Robbie’s Law – Telling the truth about medical harm

In 2001, the Bristol Inquiry concluded that ‘when things go wrong, hospitals and healthcare professionals have a duty of candour: to be open and honest.’ The culture of blame and bullying in the NHS prevented this from taking root so in 2009,  the Health Select Committee proposed a statutory duty of candour, following a long-standing campaign by Action Against Medical Accidents and the relatives of Robbie Powell. Labour resisted legislation, as have the coalition, opting instead for a weak contractual obligation for providers to publish a ‘declaration of a commitment to openness’ on their website, or face a fine. The ‘principle of openness’ has also been enshrined in the toothless NHS Constitution. This is particularly insulting to the bereaved relatives at Mid Staffs, who are hoping Robert Francis QC, himself a negligence lawyer, may force the NHS to finally be honest about the harm and distress it causes, often lasting decades.

In 1990, 10 year old Robbie Powell died in Morriston Hospital, Swansea after many doctors failed to diagnose his Addison’s disease. Just 22 years later, the Welsh Government published a report into his avoidable death and the lessons that need to be learned¹. The Health Authority admitted liability and made a payment of £80,000 in respect of the death, but the Court of Appeal judged that doctors were not legally obliged to explain the circumstances surrounding the death of Robbie to his parents. The Powell family was refused leave to appeal to the House of Lords and was unsuccessful at the European Court of Human Rights, which in 2000 endorsed that ‘doctors have no duty to give parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records.’²     

 Had the Powells settled out of court, they might have received £300,000 in compensation. But truth and justice has always been more important to them, and they lost everything to fight for Robbie’s Law. The Robbie Powell cover up and the legal legitimacy of a doctor’s right to lie – which still exists today – is one of the most shocking and astonishing stories in the history of the NHS. If you doubt the need for a legal duty of candour, follow this link http://www.itv.com/news/wales/story/2013-01-09/the-robbie-powell-story/

The avoidable death of baby Joshua Titcombe at Furness General Hospital in November 2008 is a typical example of failed candour. Joshua had a low temperature due to lung infection that would have been easily treatable had it been diagnosed. Sadly, it wasn’t. Joshua’s crucial observation chart disappeared soon after his death, despite ‘extensive’ searches, leading the coroner to deduce – just 32 months later – it may have been ‘deliberately destroyed.’ He concluded there was a ‘very worrying mark of suspicion hanging over the maternity unit at FGH’ and identified ten serious failures. A previous review into the service had also found serious failings but was not passed onto the Care Quality Commission.  The Parliamentary Health Service Ombudsman refused to investigate, claiming it was the CQC’s job. No-one, it seems, is much interested in candour.

Stories of repeated cover up and denial are commonplace in the NHS, often with claims of deliberate falsification or destruction of evidence. If a duty of candour could be successfully introduced, it would represent the biggest shift towards a culture of transparency the NHS has ever seen. A National Audit Office report in 2005 found that only 24% of English hospital trusts routinely informed patients who had been victims of ‘adverse incidents’. NHS staff often won’t disclose harm if they think they’ve got away with it, and fear being blamed, sacked and sued. Usually the system is at fault as much as the individual, but denial and a desire to protect the reputation of the trust stops lessons being learned, and causes untold psychological damage to patients, relatives and whistleblowers.

A statutory duty to disclose would need staff skilled in communication and the time for them to do it properly. One in ten patients suffer some sort of harm from their care, but the NHS could at least focus on the most serious cases. Although patients have a legal right to information before they consent to any medical intervention, they have no right afterwards if it goes wrong. Yet American studies suggest that claims, lawsuits, time for resolution and costs all decrease after open disclosure, and patient satisfaction increases⁴. In a culture where NHS whistleblowers are routinely punished for their ethics and honesty, a duty of candour can only work if staff are praised for owning up, rather than sanctioned by their employers or regulatory body. Those whose conduct suggests criminal behaviour or a continued risk to patients are unlikely to own up, whatever the law says, which is why we will always need whistleblowers.

^{1 http://wales.gov.uk/topics/health/publications/health/reports/powell/?skip=1&lang=en,}

² Powell v UK Application No 45305/99 admissibility decision of 4 May 2000.

^{3 http://www.slideshare.net/fullscreen/ATuteur/joshuas-story-dramy22011-10007621/18}

⁴ Patient Safety and the Problem and Potentialof Law – Oliver Quick

I have been both a general practitioner and journalist for twenty years, breaking the story of the Bristol Heart Scandal in Private Eye in 1992 and giving evidence to the eventual Public Inquiry seven years later. Much of my journalistic work involves supporting and protecting NHS whistleblowers, while allowing their concerns to be made public in a way that could help protect patients from avoidable harm. One of the saddest elements about the high rates of death and brain damage for babies undergoing complex heart surgery in Bristol was that the problems were well known within the heart surgery community and regulatory authorities, and yet no-one – save for whistleblower Stephen Bolsin – saw fit to act.

