8. Too scared to care (matter for discussion)

Cambridgeshire Branch

That this meeting of RCN Congress discusses whether or not the fear of litigation overrides our commitment to care.

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Progress report

Action on this item is combined with item 21 - Working in a blame culture.

Council Committee: NPPC
Committee decision: Covered by existing work
Council member/other member/stakeholder involvement: Susan Fern,
Anne Wells, Maura Buchanan
Staff contact: steve.jamieson@rcn.org.uk , howard.catton@rcn.org.uk

The RCN has carried out a significant amount of work around the issue of litigation and indemnity schemes since the debate.

In England, the College was represented on, and contributed to, the Department of Health’s independent review of the requirement to have insurance or indemnity as a condition of registration as a health care professional. The review made its report in June 2010. Particular emphasis was put on improving the education of health care professionals around personal accountability and indemnity.

The RCN lodged a request for a judicial review of the Independent Safeguarding Authority, in which the College challenged the nature and scope of the scheme. The RCN is also looking at the implications regarding indemnity of the recent White Paper on the NHS, as well as Lord Jackson's review of legal costs in clinical negligence claims.

The RCN is also reviewing its response to the proposal to introduce a statutory duty of candour on health care organisations/professionals when errors arise in health care delivery.

The RCN in Scotland is involved in the government’s review of no-fault compensation schemes for clinical negligence claims. In Wales, the RCN is evaluating the introduction of the NHS redress measure for handling complaints/claims.

Ongoing work includes regular user group meetings with the NMC on improving processes for handling allegations of professional misconduct/unfitness to practice, which are growing in numbers each year. The RCN’s own indemnity scheme is to be reviewed in 2011, including a tender in the autumn for clinical negligence solicitors to defend members.

The RCN is holding a series of workshops, which started in autumn 2010, on the legal aspects of nursing care, including accountability, standards of care and litigation, as well as contributing to workshops, seminars and conferences across UK throughout the year.

Debate report

Marcia Turnham from the Cambridgeshire branch opened the debate by highlighting that nursing staff would continue to care despite a recent rise in complaints which were increasingly leading to litigation. Was the recent increase in numbers of legal claims because we now live in a more litigious world with unrealistic public expectations or are standards of care actually declining? She asked.

Marcia addressed the issue of staffing and skill mix levels and asked should the RCN’s recommendations o of 60 registered staff to 40 non-registered staff should be seen as the minimum level rather than an aspiration. Encouraging members to debate the issue, she acknowledged that poor care exists but urged members not to always fear legal action.

John Hill from Scunthorpe branch told Congress delegates that relatives in accident and emergency departments often expect staff to provide miracles and are quick to refer to injury lawyers who often advise that that recompense should be available. Despite this, he asked members not to be frightened of caring for patients.

Susan Langridge, who is currently studying law, encouraged members to take time at the end of their working day to document reasons why any paperwork had not been completed – highlighting staff shortages where appropriate. Risk Manager Catriona Forsyth recommended the use of an incident decision tree. She advised this was a good way to highlight systems failures or staffing level issues and said that the use of this tool often proves that an individual nurse is not to blame for incidents.

South West Council Member Jane Bovey expressed her concern that an increasingly litigious world would make nurses too afraid to continue in the profession. She urged members not to be too intimidated to care. “Document, be safe and carry on caring,” she said. Expert nurses in the United States cannot afford the insurance to practice, Bethann Siviter told Congress as she expressed her concern that nurses are too frightened to stop and help in the street. She urged members not to be frightened to say sorry when mistakes are made as it show you are human and that you care.

Mike Hayward urged members to strive to do the right thing. There is nothing to fear from litigation if you work within the scope of the NMC Code in an open, honest and transparent manner, he said.

Background

According to the NHS Litigation Authority 6,080 claims of clinical negligence against NHS bodies were received in 2008/9 – up from 5,470 claims in 2007/08 – while £769 million was paid by the Authority in connection with such claims during 2008/9 – up from £633 million in 2007/8.

In 2008 the Medical Defence Union paid out £31 million in discretionary indemnity claims and costs (compared to £25 million in 2007) on behalf of its members. The Medical Protection Society’s reported claims reserves increased by £60 million to £398 million.

Under the current law (applicable across all four countries) for a claim in negligence (or delict in Scotland) to succeed, there must be a duty of care owed by the defendant to the claimant; a breach of that duty by the defendant; and loss or injury suffered by the claimant which is causally connected to the breach.

Health care staff owe a legal duty to patients once they assume responsibility for a patient’s care. The standard of care is that of the ordinarily competent practitioner, and in law this reflects what is acceptable to a responsible, reasonable and relevant body of professional nursing (or medical) opinion – in other words, what would be considered ‘common practice’. The courts generally defer, save in exceptional circumstances, to the standards of care set by the health professions.

The Compensation Act (Parliament, 2006) aimed to improve awareness of this aspect of the law by stating the standard is one of ‘reasonable care’, and the Act contains a provision to the effect that in claims of negligence an apology, offer of treatment or other redress shall not in itself amount to an admission of liability.

On 1 May 2009 the NHS Litigation Authority issued a circular to the Chief Executives and Finance Directors of all NHS bodies, explicitly endorsed by the RCN and other bodies including the National Patient Safety Agency, reiterating earlier advice that an apology and explanation to a complainant do not constitute an admission of liability. The circular was intended to encourage NHS bodies to offer earlier apologies and explanations often desired by patients and their families.

In 2009 a proposal from Scottish Government for a Patient’s Rights Bill was consulted on, and the RCN in Scotland raised a concern that such a bill might increase the fear of litigation and a blame culture. Work is underway to scope a possible ‘no fault compensation scheme’ and a working group will make its recommendations at the end of 2010; the RCN is represented on this group.

In July 2008, the Welsh Assembly Government passed the NHS Redress (Wales) Measure to improve the handling of clinical negligence claims to reduce legal costs and delays, particularly in relation to lower value claims; the patient will still have to show that hospital negligence caused the injury.

In Northern Ireland, the DHSSPS guidance Safety first: a framework for sustainable improvement in the HPSS (2006) seeks to create an informed, open and fair safety culture within the service and a framework for reporting, investigating and learning from adverse incidents.

References and further reading
Department of Health, Social Services and Public Safety (2006) Safety first: a framework for sustainable improvements in the HPSS, Belfast: DHSSPS.
www.dhsspsni.gov.uk/sqsd_safety_safety_first

NHS Litigation Authority (2009) Apologies and explanations, London: NHSLA, (Circular to Chief Executives, Finance Directors, All NHS Bodies; 1 May 2009)
www.nhsla.com/NR/rdonlyres/00F14BA6-0621-4A23-B885-FA18326FF745/0/ApologiesandExplanationsMay1st2009.pdf