NHS patient safety: Can whistleblowing legislation drive a cultural shift in primary care?

Steps to encourage doctors to speak out about mistakes and learn from them are welcome, says Medical Protection medico-legal adviser Dr Richenda Tisdale. But writing for GPonline she warns that legislation may not be the best way to drive a cultural shift in the NHS.

Health secretary Jeremy Hunt recently announced a raft of measures aimed at improving patient safety, including legal protection for anyone giving information following a hospital mistake. The government suggests that legal ‘safe spaces’ will support and protect healthcare staff to divulge critical incidents and ‘near misses’ without fear of serious professional consequences.

As a medico-legal adviser, I have experience of the ‘culture of fear’ in healthcare that the government refers to. A doctor involved in a clinical incident can face a complaint, disciplinary, regulatory and criminal investigation simultaneously, even though the issue may be a system failure of which they are one small part. It is imperative to investigate clinical incidents rigorously to identify root causes and to learn from these, but at present there appears to be a disproportionate focus on punitive measures.

GP whistleblowers

While the government’s current proposals relate to secondary care, the principles behind this are equally applicable to primary care. A focus on learning rather than punishment is welcomed; however there remain a number of questions over how this would work, and whether the protection will go far enough.

Some news headlines reporting the proposals reflected the increasingly critical media reporting of the medical profession - suggesting they might help low-quality doctors escape tribunals, rather than considering how they could help to expose system failures, training needs or unmet patient expectations that can put pressure on the profession.

A survey we conducted of GP members last year revealed that 93% think patient expectations are higher than just five years ago. Patients are better informed about their health and what modern medicine can achieve, which can lead to dissatisfaction if what the patient wants conflicts with what the doctor can deliver. We are in an increasingly litigious society where mistakes are not tolerated and doctors can face the blame for missed or delayed diagnoses.

It is perhaps understandable if doctors were unwilling to expose themselves to further scrutiny by disclosing information which could be used against them. However, they already have a duty under the GMC’s Good Medical Practice to ‘promote and encourage a culture that allows all staff to raise concerns openly and safely’ and doctors are also required to contribute to investigations into adverse incidents.

GP complaints

So what are the potential benefits of a legal safe space? Having an open, reflective culture in which individuals can discuss incidents, including near misses, without fear of recrimination is an essential part of governance.

We encourage GPs to look at complaints and clinical incidents under their significant event audit (SEA) policy and to investigate incidents without attributing blame, seeking rather to identify system failures or training issues. Support and reassurance from colleagues would ideally be combined with advice on how to prevent an error occurring again. Networks for sharing significant learning points at a local and national level allow learning to be disseminated, improving patient safety more widely.

The review of the case and learnings should be shared with the complainant to aid their healing and increase satisfaction for both parties. If the complainant isn’t privy to the SEA, they may escalate their complaint to the Ombudsman or GMC in order to find out what has happened, and to get reassurance that it will not happen again. If this information is provided locally, it can save time and resources, and strengthen the doctor-patient relationship in the long-term.

However, while a culture of openness and reflection is clearly a good thing, the practicalities are somewhat more complex. It is difficult to legislate a cultural shift and doctors will likely have more questions for the health secretary around the protection offered by a legal safe space, such as how this may conflict with the ethical and statutory duty to be open with patients and cooperation with the regulators and other NHS bodies.

Anything which supports an ‘open culture’ enabling healthcare professionals to disclose, reflect upon and learn from mistakes without fear of redress is a welcome development. Support and training for those conducting investigations, a moratorium in the regulation faced by the profession and stricter guidance for the Crown Prosecution Service meaning that fewer doctors face unnecessary criminal action may be more effective methods. Whether legislating for this proves to achieve the stated goals remains to be seen.

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