Being fair Supporting a just and learning culture for staff and patients following incidents in the NHS

Advise / Resolve / Learn Advise / Resolve / Learn Contents

Contents

Key messages 5

Examples of practices used across the NHS – see details in examples 9 Example 1 – Just learning culture charter 10 Example 2 – Mersey Care - a restorative approach 13 Example 3 – Barts Health NHS Trust - pre-disciplinary checklist 14 Example 4 – NHS Improvement - A just culture guide 17

Background to guidance 18 Section 1 – Introduction and purpose 19 Section 2 – Context and theory 20 Section 3 – Impact on staff 25 Inequity 25 Fear 26 Incivility and bullying 27 Section 4 – Claims 28 Claims related to staff and bullying 28 Table 1: Numbers of all claims by date of notification an annual cost 28 Table 2: Numbers and value of claims by type of NHS organisation 29 Figure 1: Claims notified to NHS Resolution 2013 to 2017 (n=317) 30 Descriptions of harm within these claims 31 Section 5 – Suspension, exclusions and professional regulation 32 Suspension / exclusion 32 Professional regulation 33

Conclusion 34

References 36

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4 Key Forewordmessages

Key messages

A just and learning culture is the balance of fairness, justice, learning – and taking responsibility for actions. It is not about seeking to blame the individuals involved when care in the NHS goes wrong. It is also not about an absence of responsibility and accountability.

The vast majority of people We recommend using a who work in health and social balanced approach to safety, In order to achieve a just care wish to provide the very i.e. that we learn from when and learning culture when best care they can, given the things go wrong and learn care has not gone as circumstances they are working from when things go right. expected or planned, three in. There is very rarely intent If we progress this thinking questions (Dekker 2017) by staff to provide care that then the definition of safety should be asked: did not go as expected or shifts from ‘avoiding something • who is hurt? planned. While this guidance that goes wrong’ to ‘ensuring • what do they need? is predominantly about how that everything goes right’. • whose obligation is it staff are treated, this is with Then we can help people to meet that need? the intent to ensure that the succeed under the varying benefits of a just and learning conditions so that the number A Just and Learning Culture culture for staff will have a of intended and acceptable Charter is provided (see significant and positive impact outcomes is as high as possible. example 1) for you to on patients and their families. adapt and adopt which A resilient organisation helps includes many of the key All actions should be staff work safely every day. messages that organisations understood before being Resilience also provides the can consider. judged and staff should be ability for an organisation supported to learn from their to sustain its operations actions. Furthermore they under both expected and should be asked for their unexpected conditions. advice and help to design the systems that could help change things for the better. Those responsible for managing incidents should use the science of human factors, including investigative techniques, skills, expertise and methods that help us fully understand what happened in order to learn from errors or harm in the future.

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Co-designing the solution to developing a just and learning culture

A roundtable workshop of work is actually done and HR directors, regulators, NHS not the work that people The overarching aim of the arm’s length bodies and some (leaders, policymakers, group was to provide the patient safety experts was regulators) imagine is NHS with the latest thinking convened by NHS Resolution or could be happening together with guidance on in February 2018 to explore how to replace blame with • Identifying what good the concept of developing a learning, and to ensure practice looks like just and learning culture and that there is equity for all staff and a proportionate to share best practice. • The importance of role response to concerns about modelling and leadership Participants discussed the performance or behaviour by example need for: for all staff, regardless of • Creating ways in which race, ethnicity, disability • Linking patient safety staff can be listened to or sexual orientation. with staff engagement, and using staff stories health and wellbeing Central to the approach at Board level and other in the future, the group • The balance of learning, senior leadership meetings agreed three aims: accountability and • Building a strong partnership responsibility 1 To prioritise learning with ‘staff side’/staff about how to minimise • An understanding of why representatives and the conditions and or whether a disciplinary involvement of staff behaviours that can investigation is the right diversity networks underpin or lead to error response following an • Tackling incivility and the rather than apportion incident bullying culture within individual blame. • Use of the science of health and social care 2 Build a consistent human factors and the • Where appropriate, using approach for all staff, no latest thinking on third-party advice (e.g. matter what profession creating a just culture Practitioner Performance or what background. • In addition, a focus on Advice service – within 3 A determination to behavioural change and NHS Resolution). avoid, wherever possible, understanding more about inappropriate suspension, a ‘safety II’ approach in exclusion and disciplinary terms of learning what action unless there is works and the specific wilful intent. aspects of working in health and social care, i.e. the difference between how

6 Co-designing the solution to developing a just and learning culture

What we need is a restorative the right conditions to • Early intervention by just culture (Dekker 2018) help people work safely trained and committed that is about repairing and by truly understanding senior staff to distinguish building trust and relationships what work is like and not between blame and when things have not gone as how it is imagined to be accountability based on a planned. This means we need (Hollnagel 2013) thorough understanding to develop working practices of human factors, patient • An emphasis on ensuring that move people away from safety, the restorative just that new staff (whatever fear and blame, including and learning culture, and their background, and tackling incivility and bullying, behavioural psychology especially if trained overseas) and addressing the health are supported and are aware • Speedy interventions to and wellbeing needs for staff of the organisation’s values determine whether any to help them work safely. and the behaviours they form of disciplinary Ensure everyone’s needs are should expect for themselves investigation is needed and met, no matter who they are. and from others timely resolution for all Treat everyone fairly, no matter what their background is, • An acknowledgement that • The use of a tool such as a and help them speak up. excessive and inappropriate triage approach, checklist disciplinary action may be or prompts simply to help To create a just and learning taking place in respect of reflection and challenge culture the group considered staff from all backgrounds prior to any disciplinary a need for: and especially, unwittingly action– and to use these • All staff, patients and their or otherwise, those from with caution to ensure families to be provided BAME (black, Asian and that they do not lead to an with appropriate support minority ethnic) backgrounds inappropriate focus on the at all times individual or individuals, • Reduce the need for i.e. that they in themselves • To ensure that the culture inappropriate disciplinary do not perpetuate a blame is restorative for all and not investigations culture in some way retributive or adversarial • Using staff data related (Dekker 2018 and 2017) • Accountability of decision to disciplinary action, makers throughout the • A challenge in the current suspensions and exclusions system to learn. thinking and a change to check if any patterns of in mindset in relation to high (or disproportionate) healthcare and how it could levels of disciplinary action be safer, with a focus on exist and why, and whether, learning rather than blame over time, they are reducing and with a focus on creating

