Public Office (Accountability) Bill — Written evidence submitted by Browne Jacobson LLP (POAB20)

Public Office (Accountability) Bill (4th December 2025)

Primary navigation

Home

Parliamentary business

MPs, Lords & offices

About Parliament

Get involved

Visiting

Education

House of Commons

House of Lords

What's on

Bills & legislation

Committees

Publications & records

Parliament TV

News

Topics

You are hereParliament home page
>
Parliamentary business
>
Publications and Records
>
Hansard
>
Commons Debates
>
Public Bill Committee Debates
>
Public Bill Committee

Session 2024-25

Public Office (Accountability) Bill

Written evidence submitted by Browne Jacobson LLP (POAB20)

Executive summary

This response, based on a survey of six NHS Trusts, identifies considerable concerns about the Public Office (Accountability) Bill. While recognising the importance of transparency and candour, our clients highlight that existing regulatory frameworks already mandate these standards. Key concerns include: the potentially punitive tone of the Bill that may undermine a learning culture; restrictions on legal representation creating unfair imbalances; substantial cost implications; and the risk of making inquests more adversarial. There are calls for clearer guidance on implementation and amendments to ensure the Bill achieves its objectives without unintended consequences for patient safety and healthcare delivery.

Who we are

This response has been prepared by Browne Jacobson LLP, a leading UK law firm with offices in Birmingham, Cardiff, Dublin, Exeter, London, Manchester and Nottingham. We are health and social care sector legal experts, with a large team of lawyers operating nationwide and working together with health and social care providers, commissioners and regulators.

We have a specialist team of public law lawyers, comprising both solicitors and barristers, who support and represent our clients at inquests and inquiries. Our clients include NHS Trusts (including acute and mental health trusts), private healthcare providers, integrated care boards, individual clinicians, local authorities and schools/academy trusts.

Browne Jacobson's inquest team conducts advocacy in various different jurisdictions across England and Wales, advising on hundreds of inquests per year. Our inquiries team supports health and social care providers with both statutory and non-statutory inquiries and has been involved in some of the most recent high-profile inquiries in recent years.

Why we are responding to the call for evidence

The call for evidence in relation to the Public Office (Accountability) Bill (the Bill) asks for anyone who has an interest in the Bill to submit evidence to the House of Commons Public Bill Committee. Given our extensive practice in representing public sector organisations at inquests and inquiries, we have significant interest in the Bill. The organisations we represent will be directly affected by the proposed reforms and have valuable views and insights on how the Bill's provisions may operate in practice.

How we prepared this response

To ensure that our response reflected the views and experiences of those who will be most affected by the Bill, we created a survey for our clients to complete. The survey explained the key provisions of the Bill and invited respondents to share their views on the proposals. All surveys were completed on an anonymous basis. We received six responses to the survey, all from NHS Trusts.

Key findings from the survey

Existing duty of candour policies and procedures

When asked whether their organisation already has policies or procedures in place that align with the proposed duty of candour and assistance:

·

Four respondents indicated they already have comprehensive policies

·

Two respondents indicated they have partial policies

Views on implementing the duty of candour and assistance

Respondents identified some challenges in implementing the proposed duty of candour and assistance:

·

Two respondents expressed a view that the duty may be unnecessary, given that there are existing statutory and professional duties of candour in respect of health and social care professionals and organisations regulated by CQC.

·

One respondent identified challenges around evidencing that that duty has been complied with, and ensuring that staff feel able to be open, honest and transparent with coroners. They commented that staff are likely to worry that the duty will open themselves and the Trust up for criticism during the inquest process. They foresaw resource implications, such as training staff on what the duty actually means in practice, how to comply with it and what to record.

·

One respondent said that it would be difficult to meet the demands of the duty within existing workloads. Existing duty of candour policies will need revision and staff will need to be trained on the new requirements. There is currently no dedicated team with capacity to do this.

·

One respondent was more positive, stating that they already comply with the duty of candour principles when dealing with their local coroner’s court, and did not anticipate any significant challenges or resource implications in implementing the proposed duty of candour and assistance. They commented that, in complex inquest cases, their local coroner already asks for confirmation in writing that that Trust has disclosed everything relevant that it is aware of.

