Written evidence submitted by Joy Hibbins (NLR0020)

I am proving evidence primarily in relation to the following points which are specified within the terms of reference of this inquiry: 

• To what extent does the adversarial nature of the current clinical negligence system create a “blame culture” which affects medical advice and decision making? 

• How important is it that any clinical negligence system encourages lesson learning and commitment to change as the result of any action? 
• What changes should be made to clinical negligence claims to enable a move away from a blame culture and towards a learning culture in the NHS? 

• How can the Healthcare Safety Investigation Branch work to improve short term responses to patient safety incidences and therefore reduce the number of those who are forced to pursue litigation as a means of obtaining non-financial remedies? 

All of us who provide services (particularly services to vulnerable individuals) have a responsibility to protect those individuals from avoidable harm while under our services.

My view is that clinical negligence claims are much more about the claimant wanting an NHS Trust to “take responsibility” and “acknowledge and address the impact of harm”, rather than being about apportioning “blame.”

I am providing evidence as an individual who experienced avoidable harm after notifiable safety incidents which occurred under an NHS psychiatric service. I am also the CEO of a charity that provides services to individuals, and so I am acutely aware of service provider responsibilities. 

In my evidence, I am going to refer in particular to harmful incidents under psychiatric services (avoidable harm), which have been designated by NHS Trusts as notifiable safety incidents.

For many of us who eventually consider pursuing a clinical negligence claim against an NHS Trust, it is not about “blame”.  It is more likely to be about:

• The claimant wanting the NHS Trust senior management/board of directors to acknowledge and take responsibility for the harmful incidents, and to take responsibility for actions after the harmful act or acts (for example, a failure on the part of senior management to act appropriately, or follow the Duty of Candour procedures appropriately, after becoming aware that the notifiable safety incidents had occurred). How services conduct themselves after the incident/s often determines whether or not someone decides ultimately to pursue a legal claim (for clinical negligence).

• The claimant wanting the NHS Trust senior management/board of directors to acknowledge and address the impact of the harm on the individual or individuals, and

• The claimant needing the NHS Trust to provide compensation which will pay for treatment to “remedy” the harm, or to pay for care which would not be necessary, if the harm had not occurred. Additionally, or alternatively, financial compensation may alleviate a significant impairment of quality of life after harmful events.

Please can I be clear that it is about senior management (the board of directors) “taking responsibility” – not the individual clinicians who were involved in the notifiable safety incidents.

“Taking responsibility” is wholly different from “being blamed”.

Most of us realise that human beings are fallible. We can all make errors of judgment when under extreme pressure, or when we are overworked, or burnt out, or if we do not receive sufficient training or sufficient ongoing support and supervision (for example).

Many of us eventually consider pursuing (or pursue) clinical negligence claims not to place “blame” on these individual clinicians. It is far more likely that we consider pursuing a claim because the senior management on the board of NHS Trusts (CEOs, Deputy CEOs and Medical Directors, for example) did not act appropriately after the incident/s of harm, even when they had multiple opportunities to act appropriately. It is the board or senior management that we are seeking to hold to account.   

Litigants have usually provided NHS Trusts with multiple opportunities to “take learning” by the time they make a clinical negligence claim. This is my experience from supporting clients who have experienced the deaths of family members while under psychiatric services. They have often gone through years of recognised processes to try to help learning to be taken. 

Briefly, the following is my own personal journey after notifiable safety incidents under an NHS Trust which provided psychiatric services. I hope my experience will help to show why some of us reach the point of considering or pursuing a legal claim, and what outcome we are seeking.

I provided multiple opportunities for the NHS Trust to “take learning”:

I raised the matter informally and informed the NHS Trust that the incidents had occurred.

Subsequently I made a formal complaint. The NHS Trust did not uphold any aspects of my complaint, so I took the complaint to the Parliamentary and Health Ombudsman (PHSO).

     The NHS Trust did not uphold any aspects of my complaint

     The PHSO (ombudsman) fully upheld all aspects of my complaint.

     Three months after the PHSO upheld the complaint and made recommendations, similar incidents occurred again. Repeat of harmful incidents.

