Likely implications of Hillsborough Law for Independent Sector Providers in the Coroner’s Court

The Public Office (Accountability) Bill 2025, better known as the ‘Hillsborough Law’, is now at the Report stage in the House of Commons.  Whilst there is no given time frame for this to gain royal assent and become law, once it does so it will potentially bring significant changes to providers involved with an inquest process.    

In November, we held a webinar considering the implications of Hillsborough Law and in October we published an article specifically considering the implications for independent sector providers. 

In that article, Carlton Sadler noted that while ostensibly aimed at public authorities and officials, the Bill would have potential implications for independent sector organisations including providers of healthcare and adult social care. This is because the Bill specifies that the statutory “duty of candour and assistance” in the course of interacting with inquiries and investigations applies not only to public authorities and public officials, but also to others with “relevant public responsibility”. This is defined to include service providers under a direct contract with a public authority, thereby potentially including independent sector health and social care providers providing services commissioned by NHS or local authority commissioners. 

As well as public inquiries and non-statutory inquiries, the duty of candour and assistance will apply to Coroner’s investigations and inquests.  This is perhaps unsurprising given the criticism of the public authorities’ defensive and adversarial approach to the inquests of the Hillsborough disaster victims which were concluded with verdicts of ‘unlawful killing’.

Taken together this means that an independent provider at an inquest could fall within the duties.  What though can such a provider expect to have to do as a consequence? 

Duty of candour and assistance 

The obligations that the duty of candour and assistance will currently require are set out at section 2 (4) of the bill as follows -   

“A public authority or public official must provide all such assistance as they can reasonably give to assist an inquiry or investigation to meet its objectives, and (in particular) must— 

1. where the authority or official has information that is likely to be relevant to the inquiry or investigation, provide that information; 
2. where any such information is likely to be of particular significance to the inquiry or investigation, draw attention to that fact; 
3. if any errors or omissions are discovered in information previously provided, correct those errors or omissions; 
4. in the case of a public authority, provide a position statement; 
5. where requested by the person leading the inquiry or investigation, provide further information or clarification or comply with other requirements, so far as reasonably practicable.”

This would therefore seem to establish a statutory duty to generally assist the Coroner in their investigation.  In reality that ought not to represent a departure from what is already expected of professional bodies (regardless of whether they can be defined as public or not) when involved with an inquisitorial process.  By their very nature inquisitions are supposed to involve everyone (there being no parties) assisting the inquisitor in being able to reach a common purpose.  Arguably therefore such assistance should be common-place already.   

Where we possibly begin to come further away from existing practice is demonstrated in the particulars.  4a for example would seem to engage a proactive duty for a provider to provide relevant information to a Coroner.  Arguably the current position is that there is only a duty to provide information specifically requested/directed by a Coroner (for example under Schedule 5 of Coroners and Justice Act 2009).  Whilst there may be some debate about whether that truly is the case, the Bill would seem to firmly settle that by legislating this as a necessity whether it is directly requested or not.  

4b then takes that obligation even further, not only should the information be disclosed, but mandates a duty to wave a “red flag” at anything of particular significance within it.  In other words, there will be an expectation  that a provider specifically points out significant issues or errors relating to the care of the deceased that they are aware of.  

What information should be deemed “relevant to the inquiry” or of “particular significance” seems to a large degree subjective and a moving target dependent upon evidence and disclosure potentially by other IPs. What is ‘relevant to the inquiry’ as a starting point in an investigation may morph in scope. However as a rough guide thought should be given in the first instance to the statutory purpose of an inquest, namely who the deceased was, how, when and where the deceased came by their death (and in the context of Article 2 of Human Rights Act being engaged, in what circumstances the deceased came by their death) – i.e. the core ‘objectives’ of such inquiry/investigation.  With that in mind if a provider found information that suggested very poor practice, but that could not properly be said to go to an individual’s death there may remain no obligation to disclose it.  

