Select Committee on Health Minutes of Evidence



Memorandum by The United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC)


PROCEDURES RELATED TO ADVERSE CLINICAL INCIDENTS AND OUTCOMES IN MEDICAL CARE (ACI 189)

CONTENTS
1. Introduction
2. The UKCC's statutory responsibilities
3. The role of the UKCC in standard setting
4. Complaints procedures
5. Professional conduct and fitness to practise procedures
6. Mechanisms in existence to support and advise patients, their relatives and carers and their effectiveness
7. The independent sector
8. Clinical Negligence Litigation

1.  INTRODUCTION

Terms of reference

  The House of Commons Health Select Committee has agreed to the following terms of reference for its inquiry:

    "To examine the adequacy and effectiveness of the procedures, including investigative procedures, undertaken following adverse clinical incidents and outcomes in medical care. In particular to examine the availability and accessibility of information, support and advice to patients and their relatives and carers".

  The Committee will take evidence on:

    —  the way such occurrences are investigated including the NHS complaints and disciplinary procedures, public and private inquiries, and the legal process;

    —  the mechanisms which exist to support and advise patients, their relatives and carers, and their effectiveness; and

    —  the legal, professional and other obligations on doctors and institutions relating to disclosure of information to patients, their relatives and carers.

  The UKCC welcomes the opportunity to give evidence to the House of Commons Health Select Committee Inquiry into Procedures related to adverse clinical incidents and outcomes in medical care.

  This memoranda has been complied on behalf of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC) and the opportunity to attend and assist the House of Commons Health Select Committee is welcomed.

  The terms of reference refer to adverse clinical incidents and outcomes in medical care. This has been given broader interpretation in our memoranda as applying to care delivered by nurses, midwives and health visitors. The UKCC is the statutory regulator of nurses, midwives and health visitors in the United Kingdom.

2.  THE UKCC'S STATUTORY RESPONSIBILITIES

  1.  The UKCC, together with the four National Boards (in England, Scotland, Wales and Northern Ireland), regulates the education and practice of nurses, midwives and health visitors. The Nurses, Midwives and Health Visitors Act 1997 (Annex 1 [2]) is a consolidation of the Nurses, Midwives and Health Visitors 1979 Act which established these bodies, and the Nurses, Midwives and Health Visitors Act 1992 which reformed their powers and composition.

  2.  The role of these statutory bodies is to define standards for the education, clinical practice, and professional conduct of nurses, midwives and health visitors; and to monitor the implementation and effectiveness of these standards. Broadly, the UKCC is responsible for standard setting and conduct procedures, including maintaining the register of professionals deemed fit to practice. The National Boards are responsible, within their respective countries, for oversight of the implementation of education standards and other related functions. The Nurses, Midwives and Health Visitors Act 1979 (Annex 1) brought together all the statutory bodies concerned with regulating the professions of both pre- and post-registration levels and rationalised the regulatory structures across the UK.

  3.  A review of the organisation and functioning of the five statutory bodies in 1989, led to the Nurses, Midwives and Health Visitors Act 1992 and changes in legislation—the UKCC became the directly elected body and the National Boards became smaller, executive bodies appointed by the respective Secretaries of State (and, for Northern Ireland, the Head of the Department of Health and Social Services for Northern Ireland). All professional conduct functions were transferred to the United Kingdom Central Council.

  4.  Nurses have been regulated under statutory professional self-regulation since 1919 and midwives since 1902.

  5.  The functions of the Central Council, are broadly to:

    —  establish and improve standards of training and professional conduct for nurses, midwives and health visitors (these are described as the principle functions);

    —  determine the requirements for entry to training and the kind, content and standard of courses leading to registration;

    —  maintain a register of qualified nurses, midwives and health visitors; and

    —  deal with allegations of misconduct or unfitness to practise due to ill health.

  6.  There are approximately 600,000 nurses, 90,000 midwives and 25,000 health visitors registered with the UKCC. Many nurses also hold midwifery or health visiting qualifications.

  7.  The nursing profession includes a number of groupings. These include the recognised branches (adult, child, mental health and learning disability) but there are also important differences in practice between nurses working in different clinical areas, health care settings and specialisms.

