Does the Lefroy Bill ring a bell?

It went unnoticed in most quarters, but today the Health and Social Care (Safety and Quality) Bill passed through parliament.

This Private Member’s Bill was put forward by Jeremy Lefroy MP, whose constituency includes Mid Staffordshire NHS Foundation Trust. At its heart lies a duty on the Secretary of State to introduce regulations to legislate that NHS services cause ‘no avoidable harm’ to patients ‘unless the person providing the service cannot reasonably avoid it’.

The Bill didn’t raise many eyebrows, or even headlines, until the HSJ reported on it last November. By that time, it had already received its first and second reading in the Commons securing, quite unusually, cross-party support. It is now only subject to formalities before it becomes an Act.

Avoidable harm is the scourge of any complex health care system. So legislation to try and eradicate it sounds like a good idea, doesn’t it? We at the Health Foundation, with the support of members of the Berwick Advisory Group, disagree.

Here’s why. Despite the good intentions behind the Bill, achieving no avoidable harm in health care is an impossible aim. No health care organisation in the world, let alone an entire system, has achieved it. Instead, as the Berwick Review concluded, the correct goal is the ‘continual reduction of harm’. Patient safety isn’t something that is ever won; there is no finish line. So a new duty which suggests otherwise sends out the wrong message to the service, and to the public.

So what might the pursuit of no avoidable harm look like? Take the example of health care associated infection. The reduction of MRSA and Clostridium difficileinfection in hospitals has been one of the undoubted achievements of the past decade. The cases that remain are likely to be either unavoidable, or perhaps require very significant resources and efforts to eradicate. Should we expend our limited resources on this pursuit at the expense of other equally deserving issues that may reap greater returns?

Of course it would be preferable to address all such quality and safety issues, but this is simply not an option given the strain on NHS finances. Conundrums like these are ugly, but we have to face up to them.

We have been told that the focus of the Bill is on the most serious cases of avoidable harm, such as the 338 never events that occurred last year. But nowhere on the face of the Bill is this reflected. Hundreds of thousands of incident reports are sent to the National Reporting and Learning Service every year. How many of these will now technically leave organisations in breach of the soon-to-be Act?

The minister Earl Howe has confirmed that government officials have been in contact with the Care Quality Commission to confirm that their approach to inspections will support the continued reduction of avoidable harm – which we welcome. However, it is how the duty will be perceived by providers which may lead to unintended consequences, given the language actually used in the Bill.

For instance, what might the threat of prosecution of organisations do to incident reporting rates in the future? Year on year, more staff are coming forward to report safety incidents, regardless of whether they lead to harm to the patient. This suggests that the NHS is making steps to build a genuine safety culture. How might a staff member feel about reporting an incident knowing that it may lead to the organisation being prosecuted?

It is interesting to note that while this new duty was passing through parliament, the Department of Health was consulting on plans to remove the threat of criminal prosecution for pharmacists who make dispensing errors. We couldn’t agree more with the following extract from the consultation document:

Removing the threat of criminal sanction for inadvertent preparation and dispensing errors will address a significant fear amongst pharmacy professionals, which is currently inhibiting the reporting of such errors. Ultimately, this change should support increased reporting and learning from errors, thereby improving patient safety and promoting better professional practice. Promoting a virtuous cycle of reporting and learning, as well as removing the “fear factor” of prosecution, is at the heart of the proposed overall approach to this issue.

At the debate on 13 March, Earl Howe gave assurance that the Bill is aimed at the organisations responsible for causing avoidable harm, not individuals. We would of course welcome efforts to move the debate – and meaningful action – on to the system causes of harm. But there is no evidence to suggest that system problems are any more likely to be addressed by the threat of prosecution than individual errors are.

Of course the NHS can do more to learn from serious incidents, which is the subject of the recent inquiry by the Public Administration Select Committee. But diverting further resources away from understanding the risks that lead to harm, rather than just the cases of harm themselves, will hamper efforts to make care safer.

As the Bill made its way through the House of Lords the Health Foundation shared its concerns about the Bill with members of the second chamber. We are grateful to those peers who shared and voiced these concerns in the second reading and committee stage debates in the House of Lords. We are also grateful for the opportunity to discuss our views with Lord Ribeiro, the Bill’s sponsor in the Lords, and Jeremy Lefroy MP, the Bill’s sponsor in the Commons.

In the end, the Bill passed unamended through parliament. But at the Health Foundation we’ll be considering what further work we can do to monitor the impact of the Bill and any unintended consequences that may unfold.

John is a Policy Manager at the Health Foundation.