In this blog Patient Safety Learning provides an overview of the key points included in its response to the call for evidence for the Health and Social Care Select Committee Inquiry examining the case for reform of NHS litigation.
On 22 September 2021 the Health and Social Care Select Committee launched a new inquiry examining the case for reform of NHS litigation, identifying concerns regarding a significant increase in clinical negligence costs and missed opportunities for learning to improve patient safety. The Committee stated that the existing system was “failing to meet its objectives for both families and the healthcare system”.
Here we will provide an overview of our response to this Inquiry, which focused on four key areas:
- Learning from avoidable harm in healthcare
- Improving redress for patients
- The role of the Healthcare Safety Investigation Branch
- Financial burden of avoidable harm and resulting litigation
You can read our written evidence in full here 
Learning from avoidable harm in healthcare
In our report, A Blueprint for Action, we set out what we believe is needed to progress towards a patient-safe future, identifying six foundations of safe care. Sharing learning to improve patient safety is one of those six foundations. For patients to be safer, we believe that people and organisations need to share learning when they respond to incidents of avoidable harm, and when they develop good practice for making care safer.
Incidents in healthcare that result in clinical negligence claims often present a significant opportunity for learning, through the process of investigating what went wrong and the actions needed to prevent harm reoccurring. Insights from these cases may often be applicable beyond the organisation in which the incident took place and provide a point for wider system learning.
NHS Resolution, the body responsible for providing expertise to the NHS on resolving concerns and disputes, play a key role in this. When clinicians are contacted as experts on litigation cases by a representative from the NHS Resolution ‘Panel of Solicitors’ they are
asked to feedback any general points of learning to be shared across the NHS. In our response to the Inquiry, we explained that it is our understanding that NHS Resolution takes this learning and feeds it back into the system primarily:
- Through their members – sharing information with NHS Resolution member organisations on individual cases, which can be used to subsequently inform their own organisational clinical governance and patient safety processes.
- For wider learning – these inform NHS Resolution’s in-depth reviews and studies on specific subject areas, such as their guide published with the Getting It Right First Time programme to support learning from clinical negligence claims, and their thematic review Learning from suicide-related claims. 
NHS Resolution have advised us that due to the nature of the information involved in clinical negligence cases, for a combination of privacy, personal sensitivity, and legal reasons they are limited in the ways they can share these insights for learning and improvement.
We stated in our response that although there is clearly a degree of complexity involved with sharing such insights more widely, Patient Safety Learning believes that we are missing an enormous and valuable opportunity to extract significant system-wide learning that should improve patient safety. We believe that that insights from litigation could be used to inform regular publicly available reports which could help to:
- Share rapidly valuable information and opportunities for learning from litigation.
- Enable the Department of Health and Social Care, NHS England and NHS
- Improvement, Care Quality Commission, Healthcare Safety Investigation Branch, the incoming Patient Safety Commissioner’s in England and Scotland, and others to identify emerging patient safety trends/concerns.
Impact of the new Patient Safety Incident Response Framework
Another area we highlighted in our Inquiry response concerned learning from avoidable harm in healthcare, and how this interacts with NHS litigation, in the context of how organisations are expected to investigate error and harm through the new NHS Patient Safety Incident Response Framework.
The implementation of this framework, as currently proposed, will result in fewer investigations into harm. NHS organisations are being invited to consider other methods for learning such as thematic reviews and After Action Reviews. Implementation arrangements will need to be carefully managed to ensure that opportunities for learning and improvement will not be compromised nor will patients and families be frustrated in being informed of what happened and why following a patient safety incident/event. If patients and families do not feel that the new arrangements provide them with the answers they seek and are expected to be provided with as part of the Duty of Candour, we noted that this could also lead to the unintended consequence of an increase in complaints and even an increased chance of patients and families choosing to pursue litigation.
Improving redress for patients
Bound up with reform of NHS litigation is the issue of redress for avoidable harm in healthcare. Responding to the Inquiry we noted that the Government had recently set out a formal position on this issue through its response to the recommendations of the IMMDS Review (also known as the Cumberlege Review).
The Review proposed the creation of an independent Redress Agency for those harmed by medicines and medical devices. It suggested that this should be set up on an avoidable harm basis, focused on systematic failings, rather than blaming individuals, and provide an approach to make decisions using a non-adversarial process. In their full response to the Review's recommendations in July, the Government rejected this proposal.
In our response to this Inquiry, we outlined our concerns about the Government’s two main reasons for rejecting this proposal:
1. There is already an existing process in place where the Government can establish redress schemes for specific issues.
We believe the existing process is likely to create inconsistencies in how patients injured by avoidable harm are treated. It is particularly hard to see how such a system can be seen as fair when there is no publicly available rationale or criteria provided to clarify what issues are considered as appropriate for redress. In the case of the example provided of the Infected Blood Support Scheme, it has taken 40 years of campaigning before this has been eventually announced. It is hard to see how harmed patients can have confidence that the existing approach to considering decisions on redress is transparent, fair, consistent, or timely.
2. This would not make products safe or drive the right incentives for industry.
The IMMDS Review makes the case for an independent Redress Agency as improving patient safety by encouraging greater reporting and transparency, supported by a non-adversarial process which looks to systematic failings, rather than blaming individuals. In its response the Government simply fails to engage with this point or argument in a meaningful way.
