The rather depressing realisation that an open and transparent culture in the NHS is still a long way o�

Grass root support for whistleblowing

Jeanette Whyman, Medical Negligence Solicitor, Wright Hassall

The rather depressing realisation that an open and transparent culture in the NHS is still a long way o� came after Patients First (the network of medical professionals com-mitted to raising concerns about poor stand-ards of care) submitted a damning report to Robert Francis as part of his review into the NHS reporting culture.

The report contained details of 70 cases, some of which highlighted incidents of sta� being bullied when raising concerns, and others where complaints of poor care had been mismanaged. What is particularly disheartening is that, in spite of the plethora of initiatives to put patients �rst (including Sign up for Safety, the publishing of comparative data on speci�c safety markers on the NHS Choices microsite and the introduction of a statutory Duty of Candour, shortly to be rati�ed by Parliament), certain Trusts appear to be blithely ignoring them.

Introduction of a statutory Duty of CandourThe establishment of a Duty of Candour was one of the principal recommendations of the Francis Report looking at the lessons to be learned from the scandal at Sta�ord Hospital. The fact that hospital sta� appeared either unwilling or unable to report inappropriate, unsafe and negligent practices was a core concern to those conduct-ing the inquiry.

Encouraging an open and safe environment in which sta�, patients and their families feel able to report concerns is fundamental to the proper delivery of medical services. The fact that some Trusts are either ignoring the principle or are even actively working against it raises very serious concerns for the government and their ability to in�uence patient safety outcomes in individual hospitals.

Whistleblowing not encouragedOf the cases (some of which came from Scottish Trusts) submitted by Patients First, 79% concerned individuals who, having raised concerns, were subjected to bullying and a further 20% of respondents had exhausted their funds so could not a�ord legal advice. This comes in spite of the fact that most Trusts publish their care standards and objectives, there is a national whistleblower hotline and the Nursing and Midwifery Council has published guidelines on its website to help members who need to speak out against unsafe practices.

NHS culture must changeRobert Francis, in his report into the Mid-Sta�s scandal, wrote: ‘What is required now is a real change in culture, a refocusing and recommitment of all who work in the NHS – from top to bottom of the system – on putting the patient �rst.’ All the colleges and trusts signed up to this – but clearly some are merely paying lip service. I know, from some of the medical negligence cases on which I am currently advising, that some clinical sta� are acting negligently and in the full knowledge of their colleagues and yet, none have spoken up. If we are to avoid a repetition of Mid-Sta�s (and some of the still scandalous but smaller scale problems that were uncovered in its wake) then hospital managements up and down the country need to get a grip and ensure that all their sta� are given the freedom to raise concerns and feel supported when doing so..

There are guidelines around whistleblowing to ensure that it is not used maliciously or inappropriately and the Duty of Candour will help to frame this. A hospital (rather like a school) is only as good as its senior management, a point proved by Basildon Hospital which came out of special measures after the (newly appointed) chief executive instigated wholesale changes in the way the hospital was run by putting ‘compassion, care, openness, transparency and learning’ at the centre of their opera-tions. It is crucial that hospital trusts do not discriminate against those willing to speak up when they see some-thing that is clearly wrong – if they do, or if they turn a blind eye, they will be guilty of condoning medical negligence.

The publication of ‘NHS Five Year Forward View’ has clearly stated the choices to be made if the health service is to continue to be publicly funded.

Keeping the NHS in public hands

Jeanette Whyman, Medical Negligence Solicitor, Wright Hassall

The publication of ‘NHS Five Year Forward View’ has clearly stated the choices to be made if the health service is to continue to be publicly funded. There is a yawning gap, to the tune of £30bn, between anticipated expenditure in 2020 and the funds available.

All the political parties are determined to polish their NHS supporting credentials prior to next year’s election and all have promised varying degrees of �nancial support – although all fall short of the actual �gure required. To address the projected £30bn shortfall, a consortium of six bodies, including NHS England led by chief executive, Simon Stevens, has proposed a number of changes calculated to save around £22bn – leaving just £8bn to be found (on top of any in�ationary increases).

Streamlining hospital and community careThere appear to be two core objectives behind the proposals. First, that the impact of an ageing population on the health service must be reduced; and second, that people must be encouraged to pursue healthier lifestyles so they don't fall ill in the �rst place. The fact that the recipe for survival comes from the NHS itself, rather than the government, is seen by many commentators as a step in the right direction.

The suggestion that lines between community and hospital care should be blurred – with GP practices housing hospital specialisms and hospitals housing GP services (put simply) – is designed to stop people being admitted to hospital unless really necessary. If the current rate of hospital admissions continues, something in the region of 22 extra hospitals will have to be built by 2020!

