A court award of damages to a patient for injury caused by medical treatment is evidence of a failure. Not just a failure to avoid harm—that merely starts a wasteful and distressing process. Litigation forces patients and clinicians into opposite camps, delays the patient getting needed support, obstructs rebuilding of trust, obscures learning, and is enormously expensive. Overall the legal process diverts attention away from what I believe is the moral duty of the state to put right damage it has caused to its citizens fairly and promptly. It need not be like this.
Successful medical treatment requires many things to go right. The first requirement is to provide the patient with a comprehensive understanding of the choices available, and the risks and benefits for them of each of them. The range of outcomes has to be explained and all the patient’s questions answered honestly. The choice is the patient’s to make, not the doctor’s. When properly handled this process develops that most basic of requirements of successful medical treatment—trust. The patient is then a truly willing participant in the treatment.
Parallel requirements exist at the end of treatment. The patient needs to be fully involved in the assessment of the outcome, and in decisions about further action. This is particularly important when the outcome has been unexpected, unwanted, and harmful. Patients are then entitled to an immediate honest and open explanation of the position, and an honest admission of any limits of what is currently known. They should be offered meaningful involvement in the processes of investigation and review. The relationship of trust will be lost if candour is absent, if appropriate apologies, empathy, and a promise of learning are not offered, or there is a delay in providing any of these.
One of the main reasons given for bringing a claim is the lack of an acceptance of responsibility by clinicians and their employers—a frank explanation of what went wrong and why, an apology, and a determination to prevent a recurrence. When the patient or relative suspects a cover-up, or a failure to learn lessons, they will lose faith in the system, become angry, and demand people are held to account. So often lawyers hear their clients say, “All I wanted was an apology.”
This breakdown can result unintentionally from an instinctive defensive reaction of clinicians who, regardless of whether or not the outcome was actually avoidable, feel upset, guilty, and fearful. When a claim is made they can feel singled out, unsupported and worried about possible sanctions. Clinical negligence claims tend not to be discussed with colleagues and little help is offered about what to do. Consequently, concern for repercussions of any apology or admission of error can override their duties to the patient.
GIRFT and NHS Resolution’s Learning from Litigation Claims best practice guide highlights the need to increase awareness of litigation claims in each department. More openness enables clinicians to learn from incidents and to be supported. In turn they can support their patients through a mutually difficult experience.
GIRFT’s review meetings with providers across England have shown that clinicians and managers are often unaware of the claims against their department. Learning and improvement is facilitated by clinicians working alongside legal teams in the management of claims. The new guidance provides a framework to deliver this, suggesting measures such as:
- Dedicated clinical staff to assist trust legal teams, with sessions incorporated into job plans;
- Regular discussion of claims with clinicians in forums such as clinical governance or multidisciplinary meetings;
- Information for clinicians about the claims process and better access for them to legal teams;
- Alerts to clinical staff when a claim has been initiated with offers of support throughout the process;
- Partnership and involvement with patients, families and carers in investigations, ensuring openness.
This approach to future claims is important, but equally historical claims should be reviewed. Provision of an annual trust specific litigation data pack to help trusts identify targets for improvement is critical. The structured review of previous claims led by legal departments and with the support of clinicians, panel law firms and NHS Resolution is key.
Historically, claims learning has not had the attention it needs to maximise improvements for patient care. It needs to be given the same importance as learning from clinical incidents. The triangulation of learning from claims, complaints, incidents and inquests should be fundamental to clinical governance and future clinical improvements.
I look forward to all patients who have suffered unexpected and unwanted harmful outcomes having the chance to be part of the learning process. This offers the best chance of maintaining the patient’s trust, promoting appropriate remediation for injury, avoiding a hunt for staff to blame and punish, and improving safety. Not least it is likely to reduce the inexcusable cost of negligence claims. This welcome guidance is a promising advance towards that goal.
Robert Francis QC is chair of Healthwatch England. He has chaired several health-related inquiries, including two inquiries into the care provided by Mid Staffordshire Foundation Trust and the Freedom to Speak Up Review into the treatment of NHS staff who raise concerns. He is the honorary President of the Patients Association, a trustee of the Point of Care Foundation and the Prostate Cancer Research Centre and Honorary Fellow of the Royal College of Anaesthetists, the Royal College of Surgeons (England) and the Royal College of Pathologists.
Competing interests: None declared.