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8 Examples of practices used across the NHS

Examples of practices used across the NHS

The following are just a few examples of what people are doing in the NHS as a way for others to see the kinds of ways in which a just and learning culture could be built.

Organisations are at different However the use of an stages, and are still learning agreed tool or framework about what works. There by organisation is helpful are a variety of approaches in supporting a more being taken, with no single consistent approach approach recommended over towards all staff groups. another (further examples of best practice may also be helpful to consider).

Example 1 - Just and learning culture charter.

Example 2 - Restorative approach: Mersey Care NHS Trust and the use of a restorative approach adopted from and influenced by the work of Professor Sidney Dekker (2017).

Example 3 - Triage system: Barts Health NHS Trust and the use of a triage system to determine whether disciplinary action is necessary or inappropriate.

Example 4 - A just culture guide: NHS Improvement ‘just culture guide’ which also acts as an aide memoire for people to assess the appropriate response when something goes wrong (NHS Improvement 2018).

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Example 1 Just and learning culture charter

The following is a suggested ‘Just and Learning Culture Charter’ for organisations to adapt and adopt.

Our organisation accepts 4 We need to take the blame 8  We will recognise that the evidence that we will out of failure. This means people are less willing to provide safer care and be changing the mindset speak up if they are afraid a healthier place to work if and the language associated of being punished or we are a learning organisation. with safety – from blame prosecuted. We will build Humans are fallible; they to learning. However, this a culture where individuals make mistakes and errors. does not mean an absence feel able to speak up, of accountability. offering different levels 1  Patients’ physical and Accountability is about of access (e.g. freedom to mental health must remain sharing what happened, speak up guardians) and the paramount concern working out why it ensure that when they of any treating health happened, and learning do speak up they are professional, whether or and being responsible fully supported within not there is a dispute over for making changes for the organisation. treatment or a clinical the future safety of staff error is alleged to have and patients. 9  All people in contact with been made. our organisation – 5 We will always want to employees, contractors, 2  Clinical incidents have a understand why things patients, relatives and the real and deep impact on don’t go as planned in order public – are encouraged, people’s lives. Patients (or to redesign systems and and sometimes even their partners or relatives) processes to minimise the rewarded, for providing who have been affected chances of them happening essential, safety-related have a right to explanations again in future, and support information. and to seek apologies, individuals to work safely. assurances and/or financial 10 As part of our just and compensation for injuries 6 We will learn about what learning culture we will caused where appropriate. works well, and why, in ensure that people are order to replicate and clear about where the line 3  The vast majority of things optimise these behaviours must be drawn between that do not go as planned and processes. acceptable and are due to unintentional unacceptable behaviour. acts and choices, and only 7 We will publish guidance As an organisation we a tiny minority are as a summarising the recognise that incivility, result of intentional acts, fundamental principles rudeness and bullying are recklessness or wilful of a just and learning damaging both to staff behaviours. Processes culture which will be wellbeing and patient should be designed to applied at all levels of our safety, and we will seek support the vast majority organisation, from the to address these issues. of staff to help them executive to the frontline. That means being work safely. respectful, civil and kind.

10 Example 1: Just and learning culture charter

11 We will ensure that all 15 Those who report concerns We will ensure that advice our staff recognise that will be notified in a timely given by Occupational inappropriate responses way of the steps taken in Health will be followed may disproportionately response. Where patient in a timely manner. impact on some groups of care was compromised, the staff, notably BAME staff. family will be told in a 19 We will encourage and timely way in accordance expect all staff to continually 12 People must be confident with our duty of candour. consider what factors can that their identity, or the affect behaviour and identity of any person 16 While we recognise that performance, such as design implicated in any report disciplinary action may be of systems, processes, they make, will not be necessary, we will ensure products, equipment and disclosed without their suspension is rare and is environmental factors. knowledge, unless this never a knee jerk response We will also consider is required by law. to whatever has happened. factors including fatigue, workload, team relationships 13 If a more formal 17 Our organisation recognises and communication on investigation is required, that there will be working safely. we will ask what happened circumstances where and why, and what can referral to a professional 20 We recognise the be learnt. A decision will regulator may be importance of role models be reached within a locally appropriate for some staff and leading by example agreed reasonable in certain circumstances for senior leaders at timescale. When we within the thresholds set executive level. Reports investigate when things by the regulator. When on progress in moving go wrong, we will try to that happens, it will only towards a just and learning recognise and minimise be done in accordance culture will be a part of all natural biases we all have, with our principles of leadership meetings, and such as hindsight, outcome learning and never as an shared with staff and and confirmative bias. At all additional punishment. patients appropriately. stages the emphasis will be on learning, not blame, and 18 We recognise the on why it happened rather importance of engagement than ‘who did it’. with staff on this issue - linking patient safety to 14 When a concern is raised staff health and wellbeing, or an investigation is and recognising the required we will have in contribution that frontline place clear governance to staff can bring. As an ensure that investigation organisation we will reports are followed up, emphasise the importance setting out which actions of staff wellbeing as a are being taken to address foundation for helping error-producing conditions people to work safely. in the future.

