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Managing risk in tissue viability

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VOL: 96, ISSUE: 36, PAGE NO: 5

Fiona Culley, BSc, RGN, DPSN, CertEd (FE), is senior lecturer in nursing, University of Hertfordshire

Nurses who care for or treat people with compromised tissue viability face great challenges in an increasingly litigious climate. Making a Difference (Department of Health, 1999) outlines the changing roles of nurses, midwives and health visitors, all of which are associated with greater levels of accountability. With the introduction of clinical governance, the Health Act 1999 imposed a statutory duty for the maintenance of quality care on health authorities, trusts and primary care groups.


Nurses who care for or treat people with compromised tissue viability face great challenges in an increasingly litigious climate. Making a Difference (Department of Health, 1999) outlines the changing roles of nurses, midwives and health visitors, all of which are associated with greater levels of accountability. With the introduction of clinical governance, the Health Act 1999 imposed a statutory duty for the maintenance of quality care on health authorities, trusts and primary care groups.



These changes have increased the need for structured risk-management strategies that protect both patients and practitioners.



Quality and accountability are brought together in definitions of clinical governance. Nurses and other health care professionals can contribute by accessing appropriate information to support care and treatment decisions, and implementing policy monitoring through clinical risk management.



Setting national and local standards and learning the lessons of past incidents are also important aspects of clinical governance (Lugon and Secker-Walker, 1999).



The lessons to be learnt
In relation to tissue viability, a number of lessons have been learnt, particularly regarding pressure ulcers. Tingle (1997) reports several cases of poor pressure area care in UK acute hospital trusts and nursing homes. Poor communication, insufficient documentation and non-reflective practice were contributory factors in all cases, and awards of between £4,500 and £12,500 were paid in compensation for pain and suffering and inadequate risk assessment.



Tingle reports that the same issues were raised in several complaints submitted to the Health Service Commissioner, who since 1996 has had the power to investigate complaints about clinical judgements as well as other aspects of health care delivery.



These and other cases highlight the need for appropriate risk assessment, not only in the narrower context of specific clinical hazards but also in the broader sense of how the environment of care, skill mix and resources can become the basis for a claim.



Risk-management strategies include effective and timely written and verbal communication and the reporting of actual and potential incidents to help identify the indicators of risks. In the context of tissue viability, these include:



- Pressure injury;



- The failure or misuse of equipment leading to injury;



- Soft-tissue injury as a result of medical intervention;



- A failure to act on clinically significant results;



- Misdiagnosis;



- Any complication for which the patient was not prepared (Lugon and Secker-Walker, 1999).



These risk indicators need to be supplemented by an analysis of local incident reports.



Implications of litigation
There is some confusion over the incidence and cost of litigation against the NHS. Such calculations are complicated by the number of different sources reporting related data, difficulties in quantifying out-of-court claims and estimates of actual court settlements (Fenn et al, 2000).



Recent figures reveal the speculative nature of such data, with reports of health service clinical negligence claims varying from an estimated £84m (Fenn et al, 2000) to £400m a year (Department of Health, 2000a).



What cannot be disputed is the steady increase in medical negligence claims over the past decade. This led to the establishment in 1995 of the National Health Service Litigation Authority, which aims to protect trusts against the financial effects of litigation by pooling their resources. Operating in much the same way as an insurance scheme, it uses this fund to settle large claims.



All trusts are eligible to join the Clinical Negligence Scheme for Trusts (CNST) or the Welsh Risk Pool. Each pays an annual contribution and nominates an upper limit for which it is responsible. Not all trusts have signed up to the scheme but those that do are expected to meet risk-management standards set by the CNST (2000).



The implementation and audit of these standards are usually coordinated by a risk-management or quality manager, but all health care professionals should accept that they have an individual and collective responsibility to understand and adhere to them.



This has implications for training. Dineen and Walshe (1999) report that less than half of all NHS trusts provide specific training on risk management or incident reporting.



An earlier survey commissioned by the NHS Confederation (Walshe and Dineen, 1998) indicates that 85% of trusts have appointed a risk manager but that 90% of them have no formal qualification in the subject. Snell (1999) reports that up to a third of risk managers have not received any relevant training.



In the multidisciplinary context, all practitioners have a responsibility to work within designated professional boundaries according to their job descriptions, and they and their employers should avoid confusing grade mix with skill mix.



This is set out in The Scope of Professional Practice (UKCC, 1992), which requires nurses to prevent students and support staff from working beyond their level of competence.



However, it is important that risk assessment is not reduced to the designation of sets of tasks. It should be regarded as a process used to enhance, not replace, clinical judgement, which depends on a sound knowledge base and the ability to recognise risk indicators.



