Investigating clinical accidents – a new set of teeth?


By Patricia Hitchcock QC

Shortly before Parliament rose for the election, the Public Administration Select Committee (PASC) published a report calling on the next Secretary of State for Health to set up a new, independent patient safety investigation body as a matter of priority. Lawyers specialising in medical cases, and patient advocate organisations, have for some time protested the lamentable inefficacy of the NHS complaints procedure and the highly regional approach of NHS Trusts to self-scrutiny and Serious Untoward Incident reporting. 

Despite long-standing official policies of honesty in the main medical defence organisations’ and Trusts’ policies, and recent drives towards a statutory duty of candour, there are still far too many examples of bad practice being silently condoned and whistle-blowers being penalised. 

The PASC found that the current investigatory bodies, including the Care Quality Commission (CQC) and the Parliamentary and Health Service Ombudsman (PHSO), are still over-stretched and under-resourced. The Secretary of State estimates that there are 12,000 avoidable hospital deaths a year; and in the last year, NHS England received 174,872 written complaints. Although these figures are a very small proportion of patients treated in the NHS (on PASC’s figures, complaints are about 1.1% of admissions), every one has a major impact on someone’s life, and very often on entire families. It is one of the ironies of practising in this area as a lawyer that one is forced to the realisation that deaths are much cheaper for defendant Trusts than living complainants, and that it is possible to chart medical competence by the geographical prevalence of valid claims; for all of us, as patients, as lawyers and as taxpayers, none of this is good news. Accordingly, the proposal to institute an overarching independent investigatory body with a remit to investigate the system as a whole has been warmly welcomed by patient groups such as AvMA (see comment on

The PASC has identified the following priorities for the proposed new body:

  • It must be independent of providers, commissioners and regulators, transparent and directly accountable to Parliament;
  • It must offer a safe space with strong protections for patients and staff to speak freely about what has gone wrong, without fear of reprisal;
  • It must have its own substantial investigative capacity.

It is envisaged that when its reports and recommendations are published, it will be for the CQC and the other executive, regulatory and commissioning bodies to ensure that they are implemented. The reports should not be legally privileged, although it is expected that witnesses will have immunity. 

It is hoped that this body will provide a substantial saving of public money over the major public inquiries necessitated by its absence; The Francis Inquiry, by way of example, cost £13.6 million. There will, of course, be a great deal of practical detail to be worked out to ensure that public funds are not diverted away from the CQC and the Health Ombudsman to a more abstract level of scrutiny; rather, the new body should actively support fair and thorough investigation and review at a local and national level, to prevent avoidable medical accidents.