The National Patient Safety Syllabus 2.0 has recently been published (Academy of Medical Royal Colleges (AOMRC), 2021a), with a SharePoint section on the Health Education England website linking to the syllabus itself, implementation, rationale and other essential documents. This syllabus applies to all NHS employees, who should receive enhanced patient safety training.
Any curriculum stands or falls by its content, the teaching and educational materials used. In terms of medico-legal education, professional responsibilities and patient safety there is already a wide range of materials publicly available, and careful selection of appropriate content will be key to avoid NHS staff being swamped and overwhelmed.
Exploring patient safety and the law in the syllabus
Under Domain 1, ‘Systems approach to patient safety’, sections include:
- Section 1-6 Medico-legal education and professional responsibilities
- Section 1.7 Patient safety regulation and improvement.
Within these sections are ‘capabilities’, where essential learning outcomes are described. These include, in 1.6:
- Explains the ethical and clinical issues involved with patient care, including the withholding or withdrawal of care, and with the rights of the patient to refuse care
- Recognises the legal issues surrounding clinical negligence, compensation and the accountability of individual practitioners.
And in 1.7:
- Is aware of all indications of patient harm and risk, including incident reporting, complaints and mortality reviews
- Has full knowledge of the Duty of Candour regulations and how they are to be applied (AOMRC, 2021a:9).
The above provide an essential contextual bedrock to patient safety in the NHS. The law affects the delivery of care in many ways, in a clinical negligence case it will set the standard of health professional competence to be exercised and determine the level of any compensation to be awarded along with several other issues. There could also be issues around access to health care in a particular case, raising human rights and judicial review. The law maintains a framework for patient capacity, best interests, consent and confidentiality issues. It adjudicates on fundamental issues relating to the beginning and ending of life and so on. There is an intrinsic link between the delivery of healthcare services and the law. It is hard to think of any aspect of healthcare delivery that does not have a legal perspective.
Implementation and accreditation
Implementation of the syllabus and accreditation of educational materials is discussed in the document Implementation of Patient Safety Syllabus (AOMRC, 2021b). A timeline for delivery of educational materials is given. COVID-19 has caused some delay:
‘Educational material from other providers will also be included in the delivery of the National Patient Safety Syllabus. This will need to go through a process of accreditation. As the delay has prevented such a framework being set up as soon as originally planned, we would advise that educational material aligned with the Patient Safety Syllabus will need to go through the formal process of accreditation once this framework is in place.’
Organisations such as NHS Resolution, Action against Medical Accidents (AvMA), and the Parliamentary and Health Service Ombudsman will also hopefully have educational materials in the curricula. When educational material are being produced, however, developers must guard against swamping students with too much information; careful selection of relevant material will be key. There is already a plethora of relevant, well-produced, educational source materials available.
In exploring content for Domain 1, the publications and work of NHS Resolution will be fundamental to understanding and will usefully set the scene for discussions.
NHS Resolution
NHS Resolution has a variety of functions and is an arm's length body of the Department of Health and Social Care. One of its main functions is claims management: dealing with claims for compensation on behalf of the NHS in England and other members of its indemnity schemes. NHS Resolution runs several indemnity schemes, the main one being the Clinical Negligence Scheme for Trusts (CNST). There is also the function of managing concerns raised about the individual performance of doctors, dentists and pharmacists. Appeals and disputes between primary care contractors and NHS England are also dealt with.
NHS Resolution maintains an important patient safety and learning profile. Activities include training events, online webinars, safety and learning resources, and claims scorecards, which are ‘designed to help our members better understand their value and volume of claims by specialty and cause, and to help target interventions aimed at improving patient safety’ (NHS Resolution, 2019a).
Faculty of Learning: themed modules
NHS Resolution has a Faculty of Learning section on its website, described as:
‘… A repository of educational learning products and resources … developed by NHS Resolution to support the health service to learn from harm. We work in partnership with other arm's length bodies (ALB's), the Royal Colleges, other stakeholders and charities to promote best practice and support collaboration.’
Resources are grouped into ‘learning modules’ around the topics of consent, inquests and point-of-incident resolution (with separate modules for patients/families and for staff) The introduction to the Consent module states that between 1 April 2014 and 31 March 2019 there were 1194 claims for consent with a cost of £202 million (NHS Resolution, 2021b). The point is made that consent claims can occur right across the care spectrum but are more prevalent in surgical specialities and obstetrics and gynaecology (to the extent that orthopaedic surgery and gynaecology together account for more than half of all claims).
There are four learning resources, a leaflet on ‘The benefits of supported decision making’ and three videos, which present the legal context of consent and look at the experience of Nadine Montgomery, who was the claimant in the seminal Supreme Court case of Montgomery v Lanarkshire Health Board [2015] relating to informed consent (https://www.supremecourt.uk/cases/uksc-2013-0136.html). Other modules follow a similar format.
Annual report
The NHS Resolution Annual Report and Accounts is a rich source of real-time information on litigation in the NHS, particularly in relation to clinical negligence claims. Trends are given across clinical specialities and the costs of litigation, and recent important cases involving the NHS are discussed. Important point raised include (NHS Resolution, 2020):
- The annual cost of harm arising from clinical activity during 2019/20 covered by the Clinical Negligence Scheme for Trusts was £8.3 billion in 2019/20, reducing from £8.8 billion for 2018/19
- 11 682 new clinical claims and reported incidents were recorded in 2019/20.
Learning from litigation
Another recent publication is a joint best practice guide from the Getting it Right First Time programme (GIRFT) and NHS Resolution on learning from litigation (Machin et al, 2021). This gives essential advice including engaging clinicians in clinical negligence cases, and helping them understand the multi-layered aspects of a claim. Case studies showing best practice are given, as are discussions on clinical documentation, timely access to diagnostic investigations, and safety checklists:
A salutary warning is given on the legal consequences of poor documentation:
‘Panel law firms can find it difficult to defend trusts in clinical negligence cases due to poor or incomplete documentation by clinicians. In a busy clinical role, it can be difficult to always ensure that documentation is sufficiently robust for legal scrutiny.’
Patient motivation in making a claim
NHS Resolution commissioned the Behavioural Insights Team (BIT) to help understand the motivations behind a patient's decision to pursue a clinical negligence claim when something goes wrong with their care. Incidents, explanations and apologies are some of the issues discussed. In terms of possible missed opportunities to avoid claims, the research found:
‘Several interviewees suggested that more appropriate reactions, explanations and apologies would have prevented the need for a claim going forward.’
Behavioural Insights Team, 2018:23
Being Fair report
There are views expressed in several reports that the NHS maintains a defensive attitude, when it comes to handling adverse health incidents. Also, that a blame culture often persists, which can result in adverse events not being reported. There is then a commensurate failure to learn from what happened and to change practices. This report looks at best just culture practice in the sector and other related issues, with the main message being:
‘A just and learning culture is the balance of fairness, justice, learning—and taking responsibility for actions. It is not about seeking to blame the individuals involved when care in the NHS goes wrong. It is also not about an absence of responsibility and accountability.’
Conclusion
The publication of the National Patient Safety Syllabus heralds an important turning point on the road to developing a proper and sustainable NHS patient safety culture. Concrete efforts have been and continue to be made to educate both patients and Trusts on patient safety issues. A key plank for success will be the educational materials used. It will be hoped that existing material from NHS Resolution will form part of the supporting resources for the syllabus. A key point to watch however is that NHS staff are not overloaded and overwhelmed with too much material as that will detract from learning. A careful balance must be achieved.