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The CQC Deaths Review was published earlier today which makes for very difficult reading. The most shocking issue arising is the widespread failure to involve patients’ families in investigations when there has been a death.
The CQC’s review looked at NHS Trusts in England providing acute, community and mental health services, placing a particular focus on people with mental health conditions and learning disabilities.
Essentially, the Review confirms what most Claimant medical negligence lawyers have thought for a long time, namely the NHS is failing to: –
- identify deaths that need investigating;
- investigate properly;
- to learn lessons, improve care or prevent future deaths.
Speaking as a clinical negligence lawyer I am firmly of the view that if these incidents were properly investigated and with families fully involved and engaged as part of that process the number of clinical negligence claims pursued would fall significantly for 2 main reasons.
First, proper investigation would enable lessons to be learned from preventable errors. In this regard, the Review provides strong evidence to suggest that rather than learning from mistakes those errors are often repeated. This should not be happening and cultural shifts are needed at top levels in Trusts to put patient outcomes over “damage limitation”. Fewer avoidable errors equals fewer clinical negligence claims. In any event the prospect of a legal claim should not be a reason for failing to investigate an incident properly.
Secondly, the primary objective of a family who have lost a loved one is to understand why. I am yet to meet a family whose motivation for seeking legal advice was monetary (hardly surprising when you consider the current derisory level of bereavement damages but that’s for another day).
Families deserve honest answers and active support to help them come to terms with their loss. It is clear that many investigations carried out are inadequate and fail the families concerned. The response is often defensive – the shutters come down and rather than being open with families an adversarial them’ and ‘us’ attitude emerges. This at a time when bereaved families need support, counselling, and reassurance.
As Peter Walsh, Chief Executive of the patient safety charity Action Against Medical Accidents has said “It is impossible to overstate the damage and distress defensive responses cause families”.
In my experience bereaved families only take the legal route when all other avenues have been explored and they have still not been provided with any answers or help in understanding what happened. This often leaves them feeling unable to come to terms with their loss, compounding their grief and with nowhere else to turn but to seek some sort of legal redress.
Most people understand that mistakes do sometimes happen and that the harm or death was not caused intentionally. Accordingly, if the Trust’s internal investigations were carried out openly and collaboratively with families I am sure this would reduce the number of families seeking legal advice in the first place. They would feel satisfied that there concerns have been listened to and that the chances of the same thing happening to someone else has been reduced or eliminated. In many cases this would be sufficient for families to ‘draw a line’ under the matter and to try and get on with the rest of their lives. Litigation of this nature is very stressful and time consuming and most families are keen to avoid it if at all possible.
It can only be hoped that finally, this report will lead to change – the extent of the neglect in the NHS system has been exposed – and commitment is now needed to improve things. As Julie Mellor of the Parliamentary and Health Service Ombudsmen which investigates complaints about poor care has said the report provides a “golden opportunity” for NHS leader to learn from mistakes and encourage an open, honest working environment where NHS staff do not fear reprisals.