The House of Commons Health and Social Care Committee (HSCC) (2022) report following its NHS litigation reform inquiry, discussed in my previous column (Tingle, 2022), contains a considerable amount of information on the issue of how patients are compensated for clinical negligence. In this column I continue the discussion, linking themes to the recent prosecution of an NHS trust for the death of two patients (Care Quality Commission (CQC), 2022). In considering NHS litigation reform we must also consider current NHS patient safety events to keep the discussion relevant and well grounded.
Stress and defensiveness
Issues discussed in the HSCC report included the impact of clinical negligence claims on patients themselves, nurses, doctors involved in a case and on the NHS generally. There was a focus on reining in increasing litigation costs and furthering the development of a patient safety learning culture.
One impact of the present system discussed, with several different views, was the stress that can be caused by litigation taking place within an adversarial setting—both for patients and for staff directly involved in a case:
‘We recognise that being the clinician or team at the centre of a clinical negligence claim can be stressful and upsetting for the clinicians involved. However, we have seen little evidence to date that the litigation system is a major contributing factor to blame cultures.’
Department of Health and Social Care (DHSC), 2021: para 40
The issue of defensive clinical practices resulting from our present adversarial tort-based compensation system is a vexed one and was also raised in the report with several differing views being expressed on it.
‘While it is possible to construct an argument that adopting an “avoidable harm” or “no-fault” compensation scheme could bring about some benefit in terms of patient safety (e.g., through removing a disincentive to disclosure) or claimant experience, we cannot say this with any certainty, considering the limited evidence available and the inevitable difficulties in translating findings across different health systems. Some of these benefits are being achieved in this country through different means. We are also not aware of direct evidence that fear of the current claims process is discouraging NHS staff from disclosing incidents.’
DHSC, 2021: para 29
The jury is still out when we ask whether our current clinical negligence compensation system encourages defensive clinical practice. This can take many guises, such as hiding errors, not giving patients proper information, curt, evasive explanations, under-reporting, or even ordering tests ‘to be on the safe side’, to avoid the possibility of litigation. There is no need to do all this to stave off litigation. This is because the benchmark for clinical negligence claims is a high one: the Bolam standard. This gives nurses and doctors a wide margin of discretion within which to act. Practising defensively is an unnecessary exercise and a waste of scarce healthcare resources.
‘The effect of the Bolam decision is that it is difficult to show a doctor breached the duty of care … It would be necessary to show that there is no responsible body of medical opinion that would have approved of acting in that way.’
HSCC (2022) advocated moving to a lower claims threshold standard for the purposes of the proposed new administrative body and its dealings with claims.
‘Firstly, there needs to be a change in the law so that access to compensation is based on agreement that correct procedures were not followed and the system failed to perform, rather than the higher threshold of clinical negligence by a hospital or clinician. Whilst this widens the pool of people entitled to compensation, the evidence from countries that have adopted such an approach is that overall costs will be lower not higher.’
I would argue, as stated in my past columns, that the present tort-based clinical negligence compensation system and Bolam work well as an effective dispute resolution mechanism. The system has stood the test of time and has proved to be flexible, as pointed out in Bar Council's (2021) evidence to the HSCC litigation reform inquiry.
Our tort compensation system that deals with clinical disputes is also the dispute resolution system for other areas of negligence such as solicitors, surveyors and all the other professions outside health care. In discussing legal system reform, we do need to ask ourselves why we should treat patients injured by their carers differently to those injured by a defective building or at work.
This question was posed in evidence given to the inquiry. There is also, I would argue, an important deterrence aspect to our present clinical negligence compensation system. The threat of litigation by itself, as a matter of sound common sense, should cause some people to reflect more on what they do. Professionals should think about the legal consequences of their actions—they take out professional indemnity insurance for this very purpose.
It could also be argued that anxiety and stress are not necessarily bad things. A positive side to these is that they can inhibit the development of complacent attitudes to patient safety risk.
