If We Say Sorry, Are We Admitting Liability?

Duty of Candour, Saying Sorry and Why Fault Isn't Always the Point.

Duty of Candour continues to cause confusion, particularly when it comes to apologising. I have lost count of the number of times I have heard some version of, “But if we've done nothing wrong, why are we saying sorry?”

It's a reasonable question. We are rightly careful about what we say following a significant incident, particularly when an investigation is ongoing or there may be safeguarding, regulatory or legal implications. The difficulty comes when that caution makes people reluctant to acknowledge what has happened at all.

Falls are a good example because I have reviewed many of them over the years. A person falls and sustains an injury, sometimes a significant one, and naturally the circumstances need to be reviewed. There have been occasions where that review has found that the person's risks were known, the assessment and care plan were appropriate, agreed measures were in place and staff had done what was expected of them. Sometimes people fall despite appropriate care and risk management.

There have also been falls where the review has identified something very different. Perhaps agreed support wasn't provided, an identified risk hadn't been acted upon or there was information that should have prompted a change in the person's care. The outcome may look similar, but the circumstances are very different.

This is why it is important to understand what actually triggers the statutory Duty of Candour rather than assuming that every serious injury does, or alternatively assuming that it only applies when somebody has made a mistake.

For adult social care providers, Regulation 20 sets out a specific definition of a notifiable safety incident. There are criteria that need to be met, including that something unintended or unexpected occurred during the provision of the regulated activity and that the relevant harm threshold was reached. Fault is not the test, and the seriousness of an outcome on its own doesn't necessarily tell us whether the statutory duty applies.

I think this is where some of the confusion about saying sorry begins. We tend to associate an apology with accepting that we have done something wrong, when that isn't necessarily what an apology means.

If someone tells me that something terrible has happened in their life and I say, “I'm so sorry”, nobody assumes I am accepting responsibility for causing it. I am acknowledging what has happened and how it has affected them. I don't think that basic human response should disappear because we happen to be having the conversation in a regulated care service.

The legal position supports that distinction. Section 2 of the Compensation Act 2006 provides that an apology does not, of itself, amount to an admission of negligence or breach of statutory duty, and CQC guidance is also clear that saying sorry is not the same as admitting fault.

Of course we still need to be careful about what we say. If an investigation hasn't established what happened, we shouldn't speculate, make promises about its outcome or tell a family that something should have been prevented when we don't yet know whether it could have been. There may also be occasions when police involvement, safeguarding enquiries, Coroner's processes or potential legal proceedings mean advice is needed about communication.

None of that prevents us from being human.

A person may be frightened, in pain or facing a significant change in their independence. Their family may be angry, distressed or worried about what happens next. Those feelings are real whether the investigation ultimately identifies failings or concludes that the care provided was appropriate.

I think we sometimes become so focused on whether we are “allowed” to say sorry that we forget what the person in front of us is actually hearing. A very carefully worded conversation that avoids acknowledging their distress may protect nobody and can leave a family feeling that the organisation simply doesn't care.

There is a difference between saying, “I'm very sorry that this has happened and that you've been injured. We are looking carefully at what happened and will keep you informed,” and telling someone, “We're sorry, this should never have happened,” before you have established whether that is actually true.

That difference is professional judgement. There is also a wider point here. Not every incident will meet the statutory threshold for Duty of Candour, but that doesn't mean our responsibility to communicate openly and compassionately disappears. Regulation tells us when the statutory requirements apply. It shouldn't be the thing that determines whether someone's experience and feelings are acknowledged.

Where the statutory Duty of Candour does apply, saying sorry is only one part of it. There are requirements around notifying the relevant person, providing an account of what is known at the time, explaining what further enquiries are appropriate, providing reasonable support and following up appropriately in writing. As an investigation progresses, further information may become available and communication may need to continue.

This is another area where I think practice can sometimes become too focused on demonstrating that the process has been completed. A Duty of Candour letter on the file may provide evidence that a requirement was followed, but it doesn't necessarily tell us whether the person or family felt listened to, whether their questions were answered or whether they understood what happened.

For me, that is where the regulatory and moral elements of Duty of Candour come together. We absolutely need to understand Regulation 20, recognise when the statutory duty applies, document what we have done and seek advice when circumstances require it. We also need to remember why the duty exists in the first place.

People deserve openness when something has happened in their care. They deserve an honest explanation of what we know, an honest acknowledgement when we don't yet know the answer and appropriate communication as more information becomes available. They also deserve to have the impact on them acknowledged.

That doesn't require us to accept fault where none has been established. It requires us to recognise that saying sorry can simply mean that we are sorry for what someone is experiencing.

There is an important difference between admitting responsibility and showing compassion. We should be confident enough in our governance, our investigations and our professional judgement to know the difference.

The reflections in this article are drawn from my professional experience in health and social care. Duty of Candour requirements depend on the circumstances of each incident and the applicable regulatory definitions. Providers should refer to current CQC guidance, their own policies and seek appropriate professional or legal advice where necessary.