Litigation and inquest forum, Exeter - September 2016

Litigation and inquest forumSeptember 2016, Exeter

Learning lessons from complaints, SIs, claims and inquests

Mark BarnettPartner, Browne Jacobson

Overview• Opportunities for learning – complaints

and SIs • Looking back (briefly!)• Momentum for change (with a focus on

SIs)• Opportunities for learning - inquests and

claims• Looking forward – drivers for change

Opportunities for learning – complaints and SIs• Complaints (NHS Constitution; The Local Authority

Social Services and National Health Service Complaints (England) Regulations 2009; duty of candour)

• Serious Incidents (SI Framework (March 2015); duty of candour)– RCA– Incident Decision Tree

Looking back• An Organisation with a memory, 2000

“…there is evidence that some specific types of relatively infrequent but very serious adverse events happen time and again over a period of years. Inquiries and incident investigations determine that ‘the lessons must be learned’, but the evidence suggests that the NHS as a whole is not good at doing so.”

Sir Liam Donaldson

Since then…• Bristol Children’s Hospital Inquiry,

2001• The Francis Inquiry, 2013• The Berwick Review, 2013• The Keogh Review, 2013• Kirkup Report, 2015

Momentum for changeEach Baby Counts – June

2016599 local reviews:• 48% used no specific tools or

methodology• Only 7% used an external

expert• 25% parents not aware of

review• 47% parents aware but not

invited to contribute• 39% contained no actions or

recommendations or solely focused on an individual

Sam Morrish

“Learning from mistakes”, July 2016‘Across the NHS a fear of blame pervades that prevents individuals and organisations being open to the possibility that their initial view of what happened might not be the right one, and means they are not asking questions about what happened and why…’

Parliamentary and Health Service Ombudsman

CQC Briefing: Learning from serious incidents in NHS acute hospitals 5 opportunities of improvement:

1. Prioritising serious incidents that require full investigation and developing alternative methods for managing and learning from other types of incident.

2. Routinely involving patients and families in investigations.

CQC Briefing: Learning from serious incidents in NHS acute hospitals 3. Engaging and supporting the staff involved in the incident and investigation process.

4. Using skilled analysis to move the focus of investigation from the acts or omissions of staff, to identifying the underlying causes of the incident.

5.Using human factors principles to develop solutions that reduce the risk of the same incidents happening again.

Opportunities for learning - Inquests• Prevention of Future Deaths (Regulation

28) Report (“PFD”)

• Promote safety and necessary change

• Identification of themes

Opportunities for learning - Claims‘The key to reducing the growing costs of claims is learning from what goes wrong and supporting changes to prevent harm in the first place”

Helen Vernon, Chief Executive NHSLA

• Thematic reviews of claims data• networking events to share outcomes of bid activity• ‘buddying’ arrangements with beacon organisations and those struggling with specific patient safety issues• promoting ‘ask’ and ‘offer’ work to share learning• facilitating bulk buying of maternity equipment

Looking Forward

Health Service Investigative Branch (HSIB)• National Health Service Trusts Development

Authority (HSIB) Directions 2016

• “…a just an open culture across the whole of the healthcare system”

• Not to apportion blame “Just culture”

• “Safe Space”

Health Service Investigative Branch (HSIB)• Initial budget £3.6m

• 30 investigations a year

• ‘…encouraging the development of skills used to investigate local safety incidents in the health service and to learn from then, including suggesting standards which may be adopted in the context of such investigations’ (Section 5 of the National Health Service Trusts Development Authority (HSIB) Directions 2016)

Other drivers for change

• Freedom to Speak Up Guardians• New medical examiners system

• Impact of fixed costs?• AvMa proposal for “patient safety letter”

Discussion & Questions

THE HILLSBOROUGH DISASTER:Lessons to be learntAndrew HopkinPartner, Browne Jacobson

A brief guide for the uninitiatedOn the day

• 15 April 1989 semi-cup final between Liverpool FC v Nottingham Forest at Sheffield Wednesday FC

• An exit gate was opened shortly before kick-off – fans poured into the already full Leppings Lane turnstiles

• 96 Liverpool FC fans sustained fatal injuries • 766 fans were injured

Inquests and Inquiries

• Taylor inquiry in August 1989 concluded that the cause of the disaster was “failure of police control”

• First inquest concluded in 1991 returning “accidental death” verdicts

• Judicial Scrutiny by Lord Justice Stuart-Smith reported in 1998 that amendments to police statements had no significant impact on the legal process or their outcomes – no new inquiry was necessary

• Private prosecution of the Match Commander and his Deputy failed in 2000

• 2012 publication of the Hillsborough Independent Panel Report

The New Hillsborough Inquests

• Original Inquest verdicts quashed by the High Court on 19 December 2012

• Lord Justice Goldring appointed as Coroner to oversee the new Inquests

• Jury Inquest• Dedicated Court facility in Warrington

Who were the Interested Persons?

