Safety and learning

CQC maternity survey 2024 reveals a mixed picture of patient experience

The survey covered women who had given birth between 1 and 29 February 2024 (and during January if a Trust did not have a minimum of 300 eligible births in February). A total of 18,951 responses were received. Results revealed improvements in some areas e.g. mental health support during pregnancy, but in others a decline in positive feedback over time was apparent. These areas included:

• Communication during labour and birth;
• Information provided during care in hospital after birth; and
• Involvement in postnatal care.

Experience varied for different groups of patients. For example – women who had an emergency caesarean section, younger women (aged 16 to 26), women who reported their ethnicity as Indian, Pakistani and any other White background, plus those with long-term mental health conditions, described poorer experiences.

What this means for you: Communication is central to good patient care and a lack of communication is often a feature in clinical negligence claims. Communication between clinicians and mother regarding benefits and material risks of any proposed care or treatment is a central plank of obtaining informed consent. This also involves the provision of relevant information in a timely and understandable way with an opportunity to ask questions i.e. ensuring that the patient is involved in decisions about their care. Communication between clinicians, particularly at handover (a ‘pinch point’ for clinical risk) is important not only for continuity of care, but to ensure appropriate and safe care is delivered. Further information on the CQC’s work around safer maternity care can be found in ‘Maternity safety remains a key concern’ Clinical Law Insight: Autumn 2024

Birthing outside of guidance

Through its maternity investigations, Maternity and Newborn Safety Investigations (MNSI) has identified ‘birthing outside of guidance’ as a national learning theme. Its briefing note reveals that between September 2018 and December 2023, it made recommendations relating to birthing outside guidance on 33 occasions.  MNSI found limited guidance (national or local) for clinical teams working in this area. Individualised care plans were not always in place, or if they were, there was insufficient detail. This was problematic when a decision to escalate or deviate from the plan would be required.

The two most common themes in their investigations were:

• Delaying or declining an induction of labour when it was recommended.
• Requests for vaginal birth at home after a previous caesarean birth.

What this means for you: MNSI recommends that organisations should review their guidance to support staff and ensure that anyone giving birth outside of guidance has the information they need to make informed decisions about their care. The briefing contains six ‘safety prompts’ around issues such as guidelines and processes, training, birth plans, supported decision-making and communication with patients

Independent review of Physician Associates (PAs) and Anaesthetic Associates (AAs)

The Department of Health and Social Care has announced an independent review of PAs and AAs. The review will consider:

• The relative safety of the roles.
• Their contribution to effective and productive multi-disciplinary teams.
• The delivery of good quality and efficient patient care.

The use of PAs and AAs has been the subject of ongoing debate in the medical profession with the GMC and BMA taking different views on their use in healthcare. The BMA is particularly concerned about the blurring of lines between doctors and PAs.  In September 2024, the Royal College of General Practitioners voted to oppose a role for PAs in general practice. However, “in recognition that responsibility ultimately rests with employers and that there are already around 2,000 PAs working in general practice” the College issued guidance for GPs where PAs are employed.

What this means for you: The government intends publishing the conclusions of the review in spring 2025 and using it to inform the workforce plan to deliver the 10 year Health Plan. It will be interesting to see the conclusions as there is a clear tension between the need for more resource in the NHS and the need to manage the risks presented by using non-medically qualified staff to fulfil a clinical type role. If the Associate role remains, scope of the role, training, competency and supervision are likely to be key.

Recognition of sepsis and the Patient Safety Incident Response Framework (PSIRF)

The Health Service Safety Investigations Body (HSSIB) has launched three investigations modelled on PSIRF to help address patient safety risks associated with the recognition of sepsis. The launch is set against the background of a persisting safety risk from sepsis, despite extensive national work on the subject. HSSIB note that themes from incidents and complaints have remained the same over time.

Comment: This is a welcome piece of work to address a persistent problem which according to The Sepsis Trust is responsible for around 48,000 deaths in the UK every year.  PSIRF is reasonably new and NHS organisations are likely to welcome guidance on how to conduct an effective Patient Safety Investigation to learn from error and prevent future harm.

