Pat Daly

Of late, my colleagues and I are receiving complaints from acutely distressed families about what they perceive as ‘lack of care’ of their loved ones during admission to hospitals throughout the pandemic. Some of these stories are heart-breaking but they would not clear the ‘medical negligence’ threshold. In those situations, I inform families about the HSE ‘complaints process’.

I find that they are often inhibited from complaining because of the extraordinary efforts that the doctors and nurses have made throughout the pandemic. Secondly, families also sometimes feel that by making a complaint, they are putting their loved one’s care in jeopardy and feel that if their family member may become the ‘unpopular patient’ and if they complain that it may impact on their care going forward.

I explain that I too also applauded our healthcare staff. As a former nurse, I can completely empathise with the heroic efforts of the healthcare professionals. However, I explain that in certain situations, there is what I term ‘a lack of joined up thinking in the HSE’ and that by activating the complaints process, the families may assist the doctors and nurses and it could result in a ‘service improvement’ which would ease their burden.

For example, time after time, I hear that access to radiological scans out of hours is particularly problematic. 24-hour X-ray scan facilities should be available in all A&E Departments across all Hospitals. Not having this facility not only has the potential to cause harm, in that it can cause a delay in diagnosis and the implementation of appropriate treatment, but it also slows down the processing of the patient through A&E.

It is in everyone’s interests, especially during a pandemic, that individual patients are processed through A&E as quickly as possible. Therefore, by activating the complaints process, they potentially could get a service improvement which would help the A&E staff and future patients.

Complaints process

However, families who have activated the complaints procedure have reported that it appears to them (and us) that the complaints procedure is complicated and causes frustration. It requires the user to firstly, be au fait with technology, as one has to surf between the various information leaflets and legislation in order to understand what is involved and, secondly, to try to distinguish between a complaint about, for example, the quality of the food and a complaint about important aspects of care.

It is important to understand that the complaints process has a statutory framework (Health Act 2004, Part 9) which provides a definition of a “complaint” which can be summarised as any act by the HSE or its staff that “does not accord with fair or sound administrate process and this adversely affects” the patient. HSE staff are told that they should try to resolve the complaint immediately at the “point of contact” within 48 hours.

However, any complaint where the patient has been harmed or where there was a “near miss” (no harm caused) because of care relating to clinical judgement is called an “adverse event” and these have to be investigated. An incident report form is completed and submitted to a “senior accountable officer” who must make an assessment of the type of investigation required.

Adverse events

An “adverse event” that results in “major” (defined by the HSE as incapacity or disability) or “extreme” (defined by the HSE as death or major permanent incapacity) i.e. serious harm, requires the senior accountable officer to assemble a safety incident management team which must be chaired by an individual who has training and experience in conducting what the HSE calls a “systems analysis investigation”.

A system analysis investigation is simply the methodology used to investigate adverse incidents. The wisdom behind calling it a “systems analysis” is that if this model is used, then there is an analysis of systems vulnerabilities as opposed to analysing a specific individual’s or individuals’ performance. The aim is to establish what happened, how it happened, why it happened and what the organisation can learn from it and what changes the organisation should make to prevent it happening again.

The investigation procedure states that it “…will be cognisant of the rights of all involved”. There is reference to “dignity”, “respect”, “due process” and “natural and constitutional justice”. The safety incident management team will organise the investigation team to gather the data and collect all relevant information about the incident and conduct interviews with those involved.

Thereafter, it will prepare a detailed chronology that demonstrates what happened, identify “key causal factors”. These are defined by the HSE as “issues that arise in the process of delivering and managing health services, which the investigation team consider had an effect on the eventual harm”, i.e. the investigation team consider these factors to have caused the adverse event.

Also, the investigative team look at incidental findings to determine if, for example, there are contributory factors, which are defined as “a circumstance, action or influence which is thought to have played a part in the origin or development of an incident or to increase the risk of an incident”. These include technology issues, staff issues, team issues, environmental issues or indeed organisational or management issues.

The investigative team then prepares a report which details the makeup of investigation team, the terms of reference, the sources of information, the chronology of events the key causal factors, the contributory factors (if any) for the key causal factors and the recommendations to prevent such an incident in the future.

An “adverse event” that results in low impact safety incidents that result in “negligible” (defined by the HSE as minor injury not requiring first aid or presumably a near miss event), “minor” (defined by the HSE as an injury that requires first aid treatment) or “moderate” (defined by the HSE as a significant injury requiring medical treatment) will be investigated by what they call “aggregate analysis”, by the quality and safety committee who prepares a report which includes the identification of key causal factors contributing to the incidents again and/or the identification of any contributory factors for the key causal factors. Aggregate analysis of high-frequency incidents may trigger a look-back review, if necessary.

Automatic investigations

It is important to note that any “adverse event” involving care should automatically trigger an investigation initiated by the staff. I had a case where my client’s mother had died in hospital. Sixteen months following the death of the deceased, our client was contacted by telephone by the manager of the hospital and was informed that the said hospital had conducted an investigation into her late mother’s care.

A final report of that investigation had been published. The manager informed our client that the key causal factor had concluded that there had been a serious failing in the deceased’s care. This came as a complete shock to our client and her siblings who were put back into the throws of grief.

I argued that, in the months that the matter was being investigated, nobody at the HSE had the courtesy to inform our client or her siblings that the death was being investigated, nor were the family given any opportunity to participate in the investigation. Instead, they were presented with a fait accompli and the final report was published without reference to them or input from them.

This was contrary to the platitudes espoused by the HSE that they would be “cognisant of the rights of all involved”, “dignity”, “respect”, “due process” and “natural and constitutional justice”. I was successful in getting a codicil to be published and attached to the final report which apologised to the family for the death of the deceased and an acknowledgement and additional apology for not notifying them of the investigation until its conclusion.

• Pat Daly is a partner in the medical negligence department at Cantillons Solicitors.