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The Changing Landscape of the Duty of Candour: A Health and Safety Perspective

11 October 2018
Healthcare | DWF

This article explores the evolution of the duty of candour and how it is anticipated the duty may develop in the Health and Safety arena. In an ever-changing legal, regulatory and public landscape, we consider what the future may hold for the duty and the implications this could have for clients and their legal advisors.

What is the Duty of Candour?

 

Candour is defined as "the quality of being open and honest; frankness"[1]. As a traditional concept, the duty of candour is a legal duty applicable to all public sector bodies who are subject to Judicial Review proceedings. Unlike ordinary proceedings, there is no disclosure duty imposed on parties during Judicial Review, unless the Court orders otherwise[2], and as such the duty of candour fills that lacuna to ensure that all relevant information is presented before the Court.

 

In recognising that the vast majority of the cards will start in the public body's hands[3] at the outset of Judicial Review, the duty obliges the public body to provide a true and comprehensive account o the way that it arrived at relevant decisions[4]. To comply with the duty, the public body must conduct a sufficient search for material relevant to the proceedings and disclose any such information or documents. The duty is an ongoing one requiring the public body to continuously review its position and ensure that any further disclosures are made, should they be deemed necessary.

 

The Developing Duty of Candour in Healthcare

 

Whilst the origins of candour as a legal duty lie within the context of Judicial Review proceedings, the concept of the duty and its applicability extends beyond this and can particularly be demonstrated within the healthcare sector.

 

The concept of the duty of candour is one that has long existed within the healthcare system and is at the very core of healthcare organisations, including the National Health Service. Here, the medical  duty of candour applies to the context of care provided to patients and promotes staff taking an open, honest and transparent approach when things go wrong.

Candour in the healthcare system began as an ethical, professional duty and the position of being open and honest with patients would be one that many deemed to be a 'moral' duty that forms part of the very nature of the work that medical professionals undertake. However, it was the well-publicised failings of the care at Mid-Staffordshire NHS Foundation Trust between 2005 and 2009 and the subsequent Public Inquiries held to examine the cause of those failings that brought into sharp focus the fundamental requirement for transparency and candour throughout the system, and the importance of having an open and honest learning culture within the NHS.

 

In 2012, the medical duty of candour was introduced as a contractual duty applicable to all NHS employees via a new condition in the NHS Standard Contract[5]. The following year in February 2013, Robert Francis QC published his report into the Mid-Staffordshire NHS Foundation Trust's failings and made a significant number of recommendations to the healthcare sector, of which the introduction of a statutory, legislated duty of candour was one. This duty was codified into statute[6] for organisations within the NHS in 2014 and placed an obligation on NHS providers to act in an open and transparent way when things go wrong and harm has been caused. In April 2015, this legal duty was extended to all other health and social care providers registered with the Care Quality Commission.

 

Whilst the duty has evolved over time into a legal one, the recent review led by Bishop James Jones into the treatment provided to elderly patients at Gosport War Memorial Hospital between 1989 and 2000 has called into question the effectiveness of the duty of candour – both on a moral and legal application. In spite of the introduction of the statutory duty to be open, honest and transparent, the report uncovered an institutionalised practice of the shortening of lives through prescribing and administering opioids without medical justification.

 

The challenge now faced concerns whether anything more can be done to change the inherent culture of 'deny and defend' within a system that has arguably been designed to self-protect rather than discover the truth – a challenge that many would argue now also applies well beyond the boundaries of the healthcare system.

 

The Wider Duty in a Changing Landscape

 

Outside of the legal duties in Judicial Review proceedings and the healthcare system, the duty of candour has arguably existed as an important moral compass for public sector bodies in acting openly and honestly in their everyday functions.

 

However, in light of recent largescale national tragedies, the duty of candour and its application by public bodies is undeniably more relevant than ever. We now face the question of whether the duty of candour will follow that of its path in the healthcare system, evolving from an ethical and moral duty to one that is enshrined in law in the wider regulatory and health and safety arenas. Put simply does a non-statutory duty of candour continue to suffice?

 

Candour was central to the report[7] ‘The patronising disposition of unaccountable power’ published by Bishop James Jones in November 2017 following the verdicts of unlawful killing returned in the Hillsborough Inquests. His report proposed the creation of a 'Charter for Families Bereaved through Public Tragedy' ('the Charter') inspired by the experience of the Hillsborough families in which public bodies commit to placing the public interest above their own reputations and avoid seeking to defend the indefensible. The report also called for the establishment of a duty of candour for police officers to fill the gap in Police accountability arrangements.

