states:
“In 2023/24 there were a total of 315 incidents which required Duty of Candour. This was a decline from the 464 in 2022/23 as a result of our refining our criteria for incidents which required Duty of Candour.” [7]
This report states that in the same year, BPAS provided 106,424 abortions. The latest set of abortion statistics from the Office for Health Improvement and Disparities (OHID) is for the calendar year 2022, in which it reports a total of 239,926 abortions in England.[8]
If we assume for the purposes of this post, that the total abortions in the twelve months of 2023/24 were the same as in 2022, then we find that BPAS provided about 44% of all abortions.
It would be reasonable to assume a similar proportion of the total women admitted to an NHS hospital in England, diagnosed with an abortion complication (12,287), which suggests that about 5,400 women should have received their duty of candour rights from BPAS; and yet it reports just 315 did so.
This seems somewhat inconsistent with the way in which BPAS describes itself on page 20 of the Quality Report:
“At BPAS we pride ourselves on being open and transparent. All our staff aim to provide the very best abortion care to all our patients; however, we acknowledge that sometimes we provide care that did not go as expected or planned. Therefore, when something goes wrong, or causes, or has the potential to cause, harm or distress we implement our Duty of Candour Policy to apologise and take action to improve our care and procedures where possible.”
Elsewhere in this report BPAS talks about how it is “listening to women” and wants to ensure a particular focus on “seldom-heard groups”. Are these 5,000 women among those who are not heard by BPAS? Perhaps this is a weakness in the telemedicine abortion, at-home pills-by-post, process. These women receive the abortion treatment from BPAS but when complications arise, they are treated by an NHS hospital team who do not inform BPAS of the notifiable safety incident, and so there is an systemic failure to comply with the statutory duty of candour regulation.
CQC enforcement
It is an offence for a CQC regulated organisation to fail to comply with the duty. Failure can result in a range of penalties, including warning and requirement notices, imposition of special conditions, and criminal prosecution.
In April 2024, the CQC conducted a reinspection of BPAS and subsequently removed the S29 warning notice that had been enforced in May 2023. The CQC team investigated BPAS’ handling of incidents, and comments in its report: “we found between November 2023 and April 2024 the number of incidents graded moderate or above which required a duty of candour response was 32; of these 4 had been approved, 19 were being reviewed and 10 were awaiting final approval…Whilst we saw some delays in the sign off of those incidents graded moderate and above we were assured that BPAS had a process in place to review and sign these off.” [9]
It is somewhat surprising that the CQC does not seem to be enforcing fuller compliance with this statutory regulation (D of C). It is clear that 32 notifiable incidents over a period of six months is a very low number and a very small proportion of the likely notifiable total. It seems clear to the writer that many thousands of women are not receiving their lawful entitlement to an apology for the harm they have suffered from abortion complications, and that the CQC is lax in its enforcement of this legal requirement.
[1] Regulation 20: Duty of candour – Care Quality Commission. (n.d.). https://www.cqc.org.uk/guidance-providers/all-services/regulation-20-duty-candour
[2] Duty of candour: notifiable safety incidents – Care Quality Commission. (n.d.). https://www.cqc.org.uk/guidance-providers/all-services/duty-candour-notifiable-safety-incidents
[3] BPAS. (n.d.). Patient Safety Incident Response Framework. https://www.bpas.org/patient-safety-incident-response-framework/ – in Appendix A
[4] Duffy, K. (2025, January 14). Government under-reports abortion complications by a factor of 38x. Percuity. https://percuity.blog/2025/01/14/government-under-reports-abortion-complications-by-a-factor-of-38x/
[5] What you must do when you discover a notifiable safety incident (duty of candour) – Care Quality Commission. (n.d.). https://www.cqc.org.uk/guidance-providers/all-services/duty-candour-what-you-must-do
[6] BPAS. (n.d.). Reporting clinical incidents to BPAS. https://www.bpas.org/resources/reporting-clinical-incidents-to-bpas/
[7] Moore, L., & Stewart, H. (2023). ANNUAL QUALITY REPORT 2023/24. https://www.bpas.org/media/fizl2o2b/quality-report-2023-24.pdf
[8] Abortion statistics for England and Wales: 2022. (2024, December 18). GOV.UK. https://www.gov.uk/government/statistics/abortion-statistics-for-england-and-wales-2022
[9] British Pregnancy Advisory Service. (2024). Quality report. https://www.cqc.org.uk/sites/default/files/2024-06/British_Pregnancy_Avisory_Service_report_06_June_2024.pdf
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