Reporting from NHS organisations has continued during the COVID-19 pandemic. NHS Resolution and the Care Quality Commission (CQC) are two bodies giving important information about the quality of NHS care, patient safety problems and resulting litigation. At one end of the spectrum we have the CQC investigation reports, which reveal the poor clinical practices from which formal legal claims for compensation may result. At the other end are the NHS Resolution annual reports, which contain the summative details of the costs and nature of legal claims settled. Together, they reveal the full nature of the NHS's patient safety problems.
NHS Resolution annual report
One of the functions of NHS Resolution is to manage litigation claims brought against the NHS organisations. This position gives it a unique overview of NHS clinical negligence, complaints and patient safety trends, challenges and opportunities. NHS Resolution has been a consistent feature of the care landscape for two and half decades, but in that time it has regularly had to extend its functions to deal with the seemingly ever-changing NHS care environment.
The annual report (NHS Resolution, 2020) presents a real-time view of where the NHS is financially and practically with litigations claims and patient safety issues among other matters. NHS Resolution always provides in its annual report a financial estimate of liabilities for current and future legal claims, and the latest figure given is £84.1 billion:
‘This is the value of liabilities arising from incidents that occurred up to and including 31 March 2020, both in relation to claims received and our estimate of claims that we are likely to receive in the future from those incidents which have occurred but have yet to be reported as claims.’
Facts and figures
In 2019/20 NHS Resolution received 11 682 new clinical negligence claims and reported incidents, compared with 10 684 in 2018/19, an increase of 998 (9.3%). Of the 15 550 claims settled in 2019/20, 71.5% were settled without proceedings, 27.9% with proceedings and 0.6% at trial.
The top three categories of clinical claims received in 2019/20 by value and number are obstetrics, emergency medicine and orthopaedic surgery. Maternity always stands out in these reports as the area with the highest cost:
‘Obstetrics claims remain the largest proportion, 50% of the total estimated value, while only representing 9% of the volume of claims received. Our focus continues to be on maternity claims because of this.’
The report states the cost of settling claims in 2019/20 reduced by £103 million to £2.3 billion on long-standing schemes. An additional £61.4 million was spent on settling general practice claims. Overall, the proportion of claims settling with damages increased by 1% compared with 2018/19.
The report is a detailed one spanning 216 pages and there is also a section discussing some important court cases covering such matters as confidentiality, wrongful birth, expert witnesses and fraudulent claims. In terms of what NHS Resolution is trying to do, its aims and objectives, the report overall is generally positive. NHS Resolution is making an effective contribution to properly managing NHS clinical negligence claims and is trying hard to develop a safer NHS through its patient safety activities.
Compensation for brain-damaged baby
JMW Solicitors (2020) discussed an obstetric negligence case the firm handled where failures by maternity staff resulted in brain damage to a baby. The £26 million compensation awarded by the court will have to cover lifetime specialist care and provide financial security. The delivery was not recognised as high risk and the report states that the midwife was not competent enough to manage the delivery of the baby on her own. Money is generally a poor compensator for clinical negligence claims—it can never adequately compensate for loss of faculty or amenity and a lost chance of ever having a normal life. The emotional impact and distress caused by these types of events is incalculable.
CQC reports
The Shrewsbury and Telford Hospitals NHS Trust maternity scandal has been well documented in the national media and attention is also now being directed to some other Trust care services. The Trust is currently facing the largest ever review of maternity care in the NHS.
‘The NHS has paid almost £50m [million] in compensation to parents whose babies died or were left with disabilities after care at the hospitals at the centre of Britain's largest maternity scandal … In total, 82 claims against the trust were made, with 52 cases settled at a total cost of £47.5m, including £39.2m in compensation. The vast majority of this money is used to cover the costs of caring for permanently disabled babies for the rest of their lives.’
In terms of other care services at the Trust, the CQC has just published two new reports, which make for uncomfortable reading (CQC, 2020a; 2020b). It is hard to understand why the failings that have been identified occurred in a modern, post-Francis Report NHS, and why poor care is perpetuating there. The failings identified by the CQC provide a stark reminder of the poor patient safety practices that can occur in trusts and can also possibly result in legal action being taken for compensation, should negligence lead to patient injury.
The Princess Royal Hospital
The overall rating for this hospital is ‘inadequate’. Some sample extracts show the dire nature of the issues reported. Under medical care (including older people's care):
‘Staff did not keep detailed records of patients’ care and treatment. Records were not always clear or up-to-date. This meant that care staff could not easily identify care to be given to individual patients. This had not improved since the last inspection. However, records were stored securely and easily available to all staff providing care.’
Staff did not always report incidents and the service did not always manage patient safety incidents well. On evidence-based care and treatment, the CQC (2020a) states that the service did not always provide care and treatment based on national guidance and evidence-based practice. In terms of staff competence, the service did not ensure that all staff were competent for their roles and this had not improved since the previous inspection.
The other report looks at the Royal Shrewsbury Hospital, with an overall rating of ‘inadequate’ (CQC, 2020b). The press release highlighting publication contains a useful summary of the issues and clearly conveys the CQC's frustration with events there. CQC's Chief Inspector of Hospitals, Professor Ted Baker, is quoted:
‘We have repeatedly called for intervention to support improvement at Shrewsbury and Telford Hospitals NHS Trust. Despite this the Trust has not resolved long-standing known issues, and poor patient care has been normalised. This situation must not continue. The trust has not responded satisfactorily to previous enforcement action.’
This is all a very poor state of continuing affairs, particularly so for the people who rely on the Trust for care services in its catchment area. The events also show how bad patient safety issues can get in the NHS, which as a whole has a history of failing to learn lessons from adverse events.
Mid and South Essex NHS Foundation Trust: Basildon University Hospital
Elsewhere, the unannounced CQC inspection of maternity services at Basildon University Hospital (CQC, 2020d) was carried out to follow up concerns raised by a whistleblower. Some examples of good practice were found but there were several serious failings identified. Six serious incidents occurred in which babies were born in a poor condition and then transferred for cooling therapy in March and April 2020. Clusters of these events raise concerns.
‘… High risk women giving birth in the low risk area, insufficient numbers of staff with the relevant skills and experience to keep women safe and provide the right care and treatment, and dysfunctional multidisciplinary team working which had impacted on the increased number of safety incidents reported. Additionally, incidents were not always graded correctly according to the level of harm, lessons learnt were not always implemented and care records were not always securely stored.’
Other cause for concern
The CQC's unannounced inspection at Basildon provides yet another example of NHS maternity care failings. Others recently reported include East Kent Hospitals, where the Healthcare Safety Investigations Branch found changes to improve patient safety were not happening fast enough:
‘A hospital was “inappropriately slow” to respond to repeated failings in its maternity wards, a report claims. A probe found “recurrent safety risks” in 24 cases, including the deaths of three babies and two mothers, at East Kent Hospitals since July 2018.’
Conclusion
NHS Resolution (2020) provides the latest clinical negligence cost figures and trends. Obstetric claims remain the largest proportion, 50% of the total estimated value. The reports discussed here can be seen to provide a spectrum of views on NHS patient safety. All show systemic patient safety failings stubbornly persisting in some quarters of the NHS. The reports starkly reveal the immense nature of the problems and challenges that the NHS must face in order to develop a sustainable, ingrained patient safety culture that puts the patient first.