Openness, transparency and candour - NHSLA chief executive Helen Vernon provides some clarity on apologising to patients.
What are some of the myths and misconceptions surrounding apologising to patients when something has gone wrong?
There is often a perception that the threat of litigation is a barrier to candour; that the patient shouldn't be told that something has gone wrong, just in case they decide to bring a claim. That no one should say sorry, just in case it is in some way seen as an admission of liability. That insurers and lawyers are called in, just in case the words of an explanation lead to legal trouble further down the line.
Nothing can be further from the truth. In our experience, honesty and openness from the outset is more likely to prevent rather than cause a claim and if a patient has suffered harm, which means that they are entitled to compensation, so be it. Our staff at the NHS Litigation Authority (NHSLA) will do their best to resolve claims as quickly as we can and without litigation.
As for the NHSLA, as part of the NHS, we are not an insurer. We have never and will never refuse cover on a claim because an apology has been given. We see our role very much as to support openness, transparency and candour when things go wrong.
To promote this approach, we published a short leaflet to that effect, called 'Saying Sorry' which sets out these principles and some guidance on the interaction between legal liability and candour. We have recently been seeking feedback from our members and patient representatives on a new version of the leaflet.
As part of the dialogue with trusts we learnt that implementing the duty of candour is often a challenge because years ago doctors were taught that it might lead to litigation as it could be interpreted as an admission of liability. Our 'Saying Sorry' leaflet makes clear to clinicians that meaningful apologies are a statutory requirement, as well as the right thing to do.
What is the reality of these myths?
Our view is that organisations which have a culture that prioritise openness and learning from mistakes are less likely to see legal claims. However it is important to provide staff with the confidence and the tools to be open about error.
We often see claims escalate when the trust between a patient or their family and the organisation has broken down. Sometimes this is because there has been no apology or investigation into what has gone wrong and so no assurance can be given that lessons have been learned and the event they have suffered will not be repeated and experienced by anyone else. The situation can be exacerbated if patients and their family are not treated with a real sense of compassion and empathy.
Why is it so important to get the process right when something goes wrong?
A full apology and honest, transparent and open account of what has gone wrong is vital from the outset. This will help ensure that trust and open lines of communication can be maintained between the staff and the patient or the patient's family.
It is essential that opportunities for safety and learning are always prioritised. Some trusts have adopted 'candour champions' as they recognise that particular skills are needed to support patients and staff whom are affected when things go wrong.
Meaningful apologies are a statutory requirement, as well as the right thing to do.
What should doctors themselves do if something goes wrong?
The General Medical Council and Nursing and Midwifery Council have produced recent guidance that explains very well what doctors should do when things go wrong, and I would suggest that anyone who has not seen this guidance should do so. Our Safety & Learning Team, together with our legal panel firms all provide interactive workshops to support learning in this area.
What action can be taken by others in order to help manage and encourage candour in action?
Most organisations have policy, but bringing these policies to life through multi-educational workshops that include staff across organisational hierarchies and clinical specialties ought to be a priority.
Every situation is necessarily different and so like everything which involves a degree of judgement this needs a combination of awareness, training and experience over time.
In terms of practical steps which organisations are taking, this means:
- reviewing and re-launching local policies dealing with communication and apologies
- publicising details of support systems for both staff and patients
- board level training to ensure a trust wide approach with an emphasis on board responsibilities and duties
- periodic reports to the board about how the duty is being met and the sort of events that are being reported
- training for managers on how to advise front-line staff and answer questions
- training for the front line on how to deliver candour in practice
- tightening up of documentation so that discussions and letters are logged and dated
- taking opportunities to learn as the process evolves.
At its very best in action it means:
- verbal apologies as soon as staff are aware of an incident
- following up with a written apology
- avoiding delay, which can dilute the value of the apology
- explaining likely short term and long term effects
- explaining what is still uncertain and responding honestly to concerns
- identifying named executive and directorate leads, which will usually be the most senior health professional involved in treatment or a nominated clinical lead
- being fact specific as to who should be involved – who does the patient actually want to hear from?
The professional regulators have worked together to strengthen their guidance on candour. It is vital that the duty is understood in this context by staff and by board members, as an integral part of a culture of safety.
The MDU has consistently advised members that an appropriate apology is not an admission of liability, and is the right course of action is something has gone wrong in a patient's care.
For more information on our guidance and advice around saying sorry and being open, see the links below.
Helen is chief executive of the NHS Litigation Authority. After graduating in Law from Cambridge she started her career in insurance and then moved to the MDU before joining the LA in 1998, becoming its director of claims in 2013. She is a chartered insurer and accredited mediator.
See more by Helen Vernon