Duty of Candour: Are healthcare providers honest when things go wrong?

The Government has launched a call for evidence to explore whether the current 'duty of candour' system is working. Views are being sought from across the system including patients, families and healthcare providers.

The duty of candour places a statutory obligation on healthcare providers to be open and transparent with patients and their families when an unintended incident results in death or moderate to severe harm, known as a 'notifiable safety incident'. 

Most of the medical negligence cases we deal with fall within this bracket. Often clients come to us because their healthcare provider has admitted a mistake. The Trust or organisation might have carried out an internal investigation identifying failings in the care provided, for example, a delay in diagnosis or treatment.

Unfortunately, however, not all healthcare providers comply with this duty of candour. I recently acted for several clients failed in this respect. Such experiences only compound the hurt and betrayal suffered by people already dealing with the aftermath of negligent treatment.

Laura's Story

My client Laura developed incurable lung cancer following her consultant's failure to follow-up a CT scan. When the cancer diagnosis was made a year later, she was not informed that the earlier scan was reported as concerning and recommended specialist referral. She was simply led to believe that she had been very unlucky. In her claim Laura said: "I feel overwhelmed with feelings of anger. I am angry at the Trust's failures in their duty of care towards me and I am furious at their lack of transparency… This lack of disclosure fails in the Trust’s duty of candour to me…My trust in NHS medical care has been betrayed". 

Part of the duty of candour requires providers to apologise for what has gone wrong. Laura did eventually receive an apology for the failures in her care, but it was several years later, via lawyers far removed from the clinicians involved in her care. There is a sense of 'too little, too late'. 

Rohan's Story

My clients Pushpa and Hitendra Godhania have fought for more than three years to establish that the duty of candour applies to the death of their 16-year-old son Rohan. Rohan died at West Middlesex Hospital following a failure to perform a blood test that would have resulted in diagnosis and treatment of his life-threatening condition. 

His mother Pushpa comments: 

"From the outset it was apparent that the Trust did not want to acknowledge or learn from the errors in Rohan's care. Our search for answers was quickly met with hostility from the Trust's legal team, rather than the compassion and sympathy which should be afforded to a grieving family. 

Obtaining disclosure of records from the Trust has been an ongoing challenge. My emails went largely ignored. I felt unheard and unsupported, and the loss of my child’s life deemed inconsequential."

The family is currently pushing for an investigation by the Care Quality Commission (CQC), which is responsible for enforcing the duty of candour.  

Government Review

The current system appears not to be working effectively for all patients and families which is why it is important that the public now has the opportunity to share their experiences.

The Government says:

"We are committed to a review that can consider a wide range of evidence and views from across the health and care system in relation to the real-life application of the duty of candour.

…

"A fundamental element of high-quality care is honesty. Patients and service users, and their loved ones, place a large amount of trust in health and social care providers. They must feel confident that should anything untoward occur, they will be entitled to an open and honest response."

The call for evidence is open for six weeks from 16 April 2024-29 May 2024.