References

Troubled maternity wards still jeopardising patients, watchdog warns. 2021. https://www.theguardian.com/society/2021/sep/21/troubled-maternity-wards-still-jeopardising-patients-watchdog-warns (accessed 1 December 2021)

Care Quality Commission. Safety, equity, and engagement in maternity services. 2021a. https://www.cqc.org.uk/publications/themes-care/safety-equity-engagement-maternity-services (accessed 1 December 2021)

Care Quality Commission. CQC prosecutes the Dudley Group NHS Foundation Trust following two patient deaths. 2021b. https://www.cqc.org.uk/news/releases/cqc-prosecutes-dudley-group-nhs-foundation-trust-following-two-patient-deaths (accessed 1 December 2021)

Care Quality Commission. CQC takes action at The Princess Alexandra Hospital NHS Trust. 2021c. https://www.cqc.org.uk/news/releases/cqc-takes-action-princess-alexandra-hospital-nhs-trust (accessed 1 December 2021)

Dyer C. Inquiry into maternity care at Nottingham trust to investigate if incidents were downgraded. BMJ. 2021; 375 https://doi.org/10.1136/bmj.n2749

elearning for healthcare, Health Education England. NHS patient safety syllabus (online training programme). https://www.e-lfh.org.uk/programmes/patient-safety-syllabus-training/ (accessed 1 December 2021)

Health and Social Care Committee. The safety of maternity services in England. 2021. https://publications.parliament.uk/pa/cm5802/cmselect/cmhealth/19/1902.htm (accessed 1 December 2021)

National patient safety syllabus 2.0: training for every member of staff across the NHS. 2021. https://tinyurl.com/5b623dhh (accessed 1 December 2021)

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Patient safety and the law: looking back and looking forward

09 December 2021
Volume 30 · Issue 22

Abstract

John Tingle, Lecturer in Law, Birmingham Law School, University of Birmingham, picks out some of the highs and lows of patient safety reports in the NHS in England over the past year

As we leave 2021 it is a useful exercise to reflect on some of the seminal patient safety publications and events of the year. When we think about progress towards developing a patient safety culture it is hard to feel particularly upbeat about progress so far, or the future. It has seemed for as long as I can remember that the NHS runs to stand still when it comes to patient safety policy development and practice. The NHS seems to make slow, almost circular progress in patient safety culture development. We can see this through the regular publication by the Care Quality Commission (CQC) of inspection reports highlighting major patient safety failings. In 2021 there has been a steady stream of them, on an almost daily basis.

Spotlight on maternity care

Poor and unsafe maternity care is a feature that stood out in 2021. Maternity care failings have dominated CQC reports and have featured in national media reports. The CQC has stated that there are many maternity units providing excellent care, however:

‘We remain concerned that there has not been enough learning from good and outstanding services—or enough support for that learning from the wider system. Issues such as the quality of staff training; poor working relationships between obstetric and midwifery teams, and hospital and community-based midwifery teams; a lack of robust risk assessment; and a failure to engage with, learn from and listen to the needs of local women all continue to affect the safety of some hospital maternity services.’

CQC, 2021a: 2

This is an acutely worrying catalogue of service failings and will cause concern across the whole NHS, and society generally. The worry and distress currently being felt by pregnant mothers and their partners who live in areas where maternity crises have happened must be incalculable. Where else can they practically go to have their baby apart from their local hospital if they are worried about the birth and safety? What else can they do?

Campbell (2021) reported on this issue, noting several maternity crises that have involved major patient safety and quality of care issues, over several years. He names such trusts as Morecambe Bay, East Kent and Shrewsbury and Telford. Cases of poor maternity care are still coming to light with several trusts having major issues (Dyer, 2021) and there is worrying variation in terms of patient safety, quality and risk, as the Parliamentary Health and Social Care Committee (2021) stated in a recent report. The fallout in terms of reputational damage to the NHS, both locally and nationally, is severe.

Other clinical care areas

It is not only in maternity care that major patient safety issues have been highlighted. In 2021, CQC inspection reports and news releases provided a steady stream of worrying insights into major patient safety failings in hospitals and other care organisations across England.

One news story noted a criminal prosecution by the CQC against the Dudley Group NHS Foundation Trust (CQC, 2021b). The prosecution was brought following incidents where two patients died after being exposed to, the report states, ‘avoidable harm’ at Russells Hall Hospital, Dudley, West Midlands. One case concerned a 33-year-old woman who died because of multiple organ failure caused by severe infection; the other case was a 14-year-old girl who died from a build-up of fluid on her brain and sepsis, 5 days later. The trust was fined over £2.5 million after pleading guilty to failing to provide safe care and treatment to the two patients, causing them avoidable harm.

