In last week’s Law section in The Times, Bill Braithwaite QC shares his perspective on the disconnect between avoidable injury and harm caused by errors, accidents or mistakes in healthcare, and learning or accountability to make the changes needed to prevent them occurring again and again.
Bill shares a recent case where the NHS Hospital Trust denied the A&E medical team repeatedly missed signs or symptoms indicating a stroke. The Trust then went on to deny that having missed those symptoms, it made any difference to the outcome. They ran the argument that even if a referral had been made the stroke could not have been prevented. The claim was finally settled by the NHS just a few weeks before the final court hearing, and after significant impact on the patient and hours of legal work involving solicitor team, Counsel and experts. What had changed since the early weeks and months of the claim? Very little in terms of what had happened and whether there had been a mistake or an omission.
In working alongside Bill Braithwaite QC in catastrophic medical negligence cases, and in other claims with life changing injuries, experience tells us that this case is not the exception. There is a push to use alternative resolution processes such as negotiation (joint settlement meetings) and mediation but where there is a blanket denial by the NHS, an agreed settlement struggles to gets off the ground. The only route available is the formal legal process.
As Bill highlights, the ongoing challenge is how we complete the learning cycle and support a just, learning culture within the NHS. There is much discussion within the NHS on candour, being open about mistakes to benefit both the patient and the healthcare professional involved. Despite this, we still see repeating media coverage and inquiries around systemic failings in NHS Trusts and a lack of accountability in real time. Alongside this, we see healthcare professionals leaving the NHS and a recruitment crisis, partly due to feeling unsupported and unable to provide care in the way they feel patients deserve.
Professional development and revalidation exists for medics. One key challenge is how we link incidents which are then the trigger for medical negligence claims, and then ensure that specific and effective training programmes make a real practical difference.
Healthcare professionals disproportionately fear an investigation by their Regulators (General Medical Council or Nursing and Midwifery Council), which ultimately have the power to prevent them practicing in the future. For all involved in healthcare, the aim has to be to support healthcare professionals to improve standards of practice or areas of weakness before a patient is harmed, they become anything close to impaired fitness to practice and are on the radar of a regulator. We also need to improve the ‘joined up thinking’ that spots patterns of incidents and can highlight systemic and operational issues which cause or contribute to harm being caused to patients and their families. Very few cases are due to a single failing or error by one doctor or a nurse. Most involve a catalogue of missed opportunities and breakdowns in processes and procedures.
Successfully progressing and pursuing these cases requires specialist legal expertise and the right team to gather the right medical, rehabilitation and care experts and to set the right strategy. This helps to ensure the claim succeeds. In many cases the most important aspect is the focus on the initial NHS response. The explanations must be dissected and challenged from a legal and medical perspective in these situations where a patient has been harmed through negligence whether due to a mistake, warning flags being missed or a level of incompetence which has not been identified and managed within the NHS Trust.
The purpose of the legal process in medical negligence claims is to help patients to rebuild their lives in the best way possible. Magic wands cannot turn back the clock, but the right, experienced team will set the strategy and gather the evidence to pursue a claim that provides the financial resource to help cope with the impact of what has happened and access to the appropriate care and rehabilitation. For the patient is about building that very different future with the aim of achieving the best possible quality of life. The process does not provide the mechanism to put right matters from the healthcare professional or the organisation’s side. This is a wider job for Regulators, Government, professional bodies and wider society who are all invested in and impacted by who the NHS operates on a day to day basis. The call for evidence on a ‘no fault’ compensation process in the NHS is one area for discussion, but arguably steps us further away from learning and accountability. Very much a bigger conversation for another blog!
Bill Braithwaite’s article can be found here – https://www.thetimes.co.uk/article/appalling-shrewsbury-maternity-scandal-is-just-one-case-of-many-06mcfdvnc
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