Final Report > Chapter 26: The Safety of Care > Creating a culture of safety > Reporting sentinel events: the barriers to openness

Reporting sentinel events: the barriers to openness

21 As we have said, a national reporting system requires there to be effective systems of reporting at a local level. We turn now, and in some detail, to the question of how to ensure the local and national systems for reporting sentinel events can work effectively. It is one thing to set up a reporting system, quite another for people to use it. At a recent summit on Medical Errors and Patient Safety Research in the USA, the Joint Commission on Accreditation of Healthcare Organisations stated:

`Today, the blame-and-punishment orientation of our society drives errors underground. Indeed, we believe that most medical errors never reach the leadership level of the very organizations in which they occur. Therefore, although there is much rumination over the statistics published about medical errors, we believe that no one has a real handle on the actual numbers because all the incentives to report are negative.' [25]

Although written about the USA, this aptly describes what we believe to be the state of affairs here. We have already referred to the lack of openness in the NHS which acts as a major barrier to obtaining information about the incidence of sentinel events, particularly error. We need now to understand more clearly what causes this lack of openness, so as to be able to overcome it and move forward.

22 There are a number of causes which must be confronted. The first can be called the myth (or imperative) of infallibility. The idea of the healthcare professional as giver of life, restorer of health, or as one who does not make mistakes, is a dominant theme in the culture of healthcare. This makes it extremely difficult, particularly given the expectations placed upon professionals by the patient, for them to speak up and point out that things have not gone as expected. To admit this is to fail the myth and thus appear a failure. Professionals assume that the patient expects infallibility and consequently find it very hard to admit that they are fallible.

23 Secondly, in the particular case of errors, quite apart from any errors of their own, healthcare professionals find it difficult to speak up about the errors of others. There is what can be called a code of silence - that aspect of professional culture which causes `tribal' groups to close ranks and keep problems within the group. There is a real sense of `There but for the grace of God go I'. The pressure of hierarchy within the professional group also plays a part. As a consequence, junior staff, or those from other specialties or disciplines, are inhibited from speaking out. We were struck by the evidence of a recent study to evaluate the reporting of adverse incidents in an obstetrics unit, quoted by the Royal College of Nursing (RCN) in one of its papers to the Inquiry. Of 196 adverse incidents, as defined by relevant protocols, identified as arising during the delivery of 500 babies, fewer than a quarter were reported by the staff. The RCN told the Inquiry that:

`... the main reasons put forward for the non-reporting of errors were fears that junior staff would be blamed, high workload and the belief (even though the incident was designated as reportable) that the circumstances or outcome of a particular case did not warrant report.' [26]

24 Thirdly, fear of exposure and blame, whether in the press or through litigation, with the consequent loss of standing, career prospects, or even livelihood, is a further powerful inhibiting factor. As a society we are still trapped in a culture which, when things go wrong, is one of blame. The assumption is often made that there has been an error. Moreover, errors are personalised to an individual, the better to find `the person responsible', who can then be dealt with. And of course, the media, eager for a name, and lawyers, needing someone's `fault' for their client to point to, reinforce this approach. Errors in the NHS, as elsewhere, are seen not as matters to learn from, but as moral lapses deserving of blame.

25 Blame and fault find their expression most strongly in the system of clinical negligence litigation. We regard the impact of clinical negligence litigation to be of such importance that it warrants scrutiny here. To state our conclusion first, we believe that both the threat and the reality of litigation to claim damages for clinical negligence serve as barriers and disincentives to openness within the NHS. Moreover, we consider that they are perceived as such across the NHS. Currently, it is open to patients to bring a legal action if injury is wrongfully done to them in the process of receiving medical care (if, indeed, they are aware that such an injury has been done, for very many patients never become aware of it). [27] The legal action is based on an allegation of negligence on the part of a healthcare professional or an NHS trust: that their conduct fell below the standard which the law requires, and that this failure caused the damage of which the patient complains.

26 The system of clinical negligence litigation in England and Wales forms part of what is known as tort liability. [28] The theory behind the system, as it has evolved, is that by bringing a legal action for damages, the claimant is not only seeking financial compensation for the injury which has been suffered, but is also seeking to achieve two further objectives. The first is to hold the NHS to account. The second, through the combination of public exposure and the award of damages, is to help to prevent similar incidents from occurring again by creating an incentive for trusts and healthcare professionals to act more carefully.

27 We referred earlier to the issue of financial compensation: how best to address the financial needs of those who are harmed in the course of healthcare. What concerns us here is whether the system of clinical negligence litigation achieves its other stated aims: accountability and deterrence. If it does, then it may be justified as a system, even if at the same time it operates as a barrier to openness. If it does not, and in our view it fails on both counts, it clearly works against the interests of patients' safety.

