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Candour in the public sector – the letter of the law

08 January 2024

Disasters and then inquiries over the past 30 years means the 'duty of candor' in the public sector is under the spotlight.

Candour, honesty, openness and transparency in the public sector are words and principles which ordinarily you would not expect black letter law to have to address. You might expect that principles of candour would be the guiding ones for all those operating in the public sector. Yet tragedies, inquiries and reports over the past 30 years have shown public bodies having fallen short of that expectation.

Six years after a report by the former Bishop of Liverpool recommended changes in the law to compel public bodies to tell the truth during investigations and inquiries, ministers said legislation alone could not ensure a culture of openness. Calls for all public officials to have a legal “duty of candour” in the wake of the Hillsborough disaster have been rejected. 

A total of 97 people died as a result of the Hillsborough tragedy when Liverpool fans were crushed in the Leppings Lane end of Sheffield Wednesday’s stadium in 1989. After a long battle for justice, an inquest into the deaths concluded the victims had been unlawfully killed following a litany of organisational blunders.

In 2017 the Right Reverend James Jones published 25 recommendations for the government, the police and Chief Coroner to prevent the injustices of Hillsborough ever occurring again. However, despite adopting many of the proposals, the Government has fallen short of fully committing to all aspects of a “Hillsborough Law”.

While new legislation recently announced in the King’s Speech will compel police officers to demonstrate a “duty of candour”, it will not at this stage be extended to all public bodies and officials. Nor will it extend to those organisations who operate and work 'within' the public sector, something that we have seen more recently in the Grenfell Inquiry.

In its long-awaited formal response to the report, the Government said: “It is our view that the duties and obligations that have been created since the Hillsborough disaster, combined with actions set out in this response… broadly achieves the aims and upholds the principles of what has become known as the Hillsborough Law.”

Ministers promised to monitor the situation, however, and added: “While legislation alone cannot ensure a culture of openness, honesty and candour, we will not rule out bringing further legislation if we think this is needed to drive further improvements.”

Elkan Abrahamson, director of Hillsborough Law Now, said: “Only the full reintroduction of the Public Authority [Accountability] Bill, which was introduced by Andy Burnham but fell when the 2017 general election was called, will do; namely making a duty of candour enforceable and ensuring a level playing field between public authorities and those affected by disasters and wrongdoing at inquests and inquiries.”

However, among the pledges adopted by the Government is a commitment to introduce a permanent Independent Public Advocate to support bereaved families and victims in the immediate aftermath of a major incident.

Following the publication of the Government’s formal response, Rishi Sunak, the Prime Minister, again apologised to the victims of Britain’s worst-ever sporting disaster.
He said: “The Hillsborough families have suffered multiple injustices and, more than 34 years later, there can never be too many apologies for what they have been through. And I want to repeat that apology today, and thank the Hillsborough families for their tenacity, patience and courage.”

James Cleverly, the Home Secretary added: “The 97 lives taken by the Hillsborough disaster will never be forgotten. So many people were touched by this national tragedy and the Hillsborough families were badly let down.

“Police dishonesty, lack of accountability and obstruction were all prevalent. That is why we promised the Hillsborough families that we would honour the legacy of their campaigning and deliver lasting change.

“By signing the Hillsborough Charter and introducing a duty of candour for policing, this government will deliver that change and protect others from similar experiences in the future.”
Maria Caulfield Parliamentary Under-Secretary of State for Mental Health has also made a statement to Parliament as follows; "I wish to inform the House that the Department of Health and Social Care will lead a review into the effectiveness of the statutory duty of candour for health and social care providers in England. The review will formally commence early in the New Year."

The duty of candour is set out in regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. It has been in place for NHS trusts and NHS foundation trusts since 2014 and for all other providers regulated by the Care Quality Commission since 2015.

The duty of candour is about people’s right to openness and transparency from their health or care provider. It means that when something goes wrong during the provision of health and care services, patients and their families have a right to receive explanations for what happened as soon as possible and a meaningful apology.

Since its introduction, there has been variation in how the duty has been applied in some settings. To that effect, the review will look at the operation and enforcement of the existing duty, with a focus on delivering recommendations that can improve its application.

The Terms of Reference states that the review will consider the design of the statutory (organisational) duty of candour and its operation (including compliance and enforcement) to assess its effectiveness and make advisory recommendations.

The review will focus on solutions in response to concerns within independent reports that the duty is not always met as intended.

The review will not consider the professional duty of candour, which is overseen by regulators of specific healthcare professions. The Review is planned for publication in Spring 2024 – so quite speedy especially as this review comes at the same time as a number of high profile Public Inquiries into the healthcare sector, such as COVID and the Thirlwell Inquiry.

Speaking after the government's response was published, Bishop Jones, who had made the recommendation, said: "Although the government's statement falls short of the hopes of the Hillsborough families it is a serious and substantial response and rises above that given to other panels and inquiries. It has responded to all 25 recommendations of the report and has today introduced significant changes."

The former Bishop of Liverpool welcomed the government's decision to sign the Hillsborough Charter but added he would continue to "press for further action".

If you have any questions about how the duty of candour may affect your organisation please contact Steffan Groch.

Further Reading