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The response of the healthcare sector is likely to be one of the areas that the public inquiry into the management of the pandemic will focus on. We anticipate that some but not all NHS Trusts will be afforded core participant status. A core participant is given participatory rights at an inquiry including being provided with disclosure of documents and has the opportunity to make opening and closing statements.
For the inquiry to be effective and meaningful, it is expected that public bodies and organisations adopt the duty of candour in the provision of any information and when giving evidence. In this article, we discuss the duty of candour and how it will relate to any inquiry.
The duty of candour
Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) introduced a statutory duty of candour for healthcare providers in England. In essence, this requires healthcare providers to ensure that they are open and honest with patients when things go wrong when under their care. From April 2015, this duty extended to health providers registered with the Care Quality Commission including care homes.
There is no such requirement for government departments or public bodies. After the Hillsborough Inquiry in April 2017, the Public Authority (Accountability) Bill was introduced but this did not progress beyond a second reading in parliament and has not been re-introduced by the current government. If passed, this legislation would have required public institutions, public servants and officials, including those carrying out functions on their behalf, to act in the public interest and with candour. In other words, the legislation would have imposed a duty to assist the courts, official Inquiries and investigations.
In May 2021, families impacted by the Hillsborough tragedy and the COVID-19 Families for Justice called for the Bill to be re-introduced, with a view to obtaining Royal Assent in time for the inquiry into the management of the COVID-19 pandemic. However, to date no action has been taken.
In the alternative, there have been calls for government departments and public bodies to commit to the duty of candour by signing up to the ‘Charter for Families Bereaved through Public Tragedy’, as proposed by Bishop James Jones in his November 2017 report, following consideration of the experiences of families affected by the Hillsborough disaster and subsequent inquiry. The charter formalises the commitment of public authorities to transparency and acting in the public’s best interests. At the time of writing, we are unaware of any public body which may be involved in the inquiry that has signed up to the charter.
Comment
The duty of candour requires public bodies to be open, transparent, and to provide as much relevant information as they can, and where appropriate admit things went wrong. Such an approach at any inquiry, including one concerning the management of the COVID-19 pandemic, would enable the inquiry to be meaningful and fulfil its purpose of being able to make recommendations and provide answers to the public and bereaved families, with a view to ensuring mistakes do not happen again.
Read other items in Health, Safety and Environment Brief – January 2022
Related item: A post-COVID-19 public inquiry: lessons to be learnt?
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