Patient safety has become a large national and international service industry with many stakeholders, all keen to advance their own agendas. Nurses and others concerned with patient safety policy making and practice will need to sift out which guidelines and publications to follow, which are more authoritative and relevant to their practice. There will often be different views expressed.
Professional updating has become increasingly difficult over the years as the patient safety body of literature has grown and many healthcare staff are busy working in environments where there could be more resources. Learning is also hampered by a fragmented and complex regulation and governance infrastructure. We can add to this mix with the need for nurses and others to be aware of and learn from the reports of investigations into NHS patient safety crises – both published and in the pipeline.
Principles of better patient safety
The Patient Safety Commissioner (PSC) recently published a consultation paper on draft principles of better patient safety (PSC, 2024a). The principles will act as a guide, the PSC states, for senior leaders for the design and delivery of safe care and the reduction of avoidable harm. They will provide a clear framework for decision-making, planning, and collaborative working. Patients will be partners in this process. The principles will be also relevant for healthcare providers, commissioners, regulators, manufacturers, and the broader supply chain. In a blog, Henrietta Hughes, the PSC, shared the thinking behind the principles:
‘When I took up post as Patient Safety Commissioner in September 2022, I found that some patient safety organisations had developed their own principles relevant to their own activities. Health is a complex, adaptive system which is currently siloed and disjointed. By working to a shared set of principles to guide our decisions, we have the opportunity to do things differently, and better.’
The proposed principles are (PSC, 2024a):
Looking at these principles nobody in health care could sensibly disagree with them, they should be followed by all today. We have seen, however, in past investigations of patient safety crises that this has not always been the case. These principles are also reflected in places such as the NHS Constitution and codes of professional conduct. Having an overarching shared set of patient safety principles is useful as these will be more readily accessible. They should have greater public and professional NHS visibility and are to be welcomed.
A warning from the Ombudsman
The Parliamentary and Health Service Ombudsman (PHSO) (2024) has recently warned of a surge in maternity investigations and is urging the Government and NHS leaders to learn lessons from these and protect more families from harm:
‘In 2023/24 (1 April – 31 March) the PHSO investigated 87% more cases (28) about maternity care than the previous year (15). These are all cases which have already been investigated by the NHS and where they failed to address concerns.’
Patient safety issues identified in investigations included delays to treating infection and carrying out an MRI scan, failing to manage an epidural during a caesarean section, and lack of consent to a procedure.
Adult inpatient survey 2023
To know where you are going you have to know where you have been and the annual adult inpatient survey published by the Care Quality Commission (CQC) helps in this regard. Several key questions gather important patient feedback on services provided and comparisons are made with previous years. A detailed look provides insights into how satisfactorily nurses and doctors communicate with patients, and other aspects of hospital stays. The headline finding in the latest report (CQC, 2024) is that people's experience of inpatient care has deteriorated since 2020. The report states 42% of planned-care patients reported that they would have liked to have been admitted to hospital earlier; 33% felt they waited too long for a bed on a ward, and 43% felt their health worsened while waiting. However, there are positives as well as negatives. In terms of interactions with hospital staff, 82% of respondents felt they were ‘always’ treated with respect and dignity while in hospital. Three-quarters (75%) of respondents ‘always’ felt included in conversations about their care by both doctors and nurses and 79% felt staff involved them in decisions about their care and treatment to some extent. Confidence and trust in nurses and doctors remain high.
Clinical Negligence Claims Agreement 2024
NHS Resolution has recently published a new Clinical Negligence Claims Agreement for 2024. The agreement relates to how clinical negligence cases in England are conducted between the parties to it. This will cover those lawyers who are acting for claimant patients and those acting for defendant hospital trusts and others. The idea behind the agreement is to build on existing collaborative practices that took place during the COVID-19 pandemic in light of the social distancing restrictions. Before discussing the content of the agreement (NHS Resolution, 2024a) it is important to add some general context on clinical negligence claims.
Problems with litigation
We often hear about the problems with the existing fault-based compensation arrangements – that our adversarial system encourages defensive clinical practices, is too expensive and does not help advance a patient safety culture. The NHS Ligation Reform Inquiry, chaired by Jeremy Hunt, was a deep dive into how patients are compensated for clinical negligence and the surrounding context (House of Commons Health and Social Care Committee (HCHSCC), 2022). A close link between patient safety and clinical negligence litigation was made in the report, which called for reform – the Government response is still awaited.
‘Our central recommendation is therefore that the NHS adopt a radically different system for compensating injured patients which moves away from a system based on apportioning blame and prioritises learning from mistakes. An independent administrative body should be made responsible for investigating cases and determining eligibility for compensation in the most serious cases.’
The inquiry took expert oral and written evidence from various patient safety stakeholders, patients, lawyers, clinicians, NHS organisations and others. The view was advanced that adversarial litigation makes learning from mistakes harder not easier. A focus in the HCHSCC report was on learning lessons from past clinical negligence cases. The report is an excellent one because of its depth of analysis and the interesting perspectives given by those who submitted evidence to it. However, there are two sides to every story, and not all would agree with the recommendations made and views expressed.
The law and patient safety
Arguably our present clinical negligence compensation system can be said to work effectively. It can be seen as a useful mechanism of accountability and transparency. There is also an argument that we should not be using clinical negligence litigation to develop a patient safety culture, they are two separate and distinct things.
Lawyers, when they embark on a case, aim to obtain compensation for their client, to win a case. Their focus is on the case before them and not on systemic NHS patient safety reform. There are limits to the relationship that can be seen to exist between patient safety and the law. These themes were discussed in the inquiry report (HCHSCC, 2022) and in some of the evidence submitted.
Content of the new agreement
The aim of the new agreement is given as:
‘It is intended that this Agreement will continue to encourage positive behaviours from both claimant and defendant lawyers and organisations as well as consistency of approaches in practices around England.’
Areas covered include limitation and extensions of time, disclosure, service of court documents, settlement meetings and mediations and key legal practice matters. It covers saying sorry and patient safety lessons:
‘The letter of apology in those cases where admissions have been made should also identify any patient safety lessons that have been learnt from the case and any measures that have been put in place as a result, as well as any lessons from the investigations conducted. It should be borne in mind that while NHS Resolution can encourage its members to comply with this provision it cannot mandate its members to provide either apologies or patient safety lessons learnt.’
This clause maintains an excellent potential to advance the realisation of a proper NHS patient safety culture through lesson learning from negligent treatment and care cases.
The agreement is to be welcomed as it shows the significant level of co-operation that exists between parties to clinical negligence litigation. We have an adversarial fault-based compensation system but also a focus on co-operation between the lawyers and others. We also need to factor in that most cases are resolved without resorting to legal proceedings:
‘In line with NHS Resolution's strategy to keep patients and healthcare staff out of court, a record 81% of claims in England were resolved in 2023/24 without resorting to legal proceedings, continuing a trend seen over the last seven years. This means that over 10,800 claims were resolved for patients and their families through our various dispute resolution processes rather than formal legal processes.’
Conclusion
It is a notable facet of the discipline of patient safety that a significant number of important reports and publications are produced on a regular basis. This is to be welcomed as it shows the area is an active and vigorous one, vital to the health of our nation. The reports discussed above show in real time the patient safety problems that currently beset the NHS and the relationship with clinical negligence litigation. Our adversarial fault-based system of legal redress for clinical negligence has well documented advantages and disadvantages, excellent steps have been taken by key stakeholders to fine tune legal processes.