Saying sorry – not such a hard word?
February 2009
In this article...
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Introduction
The problem
Top tips
Conclusion – a balancing act
Introduction
The merits of an early apology have been written about since biblical times (“a soft answer turneth
away wrath…”) but does this happen often enough went things go wrong in the NHS. The
Healthcare Commission recently reviewed 10,000 complaints that had been referred to it and
recommended an apology in almost one in four (23%). At the same time, clinicians are
understandably troubled by suggestions of an escalating ‘compensation culture’ reported (often
inaccurately) by the media. How do NHS bodies balance the culture of openness with patients –
the need for giving apologies or explanations when things go wrong - with the need to have
sensible guidance on what is or is not an appropriate area for clinicians to comment on in front of
patients, in the course of internal investigations or complaints?
In his 2003 ‘Making Amends’ report the Chief Medical Officer, Sir Liam Donaldson, recommended
a legal ‘duty of candour’ over and above the existing professional duty but this has not become
law. Patient rights advocates such as the charity Action Against Medical Accidents, continue to
campaign for this according to its Chief Executive, Peter Walsh. For its part, the NHSLA has
always been keen to encourage clinicians and NHS bodies to provide appropriate information
whether informally, formally or through mediation, and to dispel misinformation to the contrary (see
NHSLA Circular 02/02 and link below). It is not NHSLA policy to prohibit or discourage factual
explanations or expressions of regret offered in good faith or to take an indemnity or other point
against any clinician or NHS body for this reason alone. However, admissions of liability (in
negligence or any statutory duty) are a different matter for obvious reasons and this is recognised
by the Compensation Act 2006.
In this article, Ceri Catton examines how clinicians or NHS bodies can reconcile the culture of
openness with the need (and right) of clinicians or NHS bodies to obtain legal advice or indemnity
when things go wrong.
The problem
We see many cases where an off-the-cuff remark from a (usually unidentified) clinician about
another colleague is at the heart of a compensation claim. In some circumstances, this can be
appropriate, for example, when the care has been investigated and an open acceptance or
apology has been approved by the Trust’s complaints or legal teams and the NHSLA. However,
where a clinician is commenting without this support do they fully understand the implications of
their comments? Do they understand how ‘informal’ comments on the standard of the care a
patient has received, the legal test to be applied or the issue of causation could affect a later legal
claim? Unfortunately there are other cases where the comment or remark is ill informed or might
be motivated by professional or personal differences. There are some NHS Trusts where these
sorts of comments are attributed to the same individual on several claims. An off-the-cuff comment
could even give the patient further distress or false hope of compensation that can quickly turn into
anger or conspiracy theories when the claim is not then accepted.
Top tips
So how can you avoid this?
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Educate clinicians on how the legal process works and what it actually involves. Often
doctors do not understand what goes into investigating and defending a legal claim even if
they do some medico-legal work on the side.
Every clinician should be referred to the “Very Brief Guide for Clinicians” published by
the NHSLA as part of their induction at an NHS body and continuing professional
development.
In particular, explain that care is only regarded as negligent in law if the patient would be
able to satisfy the Bolam test:“When considering whether there has been a breach of duty of care, the test to be applied
is whether the relevant practitioner acted in accordance with a practice accepted as
proper by a responsible body of those practitioners (the so called body of opinion). The
body of opinion need not be a majority body. The court will also consider whether the
accepted practice supported by the body of opinion has a logical basis in relation to
comparative risks and benefits.”
Explain that care which is less than perfect or even substandard may not satisfy this test.
It is better if clinicians avoid legal terms altogether and stick to the facts.
Clinicians’ comments as part of an incident report, SUI or complaint should be a factual
account of events directly witnessed, not opinion or hearsay evidence or malicious.
Clinicians should restrict their comments to matters within their expertise. A clinician can
only fairly give a view (or be judged) on this like-for-like basis. For obvious reasons, an
accident & emergency doctor will not have the same specialist knowledge as a
neurosurgeon and should not comment on whether a particular operation should have
been preferred to the actual treatment (but can say what time he called the on-take
neurosurgery team for a review and what time they arrived in A&E).
Even if the Bolam test is satisfied, the patient must also prove that he/she has suffered
some loss as a result. Putting it another way, the patient will need to try to show that the
injury would have been avoided ‘but for’ the act or omission to act alleged to constitute
negligence and in broad terms this is what we refer to as causation. If the outcome has
not changed then the patient will not succeed with a claim against the Trust. However, it is
far more complex if there is more than one cause and clinicians should avoid getting
involved in causation unless invited by the Trust’s complaints or legal teams or the
NHSLA.
Properly understood, this guidance should encourage giving honest factual explanations
and the making of appropriate apologies. The NHSLA will be happy to give advice on
specific queries – as will we. A circular from the NHSLAs Chief Executive, Steve
Walker, dated 15 January 2007 is attached if clinicians need reassurance.
Explain the likely timescales (especially if the patient is a child or under a neuro-disability)
and keep clinicians informed. Despite the Woolf reforms, the process is still a very long
one and there may be long periods where there are no developments.
Explain the concept of legal privilege. Often ill informed ‘off-the-cuff’ remarks would not be
made if the clinician realised that his or her comments would be disclosed with the
medical notes in any subsequent claim despite any expressions of privacy or ‘in
confidence’. In general terms, the only exceptions will be where documents are created
with a ‘dominant purpose’ in mind of assisting in actual or pending litigation.
Clinicians need to know that they are unlikely to be the Defendant in compensation claims
for NHS treatment, but this does still happen and the GMC, Police, Healthcare
Commission or other bodies may also have an interest. However, we would hope that all
clinicians want to assist the NHS to get to the bottom of compensation claims early and to
assist prompt settlement of meritorious claims (with apologies and risk management
changes where appropriate) or fighting unmeritorious claims.
Conclusion
Notwithstanding the above, there is a time and a place for NHS bodies to own up when things go
wrong and nothing in this article is intended to detract from that approach. Research shows that
openness from NHS bodies can prevent a claim being brought at all. Most patients want to be
heard and listened to - not feel that things are being covered up. The balancing act for any clinician
or NHS body is to adequately explain what went wrong without straying into the legal arena.
The only way to prevent your clinicians from giving misplaced comments is education and
communication. If a particular consultant at your hospital is consistently providing comments which
are leading to claims, speak to him/her on a 1-to-1 basis with the Clinical or Medical Director if
appropriate and discuss the above points. He or she can be invited to review the issue with their
own medical defence organisation. It is a matter of education, not closing ranks or ‘reining in’
honest explanations or apologies. It may be that some clinicians think they are helping the patient
to obtain the financial help they need from an ‘insurer’, but by explaining the legal process to them
they may begin to understand that it is not that simple. If you have any clinicians who are causing
you concern Bevan Brittan can help. In the first instance, please contact Ceri Catton who can
direct your query to the appropriate member of the team.
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Ceri Catton
Solicitor
ceri.catton@bevanbrittan.com
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