     NHS Trust designates these repeat events as notifiable incidents: Serious Incident Review.

     Despite the repeat incidents only three months after the PHSO recommendations, the PHSO declares that the Trust had complied with their recommendations i.e. The Trust had amended policy documents. Technically, that was “complying”.

The PHSO, when investigating my complaint, believed that one of the incidents provided evidence that there were “systemic issues”. The PHSO asked the NHS Trust to inform the Care Quality Commission of how it intended to address the issues. The NHS Trust subsequently made amendments to its policy documents.  Technically, “learning had been taken”. The Trust stated that it had made changes to its policies to prevent similar incidents happening again. But similar incidents happened only three months later, after the policy document had been amended.

I informed the PHSO, but all they could do was to ask the NHS Trust to inform the Care Quality Commission that similar incidents had happened again.  The PHSO told me that the NHS Trust had complied with the PHSO’s requirements by amending their policy documents. The PHSO cited the “limits of their powers” and that there was nothing more they could do.

It made me wonder what the point of going through the PHSO process was. It had not protected me (or other patients) from similar harm occurring again. An upheld PHSO complaint seemed meaningless. 

Therefore I turned to the Care Quality Commission (CQC). My conclusions were ultimately similar to those of the Joint Committee on Human Rights.

As harmed individuals or families of harmed individuals, we cannot rely on the CQC to intervene to protect patients. There have been far too many incidents in recent years which have evidenced this, including the incidents at Whorlton Hall, which were uncovered in a television documentary.

In my individual case, my impression was that the CQC simply contacted the NHS Trust, the NHS Trust provided them with various assurances, and that was it.  

The NHS Trust commissioned an independent psychological assessment which confirmed that the incidents (which occurred three months after my upheld PHSO complaint) had caused me “highly significant harm”.

The assurances from the NHS Trust to the PHSO and the CQC that “learning had been taken” did not protect me from further harm. 

After this, I asked to speak to the board of directors in the NHS Trust. I wanted them to see me as a human being, not a case. I wanted them to see the human impact.

At this stage, the NHS Trust formally acknowledged that harm had occurred. What was important after this was that support and treatment for the harm (a “remedy” for the harm) should be provided.

The NHS Trust informed me that I needed to have an independent psychological assessment to determine the “level” of harm. It took 18 months for them to arrange this. They selected the independent psychologist and they stated the terms of reference for his assessment. I complied with all of this.

     The independent psychological assessment concluded that the incidents caused “highly significant harm”

     The independent psychologist’s report refers to the events as “highly damaging”.

     Psychologist explains that the delays in addressing these matters compounded the level of harm

The psychologist recommended an extended period of psychological treatment. This psychological treatment has still not been provided for events which stretch back to 2014.

The initial harmful events took place in 2014. The PHSO upheld my complaint towards the end of 2017. The second lot of harmful incidents (notifiable safety incidents) occurred early in 2018. We are now approaching the end of 2021.

For seven years I have gone through the official processes that are available to me. I went beyond the official processes in asking to speak directly to the board of directors – simply as a human being, a psychiatric patient, outside all the official processes.

If we focus only on altering the “end product” – the litigation (clinical negligence system) I think we may risk missing how the entire system needs to be reformed before that point, so that patients and families don’t ever reach the stage where they feel litigation is their only route left, because they have already tried all the other recognised routes to allow “learning to be taken”.

My experience shows that the powers of the PHSO are extremely limited. Their rulings do not prevent further harmful acts, as my experience showed. In my experience, and the experience of many other individuals, the Care Quality Commission (CQC) has been entirely ineffectual.

In 2021, the NHS Trust finally confirmed to me that it had failed to follow its Duty of Candour process correctly after the incidents of 2014. It took seven years for them to confirm this. I first raised with the CQC in 2014 the fact that I believed there was a failure of the Duty of Candour, and I raised it several times subsequently with the CQC over the years that followed. The CQC said on each occasion that they were satisfied with the Trust explanations.