28 Taking accountability first, clinical negligence litigation requires that there be someone (or some organisation) to blame for having been at fault. Thus, it institutionalises the notion of blame as the ultimate remedy. Accountability, on the other hand, suggests a system in which performance is assessed and reviewed against standards; blame may follow or be part of that process, but it cannot be that process. Clinical negligence litigation does not represent a systematic approach to accountability, far less to the proper analysis of error. Rather, it is an entirely haphazard process. Furthermore, any system of accountability, to be effective, requires that there be openness about who is accountable and for what. There is no such parallel in the system of clinical negligence litigation. Few cases ever actually see the light of day in court. Indeed in many of the more obvious cases of error, where it is clear to the trust, the NHS Litigation Authority, or a defence society, that a hospital or a particular professional was at fault, the claim is settled and no public airing of the issues ever takes place. [29] What might be learned from such cases cannot thus be shared across the NHS. Other hospitals and healthcare professionals, indeed even those in the same institution, may not learn of, and thus from, the case. Paradoxically, those cases which are not settled, and thus become publicly known, tend to be those in which it is less certain that a hospital or a particular professional was at fault. Thus, at its extreme, we have the bizarre situation under the current system of clinical negligence litigation, in which the worst excesses rarely come into view, while the more borderline cases attract the attention of the press and public. This is a far cry from any system for holding the NHS to account for its conduct and its errors.

29 What about deterrence: does clinical negligence litigation act as a form of deterrence? Patients who suffer harm through some kind of clinical error commonly express the view that the one goal which they seek to achieve through litigation is to prevent what happened to them from happening to others. According to this approach, for deterrence to work, there must first be a way to convey to the NHS the relevant information about the particular error. Secondly, there must be some sort of systematic approach, whether by sanction or incentive, to securing a change in the behaviour of healthcare professionals and of trusts, so that the causes of the error are identified and eradicated, or that their effects are mitigated. As regards deterrence through the dissemination of relevant information, we have already seen that the system of clinical negligence litigation operates against this aim. Many cases are handled locally and not widely known about. Of those that do reach the NHS Litigation Authority, many are settled without attention to any notion of learning the wider lessons. The scale of the opportunities lost by the NHS to learn from litigation is described in the CMO's report `An organisation with a memory'. One source of information alone, the NHS Litigation Authority's database, has the details of some 14,000 claims. It is an indictment of the current system (if such it can be called) that none of the sources described in the CMO's report has ever been used systematically to analyse the causes of error and to suggest lessons for the future.

30 The system of clinical negligence litigation could be said to fare equally poorly in terms of the second point we raised earlier: the deterrent effect of the types of sanction or incentives which it invokes. On one level, since the NHS and healthcare professionals historically have had access to little systematic information about the incidence of error across the NHS, they can hardly have been expected to resort to some systematic approach to deterrence, so as to tackle the root causes of error. At another level, clinical negligence litigation does have a significant deterrent effect on behaviour, but the effect is almost entirely perverse. By institutionalising blame it breeds defensiveness. The instinct is to cover up and deny. Errors cannot be treasured if, by acknowledging them, the healthcare professional or hospital may be sued. As Professor Troyen Brennan of Harvard University Medical School said recently, clinical negligence litigation frustrates monitoring, slows the movement to overcome the incidence of error, and feeds a cycle of public anxiety, more litigation and more secrecy. [30]

31 It is crucial for healthcare professionals and the hospital to discuss in an appropriate audit meeting what may have gone wrong. If a record is kept of such a meeting the records could later be acquired by legal representatives, through a process known as `disclosure', should a patient wish to pursue a legal claim against the hospital. What can be learned if nothing can be recorded and analysed? The incentives in practice, therefore, are not so much to manage and reduce error as to cover it up when it happens. So much may be at stake for the individual healthcare professional that, on balance, it still seems the easier course to stay quiet than to speak up, whether about their own conduct or that of a colleague. That is not to say that healthcare professionals invariably take the easier course. It is just that we must be clear and honest about which way the incentives drive behaviour.

32 Notwithstanding all these other arguments, perhaps the strongest argument against the assertion that clinical negligence litigation promotes deterrence is the most obvious one: errors continue to take place on a very significant scale. Indeed, the scale and the nature (particularly the multiple causes) of error are such that the system of clinical negligence litigation barely scratches the surface. At best, it could be characterised as sweeping up, occasionally, after the event.

33 It is our view, therefore, that the culture and the practice of clinical negligence litigation work against the interests of patients' safety. The system is positively counter-productive, in that it provides a clear incentive not to report, or to cover up, an error or incident. And, once covered up, no one can learn from it and the next patient is exposed to the same or a similar risk.

Footnotes

[25] `National Summit on Medical Errors and Patient Safety Research'. September 2000. `Statement of the Joint Commission on the Accreditation of Healthcare Organisations'. Available at www.jcaho.org

[26] Stanhope N, Crowley-Murphy M, Vincent C, O'Connor A, Taylor-Adams SE. `An evaluation of adverse incident reporting`. `J Eval Clin Pract' 1999; 5(1): 5-12. See also Seminar 6. The Royal College of Nursing. Position Paper

[27] We note in this respect a finding from research in the USA, which showed inter alia that very few victims of negligent injury filed malpractice claims. Weiler PC et al., `A Measure of Malpractice. Medical Injury, Medical Litigation and Patient Compensation'. London: Harvard University Press. 1993

[28] A tort is a civil wrong giving rise to liability and a remedy ordinarily in the form of financial compensation

[29] Around 800 new claims are settled annually by the NHS Litigation Authority arising from incidents in trusts; a further 700 new claims are settled annually by the medical defence organisations arising mainly from incidents in primary care. See `An Organisation With a Memory', p. 61

[30] `The Litchfield Lecture' May 2001. The Oxford Medical Society