Considering CQC prosecutions
The themes and concepts addressed in the HSCC (2022) report can be seen to have been thrown into a stark light by recent CQC prosecutions of an NHS Trust for the deaths of two patients in its care (CQC, 2022).
While NHS litigation reform measures are being discussed and developed, I would argue that policy developers and reformers need to reflect on what is happening around them in terms of patient safety crises and unfolding events. It is important to keep reform debates, relevant, well grounded and capable of dealing with problems being identified.
Conversely, an argument could be made that the events at Shrewsbury and Telford are best viewed as outliers—that these sorts of patient safety failings resulting in death are rare occurrences and should not be viewed as a backdrop to NHS litigation reform. I would wholeheartedly disagree. There has been a long line of patient safety crises over the years that have resulted in serious and sometimes fatal injuries to patients. I have covered many of these in my columns over the years.
In May 2022, Shrewsbury and Telford Hospital NHS Trust was ordered to pay a total fine of £1 333 334 and £42 378 costs to the CQC. The CQC brought the prosecution using its powers under regulations 12 and 22, Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The CQC can be seen to be using its prosecution powers more frequently in recent times. The death of Mohammed Ismael Zaman (known as Bolly) was through poor dialysis care:
‘When a patient receives dialysis, their connection lines must always be visible, however this did not happen in this case. The trust also failed to ensure that their staff were adequately trained to follow best practice guidelines regarding the connection lines being secured to his bed, which may have resulted in them becoming disconnected. He was found by staff bleeding heavily from a disconnected line, resuscitation was attempted but was unsuccessful, sadly Bolly died.’
In relation to the death of Max Dingle:
‘On 3 May 2020, Max was found trapped in the bariatric bed and died shortly afterwards. The trust failed to train staff in the setting up of bariatric beds and this led to the entrapment of Max.’
These patients died avoidably at the hands of people who were meant to care for them. What happened to them, in the words of CQC (2022), was ‘the most serious avoidable harm possible’. The harm caused had deadly consequences.
The trust at the centre of the prosecution is unfortunately no stranger to patient safety controversy and the Ockenden (2022) report on maternity care failings still resonates in many people's memories. No doubt this will have shaken again the confidence of many patients.
All this compounds the need for trusts and the NHS to further their efforts in developing a meaningful and effective NHS patient safety culture, to make sure that lessons are learnt from these and other tragic patient safety events.
Muting the clarion calls for litigation reform
The CQC (2022) prosecutions work to somewhat mute the arguments made in the HSCC (2022) report about the unsustainable cost of clinical negligence litigation against the NHS and that the present tort-based clinical negligence compensation is broken. I don't think the arguments are sufficiently made to fundamentally reform the system.
The reported events at Shrewsbury and Telford stand out resolutely as the most alarming reminders of what can and does go wrong in NHS patient safety. They show how much we need and depend on the law to provide effective redress for the most fundamental of all wrongs caused to a person, their avoidable death.
When we discuss the HSCC report we are largely talking about the civil justice system. The CQC prosecution represents a dramatic step up in seriousness and consequence for patient safety error. We are talking here about the criminal law being used and all that is associated with it. The criminal law can impose fines, as in the case of Shropshire and Telford, but fines are blunt instruments. Culture change cannot happen overnight, it cannot be mandated. It is an iterative process that requires shared learning and decision-making. I would also argue it requires a shared blame environment and not a ‘no-fault’ one.
Nurses and doctors have a professional and personal responsibility for the errors that they make. This can go hand in hand with system errors, understaffing and so on, but they should not be able to shirk their professional and legal responsibilities for making errors. If they have made a mistake, then they need to take personal responsibility for this, as well as their employers. Blame and fault attribution can be viewed as positives, they are not altogether bad concepts.
Learning from error needs to take place on a personal and professional basis, as well as on a system-wide NHS basis. Learning must begin at home.