A patient-centric approachThese proposals dovetail with the emphasis on patient safety and putting the patient �rst. A more patient-centric approach with closer coordination between the health and social care systems is designed to have the e�ect of reducing hospital admissions. This in turn should reduce the number of negligence claims arising from inadequate care. The question of who funds the care once a patient moves from the health into the social system still needs answering – although Labour have indicated that they will pool the two budgets as recommended by the Barker Commission.

‘Physician heal thyself’Nonetheless, a fundamental change in attitude among the general population will be needed if these proposals are to work. The idea of holding people responsible for illness resulting from ‘lifestyle’ choices and the withhold-ing of certain types of treatment in favour of those whose conditions are not seen as ‘self-in�icted’ is potential political dynamite. This poses both a major ethical and a legal conundrum. By the same token the recent announcement by the government that GPs will be paid £55 for each patient diagnosed with dementia opens up another ethical, and potentially legal, dilemma. Should doctors be paid to diagnose a condition (isn’t that what they are supposed to do anyway)? What happens if the diagnosis is wrong? What is the point of diagnosis if there are limited resources to address the problem? That last point may be answered if the streamlining of hospital / community care happens and strategies are put in place to manage dementia cases e�ectively – and kindly.

Reducing the medical negligence billThose of us who have been dealing with the NHS for many years have seen initiatives come and go. But this particular one, driven by Simon Stevens, should ignite a public debate about what the NHS can, and cannot, realistically do. My main concern is that whatever reorganisation or reallocation of funds occurs, the principal actor in the show, namely the patient, is put �rmly centre stage and resources are devoted to safe clinical practice and thoughtful patient care. Just halving the bill for medical negligence claims would start to make inroads into the £8bn shortfall.

Can incidents of medical negligence be reduced if NHS trusts shared more data and information on medical errors?

NHS negligence data

Jeanette Whyman, Medical Negligence Solicitor, Wright Hassall

It would be a truth universally acknowledged among sensible people that the sharing of information on best practice, and the identi�-cation of meaningful trends gleaned from data, can only be a bonus for all organisations regardless of operation - and none more so than the NHS.

Therefore, it might seem obvious that sharing the background to a medical negligence claim could only be bene�cial – enabling others to avoid it happening in their hospital. But, in my experience, it is rarely that simple. Medical mistakes occur for a number of reasons. Time and time again, I encounter situations where policies and procedures governing best practice are in place but certain individuals choose to circumvent them for a variety of reasons, and the hospital management is too weak to prevent them from doing so. The Sta�ord Hospital scandal is the most egregious example of accepted standards of clinical care being ignored by both medical and nursing practitioners and management, allowing institutional neglect to �ourish.

Patient safety: data can pinpoint areas of concernThe Francis inquiry into what went wrong at Sta�ord resulted in over 290 recommendations being made to stop such widespread abuse of patients happening again.

Since the report’s publication, a number of reforming initiatives have been announced, all designed to focus on the importance of hospitals establishing a patient-centric approach by inculcating a positive safety culture in which the needs of the patient are paramount. The government’s voluntary ‘Sign up for Safety’ initiative, endorsed by the NHS Litigation Authority (NHSLA), was launched speci�cally to help Trusts reduce the number of medical errors by a third. The NHSLA, in turn, has moved from assessing its members’ risk management standards (on the basis that the existence of a risk management system, of itself, doesn’t mean the Trust is safe) to an outcomes-based approach in order to help members identify and address areas of concern. This data will be published on an extranet, accessible to member Trusts, with the intention of helping them ‘prioritise local activity in areas where they have a high number of claims’. In addition, it has launched a new Safety and Learning Service which is speci�cally intended to help Trusts learn from their mistakes.

Enforceable Duty of CandourOne of the main recommendations of the Francis report, a statutory duty of candour (obliging honest and open dialogue with patients and their families) is coming into e�ect in October 2014, subject to parliamentary approval. There is a view in some quarters of the medical profession that a legal obligation of candour is unnecessary: doctors have always been subject to an ethical duty of candour which should not need legal enforcement. I disagree; I have been instructed on too many claims which have arisen because of an unwillingness to confront the error, no acceptance of responsibility and no apology. A statutory duty of candour will legally require organisa-tions to be open, honest and transparent in all their dealings with patients. I seem to recall Michael Powers QC noting that if complaints were dealt with promptly and appropriately it would reduce the number of medical negligence claims by 70%.

