Never Say Never

9 September 2013

The “never events” list is published annually by the Department of Health and gives details of 25 types of incident which should never occur within the NHS. Such incidents include performing surgery on the wrong site part of the body, incorrectly administering insulin and other drugs, misidentifying patients and leaving foreign objects in a patient after surgery.

Never events are said by the Department of Health to be “unacceptable and eminently preventable” and doctors are required to record and report them if they occur. It is no surprise that never events are so-called because they are considered so serious that they should never happen. But they do happen, and statistics appear to reveal that the number of never events is on the rise.

Reported figures (obtained by Freedom of Information requests to NHS Trusts in England) show that there have been more than 750 never events over the past four years. A BBC investigation has previously reported that, during this period, in 322 cases a foreign object was left inside a patient during an operation, and in 214 cases surgery was carried out on the wrong part of the patient’s body.

Looking at the figures for individual years, in the year 2012/ 2013 there were 299 never events reported, which is an increase from 163 in the year 2011/ 2012. However the Department of Health says that the figure for 2011/ 2012 is actually different when you take into account reports made to other health authorities, and so the actual increase is smaller. Kelly Hall’s 2012 blog ‘Preventable Injuries to Patients’  looks in more detail at the Department of Health’s ‘Update to its Never Events Policy Framework’, published in October 2012, which gives details of the figures and framework for 2011/ 2012.

Whatever the actual increase since 2012, it is clear that the number of reported incidents has increased, which will undoubtedly be a concern for patients and their families. Where patient safety rules and procedures are not followed the results for the patient are potentially catastrophic and they risk suffering serious harm or even death if they are a victim of one of the 25 never events.

The Department of Health makes it clear that never events are considered preventable. Therefore, in cases where a patient has been injured or harmed as a result of a never event, it follows that their injuries might have been avoided if the appropriate preventative measures and procedures were followed by those treating them. If this is the case, it would seem likely that victims of never events will have a strong case for establishing liability in a claim for compensation for clinical negligence.

The figures should be considered in the context of the number of patients seen by the NHS each year; it is estimated that on average there are over 4.6 million admissions each year to the NHS in England that require surgery. The NHS says that the risk of a never event happening to a patient is one in 20,000.

But however small the risk, the figures are still worrying, and patients should be entitled to presume that ‘never’ really does mean ‘never’. Mike Durkin, the director of patient safety for NHS England has recognised that “every single never event is one too many”.

As a result, NHS England has now revealed that from October 2013 NHS Trusts have been instructed to publish quarterly lists detailing the number and type never events that occur, so that the performance of different Trusts and hospitals can be compared. Mike Durkin explained that this requirement comes as “part of [NHS England’s] wider commitment to transparency” and its goal to “stimulate more learning and preventative action in the NHS”.

It is hoped that these new reporting obligations will spur Trusts and hospitals into taking swift steps to improve practice and educate staff, so that occurrences of these easily preventable incidents will decrease and never events really will never happen. Until then, patients will continue to face the risk (albeit very small) of harm caused by a never event and there will undoubtedly be a proportion of negligence claims brought by patients who have suffered as a result.

If you would like advice regarding a potential claim, please contact the Clinical Negligence and Personal Injury Team on 020 7814 1200 or by emailing

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