Medicine Balls:           Criminalising Herpes

Last week, Northampton traffic officer David Golding pleaded guilty to a charge of Grievous Bodily Harm and was sentenced to 14 months imprisonment because his ex-partner had been diagnosed with genital herpes. Mr Golding previously had genital herpes, but was unaware that he was currently infectious and there was no evidence that transmission was deliberate or malicious. His ‘crime’ was failing to disclose his previous history of infection to his partner, who claimed she would never have had sex with him had she known – even with a condom. Golding went down for “reckless transmission of an incurable sexually transmitted infection (STI)” and the Crown Prosecution Service (CPS) went back to the dark ages.

The law on deliberate transmission dates back to 1861. When HIV became prevalent, the Home Office consulted experts to draw up a ‘shopping list’ of STIs to distinguish potentially life threatening infections from those it would be ridiculous to criminalise. It was never implemented because of allegations of discrimination by the HIV lobby. However CPS guidelines were drawn up:  “7. The courts have recognised that person-to-person transmission of a sexual infection that will have serious, perhaps life-threatening, consequences for the infected person’s health can amount to grievous bodily harm under the Offences against the Person Act 1861… Therefore, the transmission of that infection can constitute the offence of inflicting or causing grievous bodily harm, which when intentional can attract a sentence of life imprisonment.”

Genital herpes affects 1 in 10 (around 6 million people in the UK) and is usually so trivial people don’t know they have it. Outbreaks can occasionally be very unpleasant, but never life-threatening, tend to get less severe in time and effective treatments are available. It’s also impossible to prove who transmitted the virus to who and when. 70% of the population carry at least one of the HSV viruses by the age of 25, often without noticing symptoms. In the vast majority of cases, herpes is transmitted – either facially or genitally – under the radar without either partner being aware. In no way can infection be considered deliberate or serious.  It’s a cold sore gone south.

Of those who know they have herpes, some don’t tell their partners about a previous infection, partly because of the ridiculous stigma that this court ruling has entrenched.  As Nigel Scott from the Herpes Viruses Association put it: ‘It is the existence of a stigma that gives this charity its raison d’etre.  We spend most of our time trying to calm people down and re-educate them.  Some people talk of suicide when they are diagnosed and we know of at least two cases where this has occurred.  This is why many people find disclosure difficult.’

If the six million people in the UK with genital herpes set about prosecuting for deliberate transmission, the courts would do nothing else. Herpes can lie dormant for years, so you’d need to track down all previous sexual partners, including those with cold sores who went ‘down below’. Criminalising herpes is as ludicrous as sending people to jail for passing on head lice, glandular fever, flu, threadworm, warts and chicken pox. Mr Golding is extremely unfortunate to be infected with the triad of incompetent legal representation, an ignorant judge comparing HSV to HIV and then misinterpreting the CPS guidelines, and a medical ‘expert’ who called herpes ‘incurable’. In nearly all cases, there’s nothing to cure. We all carry all sorts of viruses for life, and most we don’t even know about. The stigma surrounding herpes can be traced to publicity surrounding the discovery of the anti-viral drug acyclovir by Wellcome in 1974, and its launch in 1982. Profits need publicity, and Time magazine duly obliged by describing herpes as ‘the new sexual leprosy’ (1980) and ‘the new Scarlet Letter’ (1982). In fact, the main complication of herpes is how much a person wants to let the infection get to him or her psychologically. And if you live in Northampton, being sent to prison.

http://www.cps.gov.uk/legal/h_to_k/intentional_or_reckless_sexual_transmission_of_infection_guidance/

MD is a patron of the Herpes Viruses Association, 020 7607 9661, www.hva.org.uk, which offers excellent advice to patients and lawyers

What next for NHS Whistleblowers?

The Eye’s Special Report on NHS Whistleblowing  (Eye 1292) triggered an early day motion sponsored by Worthing West MP Peter Bottomley. ‘This House welcomes the Private Eye, Shoot the Messenger articles, on how NHS whistleblowers can be silenced and sacked; anticipates effective action by the Health Select Committee (HSC) and the NHS; and calls for an active central unit to which concerned clinicians can put areas and points that worry them, including details of inappropriate disciplinary action by health employers.’ http://www.parliament.uk/edm/2010-11/2031

The HSC has already considered whistleblowing in its Patient Safety report in June 2009, and found: ‘The NHS remains largely unsupportive of whistleblowing, with many staff fearful about the consequences of going outside official channels to bring unsafe care to light. We recommend that the DH bring forward proposals on how to improve this situation.’

Incoming health secretary Andrew Lansley’s proposal (currently shelved) was ‘to strengthen the NHS constitution’ to oblige staff to raise concerns and managers to act on them. But the constitution is legally toothless window-dressing. When the charity Action Against Medical Accidents asked the Department of Health (DH), under the Freedom of Information Act, for ‘information on any instance of action being taken with regard to an NHS body not “having due regard” to the NHS Constitution from its point of creation’ the reply was telling: ‘Officials responsible for this area of Departmental business are aware of no instance, recorded or otherwise, falling within the terms of your request.’

