Candour, openness and accountability after Francis

Although the NHS Constitution imposes a duty of candour when things go wrong, it is not something that is at the forefront of the minds of healthcare providers.

The absence of a ‘culture of candour’ added to the anguish of the relatives of those who were affected by the poor standards of care at Mid Staffs.  It also meant that lessons which could have been learned quickly were postponed or not learned at all, further compounding the problems which were endemic at the hospital.

In order to underline the importance of candour and to force providers and clinicians to “live” it, Francis made several, linked recommendations:

Rec No.



Every healthcare organisation and everyone working for them must be honest, open and truthful in all their dealings with patients and the public, and organisational and personal interests must never be allowed to outweigh the duty to be honest, open and truthful.


Where death or serious harm has been or may have been caused to a patient by an act or omission of the organisation or its staff, the patient (or any lawfully entitled personal representative or other authorised person) should be informed of the incident, given full disclosure of the surrounding circumstances and be offered an appropriate level of support, whether or not the patient or representative has asked for this information.


Any statement made to a regulator or a commissioner in the course of its statutory duties must be completely truthful and not misleading by omission.


Any public statement made by a healthcare organisation about its performance must be truthful and not misleading by omission.


It should be made a criminal offence for any registered medical practitioner, or nurse, or allied health professional or director of an authorised or registered healthcare organisation:

  • Knowingly to obstruct another in the performance of these statutory duties;
  • To provide information to a patient or nearest relative intending to mislead them about such an incident;
  • Dishonestly to make an untruthful statement to a commissioner or regulator knowing or believing that they are likely to rely on the statement in the performance of their duties.

These recommendations cover all aspects of public healthcare providers and it is through this comprehensive vertical and horizontal coverage that Francis has sought to embed this duty.

What does the new duty mean in the context of clinically-related litigation? 

The scope of Recommendation 173 is sufficiently broad to catch professional advisers.  In addition, imposing a statutory duty of candour would “trump” any desire to preserve reputation or avoid any financial liability that might follow the admission of liability.  As a result, lawyers representing NHS organisations will need to shift their focus towards ensuring that the client complies with the statutory duty of candour as opposed to narrower interests.  Imposing criminal sanctions through Recommendation 183 at all levels in a provider organisation is aimed at ensuring there is internal pressure to comply.  In this regard, we must bear in mind that each Trust Board has an obligation to sign the Trust’s annual Quality Accounts.

The duty will therefore require a change in approach not only for those who represent trusts in clinical claims, but also to organisations who represent individual clinicians.

We also need to bear in mind that the duty in Recommendation 174 applies “Where death or serious harm has been or may have been caused to a patient by an act or omission of the organisation or its staff…..”  Therefore, there is still room for manoeuvre where there is a reasonable belief that there has been no act or omission of the organisation or its staff.  However, defending a claim runs the risk of a “no fault” assessment being incorrect with criticism following on from that.

Openness and accountability

There is also potential for tension to exist between the drive for transparency and openness and the need for accountability. 

Transparency is an important weapon in the fight to enhance patient safety and reducing the prospects of harm through learning lessons about shortcomings in clinical practice.  However, if accountability followed openness, would it be difficult to achieve if opprobrium and punishment were the consequence?

Although this tension exists, the potential for criminal sanction through Recommendations 28 and 29 (on the basis that avoiding harm and openness would be enshrined as fundamental standards) could support the development of a culture of openness.

At Paragraph 13.155, the Report states:

“The argument that the existence of a criminal sanction inhibits candour and cooperation is not persuasive. Such sanctions have not prevented improvements in other fields of activity, particularly where they are only used proportionately and in cases where improvements are not made, or the deficiencies are particularly serious. It is likely that nothing will focus the minds of a board or trust leaders more on avoiding serious breaches of safety requirements than the possibility of prosecution. Clearly, it should be a last resort, sparingly used, but it undoubtedly has its place in maintaining public confidence in the system and preserving proper standards of service.”

The potential for criminal sanction in many of the cases highlighted to the Inquiry existed under the Health and Safety at Work Act 1974.  However, it was never implemented at Mid Staffs (notwithstanding that the HSE felt there was a case to answer in relation to the treatment provided to a patient whose exasperated relatives turned to the HSE).  This was because, as a matter of policy, the HSE would not intervene in cases of clinical decisions.  The reason for this being that the Trust was subject to a regulator with the skills to consider that type of issue.  The regulators in the case of Mid Staffs being the Health Care Commission and, latterly, the Care Quality Commission.  However, the criminal sanctions available were significantly less onerous than those available to the HSE, which meant that there was a gap.

The Government’s response

The Government’s response to the recommendations on candour, openness and accountability has been supportive, although it has flagged the need to carry out additional research in a couple of the areas covered by the recommendations.

It is keen to so greater transparency in terms of the provision of information relating to key indicators that are provided to regulators.  In its response, it stated that it wanted to see “a revolution in transparency so that the NHS leads the world in the availability of information about the quality of services.”

It also said that: “A new spirit of candour and transparency is essential for exposing poor care.”  It has suggested imposing corporate criminal sanctions for where organisations knowingly supply wrong information about key indicators or deliberately withhold information they are obliged to provide.  However, it wants to carry out additional research before introducing criminal sanctions at an individual level to make sure that the effect would not be the creation of a climate of fear.

The Government’s proposal to resource the HSE properly to respond to clinical cases and the subsequent decision of the HSE to act in the case of Gillian Astbury, a Mid Staffs patient, is something of a watershed moment in the regulation of healthcare in England.  The acceptance of the Astbury case by the HSE heralds the potential for clinical decision-making to be exposed to the criminal process and, as such, is significant for all organisations involved in the provision of care.