Of the announcements made in the King’s Speech, none is likely to demand change across public services as profoundly as the intended "duty of candour". But what exactly is this duty and what should we look for in the proposals later this year?
The case for a legal duty of candour has been mounting over the last decade propelled by successive inquiry reports, particularly those into the Mid-Staffs NHS; the Hillsborough families’ experience and the infected blood scandal. Each report, through personal testimony and evidence, reveals the deep pain caused when public organisations react defensively and evasively towards members of the public who have suffered harm and are trying to find out what went wrong. All three reports thus have compelling insights as to why a duty of candour is needed, what it means and how it might work. When proposals for the civil service duty of candour appear, will they match the challenge of these reports?
At its core, to be candid means to be honest, to tell the truth and be forthcoming, especially if doing so reveals something difficult or uncomfortable. A duty to do so means it is a requirement and an expectation, part of a professional obligation. Sir Robert Francis in the 2013 Mid-Staffs report defined "candour" as an action that is proactive: “The volunteering of all relevant information to persons who have or may have been harmed by the provision of services, whether or not the information has been requested and whether or not a complaint or a report about that provision has been made.”
There is already a statutory (organisational) duty of candour in the NHS – introduced for trusts in 2014, and for other health and care providers in England in 2015. An important feature of this duty is that the health regulator, the CQC, has enforcement powers up to and including criminal sanctions. More significant are the expectations placed on NHS leaders, since the duty implies a deep responsibility on them to re-shape culture and practices such that mistakes and errors can be openly acknowledged and communicated. Many would argue that the culture shift in the NHS a decade on has not gone far enough and that the public are insufficiently aware of how the duty works, both reasons why there is currently a full review of the NHS candour system, no doubt with lessons to come for the civil service.
The harrowing account of the Hillsborough families’ experience and their long fight for justice was exposed in Bishop James Jones’ 2017 report. He said that a duty of candour at a minimum should require police officers, serving or retired, to cooperate fully with investigations undertaken by the Independent Office for Police Conduct. He also saw the case for a wider duty of candour for the police as part of a much-needed culture shift to counter the tendency to avoid straight answers. It is time, he argued, to place the public interest above our own reputation.
Most recently, the Infected Blood Inquiry, published this spring, makes the undeniable case for change by laying bare an accretion of obfuscation and evasiveness going all the way back to the 1980s with devastating testimony from thousands of witnesses. Sir Brian Langstaff’s Overview and Recommendations report should be compulsory reading. “Citizens”, he writes, “need to be trusted with the truth rather than be misleadingly reassured.”
"The ambition now must be for a clear and emphatic duty of candour for the civil service, one where leaders are held accountable for how it is implemented and fulfilled in their department or agency"
The ambition now must be for a clear and emphatic duty of candour for the civil service, one where leaders are held accountable for how it is implemented and fulfilled in their department or agency. Some might be surprised to learn there is already a common law duty of candour on departments when responding to judicial review cases (the guidance, available on GOV.UK, bears dusting off) and when giving evidence to a public inquiry. The new, wider duty of candour for the civil service should draw on this experience.
Care will be needed to align the new duty with the civil service code, the ministerial code and the Official Secrets Act, amending all three if needed. We should look for a duty that emphasises greater openness and listening to the public; one that signals a shift away from defensiveness towards willingness to learn from failure; and one that is workable so that individual civil servants as well as ministers are aware of what is required and expected of them in specific circumstances. Whatever happens on the legal framework, we can all be active now to engage with the voice of citizens in recent inquiry reports and to start discussing how a duty of candour might best work in our teams and organisations.
Dame Una O’Brien is a leadership coach with the Praesta partnership and a former permanent secretary at the Department of Health