Junior doctors, even the government concedes, are the backbone of the NHS. They comprise a significant proportion of the workforce of the NHS and already provide medical cover for patients 7 days a week, 24 hours a day. They are a diverse group. At one end of the scale are the newly qualified doctors in their mid 20s straight out of 5 years at medical school. At the other end are the registrars, soon to be consultants, who are approaching middle age with 15 years of specialist training, research experience and numerous postgraduate qualifications. By and large they are not a particularly militant bunch. The last time junior doctors were involved in industrial action was in 1975. At that time hospital doctors were paid a basic salary for a 40 hour week but frequently worked an additional 60 hours a week unpaid. Even under the new contract introduced in 1976 the “overtime “rate for working nights and weekends was a fraction of the basic rate of pay. Junior doctors were said to be the cheapest form of labour in the hospital. And the long hours remained the same – as a junior doctor in the late 80s and early 90s I recall vividly recall the 80 –100 hour weeks, with weekend shifts lasting from Friday morning to Monday evening. It has been an uphill battle to achieve changes in pay for unsocial hours and to modify the culture of long working hours. The changes to be enforced by the government include a reduction in the number of hours paid at a premium unsocial hours rate and loss of the banding system that provides an effective penalty for employers against fatiguing and unsafe working patterns. It is no surprise to me that there is so much opposition to the changes that are now being imposed in such a high handed and uncompromising manner. If the government wants a truly 7-day NHS, it should hire more doctors, not squeeze more out of the existing ones. Given that NHS doctor vacancy rates have increased by 60% in the last 2 years the government should be seeking to encourage talented and motivated young people to enter and remain in the medical profession, rather than alienating an entire generation of junior doctors.

You might think that 18th Century British politics is not an obvious starting point for an analysis of the current Tory Government’s Trade Union Bill.

Here’s why I think it is.

David Cameron and George Osborne have taken inspiration from the Whig Supremacy the period 1715 – 1760 when the Whigs took total control of Government and during which time they successfully purged their political opponents from all major positions in Government, the armed forces, the Church and the legal system. Whig leaders such as Robert Walpole, and his protégé, Henry Pelham, set about entrenching themselves in power and a key tool was the Septennial Act, when they extended the Parliamentary term from three years to seven.

Not since Walpole have we seen a Government so determined to entrench themselves in power. Today, three hundred years later, we have a Prime Minister intent upon doing just that EVEL, the boundary review, and the Trade Union Bill are clear examples. They each seek, albeit shrouded with different intent, to undermine the ability of the Labour Party to win future elections.

The Trade Union Bill is a clear attack on the ability of Trade Unions to organise and represent their members. It seeks to undermine the right to strike  a key tenet of our legal system. But it also, seeks to make it much harder for Trade Unions to fund the Labour Party, or indeed any Party of their choosing.

This is an attack on democracy. It is a clear attempt by the Government to undermine the electoral prospects of Her Majesty’s Opposition in the House of Lords debate on 11th January, the Tory Lord Balfe hit the nail on the head when he said: “We should think carefully about our responsibilities to democracy, which actually go further than our responsibilities to one or other side of the House”

The Parliamentary and Health Service Ombudsman (“PHSO”) is a body set up by Parliament to investigate complaints that have not been resolved by the NHS in England and UK government departments and other UK public organisations.  It estimates that complaints about potentially avoidable deaths make up around 20% of the NHS complaints that it investigates.

Earlier this month it conducted a review into the quality of NHS investigations into complaints about avoidable harm and death.  The results were alarming.  The report concluded that there were serious failings by the NHS in conducting such investigations, leaving distressed patients and families without the answers and reassurance that they deserved.  The PHSO concluded that amongst the factors contributing to such failings, there was inadequacy of the investigation procedures adopted, and often those investigating had received varying degrees of training, if any training at all.  Some investigators were not deemed by the PHSO far enough removed from the original incident to give any objective opinion.  There was also an inconsistency in the findings of the investigations.

Perhaps more worryingly, the PHSO found that where failings were identified, in some instances no action was taken by the relevant Trust to ensure that the same mistakes were not repeated.

