The End of “Never Events” as we know them?

In healthcare a “never event” is a serious medical error which should basically never occur.

Examples of never events include surgery on the wrong site, administration of medication via the wrong route and chest or neck entrapment in bed rails.  Because it is accepted by definition that these events should really never happen, defending breach of duty following a never event is usually impossible. Whilst it can still be possible to defend such claims on the basis of causation i.e. that the admitted harm has not led to an adverse outcome, it can be very difficult for Claimants to accept that a healthcare provider denies liability when they have already been told as a result of an internal investigation that there were significant failings in their care. 

Never events actually represent only a tiny proportion of the patient safety events recorded annually, and there is often a misconception that they are considered to be the very worst kind of patient safety events despite evidence that many never events do not actually result in long-term harm.  

NHS England launched a consultation in February 2024 to collect views on the effectiveness of the existing Never Events framework and the outcome was shared recently NHS England » Never Events framework: 2024 consultation findings.  

The outcome of that consultation is now available and shows a strong appetite for change.  66% of survey respondents felt the existing Never Event framework was unfit for purpose, with only 8% saying the current framework was effective and did not require change.  In particular respondents highlighted that the terminology involved has a negative effect on staff morale, and contributes to a culture of blame. The majority of respondents also felt that the current framework was having only a limited impact on driving safety improvements.  

Of four potential options for change, the most popular (preferred by 48% of respondents) option was the proposal to revise the existing definition and process for never events to create a new system that does not require all relevant incidents to be “wholly preventable”.  Respondents opting for this outcome commented that under the existing framework never events trigger a disproportionate response in terms of allocation of resources, and that this would be better targeted at improvement.  Whilst respondents expressing a preference for this option included stakeholders concerned about the impact of staff of the existing terminology and framework, it is interesting that this option was also the most popular option amongst respondents describing themselves as patients or members of patient associations.  This seems to suggest that the public does not find a blame culture helpful either. 

Two major bodies HSIB and the CQC also responded to the consultation.  HSIB’s preference is to abolish the never events framework.   The CQC also favoured a new system that aligns with the new Patient Safety Incident Response Framework (PSIRF) which focuses on the patient safety events that really matter to patients and families and where national learning can be prioritised.

In response, NHS England is launching a discovery phase for the next six months to explore and test alternatives to the existing never event framework with input from patients, NHS staff and the Royal Colleges. This phase will also review practices adopted in other countries to identifying and recording sentinel events. The intention will be to identify and implement a new approach in accordance with PSIRF. In the meantime the existing Never Events framework remains in place.  

Watch this space – never events may be changing and more may be legally defensible. 

Clyde & Co's healthcare group is recognised for its extensive industry knowledge, offering a range of legal services covering public and private sectors as well as inquests, advocacy, professional regulation, product liability and pharmaceuticals/life sciences. Should we be able to assist you, please do contact one of our experts.