Is Duty of Candour a Legal Requirement?

The duty of candour is a legal requirement designed to protect you, ensuring organisations like hospitals and professionals like doctors are honest with you if something goes wrong with your treatment.

In this article, you’ll learn what the duty of candour is, when it applies, and who it covers. You’ll also find out whether you might be entitled to compensation if a healthcare provider or professional breaks the duty of candour. 

What is the duty of candour?  

The duty of candour is a law that requires healthcare providers and professionals to let their patients and their families know if something goes wrong with their treatment. 

It applies if a mistake leads to a “notifiable safety incident” which includes: 

• Death

• Shortened life expectancy

• An intellectual, sensory or motor impairment lasting 28 days or more

• A change to your body structure (e.g. amputation)

• Prolonged and moderate to severe pain or psychological harm 

If one of these five outcomes occurs, you or your family will be entitled to support and an apology, a clear explanation of what happened, and details about any further investigations that might take place so it doesn’t happen again. 

There are two main types of duty of candour: 

• Statutory duty of candour: The Care Quality Commission (CQC) oversees the duty of candour for healthcare organisations like hospitals, GP surgeries, dentists, and care homes.

• Professional duty of candour: The General Medical Council (GMC), Nursing and Midwifery Council (NMC) and the General Dental Council (GDC) oversee the duty of candour for individual doctors, nurses, and midwives. 

Both have the same aim, honesty and openness with patients. The duty was made law under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This was after the release of the Francis Report into the failings of the Mid Staffordshire NHS Foundation Trust. 

Is duty of candour a legal requirement?  

All healthcare providers in England regulated by the Care Quality Commission (CQC) must obey the rules of the duty of candour. 

The CQC monitors each organisation to see how well it’s performing. It reviews incident reports, sends inspectors, and gets feedback from patients. If it finds that an organisation is in breach, the CQC can issue a warning and demand improvements.  

Professional bodies like the GMC make sure doctors, dentists, and other professionals are following the rules. If they don’t, they could face an investigation or, at worst, be suspended or struck off. 

Who does the duty of candour apply to?  

The duty of candour applies to: 

• Organisations: All healthcare providers registered with the CQC, like NHS trusts and NHS Foundation trusts, private healthcare providers, care and nursing homes, GP surgeries, and dental practices, must abide by the duty.

• Individuals: All healthcare practitioners must follow the duty of candour as part of their codes of conduct to their professional bodies. 

Examples of duty of candour 

Let’s look at two duty of candour examples of where the law might apply. 

Admitting a medication error 

An example of a medication error would include the following scenario. A nurse accidentally gives the wrong dose of medication to a patient, causing the patient to experience unexpected side effects. This would require the patient to have extra treatment and stay in hospital for longer than the original issue called for. 

The duty of candour likely applies here. The hospital must inform you that a notifiable safety incident has occurred and explain what went wrong.  

They should apologise, offer you support, and let you know if more investigations are needed. This process helps ensure you get the help you need and prevents similar mistakes in the future.  

Not disclosing a surgical complication 

An example of a surgical complication would include the following scenario. A patient goes to hospital for surgery and during the surgery, there’s a minor complication that the surgeon doesn’t tell the patient about. 

The patient finds out about this complication later, causing them moderate or severe psychological harm that requires some form of treatment.  

Even though the surgeon believed the mistake wasn’t serious, the surgeon and the hospital would have breached their duties of candour. In this instance, the patient may be entitled to compensation. 

Obligations under the duty of candour 

If there is a “notifiable safety incident”, this is what a healthcare provider must do: 

• Notification: Tell you or your family about the incident as soon as possible and provide you with support.

• An apology: You’ll get a sincere apology for the harm you’ve suffered, even if no one was at fault.

• A clear explanation: You’ll get a straightforward account of what happened and they’ll share all the facts they know. 

• Details about an investigation: You’ll be told about an investigation they’re undertaking to stop it from happening again and be kept updated. 

What are the consequences of failing to comply with the duty of candour? 

The consequences can be very severe if a healthcare provider and/or professional doesn’t follow the duty of candour rules. 

For providers, the CQC can do the following: 

• Stage 1 (Initial assessment): If it hears about a potential breach, the CQC will run an assessment to determine whether it needs to take action. If the alleged breach is serious enough and seems credible, it goes to Stage 2 for a detailed legal review.

• Stage 2 (Legal and evidential review): The CQC looks for evidence of the alleged breach. If they find it and it’s strong enough, it’ll go to Stage 3.

• Stage 3 (Enforcement action decision): This is like being found guilty in court and, at this point, the CQC will decide on the punishment (or enforcement action). That could be a warning notice, a demand to make improvements, or, at the most extreme, prosecution.  

When deciding what to do, the CQC will review a provider’s history and leadership, and assess how likely the breach is to happen again.

• Stage 4 (Final review): This is when the CQC makes the decision to launch a civil or criminal action against a provider. 

There might be other consequences, too. A CQC judgement might leave a provider open to claims of negligence and breach of duty. They might have to pay out compensation for both. 

Why Is the duty of candour important?  

The duty of candour is a cornerstone of ethical behaviour and professionalism. It helps to ensure that medical professionals act with honesty and transparency – which fosters trust, fairness, and accountability in society. If we break this down, the duty of candour is important for four main reasons: 

• Building trust: Honesty and transparency strengthens the relationship between the patient and their healthcare team.

• Improving patient safety: Shining a light on mistakes means that providers have a chance to learn what they need to get better at, leading to safer care for everyone.

• Ensuring accountability: The duty of candour builds accountability and the more accountable the medical profession, the more confidence the public has in them.

• Creating a learning culture: By reviewing their own errors, healthcare providers see weaknesses in their own processes they can learn from to make them more robust. 

Why choose Fletchers Solicitors? 

Fletchers Solicitors has represented clients claiming compensation for harms and injuries they’ve suffered as a result of medical negligence for over 30 years. 

Our experience has made us one of the UK’s leading and most respected personal injury law firms. We’re one of the Times Newspaper’s Best Law Firms, a top-tier firm on the prestigious Legal 500 list and a top-rated practice on the Chambers directory. 

We operate on a “no win, no fee” basis for all of our clients because we believe in access to the best legal service for all.  

Contact us to tell us what happened. We’ll let you know quickly if we think your case has a chance of success. 

If it does, we’ll offer to represent you. If we’re successful, you pay a fee of 25% including VAT of your compensation payout. If we don’t secure compensation for you, you don’t pay us anything. 

Your case will be headed by medical negligence and duty of candour case experts like Saima Mazhar and Amelia Priest. 

They and their teams have access to some of Britain’s leading independent medical expert witnesses, which is key in helping us build the strongest possible case for you. At any time, give your lead solicitor and their team a call if there’s something you want them to explain. 

Start your claim today or call 0330 013 0251. 

Related information and guides 

For more information on the duty of candour and the legal issues surrounding it, click below to access the following resources: 

• The duty of candour – slow and steady progression
   

• Is there a fear of litigation in healthcare?
   

• Five ways the NHS can reduce its legal bills