Duty of candour in NHS ‘does not work and needs urgent review’, inquiry told

Duty of candour in the NHS is not working and needs replacing with stronger powers, a former senior ombudsman has told the inquiry over the crimes of child serial killer nurse Lucy Letby.

Sir Rob Behrens (pictured) said that fines for health and social care providers were “so puny” they were not acting as a deterrent against complying with the statutory obligation to be open and transparent with patients and their families.

Giving evidence to the Thirlwall Inquiry on Tuesday, the Parliamentary and Health Service Ombudsman between April 2017 and March 2024 said: “The duty of candour does not work and needs urgent reviewing and replacement with stronger powers.

“It doesn’t work because it doesn’t apply to individuals. It applies to persons and that is interpreted as a public body.

“Secondly, the fines issued are so puny that it doesn’t have impact on the behaviour of the leaders of the (NHS) trust.”

He added: “Time and time again, we have seen senior managers and boards are more interested in preserving the reputation of their organisation rather than dealing with patient safety issues. This must have something to do with the culture of leaders of the health service and it must have something to do with the absence of a competence framework in which these people operate.

“And that goes really to the heart of what’s wrong about the leadership of the NHS and historically, and this is not a party political point, there has been insufficient emphasis on patient safety.”

Sir Rob said current whistleblowing laws in England were also not working, with doctors fearing the end of their careers if they spoke out.

He told the inquiry: “Too often in my experience, doctors who want to disclose patient safety issues are disciplined or threatened with discipline by the leadership of the trust and the board, and this means they are extremely vulnerable when they do blow the whistle.

“Unlike in Scotland, there is no opportunity for people who want to blow the whistle to have a body that they can go to in order to get support and advice.

“The whistleblowers I have met feel isolated and vulnerable when they do blow the whistle because of bad experiences that so many of them have had.

“If you look at the litigation costs and the compensation fees around whistleblowing issues, they are enormous. It’s not productive to handle cases in this aggressive way.”

He said Freedom to Speak Up Guardians in the NHS did a “brilliant job” but some had told him they themselves did not feel able to be frank and open about their own experiences for fear they too would be disciplined.

Sir Rob continued: “So many times, trust leaders have said to me ‘you are undermining us by pointing out that what we are doing is wrong and people won’t trust us if you keep on doing this’.

“You have to acknowledge where things go wrong.

“One of the great things that I have learnt as ombudsman is the heroic behaviour of parents and family members in seeking to keep cases going which otherwise would have fallen by the wayside, and that should not be the case.

“Parents in this case are to be hugely commended for their courage and tenacity in taking this forward. It is frightening to think how many cases would have just disappeared without their continuity.”

No complaints regarding patient care at the Countess of Chester’s neonatal unit were made to the ombudsman in 2015 and 2016 when Letby attacked infants in her care, the inquiry heard.

Consultant paediatricians voiced fears to hospital bosses that the nurse was deliberately harming babies following the deaths of two triplet boys in June 2016 but police were not called in until May 2017.

Former chief executive Tony Chambers has denied that he sought to “ruin the careers” of medics Dr Ravi Jayaram and Dr Stephen Brearey after they brought the concerns to his attention.

Letby, 34, from Hereford, is serving 15 whole-life orders after she was convicted at Manchester Crown Court of murdering seven infants and attempting to murder seven others, with two attempts on one of her victims, between June 2015 and June 2016.

The inquiry, sitting at Liverpool Town Hall, will hear evidence until January, with findings expected to be published in autumn 2025.

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