SAFETY & LEARNING

Martha’s Rule

NHS England has announced that the first phase of Martha’s Rule (the Rule) will be implemented in April 2024.

The Rule has three proposed components:

1. “All staff in NHS trusts must have 24/7 access to a rapid review from a critical care outreach team, who they can contact should they have concerns about a patient.
2. All patients, their families, carers, and advocates must also have access to the same 24/7 rapid review from a critical care outreach team, which they can contact via mechanisms advertised around the hospital, and more widely if they are worried about the patient’s condition. This is Martha’s Rule.
3. The NHS must implement a structured approach to obtain information relating to a patient’s condition directly from patients and their families at least daily. In the first instance, this will cover all inpatients in acute and specialist trusts.”

Implementation will be by a phased approach, beginning in 2024/25 with the focus on supporting participating provider sites to devise a standardised approach to the Rule. Subsequently the programme will be scaled up.

What this means for you

NHSE will soon request expressions of interest to be part of the first phase of the programme, which will begin with at least 100 adult and paediatric provider sites who already offer a 24/7 critical care outreach capability. Criteria for participation will be set out in an expression of interest document together with the support offered by NHSE.

Learning from coroners’ Prevention of Future Death (PFD) reports: the Preventable Deaths Tracker

The Preventable Deaths Tracker (PDT) is an open database of all published coroner PFD reports in England and Wales. Its mission statement is to “use coronial data to save lives by minimising preventable deaths”. The tracker is a “data-driven” learning platform of over 4,800 reports, updated weekly. It provides ‘real-time’ analytics by trends:

• statistical trends over time
• by coroner and/or coronial area
• by category – hospital related, community health and emergency services, mental health, suicide.

The tracker was launched in 2020 by Dr Georgia Richards of the Centre for Evidence-Based Medicine at the University of Oxford with support from a team of academics, scientists, healthcare professionals, and a practising coroner.

Comment

Analysing a healthcare organisation’s PFD reports is a useful safety and learning tool to spot trends and extract learning to prevent future harm. A rolling programme of analysis could be used to ensure that action points arising from patient safety investigations have been implemented effectively. Broad themes identified by a national analysis of PFDs by category might be a useful benchmark for healthcare organisations and an early warning of potential problems to look out for. Research by the PDT (both completed and ongoing) includes topics as diverse as sepsis, falls, opioids, anticoagulants, anaphylaxis, violence, paediatrics, learning disabilities and maternity.

GOVERNANCE

Reporting safety concerns to the Board

An NHS Providers’ report reveals concerns about the quality of information provided to Trust Boards, including a “tick box culture to provision of information – lots of detail and no context. A failure to identify risk areas of gaps.”

Provision of timely, accurate and meaningful information on patient safety is vital for good governance in all specialties, but particularly in relation to maternity where recent inquiry reports such as Shrewsbury and East Kent have identified governance failings. NHS Resolution’s Maternity Incentive Scheme (MIS) has a specific safety action (9) regarding the “robust” processes that should be in place to provide assurance to the Board on maternity and neonatal safety and quality issues.

What this means for you

To ensure compliance with MIS action 9 a monthly review of maternity and neonatal quality should be undertaken by the Trust Board using a minimum data set to include a review of thematic learning of all maternity safety incidents. In addition the Trust’s CNST claims scorecard should be reviewed alongside incident and complaints data and discussed by the maternity, neonatal and Trust Board level safety champions at a Trust level (Board or directorate) quality meeting each quarter. Scorecard data should be used to agree targeted interventions aimed at improving patient safety and reflected in the Trust’s Patient Safety Incident Response Plan.

DISPUTE RESOLUTION

The focus will continue to be on out of court methods with litigation as a last resort

In Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the Court of Appeal has confirmed a court can lawfully order a stay in proceedings and compel the parties to engage in a “non-court-based dispute resolution process”, subject to there being no impact on “…the Claimant’s right to proceed to a judicial hearing, and [it being] proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost”.

