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