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17 September 2019 0 Comments
Posted in Medical Negligence, Opinion

Patient safety matters – does the latest NHS Patient Safety Strategy do enough?

Posted by , Partner

Paul Rumley, partner in our Medical Negligence team, reviews the latest NHS patient safety strategy – will it do what is needed?

In July 2019 NHS England and NHS Improvement published the new NHS Patient Safety Strategy “Safer Culture, Safer Systems, Safer Patients” which in itself forms part of The Long Term Plan to improve the NHS in England and Wales. This was alongside the launch of an initiative to allow patients to record concerns about their medical care via a new digital service accessible through a smartphone.

Beyond the current initiative to modernise the NHS through digital technology, the strategy comes at a time when the NHS is faced by an increasing compensation bill from patients injured through negligence.

What are the highlights of the strategy?

  • There will be improved gathering of data upon patient safety, to improve the understanding of safety issues.
  • There will be a new Patient Safety Incident Response Framework (PSIRF) to improve the response to, and investigations of, incidents involving patient safety.
  • A drive to help patients, staff and NHS partner bodies to improve patient safety
  • Delivery of the Maternity and Neonatal Safety Improvement Programme to reduce stillbirths, deaths of babies and their mothers and brain damage to babies at the time of birth by 50% by 2025.
  • Delivery of a Mental Health Safety Improvement Programme.
  • Supporting safety improvement in priority areas such as the safety of older people, and those with learning disabilities.
  • Designing and delivering programmes which produce effective change in the most important areas of patient safety.
  • 11,000 patients die as a result of patient safety failures each year – older patients are more disproportionately affected.
  • Patient safety failures add a cost of at least £1 billion to the NHS every year – that is money no longer available for front-line treatment and care of patients.

It is also identified that getting patient safety right could:

  • reduce the annual clinical negligence claims bill of the NHS for brain damaged children cases alone by £750,000,000 per year;
  • save at least 568 lives per year;
  • save £65,000,000 per year within the current healthcare budget.

What can we welcome from the new strategy?

We can only welcome changes that aim to improve safety for patients on the NHS.

Whilst the strategy does not recognise this explicitly, patient safety is directly linked to the number and value of clinical negligence claims which the NHS faces: without negligent medical treatment, there can be no claim. This is something that claimant solicitors have been saying for a while, so it is good to see this from the NHS.

Patient safety is also now stated to be key to the NHS’s long-term plans, and integral to the NHS’s definition of quality in healthcare. They aim to achieve this in a number of ways, including as part of their digital strategy.

For example, the new digital reporting system for patient safety concerns will make it easier for patient safety data to be provided direct to the NHS.

Furthermore, digital collection of data, including tracking the management of serious incident reporting, will hopefully result in quicker and more detailed investigations and meaningful reports to patients as to how the same issues will be prevented from reoccurring.

These new systems will allow the NHS to learn lessons from what is happening when patients aren’t in hospital, for example when they are at home which is where they spend the vast majority of their treatment time.

Beyond digital means, there is also a stated aim to provide a progress report upon patient safety issues within the NHS annually, together with regular updating of the NHS Patient Safety Strategy.

Also, the new strategy is linked to the review of end of life care, and a new medical examiner system for the reporting of deaths.

All of this comes as a result of the World Health Organisation (WHO) global patient safety challenge.

So what doesn’t the new strategy deal with?

The new strategy unfortunately doesn’t deal with a number of issues within the NHS that are closely linked to patient safety.

Fragmentation, and therefore a lack of consistency, in patient safety issues within the NHS as a result of having so many separate Trusts with their own governing Boards – this means that systemic issues can be missed, to the detriment of patients.

Furthermore, nowhere does the strategy deal with the question of what motivates patients to make claims against the NHS – that is a huge hole in the strategic thinking which lies behind patient safety initiatives. How many patients are making claims because it’s the only way they feel that problems can be brought to light and addressed?

We are also disappointed that the knowledge and insight from the claimant perspective is not being sought. Specialist patient clinical negligence lawyers have a valuable role to play in the three strategic aims of the new Patient Safety Strategy, i.e. Insight, Involvement and Improvement. Not least because of the intelligence they can provide from claims actually brought, and which cannot come from the litigation insights of the NHS’s own lawyers.

Looking at the digital strategy, the legal position is contentious. For example, when artificial intelligence helps to identify patients whose medical data shows worrying trends, no one as yet has answered the question of who is responsible if the technology misses something.

