Official concerns about the statutory duty of candour’s fitness for purpose were first raised in December 2023, following the announcement of a review in the government's response to the Hillsborough disaster report. This prompted the last government to launch a consultation on the statutory duty that ran from 16 April 2024 to 29 May 2024 Duty of candour review - GOV.UK. This consultation was described as a ‘call for evidence’.
The purpose of DHSC's review was to understand the extent to which the statutory duty of candour was being honoured, monitored and enforced. In launching the consultation, DHSC emphasised that limited or non-compliance with the duty cannot be justified. Its aim was "to deliver recommendations for better meeting the policy objectives of the duty and which can be implemented at pace."
The statutory duty of candour was introduced in the wake of the Mid Staffs scandal in 2014 - The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 . The duty places a direct obligation upon all health and social care providers registered with CQC to be open and honest with patients, service users and their families when a notifiable safety incident occurs - defined as one that was unintended or unexpected, occurred during regulated activity, and in the reasonable opinion of a healthcare professional, has or might result in death or severe or moderate harm.
The current government published the findings of the call for evidence on 24 November 2024, accelerated by three developments: the Infected Blood Inquiry's recommendations for candour duties covering individuals in NHS leadership positions, the King's Speech commitment to a Hillsborough Law establishing a duty of candour on all public servants, and the government's commitment to regulate NHS managers.
The report, based on 261 responses, highlights major concerns about the statutory duty of candour. Only 40% of respondents thought the purpose of the duty was clear, while over half felt healthcare staff lacked understanding of its requirements. Compliance was perceived to be inconsistent, with significant concerns about staff avoiding candour due to fear of blame, lack of senior management support, or unclear roles and thresholds. Patients and families were particularly critical, with many reporting poor communication and a lack of accountability from providers.
Looking ahead, there seems little doubt that the statutory duty of candour will be significantly tightened later in the year. During the last 12 months, repeated, high-profile examples of damage caused by the absence of an open and transparent culture have emerged. The need for greater candour was a recurrent theme in the Hillsborough Report, the final report of the Infected Blood Inquiry and the ongoing Thirlwall Inquiry into the Lucy Letby case.
Perhaps the clearest indication of direction of travel is the emphasis now being placed on individual, as opposed to organisational, responsibility. As Sir Rob Behrens, the former Parliamentary and Health Service Ombudsman, said when giving evidence to the Thirlwall Inquiry "[the statutory duty of candour] doesn't work because it doesn't apply to individuals, it applies to persons and that is interpreted as a public body."
The government has confirmed it will consider both the responses to the ongoing manager regulation consultation and the call for evidence on the statutory duty of candour as it continues to develop policy on candour in healthcare.
Our valued Altea associates, and AlteaPlus Essential members have received an expanded version of this content in the form of a detailed insight article.
Not an associate or member yet? Join now to enjoy full access to our extensive resources and more.
Interested in exploring more healthcare insights? Listen to our AlteaTalks podcast for expert-led discussions breaking down the latest developments and what they mean for practitioners, patients, and providers.
"The information contained in this article does not represent a complete analysis of the topics presented and is provided for information purposes only. It is not intended as legal advice and no responsibility can be accepted by Altea Insurance for any reliance placed upon it. Legal advice should always be obtained before applying any information to particular circumstances."
