The new proposals introduce a number of unanswered questions, the answers to which will only become clear with time.
In the King’s Speech, the new Labour Government announced plans to introduce a new “duty of candour” into law (the “Hillsborough law”). Trainee Solicitors Luke Davies-Foo and Alice Evans explain the background to this “new” duty, who it will apply to, and what it means for public bodies and other organisations.
Hillsborough and history and Labour’s manifesto pledge
Labour’s 2024 manifesto made a pledge to introduce a ‘Hillsborough Law’ which will place the legal duty of candour on both public servants and authorities and provide legal aid for victims of disasters or state-related deaths. As its name suggests, the inspiration behind the pledge was the tragic events (and subsequent scandal) of the Hillsborough disaster.
The introduction of such a duty would mean much wider regulatory responsibility for public bodies, especially when ensuring they are compliant with health and safety regulations.
How will the “old” duty of candour inform the “new” duty?
When looking at what the “new” duty might look like, it is helpful to look at how existing duty of candour obligations operate. The “old” duty of candour was introduced in 2014 for NHS trusts and 2015 for all other healthcare providers, following the 2013 Francis Inquiry. Regulation of the “old” duty is undertaken by the Care Quality Commission (“CQC”).
Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the Regulations”) states that:
“As soon as reasonably practicable after becoming aware that a notifiable safety incident has occurred a registered person must notify the relevant person that the incident has occurred and provide reasonable support to the relevant person in relation to the incident...”
The “old” duty of candour is, then, one of reporting and supporting. The primary obligation is on reporting, meaning that a registered person or body must be open and honest as to when a safety incident has occurred. The focus of the “new” duty proposed by the Government will undoubtedly be on the same obligation of transparency, accountability, and reporting.
Specifics of the “new” duty and the unanswered questions
At the time of writing, it is not precisely clear what the future regulatory framework will look like, and those individuals and organisations that are likely to be affected by the change would be best served by keeping a close eye on the developing legislation. What is clear from the new Government’s pledge is that time will be of the essence. Years of legal delays following state-related deaths are cited as being one of the main driving factors behind the introduction of the “new” duty, and so we can expect to see future cases pushed through the justice system at a far quicker pace.
The new proposals do, however, introduce a number of unanswered questions, the answers to which will only become clear with time. Some of those questions are:
Will the sanctions be the same as they are now?
It is currently an offence, under Regulation 22(3) of the Regulations, for a health service body to fail to comply with their duty of candour. Punishment for failure to do so is triable on a summary conviction in the Magistrates’ Court, with the penalty being a maximum fine of up to £2,500 for a first offence. Repeated breaches of the duty of candour will, however, result in a higher penalty fine being imposed.
It is anticipated that the level of fine for the new regime will be similar to that already in place for CQC-regulated bodies, with the potential for more serious criminal sanctions for high-level offending. Failing to comply with the “new” duty will also be punishable, whether done intentionally or recklessly.
It is hoped that the introduction of clear, significant, criminal sanctions for failing to comply with the “new” duty will also act as a deterrent for senior officials wielding power over their junior counterparts. This would effectively stop what happened during the Hillsborough disaster, whereby junior officials were told to lie about the events by senior figures.
What will be a “public body” for the purposes of the legislation and who will regulate the “new” duty?
The “new” duty will apply to public servants, councils, and the police. The proposed legislation is, however, less clear on bodies such as universities and private bodies fulfilling public functions, such as privately-run state prisons and housing associations. It is likely, given the supporting comments made in the Joint Committee Paper on Human Rights (published 15 May 2024), that the new Government will aim for the “new” duty to be as far-reaching as possible.
Whilst the “old” duty for healthcare professionals is regulated by the CQC, there are no similar universal public bodies regulators for other public bodies. It remains to be seen as to whether this “new” duty will simply be regulated as and when inquisitorial or criminal proceedings are brought, or whether a new regulatory body will need to be formed or existing bodies extended.
What are the implications for private companies?
Whilst current proposals do not include private companies, it is likely these proposals will put more focus on open and transparent communication within organisations. This could place a higher expectation on private companies to act in a similar way and may provide more scope for criticism if they do not.
How to balance the “new” duty alongside a criminal or inquisitorial investigation
If introduced, this change will have a significant effect on how public authorities are expected to interact with criminal investigations/proceedings, inquests, and the coronial process in the event of state-related deaths. There will undoubtedly be a greater inquisitorial focus on the acts and omissions of public bodies, and such public bodies will be required to demonstrate exactly what steps were taken in order to comply with their duty of candour. As above, taking into account the current framework, it is likely that public servants and authorities will be subject to a stricter reporting regime, and the key word for those affected will be vigilance.
Such an obligation on the part of the organisation also has the potential to bring it into conflict with individuals within it whose conduct is being impugned and who could even be facing criminal investigation themselves. Such situations will require very careful navigation to ensure the rights of the individual are protected, whilst still complying with the duty of candour.
Given this, and the likely increased scrutiny that will follow the introduction of the “new” duty, experienced and well-considered legal advice for those affected is essential. Weightmans has a dedicated team of over a dozen lawyers specialising in advising at inquests and in criminal charges across the country.
This article was authored by Trainee Solicitors Luke Davies-Foo and Alice Evans.
Luke Davies-Foo - Luke.Davies-Foo@weightmans.com
Alice Evans - Alice.Evans@weightmans.com
For more information on the new duty of candour, contact our regulatory solicitors.