In the new NHS Patient Safety Strategy, (NHS England and NHS Improvement, 2019) there is a discussion of patient safety education and training. This makes the point that although safety is now better understood there are significant numbers of people who still have a limited understanding of ‘safety science’. A commitment is made to have a universal patient safety syllabus and training programme for the whole of the NHS. Health Education England (HEE) will have a pivotal role:
‘HEE will work with NHS Improvement and NHS England to produce the best informed and safety-focused workforce in the world. Developing a consistent national patient safety syllabus to apply across a variety of competence levels and address the different learning needs of 1.3 million staff in 350 different careers is an enormous undertaking.’
Developing a national patient safety syllabus will be challenging given the various health professions working in the NHS. Syllabus developers will also need to take into account the huge number of national and international patient safety stakeholders that exist, with many having competing education and training policy agendas.
The development of patient safety education and training is an essential prerequisite to developing an ingrained NHS patient safety culture. NHS England and NHS Improvement (2019) give some potential modules for a national patient safety syllabus (from the Academy of Medical Royal Colleges patient safety syllabus). These are: systems approach to patient safety, learning from incidents, human factors and safety management, creating safe systems, being sure about safety.
‘All staff will follow the same syllabus. However, working with system partners, HEE will ensure that this high quality patient safety training is available to staff at an appropriate level, from an introduction to patient safety for staff new to the NHS to specialist training modules for our proposed patient safety specialists and others who are interested.’
Is patient safety a science subject?
I think it is possible to take issue with the term ‘safety science’ used in the strategy. Surely any national patient safety syllabus should also reflect the humanities and social science subjects? Patient safety is by no means a purely science-based subject. Healthcare ethics and law also should have a place in any proposed syllabus. Looking at the broad headings of the Academy of Medical Royal Colleges patient safety syllabus there are key areas where healthcare law and ethics can make an important contribution.
The dangers of working in subject conceptual silos was well articulated by the National Audit Office (NAO) in its report on managing the costs of clinical negligence in trusts, where it was argued that the government needed to take a stronger and more integrated approach to fundamentally change the biggest drivers of increasing cost across the health and justice systems (NAO, 2017). More joined-up, holistic thinking between government departments and other agencies was needed to share solutions and challenges. It appears this message has been taken to heart, with different government departments discussing together clinical negligence issues since then.
The law as a mechanism of accountability
Law is inextricably linked to the subject of patient safety in several different ways. The nurse or doctor is accountable to their employer, the patient, the registration body and also to the law. They could be asked to account for their actions in a civil court if negligent. If they commit the offence of gross negligence manslaughter the maximum sentence available is life imprisonment.
‘Gross negligence manslaughter is a common law offence. The offence is indictable only. The circumstances in which this offence may fall to be considered are almost infinitely variable but the most frequently encountered occur in the following contexts: Death following medical treatment or care; the offence can be committed by any healthcare professional, including but not exclusively doctors, nurses, pharmacists, and ambulance personnel.’
The role of health regulators such as the Care Quality Commission and other health organisations is also subject to the review of the courts and they can be legally challenged. The whole NHS is structured through legislation and litigation takes place at a number of levels to test such issues as the powers and decision making of NHS bodies. The outcome of all this is a rich body of health case law and legislation.
Possible syllabus topics
A look at any health law text book will give a number of possible topics that could well be included in any national patient safety syllabus. A favourite medical law and ethics teaching textbook that I use is Herring (2018) and general subject headings include:
The area of healthcare law has sufficiently developed so that there are past litigation cases to cover most clinical areas and types of health care service delivery.
Teaching case study: the nurse as Good Samaritan
I have found in introducing tort law to nurses and general law undergraduates that the concept of the Good Samaritan in English law is a good topic to start with. It brings together a number of interesting dynamics such as the role of the Nursing and Midwifery Council (NMC) and distinguishing between the professional and legal duties of the nurse. The subject also introduces the role of legislation (statutes) and the common law (cases). Once the links are established I can then move on to discuss negligence and consent to treatment, which lie at the heart of patient safety issues.
The law and the professional code
The law of tort would not impose a legal obligation on a passing adult to rescue a drowning child in a village pond. That is the general rule subject to some caveats such as whether the child was in the actual care of that person or that person created the situation or made it worse:
‘In short, the exclusionary rule operates to prevent a duty being owed in respect of omissions. Lord Goff stated clearly in Smith v Littlewoods [1987] that ‘the common law does not impose liability for what are called pure omissions’ (at 271). If there is no duty, there can be no liability, so no compensation for harm(s) caused by the failure of someone to do something.’
So, in strictly legal, common law terms a nurse walking home one evening could walk past a person in distress and do nothing. The NMC, however, would take a different view and would impose a general professional duty on the nurse to act, which is higher than the legal duty. Clause 15 of the NMC (2018)Code states:
‘Always offer help if an emergency arises in your practice setting or anywhere else
To achieve this, you must: 15.1 only act in an emergency within the limits of your knowledge and competence
15.2 arrange, wherever possible, for emergency care to be accessed and provided promptly
15.3 take account of your own safety, the safety of others and the availability of other options for providing care.’
A nurse could therefore be struck off for failing to act as a ‘Good Samaritan’. A difference between legal and professional and moral responsibilities is highlighted here.
Tort issues
Once the nurse stops and helps then a legal duty of care in the tort of negligence flows from this positive act of stopping and helping. If first aid is given negligently then the nurse could be sued for damages. Furthermore, a nurse on their way home and rescuing somebody would not be acting in the course of their employment so their employer would resist the imposition of vicarious liability, hence the importance of taking out professional indemnity insurance.
Other laws in the mix
The common law of tort can be seen illustrated against the backdrop of Good Samaritan practices and the Code. We can also add a statute into the mix, which is the Social Action Responsibility and Heroism Act (England and Wales) 2015. The Act is designed to encourage people to participate in socially useful activities and action and gives some factors that a judge must take into account when determining, for example, a first aid negligence claim. One of these factors is:
‘Section 3, Responsibility: The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others.’
The Resuscitation Council (UK) (2018), in considering issues around out-of-hospital cardiopulmonary resuscitation, gives an overview of health professional liability:
‘The bottom line here is that, provided resuscitation procedures are performed correctly and in accordance with current guidelines, it's unlikely that a successful claim could be brought. Liability is only likely to arise if procedures are carried out incorrectly, or in inappropriate circumstances, and with disregard to accepted practice and guidelines.’
Conclusion
The law sets the framework and context within which health care is delivered. It sets levels of competence and can impose imprisonment in some circumstances for failures as well as ordering compensation to be paid. It is both a punitive and a facilitative framework. The law safeguards, protects the weak or incapacitated and advances human rights in health care. The courts are frequently asked to make life and death decisions in healthcare treatment disputes. The role of law is patently fundamental to any discussion of patient safety and it should occupy a prime position in any national and local patient safety education and training syllabus. The Resuscitation Council (UK) (2018) publication shows how relevant the discussion is in emergency care.