Duty of candour: what are your rights when medical treatment goes wrong?

For some patients, the experience of trying to find out what happened can be almost as distressing as the treatment itself.

Some patients receive conflicting explanations. Others struggle to get any answers at all, leaving them wondering whether they’ve been told everything.

I’ve dealt with clients who have spent months trying to find out what happened during their treatment. By the time they come to me, they’ve often lost confidence in the hospital or healthcare professionals involved.

Healthcare providers have a legal responsibility to be open and honest with patients. This is known as the duty of candour. But what does it mean in practice, and what can you do if you believe you haven’t been told the full story?

The duty of candour requires healthcare providers and professionals to be open and honest with patients about their care, particularly when something goes wrong.

In England, there are two distinct obligations.

The statutory duty of candour, set out in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, applies to registered healthcare providers, including NHS trusts, GP practices and private hospitals.

It requires providers to act openly and transparently with patients. When an incident meets certain legal criteria, they must also follow a formal process for informing those affected.

The professional duty of candour applies to individual healthcare professionals, including doctors and nurses. They must be honest when something goes wrong that causes, or could cause, harm or distress.

Patients are entitled to expect honesty from the people responsible for their care, particularly when mistakes have been made.

Not every complication or unexpected outcome triggers the formal requirements of the statutory duty.

These apply when something meets the legal definition of a notifiable safety incident. Broadly, this involves an unintended or unexpected incident during care that has caused, or could cause, a specified level of harm.

For NHS trusts, these include incidents that could result in, or appear to have caused, death, severe harm, moderate harm or prolonged psychological harm. Different thresholds apply to other registered providers, including GP practices and private hospitals.

The Care Quality Commission (CQC) provides guidance on which incidents qualify.

An incident doesn’t have to involve negligence for the statutory notification requirements to apply. Equally, something can go wrong without meeting those particular thresholds.

The wider obligation to be open and transparent still applies, as does the professional duty of candour where relevant.

If a notifiable safety incident occurs, the healthcare provider must inform the patient as soon as reasonably practicable after becoming aware of it. Where the patient has died or lacks the relevant capacity, the duty may require the provider to notify an appropriate representative instead.

You should be given an account of the facts known at that stage, told what further enquiries are considered appropriate and offered an apology and reasonable support. The information should ordinarily be explained in person, with written confirmation afterwards.

You shouldn’t have to wait for an investigation to finish before being told about the incident. However, the provider may not yet know exactly why it happened.

Healthcare professionals also have a responsibility to explain the likely short and long-term effects and offer appropriate support or remedies where possible. The General Medical Council’s guidance explains these obligations.

It may take time to establish exactly what went wrong. While the investigation continues, patients should be kept informed of its progress and told what has been discovered.

If you’re concerned that something went wrong with your treatment, you can ask the hospital or healthcare provider whether the incident was considered under its duty of candour procedures.

Try to be specific about what you want to know. When was the problem first identified? Who was aware of it? Was an investigation carried out? What did it establish?

You can also request your medical records and ask for information about any relevant patient safety investigation.

For concerns about NHS hospital treatment, the Patient Advice and Liaison Service (PALS) may be able to help. You can make a formal complaint and, if you’re dissatisfied with the final response, you may be able to refer the matter to the Parliamentary and Health Service Ombudsman.

You can also raise concerns with the CQC, which has powers to take enforcement action against providers that breach the statutory duty. It doesn’t, however, investigate individual complaints on a patient’s behalf or award compensation.

We would always suggest keeping copies of correspondence and making notes of important conversations, particularly where different explanations have been given.

No. Under the Compensation Act 2006, an apology does not, by itself, amount to an admission of negligence or breach of statutory duty.

That distinction sometimes surprises people. Understandably, they may interpret an apology as an acknowledgement that their treatment was substandard. But an apology may simply recognise that something unexpected happened and caused harm.

What matters when considering a possible negligence claim is whether the treatment fell below the standard reasonably expected at the time it was provided, and whether that failure caused avoidable harm.

An apology can be important, especially when it’s accompanied by a proper explanation. It just doesn’t answer every question about legal responsibility.

A breach of the statutory duty of candour does not automatically give you a right to compensation.

To succeed in a medical negligence claim, you generally need to establish that the care you received fell below an acceptable standard and that this caused you avoidable harm.

If important information about a patient’s treatment has been withheld, this may come to light when investigating a negligence claim. Deliberate concealment of relevant facts can also, in certain circumstances, affect when the time limit for bringing a claim begins to run.

I’ve seen how important it can be for people to understand whether an earlier diagnosis, different treatment or closer monitoring might have changed the outcome. Sometimes the answers emerge only after medical records have been reviewed and independent experts have considered the care provided.

Our guide to medical negligence claims explains how claims are investigated and what evidence may be needed.

Time limits are important. In England and Wales, you generally have three years from the negligent treatment or your date of knowledge to bring a claim, although there are exceptions, including in some cases involving deliberate concealment. Making a complaint does not stop time running. For more information, see our guide to time limits in personal injury and medical negligence cases.

The statutory duty was introduced following serious concerns about openness in healthcare, including those exposed by the Mid Staffordshire NHS scandal. But has it improved patient safety?

It’s difficult to say how much difference the duty has made. A 2024 government review raised concerns about how consistently healthcare providers were complying with their obligations and how patients were treated when things went wrong. There is still insufficient evidence to establish whether it has led to meaningful improvements.

Over the years, many of my clients have told me that they would never have pursued a claim if someone had simply explained what went wrong. They wanted to understand what happened to them or someone they loved, and whether it could have been prevented. They also wanted to make sure the same thing didn’t happen to someone else.

Those concerns deserve to be heard, whether or not there are grounds for a legal claim.

If you’ve suffered harm following medical treatment and are struggling to get answers, our specialist clinical negligence solicitors can help.

We investigate concerns involving hospital negligence, GP negligence and other healthcare services.

We’ll listen to what happened, explain your options and advise whether you may have grounds for a claim. If you’re concerned about the treatment you received, please get in touch to find out how we can help.