Governance

Proposals for regulation of NHS managers and an extension of the duty of candour

The government consultation on the regulation of NHS managers contained a radical shift in the duty of candour from NHS organisations to NHS managers. Proposals include a duty:

• On NHS leaders to ensure that the existing statutory (organisational) duty of candour is correctly followed in their organisation and be held accountable for this.
• To respond to safety incidents by recording, considering and responding to any concerns about provision of healthcare that might be brought to their attention.

In addition, the government has announced that legislation for a ‘Hillsborough Law’ will be introduced in Parliament before the next anniversary of the Hillsborough disaster which falls on 15 April 2025. A draft Bill is awaited, but the King’s Speech revealed that the provisions will apply to all public servants and authorities and will impose a duty of candour, backed up by criminal sanctions. Currently, regulation 20 Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 imposes a statutory duty of candour on healthcare organisations in addition to the general/ professional duty to act in an open and transparent way. The government’s proposals go much further and represent a radical culture shift. If the new Bill mirrors the Public Authority (Accountability) Bill 2017 (halted by the 2017 general election), it will “not only require organisations and public servants to tell the truth, but require them to proactively assist from the outset…”  and “ identify the good, the bad and the ugly.” (Parliamentary Joint Committee on Human Rights who endorsed key elements of the Bill in May 2024).

A duty of candour review had been launched by the previous Conservative government. An interim report on findings was published by the DHSC in November 2024. The final response (and proposals) are being “accelerated” but remain awaited and it seems likely that the review will now go forward in tandem with the proposals for Hillsborough Law.

Comment: Given the extent of the proposals which touch upon governance and candour, there seems little doubt that the current duty will be extended. Hillsborough Law could potentially  apply to all court proceedings whether adversarial (claims) or inquisitorial (inquests and inquiries). It could also lead to more whistleblowers if staff take a different view to employers on sharing information.

Dispute resolution

Pre Action Protocols: good communication and rehabilitation may have greater emphasis

The Civil Justice Council has published its Phase 2 final report.  Proposals to amend the Pre-Action Protocols for Personal Injury and Clinical Negligence include:

• Fatal claims – standard lists for disclosure requirements. For example, death certificates, inquest material, known dependants.
• Quantum – the section on special damages should require particularisation of past losses as far as possible and identification of heads of future loss, even if details are marked ‘TBC’.
• Rehabilitation - claimants will be encouraged to be more open about what rehabilitation they are seeking and compensators to give reasons for a refusal.
• In clinical negligence a new section on good communication is proposed covering the duty of candour and apologies.

The report acknowledges the recent update to the Civil Procedure Rules (CPR) giving courts the power to order mediation in certain circumstances and recommends that the concept is given greater prominence and explained more simply.

Comment: The proposals on fatal claims, quantum and the recent amendment to the CPR regarding mediation should assist defendants and their indemnifiers to investigate, value and potentially resolve personal injury claims earlier. The rehabilitation proposals could lead to more requests for early rehabilitative treatment in the independent sector, particularly in view of current NHS resource issues. The ‘good communication’ proposal references NHS Resolution’s guidance on 'saying sorry' and stipulates that apologies should be substantive and not merely a ‘token gesture.’ 

Quantum

There is a new Personal Injury Discount Rate

The Lord Chancellor’s review of the Personal Injury Discount Rate (in England and Wales) has been completed and a new rate of 0.5% came into effect on 11 January 2025. The rate represents an increase on the previous rate of minus 0.25% which was in force from July 2019. The Lord Chancellor’s statement of reasons revealed that the expert panel’s recommendation was a range from 0.5% to 1%, but that she considered the “likelihood of under-compensation with all rates above 0.5% to be too high…” The consultation documents which informed the review suggested that multiple or dual rates were under consideration, but the Lord Chancellor has opted for a single rate.

Comment: The impact assessment for the rate change estimated savings of around £200 million per annum for the NHS based on assumptions that there will be no change in the volume of personal injury cases or periodical payments orders (PPOs) made and no change in the costs of reaching settlement. While additional funds for front-line patient care would be welcome, might economic pressures impact on whether they can be achieved? An ongoing shortage of skilled carers, coupled with increasing accommodation conversion and equipment costs mean that savings on the multiplier (based on the discount rate and used to calculate the length of time a loss is likely to persist) will be under significant pressure from potential increases in the multiplicand (annual cost). We may also see an increase in the number of PPOs, where the discount rate has no impact on the annual payments.

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