  8.  Funding is by way of three-yearly subscription from all registrants. This is currently £36 every three years and has not increased since 1993. The UKCC is an autonomous body, funded by registrants and accountable to the public for their safety through Parliament (the Secretary of State), and accountable to registrants for the proper discharge of its functions on their behalf.

3.  THE ROLE OF THE UKCC IN STANDARD SETTING

  9.  The role of the UKCC in setting standards extends to setting standards for initial registration through to standards in clinical practice.

  10.  A range of our standards documents are included with this memoranda, the most important of these being the Code of professional conduct (Annex 2) and the Midwives rules and code of practice (Annex 3). Copies are available free of charge to members of the public and many thousands are distributed each year. The Code of professional conduct sets out the professional obligations of personal accountability. The Code is used as a benchmark by which a practitioner's conduct is judged. Clause 10 of the Code of professional conduct places a duty of confidentiality on practitioners with an outline of when it might be appropriate to breach confidentiality. Guidelines for professional practice (Annexe 4) gives further details on the clauses contained in the Code. This document has been directly mailed to everyone on the register.

  11.  Our Professional Advisory Service is advisable to take calls from practitioners, employers and the public on UKCC standards. They receive hundreds of calls and written enquiries every week. The UKCC is currently devising formal tools for evaluating its standards on a regular, cyclical basis.

4.  COMPLAINTS PROCEDURE

NHS Complaints procedure—a UKCC perspective

  12.  There are many different ways of formalising a legitimate complaint against a health care provider or individual through a process of reporting and recording poor outcomes to treatment and sub-standard care. The revised NHS Complaints Procedure introduced on 1 April 1996 is now well established and easily accessible, however, there still appears to be shortcomings. At the moment it is subject to a formal review. The two separate stages, firstly local resolution and secondly independent review, are operating with degrees of efficiency across the NHS. The referral to the Health Service Commissioner is the final stage in this process. One of the difficulties emerging is that many patients believe that disciplinary action will automatically ensue from investigation of a complaint. Some members of the public, when reporting practitioners to the UKCC, are surprised to find that such a report has not already been made by the NHS Trust involved. Consideration should be given to how the NHS Complaints Procedure can be more effectively interface with the jurisdiction of the regulatory bodies.

  13.  With regard to local resolution, there is a degree of flexibility within the Government guidelines as to how local resolution should operate. However, the UKCC still encounters cases where a defensive and unco-operative stance is taken from the outset. There are also fundamental differences in how these procedures operate within NHS Trusts and primary care settings. Some reports and correspondence are still lacking in compassion and empathy and are framed in an overly legalistic way.

  14.  The success of conciliation across the NHS complaints procedure is variable and the quality of responses from complaints convenors, who only become involved in a complaint if the complainant is not satisfied with the results of a local resolution, are also inconsistent. Decisions about whether or not to carry out an independent review seems to be, at times arbitrary. The Health Service Commissioner becomes involved only when the local resolution and independent review stages are exhausted and if the complainant remains dissatisfied. A refusal for a request for an independent review may be referred to the Health Service Commissioner. Some members of the public still confuse the Health Service Commissioner's role and that of the UKCC.

  15.  The time scales for compliance at every stage of the process does not always seem to be achieved. Some complainants experience delay in receiving the convenors decision. The UKCC is contacted by complainants who have experienced a degree of frustration with time lapses within this procedure. Once an independent review has been agreed to, and having made a decision to proceed, the convenor has to appoint a review panel. Delays appear to be experienced due to the difficulties in convening a panel.

  16.  Many complainants have found the reports of independent review panels very helpful in clarifying matters that have not previously been considered. Some complainants may refer cases to the UKCC where there is a criticism of care delivery within the report. In some cases the complaint has been made by the patient or their family when the NHS trust has decided not to report the practitioner. The UKCC has, on occasion, removed the nurse from the register.

Health Service Commissioner

  17.  With regard to referral to the Health Service Commissioner, we have a number of cases that have been considered by the Health Service Commissioner and also by the UKCC. Excellent working relationships have been established, however, the interface between the regulatory bodies and the Health Service Commissioner is unclear, and the Health Service Commissioner has recently been seeking an explicit power in legislation to refer matters to regulatory bodies in the public interest. The UKCC has supported this proposal. Consideration should be given to making more explicit to the public the respective roles of the Health Service Commissioner and the regulatory bodies.

