‘Advise, resolve, learn’

The new mantra of NHS Resolution (formerly known as the NHS litigation authority) is catchy but perhaps the word learn would be better placed at the front of the list.

The BBC reported last week that health leaders have written (in a letter coordinated by The NHS Confederation and signed by the British Medical Association, the Academy of Medical Royal Colleges, Family Doctors Association and the medical defence unions) to Justice Secretary David Gauke urging him to reform the payout system for medical negligence claims against the NHS in England.

Whilst this letter raises concerns about the recent changes to the Discount rate (which has significantly increased damages for future loss) it is just the latest news item to draw attention to the increasing costs of medical negligence claims against the NHS.

It was instructive to listen to Master Cook, a highly experienced medical negligence Queen’s Bench Master, speak last week to a packed room of medical negligence solicitors and barristers at 7 Bedford Row.

Speaking in a personal capacity he talked about how dispiriting it is to see cases involving the same type of mistakes coming before him again and again and quite often from the same hospitals. He referred to NHS Resolution’s 5 year strategy “Delivering Fair Resolution and Learning from Harm” and the recent publication of a thematic review of cerebral palsy data by Michael Magro.

Reminder of the recommendations

It is worth reproducing the key Recommendations of the review of the cerebral palsy data as they draw attention to the poor quality of serious incident investigations at a local level, a frequent complaint that comes before the medical negligence team here when we are approached by patients who have concerns about their care:

1. Women and their families offer invaluable insight into the care they received. To ensure this is included in all serious incident (SI) investigations, commissioners should take responsibility by ensuring SIs are not ‘closed’ unless the woman and her family have been actively involved* throughout the investigation process.
2. The quality of SI investigations has repeatedly been found to be poor with very little or no training for investigators across the NHS. A working party, involving, and possibly led by the Healthcare Safety Investigation Branch (HSIB) should discuss creating a national standardised and accredited training programme for all staff conducting SI investigations. This should focus on improving competency of investigators and reduce variation in how investigations are conducted.
3. In line with the Kirkup and Royal College of Obstetricians and Gynaecologists (RCOG) Each Baby Counts reports, all cases of potential severe brain injury, intrapartum stillbirth and early neonatal death should be subject to an external or independent peer review. However, the most appropriate model requires further national clarification.
4. Adverse events within maternity can have serious negative effects on staff, who are often provided with inadequate support. Trusts’ obstetric and midwifery leads, with support from their board level maternity champion, must ensure that improving emotional support for staff throughout an investigation, irrespective of whether it becomes a compensation claim, is a priority.
5. Trust boards, alongside their obstetric and midwifery leads, must ensure that all staff undergo annual, locally led, multi-professional training, which includes simulation training for breech birth. This training should focus on integrating clinical skills with enhancing leadership, teamwork, awareness of human factors and communication. Staff should not provide unsupervised care on delivery suite until the competencies have been achieved.
6. Cardiotocograph (CTG) interpretation should not occur in isolation. It should always occur as part of a holistic assessment of fetal and maternal wellbeing. CTG training should incorporate risk stratification, timely escalation of concerns and the detection and treatment of the deteriorating mother and baby.
7. Trusts should monitor the effectiveness of their training by linking it to clinical outcomes. Trust boards should encourage units to publish their local indicators, which can then be subject to benchmarking and external scrutiny.

As Master Cook said, if these recommendations are implemented they will go a long way to reducing the number of what are highly expensive medical negligence claims.

Learning must be moved up the list of priorities because only by learning from mistakes can the NHS effectively reduce the cost of medical negligence claims, but much more importantly reduce injuries to their patients and restore trust. Compensation is nothing more than an attempt to put an injured person back in the position they would have been had it not been for a negligent act or omission: far better to avoid injury where possible in the first place.