UK: Giving Serious Untoward Incidents Some Serious Consideration

Last Updated: 7 March 2013
Article by Sam Holden

The Serious Incident Requiring Investigation (SIRI) report is becoming increasingly used in the litigation process. As a result, the drafting and content of these reports is becoming more and more important. This article sets out a few simple steps which will assist in minimising the danger that the report may prejudice any potential defence in the event the incident becomes the subject of a claim.

It is an ambition of the NHS to be a learning organisation – to identify when, where and how errors occur and to learn how to minimise the risk of errors occurring again. Part of that learning derives from investigating serious incidents which may occur, such as an incident resulting in death or serious harm to a patient. All Trusts will be aware of their own local policy, compiled in association with their local Primary Care Trust and Strategic Health Authority, setting out when an incident requires investigating and to whom the outcome of such reports are reported.

There is, inevitably, a tension between the desire to improve patient safety by identifying avoidable errors and avoiding self-incrimination. SIRI reports and Root Cause Analysis often identify weaknesses in the provision of care which can, as has been described in inquests and claims subsequently forwarded to this firm, provide a ‘road-map for the prosecution’.

Healthcare organisations should be aware that the SIRI report can be subject to disclosure by a number of means, including:

  • Under a Freedom of Information Act request

  • At the request of the coroner, or by voluntary disclosure to the coroner

  • During the course of a civil claim

Not only is the SIRI report subject to disclosure, but so are drafts of the report and any other emails, letters or attendance notes which relate to the report.

It is right that the NHS should be transparent in its dealings with those affected by a serious untoward incident, and it is right that where avoidable errors occur they should be identified and remedied as far as practicable. However, it is our experience that there are a number of common themes which result in reports which either make admissions

which may not be warranted, or which may prejudice the prospects of successfully defending a claim. These themes include the following:

1. Fact or expert evidence?

SIRI reports are inevitably based on the statement of the treating staff, to explain the circumstances of the incident. It would be expected, therefore, that those statements closely reflect the content of the contemporaneous medical records with further clarifications of fact where relevant. It is common, however, for witnesses to consider it necessary to offer an opinion – for example, that the orthopaedic team delayed making a referral, or that despite misreporting a CT scan the radiologists believe that A&E were also at fault for not undertaking a lumbar puncture.

There may well be genuinely held concerns regarding the care received. However, it is not the role of the witnesses to the incident to reach those conclusions; that is the job of the author of the SIRI report. Witnesses should be encouraged to keep their written statements factual, accurate and chronological. If there are concerns which they would wish to air, there may be better channels for so doing than the statement.

2. Going for gold?

NHS Trusts understandably, and laudably, aim to provide a gold standard of care to all patients and judge their errors by that standard. Lawyers, by contrast, will seek to pursue a claim based on a reasonable standard of care. It is self-evident that while care may not have achieved the Trust’s own benchmark, it does not necessarily equate to negligent care. The unqualified identification of failings, without a clear expression of the standard by which those failings have been identified, will cause problems in any future defence.

3. Is the language appropriate?

The report is a dispassionate review of an incident, to identify avoidable errors. It is rarely necessary or appropriate to place a value judgement or qualitative assessment on those errors – and by describing an error or omission as a “gross failure”, Trusts may be opening themselves to potentially damaging coronial findings.

4. Where’s the logic?

From time to time we encounter conclusions which are not easy to support from the evidence upon which the report is professed to be based. Trusts should ensure there is an expressed logical underpinning for the conclusions, both positive and negative, which it reaches – for example, where (in the case of a neonatal death following shoulder dystocia) a fetal ultrasound scan raises the suspicion of maternal diabetes, why was it reasonable not to undertake a glucose tolerance test? The conclusions a Trust reaches are very often appropriate, but the basis of those conclusions needs to be clearly expressed.

5. What’s the response?

The report is intended to identify areas where improvements can be made to minimise the risk of recurrence. It follows, therefore, that there should be an action plan to follow those improvements through. Such plans would need to be clear, specific and auditable, and identify when, how and by whom they are to be implemented. Very often, the existence of a plan would convince a coroner that a Rule 43 recommendation was not required. In other circumstances, the relatives of an injured patient may feel more reassured that the expressed willingness to learn is more than rhetoric.

SIRI reports are an important tool to aid learning and improve services. Errors should not be hidden and identifiable improvements should be the subject of robust action plans. However, an error is not always negligent and careful drafting of the SIRI report should ensure that it cannot be used to unfairly draw that conclusion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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