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.

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:

  1. 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

  1. 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.

  1. 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.

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