Legal safeguards for audit process are a bad idea

BMJ 1999; 319 doi: https://doi.org/10.1136/bmj.319.7223.1499a (Published 04 December 1999) Cite this as: BMJ 1999;319:1499
  1. Kieran Walshe, senior research fellow (K.M.J.Walshe{at}bham.ac.uk)
  1. Health Services Management Centre, University of Birmingham, Birmingham B15 2RT

    EDITOR—Beresford and Evans argue unconvincingly that the process of quality improvement in healthcare organisations in the United Kingdom should be protected from public view by confidentiality arrangements.1 These arrangements would prevent individual clinicians being identified and would give legal protection to quality improvement activities and their results so that they could not be used in legal actions against healthcare professionals or healthcare organisations.

    No other professional groups or organisations in the United Kingdom of which I am aware have such legal protection for their quality improvement activities. Such provisions do exist in most states of the United States and in Australia, but these countries are unusual. The two main arguments for having such protection do not stand up to examination, at least in the context of the United Kingdom.

    Firstly, it has been argued that the absence of such protection will prevent health professionals being open and honest about quality problems, but there is no evidence that this is so. Indeed, it can equally be argued that imposing a blanket of confidentiality on quality improvement activities and their results can hinder the speedy identification of quality problems and the involvement of stakeholders in finding and implementing solutions to those problems

    Secondly, it is suggested that the existence of records of quality improvement or clinical audit activities might compromise a healthcare professional's or organisation's defence against a patient's action for negligence, but this argument is predicated on an outdated “defence at any costs” view of such litigation. The Woolf reforms of the management of clinical negligence litigation in the British courts are aimed at producing less adversarial posturing and more consensus about the facts and issues in each case.2 When a defendant (individual or organisation) has made errors it is in everyone's interest to acknowledge them rather than to cover them up or deny them. The existence of records of quality improvement activities could help to identify such errors or might equally help to show good practice. It is a mistake to see such records as being potentially damaging to the defence's case; they could just as well be supportive.

    I am sure that some doctors would like to be in the same position as barristers, who cannot be sued for negligence, whatever they do; it is difficult, however, to find many people who think this a good idea. Inevitably, Beresford and Evans's proposal, however well intentioned, smacks more of professional self protection than of a desire to ensure effective clinical governance in the NHS.


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