Poor outcomes and adverse events often occur in healthcare settings in Australia. While not all poor outcomes amount to medical negligence or malpractice, it is important that all incidents are reported and investigated so that the provision of healthcare improves and similar incidents are avoided in future.
NSW Health Incident Management Policy
In NSW, all incidents which occur in the public health system that result in detriment to a patient are ‘reportable.’ This means the incident must be reported to hospital management and, depending on their severity, the local health district and the NSW Department of Health for analysis and remedial action.
NSW Health follows a hierarchy for the reporting of incidents as set out in the NSW Health Incident Management Policy. The nature and extent of the investigation depends upon the severity of the incident, which are ranked according to a “Severity Assessment Code” (SAC) of 1 to 4. The more serious the clinical consequence and the more likely the incident is to occur again, the higher the ranking on the SAC scale.
Root Cause Analysis
The most serious clinical event, for example death not related to the natural course of an illness or a Sentinel Event, is classed a “SAC 1” event. The Ministry of Health must be notified within 24 hours of such an event. All Clinical SAC 1 incidents require a root cause analysis (RCA) investigation. During this process, a team of independent clinicians will be appointed to investigate the incident. Their role includes reviewing clinical records, interviewing relevant staff members and considering system policies. At the end of the investigation, a RCA report will be finalised and endorsed by the chief executive officer of the local health district. The report may identify gaps in delivery and areas of improvement within the hospital or local health district, along with recommendations for fixing those issues.
Importantly for doctors, nurses and other healthcare practitioners, RCA reports are privileged documents. This means the final report cannot be used as evidence against the hospital in legal proceedings such as medical negligence claims or coronial inquests. In a medical negligence claim, this means that any RCA report findings cannot be relied upon as a way of proving negligence or identifying fault. The reason for this is to ensure open and honest disclosure by clinicians and investigators without fear of professional or legal ramifications. It is important to note that the RCA team is obliged to report to the chief executive officer of a local health district if they believe that an incident occurred as a result of professional misconduct, unsatisfactory professional conduct, impairment or unsatisfactory professional performance of a particular clinician.
All clinical SAC 2, 3 and 4 incidents also need to be reviewed. Such reviews will be undertaken at the local (hospital) level, but management responsibility for the review process must be assigned. A privileged RCA may be conducted for SAC 2, 3 or 4 incidents if the Chief Executive is of the opinion that the incident may be the result of a serious systemic problem that justifies the appointment of an RCA team.
Patients and their family members ought to be notified as soon as possible about any investigation. They are invited to play an active part in the investigation – which usually includes being interviewed. As part of the NSW Health Open Disclosure Policy, clinicians are encouraged to openly discuss any adverse outcomes with their patients and to extend an apology, if appropriate.
Many of our clients often assume that an apology is an admission of liability. Under NSW legislation, saying “I am sorry” after an incident is not an admission of liability or fault. Evidence of an apology is not admissible in civil (negligence) proceedings. Our experience is that clinicians often underestimate the power of an apology. Whilst it will not change the outcome, it is an acknowledgement of the pain and suffering a person has gone through as a result of an avoidable incident.
NSW Parliament Inquiry
Recently, the NSW Parliament completed its inquiry into the management of healthcare delivery in NSW. One of the recommendations handed down was that NSW Health urgently finalise upgrades to the Incident Information Management System. The Incident Information Management System is an electronic system activated in all local health districts in NSW. Its aim is to record all healthcare incidents, whether or not they result in adverse events, to assist management to deal with incidents and to provide a system for the reporting and tracking of incidents in any given location across the state.
The NSW Parliamentary inquiry learned that upgrades into the Incident Information Management System commenced in 2013. The main reason for the delay is the sale of the company responsible for the upgrade, which in turn delayed contract negotiations. There is an obvious concern that if incidents are not being recorded properly, it may mean that proper and timely investigations are not being undertaken.
Turn to Turner Freeman
Not all substandard treatment amounts to medical negligence. At Turner Freeman, we have lawyers who specialise in medical negligence claims who are able to advise you regarding your entitlements in this complex area of law.
If you or someone you know has suffered as a result of medical negligence, including a situation in which you have suffered injury as a result of inadequate treatment, or a lack of treatment at a public hospital, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.