I was recently sent the updated leaflet from the NHS Resolution (the legal section of the NHS) entitled “Saying Sorry”. This is the leaflet provided to staff to advise them of the need to apologise when things have gone wrong in terms of patient care or safety.
It reminds staff that it is just not a moral and right thing to do but also a statutory, regulatory and professional requirement. The leaflet is clear that the apology should be made as soon as possible after the clinician becomes aware that something has gone wrong.
Further it confirms that under the Compensation Act 2006 an apology, an offer of treatment or other redress shall not of itself amount to an admission of negligence or breach of statutory duty. In other words there are no legal consequences which may make the apology difficult. An apology can and should be arranged as soon as possible.
Indeed the leaflet confirms that delayed or poor communication makes it more likely that the patient will seek information in a different way such as complaining or taking legal action.
This is a straight forward leaflet which accurately represents the legal position and the position taken by most senior managers at the NHS for some years. Sadly what it does not appear to do is always reflect the practice that we, as patients’ lawyers, see on a day to day basis.
It should be remembered that patients’ lawyers see those who are extremely dissatisfied, often quite a while after the event has occurred. Many patients still pursue the complaints procedure with the assistance of the local advice centres and agencies. This is a lengthy process and by the time they come down to the lawyers it is often 12 or 18 months since an event occurred. The vast majority of my clients who present even shortly before expiry of the three year time limit have not received any apology despite pursuing the complaints procedure. Often even when I notify the trust of the request for medical records and provide brief details of the case, they still do not take it upon themselves to apologise despite the obvious discontent.
A classic example would be a case of mine where the client has a complex and disabling condition. It means that he has particular periods where his pain can be significant. Pain relief is therefore of enormous importance to him. In 2015 he underwent a procedure due to his condition and was not afforded appropriate pain relief. Further, there was a mix up with the injection that was given to him and in the way that it was given. He left the hospital as a result of these difficulties and refused to return. He is now treated at an alternative hospital where he says he receives appropriate, proactive and good care. The consultants were aware of this. The hospital was aware of this. Despite many months of corresponding, he received an apology only a couple of weeks ago. Understandably he says this is meaningless.
Despite the good intentions of the leaflet, despite the good intentions of NHS Resolution there are and there remain significant pockets of NHS involvement where protocol and practice do not meet.
Recent investigations and comments by the Chief Inspector of the CQC (the Care Quality Commission) indicate that issues of safety and patient-centred care still remain a problem in some trusts.
Health professionals have had a duty of candour (that is a duty to provide a full and honest explanation) for many years. Patients are still not getting this and clients are still arriving at our doors having pursued a complaints process without an appropriate acknowledgement of the pain and suffering they have been through.
It is a fact (as has been said by patients’ lawyers for decades) that some of the people who present at our offices do so because they have not received an appropriate apology and response from the NHS. Or simply they have become tired of the difficulties that they have faced and the lack of proper response. It has to be welcomed that NHS Resolution is trying to address this issue but it should be made clear that a good proportion of my clients still arrive without a proper explanation or an apology. The proportion may be slightly lower anecdotally but not so significantly so that it would make a difference.
The complaints process itself needs to be reworked to be faster, more effective and more responsive, but if the apology is appropriate then regardless of any investigation into a complaint, somebody should take the time to sit down properly with these patients as soon as possible and go through the issues. The longer this is delayed, the more the problem festers and the more likely it is that the patient will present at a lawyer’s office. While the NHS raises the issues of costs of litigation it should note that it could reduce this by effective and proper care post-incident.
Most patients’ lawyers are highly supportive of the NHS and all of us have family members or people we know who have benefited significantly from the work done by the NHS. Many patients’ lawyers are former NHS employees, myself included. Patients’ lawyers are not opposed to the NHS. They do however want their clients to be provided with a proper explanation and a proper apology where appropriate and where there have been significant failings in care. These are fine words from the NHS but a lot more would need to be done in order for them to be implemented on a consistent basis.