The duty of candour is a legal and professional obligation requiring NHS organisations and individual healthcare staff to be open and honest with patients when something goes wrong during their care. It applies whenever a “notifiable safety incident” causes moderate harm, severe harm, prolonged psychological harm, or death, and it obliges the provider to inform the patient, apologise, explain what happened, and give a written account of the incident. It is set out in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, and non-compliance can lead to enforcement action from the Care Quality Commission (CQC), including fines or prosecution.

If you or a loved one has been affected by a hospital error, misdiagnosis, or negligent treatment, understanding the duty of candour is often the first step towards knowing whether you have grounds for a medical negligence claim. At Thompson & Co Solicitors, we regularly see cases where a trust’s candour disclosure, or its failure to provide one, becomes an important part of the wider evidence in a claim. This guide explains what the duty requires, how it links to negligence claims, and what to do if you believe it hasn’t been properly followed.

What Is the Duty of Candour?

The duty of candour is best understood as a right belonging to patients and families: the right to receive an honest explanation and a meaningful apology when something goes wrong with their care. It was introduced in response to patient safety failings, most notably the Mid Staffordshire NHS Foundation Trust scandal, which exposed a culture in some parts of the NHS where mistakes were hidden rather than disclosed to patients and families.

There are, in practice, two separate but overlapping duties operating side by side:

• The statutory duty of candour: a legal requirement placed on health and social care organisations themselves, enforced by the CQC under Regulation 20.
• The professional duty of candour: an ethical and regulatory requirement placed on individual clinicians (doctors, nurses, midwives, and other registered professionals), enforced by bodies such as the General Medical Council (GMC) and Nursing and Midwifery Council (NMC).

Both duties point in the same direction, honesty and transparency after things go wrong, but they operate through different mechanisms and different regulators.

The statutory duty of candour

The statutory duty applies to every provider registered with the CQC, including NHS trusts, NHS foundation trusts, and non-NHS providers of CQC-regulated activities. It has been in force for NHS trusts and foundation trusts since 2014, and for all other CQC-regulated providers since 2015. The duty is triggered specifically by a “notifiable safety incident,” a defined legal term that should not be confused with other categories of incident reporting used internally by trusts.

The professional duty of candour

The professional duty applies more broadly than the statutory duty. Every doctor, physician associate, anaesthesia associate, nurse, midwife, and nursing associate registered with the GMC or NMC must be open and honest with patients whenever something goes wrong with treatment or care that causes, or has the potential to cause, harm or distress, not just in cases meeting the moderate-harm-or-above threshold used in the statutory duty. This matters for claimants because a candour disclosure can happen even when the incident doesn’t meet the statutory bar.

When Does the Statutory Duty Apply?

The statutory duty is triggered by a “notifiable safety incident.” A notifiable safety incident is one that meets all of the following criteria:

• It is unintended or unexpected.
• It occurred during the provision of a CQC-regulated activity.
• In the reasonable opinion of a healthcare professional, it has resulted in, or appears to have resulted in, death, or severe or moderate harm to the person receiving care.

“Moderate harm” generally means harm requiring a moderate increase in treatment, such as an unplanned return to surgery, an unplanned readmission, a prolonged episode of care, extra time in hospital, or transfer to another treatment area. “Severe harm” refers to permanent lessening of bodily, sensory, motor, physiologic, or intellectual functions. “Prolonged psychological harm” means psychological harm experienced, or likely to be experienced, for a continuous period of at least 28 days.

The duty applies regardless of whether the harm was caused by an error, an unavoidable complication, or the underlying condition itself. What matters is that an unintended or unexpected incident occurred during care and resulted in one of these harm categories. This is a common point of confusion in negligence cases: a candour disclosure does not automatically mean negligence occurred, and the absence of one does not automatically mean it didn’t.

How the Duty of Candour Connects to a Medical Negligence Claim

At Thompson & Co Solicitors, we often find that a duty of candour disclosure is one of the earliest pieces of evidence a client brings to us. While it isn’t proof of negligence on its own, it can help establish a timeline, confirm what the trust knew and when, and identify what further investigations were promised. Building a successful medical negligence claim still requires showing that the treatment fell below the standard reasonably expected, and that this substandard treatment caused the harm suffered.

