There is little doubt that theHealthcare Commission's healthcheckrating is far more searching than its predecessor, the star-ratings

There is little doubt that theHealthcare Commission's healthcheckrating is far more searching than its predecessor, the star-ratings.

However, there are serious doubts about whether it will be effective in achieving urgent improvements in patient safety. In 2000, data supplied by chief medical officer Professor Sir Liam Donaldson suggested shocking levels of death and injury to NHS patients arising from errors. Last year's National Audit Office report on the National Patient Safety Agency concluded that there were over 1 million error-related incidents each year (around 10 per cent of admissions) in which over 2,000 patients died. But there is still no definitive data on the precise number of safety-related deaths.

The NAO report and subsequent Commons public accounts committee inquiry concluded that the NPSA had improved the culture and reporting rate of patient safety incidents, but had made little progress in disseminating learning and reducing harm to patients.

Despite these alarming statistics, the healthcheck ratings show that of173 acute trusts, 168 were 'compliant'in core standard C1a. This requires that: 'Healthcare organisations protect patients through systems that identify and learn from all safety incidents, and make improvements based on local and national experience and information derived from analysis of incidents.'

But this healthcheck statistic may be overly optimistic: only a third of the 200,000 staff who responded to last year's independent NHS staff survey agreed that they had received 'feedback on the learning points from incidents, errors and near misses'.

It might be reasonable for the NHS to attribute negative patient experience to complexity and pressure of work, but are NHS staff any more pressured than, for example, in the airline industry? Airlines operate in a cut-throat market, yet according to industry observers, since 1970 only 108 people have been killed in two accidents on a British Airways flight - this represents a fatal event rate of 0.17 per million flights.

Factors that help achieve such high standards of safety include a much tougher regulatory regime, the high public profile of safety incidents and zero tolerance of safety breaches.

After the 2000 Hatfield rail crash, in which four people died and many more were injured, the subsequent public outcry resulted in serious disruption to the whole railway network while urgent repairs weremade. Five Railtrack company directors were charged with manslaughter (and acquitted) in a case brought by the Health and Safety Executive. The companies involved were fined£10m (subsequently reduced to£7.5m) for breaches of the Health and Safety at Work Act.

So why does the number of mishap-related fatalities in the NHS not attract similar attention? Again taking the NAO figure of 2000, fatalities related to NHS errors related in every acute trust result in a level of death and injuryconsiderably greater than 'a Hatfield'.

Would the safety culture in the NHS improve more rapidly if the HSE took the same view of accidental death or injury to NHS patients as it does to public transport passengers? There is good evidence that a regulatory regime that can impose unlimited fines for breach of safety law and the threat of criminal charges against directors can make a big difference.

In other industries, the change in safety culture has arisen because of the executive and corporate-level consequences of breaches of statutory duties under the act which, in section 3, places a burden on all employers to 'ensure they conduct their undertakings in such a way as to ensure employees and the public are not exposed to risks which would affect their health or safety'.

The NHS has been spared the close attention of the HSE in relation to patient-related accidents and errors largely because the act under which it operates focuses on employee safety.

But the HSE has prosecuted a number of trusts recently for mishaps involving patients. The landmark case was the conviction for manslaughter of two doctors at Southampton University Hospitals trust in 2003 and the subsequent conviction (carrying a£100,000 fine) of the trust in 2005 for its admitted failure to ensure proper supervision (a breach of section 3 of the act).

The potential for the HSE to prosecute NHS staff and trusts forbreaches of the 1974 act is enormous ifaccidental death or major injury topatients ever becomes routinely subject to investigation. At present, pursuit ofcases by the HSE is ad hocand often triggered by police investigations.

Both the NHS and the HSE would be overwhelmed by a legislative requirement to report formallyserious patient-related mishaps. But given its achievements in other industries, it is legitimate to speculate how quickly the culture in the NHS would change if HSE 'reporting of injuries, diseases and dangerous occurrences' (RIDDOR) was extended to major patient-related incidents.

In any event, legislation is in the pipeline to extend the investigative powers of the coroner and to make convictions for corporate manslaughter more possible. The HSE may become much more active, and trust chief executives and boards will need to put risk management and patient safety at the top of their agendas.

A good starting point for acute trusts would be an urgent and non- negotiable requirement to achieve all the standards required for the highest-level accreditation (level 3) for the clinical negligence scheme for trusts (CNST), the risk-assessment scheme run by the NHS Litigation Authority. Chief executives who have not done so should study the standards required and realise what a mountain they have to climb.

A good discipline for the organisation (as well as being a necessary assurance process for the board) would be to commission an external audit of these standards before submitting for CNST assessment.

Large legal firms may well have the expertise necessary to advise on compliance with CNST standards from the perspective of the legal and regulatory environment. In the past, trusts have called on their lawyers after legal problems have arisen - in the future they would do well fully to embed legal expertise.

It may be tempting for trusts to focus on the array of other Healthcare Commission standards and targets that stand between them and a better overall healthcheck outcome. But when push comes to shove, the HSE has even bigger teeth than the commission and its bite can be personally and organisationally devastating.

Frank Burns is former chief executive of Wirral Hospital trust and writes in his capacity as healthcare adviser to Weightmans solicitors. E-mail