The need to reconsider redress
We told the Committee that Patient Safety Learning believes that to improve the redress process the Government should reconsider its approach and engage more meaningfully with the proposal in the IMMDS Review. We believe there are several issues it would be worth considering as part of this:
- Benefit to harmed patients in having a straightforward process and is accessible to all, equally.
- Potential for learning and identification of new and emerging issues because of having claims run through a central body.
- Potential benefits and drawbacks of introducing a no-fault compensation scheme.
- A cost-benefit analysis on the type of Redress Agency proposed, as opposed to the existing approach.
- How this may support a more open and supportive culture in relation to how NHS organisations respond to complaints and whether this may help to move away from a defensive response in some cases.
- Ensuring that redress is not just focused solely on financial compensation but should be part of openly acknowledging mistakes, learning for improvement and healing, for patients, families and staff involved.
The role of the Healthcare Safety Investigation Branch
Patient Safety Learning is strongly supportive of the role of HSIB investigations in identifying factors that have harmed or may harm patients, and their safety recommendations aimed at improving healthcare systems and processes.
In its Terms of Reference, the Inquiry asked how HSIB can improve short term responses to patient safety incidents and therefore reduce the number of those who are forced to pursue litigation as a means of obtaining non-financial remedies. In our response we outlined two significant issues which may limit their ability of HSIB to reduce the number of incidents that lead to avoidable harm and thus reduce litigation:
1. Capacity for national investigations
HSIB is significantly limited by its capacity, currently it is only able to conduct up to thirty national investigations a year. This requires a significant degree of prioritisation against their investigation criteria, which means that for many issues where avoidable harm continues to occur, they will simply not be able to investigate and make safety recommendations. In cases where HSIB does not have the capacity to investigate, patients and their families who raise issues are dependent on local investigations, where learning may stay siloed in the organisation in question, rather than shared more widely for national learning and action.
2. Implementation of recommendations
When HSIB makes its safety recommendations, organisations are expected to respond within 90 days of publication of the investigation reports and HSIB subsequently shares these responses on their website.
However, while organisations are required to respond, there is no compulsion for them to accept or implement HSIB recommendations. Furthermore, there is no system of oversight to monitor or assess the effectiveness or impact of implementation. Without such a system, it is difficult to assess the impact of a safety recommendation in terms of preventing a recurrence of patient safety incidents that may result in harm and then future litigation. We believe that this is a matter of huge importance; without this formal public accountability and oversight, it is difficult to see how patients can feel confident that action is being taken to address the systemic cause of errors that result in avoidable harm.
Financial burden of avoidable harm and resulting litigation
In our response to the Inquiry, we also reflected on the significant financial costs that accompanies avoidable harm in healthcare. The cost of settling claims in the NHS in 2020/21 came to £2.26 billion, with a further £7.9 billion spent on compensation claims settled in previous years.
We argued that the current costs of NHS litigation should be a clear signal to the Government that avoidable harm is not simply a serious health challenge, but also a major economic problem. The burden of costs are not only felt by the healthcare system in compensation costs, but also in the additional support that may be needed by harmed patients after an event and the indirect social cost of harm more generally. While this remains unaddressed, scarce funds that could be spent to proactively improve the quality of care will instead be needed to deal with the cost of error and harm.
We made the case that if we are to tackle the significant costs associated with this, we need to tackle the root cause of the problem. The most effective way to do this is to improve patient safety in healthcare, to reduce the level of avoidable harm, thus decreasing the associated costs of litigation, remedial support, and ongoing care.
In the conclusion of our response to the Inquiry, we noted that the issue of NHS litigation reform needs to be considered as part of a wider context, acknowledging that the main causes of unsafe care are systemic. Avoidable harm in healthcare has complex roots and to make real progress we need to address these underlying system issues.
Patient Safety Learning believes that there needs to be a transformation in our approach to tackling this problem with patient safety being treated as core to the purpose of health and social care, not as one of several competing priorities to be traded off against each other. In our report, A Blueprint for Action, we set out an evidence-based analysis of why harm is so persistent and what is needed to deliver a transformation in our approach to patient safety. Reform to NHS litigation forming a key part of this.
1. Health and Social Care Select Committee, New inquiry: NHS litigation reform, 22 September 2021
2. Health and Social Care Select Committee, NHS Litigation Reform: Written evidence submitted by Patient Safety Learning (NLR0059), 2 November 2021
3. Patient Safety Learning, The Patient-Safe Future: A Blueprint For Action. Report, 2019
4. GIRFT and NHS Resolution, Learning from Litigation Claims, May 2021
5. NHS Resolution, Learning from suicide-related claims: A thematic review of NHS Resolution data, September 2018
6. NHS England and NHS Improvement, Patient Safety Incident Response Framework, Last Accessed 19 October 2021
7. The IMMDS Review, First Do No Harm, July 2020
8. Department of Health and Social Care, Government response to the Report of the Independent Medicines and Medical Devices Safety Review, 26 July 2021
9. Health and Social Care Select Committee, NHS litigation reform: Terms of Reference, Last Accessed 1 November 2021
10. NHS Resolution, Annual report and accounts 2020/21, 15 July 2021
11. OECD and Saudi Patient Safety Center, The Economics of Patient Safety. From analysis to action, 21 October 2020
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