  18.  At the moment the Health Service Commissioner can only consider care and treatment provided by a doctor, nurse or other trained professional if the event happened after 31 March 1996. The UKCC has no time limit for a complaint about a practitioner. The Health Service Commissioner is also vested with jurisdiction to investigate complaints about failure to provide information under the Code of Practice on Openness in the NHS. The Code of Practice on Openness in the NHS is rarely used and many people are unaware of its existence. The Access to Health Records Act 1990, by contrast, is widely known about.

  19.  If the Health Service Commissioner refuses to investigate a complaint, the complainant will be given reasons. At the moment the UKCC does not give reasons for decisions made by its committees, however, this is currently being addressed.

  20.  The UKCC receives many complaints where there have been difficulties with communication or problems with breaking bad news. Such matters often feature in the reports of the Confidential Enquiry in Stillbirths in Infancy (CESDI) and the National Confidential Enquiry into Peri-operative Deaths (NCEPOD) Inquiries.

  21.  There are occasions when several different bodies may have jurisdiction over the same complaint. The House of Commons Health Select Committee may wish to consider recommending that the developments in clinical governance should clarify the roles of all statutory and professional bodies as well as addressing the responsibilities of employers. There could be an explicit duty placed on health care professionals to co-operate with any investigation of a complaint or a claim. This could be integrated as an explicit term and condition of employment. Within clinical governance developments it is important that patients are directed towards realistic expectations about clinical outcomes.

5.  PROFESSIONAL CONDUCT AND FITNESS TO PRACTISE PROCEDURES

  22.  One of the most important duties of the UKCC is to consider the allegations of professional misconduct or unfitness to practise for reasons of ill health made against registered nurses, midwives and health visitors. Anyone has the right to make a complaint to the UKCC about a registered nurse, midwife or health visitor. The UKCC deals with approximately 1,200 complaints per annum.

  23.  There is no time limit for a complaint to be made to the UKCC compared to time limits in place within the NHS Complaints Procedure. There is also a time limit for a complaint to the Health Service Commissioner where a complainant must make a complaint within 12 months of realising that there is an issue. The Health Service Commissioner has jurisdiction to extend the period in extenuating circumstances eg, if the local procedure has taken a long time. But, a complainant cannot rely on this discretion being exercised. The practical effect of these differences is that on occasion the regulatory body can act where the NHS Complaints Procedure or the jurisdiction of the Health Service Commissioner cannot be invoked. This strengthens the regulatory bodies power to protect the public and should be retained.

  24.  The purpose of the UKCC's complaints procedure is not to punish the practitioner but to investigate allegations of misconduct and unfitness to practise and to protect the public from a practitioner who may present a risk.

  25.  The most common examples of professional misconduct which we consider are:

    —  physical, sexual or verbal abuse of patients;

    —  theft from patients;

    —  failing to deliver appropriate care to patients (for employers and managers who are registered with the UKCC, this can include failing to maintain an acceptable environment of care);

    —  failing to maintain records;

    —  failing to administer medicines safely;

    —  deliberately concealing unsafe practice; and

    —  committing serious criminal offences.

  26.  The most common examples of unfitness to practise for reasons of ill health which we consider are:

    —  alcohol or drug dependency;

    —  untreated mental illness; and

    —  serious personality disorders.

  27.  When a complaint has been received the informationi is forwarded to the Preliminary Proceedings Committee of the UKCC. This committee meets in private has a range of powers:

    —  close the case with no further action being taken;

    —  refer the case for a full public hearing before the UKCC's Professional Conduct Committee;

    —  issue a formal caution. This caution remains on the practitioner's entry on the register for five years and is automatically disclosed whenever the registration details are checked by a potential employer or a member of the public;

    —  if the complaint is about alleged unfitness to practise for reasons of ill health, forward the case for a hearing before the UKCC's Health Committee.

  28.  The Preliminary Proceedings Committee has the power to impose an immediate interim suspension of the practitioner's name from the register, within 14 days.

