Simon Elliman looks at the recent findings by the NHS Ombudsman in relation to how complaints are investigated, and considers the implications for proposed government reforms of medical negligence litigation.
I have been reading a recent report by the NHS Ombudsman, Julie Mellor, which suggests that, when faced with complaints, NHS Trusts are more interested in absolving themselves of blame than trying to help injured patients or grieving relatives understand what has gone wrong. While reports are produced and provided to patients and relatives, they are rarely independent, and sometimes “impenetrable”.
Dame Julie stated that “Parents and families are being met with a wall of silence from the NHS when they seek answers as to why their loved one died or was harmed.” She found that in 150 cases where failures had led to avoidable death or serious harm, hospitals cleared staff of any culpability in 73% of those cases, and failed to carry out an independent review in 52% of them. Yet, of the 536 cases reviewed by the Ombudsman, patients’ complaints were upheld in 264 of them (around 50%).
Overall, the report concludes that internal investigations in hospitals are not “consistent, reliable or transparent”. This is despite a ‘duty of candour’ having recently become a statutory duty for all hospitals, obliging doctors to act in an open and transparent way when dealing with patients.
At the same time the Department of Health is consulting on a plan to bring in a system of ‘fixed fees’ for lawyers pursuing claims against the NHS, which will undoubtedly reduce access to lawyers for those who have been injured, while George Osborne has just announced his intention to raise the ‘small claims limit’ for £1,000 to £5,000, meaning that thousands of those injured by NHS hospitals every year will no longer be entitled to payment of their legal costs if they pursue a claim.
It is extraordinary for these proposals to be pursued, while there is such stark evidence not only that patients are regularly being injured as a result of poor practice in the NHS, but also that, by and large, when it happens, the priority of Trusts is to cover things up and avoid being sued.
What are the prospects, in the brave new world being created by this government, of injured patients getting to the truth of what has happened to them when most of them will no longer even have the benefit of a lawyer, and they are faced with a “wall of silence” and a “culture of cover-up”?
Just as importantly, where is the drive for continuous improvement in patient safety going to come from when hospital staff can act with impunity, because most injured patients cannot access justice?
The chair of Healthwatch England, Anne Bradley, has said: “We need a complete rebuilding of trust in the complaints system, starting with the way in which hospitals and health professionals review incidents of avoidable harm and death.” There is no sign of such a rebuilding, and in the meantime injured patients’ access to justice through litigation is being swiftly dismantled.