Creating a "necessary and proportionate" test for legal representation

When asked whether their organisations already have a "necessary and proportionate" test for legal representation at inquests and inquiries:

·

Two respondents indicated they have a formal "necessary and proportionate" test

·

One respondent indicated they do not have such a test but have a similar test or criteria

·

Three respondents indicated they do not have such a test

Views on the "necessary and proportionate" test

Some respondents expressed concerns about the proposed "necessary and proportionate" test for legal representation at inquests:

·

One respondent highlighted that, if a healthcare professional is criticised by a coroner at an inquest, they are obliged to refer themselves to their regulatory body. This can be a very daunting process, so staff need support from their organisation’s legal team during the inquest. The respondent also mentioned that not having legal representation may reduce the quality of the evidence given in court, as having legal counsel ensures that staff are supported both before and during the inquest, helping them to provide the best possible evidence.

·

Another expressed concern around this provision, as their local coroner considers that NHS Trusts and other public authorities are single bodies, rather than multiple individuals. Therefore, the inquest process is much easier if there is one person speaking on behalf of that organisation, which may not be the case if legal representation is not permitted. The respondent observed that, in previous inquests where legal representation was not provided, staff were left without a single point of contact, which led to confusion and delays. The respondent therefore emphasised the importance of providing clear and comprehensive written guidance to accompany any new legislative provisions. They highlighted that such guidance should recognise the necessity for public bodies to present a unified position to the coroner, in order to assist with the investigation.

·

Another commented that if any staff member is called to give oral evidence at an inquest, then their organisation is usually made an interested person. As an interested person, the Trust want to be able to ask questions during the hearing and legal representation is required to effectively do this. Further, staff will likely feel unsupported without legal representation.

Others however did not appear to have concerns and commented that the test reflects their current practice:

·

One respondent noted that, whilst they do not have a formal standard operating procedure in place, their usual practice is to instruct legal representation only where it is necessary and proportionate.

·

Another respondent explained that their current approach reflects the proposed new test. They typically only engage legal assistance where they feel there are grounds for a clinical negligence claim and associated litigation, or if the patient died whilst detained under the Mental Health Act, meaning the coroner is likely to ask for legal arguments regarding the engagement of Article 2 of the European Convention on Human Rights and the need for a jury.

·

Another respondent echoed this approach and explained that they only request legal support for complex or difficult inquests, or where it is likely that litigation (i.e. a clinical negligence claim) will be brought. However, they did request guidance and examples of how to undertake the necessary and proportionate test.

Expansion of legal aid for families

Respondents identified several concerns about the expansion of legal aid to bereaved families:

·

One respondent raised concerns about the practical implications. They noted that, should families be granted an automatic entitlement to legal representation at inquests whenever a public authority is recognised as an interested person, this would in effect encompass almost every inquest involving their organisation. They cautioned that, in circumstances where their organisation does not meet the "necessary and proportionate" threshold for legal representation, staff may be required to attend court without appropriate support or representation whereas the family will have legal representation, creating a new imbalance.

·

One respondent commented that this provision was likely to lead public authorities to consider legal representation "necessary and proportionate" whenever the family was legally supported. The respondent expressed concern that this would make the inquest process more litigious, potentially resulting in a significant increase in public expenditure on legal representation for both families and public authorities. Furthermore, they considered that using "interested person" status as the threshold was inappropriate, as it set the bar too low; public bodies are generally granted interested person status in any case where there are questions regarding the standard of care provided – which is the majority rather than the minority of cases.

·

Other respondents similarly anticipated that this provision would likely increase the need for public authorities to instruct legal representation for inquests, potentially resulting in increased costs for NHS Trusts. One also noted that, whilst the provision may provide families with additional support, it may also give the false hope that a clinical negligence claim can be successfully pursued.

·

One respondent said that the provision was unlikely to affect them since they provide in-house representation at all inquests. However, they noted that increased family representation at "routine" (i.e. non-complex) inquests could potentially lead to more witnesses being called and longer hearings, possibly causing unnecessary delays (it is of note that some coroner’s courts already have significant backlogs). They questioned whether families need legal representation at every inquest where a public authority is an interested person, since most are relatively straightforward and families are supported throughout the hearing by the coroner, who carefully explains the process to them. The current legal aid threshold seems proportionate, as it is granted in cases that tend to be far more legalistic and complex. The new proposal could add substantial cost to the public purse with limited discernible benefit in more straightforward cases, where families are already heavily supported by the coroner.

