John Tingle
In the vernacular of NHS patient safety there is a concept known as a ‘Never Event’. This is a concept that will be largely unknown to most people who work outside the NHS. A Never Event is defined by the NHS as:
“Never Events are serious, largely preventable patient safety incidents that should not occur if healthcare providers have implemented existing national guidance or safety recommendations.” p2)
An official list
There is an official list of NHS recognised Never Events which is subject to revision. The list includes such tragic errors as, wrong site surgery, wrong implant/prosthesis, retained foreign object post procedure and so on. Lawyers will all be familiar with the concept of, Res Ipsa Loquitur’, Latin for “the thing speaks for itself and its evidential effect in tort law. Never Events have a certain Res Ipsa Loquitur’ ring about them. The NHS imported the Never Event concept from the USA. The US Patient Safety Network gives the origin of the term:
“The term “Never Event” was first introduced in 2001 by Ken Kizer, MD, former CEO of the National Quality Forum (NQF), in reference to particularly shocking medical errors—such as wrong-site surgery—that should never occur.”
Financial sanction dropped
The concept was introduced into the NHS by the Darzi report in 2008.They were implemented along with a cost penalty on the provider to the care commissioner if one occurred. This internal NHS financial penalty was eventually dropped and is no longer part of the current Never Event policy framework. NHS Improvement stated:
“One of the key changes we have made in response to what you told us is to remove the option to impose financial sanctions associated with Never Events. We heard that allowing commissioners to impose financial sanctions following Never Events reinforced the perception of a ‘blame culture’.” (p2)
When a Never Event does occur in a health care facility such as a hospital there are important regulatory consequences and the independent regulator for health and social care in England, the Care Quality Commission (CQC ) are involved as Never Events must be reported .The inspection reports of the CQC contain reports of Never Events.
The Never Events Problem
There are several acute concerns with Never Events. I don’t think that the public, patients are that aware of them and therefore they fly under most people’s radar. They also do not appear to decrease in number and can be said to have morphed into Common Never Events when the NHS data reports are read. The same fundamental type of errors can be seen to be repeated year after year. This raises the important question of why Never Events persist? I would argue that history has not served the NHS well when it comes to patient safety. In some parts of the NHS lesson learning from adverse health care incidents such as Never Events is patently bad and much more needs to be done to develop a proper patient safety culture. The CQC stated in their seminal publication, ‘Opening the door to change’ in 2018:
“What sets Never Events apart is that they are believed to be wholly preventable by the implementation of the appropriate safety protocols. Despite this preventability, the number of Never Events has not fallen. About 500 times each year we are not preventing the preventable. (p3)
In this report the CQC shined an important spotlight on Never Events and looked at strategies to improve matters, problems, and opportunities. The Healthcare Safety Investigation Branch (HSIB) in 2021 published an analysis of HSIB’s national investigations. The report investigated the problem of Never Events and found:
“The analysis of the 10 Never Events included in this report found barriers that were neither strong nor systemic. These events are therefore not wholly preventable and do not fit the current definition of Never Events. (p7)
The HSIB in the report talked about reclassifying several Never Events because they currently lack strong systemic, barriers to stop them happening.
No need to rename
My view, which I have expressed in several quarters before, is that it is the idea behind the label that matters and not necessarily the label itself. Labels come and go, it’s the thinking behind them that’s important. The term ‘Never Event’ conjures up in the mind of everybody, that a major, terrible health care error has occurred. We don’t want to negative the impact of what has happened. The wrong patient has been operated on, a foreign body has been left in a patient during an operation, the wrong surgical procedure has been carried out. We don’t want to diminish the severity and impact of these major adverse health care errors by a simple name change.
It is possible to overthink and over engineer concepts. Sometimes we need some time out from thinking about matters and to reflect more on what people in the street think about concepts, not always the people who use them on a day-to-day basis. In lawyers’ language the literal, common meaning of a term can often be the best one to use.
Provisional publication of Never Events reported as occurring between 1 April 2021 and 31 March 2022
At the time of writing the latest data report from the NHS on Never Events shows 407 Serious Incidents appearing to meet the definition of a Never Event as defined in the official NHS Never Events list and which had an incident date between 1 April 2021 and 31 March 2022.A sample of some of the Never Events recorded below reveals the tragedy and horror of the errors that can be made which are truly unforgivable:
Wrong site surgery, 171 Never Events
These included from the report:
-Biopsy from wrong breast 1
-Bone marrow biopsy intended for another patient 1
-Eye injection that was not required 1
-Flexible sigmoidoscopy intended for another patient 2
-Incision to wrong side of head 1
-Removal of ovaries when surgical plan was to conserve them 1
-Wrong thyroid lobe removed 1
-Procedure to breast that had not been consented 1
There were 98 Retained foreign object post procedure Never Events and these included:
-Laparoscopic specimen bag 2
-Part of a pair of wire cutters 1
-Scalpel blade 1
-Surgical swab 21
All these events should never have happened. The report also includes other officially listed Never Events. The health care providers where these Never Events occurred are also listed in the report. The numbers of Never Events recorded in the report against each hospital ranges from 1 per to 11. One hospital recorded 11 Never Events in the report time frame listed above.
Conclusion
We lawyers have, Res Ipsa Loquitur’, the NHS has, Never Events. These types of errors are stubbornly persistent in the NHS and cause serious injury and even death. From the latest data report I was particularly struck by the Never Event where there was a removal of ovaries when surgical plan was to conserve them. We can all well imagine the horror that this error will have on the patient herself, her family and on the health carers who cared for her.
Never Events are unforgivable lapses of patient care by NHS who are meant to care for patients and the NHS should take more resolute steps to stop these types of events from happening. Unfortunately, there is a danger of them morphing into Common Never Events when NHS data reports are analysed.