In 2015, Jeremy Hunt said that there were probably about 1,000 “avoidable” deaths in the NHS every month. So there are about 12,000 deaths every year and this figure does not begin to include serious injuries to patients that fall short of being fatal!
There is a clear public interest in maintaining high standards of care in the NHS and accountability for mistakes. There are currently various ways to deal with untoward incidents that are far from perfect. However, even this flawed system looks to be under threat from current proposals by the government to introduce fixed fees for all claims worth up to £250,000.
Ways of investigating injuries and deaths in the NHS include:
- Criminal prosecution of clinicians perceived to have failed in their duties to the patient.
My view, for what it’s worth, is that this approach inhibits openness and produces a culture of covering up mistakes. It is generally unhelpful and I think it should be avoided in the absence ofevidence suggesting malicious intent
- Adopt the approach used in the airline industry. This means that openness and discussion are mandated and the aim is to put measures in place to minimise the chances of the mistake happening again
In my view this is the most constructive approach and would be the best system to strive for within the NHS.
- Full investigation via the current civil court system. This is a critically important safeguard underpinning the interests of patients. It allows investigation into incidents to be undertaken by independent judges. Investigations in the civil courts are rigorous and can shine a light into cases where healthcare is of dubious quality to find out what went wrong and enable lessons to be learnt. Indeed there is a track record of such investigations uncovering abuse and incompetence where it has occurred.
However this is about to change.
The use of the civil courts to investigate incidents within the NHS will be effectively prevented in the majority of cases by the government’s plan to introduce a “fixed costs” regime for clinical negligence cases worth up to £250,000 from October 2016. Under this, further costs are barred once an arbitrary fixed limit is reached.
The proposed limit of £250,000 will cover most injuries and deaths involving children, the elderly and disabled. Only the wealthy and those with maximum severity injury such as total paralysis and brain damage would be likely to fall outside this limit.
Only this week, Chris Ham, chief executive of the King’s Fund think tank, is quoted as saying that recent NHS Guidance “brings to an abrupt end the post Mid Staffs era when leaders of the NHS organisations saw failure to ensure safe levels of staffing as more serious than failure to balance budgets. Financial control is king”.
So it is more important than ever that the civil courts should continue to exercise a central role in safeguarding the interests of the vulnerable in our society and this must not be taken away by the proposed government reforms.
Accountability for mistakes and the government proposals for fixed costs for civil claims.
I read about the collapse of the criminal case against a NHS Trust involving the tragic death of teacher Frances Cappuccini last week with great sadness for her partner and family.
However there is another aspect to consider, namely whether criminal prosecution is the best way to hold doctors and hospitals to account. Is it in the public interest to have doctors and the medical profession living in fear of criminal prosecution? Will this encourage open consideration of mistakes and an opportunity to learn from them? I think not.
Jeremy Hunt said in 2015 that there were probably about 1,000 “avoidable” deaths in the NHS every month. That is about 12,000 deaths every year and does not even begin to include serious injuries to patients that fall short of being fatal!
There is a clear public interest in maintaining high standards of care in the NHS and accountability for mistakes but does criminal prosecution inhibit or encourage openness about mistakes? The airline industry has a much more constructive approach to mistakes when they happen – open discussion is mandated and the opportunity is taken to learn from what happened with a view to preventing similar incidents in the future.
It seems to me that criminal prosecution in medical cases is usually inappropriate except in really exceptional cases. Instead, the NHS should adopt a similar system to the airline industry and also encourage accountability and regulation of standards by the availability of proper investigation of claims through the civil court system.
Unfortunately, proper investigation via the current civil court system into the deaths and injuries of children, elderly and disabled people will be effectively prevented by the government’s plan to introduce a “fixed costs” regime for clinical negligence cases worth up to £250,000 from October 2016. Under this, further costs are barred once a fixed limit is reached.
So the future seems to be that mistakes will continue to happen and accountability to injured patents and bereaved families will be seriously damaged.
The National Health Service (NHS) was created out of the ideal that a good standard of healthcare should be freely available to all, regardless of wealth. When the then Minister of Health, Aneurin Bevan launched the NHS it was based on three core principles:
- That it meet the needs of everyone
- That it be free at the point of delivery
- That it be based on clinical need, not ability to pay
But, if something was to go wrong with medical treatment received from the NHS, is it ethical to sue?
Some will argue that suing the NHS is wrong both morally and financially. After all, medical staff are only human and everyone makes mistakes at one time or another. But on the other hand, if a person is treated negligently affecting their quality of life and rendering them unable to work, should they not receive support from those that caused the injury?
It is important to remember that the National Health Service do not pay compensation unless negligence can be proved meaning that a medical professional body would have acted in a way that other members of their profession would condemn as below the acceptable level of competence and that such actions directly lead to injury or damage of the complainant as a result.
In reality, the people who sue the NHS just want their lives to return to the way it was prior to the negligence. Of course, if successful they will receive a financial award but the award given will not put the complainant in any better position than before the negligent treatment. In practice, the complainant will not benefit financially from what has happened to them. In most cases people just don’t want what they have experienced happening to others.
A civil claim can often be the only way to find out what really happened and instigate change for the better. The NHS often does not investigate when things go wrong so future improvements are often made thanks to patients that sue. We often get Letters of Apology explaining how improvements will be made in future, but generally only after litigation.
I am of the opinion that if a professional medical body treats a patient negligently meaning that they can no longer look after themselves or loved ones, they should be entitled to sue the organisation at fault for compensation.
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.
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