Expert witnesses
An increasing number of nurses are being asked to act as expert witnesses in disputes over tissue viability. This involves providing a reasoned account of professional standards at the time of the alleged incident, applying the Bolam principle. The case of Bolam v Friern Hospital Management Committee (1957) established the principle that a practitioner could not be found guilty of negligence if he or she acted in accordance with a responsible body of opinion or as a reasonable practitioner would have done in similar circumstances.



However, according to Sidaway v Bethlem Royal Hospital Governors (1985), differences in professional opinion do not necessarily equate to negligence.



In Bolitho v City and Hackney Health Authority (1997), the Bolam precedent was modified to allow the court to choose between two bodies of opinion if the expert witness cannot persuade the judge of the logic of his or her view.



The implications of acting as an expert witness should not be underestimated. As Bond and Solon (1997) stress, people who are regarded as experts in their specialties should also be able to withstand cross-examination and understand legislative processes and court etiquette.



The relevance of professional qualifications and experience should also be assessed on a case-by-case basis. Concerns about the sometimes ad hoc nature of expert witness appointments and the diversity of preparations for the role were raised in the Woolf Report (1996), an extensive review of civil rules and procedures.



As a result, new civil procedural rules were introduced in April last year. The court’s permission to call experts now has to be sought in every case and parties can be compelled to use one rather than two experts to reduce the conflict between contending authorities. This may speed up resolution but also means a single expert will be obliged to present a balanced, non-partisan view. It is not a responsibility to be undertaken lightly or without appropriate preparation.



Clinical governance and the national regulation and determination of clinically effective treatments through the National Institute for Clinical Excellence and the Commission for Health Improvement may lessen the need for expert witnesses to decide standards of care. As national standards become more explicit and risk management strategies improve, the need for legal intervention may reduce.



Complaints and disputes
Although going to court is one way to settle complaints about health care provision, the proceedings involved are often expensive, discriminatory and drawn-out. The adverse publicity that often accompanies court proceedings can also cause anxiety.



These difficulties are reflected in the fact that most medical disputes are abandoned or settled after negotiation between solicitors, with only 1% coming to trial (Middleton, 1997).



To minimise unnecessary litigation, the government issued new guidance in 1996 for hospitals on their formalised complaints procedure (NHS Executive, 1996). These outline three distinct stages:



- Local resolution;



- Independent review panel;



- The health service commissioner (ombudsman).



These stages are not necessarily sequential and depend on the nature of the complaint and the wishes of the complainant.



Complaints may be instigated by existing or former patients or on behalf of a deceased person, and must be lodged within six months of an incident or six months of discovering an incident (Lugon and Secker-Walker, 1999). In contrast, the limitation period for negligence claims remains three years.



The NHS complaints procedure is not designed to test charges of medical negligence so complaints should not be made if the complainant has explicitly indicated an intention to pursue legal action, but this is not always preventable.



The main aim of the revised procedure is the local resolution of complaints. All practitioners should therefore assume some responsibility for finding out how their local complaints procedures operate.



Complaints about primary care have also been affected by the changes, with a move towards in-house procedures. Some trusts have already set up patient representative services and appointed independent patient advocates, a development that is set to increase as part of The NHS Plan (Department of Health, 2000b).



Because of the difficulties involved in taking a case to court, the growth of alternative dispute resolution (ADR), which encourages out-of-court settlements through mediation or conciliation, is anticipated.



ADR is led by a trained mediator, through face-to-face or telephone contact, and should make it easier for aggrieved patients and relatives to reach agreement.



Avoiding the adversarial approach of litigation also offers speedier, cheaper proceedings and can help to maintain amicable relationships.



The success of ADR depends on the willingness of both parties to participate, access and funding, the skill and experience of the mediator, and familiarity and confidence in both the process and the outcome. It also relies on a shift in culture and the allocation of adequate resources.



The slow progress of ADR in the health care context, and the necessity for confidentiality, have made it difficult to evaluate.



It is unlikely that ADR will ever replace litigation. As well as being seen as compromising the constitutional right to a fair, public hearing enshrined in the European Convention on Human Rights, ADR cannot set a legal precedent or offer the same level of accountability.



Nurses need to be aware of all alternatives to legal action as effective complaints management and dispute resolution could drive quality improvements and strengthen patient loyalty to local services.



Clinical governance embraces quality improvement through risk management, and acting on the lessons learned from past incidents could reduce the role of litigation and the courts.



Audit, continuing professional development, clinical supervision and research on care delivery need to be sustained for accountable practice to develop.



The challenges facing nurses and other health care professionals are increasing, but clearer boundaries and guidelines are also being developed that potentially provide greater protection and satisfaction for all.



- The second article in this series will appear in the November 9 issue of NTplus Wound Care.

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