Patient and staff safety within the mental health setting

Organisations providing mental health services have to navigate some of the most challenging regulatory, legal and statutory risks. In that context, how can those providers nurture a positive learning culture to improve staff and patient safety?

Fundamentally, healthcare providers strive to give the safest care, because a consequence of falling short is injury or fatality. To the people delivering care, the regulatory, legal, statutory threats/sanctions are not a key motivating factor. Nevertheless, the consequence of harm to patients and staff remains a huge burden:

• Patient harm: in one year the cost of claims linked to poor mental health care was just less than £20m. As well as the costs in damages these claims are likely to have involved exacerbation of ill health and increased care needs.
• Patient death: in 2022, 193 deaths occurred whilst the deceased was detained under the Mental Health Act.
• Staff harm: staff in mental health trusts are approximately seven and a half times more likely to be attacked than staff in other NHS trusts. Over 5 years NHS Resolution received 1,791 claims associated with assaults in a mental health setting. The costs associated with assaults on NHS professionals during this period was £26.2m (damages). We do not have data on how many of those people returned to work or the medium-long term implications of the assault upon their well-being.
• Prosecution by CQC: breach of regulation 12 (Safe care and treatment) nearly always involves failure to safeguard patients who are vulnerable and/or lacking capacity.
• Prevention of Future Death reports: in 2021-22, 40% of PFD reports concerned healthcare providers.
• Individual and organisational reputation: in 2021, more than 15,000 written complaints concerned Mental Health services (10% of written complaints).

Other consequences which are not so measurable involve local communities’ lost confidence in their healthcare providers, healthcare practitioners leaving the profession and/or facing GMC/NMC investigation.

Nurturing a learning culture

“Being Fair, promoting a person-centred workplace that is compassionate, safe and fair” demonstrates the importance of a nurturing, learning culture. Similarly, the Patient Safety Incident Response Framework (PSIRF) is designed to facilitate proportionate, compassionate investigations and a learning culture: moving away from blame. However, the mandatory investigations, regulatory, legal, statutory threats and sanctions will continue to run in parallel.

The PSIRF challenge to organisations is to consider the specific facts behind incidents and decide whether learning can be gained to reduce near misses or harm. At the same time, the coroner, court and regulators will require assistance with their own investigations which a healthcare provider will be obliged to cooperate with. How to strike the appropriate balance between internal review for learning and securing evidence for external scrutiny remains a matter for careful leadership and policy.

It can be difficult to draw out sophisticated learning from complaints, inquests and claims. At the heart of each process lies a patient, family or staff member with an individual story, which is often fact-specific. However, it is possible to identify broad themes. We are currently managing over 100 claims relating to mental health. Our analysis identifies key trends being shortfalls in communication, inadequate or failure to follow policy and poor documentation. NHS Resolution published “Insight from Assault claims” in 2019 and citied inadequate or insufficient:

• staff de-escalation training
• medical reviews
• documentation of rationale for medication choices
• systemic communication approach

Realistically, organisations will never remove all risk, but learning from incidents remains the best way to prevent future harm.

Representing the healthcare provider

As lawyers asked to independently investigate, present evidence and facilitate resolution, we like to see the best possible evidence of up-to-date policies; contemporaneous documentation; responsive risk management; collaboration between providers. If this evidence is not available, a strong confident witness or representative from the organisation can play a valuable role in helping the parties involved (whether it be patient, family, regulator, coroner, or court) to understand the events, local processes and demonstrate learning. The corollary is for that representative to feed back their learning from the ‘legal’ process to the Board and their colleagues to enhance the safety actions and improvements.

Sharing learning from the ‘legal’ process

Organisations with confident representatives (usually senior clinical leaders) who will attend court or mediation meetings, accept valid criticism and demonstrate they (their Board and organisation) will learn from mistakes, offer the most credible opportunity to disseminate how learning and improvement can be developed following an incident.

Healthcare providers which develop staff to confidently represent the organisation externally and thereafter, inform safety action and improvements are best equipped to nurture a learning culture and reduce the risk of causing harm or facing sanction.

If you require support:

• implementing PSIRF
• analysing data to inform a learning culture.
• claims, inquests and complaints management (Remedy) or
• training staff