Compensation when complex care goes wrong: we need public service not medical negligence

An interesting comment from a lawyer about whether a ‘no fault’ basis for claims against the NHS would be better than the present system where people who are dissatisfied with their care on the NHS and seek compensation have to go to court. She’s writing on a blog about clinical negligence. Her view is that because you have to have expert evidence, it discourages people trying it on, and leads to a fair outcome. Many people also argue that the court system has a formula for compensation which is more realistic than the amount that would normally be arrived at by a bureaucratic system, in which the government would inevitably have a hand.

The main argument for a no fault system is that if you need compensation for something that has gone wrong, you have needs that should be met, and meeting those needs should not depend on whether you can prove someone was at fault. Often things go wrong and nobody is at fault, but your care needs still have to be met. And it means you have to go into battle, in public, and the medical profession has it well-sorted to defend themselves at all costs. Also, it often means that people who can prove a fault and get compensation get more choice and better, more luxurious care than someone with just the same needs you cannot prove a fault. Why should the wronged get better care than the unlucky?

One view of the interests of public policy, which this comment alludes to, is that having an adversarial system encourages the NHS (which after all is a public service) to conceal problems rather than seek to get it right for you and, by improving their services, for later patients too. Also, of course, it sets people against their doctors and service providers, when they will continue to need care later in their lives, but might often be seen as troublemakers. And where it is a public service, like social care services still are, a complaints mechanism and political responsibility should still play a part. The problem with just accepting a complaints mechanism and no fault compensation is that it seems to be impossible to get public services to look at their what they’ve done and acknowledge it when they’ve got it wrong. That’s probably human nature.

Added to the natural human tendency to be defensive if you are in the wrong, the market system of care, with bits of the service increasingly privatised, make it increasingly hard to tell what you should hold a public service responsible for. In the Guardian today, film-makers are complaining about the BBC ‘commissioners’ interfering in their creative processes to pursue the channel ‘demographic’, by which I mean some marketing policy that they’ve drawn up to differentiate their channel from some other piecemeal provision. Are NHS or social care commissioners likely to be any better at valuing creative but expensive care, or ideas that don’t fit the standard mold of policy that is in fashion at the moment? NHS and social care managers are also inclined to interfere with openness with patients to protect the market view of their bit of the health service; I suspect this is the main source of the problems over the Care Quality Commission, also in the papers over the last few weeks. It’s not that the people at the top were inherently evil-doers, it’s that in the environment that our politicians have created in which everything, including our health and social care, is bought and sold, the selling bit of the job means that managers have to abandon honest human relationships in favour of brand management. And they’ve learned as part of the influence of private sector management on the public sector this over the past twenty years, so they’ve lost the public ethos of service and concern for patients.

But the real problem with compensation claims for medical negligence is that it deals with a particular kind of medicine, but not the broad care services of which medicine is a part which we have seen in the news lately. What is the point of suing a doctor for compensation if the problem is with the coordination and integration of a whole care service? Nurses and other professionals, including social workers, are involved and all kinds of provision, which are not the subject of a prescription or an operation. One bad thing about this is that it encourages people to see doctors as the people ‘in charge’ who order everyone else around, and the doctors to feel that they are entitled to do that because they are legally responsible if the care goes wrong. This creates the wrong attitudes among some doctors and encourages a handmaiden approach among other professionals rather than multiprofessional teamwork.

What is the role of medical negligence in end-of-life care, for example. Yes, it is possible that the doctor gets their dose of morphine wrong, or a nurse fails to respond to a frustrating patient on the buzzer for the nth time, but the quality of the service mainly depends on a seamless integration of a wide range of helpers mainly in people’s own homes. This may include social work, whose role is particularly undefined and poorly understood by everyone involved, and so therefore not readily liable to some kind of compensation culture. We do need a sensible way of judging whether someone got a good deal for services like these when they are dissatisfied or need compensation. And since hospices are small providers in an increasingly commercialised world, you do wonder whether the new NHS is going to mean that marketing is going to be to the fore and admitting mistakes and improving service quality will fall by the wayside.

And what about the medical care which fails to acknowledge end-of-life care at all? Most people who have worked in hospices have experienced the well-off patient (and occasionally not so well-off) transferred at the last minute from the private hospital whose cancer doctor has been telling them for weeks that the latest (expensively charged-for) procedure is certainly going to cure them, and who then need to get them off the premises quickly before they actually die. I’ve noted before that the caring ads of the private insurers that you see selling their cancer care wares, while increasingly recognising the psychological elements of care that they need to be concerned with, still fail to mention that actually quite a lot of people still die from cancer.

Whistleblowing about private providers will be discouraged in the new privatising NHS

Regular readers of my blogs will know of my enthusiasm for the publications of the House of Commons Library, which give independent guidance to MPs in all sorts of things, but often it is aimed at situations where they are trying to help their constiutents. There’s a recent very useful example on whistleblowing in the NHS. You can download it from the Parliament website.