 

The recommendations of Bishop James Jones marked an important shift in encouraging a change in attitudes of publicly accountable bodies to ensure that the pain and suffering of the Hillsborough families is not repeated. In the wake of the Grenfell disaster, the Royal Borough of Kensington and Chelsea demonstrated their commitment to the duty of candour by signing up to the Charter and publicly declaring that they would conduct themselves in a way that was honest and transparent, making it clear to the public that they would not seek to 'defend the indefensible'.

 

This approach paves the way towards a more victim-orientated focus led by a desire to discover the truth and create a learning culture, where public bodies demonstrate a less defensive attitude to protecting their own interests. It is of course a matter of debate as to whether such a change in approach is as a direct result of increased public and media scrutiny, or rather whether significant events, and indeed the report published by Bishop James Jones, have encouraged and demonstrated that public bodies have duties to the wider public. Not only must they do the right thing, but they must be seen to be doing so as the Court of public opinion is so important.

 

Following the creation of the Charter, the Royal Borough of Kensington and Chelsea, the Crown Prosecution Service and the National Fire Chiefs Association have all publicly declared their commitment to the Charter. Being in existence for less than a year, the Charter is clearly still in its early days. However, it is hoped that the Charter will continue to gather momentum over the coming months with other organisations following the example set by those listed above. It is of course preferable to first and foremost encourage voluntary adoption of the Charter with organisations making active and informed decisions to sign up to the Charter and all that it embodies. As the Charter continues to progress, the introduction of a central list recording who has signed up to the Charter would be welcomed keeping in line with the open and transparent spirit of the Charter.

 

Whilst the Charter is still in its infancy, questions have been raised as to whether the time has come for the duty of candour to evolve a step further and to become codified in law. Those supporting 'Hillsborough Law' (also known as the Public Authority (Accountability) Bill)) would argue so. It is claimed that in order to ensure that public institutions (and the servants / officials carrying out functions on their behalf) act in the public interest with candour and frankness, the duty should be made a legal requirement. Only this way can disclosure of crucial information be guaranteed and public authorities be prevented from lying or hiding the truth. Doing so would have significant repercussions and would constitute an imprisonable offence under 'Hillsborough Law'.

 

'Deny and Defend' versus 'Accept and Apologise'

 

Looking beyond public bodies and the legal duty of candour, thoughts turn to the adoption of candour as an open and frank approach by other organisations within the health and safety arena. In recent times, have we have seen the progression by private organisations from the often all too familiar 'deny and defend' approach towards an open one of 'accept and apologise'?

 

Take for example Thomas Cook and Merlin Entertainments who demonstrate the contrast in approaches when handling a high profile service failure, and in turn the impact that any such approach has on one of the most crucial factors to organisations – public opinion.

 

In 2015, an Inquest was held into the deaths of two children killed by carbon monoxide poisoning arising from a faulty hotel boiler whilst on a Thomas Cook holiday. Thomas Cook closed its doors shut and refused to apologise on the basis that there was no wrongdoing on the company's part, laying the blame solely at the hotel's feet for lying about its use of gas-fired hot water appliances. Thomas Cook's failure to accept any responsibility attracted significant negative media attention causing damage to the company's reputation. A subsequent independent review of its crisis management procedures criticised the thoughtless and uncaring treatment of the victims' family.

 

By contrast, in the same year when five passengers on the Smiler ride at Alton Towers were left seriously injured following a collision of trains, Merlin Entertainments issued an effective and sincere statement in which the company apologised, empathised with the victims and pledged to take action to ensure a similar accident would not happen again. Merlin Entertainments were commended by both the public and media for their open, honest and transparent approach which they immediately adopted and maintained throughout the subsequent HSE investigation and prosecution.

 

The effective use of the duty of candour through crisis response management demonstrates how the duty can be used to protect and maintain a company's all important branding and reputational image. It is not a case of advocating that a company simply falls on its sword at the first sign of a health and safety incident, but more rather that strong consideration is given to the management of any such response to a crisis with the company portraying the right public image and not immediately jumping to a denial of wrongdoing and battening down the hatches, which has often been a 'default' stance adopted by companies in the past.

