Duty of Candour: What It Requires and How to Do It Well

Something has gone wrong. A screw is intra-articular on the post-operative film. A swab count was reconciled late. A fracture was missed on a radiograph two weeks ago and the patient has come back worse.

The instinct at that moment is almost universal, and it is almost always wrong: wait until we understand it properly, then decide what to say. It feels responsible. It sounds like avoiding speculation. In practice it is the beginning of nearly every complaint that becomes a claim, because the patient finds out anyway — from a letter, from another clinician, from the operation note — and now they have two grievances instead of one. The second is worse, because it is about honesty rather than about surgery.

This post sets out what candour actually requires, where the professional duty differs from the statutory one, and what to say. It sits within our medico-legal series.

Two duties, not one

Surgeons routinely conflate these, and the distinction determines what is obligatory.

The professional duty is personal, owed by you as a registered clinician, and it has no harm threshold. Where something has gone wrong in a patient's care, you should tell them, apologise, and explain what will happen next. In the UK this is set out in joint regulator guidance on openness and honesty when things go wrong; equivalent professional expectations exist in every comparable jurisdiction. It applies whether or not the incident meets any statutory bar.

The statutory duty is organisational, owed by the provider, and it is triggered only above a defined threshold. In England it sits in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 — introduced for NHS trusts and foundation trusts in November 2014 and extended to all CQC-registered providers from April 2015.

The practical consequence: the statutory threshold is a floor, not a target. An incident that falls below it still attracts your personal professional duty. "It didn't meet the notifiable threshold" is not a reason to say nothing.

The statutory threshold

In England, a notifiable safety incident must satisfy all three of:

1. It was unintended or unexpected;
2. It occurred during the provision of a regulated activity; and
3. In the reasonable opinion of a healthcare professional, it has resulted or might result in death, severe harm, moderate harm, or prolonged psychological harm.

Three features are worth drawing out, because each is regularly misread.

"Might result in" — the duty is triggered by potential harm, not only realised harm. You do not wait to see whether the patient deteriorates.

"Moderate harm" is a low bar. It is not reserved for catastrophe. A complication requiring an unplanned return to theatre will ordinarily clear it.

"Unintended or unexpected" does not mean negligent. A recognised complication, properly consented and competently managed, can still be an unexpected occurrence in this patient. Candour is not an admission that anyone did anything wrong — this is the single most common misunderstanding, and it is what makes surgeons hesitate.

What the duty actually requires

Across jurisdictions the components are consistent:

Victoria's statutory scheme is the most prescriptive I am aware of and makes a useful model even outside Australia. Under the Health Legislation Amendment (Quality and Safety) Act 2022, in force from 30 November 2022, a serious adverse patient safety event triggers obligations to give a genuine apology within 24 hours, offer a meeting within three business days, and hold it within ten business days, with a written account of the facts, the response, and the steps being taken to prevent recurrence.

Even where you are not bound by those timescales, they are a good discipline. Candour delivered three weeks later is technically candour and practically damage limitation.

Apologising is not admitting liability

This is the fear that stops people, so it is worth stating plainly.

Saying sorry is not an admission of legal liability. Most Australian states and many US states have apology legislation that expressly protects expressions of regret from being used as admissions in civil proceedings; in the UK, NHS Resolution has been consistent for years that saying sorry is the right thing to do and does not prejudice a defence.

What does prejudice a defence is speculating about cause before you know, blaming a colleague or another department, or — worst of all — a record that does not match what the patient was told.

The distinction to hold in your head:

• "I am so sorry this has happened to you" — an expression of sorrow for the patient's situation. Always appropriate, always safe, and what patients overwhelmingly want.
• "I am sorry, I made a mistake in cutting the nerve" — a factual admission. Appropriate only once established, and a conversation to have with your indemnity provider first.

You can be completely open about what has happened without asserting why before anyone knows.

How jurisdictions compare

Accurate as of July 2026. Duty-of-candour legislation is jurisdiction-specific and has been changing rapidly — Victoria's scheme is recent and other jurisdictions are reviewing theirs. Confirm the position where you practise.

What to say

A workable structure for the conversation:

1. Sit down. Bring someone. Never do this in a corridor, never alone if it can be avoided, and offer the patient someone with them.
2. Say what has happened, plainly and early. Do not build up to it. "I need to tell you about something that has gone wrong with your operation."
3. Apologise, unconditionally. "I am very sorry that this has happened."
4. Give the facts you have. Say what is known and what is not, and label the difference. "What we know now is X. What we don't yet know is why, and we are going to find out."
5. Do not speculate about cause or blame. Not the theatre team, not the night staff, not the previous hospital.
6. Say what happens now — clinically, and in terms of investigation.
7. Give a named contact and a commitment to a follow-up conversation.
8. Ask what questions they have, and wait.
9. Document the conversation contemporaneously, including the apology.
10. Follow up in writing, and actually do it.

What not to say

• "These things happen." True, dismissive, and remembered forever.
• "It's a recognised complication." It may be. Said early, it sounds like a defence being erected.
• "I can't discuss it until the investigation is complete." Not correct, and it reads as concealment.
• Anything attributing blame to another individual or team.
• Any promise about outcome or compensation that you are not in a position to make.

Why delay is so costly

Patients and families consistently say the same thing: the harm was survivable; being lied to, or left to find out, was not.

Delay converts a clinical complication into a trust failure, and trust failures are what drive complaints into litigation. They also worsen the regulatory position considerably — a failure of candour is treated by regulators as a serious professional matter in its own right, frequently more serious than the underlying clinical event. A surgeon who has a poor outcome and is open about it is in a manageable position. A surgeon who has a poor outcome and concealed it is in a different category of trouble entirely.

The clinician also needs support

Being the person at the centre of a serious incident is genuinely damaging, and the phenomenon is well enough recognised to have a name — the second victim. Surgeons in this position perform worse, withdraw, and in some cases leave.

Candour and support are not in tension. A department can be entirely open with a patient about what went wrong while treating the surgeon involved as a colleague who needs help rather than a problem to be processed. Departments that manage only one of those two things end up with either concealment or burnout.

If you are the colleague rather than the surgeon: make contact early, before any meeting, and make it about them rather than about the case.

Candour and the investigation are different things

Telling the patient is immediate and is your duty. Establishing why it happened is a systematic process that takes time and belongs in root cause analysis and the incident reporting system.

Do not wait for the second before doing the first. Explaining that an investigation is under way and that you will share what it finds is the honest answer at the early stage — and telling the patient what you will do, then doing it, is most of what candour amounts to.

The summary

Tell them early, in person, and apologise without conditions. Say what you know and label what you do not. Never speculate about cause and never blame a colleague. Write it down, follow up in writing, and keep the patient updated as the picture becomes clearer.

The statutory threshold defines when the organisation must act. Your own professional duty has no threshold at all — and in practice, the surgeons who handle this well are simply the ones who pick up the phone on the same day.

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This article describes professional and legal frameworks for educational purposes and is not legal advice. Duty-of-candour requirements vary by jurisdiction — contact your indemnity provider early in any specific case.