The NHS in England has what can be termed a patient-safety-policy development, guidance-implementation roundabout. Successive governments have brought in many commendable patient safety policies and guidance publications. Some of these, however, can be seen to have fallen on fallow ground in parts of the NHS.
In some places there is a stubborn and persistent reluctance to change healthcare practices, even in the light of adverse patient safety events occurring. An overtly defensive and blame-ridden culture when errors are made pervades some areas of the NHS. Failure to change and to learn from the errors of the past has resulted in cases of clinical negligence, formal complaints and Care Quality Commission (CQC) investigations.
Culture change does not happen overnight
It is true to say that cultures do not change overnight but, in the case of the NHS, we are talking about decades. Some things never seem to change, and the same patient safety errors can be seen to be repeated time after time. Persistent and lamentable failures in patient safety continue to take place.
The complexity of modern health care and the complex needs of patients, which depend on the exercise of personal and professional judgments of nurses and doctors, means that some errors will always be made. Nobody is infallible. The best we can do is to try to manage risk effectively and as the World Health Organization (WHO) (2021) has stated, adopt a zero-risk mindset:
‘Make zero avoidable harm to patients a state of mind and a rule of engagement in the planning and delivery of health care everywhere.’
Learning from cases and reports
To further develop reflective professional practice and advance patient safety, we can learn a lot from clinical negligence cases, complaints cases and CQC investigation reports. They are essential patient safety learning tools. They provide a real-time view of how well-crafted patient safety and health quality policies are not, in some places, having their desired effect of securing the safety of patients. They present in themselves an urgent and imperative need for change.
Best practice guidance
Getting it Right First Time (GIRFT) and NHS Resolution have collaborated to produce a new best practice guide to help trusts learn more from NHS negligence claims and to improve patient safety (Machin et al, 2021). This guidance gives a recommended structure for learning from clinical negligence claims and examples of best practice are given. A YouTube video has also been produced on the key points of the guide (https://youtu.be/ZA569uoWW6s).
Some background context to clinical negligence claims is given in the guidance:
‘Clinical negligence claims are an ever-increasing burden in the NHS, with the annual cost of harm amounting to £8.3 billion in 2019/20.’
The guidance further states:
‘Our intention is to support the engagement of clinicians in this process to maximise patient safety and curb the increasing cost of litigation. This guidance will provide a framework to deliver this.’
It is not all about saving money
It is important to remember that the impetus for learning from litigation claims is not just about saving the NHS money. Yes, clinical negligence claims are an increasing burden on the NHS but, at the same time, there are some more holistic issues to bear in mind. Money can never properly compensate a patient for the loss of a faculty, amenity or a life, it is a poor compensator. There are also emotional costs for all involved.
The claimant patient is also arguing that they have been avoidably harmed by those who were meant to care for them. They have a right to bring a compensation claim and the court awards compensation if the patient proves their case. Tort damages are designed to put the patient in the position that they would have been in if the harm had not occurred—so far as money can do this. The patient is not ‘winning compensation’ as some newspapers might suggest. They are receiving compensation for ills suffered, as is their right.
Focus of the guidance
The guidance equips trusts with an essential and well-reasoned framework to assist with their learning of lessons from clinical negligence claims. Several strategies are discussed and there is some discussion of common clinical negligence litigation themes.
Engaging clinical staff
Trust legal teams, the guidance states, benefit hugely from clinicians having an input into claims management. The same is also true in reverse: clinicians benefit from learning more about the legal processes. This helps to demystify the legal process. There is a need for trust legal teams to increase their visibility to clinical teams when they are not involved in a claim. This will reduce the stigma around discussing claims to improve patient care:
‘The emphasis should be on avoiding the attribution of blame and instead focus on the analysis of claims to determine the cause and the focused improvement that could prevent the incident arising in the future.’
Case studies are an excellent way of showing what can be done to improve and embed patient safety learning from claims. Best practice case studies include Moorfields Eye Hospital NHS Foundation Trust's clinician-led claims learning improvement project. Elements of the project included:
- Dedicated clinical staff with allocated time to facilitate claims learning
- Thorough review of claims, including all documentation to facilitate claims learning
- Investigation of claims given parity with investigation of serious incidents.
Impact of claims learning on clinical practice
The guidance identifies some common themes that have emerged in clinical negligence claims. This is invaluable real-time patient safety information from the NHS working environment that should permeate through all trusts' patient safety improvement policies and teaching and learning strategies.
Consent for elective procedures
The guidance states that a significant proportion of clinical negligence claims are directly or indirectly related to the consent process, especially so in surgical specialties:
‘It is vital that the consent process is a journey that starts from the moment the patient is first seen for their presenting symptom rather than an isolated event that takes place prior to the proposed procedure.’
The guidance states that alternative options must be discussed, including the option of no treatment. There is reference made to the principles of the ‘three-legged stool’ approach to consent that has been proposed by the British Association of Spinal Surgeons:
‘This model consists of three distinct aspects to consent, all of which support the whole consenting process, and none of which are of any value in isolation: information booklets, patient-centred dialogue and procedure specific surgeon guided consent form …’
Surgeons should make patients aware of national guidelines on treatment choices.
Written consent itself should be obtained ideally, the guidance states, 2 to 4 weeks before the procedure in most cases.
Clinical documentation
The guidance states that the law firms that advise trusts find it difficult to defend them where records are poor and incomplete. GIRFT is preparing documentation guidance for high-volume or high-risk procedures. Poor clinical documentation is a recurring key patient safety risk theme. Record-keeping must be seen as a professional and reflective skill.
Timely access to diagnostic investigations
The guidance states that ‘failure or delay in diagnosis’ are terms that are commonly seen:
‘Often this can be attributed to investigations not being performed in a timely manner. In spinal surgery, missed cases of cauda equina syndrome are a significant cause of litigation, with 25% of projected claims costs between 2014-2016 (£68 million) being related to this. These cases can be missed due to lack of availability of a MRI scanner outside normal working hours.’
Never Events: safety checklists
The guidance states that Never Events such as ‘wrong site surgery’ and ‘retained foreign body post-procedure’ still feature in clinical negligence claims and are significant incidents.
NHS Resolution provides a rich source of information on patient safety generally and in relation to clinical negligence litigation.
Parliamentary and Health Service Ombudsman case reports
The Parliamentary and Health Service Ombudsman (PHSO) provides an excellent resource that can be used for patient safety education and training concerning complaints made against the NHS in England. The decisions contained are a valuable patient safety teaching and learning resource (PHSO, 2021).
CQC investigation reports
CQC reports are another invaluable source of patient safety teaching and learning material. The CQC recently published an inspection report on Gloucestershire Hospitals NHS Foundation Trust (CQC, 2021a) and found several examples of outstanding practice:
Other reports reveal the need for urgent improvements, as at the Princess Alexandra Hospital NHS Trust's urgent and emergency services (CQC, 2021b).
Conclusion
These reports provide real-time, valuable patient safety teaching and learning material. Good quality patient safety information is out there and when it is accessed, we can see that many problems are being repeated in the cases discussed. The NHS can be seen to be on a patient-safety-policy development, guidance-implementation roundabout.
Hopefully, this cycle will be broken as the NHS moves towards further implementation of the NHS Patient Safety Strategy and the National Patient Safety Curricula and Syllabus takes root (NHS England/NHS Improvement, 2019). The publications of all the organisations discussed will be essential to the effectiveness of the NHS patient safety strategy.