Patient safety: an ‘unprecedented’ warning

07 March 2023

The Times newspaper reports that Rob Behrens, the parliamentary and health service ombudsman (PHSO), has issued an ‘unprecedented’ warning that hospitals are ‘covering up serious mistakes in patient care and fobbing off families that raise concerns’.  

Following investigations at one of the country’s largest NHS Trusts, Mr Behrens says that there is “a deep reluctance to explain and give an account of what you do in the health service or the public service for fear of retribution”. He also points to the current complaints system which is not fit for purpose – complaints to the ombudsman must go through an MP, which means that 88% of people ‘disappear’ before the PHSO can look at their complaint.  In addition, the PHSO has no powers to investigate an organisation more widely, even where there is evidence of recurring issues. Mr Behrens is calling for a new “duty of candour” and recommending a change in the law to enable the PHSO to be able to investigate more widely and include in their investigation issues which become apparent even if they have not been the subject of individual complaints.

What is the duty of candour?

The duty of candour is a crucial aspect of a safe, open and transparent culture in the NHS.  

Following an investigation into the tragic and avoidable death of Robbie Powell at Mid Staffordshire NHS Foundation Trust, the Francis Inquiry concluded that there were serious failings in openness and transparency at the trust and recommended that a statutory duty of candour be introduced.

The Care Quality Commission (CQC) introduced a duty of candour for NHS Trusts in November 2014 and for other providers in 2015 (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 20).  Before that date there was no legal duty on providers to be open and transparent with patients, or their families, if something went wrong in their treatment or care.  

The regulation says that providers must:

  • Tell the relevant person (the patient or their family), face-to-face, that a notifiable safety incident has taken place. (A notifiable safety incident is an unexpected or unintended incident which occurred during treatment or care, that has, or might, result in death or severe or moderate harm to the person receiving that care.)
  • Apologise.
  • Provide a true account of what happened, explaining whatever you know at that point.
  • Explain to the relevant person what further enquiries or investigations you believe to be appropriate.
  • Follow up by providing this information, and the apology, in writing, and providing an update on any enquiries.
  • Keep a secure written record of all meetings and communications with the relevant person.
  • Provide ‘reasonable support’ to the relevant person throughout the process.

Sue Prior, a Partner in Shoosmiths Clinical Negligence team, commented: “A fundamental aspect of the duty of candour is saying sorry if harm has been caused.  Many of our clients simply want to understand what went wrong and why. They want an acknowledgment that their treatment or care has caused them harm and an apology. Most of all they want to prevent a similar thing happening to others.”



This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024

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