·

One respondent commented that the Trust’s in-house legal team attends all inquests where families have legal representation, to provide support for witnesses and to advocate on behalf of the Trust. Expanding legal aid and representation for families will put considerable strain on the already small in-house legal team. Further, the Trust is likely to conclude that it will be "necessary and proportionate" to seek external legal counsel whenever a family has representation, arguably making the process more adversarial. The respondent queried whether the expansion was necessary, pointing out that coroners typically ask all pertinent questions on behalf of the family when needed. Additionally, expanding legal aid could make inquests more complicated and lengthier, potentially causing further delays, at a time when many coroner’s offices are already experiencing backlogs. It could also mean more clinicians taking time away from their clinical duties to write witness statements and attend hearings.

Existing codes of ethical conduct

When asked whether their organisations already have a code of ethical conduct that covers candour, transparency and frankness:

·

Three respondents confirmed they have such a code

·

One respondent indicated they do not

·

Two respondents were unsure

Views on implementing codes of ethical conduct

·

Two respondents commented that many staff groups already have a professional code of conduct that they are accountable to, e.g. GMC and NMC codes of conduct.

·

Another respondent identified some challenges with this provision, namely ensuring that the policy is up to date and that staff are fully aware of their duties.

·

Concerns were also expressed about a code of conduct being potentially too wide, and an additional pressure for staff who are already struggling with high workloads and low morale.

Recommendations for legislative improvement

Respondents requested some specific amendments or clarifications to the Bill:

·

One stated that the legislation should reiterate the scope of an inquest and include provisions to ensure that an inquest stays within that scope.

·

Another requested additional clarification or criteria regarding inquest funding for bereaved families. The proposed reforms could be costly and disproportionate, especially given the number and nature of inquests for which families are likely to receive legal aid.

·

One respondent raised concerns about the "necessary and proportionate" test leaving Trust witnesses exposed and unsupported. The respondent said that the input of the Chief Coroner and other Senior Coroners would be welcome.

·

There were concerns around the overall messaging and wording of the Bill. One respondent noted that many staff already find inquests very daunting, and the process is often notably critical of public sector organisations. One respondent expressed concern that the Bill may have a penalising effect on health professionals and organisations, noting that the proposed changes could potentially discourage applicants from seeking NHS positions within an already understaffed workforce.

·

One respondent had a number of questions regarding the Bill, such as:

o

Does "legal representation" include in-house legal teams?

o

What impact assessments have been carried out, particularly in terms of how the changes will affect clinical care and the clinical workforce?

o

If families are entitled to legal representation but public authorities are not, what support (if any) will be provided to staff having to give evidence at inquests?

o

How will the increase in legal aid be funded?

Conclusion

The responses from our clients highlight practical concerns about the Bill that require careful consideration to avoid unintended consequences. Whilst there is recognition that transparency and candour are of course important principles, there is a strong view that existing regulatory frameworks already require these standards and that some parts of the Bill may be unnecessary and potentially counterproductive. There is also concern that some provisions may inadvertently undermine the just and learning culture essential for continuous improvement in healthcare delivery.

The key themes emerging from the responses are:

·

Cultural impact concerns
: Respondents expressed concern that the Bill's approach may inadvertently discourage the open reporting and learning culture that is fundamental to patient safety and service improvement, potentially having the opposite effect to that intended.

·

Legal representation imbalance
: There was some opposition to the "necessary and proportionate" test for public bodies' legal representation, with concerns that this creates an unfair imbalance, particularly given the expansion of legal aid for families. Respondents emphasised that public bodies need legal representation to speak with one voice and to support staff through what can be a daunting and challenging process.

·

Cost implications
: Multiple respondents highlighted substantial cost implications of the Bill, in terms of expanded legal aid for families, potential increased legal representation for public bodies and individual staff members, policy development and staff training. These costs may disproportionately affect already stretched NHS budgets.

·

Risk of inquests becoming more adversarial
: Respondents were concerned that the Bill's provisions may transform inquests from their intended inquisitorial function into more adversarial proceedings, potentially hindering rather than facilitating the fact-finding process.

·

Need for clarity
: Respondents requested clear guidance and criteria for how the Bill's provisions will operate in practice, particularly regarding the "necessary and proportionate" test.

We hope that these insights from organisations that will be directly affected by the Bill's provisions will assist the House of Commons Public Bill Committee in its consideration of the legislation.

December 2025

Prepared 4th December 2025

Footer links

A-Z index

Glossary

Contact us

Freedom of Information

Jobs

Using this website

Copyright

Privacy notice
Cookie policy
Cookie Manager