Acting to stop harm: the FCA and Appointed Representatives
This recent Radio 4 programme highlighted a statistic that is perhaps surprising to some: that one in ten patients in NHS acute care suffers injury or death from treatment in hospital. Their problems are frequently compounded by an evasive and defensive response from the physicians.
A National Audit Office report in 2005 revealed that only 24% of NHS trusts routinely informed patients of a patient safety incident and 6% admitted to never informing patients.
As clinical negligence lawyers we hear from many victims of medical accidents. Their primary motivation for seeking redress is not always financial but born from a desire to ensure that other patients do not fall victim to the same error, whether that be a systemic failure or the failure of an individual doctor. Many victims simply want and need a clear explanation as to what went wrong with their treatment, why it went wrong and to receive a sincerely expressed apology. When this does not happen, they seek the help of lawyers.
We would certainly like to see improvements in patient safety in the UK and greater openness and transparency when medical accidents occur. By the time patients come to us, they have not only been injured but they have frequently lost faith in the medical profession as a whole.
Radio 4 highlighted a successful regime that has been running at the University of Michigan Hospital in the USA. Ten years ago, this hospital changed its strategy and culture from the traditional approach of “deny and defend” to one of disclosure, apology, and if necessary compensation. The decision was taken to fight only those claims where the hospital could say with a clear conscience that it had done nothing wrong. Critics of this approach assumed that compensation claims would escalate under the new regime of openness. In fact the very opposite occurred and clinical claims significantly reduced.
The University of Michigan has attributed this success to an open culture, with patient safety at the heart. Mishaps are investigated early and patients are spoken to quickly and openly about what has occurred and what can be done to put things right. This system has proved not only a comfort and reassurance to the patients themselves but also provides the doctors with an environment in which they are supported by their employer, both working together, to minimise the risk of similar mistakes happening in the future. Doctors apparently feel more supported when something goes wrong and feel able to speak out when they themselves see and recognise a need for improvement, without fear of being labelled a “whistle blower” or troublemaker.
An openness and transparency of this kind would also surely enable that tiny minority of really poor physicians to be discovered quickly and exposed before further injury can occur.
Many believe that a similar model could work in the UK. As part of the Government’s plans to modernise the NHS, a consultation was launched on how best to develop a contractual requirement for healthcare providers to be more open and accountable and how best to support patients as well as clinicians to ensure patients are told when things go wrong; the impetus being to drive improvements in patient care.
This contractual requirement falls short of the statutory “Duty of Candour” that many campaigners have been seeking. This statutory duty has become known as “Robbie’s Law” in honour of Robbie Powell, a ten year old child who died following a failure to diagnose a life threatening glandular condition until it was too late. Sadly for both patients and forward-thinking clinicians, the proposed amendment to the Health and Social Care Bill to create a clear statutory ‘Duty of Candour’ was defeated in the House of Lords on 13 February 2012 by 36 votes with 198 voting in favour of the proposal and 234 against. This was undoubtedly a sad day for patients and those who have so long a diligently campaigned for change.
This is, however, not the end of the debate. There is a clear determination, by a significant body of supporters, to try to end the situation where doctors and nurses who wish to honour their own ethical and professional obligations to be open with their patients, are not compelled to do what is right by their employers and managers.
As claimant solicitors we know only too well that, until a culture of openness and transparency exists, we will continue to be consulted by patients and victims who are forced to seek their redress through the traditional adversarial court system at a high financial cost to the NHS and at a high emotional price for all concerned, particularly the injured patient.
Kingsley Napley LLP’s Clinical Negligence and Personal Injury Team can be contacted on 020 7814 1200.
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