When regulations came into force in November 2014 requiring NHS organisations to be open and honest with patients about incidents that had caused them harm (the Duty of Candour), I was genuinely hopeful. After years of advocating for this, it felt like a turning point.
The concept behind the Duty of Candour is that patients and their families would be told promptly what had gone wrong, given honest explanations, and supported in obtaining compensation and moving forward with their lives. Clinicians involved in adverse incidents would be able to share what they had learned without fear of punishment or professional ruin. And the NHS — the institution that every one of us in the UK depends upon — would become meaningfully safer as a result of that openness being enshrined in law.
More than a decade on, I find it difficult to say that vision has been realised, and the publication of Thirwall Inquiry today underlines this.
In my experience as a clinical negligence solicitor the Duty of Candour is not being consistently exercised. Whether that reflects the pressures facing an overstretched NHS workforce, a lack of institutional support for clinicians when things go wrong, or something more systemic, I will leave others to judge. What I can say is that the gap between the duty as written and the duty as practised remains wide and, for the patients on the wrong side of that gap, deeply consequential.
The Thirlwall Inquiry made for distressing reading for so many reasons, not least because of the impact on the families and babies at the centre of it. One further theme of the Inquiry report that was particularly disappointing to me was that it bought the gap between the duty of candour in theory and as practised into sharp focus. Among Lady Justice Thirlwall’s conclusions was a finding that the Trust and many of those working within it had repeatedly failed in their duty of candour: with parents who deserved the truth, with investigators trying to establish it, and with regulators whose role it was to act upon it.
For those of us who have spent careers championing this duty, that conclusion was not just disappointing. It was a reminder that legislation, however well-intentioned, is only as effective as the culture and leadership that surrounds it.
The question now is not whether the Duty of Candour matters, it plainly does. The question is what it will take to make it real and whether there is any political appetite to do so.
Further information
If you have any questions regarding this article, please contact Kirsty Allen in our Medical Negligence & Personal Injury team.