Link to Parliament website page.

This makes it very clear that the NHS is supposed to support its staff in raising issues about patient care and organisational problems, and it covers the law according to the Public Interest Disclosure Act 1998, and various statutory guides and legal developments, all with links on the internet. Aren’t MPs lucky to have this service, and isn’t it good we get access to it too?

One useful point it makes is the difference between allegations and disclosures. Staff are protected from being persecuted by their employers if they disclose information, but not if they make allegations. Here is a quotation, in the publication, from a Tolley’s employment law guide discussion of a case that describes the difference (an EAT is an Employment Appeal Tribunal):

…The EAT held that there was a distinction between communicating “information” (which is protected) and making an “allegation” which does not convey facts…which is not protected…The distinction is well illustrated by an example given in Mrs Justice Slade’s judgment in relation to the state of a hospital. To say “health and safety requirements are not being complied with” is an unprotected allegation. To say “the wards of the hospital have not been cleaned for two weeks and sharps were left lying around” is conveying “information” and is protected.

You might ask why responsible employers would not want to have this kind of information given to them so that they can act. One of the answers is the assumption that employees are there to do what the management tells them, not what is good for the people that they serve. This attitude has been encouraged by the ‘new public management’ or managerialism that has been rife over the past twenty years. This says that managing effectively is more important than professional responsibilities or good service, and disclosing information, particularly if it is likely to make the organisation liable for damages for neglect or worse, is anathema to the manager’s right to manage: how can you manage people if they have the right to let out all the secrets of your organisation?

This kind of attitude has infected the NHS from the private sector, where loyalty to your employer is paramount. A very experienced nurse friend was recently forced to work for a private medical practice because the NHS would not give her flexible enough work to enable her to care for her children. Faced with a patient worried about whether the treatment was working for her, she worked through the various ways in which the patient could raise her concerns, only to be told by the doctor that they didn’t want any of that NHS nonsense about patients’ rights here. We can see this kind of attitude in the reaction of some of the private clinics to the pip breast implants disaster.

We all need to be concerned about this, because since a lot of the NHS is going to be contracted out to private suppliers in the near future, the rights to whistle-blow over bad patient care is going to disappear. I can imagine the government would say that the right will still be there, but the reality will be that the pressure from employers not to raise any concerns about care standards will increase. And what will NHS employees do, faced with concerns about the people they are contracting with? Not a lot, if my experience of how they deal with unsavoury or just insipid care homes at the moment is anything to go by. Increasingly, the difficulties of contracted private providers will be ‘commercially confidential’ and there will be pressure not to disclose information which might be against the interests of private providers to the NHS.

Another weakness of this guide is its focus on the NHS, rather than health and social care. Really whistleblowing about healthcare should be possible from social care and vice versa; the separation of the services means that it’s not clear that you are protected if you disclose information about the other.

No comeback for poor care in privatised healthcare?

The Care Quality Commission (the health and social care regulator) has published its annual ‘state of care’ report, which has had some press coverage, mainly about poor standards of staffing and respect in care in quite a lot of nursing homes and hospitals.

Link to the CQC ‘State of Care’ report here, or click the pic.

It is interesting to surmise what the consequences of this kind of information is. One sign is an interesting article by a lawyer who supports patients making ‘clinical negligence’ claims. She says that because older people have more complex needs, they are likely to be let down by poor staffing, and poor record-keeping may mean there is no comeback, because there is not sufficient evidence of negligence in the records.

I’m more cynical than she is. Could private sector providers (where recording is worse anyway) purposely degrade recording so that there is no comeback? Will this be another consequence of poor private sector care provision in the newly privatised NHS?

Link to the law commentary.

Here’s an excerpt from what she says:

It is a frankly astonishing that almost a quarter of the homes inspected did not have adequate staffing levels. These are the nursing homes which provide for complex health needs. 16% of hospital services failed to meet the staffing requirement levels that the CQC considered appropriate. This is a significant number of hospitals failing to provide sufficient staff to deal with care needs of patients.

The other issue which was equally important, particularly for lawyers, is that as a result of the increased pressure on limited employees, the level of appropriate record-keeping was deteriorating. In addition, so was the management of medicines.

As lawyers we depend a great deal on the medical records that were contemporaneously completed. In the private sector medical records can often be poor. In the NHS sector they tend to be more thorough. It is a worrying aspect of the report that across the board record-keeping was beginning to deteriorate. Not all institutions were poor, but a significant minority were not providing the level of record-keeping that should be expected.

And further on:

For clinical negligence lawyers it is likely that we will see an increase in potential claims to consider. What is worrying, however, in addition is that, as lawyers, we may not be able to ascertain fully what is happening because the medical records have not been completed properly.