Step-by-step: what happens under the duty of candour, and how it feeds into a claim

1. Identify the incident. A healthcare professional determines whether an incident meets the notifiable safety incident threshold. This is often the first indication to a patient or family that something has gone wrong.
2. Notify the patient or relevant person. The patient, or a lawfully appointed representative if they lack capacity or have died, must be told about the incident in person as soon as reasonably practicable.
3. Receive an apology. An apology is a straightforward expression of sorrow or regret. It does not constitute an admission of legal liability, so it cannot be relied upon alone to prove a claim.
4. Obtain a true and accurate account. The provider must give a truthful account of the facts known at that point, including what further enquiries will be made. This account is often useful evidence when building a timeline of events for a claim.
5. Receive written follow-up. A written note of the discussion, along with details of further enquiries, should follow the initial conversation. Keep this document safely, as it can support your case.
6. Accept or request support. Providers should offer reasonable support, including signposting to advocacy services.
7. Request the incident record. Providers keep a written record of candour notifications. This can be requested and used alongside medical records when a solicitor investigates a potential claim.

Why Candour Disclosures Aren’t the Same as an Admission of Negligence

A common misconception is that receiving a duty of candour apology means the hospital has admitted fault. In fact, an apology given under the duty of candour is explicitly not an admission of legal liability. To succeed in a medical negligence claim, it still needs to be shown that:

• The treatment fell below the standard that could reasonably have been expected of a competent practitioner in that field.
• The substandard treatment caused, or materially contributed to, the harm suffered.
• The claim is brought within the applicable time limit, generally three years from the date you knew, or could reasonably have been expected to know, that you suffered an injury caused by a medical practitioner’s fault.

This is why a duty of candour conversation, while important and often distressing to receive, is only the starting point of a potential claim rather than the conclusion of one.

What to Do If You’ve Received a Duty of Candour Disclosure

If a hospital or GP has told you about a notifiable safety incident affecting your care, it’s worth taking the following steps:

• Ask for the written follow-up notice in full, including details of any internal investigation.
• Request copies of your medical records covering the period of the incident.
• Keep a note of dates, names, and what was said during any face-to-face conversations.
• Speak to a solicitor experienced in medical negligence claims before deciding whether to pursue a case.
• Be aware of the three-year time limit for issuing court proceedings.

Common Misconceptions About the Duty of Candour

• “Candour only applies to clinical errors.” It applies to any unintended or unexpected incident causing the relevant level of harm, including unavoidable complications.
• “An apology means admitting fault.” An apology under the duty of candour is not an admission of legal liability.
• “Only doctors have a duty of candour.” The professional duty applies to nurses, midwives, and nursing associates as well as doctors and associated professions.
• “If I received a candour disclosure, I automatically have a claim.” You still need to prove the treatment was substandard and caused your harm.
• “If I didn’t receive a candour disclosure, I have no claim.” A missing disclosure may itself be a breach worth raising, but a claim depends on the underlying treatment, not the disclosure alone.

Frequently Asked Questions

What is the duty of candour in simple terms?
It’s the legal requirement for NHS providers to tell patients honestly when care has gone wrong and caused them harm.

Who does the duty of candour apply to?
All NHS and non-NHS providers of CQC-regulated activity, plus individual clinicians under their professional codes.

What harm threshold triggers the statutory duty?
Moderate harm, severe harm, prolonged psychological harm of 28 days or more, or death.

Does receiving a duty of candour apology mean I have a medical negligence claim?
Not automatically. An apology is not an admission of liability, and you still need to show the treatment fell below the expected standard and caused your harm.

What should I do if I’ve received a duty of candour disclosure?
Keep all written correspondence, request your medical records, and speak to a solicitor experienced in medical negligence claims to assess whether you have grounds for a case.

How long do I have to make a medical negligence claim after a candour disclosure?
Generally three years from the date you knew, or could reasonably have been expected to know, that you suffered an injury caused by a medical practitioner’s fault, though this can vary depending on individual circumstances.

What happens if a trust breaches the duty of candour?
The CQC can issue enforcement action, including fines, against non-compliant providers.

Where does the duty of candour come from legally?
Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Why was the duty of candour introduced?
Following patient safety failings, most notably at Mid Staffordshire NHS Foundation Trust, to formalise openness between clinicians and patients after harm occurs.

Can a family member exercise duty of candour rights on behalf of a patient?
Yes, where a patient lacks capacity or has died, a lawfully appointed representative or next of kin can receive notification and information under the duty.

Speak to Thompson & Co Solicitors

If you’ve received a duty of candour disclosure or believe your treatment fell below an acceptable standard, our medical negligence team can review your case on a no win, no fee basis.