Health Service Safety Investigations Bill [HL]

Lord Turnberg Excerpts

2nd reading (Hansard): House of Lords
Tuesday 29th October 2019 Lords Chamber

[Lord Turnberg (Non-Afl)]

My Lords, I should declare my interest after a lifetime spent in the National Health Service and as a past president of a medical royal college, so of course I welcome a Bill on patient safety, even if it may be some time before we see it again. I am sorry to sound a rather negative note, but as I read the Bill, I did wonder how it would work in practice. I became increasingly concerned that, in its present form, it may not have the balance quite right between the major themes of investigation of serious qualifying incidents and the need to encourage local clinical staff involvement—and whether, because of that, it will frustrate its purpose of improving patient safety. This point has been made by several noble Lords who have spoken. So I thought it might be worth trying to see how the Bill would have worked if it had been in operation back in the 1970s, when I was involved in a rather tragic case of my own—I am afraid that I go back rather a long time.

I was a consultant physician in Manchester in 1978 or 1979 when we had an elderly patient in the ward with a gallstone stuck in her bile duct, blocking the flow of bile. She was in her 90s, frail and jaundiced and a very poor risk for an operation. So we decided on an experimental, non-invasive treatment in which we would try to dissolve the stone by infusing a solvent directly into the bile duct via a tube through her nose. All went well until one evening a junior doctor on my unit came in to inject the next dose of solvent. Instead of injecting it through the nasal tube, she put it into a drip going into the patient’s vein—a very big mistake, which, I am afraid, caused the tragic death of the poor lady. Noble Lords may imagine how devastated we all were when we realised what had happened.

Now the immediate question was how such a tragic event could happen and who was to blame. These are the questions that might be posed under this safety investigation Bill were it in operation, but then it was me and my team who tried to answer the questions. Was the junior doctor who gave the injection at fault? She might have known better if she had understood what we were doing when she came on our ward rounds. Or perhaps it was the registrar on call, who was not around at the time and should have supervised her in this new type of treatment. Or perhaps it was the nurse, who came with her and handed her the syringe. One might have expected her to have known something about it. Perhaps the pharmacy that sent up the injection was at fault. They should have labelled the solvent more clearly as not for intravenous injection, perhaps with a fitting that could not fit on to an IV line. Or of course perhaps the fault lay with me for not giving clear enough instructions to my junior staff. I was certainly the one who shouldered the burden of breaking the news to the relatives that we had made a huge error that caused the death of their loved one; and it was I who appeared before the coroner.

Forgive me for using this sad case, but it illustrates the catalogue of errors—a multi-system failure—that can have such devastating consequences and where ascribing blame to individuals is so fraught with difficulties. But more important than the blame game is what one should do when it happens to prevent it happening again. I can tell noble Lords what we did and ask what might have happened if the Bill in front of us had been enacted.

First, we did not try to make any excuses to ourselves or to the relatives. We were completely open. I said how sorry I was that it had happened, in the belief, like the noble Lord, Lord Hunt, that saying sorry that someone has suffered is never a mistake; it is an expression of sympathy, and the fear that saying sorry leaves one open to litigation is just untrue. I have never believed that a sense of compassion is a confession of guilt. Then we initiated a full inquiry with all the staff—the doctors, nurses, pharmacists and everyone who was engaged—into the causes of the tragedy, and we made a full set of recommendations that were applied at every level.

The question now is in what way this new Bill would have helped or hindered this process. It is very unlikely that it would have prevented that particular episode from happening, but would it make it any easier after the event? Would it have encouraged us to report to the new statutory body for investigation? And would that have improved patient safety? There was no criminal intent by anyone in our case, yet the Bill seems to hint at that sort of investigation rather than for errors of judgment. Perhaps more important is the question of whether it will inhibit medical and caring staff from disclosure of mistakes.

The Explanatory Notes start off in fine form talking of providing a safe place and the promotion of learning throughout the NHS. They talk of providing advice, guidance and training and of the need to learn from mistakes so that helpful information can be spread. All that sounds admirable and would no doubt have been helpful in our case, but when one reads the Bill itself the accent is on investigation by an external body with little sign of the encouragement that will be so essential if anyone is going to admit to their errors. If it is going to be effective, it will need to shift its focus from top-down, external, big-brother investigation to providing the safe place where practitioners can really feel free to come forward with their difficulties. Certainly it should be capable of thorough investigation where it is needed, but on many more occasions—we heard from the noble Lord, Lord O’Shaughnessy, about how many occasions—support is needed to help to ensure that the much more common errors of judgment are not penalised and that lessons can be learned from them. The emphasis in the Bill is, to my mind, too far over to the external investigation side and not enough to the encouragement of practitioners to come forward to engage with learning lessons from their errors. I am not convinced that I would have been more or less open than I was all those years ago.

I shall finish with a word about the role of the medical examiner proposed in the Bill. I presume that it is the same person whom the GMC talked of years ago. The important question has always been about where busy doctors will find the time to take on this role. If it becomes a statutory position, will it take, say, one session a week? It probably will not, but it might. If so, will we be able to fund 10% more staff simply to cope with this important duty? Perhaps it will take less time, but it will still take time and staff, and without the funds that will be necessary, it will not happen as we hope. Can the Minister explain?

I fear I may have sounded somewhat negative about this Bill, but that is not because I do not think we need to focus hard on improving patient safety now more than ever. However, I remain somewhat unconvinced that this Bill will fill that need sufficiently well. The accent here is on investigation of serious cases, and that is fine. There is some overlap with the GMC and other regulatory bodies which are doing a good job. What we need, and what I hope we will see in the Bill after the election, is a shift of focus to the encouragement, engagement, involvement and support of those who are directly responsible, at the coalface, across the field, for the safety of patients, so that they can freely admit when things go wrong and learn from their mistakes. It is because these words—encouragement, engagement and involvement—are missing that I fear the Bill will not achieve what we hope for. The Minister used the words “completely candid”; I remain to be convinced that this Bill will encourage candour in the way she hopes.