  29.  Professional Conduct Committee hearings are held in public, the openness of which reflects the UKCC's public accountability. One of the UKCC's legal assessors will attend the hearing to advise on points of law and the admissibility of evidence. The practitioner is often represented, sometimes by a trade union officer, sometimes by a solicitor and occasionally by a barrister. If the practitioner chooses not to attend, the case will proceed without them. The committee will only consider evidence relating to the formal charges made against the practitioner. In considering its verdict, the committee must consider two questions:

    —  are the facts of the case as set out in the charges proven?

    —  if so, does this constitute misconduct?

  30.  The committee operates to the same high standards of proof as required in a criminal court. The facts of the case must be proven "beyond reasonable doubt" not simply "on the balance of probabilities" as is the case in, for example, an industrial tribunal.

  31.  The Professional Conduct Committee has a range of powers:

    —  find the facts of the case not proven and therefore take no further action;

    —  find the facts proven but rule that they do not constitute misconduct and therefore take no further action;

    —  impose interim suspension of registration if the hearing is adjourned and it is in the public interest to do so.

  32.  If the facts are proven and misconduct is proven, the Professional Conduct Committee can:

    —  in exceptional circumstances, postpone judgement for a specified period to allow the practitioner to produce further information required by the committee;

    —  in rare circumstances, take no action;

    —  remove the practitioner from the register indefinitely;

    —  remove the practitioner from the register for a specified period, after which the practitioner could apply formally to be restored to the register;

    —  issue a caution;

    —  refer the case to the Health Committee if evidence emerges of the ill health of the practitioner.

  33.  The confidential nature of the medical evidence being considered means that Health Committee proceedings are always held in private. The committee decides whether or not the practitioner's fitness to practise is seriously impaired by ill health and, if so, whether or not he or she represents a danger to the public. The committee is supported by a legal assessor and attended by a medical examiner.

  34.  The comittee can:

    —  close the case if they believe the practitioner's fitness to practise is not seriously impaired by ill health;

    —  refer the case back to the Preliminary Proceedings Committee or the Professonal Conduct Committee if that was the source of referral;

    —  remove or suspend the practitioner's registration;

    —  if the hearing is adjourned, impose interim suspension of registration in the public interest;

    —  postpone judgment pending further information to be supplied by the practitioner.

Restoration to the register

  35.  Anyone who has been removed from the register has the right to apply to be restored to it. Those practitioners who have been removed for a specified period may not apply for restoration until the specified period of removal has elapsed. Others can apply at any time, although in reality it is most unlikely that any application made less than twelve months after removal would be considered favourably by the UKCC. Restoration cases are considered either by the Professional Conduct Committee or the Health Committee as appropriate.

  36.  If a practitioner has been restored to the UKCC's register and is subsequently required to appear before the Professional Conduct Committee again on new charges, the fact that the practitioner has previously been found guilty of misconduct and removed from the register will be made available to the committee considering the new charges. The UKCC retains a record of the restoration for the lifetime of the practitioner.

  37.  Statutory Instrument 1993 No 893 Nurses, Midwives and Health Visitors, The Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 Approval Order 1993 is enclosed at Annex 5. This Statutory Instrument sets out the rules of professional conduct procedure.

  38.  The Government Health Departments in the UK commissioned JM Consulting to carry out a review of the Nurses, Midwives and Health Visitors Act 1997. The review document, The Regulation of Nurses, Midwives and Health Visitors, Report on a review of the Nurses, Midwives and Health Visitors Act 199 and the Government's response, Health Service Circular 1999/030, Review of the Nurses, Midwives and Health Visitors Act, Government response to the recommendations are enclosed at Annexes 6 and 7.

6.  MECHANISMS IN EXISTENCE TO SUPPORT AND ADVISE PATIENTS, THEIR RELATIVES AND CARERS AND THEIR EFFECTIVENESS

  39.  Community Health Councils play a key role in advising complainants about the NHS Complaints Procedure and about referral to the regulatory body. Voluntary groups and charities are the main source of assistance for patients in this field eg Action for Victims of Medical Accidents (AVMA). The rapid roll-out of NHS Direct and other developments in technology have enabled patients to more easily access health care information. The Code of Practice on Openness in the NHS does not appear to have had a significant impact. The House of Commons Health Select Committee may wish to review these arrangements. The Access to Health Records Act 1990 and the Data Protection Act 1984 give patients the right, subject to certain exemptions, to access their health information.