The Claimant had refused to engage in the Defendant’s complaints procedure and issued court proceedings. The Defendant sought a stay of proceedings, but this was refused in the High Court based on the Court of Appeal’s decision in Halsey (2004). In that case the court considered that compulsory ADR would amount to a violation of article 6 of the European Convention on Human Rights – the right to a fair trial. The Defendant’s appeal was allowed. The Court determined that proceedings could be lawfully stayed provided there was no impact on the Claimant’s right to proceed to a judicial hearing and that it was proportionate in costs and time to do so.

Comment

It is likely that this decision will lead to more active case management by judges. Compulsory mediation is already required in the small clams track and it is likely this will be expanded further.

Parties should consider dispute resolution at all stages of a claim whether this is mediation, arbitration, early neutral evaluation, ombudsman schemes and maybe even complaints procedures as in this case, although the Defendant’s scheme was its own i.e. not independent. Mediation is a key strategic pillar, which can be undertaken at any point, to rebuild relationships between the parties and resolve claims cost-effectively. Technology will also continue to play a central role in how courts operate and we expect to see a continued increase in online mediation as well as early neutral evaluation initiatives.

LIABILITY

The future of secondary victim claims: “a medical crisis is not an accident”

In a landmark ruling the Supreme Court held (by a majority of six to one) that doctors do not owe a duty of care to the families of patients. In Paul & Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 (and the conjoined appeals of Polmear and Purchase), the Court determined that in order to succeed a ‘secondary victim’ needs to have witnessed an accident. Witnessing a “death or manifestation of injury which is not caused by an external, traumatic event in the nature of an accident, but is the result of a pre-existing injury or disease”, is insufficient to give rise to the duty of care. For example, in Paul the deceased died of a heart attack in front of his two daughters over fourteen months after he received negligent cardiac care. The Claimants’ appeals in all three cases were dismissed.

What this means for you

There is likely to be a significant reduction in the number of claims brought by secondary victims and those that are pursued are likely to feature the claimant as effectively a primary victim. For those which are due to an external traumatic event in the nature of an accident, modified ‘Alcock’ criteria still apply i.e. claimants must prove their presence at the scene of the accident (or immediate aftermath), have witnessed it and have a close tie of love and affection with the primary victim. On causation, a claimant need only demonstrate a causal connection between witnessing the accident and the illness suffered. It is no longer necessary to demonstrate the precise medical mechanism by which the illness was induced or that the event was horrifying and that there was a sudden shock to the nervous system. Read more about the decision in our insight.

QUANTUM

Potential for much bigger Schedules of Loss in catastrophic injury cases

CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) was the first quantum only birth injury case to go to trial since JR v Sheffield Teaching Hospitals NHS Foundation Trust  over 6 years ago. Sadly CCC has severe spastic quadriplegia as a result of admitted negligence in the management of her birth. She is PEG fed and has daily seizures. Her life expectancy was agreed at to age 29. At trial she recovered a substantial award of damages succeeding on various key issues relating to care and equipment:

• No deduction was made for gratuitous family care, to reflect complexity and challenges faced by her family.
• A 2 to 1 regime (including two waking night carers indefinitely) was allowed together with increased agency care costs (including the cost of registered nurses).
• Recovery of the cost of a home hydrotherapy pool.

CCC advanced a lost years’ claim (for earnings during the years of her working life post age 29), but accepted at trial that the court was bound by the decision in Croke v Wiseman (1981). Following judgment she was given permission to challenge the Croke decision in the Supreme Court. A hearing date for the appeal is awaited.

Comment

The decision means there are likely to be more arguments in future regarding care and that home hydrotherapy pools are likely to remain a contentious issue. The need for thorough and reasoned expert evidence cannot be overstated and knowledge of local care rates and facilities is vital. If Croke is overturned, reserves for cases where there is a reduction in life expectancy are likely to increase.