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12 Example 2: Mersey Care - a restorative approach

Example 2 Mersey Care - a restorative approach

The approach adopted, Analysis of the Trust’s and understanding the incident and influenced by the (disciplinary) cases has first, changing questions from work of Dekker, S. (2017), shown that the Trust has a ‘who’ to ‘what’ to get to a emphasises: high volume of disciplinary place of understanding. investigations, with over 50% • The importance of There has since been a of investigations resulting in language significant reduction in there being no case to answer. disciplinary cases. One of the • The risk of hindsight bias Attention was therefore four clinical divisions saw a focused on the initial stages • Change of focus from 64% reduction in disciplinary of the process and how the policies that punish cases between 2016 and 2017. Trust determined that an to policies that assist Having a level of psychological investigation was required. practice safety, where issues can be Mersey Care introduced raised and addressed before • A focus on informal template documentation they escalate, is a major factor approaches over formal which, they state, was probably in improving both patient procedures one of the most significant and staff safety. • A fair balance of factors in reducing cases. In September 2018, the Trust justice, forward looking Whilst the documentation completed a research study accountability and itself is simple, it encouraged with Professor Dekker and intervention - just culture those responsible for making Art at Work on identifying the decision to ensure the • Working with staff-side and evaluating the economic appropriate information in partnership working benefits of restorative had been obtained and practices. It was found that • Ensuring that staff feel it considered, before deciding to the introduction of restorative is safe to speak up, with instigate formal proceedings, practices has coincided with specific mechanisms to and the rationale was then many qualitative improvements support this clearly documented. for staff. The report highlights • The importance of Where possible and an estimated assumption sharing learning, appropriate, the Trust worked of the economic benefit anonymised if needed to make sure that those who of restorative justice to be may be subject to disciplinary approximately 1% of the total • Refresh of the trust investigation were able to costs and approximately 2% values and drawing on contribute information to the of the labour costs. These are human factors science; process. The HR team advise estimates and are based on introduction of new managers with gathering a relatively narrow window value of support, which appropriate information in the (a two-year period). includes encouragement initial stages, but the focus is to raise concerns so to very much on investigating learn from experience.

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Example 3 Barts Health NHS Trust – pre-disciplinary checklist

At Barts Health NHS Trust, A number of other Trusts This checklist is to be used a pre-disciplinary checklist is have used similar approaches by the reviewing manager used which has led in its first which stress the importance of BEFORE a decision to 12 months to a considerable having informal conversations formally investigate a reduction in the overall volume at the very beginning, with a worker is made. of disciplinary investigations focus on learning rather than The following triumvirate and a significant narrowing formal investigations which applies, where a decision of the likelihood of white tend to focus on finding who is then made to establish and BAME staff entering the is to blame. The precise format that an investigation is disciplinary process. varies, but the principles appropriate and that all are similar. appropriate steps have been taken to cultivate a culture of learning from an incident rather than punishment. • Site Director of Nursing and Midwifery Nurses and Midwives • Site Medical Director Doctors • Site Operational Director All other Staff Groups

14 Example 3: Barts Health NHS Trust – pre-disciplinary checklist

Have you asked yourself the following questions (1-6) before making a decision to formally investigate the individual concerned?

1 Is it a capability or conduct 3 Have you reviewed the 4 How well have you reacted issue? (Y/N) worker’s knowledge against to this situation? Have their skills and determined you as a manager... 2 If a conduct issue, does the if the worker knew of conduct of the employee a. Read the situation the rule or performance sit within the list of gross well (Y/N) standard? If so, which of misconduct stated in the these applies? b. Got the employee’s non-exhaustive list at the attention (Y/N) end of the Disciplinary i. The worker does not Policy?* (Y/N) have the knowledge c. Created the right of what to do and so relationship with the a. Did the worker intend can’t in practice (Y/N) employee (Y/N) to cause harm? (Y/N) ii. The worker knows in d. Raised the concern b. Did the worker come theory but can’t in informally with the to work drunk or was practice (Y/N) member of staff in the there any other same way you would with iii. The worker knows how noticeable impairment any other employee (Y/N) to their judgement or to and can in practice, competence? (Y/N) but isn’t (Y/N) e. Actively observed or identified which of 3i, a. Have you done a c. Did the employee ii, iii, 2c applies? (Y/N) knowingly and preliminary investigation unreasonably increase to understand the risk by violating situation well? (Y/N) known safe operating b. Have you ensured you procedures? (Y/N) have taken statement(s) d. Would another similarly from the employee trained and skilled involved and given employee in the same them an opportunity situation act in a similar to present their version manner (the ‘James Reason of events? (Y/N) 1 substitution test’) (Y/N) c. Have you exhausted the informal route? (Y/N) d. Have you maintained consistency in dealing with * Questions 2a to 2d would be applicable in cases of Serious Incidents (SI) this situation regardless

1 James Reason provides a decision tree for of the employee’s determining culpability for unsafe acts - banding and protected Reason, J (1997). characteristics? (Y/N)

