For several years now the NHS (less so the private providers of healthcare) have reviewed their approach to incidents where something goes wrong. There is of course the duty of candour which requires all NHS staff to act in a transparent way where things have gone wrong. NHS Resolution, who deal with claims, provide guidelines and advice in these circumstances. As a clinical negligence specialist dealing with claimants, the usefulness of the duty of candour varies somewhat depending on whether it is really applied.
The result of failures to make an early admission is often that the clients start litigation. The patient has no choice but to consider litigation to receive an appropriate response and also to obtain compensation for the harm that has been caused. Litigation is a slow process, particularly where there is a failure to admit fault and harm. It can mean that there may be three or four more years before that issue is resolved and the claimant obtains either settlement or interim payments to aid their financial needs.
In this period there isn't an obvious source of treatment and assistance for claimants. In essence claimants are left in limbo awaiting a decision leaving them without the care they need for years. However regardless of whether they need the compensation or not, the process is so slow and the failure to admit is so common that it means that most claimants are waiting for years before in many cases the inevitable occurs and there is an admission of fault.
By way of an example, I have case in which a claimant has had an amputation as a result of significant and lengthy interventions which have not dealt with underlying infections over several years. Our orthopaedic surgeon indicated this is "barn door" negligence. Our plastic and microbiology experts confirmed the same. Some four years down the line we finally have an admission of fault. This was always a case in which the circumstances were so clear that the admission should have been made at the outset. Yet many years after the duty of candour, several years after the issue of proceedings, it is only at a late stage that liability is admitted.
It does not take a genius to work out the distress that has been caused to a claimant and this is not an unusual scenario.
Leaving aside however the issue of time – the circumstances which give rise to claims are often similar. This was a failure to diagnose and deal with infection amongst other matters. I have had several cases with similar issues. I am sure others have too. How is it then that the same mistakes are being repeated? How is it that the medical and nursing professions are not learning from the mistakes of the past?
Robert Francis QC who dealt with the Stafford inquiry said "Litigation forces patients and clinicians in to opposite camps, delays the patient getting needed support, building of trust and is enormously expensive ... the moral duty of the state is to put right damage it has caused to citizens fairly and promptly."
I don't think there are any clinical negligence solicitors representing patients who would not feel that that was exactly right. I am not entirely sure that there will be many defendant solicitors who would not think that was right either. Yet the failure to learn and to engage with patients when something goes wrong means that this opportunity is lost.
NHS Resolution has now developed a guide highlighting the need to increase awareness of litigation claims in each department. From the point of view of the patients' solicitors this must be a good proposal. Clinicians should learn from the mistakes that have been made in their trust or in others. That information should be made available to them. Mistakes in their areas of practice, however unfortunate, must be valuable learning tools. It allows practitioners to avoid perhaps areas of negligence but also to perhaps admit mistakes at an earlier stage, preventing delays and actually complying with the Duty of Candour.
The role of the NHS must be not just to develop new technology, new medical treatments and different treatment plans, but also to learn and adapt to what has gone wrong. This is a wealth of experience and knowledge which doesn't appear to be used for the good of practice or patients.
The guide from NHS Resolution must be welcomed. However, it requires a sea change in attitude from the practitioners with earlier and more significant admissions as early as possible, rather than when forced by a legal team on the other side. Patients deserve better. Hopefully NHS Resolution has found a useful way to improve matters for practitioners and patients. That can only be good news.
Originally published May 25, 2021
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