Open and transparent investigations of clinical incidents are key to restoring patient and family trust in healthcare, reducing the risk of future incidents and mitigating potential liability exposures
The Parliamentary and Health Service Ombudsman's (PHSO’s) report ‘Broken trust: making patient safety more than just a promise’, published in June 2023, highlighted a number of recurrent failings in the UK healthcare sector including persistent failures to respond adequately or compassionately to patients’ and families’ concerns and complaints.
The ‘Broken trust’ report, based on analysis of 22 complaint investigations carried out by the PHSO over three years (relating to deaths within the National Health Service that were, more likely than not, avoidable), also focused on the ‘compounded harm’ caused to patients and their families by the way in which healthcare organisations’ investigations had been conducted.
In many cases, patients and families have been confronted with inadequate or even hostile communication by institutions and their employees when things have gone wrong. That poor communication, and the desire for honest answers, has contributed in some instances to the escalation of complaints to legal action.
This is particularly concerning as health and social care organisations have had a legal duty for many years to be open and transparent with the people using services and their families. Following the Francis Inquiry recommendations in 2013, a statutory organisational duty of candour (DoC) has been a requirement for all NHS trusts and NHS foundation trusts since 2014 and for all other CQC regulated providers since 2015. Equivalent professional duties apply to a wide number of health and care professionals at an individual level. However, in the light of concerns, including those raised in the Ombudman’s ‘Broken trust’ report, that the statutory DoC is not effective or always being met as intended, the government is conducting a review to ascertain solutions to address concerns and will consider whether it remains appropriate for the health and care system in England, in its current form, and will determine to what extent it’s been honoured, monitored and enforced, and to what extent the policy has met its objectives. The government is expected to publish its findings in a report next month, when providers should anticipate increased rigour with which the statutory duty will be enforced.
The underlying principle behind DoC is that, when something goes wrong in the provision of health and care services, patients and families have a right to receive a meaningful apology and clear explanations for what happened as soon as possible.
Good communication is therefore essential. However, whilst anecdotal evidence suggests clinicians are both effective and practiced at breaking bad news to patients and families, communication challenges in healthcare settings can often arise after that initial conversation with the clinician. The National Patient Safety Agency’s (NPSA, as was) ‘Being open’ framework recommended that the person continuing the conversations should have an existing relationship with the patient and family - implying the ongoing involvement of the lead clinician. At the same time, best practice suggests that the people investigating incidents should have had no involvement with the actual incident.
In healthcare organisations, responsibility for supporting investigations and keeping stakeholders informed may therefore fall to senior clinical staff who also have competing priorities in the provision of care and treatment to their other patients alongside this, which in smaller organisations could be even more challenging to manage in a timely or effective way.
What most complainants want is accountability of what's happened to be owned by the organisations. This includes not only receiving a meaningful apology, but also assurances that their concerns are being taken seriously, that an appropriate and thorough investigation will follow, that sufficient time and resources will be allocated and that, ultimately, something is done to prevent the same mistakes recurring – which is frequently found to be the most important factor in their decision to complain.
The PHSO report was particularly critical about the quality of the investigation process, in which the ombudsman identified "an ingrained defensiveness and lack of curiosity about the causes of harm", as well as a failure in most cases to provide a clear, evidence-based explanation for the conclusions reached and decisions made in response to concerns raised.
The recently-introduced Patient Safety Incident Response Framework (PSIRF), which sets out the approach to “developing and maintaining effective systems and processes for responding to patient safety incidents” for providers treating NHS patients, also emphasises the importance of the quality of investigations into incidents.
Both the PHSO’s report and PSIRF have been cautiously welcomed by the healthcare sector, and there is some optimism that if the healthcare sector engages fully with PSIRF recommendations, alongside continued good governance and effective risk management, there will be an accompanying improvement in patient safety.
But perhaps the ‘hallelujah’ moment was the recognition that came out of the NHS Patient Safety Syllabus, following the Strategy in 2019, that in order to improve patient safety and prevent incidents occurring, the sector needs to engage in more proactive risk management.
One of the main conclusions from the PHSO report was that organisations are missing the opportunity to use complaints and investigations as a means of promoting learning within the organisation and of managing risk to prevent recurrence of incidents – all of which sadly resonates with my personal experience of handling health sector litigation.
In a sector where resources are finite and sometimes critically scarce it is crucial that healthcare organisations take steps to better understand the challenges they face and invest resources appropriately to make improvements around patient safety.
A coordinated approach, combining better quality investigations with better use of contemporaneous data from incident reports and complaints can provide a rich learning opportunity.
This will help to drive improvements in patient safety, inform risk management strategy and reduce the possibility of complaints escalating into legal action, thus mitigating the risk of financial and reputational harm to the organisation.