Despite legislation to protect those who blow the whistle in good faith, I am not convinced that the lot of the NHS whistleblower has improved much over 20 years, nor that we have got any better at stepping in to protect patients from harm when concerns are raised. This is well documented in the recent Private Eye supplement, Shoot the Messenger. The Francis Inquiry may well find that NHS staff are now even less likely to blow the whistle, rather than more.

Staff that do blow the whistle are frequently marginalised, counter-smeared and suspended, and many subsequently agree to a modest pay off with a gagging clause to protect themselves from personal and professional ruin. The gagging clause is counter to DH guidance and technically not enforceable under PIDA, but few whistleblowers have the strength and legal resources to risk breaching it, and so their legitimate safety concerns are never made public and there is no evidence that they have been addressed.

Gagging clauses seem to occur in all walks of life for all sorts of reasons, and it may be that some are used by staff themselves to hide their own failings when they move jobs. However, the wider point remains that public money should never be used to suppress information that may be in the public interest. Gagging clauses provide management with a powerful tool to suppress stories of medical harm and cover up management wrongdoing (particularly the failure to act swiftly and appropriately when concerns are first raised).

I believe that many doctors who have previously been silenced would welcome the opportunity of openness and it might ensure action is taken on long standing safety problems. To maintain trust in the NHS, we need to explain why and how public money has been used to silence doctors. It would not harm the profession for this information to be released, and it may even improve it. In future, I would hope the CQC will assess the culture of the NHS by asking hospitals to provide evidence of how they responded to whistleblowers’ concerns, and whether the whistleblowers  were happy with that response, rather than unable to comment.

Promises, promises

The most any government can hope for when it comes to the NHS is that it leaves it in better shape than it found it.  The hugely disruptive structural changes of the Health and Social Care Act are unlikely to amount to much more than jumping up and down on the spot come 2015, and funding will have flat-lined or dipped.  But the Government has made a number of  bold  half-promises that could make a big difference to patients. Will they keep any of them?

Routine services should be available 7 days a week.  This is currently ‘under investigation’ by  NHS Clinical Director (and former heart surgeon) Bruce Keogh. There seems little point in lighting and heating hospitals all weekend but only offering emergency services, and it’s outrageous that your chance of surviving hospital depends on whether you get sick ‘in hours’ or ‘out of hours.’ According to a Health Service Journal survey, NHS chief execs rate the ‘out of hours’ safety of their hospitals as only 5.9/10. The theory goes that if routine GP and hospital services were available throughout weekends, there would be fewer unnecessary emergency admissions. But Keogh’s plan requires investment, resources and union backing.

Performance of individual surgeons to be published in the summer. Another of Keogh’s, this will apparently start with ten surgical specialties (adult cardiac,  vascular, upper gastro intestinal, colorectal, orthopaedic s, bariatric (weight loss), urological, head and neck, thyroid and endocrine and interventional cardiology). If it can be done in a fair way that doesn’t discriminate against surgeons taking on harder operations and doesn’t hinder surgical training, it’s a great idea. It might even stop orthopaedic surgeons dabbling with unproven joint replacements (Eyes passim). It was first promised after the Bristol Inquiry only 12 years ago (Eyes passim ad nauseum).

Hospitals will be forced to own up to mistakes. So promises health minister (and former obstetric trainee) Dan Poulter. The ‘duty of candour’ was another key recommendation of the Bristol Inquiry.   Poulter is proposing to make it ‘contractual’ (from April 2013) rather than ‘legal’,  which would give it less weight and may exclude GPs and dentists. Minimising the harm done to patients, and being honest and compassionate when harm does occur, are both vital for a humane NHS but it remains to be seen if this promise is genuine or just a move to pre-empt the Mid Staffs Inquiry report.

A national database of children at risk. Another Poulter promise, to track 11 million children through school, social care, hospital and GP visits and quickly alert staff to those who may be ‘at risk’ from abuse. Another laudable plan, first considered by Labour in 2000 after the Victoria Climbie tragedy. The ContactPoint database – which cost £224 million to set up – was scrapped by the coalition for ‘privacy and security reasons’, and switched off in August 2010.

 ‘Ofsted style’ ratings for hospitals and care homes.  Jeremy Hunt is keen on this, with hospital ‘superheads’ brought in to tackle poor performance. This suggests Hunt has little confidence in the CQC and Monitor to keep the NHS up to scratch, and that a visionary leader can be persuaded to be parachuted into a failing hospital to turn it around. Labour tried this with mixed results. Given the number of hospitals currently in financial crisis and providing patchy care, this will need a steady supply of superheads. Or maybe the basket cases can be rescued by ‘super’ Virgin or Circle.

All pensioners to be tested for dementia. Hunt has shown a commendable interest in dementia but any benefits of earlier diagnosis have to be carefully weighed against the harms of anxiety and misdiagnosis. According to the Torygraph, the Hunt plan sees bank and shop workers trained to ‘identify the condition’. Is this wise?

MD