The Eye would like to see an end to all gagging clauses of any sort in the NHS and the protection of a clinician’s professional right to free speech, including the right to go external to the trust and raise concerns with an MP. Gagging is still widespread, so what will the DH do about it? Anne Milton, the Minister in charge of whistleblowing, gave a revealing interview to Radio 4 (July 7, The Report)

Milton ‘I would be very worried that any employer felt it was necessary to insert a gagging clause’ Simon Cox ‘Who’s policing that? Who says to trusts they shouldn’t be doing that?’ Milton ‘You’re stepping into the realms of employment law and I’m not an expert. There are laws in place but as I say I’m not the expert that you need to speak to….. I’m not absolutely sure what higher authority governs what rights an employee has.’

Back in 2009, the HSC recommended that: ‘All Government policy in respect of the NHS must be predicated on the principle that the first priority, always and without exception, is to ensure that patients do not suffer avoidable harm…. Managers and Boards in NHS bodies have a duty to heed whistleblowers and to afford them protection from victimisation for raising genuine matters of concern. Measures to encourage whistleblowing need to be accompanied by strong measures to protect whistleblowers from dismissal and blacklisting. We recommend that the DH bring forward proposals on how to improve this situation and that it give consideration to the model operated in New Zealand, where whistleblowers (and patients) can complain to an independent statutory body.’

None of the HSC’s recommendations were implemented, so this time it’s started by reminding NHS staff of their ethical duty to report poor care and to call on regulators to take action against doctors and nurses who remain silent. But the Eye special highlighted seven senior managers and consultants whose careers were ruined when they blew the whistle, while the concerns they raised were buried in gagging clauses and in secret reports never seen by the public. As MD argued at the Bristol Inquiry, the NHS cannot be trusted to regulate itself in secret. Peter Bottomley proposes a central NHS email address where whistleblowers can receive a date stamped acknowledgement of their concerns. This would make it impossible for an NHS employer to deny knowledge of a possible problem. MD would take it further. Copies of all clinical complaints from staff and the public, the response of the NHS and an indication of whether the complainant was satisfied should be published, with confidentiality protected. Before the NHS can do no harm it has to count the harm it causes and tell patients when they have been harmed by their care. Without absolute transparency, there can be no trust.

For more whistleblowers stories and campaigns, go to www.medicalharm.org

 Another whistleblower refuses to take the hush money

 Whistleblowing paediatrician Dr David Drew had an unblemished career for 37 years, the last 18 in Walsall, until he was sacked in December 2010 for “gross misconduct and insubordination.”  Dr Drew had been medical lead for the paediatric department at Walsall Healthcare NHS Trust (WHNT) for 7 years until April 2008.  From October 2008 to April 2009, he raised numerous concerns about child protection, heating failures, cold babies, understaffing and bullying. He was largely ignored.

In April 2009 following a verbal complaint by the Head Nurse, Drew was excluded for 6 weeks. A National Clinical Assessment Service (NCAS) report found that the Medical Director had reported Drew as obstructive, unmanageable, possibly psychotic and guilty of leaking details of a murdered child to the press. He said Drew was a danger to both staff and patients. He sent Drew an urgent psychiatric appointment and wrote that he was excluding Drew ‘on NCAS advice’. This was untrue. 6 weeks later, the MD asked Drew to go back to work.

An internal investigation concluded “no case to answer” and after a period of illness requiring high dose steroids for 4 weeks Drew returned. In October 2009 he wrote to the CEO registering further concerns about the department including bullying. He also registered a grievance against the MD for wrongful exclusion. He met the trust chair with the BMA and he agreed to an Independent Review of Drew’s grievance and of relationships in the department.

A Review Panel was commissioned by recommendation of the Royal College of Paediatrics and reported on 26 March 2010. It found that, from October 2008, the paediatric department had been run by three managers ‘lacking in paediatric knowledge, managerially aggressive and failing to engage front line clinical staff.’  The trust was instructed not to allow two of them to work in the department again. Drew was not allowed to see the trust’s statement.  Witnesses were interviewed but no statements were taken. Hand written notes of interviews were made but all records of these were subsequently destroyed. 

The CEO and Drew had the only 2 copies of the report. It described corporate failure to manage paediatrics at every level. The Board, Executive, Managers and clinicians, including Drew, were criticised. The Board (as of 8/4/11) was not allowed to see the unabridged version on the grounds of “confidentiality”. The Hospital Consultant body asked to see the report but were not allowed to.  The Medical Director (severely criticised in the report) resigned shortly afterwards but is alleged – in minutes of a Consultant meeting 30 September 2010 – to have given an inaccurate account of the Review to middle managers. 

In March 2011 the CEO wrote demanding that Drew accept the full report without reservation or clarification. Drew asked for a meeting but instead received an appointment for a disciplinary hearing. This was cancelled at BMA insistence as it was in breach of trust policy. In June 2010 Drew met the CEO with the BMA and was offered a package worth £242,000 to leave immediately. Drew was required to sign a gagging clause. He replied in writing that this was a bribe which he could not accept.

Disciplinary proceedings were then started culminating in a 2 day hearing up against an aggressive WHNT solicitor.  The BMA would not provide legal representatives for internal hearings and Drew could not afford to pay one. Drew was sacked and his subsequent appeal, on April 8 2011, failed. He is taking the Trust to an employment tribunal but the BMA has declined to represent him. The Trust will have very expensive, publically funded, legal representation. WHNT was shown all these allegations but declined to comment prior to the tribunal.