Clinical negligence solicitor comments on NHS Trust’s failure to investigate patient deaths

Southern Health NHS Foundation Trust has this week been under significant criticism for failing to properly investigate and report on ‘unexpected’ deaths among its patients.

The independent investigation, commissioned by NHS England and carried out by auditing firm Mazars, identified that of the 10,306 patients that had died whilst under the care of Southern Health during April 2011 and March 2015, 1,454 of these were unexpected. 272 of these unexpected deaths were treated as critical incidents by the Trust. Only 195 of the unexpected deaths were considered a serious incident requiring investigation, equating to just 13% of the total number of unexpected deaths.

As well as investigations into unexpected deaths being worryingly uncommon at the Trust, the independent report notes that where investigations were carried out, they were often delayed and poorly undertaken. The report by Mazars states that coroners had criticised the Trust for reports being untimely, poor quality and therefore determining them to be not very useful on many occasions. Coroners have also criticised the Trust for failing to engage and communicate with the families of deceased patients.

Investigation into unexpected deaths at any hospital is crucial in assisting the families with understanding what happened to their loved one and can play an important part of the grieving process. It will also help in identifying whether there is evidence of clinical negligence which may have contributed to the death. Investigations that do identify incidents of medical negligence provide for organisational learning and the improvement of practices and policies so that future deaths can be avoided. This is often the greatest desire of the families. Of course, this is not to suggest that all unexpected deaths involve clinical negligence. Where clinical negligence has led to the unexpected death of a patient, the family may be entitled to make a claim for clinical negligence compensation.

NHS England commissioned an independent investigation into the Trust – one of England’s largest specialist mental health trusts – after concerns were raised following the death of Connor Sparrowhawk, 18, who drowned in a bath when he suffered an epileptic fit at a hospital in Oxford, operated by Southern Health.

As well as discovering the low incidence of investigations being undertaken in relation to unexpected deaths, the independent audit by Mazars also discovered that there were significant differences in the likelihood of an unexpected death being investigated for different types of patients. Unexpected deaths of adults with mental health problems were the most likely to be investigated, approximately 30%. However, this figure fell to just 1% for patients with learning difficulties and 0.3% for over 65s with mental health problems.

These figures are a real cause for concern and imply that within Southern Health NHS Foundation Trust, there may exist a culture of acceptance of death among those older mental health patients and those with learning difficulties, with management potentially believing there was little to be learnt from any investigation. At Blackwater Law Clinical Negligence Solicitors we know from experience that the risk of clinical negligence is not mitigated by age or physical or mental condition. In fact, it can be argued the risk of clinical negligence is greater in circumstances where health care professionals are dealing with patients with more complex needs, such as those using the services of Southern Heath.

Partner at Blackwater Law Clinical Negligence Solicitors, Jason Brady, said:

“NHS England should be commended for taking the step of commissioning and independent investigation into Southern Health NHS Foundation Trust.

“Early insight into the report’s findings suggests management at the Trust failed to properly investigate unexpected deaths. This limits the extent to which the Trust can identify potential cases of clinical negligence and prevents the organisation learning from its mistakes for the benefit of future patients. Every NHS Trust should have robust investigation and reporting procedures in place that prevent future medical negligence and provide opportunities for organisational learning which ultimately improve the standard of care for the public.

“Of particular concern in the report is the low incidence of investigation in the case of unexpected deaths among older patients and those with learning disabilities. I strongly believe this calls for further investigation as to whether this is also the case at other Trusts. If so, it may be argued the NHS institutionally accepts the unexpected death of older patients and this would need to be addressed. “

Early statements released from the report criticise the Trusts senior executives, with investigators stating the culture at the NHS Trust towards investigating deaths “results in lost learning, a lack of transparency when care problems occur, as well as lack of assurance to families that a death was not avoidable and has been properly investigated”.