Legal duty to tell the truth must apply to all

‘How can you trust a doctor who doesn’t tell you the truth?’ So said Maria Shortis, founder of the Bristol Heart Baby Action Group, 15 years ago. Will Powell, father of Robbie, agrees. He’s spent 23 years, and all his savings, trying to get the truth about how and why Robbie died. He was promised a public inquiry, which never materialised, although he did make it to the European Court of Human Rights in 2000, which judged that ‘doctors have no (legal) 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.’ (Eye…. )

For the 65 years of its existence, NHS organizations and staff have not been in breech of any statutory rule if they cover up a medical accident. The Bristol Inquiry recommended that ‘when things go wrong, hospitals and healthcare professionals have a duty of candour: to be open and honest.’ In 2003, chief medical officer Liam Donaldson observed ‘to err is human, but to cover up is unforgiveable’ and recommended a legal duty of candour. Labour resisted. Professional codes of conduct laid out by the GMC and NMC for clinical staff make telling the truth a duty, but these have been so widely ignored, not least at Mid Staffordshire, that Robert Francis QC recommended both a statutory duty of candour and criminal liability  if serious death or harm results from a breach of ‘fundamental safety and essential care standards.’ It would also be a criminal offence to make false statements in a trust’s quality accounts or to a regulator, and to knowingly obstruct another in the performance of these statutory duties.

Francis makes a convincing argument for candour. ‘How can patients and relatives be involved in their care and make informed choices if they are not told what has happened to them and the reasons why?’ He also believes that if telling the truth became a legal obligation in the NHS, it would give whistleblowers the authority, confidence and support to speak up, and it would become legally impossible to gag them.

The government’s response thus far has been an acceptance that gags on whistleblowers have to go, but it is far from clear whether those who have already taken gags will not be legally threatened if they now break them. And the whistleblower support group Patients First believe they’re still being used in various guises as lawyers are employed by NHS trusts to protect and defend their corporate and financial interests, not to be open and honest. There will also be a contractual and statutory duty of candour for NHS organizations to tell the truth to patients and relatives, but no such legal duty yet for individual members of staff. And there will be legal sanctions on NHS organizations that deliberately withhold information or mislead. The government is awaiting the outcome of the Berwick safety review before deciding on criminal liability for a serious breach of standards.

Whatever legislation emerges, fair and meaningful enforcement would require ethical behaviour at every level of the NHS, including its lawyers, and the criminal sanctions would need to extend up to managers and politicians, not just clinical staff. The 111 disaster is a great example. Coordinating out of hours (OOH) care is complex and a joined up service staffed by clinicians is critical for safety. Instead, Andrew Lansley fed the OOH service to the market and put it out to tender. There are now over 40-odd independent call centres, who are making a profit margin by manning the phone lines not with nurses as NHS Direct did, but with ‘non-clinicians’, who are trying to sort out urgent from less urgent calls using algorithms. NHS staff warned of the dangers and called for a slow down, the government’s response was to rush it through while the PCTs were in meltdown and now, with at least 3 deaths and 22 serious incidents  alleged to have occurred, the blame is passed from Dr Barbara Hakin at NHS England back to the GP commissioners who had no say in the services when they were introduced but must now sort out the mess. In response, GP leaders are kicking the blame back to the government, Hakin and the rest of the NHS England board.

If death and harm has occurred in the 111 cock-up, who should the Francis recommendations criminalise under these circumstances? And who’s version of the truth should patients and relatives accept? Francis rightly observed that there needs to be a relentless focus on the patients’ interests and the obligations to keep patients safe and protected from substandard care’ but no senior manager or politician was held accountable for Mid Staffs. It remains to be seen whether the proposed criminalisation of appalling care in the NHS reaches all the way to the centre. Don’t hold your breath.

Political Freedom for the NHS? Er…. No

Andrew Lansley’s promise that his health bill would depoliticise the NHS is proving as fruitless as trying to depoliticise the economy. The theory is that ‘clinical leaders’ will now run the NHS on behalf of patients while politicians calmly retreat from the fray and let them get on with it. But at PMQs on April 24^th, Ed Milliband revisited the Thatcher taunt that the NHS was ‘not safe in Cameron’s hands’. And Cameron responded by rubbishing the NHS in Labour-controlled Wales, before signing off with “that is what you get under Labour: cuts to our NHS, longer waiting lists and all the problems we saw at the Stafford Hospital would be repeated all over again”.

Although Labour should accept accountability for Mid Staffs, as should the NHS senior managers who have glided unopposed into the top NHS jobs under the Tories, it’s absurd not to recognize the extra funding and improvements to the NHS under Labour. It’s also absurd, and very dangerous, to suggest another Mid Staffs would only happen under Labour. In doing so, Cameron is creating the same culture of denial that lead to Mid Staffs.

Don Berwick, Cameron’s newly appointed safety tsar, takes a more cautious approach. He has told NHS staff ‘Don’t think you’re different to Mid Staffs staff. You should not be confident you would have acted differently.’ Some staff at Mid Staff tried to speak up but were shut up, leading the Nursing Times to launch an excellent Speak Out Safely campaign ‘to help bring about an NHS that is not only honest and transparent but also actively encourages staff to raise the alarm and protects them when they do so.’ But as the pressure mounts to make the NHS look good in time for the next election, it’s hard to see how this will become a reality.

The NHS has done remarkably well in the last 2 years given the slow-down in funding, but the wheels are starting to loosen. The dramatic rise in 12 hour trolley waits in A+E was the main thrust of Miliband’s attack but winter has been tough, most of the patients are frail and elderly, and there is nowhere else for them to go.  Discharge may be delayed because of a lack of social care beds and so elective operations are cancelled. It’s hard to see how it would have been any different under Labour.

NHS funding may have flat-lined but adult social care has had cuts of £1.89 billion in the last 2 years. The NHS and social care might work better if the services were integrated, and Torbay is trying to merge its services but the Office of Fair Trading now has to assess any merger involving an NHS foundation trust, and to ascertain whether it could be seen as anti-competitive. Don’t expect progress soon.

Competition law in the new NHS seems likely to delay the integration of services and make lots of money for competition lawyers. It could also, in the long term, open the door to whole-scale privatization. Section 75 regulations set the legal framework for NHS competition under the reforms, and a Labour motion to annul them  was defeated by 145 votes to 242 in the Lords on April 24^th, with Lib Dems siding with the Tories. Many who voted in favour of section 75 have vested interests in private companies which stand to benefit, so the result was unsurprising.

The new laws make it harder to award NHS contracts without competitive tendering, and although in theory some services can be protected from cometition, the commissioners have to make the case that there is ‘only one provider capable of meeting their requirements’. Lawyers will love it, commissioning could become a protracted and very expensive nightmare, and the private sector could cherry pick profitable services and completely destabilise the fragile eco-system of the NHS.  That’s what Dr Clive Peedle, co-founder of the NHS Action Party believes, and they will be contesting 50 marginal seats at the next election and trying to force legislation through to make the NHS the preferred provider of services. The NHS will never be politically free, and it’s pointless to suggest otherwise.