While many lawyers acting for NHS trusts will insist that Duty of Candour is now business as usual, the litigators find that’s true only up to a point. At a cost of £5,000 to £10,000, mediated settlements often leave the family’s unanswered questions and anguish behind. A letter of claim is issued in the clear knowledge that no investigation has been done, or that the only record of the investigation states “we didn’t do anything wrong, we need to wait for the inquest”.
A legal duty, not a courtesy
The Duty of Candour isn’t a skill that lawyers can use to fluster doctors in court. It doesn’t rely on being able to catch a nurse off guard or trip them up in a damages claim or a disciplinary hearing. It applies equally to well-meaning managers, and there’s nothing to game about it. In fact, almost the opposite – the candour process is a model of procedural care, laid out in a strict sequence of steps that, if followed to their conclusion, add up to exactly what’s required. The only possible argument in arbitration over candour is whether the harm was moderate, and at that point there are much bigger problems to address.
The numbers make clear this isn’t rare
If the duty of candour was only ever triggered occasionally, you could understand why some people pay it so little mind. It isn’t rare. For example, the Royal College of Obstetricians and Gynaecologists’ Each Baby Counts programme reviewed term stillbirths, neonatal deaths, and severe brain injuries and found that in 78% of cases, different care might have made a difference. That is not a fringe statistic buried in a footnote. It is the headline result from the most frequently cited safety review in UK maternity care, and it means that candour duties are triggered far more often in delivery suites than most people outside the specialty realise should be the case.
MBRRACE-UK’s annual confidential enquiries tell the same story, year after year: it was preventable factors in perinatal deaths, not one-off tragedies, but repeating patterns spread over whole trusts. HSSIB now independently investigates a subset of these deaths and runs its own process in parallel with, and sometimes in advance of, the trust-organised review. The infrastructure for honesty exists. The difficulty is what comes next.
Silence, retraction, and limited explanation
Relatives hardly ever point to the moment their baby passed away as the time they decided to file a claim. Rather, they tend to highlight what occurred subsequently: a consultant who made a heartfelt apology within the first 48 hours, only for that apology to be retracted a few weeks later once the trust’s legal advisors got involved. A planned meeting that in the end never took place. A timeframe for the investigation that was extended from six weeks to six months without any notice.
People who work in this area have a term for this process: silence, retraction, and limited explanation. Silence is when they simply don’t respond: no details, no discussions, no recognition that a family is waiting for information. Retraction is the term used to describe the weak retraction of an early admission that takes place as soon as a senior member of staff reviews the case. And limited explanation is the carefully choreographed letter that notices the event in question without actually providing any details, explanations, or information regarding the actions being taken in response.
From the inside, this is not really a legal strategy, even though it sometimes appears that way. It is what happens when a trust looks at candour as a threat to be contained rather than a responsibility to be met. And it fails repeatedly, because parents who believe they are being stonewalled will keep on asking questions. They just won’t be asking the trust, they’ll be asking a solicitor.
Why the fear driving this behaviour is misplaced
Many organisations fear that candour leaves them open to legal redress; indeed, many healthcare professionals are trained to avoid it on those grounds. While it is true that saying “this was my fault” can be used to the detriment of the speaker in a court of law, the absence of an explanation presented in a spirit of humility can sound, to a parent, like a cover-up. We all know the roles that spiralling mistrust, loss of confidence, and fear play in litigation. When an organisation is fully oriented to relationally centred care, it detects and uncovers such tensions long before they escalate to legal action. The result is nearly always a productive way forward with the parent.
When a solicitor should come before, not instead of, candour
It’s important for families to know this. When I draft a claim form for a client, I will refer in it to any letter of claim that the family has already sent, and to the response if there is one. One of the earliest disclosure requests that the trust will receive (whether or not the claim includes a human rights claim) is for all relevant correspondence, and we will certainly be asking for any early correspondence exchanged between the trust and my client.
If that includes vague denials and tries to dismiss the parents with a reassurance that ‘this rarely happens’, we will be matching it against the records and experts in our own assessment of liability, both causation and breach. If any prejudicial offers have been made (inadequate in money or in sympathy, accompanied by a demand for confidentiality or in full and final settlement) the court will be asked to view them unfavourably.
In fact, most legal claims settle without a contested trial even when the trust was not initially inclined to admit fault. Families are entitled to pursue Stillbirth Compensation regardless of how the internal investigation has gone, and a stalled or defensive trust response is not a barrier to that. Most parents can’t face a contested trial and don’t wish to put themselves or the staff through it: they just want to see the changes made, and the apologies given to mean something and to be for real.
Stillbirth and neonatal death claims don’t follow the same path
This is the point at which the two types of claim branch in different directions. A stillbirth is all about the pregnancy, delivery and the immediate aftermath determinations and the care received over that time. A neonatal death is about the pregnancy, the birth, the care over that time, but also the independent life that followed and the care received then. The law is clear throughout the UK that the claim for that life belongs to the estate of the neonate, and that means to the child’s parents, if the parents are the only legally recognised relatives. It’s fundamentally an action for the wrongful death of the baby.
This is a difficult issue for the courts because it involves putting a price tag on grief, which is difficult to quantify, although the underlying principle was settled long ago. Babies are worth no less in law than anybody else, and the old saying that only the wealthy could afford to lose children has never been a legal reality. The fact is, however, that the law covers the death, makes provision within sensible parameters to redress the losses and, probably more importantly, to mark the seriousness of the wrongdoing when the state is setting out to do so.
The clock parents don’t know is running
There is a three-year limitation period for bringing a clinical negligence claim, which runs from the date of the incident or, more relevantly here, the date the family had cause to believe something may have gone wrong. Grief doesn’t respect legal deadlines. Families will have spent months, often years, waiting for the investigation they trust will eventually give them the answers they need, only to find that they’ve quietly been running out of time all along.
It is one of the most potent practical arguments for seeking independent advice at an early stage, even if a trust-led investigation or a coroner’s inquest is ongoing. Advice doesn’t have to mean immediate litigation. It can merely mean someone is there to keep track of deadlines and preserve evidence while the family is otherwise engaged grieving, with any potential claim parked in the background until and unless they are ready to pursue it.
What real candour looks like, and why its absence becomes evidence
The shape of true candour can vary from one case to the next. It depends on how well staff were supported, how well they communicated the known facts at the time, and how the parents responded. Trusts should not hide behind concerned and inexperienced staff, or unreasonable lawyers. Those are choices, too, though easier ones, and in recent cases, they have led directly to harm being done. The point is now unavoidable: in clinical negligence defence, behaving honestly (not just not lying, but actively sharing information) and making a proportionate apology cannot be used in court by themselves. This indicates how deep the problem has become.
The honest fix is also the cheaper one
There is no need for new laws or additional inquiries to do this. The Duty of Candour is already in place, the safeguards to allow and encourage saying sorry are already in place, and the evidence that different care might have changed outcomes in the majority of cases is already out there and well known. What is still missing in too many trusts is the commitment to make honesty the automatic, rather than the final, answer. Families do not sue because they were told the truth. They sue because they were not.