Whenever the reform of our current tort-based clinical negligence compensation system is discussed the concept of blame and fault is raised. The idea that these are not helpful in developing a patient safety culture seems to permeate discussions. We can see this in reports on patient safety, health quality and litigation going back several years. The arguments can be seen most recently in evidence presented to the House of Commons Health and Social Care Committee (HSCC) (2022).
It is easy to agree
It is easy to agree with statements that we should encourage a no-blame culture in the NHS to greater facilitate openness, transparency and candour by healthcare staff. To develop a no-blame culture, it is argued, will lead to less defensive practices, better communication to patients of what has gone wrong with treatment, and better reporting of errors. Healthcare staff will feel less threatened by the prospect of being sued in an adversarial court setting:
‘A no-blame compensation system could potentially provide a clearer, quicker, and more equitable option for claimants, and rapid information exchange to support harm reduction within the NHS.’
No cherry picking
The New Zealand and Swedish systems are often described as better alternatives to our tort, fault-based and adversarial compensation system where negligence must be established. However, the criticism is whether these systems would be suitable for the NHS. A point often made is that you cannot cherry pick systems and ways of doing things from other countries and expect them to fully work. Our health system has unique features, so imported concepts and systems must work within the context of the NHS. This is a point recently made by Maria Caulfield, Minister for Patient Safety and Primary Care, when giving evidence to the HSCC NHS Litigation Inquiry. Replying to a question on exemplars or policies the NHS could adopt from other countries, she said:
‘It is very difficult to make international comparisons. We have a very different healthcare system from many countries in the world. We have a very different legal system. The health and social care support that patients have varies too. There is an assumption that you can just lift and slot in a different system from the UK, but that may not necessarily work.’
HSCC, 2022 (Q193)
Concepts in the background
In the debate about no fault and blame, there are additional theories at play—systems theory, human factors and so on—that seem to underpin and inform so much of our NHS patient safety thinking and policy development. The NHS Patient Safety Strategy (NHS England, NHS Improvement, 2019:7) has this to say:
‘Blame is a natural and easy response to error. It allows the cause of mistakes to be boiled down to individual incompetence, carelessness or recklessness and asserts that the problem is the individual. Blame relies on two myths. First, the perfection myth: that if we try hard, we will not make any errors. Second, the punishment myth: if we punish people … they will not make them again.’
The above are not self-fulfilling, absolute prophesies and are not all bad issues. Sometimes mistakes can be boiled down to individual health carer incompetence and negligence. Mistakes are not always related to systems. The law of tort concerns the exercise of reasonable care. The negligence alleged could be against an individual or be the fault of the healthcare delivery system in place at the time, or be a mixture of both.
The second myth should also not be viewed as absolute. It is arguable as to whether our current tort-based clinical negligence compensation system and the threat of suing a nurse or doctor deters bad practices. An aim often attributed to our compensation system is that it can. On the issue of deterrence, Lord Sumption, who previously sat as a Justice on the UK Supreme Court, stated (UKSC) (2017:9):
‘It is sometimes suggested that the fault is a necessary element in any scheme of compensation, because it deters sloppy practices, thereby improving general standards of safety … Most of the available empirical studies have been carried out in the United States … My tentative conclusion is that in spite of the dramatically higher level of US damages awards, there is no consistent evidence of any deterrent effect specifically attributable to the prospect of fault based civil liability.’
Further thoughts on deterrence
Under our legal principle of vicarious liability, the employer of the negligent employee picks up the legal compensation tab, although the employee still maintains primary legal responsibility and could, in the case of the NHS, also face employer, Nursing and Midwifery Council, and General Medical Council sanctions in appropriate cases. The negligent employee does not pay the compensation out of their own pocket. Horsey and Rackley (2021:68) state:
‘As a form of secondary liability, the imposition of vicarious liability is not predicated on any wrongdoing by the employer—they may well be, and often are, entirely blameless … Rather liability is imposed vicariously on the employer for the tortious actions of their employee (who remains primarily liable for their actions, though is typically not worth pursuing for financial reasons).’