Personal Injury Discount Rate (PIDR) review update

On 16 January 2024, the Ministry of Justice (MOJ) published a further call for evidence on topics relevant to modelling claimants’ likely return on investment. This includes “claim and claimant characteristics, claimant investment experience, investment expenses, changes since the 2018 call for evidence, the impact and practicalities of adopting a dual/multiple PIDR and the way in which compensation payments are made.” The call for evidence closes on 9 April 2024 and a response document is due to be published the same month.

The PIDR review is due to be commenced by 15 July 2024. Dual/ multiple rates were the subject matter of a 2023 call for evidence, where the MOJ response was that it would not be recommending a policy position on deciding whether a dual/ multiple rate should be introduced at this time. It is clear from the call for evidence that the expert panel will continue to consider dual / multiple rates. The review should be completed by January 2025.

Further information on the PIDR review including the use of dual/ multiple rates can be found in Medical Malpractice and Casualty Forward View 2023.

Calculating general damages in a time of inflation

In Blair v Jaber [2023] EW Misc 3, the judge took into account the substantial drop in the value of money since the Judicial College (JC) Guidelines (16^th edition) was published in April 2022 when determining the award for general damages for personal injury. The 17^th edition of the JC Guidelines were published earlier this month. Brackets for the various injuries have been increased by about 22% to reflect increases in the Retail Prices Index between April 2022 and the 17^th edition being finalised in August 2023. In her fore-word Mrs Justice Lambert considered that the Guideline figures should be further increased “by the appropriate index for inflation between August 2023 and the date of the assessment of damages.”

What this means for you

Reserves for clinical negligence claims will need to be reviewed. Predicting the likely award for general damages in periods of high inflation and/ or where there is a significant delay between the publication of the current JC edition and assessment, will become more difficult. If a Part 36 offer is not beaten (particularly if the failure to do so is fairly marginal), consideration should be given to whether inflation was the determining factor. Lack of a pleaded figure for general damages in Claimants’ Schedules of Loss is fairly common place. Factoring in (future) inflation may mean that silence on general damages becomes the norm. To avoid the prospect of early resolution being compromised, Defendants may need to push even more firmly than at present for the Claimant’s fully pleaded case on quantum.

ADVISORY

Review of duty of candour

The DHSC has announced a review into the duty of candour for health and social care providers in England. The effectiveness of the statutory (organisational) duty and its operation (including compliance and enforcement) will be assessed and advisory recommendations made. DHSC has advised that the review will “focus on solutions in response to concerns within independent reports that the duty is not always met as intended.” The professional duty does not form part of the review as this is overseen by regulators of the various healthcare professions.

The terms of reference focus on three aspects relating to the duty - to what extent the policy:

• and its design are appropriate for the health and care system in England
• is honoured, monitored and enforced
• has met its objectives.

What this means for you

It is unlikely that the duty will be watered down in any way; a tightening of the regime seems a more likely outcome. With that in mind, health and social care providers should ensure that their organisation’s culture is one of transparency and candour when things go wrong. Ward-to-board quality assurance based on a ‘no blame culture’, will be key to ensuring governance and safe patient care. Governance procedures and policies should be kept under review, particularly around candour and patient safety investigations.

CQC to train staff in relaying distressing news

Following the tragic death of primary school head teacher Ruth Perry after an Ofsted inspection, the CQC has mirrored Ofsted by announcing that its inspectors will be trained in how to spot signs of distress. Following Ms Perry’s suicide, Ofsted was criticised for elements of its school inspection programme. How to relay distressing news is part of a new CQC training programme for inspectors which is being developed to improve risk assessments, identify signs where providers may be distressed, and how to have supportive conversations following the discussion.

What this means for you

CQC inspections can be distressing for many reasons from the sheer amount of work involved (alongside an already pressured job) to worries about the organisational and personal impact of an unfavourable rating. Thorough preparation can assist in managing those worries, enabling participants to feel more in control of the process and maximising the chances of achieving the best rating.