This report has highlighted what many Claimant clinical negligence lawyers have known for a long time – that the NHS is seriously lacking a comprehensive, systematic approach to investigations.  Clinical negligence lawyers are providing checks and balances on hospital Trusts where perhaps none have existed before.

It is important that we at Pattinson & Brewer continue to investigate claims and challenge Trusts in order to find answers, ensure that those responsible for avoidable deaths are held to account and that adequate training and/or procedures are put in place to ensure that the same mistakes do not happen again.

In personal injury cases, a defendant is normally considered to have been negligent if they failed to do something that a reasonable person would have done, or did something that a reasonably prudent person would not have done. In medical negligence cases, the question depends on what a reasonable person with the specialist skills of the doctor in question would or would not have done.

The term ‘negligence’ is often misinterpreted as meaning ‘gross negligence’ when in fact it can embrace inadvertent errors of judgment on the part of otherwise careful people.

In a recent case, a highly competent surgeon’s one-off error when fitting a 67-year-old woman with a hip replacement resulted in a compensation payout.

The woman suffered from arthritis and underwent surgery for a total replacement of her left hip at an NHS hospital. Part of the ceramic prosthesis came loose whilst she was recovering from the operation and the joint dislocated. She required further, disabling surgery to replace the prosthesis.

The High Court found that the experienced surgeon had failed to fix part of the prosthesis in place properly. That did not mean that he was incompetent. However, on this one occasion, the technique he had used fell short of an acceptable standard and was negligent.

A compensation settlement of £37,500 was approved by the Court.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

A motorcyclist who suffered devastating head injuries when he collided with a plough on a country road will receive a substantial sum in compensation to assist with the lifetime of care he will need.

The man was overtaking a line of stationary traffic when he collided with the plough, which was protruding from the rear of a tractor which was turning left. He and his pillion passenger were both instantly knocked unconscious and the motorbike continued onward for another 150 yards before falling onto the grass verge.

The tractor was being driven by a teenager, who had obtained his licence a year earlier, and the solid metal plough was alleged to have extended over the road’s centre white line. The motorcyclist will require care and support for the rest of his life, although he is anxious to live as independently as possible.

A personal injury claim was brought against the company that owned the tractor. Liability for the accident was in dispute, but negotiations yielded a settlement of the case. The High Court approved a compromise that involves the payment of substantial compensation, although the exact figures involved were kept confidential.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

It is not unusual in personal injury cases where a claim is made on behalf of a person who has suffered life-changing injuries for the courts to acknowledge the devotion and selflessness of family members who care for their disabled loved ones without expecting anything in return.

In a recent ruling, however, the Court of Protection sanctioned payment of a £23,000-a-year carer’s allowance to a man who had given up his professional career in order to look after his incapacitated sister.

The sister had been awarded a compensation package worth millions from the NHS following allegedly negligent brain surgery. The operation had not cured the epilepsy which she had suffered from since infancy and left her suffering from profound memory loss, impaired decision making and intermittent psychosis.

Her younger brother, aged in his 50s and a father of two, had given up his well-paid job in order to work full time as her carer and case manager. However, a difficulty arose because he also acted as her official deputy, bearing responsibility for managing her financial affairs. Thousands of family carers in that position are not allowed to profit from the role which they perform and must always ensure that their personal interests do not conflict with their duties.

In a ruling which gives hope to those in a similar situation, the Court approved payment of a carer’s allowance to the man, observing that he had willingly sacrificed his own interests and provided his sister with an exemplary service. The modest annual sums to be paid to him from his sister’s compensation were easily affordable and represented a considerable saving when compared with what she would have had to pay for a team of professional carers.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

George Bernard Shaw once said “Success does not consist in never making mistakes but in never making the same one a second time.” Mistakes should be seen as an opportunity to improve.

However according to a report obtained by the BBC, one of England’s largest mental health and learning disability providers has failed to investigate the unexplained deaths of more than 1,000 mental health and learning disability patients.