Sadly, there is no shortage of CQC inspection reports reporting dire and unforgivable patient safety failings. For example, one report concerned failings at the Princess Alexandra Hospital NHS Trust in Harlow, Essex (CQC, 2021c) and says that CQC inspectors had to intervene to make sure two patients with deteriorating conditions were treated. I have never heard of that happening before. The CQC has told the trust that the quality of its urgent and emergency, maternity and medical services need to improve. The improvements that must be made in urgent and emergency services include:

  • There must be enough numbers of suitably qualified, skilled, and experienced nursing staff to meet the needs of patients
  • The trust must complete a review of clinical risk assessments, care planning and physiological observations to ensure patients’ needs are individualised, recorded and acted upon
  • Every patient must have an initial assessment of their condition (CQC, 2021c).

Improvements identified for medical services were:

  • Patients at risk of falls and pressure ulcers must be assessed and appropriate measures taken so they are not placed at harm
  • Patient records must be completed in a timely manner (CQC, 2021c).

An NHS under severe pressure

Yes, we accept as a society that NHS services are working under severe pressures and we can add COVID-19 to the mix. However, not completing patient records in a timely manner, not assessing pressure ulcers and falls, and improper triage and assessment are basic patient failings and are unforgivable by any measure of the word. To compound matters, I have seen these failings reported many times before in previous inspection reports involving other trusts and in other patient safety publications. These are by no means new problems for the NHS.

Some positive highlights

There have been some positive developments in 2021, such as the publication of the Global Patient Safety Action Plan 2021-2030 (World Health Organization (WHO), 2021) which has some refreshing and galvanising provisions to kickstart and accelerate patient safety across the world, and a clear structure:

‘The global action plan provides a framework for action through seven strategic objectives and is further elucidated through 35 strategies, five under each of the strategic objectives, to create a seven by five matrix.’

WHO, 2021: vi

The seven strategic objectives (SOs) of the Global Patient Safety Action Plan include:

  • SO1: Make zero avoidable harm to patients a state of mind and a rule of engagement in the planning and delivery of health care everywhere
  • SO2: Build high-reliability health systems and health organizations that protect patients daily from harm. (WHO, 2021:vi).

The first of these is a bold and welcome objective and presents an excellent patient safety mindset to adopt. You could well be criticised as being too unrealistic were you to say, for example, in a clinical guideline that your aim is to have on your ward zero pressure ulcers in 2022. We know that pressure ulcers can be caused by several conditions and are not totally preventable, though we can minimise the risk of them happening.

We are all fallible and adverse healthcare events can happen despite the very best of our efforts. Stating an ambition of zero harm is both aspirational and at the same time inspirational. It is an excellent mindset to work in, it sets challenges and is a constructive way forward in patient safety thinking. There is much to commend in the global plan and it should be read by all those who are concerned with patient safety and health quality.

Patient safety syllabus 2.0

Another 2021 positive patient safety highlight was the publication of the national patient safety syllabus (Spurgeon and Cross, 2021), which will work to develop a patient safety culture in the NHS. The problem is: how do we teach and train NHS staff in patient safety? In general, this seems to go on in a fragmented and variable way in terms of extent and quality of provision.

The patient safety syllabus will work to focus hearts and minds and the roll out will hopefully engage staff in looking at the issues further, ideally becoming patient safety champions, which is what our system so urgently needs. So often patient safety policies seem reactive, being introduced after a crisis. There is a need for the system to be more proactive and forward looking.

Law and the patient safety syllabus

In version 2 of the syllabus, it is good to see some law included in the content. Given the costs of clinical negligence to the NHS, which runs into billions of pounds, it would have been unthinkable not to include subjects such as clinical negligence and consent to treatment. This has now been done and the syllabus is now fit for purpose.

Section 1.6 deals with medico-legal education and professional responsibilities and includes sections on:

  • Ethical and clinical issues involved with patient care, including the withholding or withdrawal of care, and the rights of the patient to refuse care
  • Legal requirements in patient confidentiality and information governance
  • Legal issues surrounding clinical negligence, compensation and the accountability of individual practitioners.

Level 1 and Level 2 of the syllabus have now been published (elearning for healthcare and Health Education England, 2021)

Level 1 is the launch point for the syllabus and gives the patient safety essentials. Level 2, access to practice, provides more detail on patient safety for those who wish to know more or who wish to access the higher levels of syllabus training.

Conclusion

Although it has not all been doom and gloom this year on the patient safety front, there is no room for complacency. There have been positive developments but the steady stream of dire CQC reports remain an acute cause for concern. The recent CQC prosecution in the criminal courts of an NHS trust and the resulting fine of over £2 million should rightly send shockwaves through the NHS (CQC, 2021b).

It is a positive thing to see the CQC prosecuting more trusts as that shows that the governance and regulation system of the NHS will not tolerate poor care standards. On the other hand, it is frightening—there is no other word for it—to see the terrible patient safety failures that can and do happen. Vulnerable patients, trusting those who are meant to care for them, die because of avoidable errors.

I do hope that as we move into 2022 we will see fewer clinical negligence cases and few CQC inspection reports showing gross patient safety failings. Unfortunately, if we look at the trends of previous years, I am not all that hopeful. For many years the NHS has and is still struggling to develop an effective patient safety culture and many of the same errors stubbornly persist. Hopefully with the patient safety syllabus and the other initiatives discussed in my columns this year, the tide will start to turn for the better.