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5 How open have you been 6 Given that our Trust’s values 7 Referring to question 3, in taking an overview of and disciplinary policy if evidence is strong then: activities and impact emphasise improvement • If the employee does and learning, not a. Have you ensured the not know how, so punishment, have you: employee understands can’t in practice, then the situation well? (Y/N) i. Considered whether a development plan the employee has is required b. Have you ensured they shown any remorse have understood the • If the employee knows and understands the rationale for applying the in theory, but can’t implications of their Disciplinary Policy? (Y/N) in practice, then a actions? (Y/N) development plan is c. Do they understand ii. Have you considered required the ‘pause and review ‘plea bargaining’ in the process’ and the • If the employee knows Disciplinary Policy?** next steps involved how to and can in (Y/N) in this? (Y/N) practice, but isn’t, iii. Have you followed Trust then continue with d. Have you checked if values whilst dealing with formal investigation the employee is aware this situation? (Y/N) for disciplinary action. of various support mechanisms such as Trust Employee Assistance programme, OH, HR, Finally, have you determined that, by carrying out an and Union? (Y/N) investigation for disciplinary action against this individual, it is consistent with how other employees have been treated e. Have we positioned for the same or similar misconduct/action? (Y/N) praise or blame? (Y/N)

f. Have we ensured they agree with the conclusion? (Y/N)

g. Have the next steps

been discussed with

the employee? (Y/N)

** ‘Plea bargaining’ exists for where an offence arises and the individual admits to the offence; they can therefore accept the sanction (warning) without a long drawn out investigation and hearing. The manager must ensure the sanction is in line with the level of warning given in other related hearings to ensure consistency. It is a way of avoiding a formal process but not the sanction and can therefore only be considered for a first offence (because if it happens again then the individual hasn’t learnt the lesson from the first incident).

16 Example 4: NHS Improvement – just culture guide

Example 4 NHS Improvement – just culture guide

NHS Improvement published We will revisit and update safety investigation and it a guide in 2018 to encourage this guide, as necessary, as should not be used routinely. managers to treat staff our understanding develops. It should only be used when involved in a patient safety there is already some suspicion This guide supports a incident in a consistent, that a member of staff conversation between constructive and fair way. requires some management managers about whether This guide updates and to work safely. a staff member involved replaces the incident decision in a patient safety incident NOTE: A just culture guide will tree (IDT) developed by the requires specific individual be reviewed later in 2019 in National Patient Safety Agency support or intervention to light of any recommendations (NPSA) around the work of work safely. The guide: from the Professor Sir Norman James Reason, an expert in Williams Review. human error and its drivers. • Asks a series of questions that help clarify whether NHS Improvement state: there truly is something • The fair treatment of specific about an individual staff supports a culture that needs support or A just culture guide of fairness, openness and management versus whether This guide supports a learning in the NHS by the issue is wider, in which conversation between making staff feel confident case singling out the managers about whether to speak up when things individual is often unfair a staff member involved go wrong, rather than and counterproductive in a patient safety incident fearing blame • Helps reduce the role of requires specific individual • Supporting staff to be unconscious bias when support or intervention open about mistakes making decisions and will to work safely. allows valuable lessons to help ensure all individuals For further information: be learnt so that the same are treated equally and https://bit.ly/2R0hb4J errors can be prevented fairly no matter what their from being repeated. In staff group, profession any organisations or teams or background. This Scenarios to support where a blame culture is has similarities with the training in using a just still prevalent, this guide approach being taken by culture guide will be a powerful tool in a number of NHS trusts to To help with the training, promoting cultural change reduce disproportionate we have developed a series disciplinary action against • This is our best current of case scenarios that black, Asian and minority understanding on how facilitators can use to walk ethnic (BAME) staff. to apply the principles people through the tool. of a just culture in practice, The guide can be used at For further information: and that this is a live any stage of a patient safety https://bit.ly/2KakPYX area of both academic investigation. It does not and practical debate. replace the need for a patient

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Background to guidance

18 Introduction and purpose

Section 1 Introduction and purpose

This paper sets out the case for a just and learning culture for everyone working in and receiving care across health and social care.

It provides the current context, The paper applies as much considers the harmful impact to a small community team on staff working in a blame or general practice as it does culture, and assesses the latest to a large teaching hospital thinking and evidence base trust. While the conversation for what good looks like. The is predominantly about how theory and evidence around staff are treated, this is with a just and learning culture are the intent to ensure that the backed up by examples from benefits of a just and learning organisations that have started culture for staff will have a on the journey to shifting significant and positive impact the emphasis from blame to on patients and their families. learning when care has not This is about creating and gone as expected or planned. supporting a just and learning This paper is intended to culture for all in health and start a conversation about social care. what we could do differently across health and social care. It offers help for health and social care organisations who are considering the steps they could take in order to create a just and learning culture in their organisation no matter how big or small.