The requirement to provide a position statement will likewise require providers to be candid about possible issues in care at an early stage. The danger here is that organisations will be asked to essentially make ‘admissions’ in form of a position statement early on in the investigation process. It is anticipated that we will see a variance of practice across areas in what Coroners will precisely require from such a statement, but akin with their use in other jurisdictions, in general they will be used as a way to discern what facts are at issue and what can be agreed.  

An exception?

Given the need to be so open about issues, an obvious tension may arise when a provider has cause to believe that such issues may give rise to the prospect of a prosecution, whether that be from the police, CQC or other regulatory body.   In such circumstances will the provider be required to “confess all” via the waving of the red flag, or admitting issues in a position statement? 

The answer would seem to be, theoretically no.  This is because the Bill also states that the duty of candour and assistance does not require a public body to “breach any prohibition or restriction imposed by or under an enactment or a rule of law.”  That would, it is assumed, include the right not to self-incriminate .

How though will this work in practice? What will a provider, or their representative, say to a Coroner when concerned that the facts of a case amount to an offence and are being put under pressure to provide a position statement and be candid about significant issues as they see them?  Will this require simple diplomatic silence or a vacuous statement?  Alternatively will there be necessity at times to give a coded warning to the Coroner that there are cogent reasons why the duty cannot be complied with?   

The Bill also introduces a new criminal offence of failing to comply with the duty of candour and assistance. What will happen therefore if a provider is quiet on a significant issue which later comes to light?  In such circumstances will a Coroner seek to suggest that such an offence may have occurred?  Can a provider thereafter simply assert that the duty did not actually apply as they were seeking not to self-incriminate? Will that satisfy a Coroner?  

The impact of the Hillsborough Law on providers

The potential impact on independent providers could therefore be significant with the following amongst the possibilities :   

• There will be increased pressure from the Coroner for early identification of issues and possible admissions via position statements.  Such statements/admissions are likely to be informed by PSII reports and internal investigations.  Those may therefore need to be completed much earlier than Providers may be used to and with an accuracy that can be relied upon. This of course is often far easier said than done.   
• As the Bill provides for non means tested legal aid funding for families, there will inevitably be more families with legal representatives and pressure will likely also be exerted by those representatives. That pressure could come in the form of wider disclosure and thus greater chance of Article 2 inquests and PFD concerns to be explored.
• Identifying issues and potential criminal offences at an early stage will be vital.  There is therefore likely to be the need for enhanced oversight at a senior level within organisations once a death has occurred.  According to the Bill it appears that potentially CEOs will also have notice directly from Coroners/Inquiry leads on disclosure matters, focussing on the Bill’s aim of accountability at the highest levels within organisations.   
• Seeing that issues or failings in care may take more prominence much earlier in proceedings (i.e. rather than potentially at the end of an inquest with a Coroner making negative findings) providers will likewise need to be mindful earlier on of the impact that will have on a reputational perspective and how this information will drive the trajectory of the inquest itself. 
• On conviction the new criminal offence of failing to comply with the duty of candour and assistance will carry a penalty of a fine or even potentially imprisonment.  The reputational impact of facing such an allegation in itself will also of course be considerable.  The implications of getting this duty wrong could therefore be momentous.  Providers would do well therefore to seek to ensure that they have a concrete understanding of their legal obligations under the Bill.   Looking to engage at an early stage with the Coroner investigating a death, thereafter having clear and effective ongoing communication with the Coroner’s office, as well as ensuring timely compliance with any specific Coronial directions will all be vital steps for an organisation to take to seek to minimise the risk of an allegation of a breach of the duty.    

Our Independent Health and Care Inquest Team, led by Amanda Wright-Kluger, are vastly experienced with the inquisitorial process and engage with Coroner’s offices across the country on a daily basis.  If you would like to speak to Amanda about this Bill and the potential impact on your organisation please or any other related matter please contact Amanda at amanda.wright-kluger@bevanbrittan.com or on 07586 691430.