It is important that we all try to find time to reflect on what we do, to see where we are going and where we have been. In a busy NHS this is difficult, but it is nevertheless important to try – all professionals need to do this as change happens and we must properly prepare for it. Several recent publications discussed here have caused us to reflect on some fundamental issues in patient safety and clinical negligence.
Patient safety commissioner 100 days report
Henrietta Hughes, the Patient Safety Commissioner, has shared her ideas on several patient safety matters (Hughes, 2023). These include the need to hear more of the views of patients at trust board meetings and at other occasions where patient safety is discussed. She called for a ‘seismic shift’ in the way patients' and their families' voices are heard (Hughes, 2023). There is also a need, she stated, to improve how health professionals communicate with patients – to address dismissive and defensive behaviour of clinicians, which is still a continuing problem. Putting patient safety first is a key underpinning premise of the report.
Hughes (2023) also raised the issue of forward thinking in the development of patient safety policy-making practice and the role of leaders:
‘In health we focus too much on the consequences, looking backwards at what has gone wrong. We need leaders to stop harm in advance, identifying and managing the causes and the controls.’
Hughes, 2013: 15
Looking forwards, not backwards
Policy makers and leaders should not be looking to the past so much, when designing and implementing policies and practices. You do need to do so to an extent, to plot a course for the future, as some degree of reflection is vital to policy making in any field. You need to determine what worked and what did not. However, good policy making takes a forward perspective as well. In terms of the NHS this is easier said than done. The NHS maintains a complex regulatory and governance system, which means that it can be difficult to be forward looking and proactive in policy making and practice.
Past reports have highlighted staff, patient and trust confusion over where to go for help and advice. The Care Quality Commission (CQC) in its seminal report, Opening the Door to Change, flagged up confusion about the roles of different governance bodies and where to get the most appropriate support.
‘In terms of the wider system, we have found that the different parts at national, regional and local level do not always work together in the most supportive way’
More recently, the Cumberlege report echoed the same sentiments:
‘We heard about a system that does not work in a joined-up fashion, and that lacks the leadership to deliver coherent and fully integrated patient safety policy directives and standards. Mistakes are perpetuated through a culture of denial, a resistance to no-blame learning, and an absence of overall effective accountability.’
We do have too many layers of health governance and accountability in the NHS and the system is overly complex. However, there is less duplication of regulatory functions and more joined-up forward thinking today about patient safety than previously was the case, taking a 20-year overview.
Why the problem?
Over the past 20 years or more the NHS has been rocked by patient safety crises. Our health regulatory and governance system has tried to adapt to deal with the crises, but often in a reactive, firefighting way. In a sense the system has played – and continues to play – a sort of catchup. It is difficult to plan ahead when another patient crisis is ongoing.
This all goes to inhibit forward-looking thinking and planning in patient safety policy and practice as a lot of time is devoted to dealing with past and present problems and there is not as much thinking time left to devote to future planning.
Patient safety and justice
We see the concept of justice being frequently used in the patient safety and clinical negligence literature, with discussion of such issues as access to justice, just treatment, just culture and so on. Cribb et al (2022) discussed interpretations of justice, patient safety and the need for an ongoing dialogue. It is important to unpick the differing notions of justice and to explain our understanding and meaning of the term, as it is used in diverse ways. Cribb et al (2022), like Hughes (2023), identified major difficulties in the NHS with listening to and involving patients and those close to them in patient safety responses. They referred to a persisting blame culture:
‘These, in turn, lead to a sense of sustained unfairness, unresponsiveness and secondary harm.’
The authors discussed notions of justice and patient safety. This is a valuable thought-provoking paper, looking at how we can take a deep dive and think more about justice to improve and advance patient safety policy making and practice.