There appears to be a missing organisation in the system currently. There is no national body or organisation which focuses on the needs and welfare of the harmed individuals after notifiable safety incidents. There was no national body that ensured the NHS Trust met its Duty of Candour responsibilities towards me as the harmed individual.  There was no national body that ensured that the NHS Trust provided a “remedy” for the harm – the extended period of psychological treatment which their independent psychologist stated was required to address the “highly significant” psychological harm.

There should be a national body which monitors the actions of NHS Trusts after notifiable safety incidents, and ensures that NHS Trusts meet their responsibilities towards the harmed individual or individuals.

     Need for a national body which

     a) monitors NHS Trusts’ response after notifiable incidents which cause harm and

     b) ensures that patients who have sustained harm receive appropriate help/remedy for the harm – and in a timely manner.

In my experience, the NHS Trust’s senior management only acted when an official body (such as the PHSO) stood over them and informed them that they needed to take responsibility, and take action to prevent further incidents of harm. It was the PHSO that suggested that they amend their policies and procedures, so the NHS Trust did this, but with little effect (as the subsequent repeated harm demonstrates). But none of this came originally from NHS senior management themselves.

I often wondered how we can hold NHS senior management to account, if they are not responding appropriately after serious incidents or notifiable safety incidents. There are recognised official routes that we can follow, if we have concerns about the conduct or competence of doctors or nursing staff: The General Medical Council (GMC) and the Nursing and Midwifery Council (GMC). There does not seem to be an obvious way to raise concerns about the conduct of NHS senior management such as Chief Executive Officers, Deputy CEOs, and Medical Directors (for example).

How can we ensure that senior management/NHS Boards are acting according to certain standards – and what can be done, if they don’t?

Bringing a legal case against the NHS

Most of us find it abhorrent to bring a legal case against the NHS. I think many of us feel a strong sense of guilt about this. Most of us will only do it, when we can see no other route to access the care and treatment we need to remedy the harm caused by the notifiable safety incidents, because the NHS Trust has not arranged or provided it.

The litigation process is not just adversarial for the NHS Trust staff. The NHS Trust’s lawyers may also take an adversarial approach towards the claimant (the psychiatric patient, in claims resulting from harm under psychiatric services). The litigation process can feel like a brutal experience for those who have experienced the harmful acts. Individuals may go through this litigation process at a time when they are much more vulnerable as a result of psychological harm, and less able to withstand the hostile environment of a legal process.

Litigation can be an extremely difficult and isolating process for a psychiatric patient to go through, and there is a significant risk that the process will cause a further deterioration in that person’s mental health.

Briefly, I would like to point out how all this can be avoided, if the NHS Trust senior management acts differently as soon as they became aware of the incidents:

• If the NHS Trust acknowledges notifable safety incidents quickly, and seeks to provide a remedy for the harm which has been caused – and shows a genuine desire and intention to act to try to prevent similar harmful events from occurring in the future.
• A prompt acknowledgement of mistakes is likely to result in the patient respecting the clinicians’ honesty and the Trust’s openness and integrity. And the patient is likely to continue to trust the NHS service – and use its services. That is particularly important if it is a psychiatric service. This would certainly have applied in my situation – I would have respected the honesty and, importantly, the taking of responsibility.
• The Trust could avoid years of time and energy spent on the process.

Finally, I think my experience shows that an NHS Trust can say (and even apparently demonstrate, through changes in policies, for example) that “learning has been taken” when in reality the same systemic issues or failings are repeated, despite the changes. It probably needs an external body to monitor whether learning has really been taken – and this is of course a huge challenge. For this reason, many of us feel that rather than expecting that the litigation process (in NHS claims) should be about “a culture of learning and avoidance of future harm”, we should expect that this culture of learning and prevention of future harm is addressed outside the litigation process. The current system (outside the litigation process) is not preventing future harm effectively enough. The current system is not ensuring that learning is genuinely taken. “Learning has been taken” has become a hollow phrase for many of us – it is something which is said frequently. In my case, it proved to be quite meaningless.

It should not require a litigation process to ensure that learning is taken after harmful events.

It may be better that the litigation process focuses on the harmed individuals, and what they need in order to survive the harm, as well as what they need in order to have a chance of a reasonable quality of life after the harm.

Oct 2021