Sharing information can reduce medical errorsApart from rare instances of criminal behaviour, the majority of medical practitioners do not deliberately set out to hurt their patients. The publishing of data and information relating to outcome-based information can help Trusts to address problems before they become crises. Initiatives, such as Sign up to Safety, should help to prevent avoidable harm to patients by, as the NHSLA states, ‘shining a light on high risk, high volume and high value claims’. However, the danger posed by rogue practitioners will always be present and thus it is impera-tive that all sta�, when encountering such instances are able to speak up without fear, supported both by their management team and by their legal duty of candour.

The Saatchi Bill – what it proposes

Medical innovation under the microscope

Jeanette Whyman, Medical Negligence Solicitor, Wright Hassall

Following the death of his wife in 2011 from ovarian cancer, Lord Saatchi introduced a Bill which would allow doctors to o�er patients su�ering from diseases or conditions that were not responding to conventional medi-cine, innovative treatments that had not necessarily been subjected to rigorous test-ing.

The underlying motivation for the Bill is the belief that many doctors are deterred from trying new procedures for fear of being sued for medical negligence. The arguments for and against the Medical Innovation Bill, more commonly referred to as the Saatchi Bill, are heated: proponents argue that doctors’ hands are tied by guide-lines which are too prescriptive – even when tried and tested treatments are no longer working; while opponents believe that the current law does not stop doctors trying new procedures but does, more importantly, protect patients against irresponsible experimentation.

The Saatchi Bill – what it proposesOn the face of it, it is perfectly understandable why Lord Saatchi has proposed this Bill. He lost his wife in painful circumstances and is strongly of the opinion that the medical profession is shackled by the fear of litigation and medical negligence claims making doctors unwilling to try remedies that might help in individual cases. The Bill has proposed safeguards to ensure that the "doctor who acts alone and in a reckless way" is exposed as a maverick (that word plus the use of ‘quackery’ is used a great deal by both sides and re�ects the emotional undertone of the debate). One such safeguard is that any doctor proposing an innovative treatment must seek the agreement of a multi-disciplinary team with expertise in the relevant area and his / her Responsible O�cer in order to proceed.

By doing this, supporters of the Bill argue, doctors are applying the principle of the Bolam test (whereby they must, if accused of medical negligence, establish that they acted as any other responsible medical professional would have done under similar circumstances) in advance of the treatment rather than retrospectively. Lord Woolf, himself a supporter of the Bill, believes that it is not a ‘charter for risky experimentation’ but a genuine desire to improve the treatment for those for whom all else has failed.

Do we need the Saatchi Bill?According to a long list of eminent organisations and individuals, the answer is no, or at least not in its current format. The Medical Defence Union (MDU), the NHS Litigation Authority, the Royal College of Physicians, Sir Robert Francis QC and Cancer Research UK, among many others, all refuted suggestions that fear of litigation was holding the medical profession back from innovating. Indeed, many of the comments received from the public consultation suggested that this Bill would actually protect maverick doctors who, having harmed a patient by trying an untested treatment, could avoid a claim for medical negligence by retreating behind this Bill which had essentially allowed the experimentation. Opponents of the Bill argue that the current law is able to di�erenti-ate between responsible medical practice and incompe-tence - which is not the same thing as sti�ing innovation - thus making further legislation unnecessary. They also make the point that many patients who are likely to consent to a new treatment are often desperate and thus vulnerable to persuasion by doctors willing ignore responsible medical opinion. Claims by supporters that it will help to further research into rarer cancers and diseases which, they maintain, are currently overlooked by larger research projects are also challenged by oppo-nents. Cancer Research UK notes that research into e�ective treatments has to be scienti�cally robust if it is to bene�t the majority. Experimentation on individuals will be of limited bene�t although a project team at Oxford University has o�ered to store data from individual cases enabling them to map trends.

In shortThe government, while supporting this Bill in principle, has acknowledged its shortcomings and has committed to incorporating amendments to overcome objections raised by opponents. However, judging by a recent announcement by Dan Poulter when he outlined the likely changes, the proposed legislation will o�er nothing more than the current law. I think what this debate has helpfully highlighted is that doctors who do their job responsibly do not fear medical negligence claims and are not dissuaded from pursuing innovative treatments if they genuinely feel they will make a di�erence to the patient. This Bill, if it becomes law, could end up protect-ing doctors who actively harm patients by going out on a limb to carry out untried and untested remedies – which is the opposite e�ect of what it is trying to achieve. The Bill has now reached the Committee stage where it will be examined in detail against the backdrop of responses received from the public consultation which closed in April.