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Section 2 Context and theory

Over the last two decades A learning organisation is If safety is both a state there has been a concerted where everyone facilitates where as few things as effort to make healthcare safer a culture that helps to possible go wrong and (Woodward 2017), but there continually transform and a state where as much is still much to do. improve that organisation as possible goes right (Argyris, Putnam and Smith (Hollnagel 2013), then The current data we have, 1985; Senge 1990). A learning organisations and leaders together with a range of organisation that has safety need to: healthcare reports and at its heart studies all aspects inquiries over the years, have • be mindful of the of care. This, in turn, uses that highlighted the need for potential for things not knowledge to help people improvements in how we to go as planned; to redesign the workplace; for learn about how to make understand the potential example systems of work, the care as safe as it could be for risk and harm; and to way equipment is placed and (Kennedy 2001; Francis 2013; take steps to prevent and stored, the infrastructure and Berwick 2013; Kirkup 2015). minimise the impact staffing needed, and processes This requires us to improve our of how care is delivered. • seek to learn when things learning about how day-to-day don’t go as planned; care is delivered, how it feels The mindset should always be learn so that things can to work for frontline staff, to design systems that support be changed to the system and ways in which they need the individuals within those and change things to to adapt and adjust what they systems to work safely. It also, help people work safely do to keep patients safe. importantly, includes learning about how people behave and • seek to learn from the This means learning how care what supports safer behaviours day-to-day and from is delivered, not how we and decision making. This when we get it right in imagine it is delivered, but includes understanding the order to replicate this and exactly how it is done on a significant links between the optimise what we know day-to-day basis. It requires us health and wellbeing of staff we already do well. to improve our learning about and safer practice. what is working well and what doesn’t go as planned The latest thinking in safety is or expected (Hollnagel 2013). based on decades of research Underpinning this learning in human factors, sociology, is a culture which is kind, psychology, cognitive systems respectful and which enables engineering and other sciences. people to speak out openly, It reflects the development and to share issues, concerns and balance of both restorative and ideas without judgement practices and accountability (Dekker 2018). (Hollnagel 2013; Shorrock and Williams 2017; Woodward 2017;

Dekker 2018).

20 Context and theory

There is a growing body of Ask the people who do the Turning to a just and learning evidence that demonstrates work every day and discover culture, there are different that a way forward is to how the world looks from their views as to what this actually embed a just and learning point of view – both staff and means. David Marx (2017) culture. A checklist, or charter patients (Dekker 2018). People writes about identifying the or framework provides the should be seen as the solution different behaviours that are foundation for helping people to harness, not the problem exhibited in the workplace. create a just and learning to blame (Dekker 2018). He describes how humans culture; culture change cannot are erroneous, risky or reckless A just and learning culture be achieved by these tools but and he talks about how, by also requires us to understand they will help organisations truly understanding these much more about the science to evolve, and grow in order different behaviours, we can and application of human for a just and learning culture then respond appropriately factors. This should involve to be embedded into every and proportionately to these exploring the conditions in interaction people make. behaviours. which people work in order Leaders, therefore, have to design the systems and The term human error has the responsibility for role processes to help work be as been used for over three modelling the right behaviours safe as it can be. It involves decades and is now accepted to create and maintain a safe learning about why human as a common explanation for and supportive environment beings behave as they do and ‘when things go wrong’ such for both the patients and staff what factors can affect their as mistakes, slips, lapses and that is fair, open and able to behaviour and performance, so on (Reason 1997). Some learn. This includes employing including design of systems, people also try to distinguish and devolving decisions to processes, products, equipment between each of these. There embed safe practice among and environmental factors is a view that, by using the experts. This can be achieved such as noise. It also includes term ‘human error,’ it focuses by bringing together different an understanding of the the mind purely on the human professions, teams and impact of factors like fatigue, being as the cause and not departments to hear from workload, team relationships the circumstances that led everyone, no matter how and communication on to the error occurring. disparate their views. It is vital working safely. that the changes needed to The study of human factors embed safe practice involve also helps us to understand those who work at the ‘sharp how we should investigate end’ of the organisation and when care has not gone as that those who receive care are expected or planned in a truly listened to and asked how way that seeks to minimise things should be done. natural biases such as hindsight, outcome and confirmation bias (Shorrock and Williams 2017).

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Marx (2017) suggests the following: 1 Human error is inadvertent action or actions in a non-judgmental way first inadvertently doing other than what before seeking immediately to blame and should have been done and it should sanction – there may be very justifiable be accepted that this is what we do as reasons for these behaviours and these humans, that we are fallible and therefore need to be understood and learnt from. people who are erroneous should be 3 Reckless behaviour is when people make consoled and supported. choices that are considered reckless, i.e. 2 Risky or ‘at-risk’ behaviour is when putting people at an unjustifiable risk of people make choices that could increase harm. This could also include intentional risk, or where risk is not recognised or acts, and a willful and conscious disregard where risk is believed to be justified. to a substantial and unjustifiable risk. This includes what are often referred These people, Marx suggests, should to as violations of policies or procedures be sanctioned in some way, but there and can also include forms of negligence. also still needs to be learning from why Marx writes that staff who exhibit risky people behaved in the way they did behaviour should be asked about their and the choices they made.

Dekker (2014; 2017) believes there is no intent whatsoever external bodies, including that it is more helpful to to harm anyone. In all these the relevant professional distinguish actions and choices cases, the actions and choices regulator(s) and the police. as being either unintentional made should be understood The terms ‘blame’ and (the vast majority) or before being judged and ‘accountability’ are often intentional (the very rare). people should be supported to used interchangeably; this learn from them. Furthermore He and many others believe can lead to opportunities for they should be asked for their that the vast majority of learning to be missed. Brenner advice and help to design the people who work in health (2018) provides the following systems that could help change and social care wish to provide definition:‘Blame is to be things for the better. the very best care they can, accountable in a way deserving given the circumstances they However, this does not mean of censure, discipline, or other are working in, and that there an absence of accountability. penalty … accountable does is no intent to provide care The very rare person who not mean “blame-able”.’ that did not go as expected does make an intentional act or planned. And that such of harm should be dealt with incidents are unintentional and responsibly and referred to

