Related Sector: Health & Social Care

Our subject matter expert and solicitor, Max Duddles explores how important it is for health and social care workers to make contemporaneous written records of their actions and, the repercussions for themselves and their employers if this is not carried out, at all or to the standard required by law.

How Do You Know You’re Good At What You Do?

It’s all going extremely well. You’re confident in your job, your colleagues are telling you that you’ve got what it takes, your service users are, for the most part, happy with what you are doing for them and, in short, things could not be better.

Then, the unthinkable happens. Someone complains about something you did. Worse, that complaint is not only to the management of your organisation, but also to your professional body. Senior personnel get involved, court proceedings are spoken about in grim tones, Legal are called in and everyone who matters in this new and scary place you find yourself in wants to see the records you’ve made about whatever went wrong. No-one is interested in the nice thankyou card you got last week from another service user, or in the plaudits heaped upon you by the people you work with, or even in what you say happened, all they want to know about is what you wrote down about it at the time; and the nice lady from Legal is telling you that the hurried note you put on the system on the day in question, in the 15 minutes before you went off shift, isn’t enough.

The crux of the matter is that the difference between knowing you’ve done it right and proving you’ve done it right, or even between knowing you’re good, and proving you’re good, comes down to evidencing what you have done. Very often, that evidence is found in contemporaneously written records, and senior personnel as well as other decision makers will judge how good you are from what you wrote down at the time. To them, this is what “good” looks like.

Want evidence for this? Well, in the case of Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283, three Court of Appeal Judges upheld the decision of a High Court Judge to treat records made in an apparently contemporaneous clinical note as incorrect. There were many reasons for this: the note furnished to the court was extremely short; it was not written by the treating registrar; there was considerable confusion over where and when it was written; Mr Synclair and his wife both gave oral evidence which disagreed with the note and there was other evidence which also supported their case. The result of this decision was that Mr Synclair was awarded damages of £227,529.15.

This isn’t just limited to medical records though. There are numerous cases where social care records have been criticised by judges. One such case is L.B. Wandsworth v M & Ors [2017] EWHC 2435 (Fam), where a High Court Judge sitting on an appeal from the Court of Protection, found from both the notes made during a capacity assessment and the oral evidence of the social worker carrying out the assessment that the assessment itself “displayed insufficient forensic rigour to justify its conclusion”.

Trust me, you never want a judge to tell you that you have “displayed insufficient forensic rigour” when reaching any of your decisions!

Dance Like Nobody’s Watching, Write Your Notes Like Everyone Is

Ultimately, it all comes down to “accountability”.

Now, we at Bond Solon HQ have had some very involved debates about what this actually means, as accountability can look very different for health and social care professionals, or even between departments. Is it about governance, responsibility, responsiveness, efficiency, integrity, transparency, something else, or all the above? Each professional body has its own way of measuring accountability, and these measurements can be found in the various professional codes of practice, as well as the CQC Regulations. Sadly, and unfortunately, accountability is now spoken about so often that it has almost become background noise to the everyday business of a busy ward or social care department, when it is in fact much more important than that.

What all this boils down to is that we are all personally responsible for our actions and omissions and, professionally, if we don’t write what we did down, there is no proof that we did it and we will be deemed to have omitted to do it.

As the title says, “if it isn’t written down, it didn’t happen” and you should always assume that a judge will read your records one day.

Clear, Intelligible, Accurate

I’d like you to carry out a mini audit of your record keeping methods. Do you personalise what you are writing down to each of your service users? Do you regularly use “weak words” which don’t describe anything? Words such as “appears”, “seems” or “aggressive”. Do you include too little information, or too much?

In short, I’d like you to think about what “good” record keeping looks like to you and adapt your practice to ensure that you keep good records about all your service users, all the time. Having done that, please encourage your colleagues to carry out similar audits on their own work. Try to encourage a team-wide discussion about what “good” looks like for you. After that, you might, collectively, be able to develop an easily understood system, with agreed internal and interdepartmental protocols and procedures, which ensure that, through effective communication, your service users receive the best available care and support and are properly safeguarded where needed.

Just the Facts, Ma’am

You cannot do anything to stop complaints being made and court action being taken, but you can do a great deal to ensure that any decisions you have made are fully defendable. You can do this by personalising your records, recording the facts, distinguishing these from inferences or opinions and “showing your workings out” to justify any decisions you do make. This does not need to take a great deal of your time, but it will probably require a change in your thought processes and practices, at least at the outset. But surely this is time well spent if it will help mitigate risk to yourself and your organisation in the long term?

If you would like to discuss how Bond Solon can assist you and your organisation with record keeping training, please visit our course page or get in touch with one of the team on +44 (0)20 7549 2549.

Author: Max Duddles

Date first published: 26 April 2022

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