What is the duty of candour?

The duty of candour is the duty to be open and transparent with relevant individuals and organisations when something goes wrong. It should come as no real surprise that if an issue arises, particularly in a health and social care setting or other professional environment then those affected ought to be provided with the reasons for what went wrong and why it went wrong, as soon as practicable; there should also be an opportunity for those involved to apologise for what has occurred.

An effective duty of candour requires the following:

• Informing the individual affected when something goes wrong
• Apologising to them (or their family/carer or representative)
• Offering help, as appropriate, to rectify what went wrong
• Providing a full explanation for when the issued arose and the implications.

Honesty with colleagues and employers is required, as well as full and proper engagement with any investigation. In the case of medical negligence, healthcare providers are expected to offer support.

Taking the health and social care sector as a working example, the Care Quality Commission (CQC) are responsible for ensuring that health and care services are provided safely and to a high standard. In doing so they monitor and inspect services and have powers to take appropriate action if they find evidence that their standards are not met.

The CQC can take the following action:

• Requirement notices to set out improvements required and by when
• Making changes to care providers registration to limit what they can do

In relation to healthcare, there are two types of duty of candour – the professional duty and statutory duty. The professional duty is within the remit of professional bodies such as the NMC whereas the statutory duty engages the CQC under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Regulation 20, for example, sets out specific circumstances, known as ‘notifiable safety incidents’ which must be reported. With regards to health service bodies a ‘notifiable safety incident’ is any unintended/unexpected incident which occurred with a service user during a regulated activity which could result/appears to have resulted in the death or severe/moderate harm to the person receiving the care. Even where such conditions are not met, providers are reminded of the over-arching duty of candour to be open and honest at all times.

What should organisations do?

Organisations need to have robust policies and procedures in place to embrace and implement an effective duty of candour. Crucial to this is fostering a culture of transparency and honesty, which will help to ensure staff are comfortable identifying issues and avoid situations where they hide problems.

Extension of the duty of candour to wider public bodies

The duty of candour is now being called for as a critical way to foster openness not only in the healthcare sector but in public organisations as a whole. On the 30th April 2024, the House of Lords voted to extend the duty of candour to include wider public bodies. This highlighted once again the growing discontent with the bodies who many feel may prioritise reputation over accountability when crises arise despite the very obvious need for and importance of transparency in matters which can have far -reaching consequences for the general public.

The Infected Blood Inquiry Report along with the evidence in the Horizon Post Office Inquiry has fuelled further debate on the duty of candour and how its applied in practice following such scandals or tragic events. The duty of candour is an important legal requirement in fostering transparency in public organisations.

We have also seen the Hillsborough Charter which seeks to prioritise public interest above reputation although much of it is voluntary. The proposed Public Authority (Accountability) Bill is designed to allow victims to be able to use the statutory duty of candour with regards to public bodies and take action if its breached.

A legal requirement placed on organisations to act in a candid and transparent manner may have resulted in different outcomes in previous public inquests. The chair for the infected blood scandal, Sir Brian Langstaff, recently said a statutory duty of candour should be compelled for civil servants and healthcare leaders. He said the following :

‘Here, the NHS and successive governments compounded the agony by refusing to accept that wrong had been done. More than that, the government repeatedly maintained that people received the best available treatment and that testing of blood donations began as soon as the technology was available. And both claims were untrue.’

Inquiries in recent years have undoubtedly brought attention to the duty of candour, as authorities have frequently failed to abide by it.

The duty of candour is yet to be extended to include all public bodies nor organisations who operate ‘within’ the public sector. However, it remains to be seen how the duty of candour will develop, but with a new government and Sir Keir Starmer as the prime minister it may well be that the much called for extension is introduced sooner rather than later.

We, like those likely to be impacted will watch this space with interest but for anyone caught up in any regulatory or criminal investigations in the meantime, particularly those involved in the health and social care sector please do not hesitate to get in touch with our experts at Olliers. We have been involved in some of the largest public inquiries in recent years including IICSA, Grenfell and the Manchester Arena Inquiry and our team are always on hand to provide advice and assistance.