22 Context and theory

Brenner (2018) also states Dekker (2017) suggests that, in These are three very that accountability means to order to achieve a restorative powerful questions that be answerable and responsible just and learning culture in refer to everyone: the for an activity, and the terms the aftermath of when care staff involved, the patients accountability and blame has not gone as expected and their loved ones. differ as follows: or planned, three questions should be asked: Learning versus punishment If blame is the goal, any • who is hurt? investigation tends to stop • what do they need? after the ‘culprit(s)’ have been identified and the opportunity • whose obligation is it for learning is lost. to meet that need? Climate of fear Where staff express fear of accountability; this can be a strong indicator of a blame culture. Organisational chart altitude distribution Where accountability for actions is mainly focused at the bottom of an organisational structure; it is where blame is likely to be assigned. Acknowledging interdependence Recognising that all those accountable for an incident will commonly result in a long list, as incidents are usually linked to system failure and not individuals.

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24 Impact on staff

Section 3 Impact on staff

Inequity A just and learning culture In researching the causes of staff (n = 3,854) did so requires a balance of disproportionate disciplinary (NHS Equality and Diversity learning with accountability action in the NHS against Council 2017) and assurance that staff BAME staff, Archibong and • According to the NHS and organisations take Darr (2010) found, in their ESR data, it is more likely responsibility for making report for NHS Employers, that: that some staff will enter changes to help people work ’...line managers found it disciplinary investigations safely. Threats to this kind of difficult to deal with issues in some trusts compared culture are apparent when relating to disciplinaries to others. In addition, it staff are inappropriately and there were often is, on average, 1.24 times blamed or face suspension inconsistencies in the more likely (2017-18) that following an incident, or are application of disciplinary BAME staff will enter the subjected to disciplinary action policies… It was perceived that disciplinary process (i.e. and sometimes dismissed. managers were more likely to be subject to a formal Too often people involved discipline B(A)ME staff over investigation) than their in complaints, incidents and insignificant matters and that white counterparts across claims are not supported, and disciplinary concerns involving trusts in England (NHS instead they potentially face staff from minority ethnic Equality and Diversity disciplinary processes which backgrounds were not always Council 2019) can lead to a culture of fear considered to have been dealt of speaking out. • In 30 trusts (13%) more with fairly and equitably by than 2% of white staff In addition, research has shown human resources managers.’ entered the disciplinary that different individuals can ESR (Employee Staff Records) process and in 77 trusts more also experience inequity and data show there is very than 2% BAME staff did so discrimination, and suffer significant variation between disproportionate levels of • This is an improvement on NHS Trusts regarding the disciplinary action, in particular the previous year (2016-17) likelihood of staff being black, Asian and minority whereby it was on average disciplined or suspended. ethnic (BAME) staff groups. 1.37 times more likely that This can impact not only on • In 2016-17, NHS Trusts in BAME staff entered the the individuals involved, but England (98.7% n=232 of disciplinary process on the teams they work within, 235) reported that almost • In 70.1% of trusts, the and even the wider teams 16,000 staff entered the likelihood of BAME staff across the organisation and formal disciplinary process. entering the disciplinary subsequently on the patients 1.3% of white staff (n = process was more than for they care for. 11,857) and 1.7% of BAME

25 NHS Resolution Being fair

white staff and in 59 (27.6%) • A variety of biases and complaint is made, irrespective trusts, the likelihood of attitudes by people of the potential outcome. This BAME staff entering the (intentional or otherwise) is now considered a key threat disciplinary process was influencing which individuals to a just and learning culture, more than twice as high as become subject to as Lady Justice Hale pointed for white staff (Equality and disciplinary investigations out in Gogay v. Hertfordshire Diversity Council, 2019). rather than deploying County Council (2000): learning conversations ‘…even where there is There might be a number where this would be more evidence supporting an of reasons why this is the appropriate (Archibong investigation, that does not case, including: and Darr 2010) mean that suspension is • All staff, including some automatically justified.’ • Some jobs that BAME BAME staff recruited staff undertake may, Involvement in incidents recently from abroad, may irrespective of ethnicity, and complaints can also not be adequately trained, be those most likely to significantly impact on managed or supported experience disciplinary individuals’ health and during and following actions being invoked. wellbeing. A UK study their induction showed an association Fear • An excessive focus on between staff involved in blaming individuals rather When things have not gone complaints procedures and than seeking to address as expected, there is a fear of risks of depression, anxiety the conditions, factors and being blamed, fear for future and suicidal ideation (Bourne possible system causes of employment and fear of what 2015). The association is likely the alleged performance or colleagues, families and friends to be impacted by the length conduct issues, which might will think (Shorrock 2017). of the disciplinary process. impact disproportionately Professionals describe feelings on BAME staff. This may Recent high profile cases of misery and insecurity, both be because of “protective have significantly heightened during the process and in its hesitancy”, whereby some this fear, particularly among aftermath. Another study managers find it difficult junior doctors. The fear is reported that disciplinary to have honest, informal compounded by feelings of action involving doctors discussions with some staff, isolation, with the potential can result in anger, guilt, notably with those from for significant impact on shame and depression, and BAME backgrounds, which individual staff members (Kliff future ‘defensive practice’ may increase the likelihood 2016). There are numerous (Cunningham 2011). of those staff facing formal cases cited of employees being In addition the emotional investigations rather suspended and prevented from and psychological impacts of than informal discussions contacting anyone as soon disciplinary proceedings and (Archibong 2010) as an incident happens or a regulatory processes cause

