Many people will not only be alarmed by the recent revelations on BBC Panorama that some hospitals have failed to publish independent reviews into patient safety, but also that there is no statutory duty to publish such reports. Following a Freedom of Information request the programme established that, of 111 ‘invited review’ reports prepared by Royal Colleges in response to hospital requests to review aspects of patient care, only 26 have been disclosed to regulators (including the CQC) and, of those, only 16 have been published in full. Patient safety has been an ongoing theme with successive governments since the Mid-Staffs scandal in the noughties, and ‘invited reviews’, despite having no statutory authority, are meant to be part of the patient safety narrative.
Patient safety: a brief history
It was the Mid-Staffordshire scandal, which uncovered hundreds of cases of negligence and unnecessary deaths over a three year period, that prompted Sir Robert Francis’ comprehensive review into patient safety, obligations around transparency, and the duty of candour. In 2014 the ‘Sign up to Safety’ initiative was introduced, as was a statutory ‘Duty of Candour’ for all NHS Trusts, obliging them to “be open and transparent with people using services, and their families, in relation to their treatment and care.” (CQC March 2021).
The Morecombe Bay scandal, this time over unexpected maternal and neonatal deaths, resulted in the introduction of an NHS Duty to Disclose following the Kirkup Report in 2018. In his report, Dr Bill Kirkup described the hospital’s failings as ‘serious and shocking’ – ‘series of failures at almost every level’. Most recently, on 13 May 2021, Health Education England launched the National Patient Safety Syllabus (written by the Academy of Medical Royal Colleges) as part of a wider NHS initiative to deliver a Patient Safety strategy. Aidan Fowler, NHS England and NHS Improvement National Director of Patient Safety, noted: “This is not the same as teaching clinicians how to practise safely – that happens already. It is about helping everyone in healthcare understand the importance of safety culture and the role of systems in safety, and what the right approaches are for reducing risk and protecting patients.”
Why ‘Invited Reviews’ matter
With this continuing, and welcome, focus on patient safety, it comes as something of a surprise to those of us who deal with the tragic aftermath of hospital failures, that some hospitals are failing in their duty of transparency by burying reports that are designed to help them improve. In 2016 the Academy of Medical Royal Colleges (AOMRC) developed the framework for invited reviews so that NHS Trusts commissioning them, and the Royal Colleges invited to undertake them, know exactly what is required. The purpose of an invited review is to provide independent oversight in order to ‘ensure patient safety and improve patient care’. Although these reviews have neither a statutory nor a regulatory role and Trusts are not formally obliged to act on any recommendations contained therein, they are seen as a useful way of getting to the heart of a perceived problem by encouraging staff to express any concerns confidentially. The framework also makes it clear that the “Healthcare organisations commissioning invited reviews also have a responsibility to be open and transparent with patients and the public.”
Given that 65 of the invited review reports were concerned with patient safety, and given the statutory Duty of Candour and the Duty to Disclose, it can be argued that, by not publishing these reports, hospitals are in serious breach of their obligations. Transparency is rightly recognised as the first step on the path to reform and improvement. Indeed, the AOMRC framework actively encourages Trusts to publish, as a minimum, a summary of any report concerned with patient safety, and the charity Action against Medical Accidents is campaigning for a statutory requirement to publish these reports. Nonetheless, it is worth noting that the regulator, the CQC has no statutory power to make Trusts either publish these reports or implement their recommendations.
Insight into why invited reviews are not published
Some insight into the reasons why a Trust might be reluctant to publish the results of an invited review was provided by the Shrewsbury and Telford NHS Trust, which took 12 months to present a report (originally commissioned from the Royal College of Obstetricians and Gynaecologist (RCOG) to look into its maternity services in July 2017) to the Trust board. The withholding of the report only came to light in 2018, when the affected families wrote to NHS Improvement. NHSI subsequently published its review of the Trust’s handling of the RCOG report in 2020, calling on the hospital “to act on the recommendations to provide safer and improved care for patients and their families.” Among various reasons given by the Trust for not publishing the report was that the “trust was worried about the potential public and media reaction and resultant effect on both staff morale, which was already low following periods of intense scrutiny on the maternity service, and public confidence.”
Hospital leadership must have the courage to publish
It could be argued that Shrewsbury and Telford has been caught between a rock and a hard place: the problems within the Trust’s maternity unit are well known. According to the NHSI report, some staff have been confronted on both social media and in public as a result of the adverse publicity, exacerbating the decline in morale and creating safety concerns, thus further mitigating against publication.
Nonetheless, if a hospital commissions an invited review, it has to consider the implications of doing so: has it got systems in place to respond to the resulting report and does it have the wherewithal to implement the recommendations? These reports are intended to help, not hinder, and they are not intended to be confidential. As I have said many times before, there is no point in having endless initiatives to improve patient safety if, when there is a real safety issue, hospitals lack the leadership to be transparent about their difficulties and how they intend to respond to them.
As ever, if you have experienced any issues relating to patient safety or perceived failures in the way you or a member of your family have been treated, please get in touch and we'd be delighted to talk you through your options.