As the Government made clear in Equity and Excellence: Liberating the NHS, the NHS needs a comprehensive, transparent and sustainable structure of payment for performance that ensures payment reflects quality. Payments and the ‘currencies’ they are based on will be structured in the way that is most relevant to the service being provided, and will be conditional on achieving quality goals. If providers deliver care that is of poor quality, then commissioners will be able to impose contractual penalties.
In this context, the “never event” framework is clear that where a “never event” occurs during a commissioned episode of care, the commissioner should recover the cost of that episode of care and, in addition, there should be no charge to the commissioner for any corrective procedure/operation that is required. Where there is in-hospital death, the commissioner can recover the cost of the episode of care if appropriate, or the cost of the care to date within the financial year for the ongoing patient episode.
Cost recovery is intended as a lever to encourage providers to ensure that “never events” do not happen. Recovery of money is not in any way intended for use as ‘compensation’ for a “never event” occurring. Recovery of costs does not in any way affect the provider’s liability with respect to criminal or clinical negligence proceedings.
Commissioners will be able to waive the cost recovery process according to individual circumstances and local agreement. This should be the result of an open dialogue between the commissioner and the provider, where the circumstances of the particular event are taken into account, including the actions that the provider has taken in response to the event.
Importantly, cost recovery does not replace any separate regulatory requirements such as the process of registration with the Care Quality Commission (CQC) and compliance with minimum standards. The payment system should align with and support best practice but is not, nor should become, a regulatory mechanism. The CQC should use information on “never events” to inform its regulatory processes and, following a “never event”, should take any enforcement action it deems appropriate. This action could include imposing additional financial penalties such as fines, where a review of compliance following a “never event” provides evidence of non-compliance with Essential Standards of Quality and Safety. Any such review should of course take into account the local response to the ‘never event’, such as cost recovery, and any evidence of learning.
Most importantly though, and consistent with the current arrangements, there must be a robust and rapid process of reporting, learning and improvement following a “never event”. Each “never event” should be reported to the relevant Primary Care Trust/commissioner and to the National Reporting and Learning System at the National Patient Safety Agency (NPSA). Each “never event” should be the subject of an investigation of its root causes, learning should implemented and the systems for future prevention strengthened. Commissioners should give high priority to the learning gained from investigation and the actions put in place by providers after a “never event”. The reporting and review of events between commissioners and providers should include evidence of discussion with the affected patient and/ or carers consistent with the NPSA’s Being Open framework .
In future years, these principles will still apply, but in the context of a restructured NHS. This means that providers will be required to report the incidence of ‘’never events’’ to the commissioner of the care in which the event took place (either the National Commissioning Board or the relevant GP Commissioning Consortium). The incident must also be reported to the National Reporting and Learning System, which will sit with the National Commissioning Board.
Do you agree with cost recovery for all providers, given that some incidents relate to short term, low cost interventions and others relate to long-term care where cost recovery could be many thousands of pounds? This could disproportionately affect small providers.
Do you have alternative suggestions for the contractual framework?