Department of Health and Social Care leads review into the duty of candour

The duty of candour applies to all health and care providers in England that are regulated by the Care Quality Commission (“Registered Providers”). The statutory duty is set out in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and concerns people’s right to honesty and transparency from their health and care provider.

Regulation 20 places a duty on registered providers and managers to be open and transparent with people and their families, who are receiving care and treatment. Importantly, if something goes wrong during the provision of care and treatment, service users and their families have the right to be notified; and to receive an explanation for what went wrong and a meaningful apology. Failure to comply with this duty is a criminal offence and can result in enforcement action from the Care Quality Commission, such as warning notices or even criminal prosecution. Registered providers that have been convicted of this offence to date include NHS Trusts, an independent hospital and care home operator.

Given concerns raised within independent reports that the duty is not always discharged by registered providers as intended, the Secretary of State for Health and Social Care has commissioned this review which will: examine the current framework; evaluate its effectiveness and propose advisory recommendations. The Terms of Reference provide that this review will consider three aspects relating to the duty:

• 1. To what extent the duty and its design are appropriate for the health and care system in England
• 2. To what extent the duty is honoured, monitored, and enforced
• 3. To what extent the duty has met its objectives

It is important to note that the professional duty of candour, which is overseen by healthcare regulators is not being considered as part of this review.

The outcome of this review, including appropriate recommendations, will be published in spring 2024.

Blake Morgan has significant expertise in advising and training health and care providers, on their duty of candour, including in relation to complex and cross-border arrangements, services commissioned from non-NHS bodies in Wales and beyond as well as investigating complaints or concerns. If you have any questions arising, please do contact Eve Piffaretti, David Hill, or Claire Rawle.