The Health and Social Care Committee held a second session of the inquiry into the safety of maternity services in England and focused on the role of litigation.
Dean Russell was asked consider whether maternity safety could be improved by changes to clinical negligence and litigation processes, and to what extent the current system contributes to a "blame culture" and prevents learning.
James Titcombe OBE – bereaved parent
Darren Smith – bereaved parent
Helen Vernon - NHS Resolution, Chief Executive
Dr Pelle Gustafson - Lof (Swedish Patient Insurer), Chief Medical Officer
Dr Jenny Vaughan - Consultant neurologist & DUAK, Learn Not Blame, Law and Policy Lead
Dr Sonia Macleod - Researcher in Civil Justice Systems, Centre for Socio-Legal Studies Oxford University
Transcript of Dean Russell's questions
Dean Russell: My question ties into the previous questions. How do the learnings from these awful incidents get fed back into the start of training? It sounds to me like a lot of the challenge is that it waits for an incident to happen and then there is a court case, or whatever, and the learnings could be months if not years later. I understand that they might be reported back to the trust and perhaps shared more broadly, but are they also being shared in the early stages of training for new doctors, nurses and maternity staff?
Helen Vernon: There are two things. First, the royal colleges have a big role to play. The Royal College of Obstetricians has something called “Learn and Support” into which we feed information. It aims to get to obstetricians in training so that they pay attention to the lessons that come out of legal claims and feed them into their everyday practice. There is a route through the royal colleges. The Royal College of Midwives also has a role to play. The area of training where we are most keen to get involvement is in skills for engaging with families—communication skills. That is something we think is probably lacking in professional training at an early stage. We hear that people have an ingrained belief, for example, that you should not admit liability on a case, and you should not be open with a family because it might result in litigation. That is something we have constantly tried to debunk, to encourage candour, and it could be built far more effectively into clinical training.
Dean Russell: Can I ask briefly about near misses? In the awful cases like those we heard about today the worst possible outcome happened, but I imagine that there may be very many other examples where the ultimate outcome was not the same, but the lead-up to it could have been. Is there monitoring of near misses, once you have found out what the pathway was to those awful cases?
Helen Vernon: It is an interesting question; 50% of the cases we get do not result in a compensation payment, and we only see the tip of the iceberg. Lawyers generally only put forward one in every 10 cases that they see, so there is an awful lot of information that is relevant but does not result in a compensation claim. Again, we only see the thin end of the wedge. We do not get to see the many incidents or near misses that happen in the NHS that do not come to us as a claim. That is where the role of incident reporting and the work that NHS England and Improvement are doing is extremely important.
Dean Russell: My question is about the culture of learning we have touched on. We live in a digital age. From everything we have heard so far, it sounds to me as if this is very much about person-to-person reporting of concerns and issues. As I understand it, the NHS has well over 1 million members of staff. Has there been any investigation of, or a look at, the use of technology to enable staff anonymously to report concerns, share learnings or identify areas for improvement? If that has been looked at, I would be interested to find out about it. If it has not, do you have thoughts about why? Is there a concern that, if every member of staff shared learning or concern about issues, it could open a Pandora’s box of problems that it would be easier to be ignorant of than to address?
Dr Vaughan: The first important thing is that there should be a presumption of good intention, before we go anywhere else. Most staff in the NHS come in to do a good day’s work. I am not an expert in error, but I know that people who have looked at it have found that there are hundreds and thousands of errors that could happen each day. They only don’t happen because of the good intentions of the staff. The other worry is that we should not be driven just by outcome. If someone dies, or some awful thing happens, we suddenly become very focused, but our approach should always be consistent in each case, whether something does or does not happen. Bringing in that consistency is fundamentally important. If you do not do that, you end up with people being horribly reactive when bad things happen. That is why you get the culture of fear. Technology has a great deal to do with it. We already have the Datix system in our hospitals, where people can register things. Sadly, you will not be at all surprised if I tell you that Datix is also used as a weapon in healthcare. I have a feeling that if I wandered into a Swedish hospital that would not be the case. They are obviously doing something right there. We need to have a very careful look at how we do it. We have the stuff in place. We have Datix. We have committed staff who, in general, have good intentions. It is about using all of that. I absolutely believe—I know—that, when things have gone wrong in maternity in particular, it is because of simple things like the fact that the doctor did not have the full notes of the patient’s pregnancy and was not aware that the baby was not growing well at that stage. They did not have the notes and they were dealing with all sorts of other things at the same time. Very simple things like streamlining patients’ notes and having access to full electronic notes would help with that. There are very simple errors that software and technology could help us with, but that is not the whole answer. The answer has to include good intentions, not being focused just on bad outcomes, but trusting staff, and studying hard other nations that have got the just culture more in place than we have and learning from them.
Dean Russell: My question is about how this ties together across the NHS and social care. We talk often, especially today, about compensation to families. This will affect people’s lives for decades to come, especially the lives of babies and children who have been severely disabled, and the cost of that to the system is immense as well. Has there been any economic assessment of the cost to the NHS and social care when failings happen? How is that factored into putting a similar amount into prevention, so that those things do not happen in the first place? We talk about millions through compensation. Obviously, that is essential for the family, but there are underlying costs as well.
Dr MacLeod: Absolutely. Yes, there has been an assessment, but I am probably not the best person to talk about the detailed economic analysis, I am afraid. I am not an economist. The one thing that is incredibly clear is that harm prevention—reducing numbers down to the bare minimum—is far and away the most effective option for the use of money. We are very clear that Sweden’s rates are far lower than ours, so it can be done. When it comes to prioritising, I am afraid that the cost benefit analysis of each of the interventions is more detailed economics than I am capable of. Q129 Dean Russell: Forgive the question—it is no problem if you do not know the answer—but I would be very interested to know whether these costs are looked at from both the NHS and the social care side of things. A lot of support is given at home, through care outside hospitals and through GP surgeries. Dr MacLeod: They are looked at. The other thing is that we have international comparators as well. We look at what we do here, but we also need to look to international comparators. There are birth injury compensation funds in the United States. There is one in Florida and one in Virginia. There are schemes like the Swedish scheme, and the Accident Compensation Corporation in New Zealand. Each of those has a different balance of providing social care, nursing care, healthcare, home adaptations and things like that. It is not as if we are the only place we can look to. We can look outside the UK, but it is far more nuanced and detailed economics than I can do, I am afraid.