The initial investigation was prompted following the death of 18 year old Connor Sparrowhawk in 2013. Connor, who suffered from learning disabilities and autism, drowned in the bath whilst he was a patient at a Unit operated by Southern Health NHS Foundation Trust. A Jury Inquest found that neglect contributed to Connor’s death.

The resulting report found that, between April 2011 and March 2015, almost 10,306 patients had died whilst under the care of the Trust. Of these, 1,454 were unexpected. Inexplicably, the Trust categorised only 272 deaths as “critical incidents”, of which only 13% were subject to a Serious Incident Investigation. For patients older than 65 with mental health problems, only 0.03% of deaths were investigated. Sadly, even when investigations were carried out, they were of a poor quality, extremely late and often contained careless and distressing errors.

The report is very critical of the Trust’s senior leadership team, which repeatedly failed to act upon warnings from Coroners that their investigations were inadequate. Although the Trust now accepts that their reporting has not always been good enough, they have serious concerns about the evidence, which they intend to challenge.

The issues raised within this report are not unique to Southern NHS Foundation Trust. It cannot be denied that patients with learning disabilities continue to experience delays in diagnosis and poor care. It has been found that 1,200 deaths of people with learning disabilities could have been avoided. It is hoped that this report will send shockwaves through the NHS and prompt real and effective improvement and change. NHS England must learn lessons from the report and encourage a culture of transparency among all heath care agencies to prevent further avoidable deaths. Only then will patients with learning disabilities receive the healthcare that they deserve.

Over half of all stillbirths are still unexplained and every day in the UK around three families suffer the death of their baby at term and before labour begins.

Over the past 10 years there has only been a small reduction in the stillbirth rate for the UK and this remains high in comparison to the rest of Europe.

Such statistics are considered further in a recently published report by MBRACE-UK. The report considered at 85 stillbirths in detail and found care could have been better in at least two-thirds of cases. The report also identified critical gaps in care in 50% of term stillbirths and focused upon three key issues:

1. A failure to identify and recognise high-risk pregnancies: This is particularly relevant with regards to the risk of developing diabetes in pregnancy. It is surprising that two out of three women who were at a recognised risk of developing diabetes were not offered testing. Further details about diabetes testing in pregnancy can be found here.

2. A failure to monitor and measure foetal growth: In nearly two thirds of cases, national guidance for screening and monitoring growth had not been followed.

3. A failure to monitor foetal movement: The report found that almost half of the women reviewed had contacted their maternity unit concerned that their baby’s movements had changed. In half of these cases, there were missed opportunities to save the baby.

The report also highlights the investigations that should be carried out after a stillbirth to understand why the baby has died. Parents are entitled to expect an honest and considered assessment of the events that led to the death of their baby due to a stillbirth. Inexplicably, these reviews are not being carried out in almost three-quarters of cases and parents are being denied the opportunity to know whether or not the quality of care that they received can be associated with their baby’s death.

It is disappointing to see that the key lessons raised in the enquiry are very similar to those identified in the last enquiry into stillbirths carried out in 1996/1997. Marcus Weatherby Clinical Negligence Partner at Pattinsons and Brewer said, ” It is surprising that the managers in the NHS have not previously sought to learn lessons from these sad events to improve future care. Our experiences with clients show that better continuity of care, staffing resources and funding for midwives would benefit patients. The question is whether the government cares enough to fund this.”

We have acted for a number of parents who have lost their loved ones due to negligence at birth and we know all too well the life changing affect that this can have. It is promising that the report has provided clear recommendations for action at all levels of the health service and it is hoped that the report will ensure that mother’s and babies receive the best quality of care available.

To read more about the report, please click here.

Colette Payne is a Clinical Negligence Solicitor in Pattinson and Brewer’s Personal Injury and Medical Negligence Department.

In a settlement approved at the High court this morning our client received a lump sum of over £4.3 million and annual payments of £210,000 per annum from age 19 for life.

Women are currently routinely told that for most women, giving birth in stand alone midwifery units or at home is as safe as a traditional labour ward in a fully equipped hospital (more…)