Given the presence of vicarious liability as a concept, indemnity insurance and schemes such as the Clinical Negligence Scheme for Trusts, the deterrence aspect of our current compensation system could be challenged. Healthcare practice improvement may not be seen as an immediate priority by the negligent employee. They may see the threat of litigation as not falling on them individually but on the system and the hospital.
Lord Sumption has discussed the issue of fault and our compensation system, raising the point of the availability of indemnity insurance:
‘But even here, any deterrent effect is heavily diluted by the availability of liability insurance.’
UKSC, 2017:10
A more holistic way to look at error
NHS England, NHS Improvement (2019) point out the benefits of a more holistic way of looking at error: that nurses and doctors work in complex systems with many contact points for error. Some of these, such as staff issues, will remain outside their immediate control. The report highlights the concept of ‘Just Cultures’ and how in consultation responses to the strategy a consistent message came through of the prevalence of NHS staff fear in relation to involvement in patient safety incidents.
Balancing the systems theory approach
There is a danger that our preoccupation with systems theory as an underpinning patient safety policy development concept and our drive to develop a just culture could detract from, and mask the idea of, the individual professional and legal accountability of health carers for errors. This argument, in turn, leads to the view that we should ditch our present tort-based adversarial clinical negligence compensation system because it is fault based and encourages fear, defensive practices and that learning does not take root.
Systems theory and Just Culture initiatives are valuable and essential tools towards developing an effective NHS patient safety culture, but we also need to be aware of potential pitfalls.
Defensive healthcare practices
When discussing what other countries do about compensation systems and patient safety, Jeremy Hunt, Chair of the HSCC, stated:
‘In this country, you only get compensation if a court agrees that there has been clinical negligence. That obviously makes hospitals, doctors, midwives and nurses defensive and makes it much harder to get to the bottom of things because no one wants to be found guilty of clinical negligence.’
HSCC, 2022 (Q138)
The point he makes is a good one regarding a defensive NHS culture when it comes to patient safety and errors. However, evidence from Helen Vernon, Chief Executive of NHS Resolution, shows it is rare for an individual clinician to be solely the subject of a clinical negligence legal action. This raises questions about the validity of the defensive practice argument and our fault-based adversarial compensation system:
‘In fact, it is quite rare for us to get cases that are just focused on one person, one healthcare professional, as opposed to the full panoply of things that happened during the patient's care that might have led to their injury.’.
Helen Vernon (HSCC, 2022:Q166)
The Department of Health and Social Care (DHSC) gave written evidence to the NHS Litigation Inquiry, commenting on the issue of defensive health carer practices and reporting:
‘We are also not aware of direct evidence that fear of the current claims process is discouraging NHS staff from disclosing incidents.’
DHSC, 2022:paragraph 29
Separating out the issues
We need to separate out and balance the issues and reappraise what we mean by blame and fault, otherwise, there is a risk that avoiding blaming individual staff for avoidable error or negligence may become a panacea for arguing against our present tort-based adversarial compensation system and other regulatory reform measures. The need to avoid blame and fault is a simple and powerful argument, but we also need to focus on the value of attributing individual blame, fault and the personal and professional accountability of nurses and doctors. We also need to consider that a patient injured by clinical negligence may want more than compensation, such as their day in court or to find out more about what went wrong, as Maria Caulfield stated in her evidence to the inquiry:
‘… I have constituents who … do not necessarily want the compensation. They want their day in court. They want to hear exactly what happened. There will be cases like that, where people feel that they want to go down that road. I do not think we can exclude it forever …’
HSCC, 2022 (Q170)
Conclusion
Blame and fault finding can be good. It can cause individual carers to reflect on their practice, which can further the development of an NHS patient safety culture. Personal reflection is the hallmark of being a professional and should be encouraged as part of any policy reform debate. In regard to fault and blame, it is all a question of balance: yes, keep systems theory, human factors and just culture, but also keep stating that healthcare staff have professional and legal duties to maintain.
It is also important that we do not fall into the trap of thinking that we can simply import international compensation or regulatory systems and processes into our NHS easily, by just dropping them in. What may work in Sweden or New Zealand may not work well in the NHS. There are no quick fixes. It also needs to be recognised that there are issues as to whether our compensation system deters bad practices. Issues can also be raised in relation to defensive healthcare practices and what injured patients may want from a compensation system.