Families of the deceased – 4 separate teams South Yorkshire Police South Yorkshire Metropolitan Ambulance Service Police Federation Police Match Commanders – 2 separate teams South Yorkshire Fire & Rescue Service IPCC CPS West Midlands Police Sheffield Wednesday Football club* Football Association* Peter Metcalfe* Anthony Edwards*

Evidence at the Inquest

State of the art digital system

Trial Director to review exhibits in Court

In excess of ½ million documents

Hundreds of witnesses called to give evidence

How long did the Inquest last?

• 5 PIR hearings in London and Warrington• First sitting day 31 March 2014• Conclusions returned on 26 April 2016• Court sitting days – 319• Jurors who started 11 – at the end 9!

What did it cost?Figures in, so farThe total cost is yet to be announced but we do know the following interested persons incurred the following costs:

South Yorkshire Police Crime Commissioner £24 millionPolice Federation £25 millionMatch Commanders £5.8 millionAmbulance Service £1.5 millionSheffield Teaching Hospital £445,000West Midlands Police £256,000Sheffield City Council £1 millionIPCC £321,000South Yorkshire Fire £1.3 millionCoroner £14 million (up to March 2015)

What conclusion did the Jury return: Unlawful KillingQuestion 6: Determination on Unlawful Killing issues

Are you satisfied, so that you are sure, that those who died in the Disaster were unlawfully killed?Answer “yes” or “no”

YES – by a majority of 7 to 2

Important Note:When answering this question, please refer to the section at the end of this questionnaire which is headed “Legal Directions on Question 6 (Unlawful Killing” (pages 30-31). That section contains important directions which you must follow carefully when answering this question.

Note that, as with other questions, you should only give an answer to Question 6 if all of you agree upon the answer.

So what happens next?

• SYP Chief constable was suspended and disciplinary proceedings are underway

• The families also called for the Chief Ambulance Officer to be dismissed

• The Chair of the Hillsborough Independent Panel review has been asked by the government to report on the “lessons to be learnt” from the disaster

• IPCC investigation into police corruption• Operation Resolve – criminal investigation into

individuals

Call for “Hillsborough Law”The Public Authority and Accountability Bill

The draft bill sets out how public authorities, servants and officials can achieve this by:-i. Acting with proper expeditionii. Acting with transparency, candour and frankness;iii. Acting without favour to their own position;iv. Making full disclosure of relevant documents, material and facts;v. Setting out the core position on the relevant matters at the outset

of proceedings, inquiries or investigations; andvi. Providing further information and clarification as ordered by a

court of inquiry

Call for “Hillsborough Law” contd

The Public Authority and Accountability Bill

The draft bill also calls for a:-A Code of Ethics to be published to promote “Ethical behaviour,

transparency and candour”. It also makes a failure to discharge a duty under the Act a criminal offence The draft bill also establishes criminal offences in the event

that the public punishable by a term of imprisonment.

How likely is it that this draft bill will ever become law?

Chief Coroner and Call for Equal Funding(8) Representation for families

201. In a small number of inquests the family of the deceased is unable to obtain legal aid funding for representation at the inquest, despite individuals or agencies of the state being funded for legal representation as “interested persons”. In some cases one or more agencies of the state such as the police, the prison service and ambulance service, may be separately represented. Individual agents of the state such as police officers or prison officers may also be separately represented in the same case. While all of these individuals and agencies may be legally represented with funding from the state, the state may provide no funding for representation for the

Call for Equal Funding contd

202. in some cases the inequality of arms may be unfair or may appear to be unfair to the family. It may also mean that the coroner has to give special assistance to the family which may itself give the appearance of being unfair to others.

203. The Chief Coroner therefore recommends that the Lord Chancellor gives consideration to amending his Exceptional Funding Guidance (Inquests) so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested parties.

On the horizon?• The tide does seem to be turning to provide

equality of arms for families facing state represented parties

• The Home Secretary is considering the application of the families of those affected by the Birmingham Pub Bombings in 1974 for funding a the new Inquests due to begin shortly

• Orgreave Inquiry? Are there any more?

Contact us…Mark Barnett – [email protected]

T: +44 (0)1392 45 8768 M: +44 (0)7920 713971

Andrew Hopkin – [email protected]

T: +44 (0)115 976 6030 M: +44 (0)7879 885221

Albion Chambers Kate Brunner - [email protected] T: +44 (0)117 927 2144

Alex West - [email protected] T: +44 (0) 117 927 2144