7.  THE INDEPENDENT SECTOR

  40.  Quality and regulation in the independent sector remains an ongoing concern. Approximately one third of all complaints dealt with by the UKCC relate to the independent sector. The plans to regulate and guarantee quality systems in the independent sector are currently the subject of consultation and the UKCC is responding to the government's recent consultation document. The lack of effective complaints systems in many areas remains a serious concern. The Health Service Commissioner can currently investigate complaints against private hospitals or nursing homes where care and treatment was paid for by the NHS. It is unclear as to how far the Health Service Commissioner's remit will extend in the future arrangements. The UKCC has jurisdiction over all registered nurses, midwives and health visitors working within the independent sector.

8.  CLINICAL NEGLIGENCE LITIGATION

  41.  Litigation in respect of clinical negligence has increased dramatically. The steep rise may be attributable to several societal factors: the reluctance of the public to accept at face value the advice and treatment given by professionals; an increased accountability and transparency in public sector services; greater and more focused media interest in relation to health care.

  42.  Following Lord Woolf's Inquiry, Access to Justice, which specifically reviewed clinical negligence, many reforms have been implemented. The Clinical Disputes Forum (CDF) has been in existence since 1997 and is a collection of all interested parties charged with implementing some of the reforms. The aim of the forum is to find less adversarial and more cost effective ways of resolving disputes about health care and clinical treatment. The forum has devised a pre-action protocol which has now been issued by the Department of Health and the Lord Chancellor's Department. It sets out a method of dealing with potential claims and encourages the earliest possible resolution. The forum's work has continued to-date on an entirely voluntary basis. The CDF has no formal funding. At this time careful consideration should be given to expanding the remit for its work.

  43.  One of the potential barriers to reporting and investigating adverse incidents is a concern that any documentation remains disclosable for the purposes of litigation. The NHS Litigation Authority and, through it, the Clinical Negligence Scheme for Trusts (CNST) have set risk management standards which include incident reporting procedures. The effectiveness of such proceedures depends on the culture of openness within an organisation.

  44.  Links between clinical audit activity, complaints procedures and litigation are not being made. Consideration could be given as to how this might be achieved.

  45.  There are a number of public and private inquiries carried out each year. The issues raised in such inquiries could be collated by the Commission for Health Improvement. The House of Commons Health Select Committee may consider recommending a role for the Commission for Health Improvement in respect of all inquiries to ensure dissemination of information and good practice. An overall natioanl view could be taken.

  46.  The Clinical Negligence Scheme for Trusts sets some prescriptive standards for risk management and these are audited through management assessors visiting trusts and carrying out individual audits. Accreditation schemes such as the King's Fund Organisational Audit also review and audit standards. Such initiatives should ultimately reduce the incidence of complaints and claims.

  47.  Many patients do not seek monetary compensation, they would like an explanation and interpretation of their clinical records, admissions of responsibility, reassurance that loopholes in the system have been closed. There is potential to consider expanding the remit of the Health service Commissioner to deal with small claims in the NHS. The current statutory power to award ex gratia payments could be used more frequently. Patients are more able now to check credentials and qualifications of the person providing treatment, however, it may well be that confirmation services such as those organised by the UKCC and the GMC should be made accessible to the public.

  48.  The use of alternative dispute resolution and mediation as a way of resolving disputes has been little explored. Mediation is an alternative to litigation, it is voluntary and without prejudice. The costs are a lot lower than litigation and the whole process is a great deal more speedy and flexible. Disadvantages may be that levels of damages cannot be reached through a medication process that can be achieved in the civil courts. It, therefore, could be considerd to be unsuitable for high value claims and there may be a view from patients and clients that professionals escape their professional accountability that the legal process might expose them to. Consideration could be given to extending alternative dispute resolution methods.

June 1999


2  Annexes not printed. Back


 
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Prepared 29 July 1999