There are certain general expectations that are held by most people when they deal with each other, particularly in a professional capacity. There will be a general recognition that it is poor practice to talk to the person in a condescending tone or other inappropriate manner, and that clear explanations should always be given and material risks, options and likely outcomes stated. It would also be nice to think that there would be an implicit recognition and assumption in the conversation that nobody is infallible and that mistakes will sometimes happen. If they do happen, then they will be resolved promptly and fairly with an appropriate apology.
These are basic ground rules that most people will generally subscribe to when dealing with others and providing any professional service.
In a healthcare context
In a healthcare context these basic expectations of how the communication process between health professional and patient should proceed will take on an increased significance because of the power imbalance between the parties. There is an urgent and pressing need here for clear channels of communication as the consequences of failure can be catastrophic. The patient will be the weaker party in what can be termed ‘the healthcare equation’. They have an urgent need for the professional knowledge of the nurse or doctor. They are not in their usual environment and perhaps thinking the worst about their condition. The nurse or doctor, conversely, are in their normal working environment and the consultation is a normal part of their daily work.
Recognising the power imbalance
Professional codes of practice recognise this power imbalance and expectations are placed on health staff to act professionally in these situations. A breach can result in not being allowed to practice anymore or criminal sanctions may also be imposed by the courts. The NHS Constitution for England (Department of Health and Social Care (DHSC), 2021) affirms the primacy of the patient in the healthcare equation and also attempts to redress this power imbalance:
‘The patient will be at the heart of everything the NHS does.’
‘It should support individuals to promote and manage their own health. NHS services must reflect, and should be coordinated around and tailored to, the needs and preferences of patients, their families and their carers.’
The Care Quality Commission's (CQC) trust inspection and national reports have shown acute problems in health professional communication with patients and their relatives and carers. There is a great deal of literature on how to communicate properly with patients, with reports from several stakeholders going back many years—at least from the year 2000 with the publication of the Department of Health's An Organisation with a Memory (2000) right up to the present day. These all echo the sentiments that I regularly express when reviewing reports in this column. Namely, that the NHS is poor at learning the patient safety lessons from past adverse health events.
Errors can occur
Errors can occur through basic failings of professional practice, such as not passing on essential information to other staff on a ward handover, giving out confusing or contradictory information to patients and their relatives and failing to record essential information. NHS Improvement has stated:
‘Every 36 hours a million contacts are made between patients and healthcare staff in the NHS and each of these is likely to generate further communication between staff. Yet failings in that communication are a common finding in Serious Incident investigations and we have come to expect either direct or indirect reference to communication in most investigation reports.’
When things go wrong, explaining what has happened, apologising and complying with the duty of candour is key. If we improve our methods and channels of communication as health professionals, then there will be less litigation and fewer complaints. Developing proper communication skills should be taken much more seriously. It is not an optional bolt-on in the skill development armoury.
The consequence of communication failures
Published law reports are replete with clinical negligence court actions brought because of health professional communication failures causing patients avoidable harm and even death.
When Never Events are analysed, critical failures of communication can also be seen.
CQC findings on communication
In its review of the way NHS trusts investigate the deaths of patients in England, the CQC stated:
‘Families and carers have told us that they often have a poor experience of investigations and are not always treated with kindness, respect and honesty. This was particularly the case for families and carers of people with a mental health problem or learning disability.’
More recently, in an annual inpatient survey, the CQC stated:
‘Fifty-five per cent of people responded “yes, definitely” when asked if they were involved in decisions about their care and treatment as much as they wanted to be. This is a significant increase of one percentage point from the 2018 result.’
Fifty-five per cent is not a very high figure. The report further states:
‘Overall, results for patient involvement in decisions about their care are mixed. There are some areas that show improvement, such as communication before operations and involvement in decision-making. However, results also show decline in patient experience of choice and, while people feeling involved in decision-making has improved since 2018, there are still considerable numbers of people not feeling included.’
A history of communication problems
The duty of candour
In addition to the reports discussed above, there have been several other major national reports dealing with communication issues, including the seminal National Patient Safety Agency (NPSA) (2009) report, Being Open. This report stressed the importance of healthcare staff being open and honest with patients when adverse healthcare and patient safety events occur.
The report states the importance of discussing patient safety incidents promptly, fully and compassionately and to remember that saying sorry is not an admission of liability and is the right thing to do.
Recent CQC advice
The CQC has recently updated its advice in this area (CQC, 2021), concerning the duty of candour that was introduced in 2014. Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 puts a legal duty on all health and social care providers to be open and transparent with people using services, and their families, in relation to their treatment and care. The regulation sets out specific required actions.
The CQC explains what is defined as a notifiable safety incident and gives examples covering a range of resources:
‘And it makes clear that the apology required to fulfil the duty of candour does not mean accepting liability and will not affect a provider's indemnity cover.’
Regulation 20 can be viewed as another welcome centralised mechanism aimed to help redress the inherent imbalance in the healthcare equation, which sees the nurse and doctor as always being the stronger party in terms of power and influence.
Litigation and complaints: link to communication failures
If an adverse patient safety event occurs and we speak to patients sensitively, apologising and explaining to them what has happened, then that must, in many instances, help to defuse a difficult situation. The patient may still decide to complain or sue, but hopefully the situation has been made less confrontational.
Why patients make claims
NHS Resolution commissioned research on patient motivation to make a claim for clinical negligence. One finding in the report was:
‘Themes emerging from the interviews identified that staff reactions fell below the standards expected. Explanations or apologies were deemed to be rare or insufficient when they were given. Several interviewees remarked that, had these initial processes been handled better, they may not have pursued their claim.’
However, Birks et al published a report on understanding the drivers of litigation in health services, which stated:
‘While better communication and early disclosure may improve outcomes in terms of relationships and resolution, no robust evidence was evident regarding the impact of better communication in isolation (ie without financial resolution) on litigation activity or amounts in empirical studies …’
More research is needed on the drivers that lead patients to complain and litigate.
Good health professional communication with patients and their relatives should not be the insoluble, intractable problem that it appears to be in the NHS. Communication is a basic professional skill that any reflective practitioner should be able to accommodate. There appears to be no good excuse for failing to communicate properly with patients.