Restorative action and Justice
When considering Cribb et al (2022) it is useful to read it alongside a piece by Titcombe et al (2023). There are some overlapping themes in both papers. Titcombe et al (2023) discussed issues such as just culture, just responses, restorative approaches and patient safety, and compounded harm:
‘We think harmed patients and families deserve a “restorative and just” response to their wellbeing, trust and relationship needs too. These issues are not mutually exclusive. If restorative just culture does not extend to listening, understanding, and repairing the harms to patients and families (as well as staff and the organisation), this will create further compounded harm and an even greater sense of injustice.’
An understanding of restorative justice approaches in patient safety and clinical negligence is important. In developing policy and practice these ideas can be incorporated into patient safety schemes and can influence our approaches to healthcare dispute resolution mechanisms. Such approaches can also usefully permeate through the NHS system, as we can see in Mersey Care NHS Foundation Trust's (2023) experiences with restorative just and learning culture.
Does compensation always guarantee effective closure?
A patient may receive monetary compensation in our adversarial clinical negligence compensation system, but is that enough? Does money guarantee effective ‘closure’ for the patient? Could alternative dispute resolution methods work better to give patients more meaningful closure? Also, looking at the impact of clinical negligence claims on the NHS organisation and staff that tried to defend the claim or admitted liability, is it or should it be all about money? Our compensation scheme for clinical negligence depends on establishing blame and this is by itself controversial when we talk about justice, restorative approaches etc.
The Association of Personal Injury Lawyers (APIL) commissioned research from Opinium to look at the value of compensation to those who have been injured by clinical negligence (APIL and Opinium, 2022). Matters discussed include compensation helping people rebuild their lives, how it offers reassurance and helps people get back on track, The report states that compensation is not about shaming the NHS, but about recognition of wrongdoing:
‘In some cases, the award is perceived to be a sign of respect, symbolising that the NHS accepts accountability for causing injury. This is especially important for those who have had to fight hard to win their case. A few of the people interviewed reported feeling a sense of relief after receiving their compensation as it shows that they have been believed and that they were not to blame for what had happened.’
The present way that we deal with dispute resolution under our tort-based system, which we apply to clinical negligence cases, has advantages and disadvantages, which have been discussed previously in this column. In discussing how patients are compensated for clinical negligence it is vital to discuss the points made by Titcombe et al (2023) and others. In terms of patient and staff having a sense of closure of an adverse event or a clinical negligence claim, NHS trusts and professionals can do more; it is not all about money and attributing blame, although these are important concepts and link into discussions about justice (Cribb et al, 2022). Monetary compensation for clinical negligence in the form of damages does bring about some form of closure (APIL and Opinium, 2022). However, we need to define and tease out more what we mean by ‘just resolution’ and other such terms.
Conclusion
The reports discussed in this column seem to be all singing from the same song sheet. The NHS needs to involve patients and their relatives more in patient safety investigations, policy development, creation of schemes, complaint handling and so on (Hughes, 2023). Presently they can be seen to be falling through the cracks. Also, developers and leaders in patient safety need to be more forward looking in their approach and not too stuck in the past and present.
Discussions on patient safety and clinical negligence litigation appear at various levels of abstraction in the literature and in discussions generally. We can talk in general about the need for change or be more specific. Our use of terminology can be casual when we discuss such matters as justice, fairness or rights. We do need to think more about what we mean when we use these terms and debate should be encouraged.
Justice is one concept that has been considered in this column, but another could be autonomy, using the reasoning and approach discussed by Cribb et al (2022). Titcombe et al (2023) raised critical issues in their discussion, and it can be usefully contrasted with Cribb et al (2022). At the same time, when looking at the adversarial tort compensation system for clinical negligence, we can see that it delivers monetary compensation in the form of damages to injured patients and helps put injured patients' lives back on track. It also has other benefits that APIL and Opinium (2022) discussed.
The reports discussed here all help in building a conceptual underpinning to patient safety policy development and the ways in which we deal with dispute resolution in health care. We do need to look more conceptually at what we do and why in patient safety and clinical negligence litigation.