 

A Health and Safety Perspective

 

As the duty of candour has evolved, so too has the health and safety landscape. The Sentencing Council introduced the 'Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences' Guidelines in February 2016 to address the public's concerns that serious health and safety breaches were previously punished too leniently. Consequently, we are now seeing both custodial sentences and substantial fines becoming much more commonplace.

 

Furthermore, in November 2018 the Sentencing Council's new definitive Guidelines on the sentencing for all manslaughter offences (including gross negligence manslaughter) are set to come into force. As intended by those Guidelines, it is anticipated that we will see an increase in the average sentences and jail terms up to 18 years, resulting from the Judiciary being encouraged to hand out more robust sentences for the most serious breaches of health and safety laws.

 

You would be forgiven for questioning how both sets of Guidelines can comfortably sit alongside the growing emphasis, and potential codification, of the duty of candour. This provides a number of challenges and important considerations for us as legal advisers. On the one hand, should we be encouraging our clients to act openly and honestly in accordance with the duty of candour, having 

consideration to both the legal and reputational impact of doing so? On the other hand, how do we balance this in the context of recent health and safety developments resulting in the punitive stakes being higher than ever? We can already anticipate that such transparency from our clients could risk being the stick that is used by the Prosecution to then beat them with.

 

The recent case of Dr Hadiza Bawa-Garba epitomises this concern. In 2011, six year old Jack Adcock died from sepsis under Dr Bawa-Garba's care in hospital. Throughout the investigations and subsequent criminal proceedings, Dr Bawa-Garba remained open about the honest medical errors which she had made leading up to Jack's death, caused by being over-worked in an under-resourced system. Despite this, Dr Bawa-Garba's written reflections in her e-portfolio were referred to at her trial and notes made by her duty consultant on a meeting he had with her after the incident formed part of his witness statement. Dr Bawa-Garba was convicted of gross negligence manslaughter and struck off the medical register by the General Medical Council ('GMC'). Over £160,000 was raised to assist Dr Bawa-Garba in successfully appealing the GMC's decision last month, and over 1,500 medical signatories raised concerns to the GMC that their treatment of her threatened the culture of openness that was critical to the medical learning culture and would result in the decline of candour that is so encouraged – and legislated for - amongst the profession.

 

In light of this, it would be completely understandable for our clients to then question what incentive there is for them to be open and honest following health and safety failings if, as was the case for Dr Bawa-Garba, such openness could be used against them. What encouragement is there for our clients to demonstrate transparency to the HSE and Court and to promote an institutional learning culture when, in the shadow of the punitive Sentencing Guidelines, there is more at stake than ever? How both compliance with the duty of candour whilst avoiding self-incrimination can be realised remains to be seen, and official guidance is arguably warranted in light of such an apparent conflict.

 

In the meantime, we as health and safety lawyers occupy a difficult position when advising our client as to the 'correct' approach to take during HSE investigations and criminal proceedings. Whilst the Charter can be seen as a moral compass which we should be mindful of when advising, we should also be aware that other routes may be more appropriate in our client's circumstances. How best to advise will depend entirely on the variety of circumstances to your client's case following a cost-benefit analysis. In some situations, an open approach with complete transparency will tactically be the best to take having regard to the bigger picture and ultimately what is at stake. Whereas other situations may warrant holding our cards much closer to our chests.

 

The important thing to remember is that we are now seeing a greater consideration of openness, and whilst it may not be the route that our client ultimately decides to pursue based on the legal and/or reputational implications, it is something that we have to bear in mind when advising both our public sector and private clients.

 

The health and safety landscape has always been a developing one presenting new challenges and considerations for clients and their legal advisers. With discussions on the duty of candour and its implications set to continue in the coming months and years, the future of health and safety law is shaping up to be an interesting one.




[1] English Oxford Dictionary
[2] Civil Procedure Rules Part 54, Practice Direction 54A, Paragraph 12
[3] R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941
[4] R (Wandsworth LBV) v SoS for Transport [2005] EWHC 20 (Admin)
[5] National Health Service and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 Regulation 16-18
[6] Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014
[7] ‘The patronising disposition of unaccountable power’ A report to ensure the pain and suffering of the Hillsborough families is not repeated, The Right Reverend James Jones KBE
 


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