New law ‘will make NHS more open’ about harm


A NEW law re­quir­ing health boards and care homes to be open about in­ci­dents of harm will make whistle­blow­ing “less nec­es­sary”, one of Scot­land’s top medics has said.

Pro­fes­sor Ja­son Leitch said the duty of can­dour leg­is­la­tion, which comes into ef­fect from to­mor­row, will move the NHS closer to the air­line in­dus­try’s no-blame cul­ture, which has been cred­ited with help­ing to re­duce ac­ci­dents by en­cour­ag­ing trans­parency.

Mr Leitch, the Scot­tish Gov­ern­ment’s na­tional clin­i­cal di­rec­tor for health­care qual­ity, said: “There is def­i­nitely some­thing to learn in how that in­dus­try has dealt with harm over the last 20 years. They’ve moved to a cul­ture of open­ness and trans­parency that is en­vied in other in­dus­tries. It’s not com­pletely trans­fer­able.

“Ev­ery time I give a talk about the air­line in­dus­try peo­ple get ir­ri­tated be­cause they think I think health­care is like planes – it’s not. But there is def­i­nitely some­thing about air­line staff be­ing able to tell the truth in a safe en­vi­ron­ment and us­ing it for learn­ing.”

Un­der the leg­is­la­tion, all care providers will be re­quired to pub­lish an an­nual re­port dis­clos­ing the num­ber and types of ad­verse events where pa­tients or res­i­dents suf­fered “un­in­tended or un­ex­pected harm”.

This would in­clude deaths or se­ri­ous in­jury.

The or­gan­i­sa­tions will be legally re­quired to no­tify the rel­e­vant reg­u­la­tors, such as Health­care Im­prove­ment Scot­land or the Care In­spec­torate, and to ar­range a meet­ing with the in­di­vid­ual af­fected and their next of kin. At this meet­ing, the pa­tient or res­i­dent and their fam­ily mem­bers will be en­ti­tled to ask ques­tions about what hap­pened, be given all the avail­able facts as well as an apol­ogy, and told what steps are be­ing taken by the or­gan­i­sa­tion to in­ves­ti­gate the in­ci­dent and pre­vent a re­peat of it in fu­ture.

The duty of can­dour leg­is­la­tion, which is al­ready in place in Eng­land and Wales, has been de­vel­oped in the wake of the Mid Stafford­shire hospi­tal scan­dal in Eng­land where an es­ti­mated 400 to 1,200 pa­tients died as a re­sult of poor care at Stafford Hospi­tal be­tween Jan­uary 2005 and March 2009.

Cost-cut­ting and chronic staff short­ages were blamed, but the Fran­cis In­quiry crit­i­cised “a com­plete fail­ure of man­age­ment to ad­dress se­ri­ous prob­lems” and found that staff who did speak out “felt ig­nored” or “were de­terred from do­ing so through fear and bul­ly­ing”.

Mr Leitch, who is also a den­tist and oral sur­geon, said it was not an al­ter­na­tive to whistle­blow­ing but should re­duce the need for it in re­la­tion to pa­tient care.

He said: “That route is avail­able, and should be and al­ways will be avail­able. In a health and so­cial care sys­tem of our size, a whistle­blow­ing sys­tem is both wel­come and should be there and noth­ing is go­ing to re­place that.

“The the­ory is that over time that would be­come less nec­es­sary be­cause what cre­ates the ne­ces­sity for that is a non-open, non-trans­par­ent cul­ture.”

Health boards are al­ready re­quired to carry out in­ter­nal in­ves­ti­ga­tions known as Se­ri­ous Ad­verse Event Re­views (SAERS) fol­low­ing cases of un­ex­pected harm or death. How­ever, there has been crit­i­cism of in­con­sis­tency and se­crecy in how they are han­dled. A pre­vi­ous free­dom of in­for­ma­tion re­quest re­vealed NHS Ayr­shire and Ar­ran con­ducted only seven SAERS be­tween 2013 and 2017, com­pared to 33 in Orkney and 173 in neigh­bour­ing La­nark­shire, lead­ing to ac­cu­sa­tions that it was “cov­er­ing up” se­ri­ous in­ci­dents.

A BBC in­ves­ti­ga­tion in 2017 also found that while 723 “sig­nif­i­cant ad­verse events” had been recorded in ma­ter­nity units across Scot­land dur­ing a six-year pe­riod, only 37 per cent had been con­sid­ered se­ri­ous enough to trig­ger a SAER.

Some ex­perts are con­cerned that sim­i­lar in­con­sis­tency may ham­per the duty of can­dour law, given it will be up to an in­de­pen­dent health­care pro­fes­sional, such as a doc­tor, to ad­vise whether the harm sus­tained is a no­ti­fi­able in­ci­dent.

Dr Michael Devlin, head of pro­fes­sional stan­dards at the Med­i­cal De­fence Union, said: “There may be some con­fu­sion within or­gan­i­sa­tions and among pa­tients, car­ers and rel­a­tives about the sort of in­ci­dent that will be cov­ered by the statu­tory duty and even dis­pute about the ex­tent of that duty.”

Picture: Martin Shields

„ Dr Ja­son Leitch, na­tional clin­i­cal di­rec­tor for health­care qual­ity in NHS Scot­land, out­side the Scot­tish Gov­ern­ment build­ing at At­lantic Quay.

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