The CMA’s Annual Report and digital markets - a time of change
Robert Francis QC’s eagerly anticipated report into the reasons why, until the Healthcare Commission’s investigation concluded in May 2009, the appalling standards of care occurring at Mid Staffordshire NHS Trust between 2005 and 2008 were not properly identified and acted upon by the healthcare system, was published on Wednesday 6 February 2013. His report details systemic failures from the grass roots level including the Trust’s own doctors, nurses and management up to the Department of Health itself. The report built on the findings of his Independent Inquiry report, published in February 2010, into the failings at the Trust.
The existing culture
Mr Francis describes that “an unhealthy and dangerous culture pervaded not only the Trust, as described in the first inquiry report, but the system of oversight and regulation as a whole and at every level”. He describes this negative culture as one of defensiveness and secrecy, with lack of consideration of risks for patients and misplaced assumptions of trust, one of looking inwards not outwards, one where there is an acceptance of poor standards and which has at its heart a failure to put the patient first in everything that is done. Mr Francis examined what caused such a widespread failure of the system and concluded that there was an institutional culture in which the business of the system was put ahead of the priority that should have been given to patients.
Mr Francis makes 290 wide ranging recommendations aimed at improving the healthcare system so as to put patients’ interests first and he is absolutely clear that this requires a fundamental culture change. The recommendations cover what Mr Francis considers are five core requirements:
However, Mr Francis’ recommendations alone are not enough to ensure a safer NHS, they must be adopted and implemented by the Government and, if they are indeed adopted, must be embraced by every member of NHS staff. In his statement to the House, responding to the Report, the Prime Minister apologised on behalf of the Government and the country “to the families of all those who have suffered for the way that the system allowed this horrific abuse to go unchecked and unchallenged for so long”. Mr Cameron stated that the Government will consider the recommendations in detail and respond next month. However, he has already made three commitments towards achieving the culture change which he acknowledges is required:
These are all welcome indicators of the Government’s commitment to achieving a safer, more patient focussed NHS, but a true picture of the adequacy of the government’s response to this report will clearly take some time to form.
The future for patients
So, what will the recommendations mean for patients if they are adopted? They should mean that all patients receive care in accordance with published standards delivered with compassion. Each patient should have a named nurse who should be present at every interaction with a doctor. It should be clear whether a nurse or a healthcare support worker is providing care and, if care is provided by the latter, that healthcare support worker should be trained to national standards and regulated.
Mr Francis also made a series of recommendations specifically dealing with care of the elderly which recognise that these patients are some of the most vulnerable and that they require special consideration and care.
When things go wrong
Regardless of the recommendations made by Mr Francis, within any healthcare system there will be times when the care provided falls below the expected standard. Currently, when this happens, the prevailing culture in the NHS is one where the patient has to seek answers about what went wrong either through the formal written NHS complaints procedure or through litigation, or commonly a combination of the two. Often, even when complaints or litigation have ensued which have identified shortcomings, lessons are still not learned.
Mr Francis recommends that there should be a culture of openness enabling concerns and complaints to be raised freely. Everyone working for a healthcare organisation must be open, honest and truthful in their dealings with patients and regulators and in their public statements. Personal interests must not be allowed to outweigh this duty.
Patients raising concerns about their care should be entitled to: have their concerns dealt with as a complaint; have their expectations identified; have their complaint promptly and thoroughly processed; sensitive, responsive and accurate communication; effective and implemented learning; and; proper communication of the complaint to those providing care.
Mr Francis recommends that that the recommendations of the Patients Association’s peer review which was undertaken into complaints handling at Mid Staffordshire NHS Trust should be reviewed and implemented. The Patients Association welcomes the report and its Chief Executive, Katherine Murphy, describes it as “a watershed moment for our health service”.
Where a patient has died or suffered serious injury due to treatment provided, Mr Francis recommends a statutory duty of candour. In these circumstances the patient or a duly authorised person (most likely a relative) must be advised that the healthcare provider believes or suspects that the death or injury was caused by the care provided as soon as is practicable and the healthcare provider must then provide such explanation and information as the patient may reasonably request. He also recommends a statutory obligation on registered medical practitioners, nurses and professionals to advise their employer if they believe or suspect that death or serious harm has been caused by the treatment or care provided.
Mr Francis recommends that it should be a criminal offence for any registered medical practitioner, nurse, allied health professional or director of healthcare organisation to knowingly obstruct another in the performance of the above duties, to provide information to a patient or relative meaning to mislead about an incident or to dishonestly make an untruthful statement to a commissioner or regulator knowing that they are likely to rely on that statement in the performance of their duties. Mr Francis’ recommendations place the policing of this duty of candour within the remit of the Care Quality Commission and to do this he recommends that they should be given powers of prosecution in cases of serial non-compliance and wilful deception.
Action against Medical Accidents (AvMA) has long campaigned for a duty of candour and welcomes Mr Francis’ adoption of this recommendation. Peter Walsh, AvMA’s Chief Executive states in his reaction to the Report:
“The Government must now accept the recommendation for a legal duty of candour which would represent the biggest advance in patient safety and patients’ rights in the history of the NHS. So far they have fiercely resisted this. The duty of candour, together with other recommendations to ensure full openness and transparency represent a new dawn for the NHS. Organisations that sweep errors under the carpet do not learn lessons. An open and transparent NHS will be a safer NHS”.
As Clinical Negligence solicitors, we also welcome the recommendation of a duty of candour, an open and transparent NHS and better complaints resolution. Too often we hear from patients that if the NHS body responsible for their injury had just been honest about what happened and given the explanations they asked for, they never would have turned to litigation to get answers and the acceptance of responsibility they needed. That patient, if given respect and an honest explanation, may never become our client. Too often we hear of the same mistake occurring repeatedly. An NHS which is honest with patients when something goes wrong and undertakes a proper examination of why a mistake happened and then seeks to ensure that it does not happen again will be a safer NHS, where mistakes happen less frequently.
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