Whilst by far the majority of inspections clearly demonstrated adequate care, there is a significant minority where the care does not meet the standard and where it is much more likely that serious accidents will occur. At the same time as the legal system is changing so that it will become more difficult for claimants to seek compensation for clinical negligence, we are dealing with a health care system which is failing a number of its own clients. The overall result may be fewer claims to the NHS and other bodies, but that does not mean that the negligence is not happening. It does not solve the problem of what happens after somebody has had an accident and requires further care as a result.

Private healthcare company fined for death of BBC health correspondent’s father

Private healthcare company fined for death of BBC health correspondent’s father – Lexology.

A national private healthcare company (this legal note politely avoids naming it) had a man in its deluxe hospital accommodation for an op., lovelier than many NHS places I should think, because it had patio doors to a balcony, which he fell off. They hadn’t locked the door, they hadn’t done a health and safety risk assessment. Obviously rich people don’t need really looking after; the people running private healthcare probably think that all this health and safety nonsense is just for the public sector. The fine was £100,00 by the way, plus costs of £29K+.

Legal case on duty of care to multiprofessional colleagues (and carers)

It’s not often you get an authoritative legal judgement about health and social care professionals working together. But here we are: an interesting Court of Appeal judgment that relates to multiprofessional working has been issued.

Link to the judgement.

A social worker employed by the local authority was attacked and injured by a mentally ill patient on leave from a mental hospital. Before he left the hospital, he told staff of the healthcare trust that he was going to kill her, and they knew he was hearing voices and had other symptoms of mental illness that made him dangerous to her. They did not inform her of the risk. She sought damages from her own employer (which refused to pay out on the grounds that because it didn’t know about the risk in law it was not responsible, and anyway it was her fault she didn’t find out about the risk – I think that was a callous decision for a local authority to make about one of its employees doing a difficult and dangerous job). She also sought damages from the two health trusts on the grounds of their responsibility for the failure of their staff to warn her.

There was a detailed official protocol on Working Together signed by the three authorities, and working relationships between the staff were very close. There is, apparently, a recognition in the courts that multiprofessional working is to be encouraged in difficult cases like this. However, the health trusts applied to have the case struck out, that is, they wanted a decision that it should not go to trial.

They did this on the grounds of a long line of cases that say that public authorities are not required to warn people or do something else about risk to them, unless there is a very clear and immediate risk, or unless they had formally accepted the responsibility for a warning. So, for example, it has been decided that the police have no responsibility to issue a general warning to people who might be affected because a criminal is dangerous. And housing welfare officers do not have to tell other people that a tenant might be dangerous. This is reasonable, because it would lead to defensive behaviour on the part of the authorities and the allocation of a lot of resources to give people routine messages ‘just in case’. The health trusts argued that they had a responsibility to the patient, not to anyone else.

I have said before, often, that the healthcare professions carry this noxious argument about their responsibility to their patients too far. Yes, of course it’s right that they focus on their patients, but they are part of humanity (healthcare managers? you ask – but I think the evidence suggests they are human). They ought not to go out of their way to ‘encourage’ as the judge put it, the man to go home when he clearly had serious symptoms and was uttering worrying threats about a public official. A normal human being type person would forget about the medical niceties and warn the non-employee whose life was being threatened.

However, the social worker wanted to argue that the protocol and the close working arrangements put her in a special position. She was not a member of the public wanting a general warning, she was one of a small number of professionals, known well to the people who knew about the risk, a ‘quasi-employee’ of the health trusts. It is accepted that the duty of confidentiality may and should be breached to protect employees. She (through her lawyer) argued that this showed that it was not an immutable duty, and put forward a stream of cases that showed that the facts of the case should be considered, rather than her points being rejected out of hand by ‘striking out’.

And she won, so presumably it will go to a hearing.

Now, let’s be careful about this. The judges are not saying that everyone in health and social care owes a vague and woolly duty of care to each other, but they are saying you should make a sensible decision based on the facts. And if someone thinks you didn’t, they should be able to argue the case in court, not have it automatically assumed that everyone but the gilded few employed by health care trusts are the only ones to be given protection. I think that health trusts and professionals need to square up to their shared responsibility when they have joint working arrangements. Joint working arrangements are designed to benefit all the members of the public and services involved not just their patients and their own organisation.

But there’s a point to be made about this in a more general way. We are moving towards a healthcare system in which healthcare workers will be cooperating with all sorts of providers of care. Look at that word again ‘cooperating’. ‘Co’ means together and ‘operating’ means doing it: the word (with or without its hyphen) means ‘doing it together’. Doing it together doesn’t mean the private sector organisation that’s trying to make a profit can do what it likes because it’s not a public body and its profits are inviolate, but equally it means that the NHS employee is not in a separate legal category of people who doesn’t have to take account of anyone else.

That doesn’t just mean social workers. It means keeping carers and patients involved as well. There were a number of cases in the 1990s where family members were attacked or killed by patients because healthcare professionals maintained their duty of confidentiality to their patients, and didn’t think they should take account of the patient’s family.