26 Impact on staff

immense stress on physical In healthcare this is adding There is a recognised and mental wellbeing, to a culture of fear and is relationship between a including physical symptoms preventing people from positive workplace, learning of short-duration migraines, speaking up. It also affects from excellence, gratitude skin rashes, irritable bowel morale, and staff health and and appreciation, and syndrome, cardiovascular wellbeing. The impact on staff improved patient care. diseases and strokes is considerable, and can affect It is vital that leaders and (Bourne 2015). cognition, and equally reduce organisations work towards safety, effectiveness, quality creating a positive culture Incivility and bullying of work and productivity by that recognises and rewards A further threat to a just the affected staff member(s) success and kindness. What and learning culture is the as well as those who observe is needed is a culture where way people behave towards this behaviour. Incivility is everyone, no matter where each other on a day–to-day therefore harmful to both staff they are within the hierarchy, basis, in particular rudeness, and to patients (Turner 2018). is respectful, kind, caring and incivility, lack of kindness civil towards one another. Sadly, the scale and impact and even bullying. of bullying in healthcare is There is growing well documented. Almost a understanding of the issue quarter of NHS staff report and impact of incivility and being bullied at some point rudeness in the workplace. in the previous twelve months. Incivility is defined as ‘the Bullying and harassment can exchange of seemingly impact in a number of ways. inconsequential and A climate of fear can lead inconsiderate words and to a lack of openness and deeds that violate conventional willingness among staff to norms of workplace conduct’ report errors or even share (Porath and Pearson 2013). concerns through anxiety It may be the slightest thing, of the consequences. This a sneer, a look of annoyance, inevitably leads to a less safe being ignored in the corridor, environment for patients. being put down in a meeting The impact on the workforce or the use of belittling can be significant, leading to language. It can escalate staff members experiencing to be much worse, such high levels of stress, as humiliation in front of unhappiness and burnout others and lead to bullying. and, ultimately, leaving the profession.

27 NHS Resolution Being fair

Section 4 Claims

Claims related to staff stress and bullying The last five years have seen a The cost alone does not number of claims notified to illustrate the emotional impact NHS Resolution (see Table 1) and consequences to the staff in relation to staff stress and member, the organisation in bullying. The defined costs which they work, the patients below do not account for any that they may have to care associated costs for sickness for, and their colleagues and absence, any replacement family members. staff costs to cover duties or resources for investigation and management.

Table 1: Numbers of all claims by date of notification and annual cost

Notification Year Number of Claims Total Claims Value (£)

2013/14 67 3,096,707

2014/15 81 3,022,488

2015/16 68 6,624,735

2016/17 57 4,890,787

2017/18 44 9,844,286

Grand Total 317 27,479,003

• All claims notified to NHS • There is commonly a time • These 317 claims cover a Resolution. The figures lag from the incident to range of incident dates, with represent the value of the claim being notified over 50% of them being in the claims registered. as a claim to NHS Resolution the years 2013 to 2018. Some 91 cases are under and then resolved investigation, in 92 cases damages were paid and in 134 cases damages were not paid

28 Claims

The majority of staff members 105 making these claims were Women employed in NHS organisations, Men Total claims = the majority being from Acute 317 or Foundation Trusts which Of all 317 claims, included 36 mental health 212 were from organisations (Table 2). 212 women and 105 from men.

Table 2: Number and value of claims by type of NHS organisation

Organisation Type Number of Claims Total Claims Value (£)

Foundation Trust 155 13,794,280

Acute Trust 131 10,885,969

Special Trust 14 1,490,617

Community Trust 11 997,070

Clinical Commissioning Group 6 311,068

Grand Total 317 27,479,003

29 NHS Resolution Being fair

The 317 incidents covered a whole range of staff, illustrating the extent of the issue and highlighting that it can affect staff at any level or role within an organisation (Figure 1).

Figure 1: Claims notified to NHS Resolution 2013 to 2018 (n=317)

120 108 100

80 65 60 40 43 40 25 26 Number of claims 20 4 6 0 Admin AHP Doctor Facilities Manager / Nurse / Other Unknown Exec Midwife

The numbers are significant • Failure to provide a safe • Failure to carry out suitable and are driven by a range of system of work and have or sufficient assessments avoidable factors in relation regard for staff members’ of the risks to the staff to how staff are supported. mental health and members’ mental health These include: personal safety • Failure to implement any • Failure to follow policies • Failure to follow adequate preventative or effectively relating to recommendations set protective measures for the investigations and out in the investigation safety of staff members. workplace stress report which caused the staff members’ • Failure to follow advice trust and confidence given by Occupational to be undermined Health and conduct a timely investigation, grievance or appeal

30 Claims

Descriptions of harm within these claims include:

Work-related stress – staff member was subjected to bullying and 1 abusive behaviour by a consultant

2 Work-based stress resulting in suicide

3 Stress at work caused by workload and lack of resources

Staff member felt they were obliged to work excessive hours 4 leading to suffering a stress-related illness

Following the death of a patient and subsequent investigation by the Trust, staff member felt isolated during suspension. This resulted in a 5 significant psychiatric injury compelling them to seek early retirement

Depression, anxiety and work-related stress resulting from changes 6 in role

Stress arising from failure to pay regard to complaint by staff 7 member regarding staffing levels

