Learning from deaths

Background

In December 2016 the Care Quality Commission identified that the NHS does not have a framework to identify and investigate every death. This was published in their report Learning, Candour and Accountability; a review of the way NHS trusts review and investigate the deaths of patients.

As an example, in some organisations a death from a 'recognised complication' is not investigated and there will be no assessment of whether reasonable steps were taken to prevent the complication from arising e.g. a cardiac arrest during surgery. There is likely to be a discussion at a 'mortality meeting', but the approach to these meetings is inconsistent. Often the meeting will not establish the detail of the care provided, not all of the relevant professionals will be present to discuss what happened, the records are not examined and recorded disagreement between professionals is scarce.

A common misunderstanding is that a referral to the Coroner will identify any problems in the care. However some Coroners will close the case without holding an inquest, concluding that the death was primarily due to natural causes (if the medical treatment for a serious disease did no more than 'fail to prevent' the death).

Ideally every death (and indeed every episode of patient care) would be thoroughly investigated to identify learning points. But, given the resource constraints placed on the NHS, this is impossible and a balance must be found. The new Guidance, which is now in force, places a large new burden on the NHS.

National guidance on learning from deaths

In March 2017, The National Guidance on Learning from Deaths [1] was published by the National Quality Board [2]. This includes some important deadlines and requires each NHS organisation to;

• By September 2017, publish a policy on how the organisation responds to each death, including specifically the death of every infant, child or a maternal death (up to 42 days after the end of a pregnancy), a stillbirth, a person with a learning disability or with mental health needs. This policy should refer to the existing Serious Incident investigation policy. 

- This policy must include the criteria for each level of scrutiny, so that it is clear whether the death will be reviewed by way of:

1. Death certification, or
2. A case record review (essentially a review of the medical records, which sounds a little like the review a medical examiner would carry out), or
3. An investigation

• From April 2017, Trusts have been required to collect specific data on deaths including;

- the total number of in-patient deaths

- how many 'case record reviews' were undertaken, and

- an estimate of how many deaths were likely to have been due to problems in care.

• From the end of September 2017, to set out the approach in a public Board meeting.
• From the end of December 2017, to publish the above data and learning.
• In June 2018 the Quality Accounts must include a summary of the data published, with evidence of learning.
• Identify an executive director to take responsibility for the learning from deaths agenda as 'patient safety director',
• Identify a non-executive director to take responsibility for the oversight of progress.
• Provide training and protected time for staff who report deaths, so that they investigate deaths to a high standard.
• Produce a policy for engaging with bereaved families (to work closely with them in relation to the investigations described).

When to carry out a 'case record review'

The guidance specifies that as a minimum a case record review must be carried out for:

1. all deaths where the family or staff have raised a significant concern about the quality of care,
2. all deaths in areas where people are not expected to die, for example in relevant elective procedures;
3. all deaths of a person with learning disabilities or a severe mental illness,
4. all deaths in a specialty, diagnosis or treatment group where an ‘alarm’ has been raised with the provider e.g. by a  Summary Hospital-level Mortality Indicator or other elevated mortality alert, concerns raised by audit work, concerns raised by the CQC or another regulator.
5. deaths where learning will inform the provider’s existing or planned improvement work, for example if work is planned on improving sepsis care, relevant deaths should be reviewed, and
6. a sample of 'other deaths' e.g. a selection of deaths from each day of the week.

The above is in addition to other reporting and investigation requirements e.g children, deaths of patients detained under the Mental Health Act, or detained in police or prison custody.

'Avoidable deaths' and inquests

Unfortunately, the Guidance optimistically states that 'the coroner has a duty to investigate any death where there are grounds to suspect that the death may have been avoidable'. This may be disputed by many Coroners, who are required to investigate 'unnatural' deaths; the threshold for an action turning a natural death into an unnatural one is hotly disputed. In many cases, a Coroner is unlikely to know, or be in a position to identify, whether a particular step in medical care 'may have' avoided a death, and the term 'avoidable death' is not one which many Coroners use.

It is not specified what information will be routinely disclosed to the Coroner. However,  a 'case record review' or an investigation, particularly if either includes an opinion as to 'whether the death was likely to be due to problems in the care' are likely to be relevant and arguably should be disclosed to the Coroner in every case. In terms of timing, an inquest may occur before the case record review is completed - it would be best to inform the Coroner that the review is being carried out, so that they can delay the inquest hearing and await the result if they wish to.

After an Inquest or a prevention of Future Death report, the Guidance requires the organisation to look again at the 'case record review', to assess whether that review was accurate, or presumably whether the Coroner made additional findings of problems in the care, which contributed to the death.

How will GPs be involved?

The Guidance is aimed squarely at NHS Trusts and it is disappointing that GPs are not required to identify and investigate deaths in the same way. Where a judgment has been made that care could be improved in the community, the Guidance advises the investigating Trust to 'support other organisations, for example in primary care, to understand areas where care could be improved'. The amount of information to be obtained from primary care is likely to vary, and an opinion that a problem in the GP's care is likely to have contributed to the death 

How will the Learning from Deaths Guidance be enforced?

1. The named executive will be accountable.
2. The CQC will assess adherence to the Guidance and the ability to learn from deaths, and will report the results in their inspection reports or in national publications.
3. The Healthcare Safety Investigation Branch will focus on incidents that signal systemic or intractable risks, and will carry out a small number of investigations directly. In other cases it will offer support and advice to help the NHS organisation  investigate thoroughly.

Gemma Brannigan is a partner at Clyde & Co who specialises in healthcare. She is also Assistant Coroner for West London. Gemma can be contacted on 020 7876 6399 or This email address is being protected from spambots. You need JavaScript enabled to view it..