Hillsborough Law: Part 1

Introduction

For the last 10 years, the NHS has been subject to a duty of candour, a principle borne out of the Mid-Staffordshire Inquiry. This duty now sits on the precipice of evolution. The Government are considering enacting legislation which would expand its scope and significantly affect the healthcare sector. 

In this series, we will: 

1. Explore the origins of this proposed new duty and how it differs from what we presently understand.  

2. Speak with expert colleagues to try and predict how this new legislation could change the process for inquiries, inquests, claims and regulation.  

3. Consider the impact on the healthcare sector and how it can best protect itself.  

4. Trace the progression of this bill through to royal assent to assess the final legal provisions against the current proposal. 

How did we get here?

On 1 November 2017, Bishop James Jones KBE published his report, ‘The patronising disposition of unaccountable power’. This report laid out the experiences of the families who, following fresh Inquests completed in April 2016, received conclusions that the 97 victims of the Hillsborough Disaster died by unlawful killing.  

In his report, Bishop James Jones KBE made several recommendations, one of which was to impose a duty of candour on the police. In contextualising this recommendation, Bishop James Jones KBE lauded the ‘The Public Authority Accountability Bill’, which would create a new legal duty of candour not just for the police, but for all public authorities. This bill, written by lawyers who represented the bereaved families at the fresh Hillsborough Inquests, is known as ‘The Hillsborough Law’.  

Although it has been 8 years since Andy Burnham first introduced this bill in Parliament, it is now firmly back on the agenda. The legislation was due to be put forth by 15 April 2025, and although this date has now passed, the Government insist that they remain committed to delivering this. 

I thought the NHS already had a duty of candour?

If you work in healthcare, you might tell me that there already is a duty of candour – you’re right, there is. The duty is a professional standard, a contractual obligation, and a legal responsibility to inform patients about any unintended or unexpected incidents that have caused or could potentially cause harm to a service user and to provide support to those impacted by such incidents 

• All healthcare regulators including the NMC, GMC, GPhC and so on all refer to a duty of candour in their codes and standards.  

• The NHS also imposes a contractual duty of candour to all organisations providing NHS care. 

• Regulation 20 of the Health and Social Care Act 2008 creates a statutory duty of candour for CQC-regulated organisations.  

How does the new duty differ?

Given the various forms in which the duty already exists in the healthcare, the question may be asked, “why do we need another one?”. However, rather than re-stating the pre-existing duty, the bill seeks to address the concerns set out in the report of Bishop James Jones KBE by setting out expectations of how the duty is to be discharged properly and imposing consequences for failure. Essentially, the bill gives the duty teeth.  

The general duty to act in the public interest with transparency, candour and frankness is in line with the general understanding of duty of candour. The new bill also stipulates that authorities and individuals should assist court proceedings, official inquiries and investigations. The proposed range of requirements will be considered throughout the remainder of this series.  

Unlike Regulation 20, the new duty would apply to individual members of staff as well as the organisations in which they work. 

Perhaps the most significant part of the bill is the creation of criminal offences in section 3(1)-(3) which include: 

• Where the CEO of the organisation intentionally or recklessly fails to discharge their duty to assist court proceedings, official inquiries and investigations 

• Where an individual staff member misleads the public, media, or courts.  

• Where an individual staff member impedes duty of candour being delivered by failing or unreasonably refusing to provide information in a witness statement or report (such as PSIRF). 

A person found guilty of an offence could receive a maximum sentence of 2 years imprisonment.  

Conclusion

In a landscape where the media are quick to paint the NHS with the ‘scandal’ brush, it is clear that there is widespread public appetite for this change. The healthcare sector needs to prepare for this proposed legislation, especially because of the enormous risk of criminal prosecutions.  

Next in this series, we will look at what will be expected of healthcare organisations and professionals at inquiries and inquests as a result of this bill. More importantly, we will evaluate how you can plan ahead to minimise your exposure once this comes into force.