RWK Goodman - April Bulletin

 

The Hillsborough Law: Implications for Adult Social Care Providers

Following a decades long campaign by the families affected by the Hillsborough disaster, the Public Office (Accountability) Bill (‘the Bill’), or ‘the Hillsborough Law’, has been introduced to Parliament.  

The Bill aims to address historic institutional failures to act openly and honestly during inquests, inquiries and investigations involving the state, but how does the proposed legislation affect adult social care providers in England and Wales who are already subject to statutory duties of candour?  

For providers, the Bill raises important questions about how regulatory, coronial and public law obligations intersect—and how decisions taken at an early stage may later be scrutinised in multiple forums. 

What will the Bill introduce?

In its current form, the Bill proposes to create a statutory duty of candour and assistance which will require public authorities and public officials to act with honesty, transparency and frankness when engaging with inquests, inquiries and other formal investigations. 

The Bill goes further than the existing regulatory duties by allowing criminal sanctions for serious breaches of the proposed statutory duty, including where a public authority or official deliberately misleads the public or fails to comply with the duty of candour and assistance. 

The Bill also seeks to reform the offence of misconduct in public office and introduces ‘parity of arms’ at inquests, ensuring bereaved families have access to publicly funded legal representation where public bodies are represented. 

What is the difference from current duties of candour?

Crucially, the Bill does not repeal or amend the existing statutory or professional duties of candour; it would sit alongside them.  

The existing duties in both England and Wales are primarily concerned with the provider–service user relationship and regulatory compliance following incidents. Breaches may result in enforcement action by the regulator, including warnings, conditions or, in serious cases, prosecution. 

By contrast, the Bill focuses on conduct during public accountability processes, such as: 

  • Coroners’ inquests (including Article 2 inquests); 

  • Statutory and nonstatutory public inquiries; 

  • Other formal investigations into deaths or serious failures. 

The proposed duty of candour and assistance in the Bill is concerned with proactively supporting the investigative process and ensuring that relevant information is identified and disclosed, not just being honest when asked. The introduction of potential criminal liability marks a significant escalation in the legal consequences of serious failures in this context. 

In practice, providers may find themselves managing overlapping duties to regulators, coroners and commissioners, often under significant pressure. Decisions about disclosure can now have public law and criminal implications, not just regulatory ones.

Will the proposals in the Bill apply to adult social care providers?

Whilst the Bill clearly directly applies to public authorities and public offices (including local authorities and NHS bodies in England and Wales), the position is more nuanced when it comes to adult social care providers.  

The Bill is drafted broadly and is intended to apply not only to public authorities, but also to bodies and individuals exercising functions of a public nature. In practice, this means that providers delivering publicly commissioned care may find themselves drawn into the scope of the duty, particularly where they are closely involved in circumstances that lead to an inquest or inquiry alongside a local authority or health body. Even where the statutory duty does not apply directly, expectations around transparency and cooperation are likely to increase. 

What about CQC and CIW?

While coroners’ inquests are not regulatory proceedings, they frequently trigger regulatory interest. Both the Care Quality Commission (CQC) in England and Care Inspectorate Wales (CIW) may become involved where an inquest raises concerns about systemic failings, governance, safeguarding or compliance with fundamental standards. 

In practice, this may include regulators: 

  • Monitoring inquest proceedings and verdicts (including narrative conclusions); 

  • Requesting disclosure of inquest evidence, witness statements or internal investigation reports; 

  • Using information emerging from the inquest to inform inspections, enforcement action or fitness assessments. 

Where issues of candour, recordkeeping or cooperation arise during an inquest or inquiry, this may in turn influence a regulator’s view of a provider’s leadership, culture and governance. 

Practical implications for providers

Whilst the Bill might not require a fundamental shift in approach by providers, it will sharpen the focus on how providers respond when things go wrong. Key implications will be:  

  1. A stronger expectation of proactive disclosure
    Providers should expect increased emphasis on early,thorough and transparent disclosure of relevant information during inquests and investigations, rather than a reactive or defensive approach. 

  2. Greater scrutiny of organisational culture
    The Bill reinforces the idea that candour is an organisational value, not merely an individual obligation. Boards, responsibleindividuals and senior managers should be able to demonstrate that openness is embedded in governance and decisionmaking. 

  3. Increased legal and reputational risk
    Inquests and inquiries already carryreal regulatory and legal risk, including CQC or CIW enforcement and, in serious cases, prosecution. The proposed Bill raises the stakes further where there is a lack of openness or cooperation. This makes early decisionmaking critical, particularly where providers are balancing their duties to service users, regulators, insurers and commissioning bodies. 

  4. Greater involvement of legal representatives for families
    In its current form, the Bill also proposes to strengthen ‘parity of arms’ at inquests, making it more likely that bereaved families will have publicly funded legal representation where public bodies are legally represented. This is likely to lead to more legally complex and adversarial inquests, with closer scrutiny of evidence, disclosure anddecisionmaking. Providers should expect a more forensic examination of events, particularly where care is publicly commissioned or where systemic issues are alleged. 

What should providers do to prepare?

Although the Bill is not yet law, providers in England and Wales would be well advised to use this period to reflect and prepare. Sensible steps include: 

  • Reviewing incident response, investigation processes and disclosure processes to ensure openness is built in from the outset and that regulatory and coronial considerations are aligned. 

  • Ensuring senior staff understand how inquests, regulatory action and public law duties can interact and where early legal input can reduce risk later down the line.  

  • Seeking early specialist legal advice when deaths, serious incidents or systemic concerns may give rise to inquests, regulatory enforcement or wider public investigation. 

Conclusion

For adult social care providers in both England and Wales, the Bill does not replace existing duties of candour, but it does reinforce the expectation that openness, honesty and assistance are nonnegotiable when the most serious issues arise. 

For providers already committed to transparency and learning, the Bill should serve as confirmation that they are on the right path. For others, it is a timely reminder that candour is not just a regulatory requirement, but a foundational principle—one that is increasingly likely to be tested in the most public of forums. 

 
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