Finally, it is unclear how the existing NHS complaints process will operate and feed into the new patient safety data collection systems.

Needless to say, whilst the Patient Safety Strategy makes some positive steps, it isn’t without gaps. And the way it has been produced, as well as the nature of its recommendations, also raises some real concerns.

What is worrying in the new strategy?

To start with, the input which forms the basis of this new strategy was limited in terms of its sources. For example, as mentioned, specialist patient clinical negligence lawyers who see the claims, and therefore the recurring patient safety issues every day, were not asked to be involved in development of the strategy.

This is a recurring failure by NHS bodies to engage as widely as possible, including with those who might challenge the preconceptions which form the basis of Government-inspired consultations. Interestingly, the only legal stakeholder meeting was with NHS Resolution, the NHS’s own lawyers.

What’s more, the reporting of patient safety issues will be done anonymously. So for example without naming the clinicians involved. This can lead to a misunderstanding of the issues, as the context of the care issues can be equally important to understand what, at the most basic level, has gone wrong. This in turn follows a worrying trend that the NHS’s own lawyers don’t want patient safety at the heart of clinical negligence legal reforms, as they freely say they can’t enforce any corrective action which needs to be taken to avoid the same thing happening again.

The Department of Health and Social Care want this anonymity in the new strategy because they feel that points related to individual clinicians could promote defensive medicine and a lack of engagement with patient safety issues. However this is the surest way to end up with another NHS patient safety scandal like Mid-Staffs and/or clinicians who carry out treatment which is clearly not soundly based and/or warranted.

Dr Fowler, the National Director for Patient Safety at NHS Improvement and NHS England is quoted as in the strategy as saying that he thinks the NHS is a trailblazer on safety. The reality is that it isn’t, and specialist patient clinical negligence lawyers know this because they see the same mistakes, and therefore clinical negligence claims, time and time again. It is concerning that the National Director for Patient Safety doesn’t appear to grasp reality, or is at least motivated to ignore it.

The strategy also states that the Serious Incident Framework which only came into force in 2015 is to be replaced with the PSIRF. This constant change of reporting strategy within the NHS is a risk to patient safety in itself.

The new framework also involves a worrying diluting of the findings of current such serious incident investigations, as the new strategy is to concentrate more upon systems issues and not the individual matter. This in turn is less likely to satisfy patients and therefore head off potential claims against the NHS. There are also less clear timescales for investigation reports than currently.

The new PSIRF will apparently be implemented gradually to iron out “teething issues” as the new approach is in fact brought in. In other words, the new patient safety reporting framework is going to be developed as it goes along, which has a potential for disastrous implementation problems and outcomes.

Finally, the strategy makes a lot of the work of the Healthcare Safety Investigation Branch (HSIB), work which has not yet been properly evaluated. Basically, this strategy is building an untried and untested new approach of the HSIB, upon more untried and untested approaches i.e. the PSIRF.

So what can be done?

As with most Government-inspired strategies, there is lots of detailed explanation of the theory which lies behind the strategy alongside lofty aims and aspirations. What remains to be seen is whether that will translate into the necessary resources, organisational ability and willingness to deliver the strategy. Without that, as so often, this strategy will simply remain lots of words on lots of pages, and patient safety will not improve.

What is definitely needed is an open-minded and realistic debate about patient safety issues, including being brutally honest about where the NHS is currently and how far it still needs to go. It is only from that honest basis, and a willingness to engage with all stakeholders (including specialist patient clinical negligence lawyers), that true progress can and will be made.

What is clear from the strategy itself though is that the gains for the NHS, both financially and in terms of society as a whole with regards to patient care, are large.

The strategy vindicates the approach, of specialist patient clinical negligence lawyers, such as those represented by the Society of Clinical Injury Lawyers (SCIL), that in order for the NHS to reduce its increasing clinical negligence claims bill, the relentless focus should be upon patient safety and the workings of the NHS itself. Hopefully this will bring an end to the wasteful focus upon a fixed costs regime for lower value clinical negligence claims which would prevent the very claims on behalf of some of the most vulnerable patients, who (ironically) could provide the richest patient safety improvement data to the NHS.

If you have any questions for our specialist medical negligence team, please contact us today.

0800 923 2080     Email uswkcn.enquiries@roydswithyking.com

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