31 NHS Resolution Being fair

Section 5 Suspension, exclusions and professional regulation

Suspension / exclusion

The National Audit Office on poor, unnecessary or assumption that the employee (NAO 2003) examined inappropriate disciplinary suspended in this way is suspension in the NHS and investigations, suspensions, guilty and look for evidence the cost of disciplinary action hearings, appeals and legal to confirm it’ (Crawford & taken in 2003. While this audit costs is considerable. In 2012, Anor v Suffolk Mental Health was over 15 years ago, the almost a decade after the Partnership NHS Trust 2012). findings related to the impact NAO published its report on The Practitioner Performance of suspensions or exclusions are suspensions, the Court of Advice service at NHS still relevant today. Appeal felt obliged to flag Resolution (formerly known The NAO found (in the year their own concern stating: as the National Clinical prior to publication, i.e. ‘the almost automatic Assessment Service, NCAS) in 2002) that 1,000 clinical response of many employers can be contacted for advice staff were suspended for, to allegations of this kind where a healthcare orgnisation on average, 47 weeks for to suspend the employees is considering excluding, doctors and 19 weeks for concerned, and to forbid them suspending or restricting a other clinical staff. The cost from contacting anyone, as practitioner’s practice. Where estimated in terms of lost staff soon as a complaint is made, patient safety is considered time, replacement staff, and and quite irrespective of the to be at risk or where there administrative costs was in likelihood of the complaint are allegations of serious excess of £40 million per year. being established… They misconduct, we work with Also in 2003, Hoel et al. will frequently feel belittled healthcare organisations examined the internal costs of and demoralised by the total to help them consider the one specific but typical local exclusion from work and options available to them government employment the enforced removal from to understand and address relations case. The case their work colleagues, many the concerns, and to help involved the bullying of a of whom will be friends. ensure that their decisions are graphic designer. It is argued This can be psychologically reasonable and proportionate that a disciplinary case is likely very damaging. Even if they to the circumstances. Where to have similar costs. Excluding are subsequently cleared of exclusion, suspension or lost productivity and the costs the charges, the suspicions restriction is thought to of any lump sum settlement, are likely to linger, not be appropropriate we will ill health early retirement, least I suspect because the continue to work with the litigation or external legal suspension appears to add healthcare organisation to advice or subsequent litigation, credence to them. It would routinely monitor the position their calculation of the cost be an interesting piece of and advise on good practice, was £28,109 (or £44,125 in 2019 social research to discover to taking account of local and prices) (Hoel et al. 2003). what extent those conducting national policy requirements. disciplinary hearings For the NHS, the amount subconsciously start from the of time and energy wasted

32 Suspension, exclusions and professional regulation

Professional regulation

Referrals to professional regulators may be a further However the costs to measure taken as a result of employers (and staff) include what employers believe may so much more than the cost be concerns about fitness to to the professional regulator. practice. These have been They will include: increasingly subject to public scrutiny with some regulators • staff cover costs (agency, acknowledging the importance locum, replacement costs) of a focus on learning, not • the likelihood of blame and an increasing ‘presenteeism’ costs – where acknowledgement of the risks sick staff carry on working of discrimination (NMC 2018). rather than taking time off The cost of cases involving to recover a referral to a professional • the cost of other staff regulator may be considerable. affected by the suspended The NMC reported that member of staff leaving ‘through efficiencies to our (increased effort, increased processes in 2016–2017 the workload, increased stress average cost of a hearing fell and decreased morale) from £25,000 to £18,000’ (NMC 2017). • the cost of management and other people’s time preparing for the case • the considerable cost of legal advice • replacement costs if the staff member leaves • productivity costs.

33 NHS Resolution Being fair

Conclusion

The aim of this paper is to help leaders of all health and social care organisations to understand how they can support staff when things don’t go as planned. The paper provides the latest thinking, ideas and prompts which will, in turn, help to drive a just and learning culture within health and social care.

It is also hoped that this paper It is hoped that this paper will At the heart of this are the will lead to an avoidance of start the conversation which rights of patients and their inappropriate disciplinary will lead to a significant change families to an apology, an action against staff, including in mindset and attitudes to explanation and to be involved in particular those from BAME the prevailing practices in large in any subsequent reviews or backgrounds who appear to be parts of the NHS to benefit investigations. They also have disproportionately subject to staff and patients. the right to seek assurances such action. and financial compensation A just and learning culture where appropriate. The paper has highlighted is for all: staff, patients and why this is important and organisations. It is not only demonstrated some of the about safety; it is about how impacts on staff when support we treat each other, every day. is not in place and the need to When things do not go as ensure consistent, equitable planned, patients’ physical and approaches across all staff mental health, and wellbeing groups regardless of the will always be of paramount profession or setting. concern to healthcare staff. It has summarised some of This is embedded in the the evidenced ways this can questions that Professor be done and shares examples Dekker suggests: who was where a few NHS organisations hurt, what do they need and have implemented practices whose obligation is it to meet that emphasise learning rather the need? than blame.

34 Conclusion

Acknowledgements

This guidance was co authored by: − Dr Denise Chaffer, Director of Safety and Learning, NHS Resolution − Roger Kline OBE, Research fellow, Middlesex University Business school − Dr Suzette Woodward, Director, Sign up for Safety campaign

Significant contributions from: − Amanda Oates, Director of Human Resources, Mersey Care − Oyebanji Adewumi, Barts Health Care − NHS Improvement Patient Safety Team − Tracy Coates and Alison McLellan, (previously NHS Resolution Safety and Learning Leads) − Plus participants of a workshop hosted by Weightmans − Peter Walsh, AvMA, (contributions from AvMA to the ‘Just and Learning Culture Charter’)

35 NHS Resolution Being fair

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