Duty of Candour
There is a campaign led by Will Powell following the death of his son to introduce a Duty of Candour for healthcare professionals. This implies that there is no existing duty of candour for doctors and nurses and others working in the health service. This is emphatically not the case. There is already a duty of candour on healthcare professionals. They have a professional duty of candour, which will be enforced by the relevant regulatory body (General Medical Council or Nursing and Midwifery Council for example). There is also a contractual duty of candour, where the NHS insists on its employees and contractors are candid. Last and not least there is arguably a legal duty of candour to patients, as per obiter by Lord Donaldson MR in Lee v South West Thames Regional Health Authority [1985] 1 W.L.R. 845, where he considered there may be a common law duty of candour (Chester v Afshar strengthens the argument for this).
What Will Powell is campaigning for is a statutory duty of candour, which would also have only one remedy - money. In the case of his son's death, he wished to sue for compensation in relation to the alleged cover-up. He took this issue to the European Court of Human Rights, where he failed in his plea. He was not able to recover damages, as the doctors owed no duty of candour to the parents of their patient after his death, as they owed no duty of care to them. The statutory duty of candour would also provide an unequivocal legal duty of candour to patients, although I believe there is already a common law duty.
So a statutory duty of candour will achieve nothing more or less than the right to get more compensation - because that is the only remedy available. This is not to imply that Will Powell is motivated by money - clearly there is a lacuna in the law here. This is also not to say that I do not believe in the moral and ethical duty of candour - I do. Indeed a legal duty of candour would be desirable in a different context. I just don't see that within the common law adversarial system that it would be beneficial.
If the medical negligence were orientated more on therapeutic jurisprudence lines, with a wider range of remedies, then candour makes perfect sense. Many litigants don't want compensation (and Will Powell turned down compensation) but rather honesty, an apology, lessons to be learned and things to be changed for the better.
Tuesday, August 27, 2013
Monday, August 26, 2013
Lies, damned lies and statistics
Lies, damned lies and statistics
Many people are familiar with this quote, attributed to Disraeli (although the originator may in fact be Mark Twain). In some ways this is quite pejorative of the important data encapsulated by a statistic, but recent events remind of us of just how much a statistic can be bent to give a totally misleading impression.
There are two main types of statistics, descriptive and inferential. Descriptive statistics are simply a statement about the prevalence in the sample of particular characteristics - so the raw death rate at a particular hospital will be a descriptive statistic. There are a number of difficulties in drawing inferences from such statistics, but we can reliably determine the death rates at a hospital (although there may be issues with definitions of post-operative mortality, for example).
Often we wish to draw conclusions from a limited sample of a larger population, or we might wish to adjust a patient population in order to make comparisons between different hospitals. Here we come into the realm of inferential statistics. So we may look at the data from a limited sample, and try and draw conclusions about the prevalence of a particular condition in the wider population. If we design the study correctly so the sample reflects the wider population, we can say that the parameter lies within a certain range by calculating the confidence intervals, which enables us to say the parameter is between two values with a 95% confidence (if that is the confidence interval we've chosen).
All the mathematical tricks in the world are irrelevant if the design of the research is incorrect, so that the sample doesn't represent the wider population we're trying to research. With statistical models that attempt to adjust the patient population for all the factors that affect the variable we're looking at, there needs to be robust research conducted. So for cardiac surgery, studies were done so that it could be established with confidence what effect certain conditions had on the mortality from cardiac surgery. When these methods are reliable, as well as stating that a certain unit has X mortality for cardiac operations, we can also say with reasonable reliability that this unit has higher mortality than other units. We cannot say what the reasons are for that raised mortality, but we can say the likelihood is that these results did not occur by chance.
All these issues are specific to each statistical calculation. Of course there are the issues of probabilities, and the inevitable fact that as a matter of chance 50% of the population will be below average, but these are relatively mundane. However, without a more sophisticated understanding than this, the public will continue to be misled. The bald statement that there were 1200 unnecessary deaths at Mid Staffs and 13,000 at 14 other NHS hospitals is a blatant misrepresentation of the strength of the statistical method used. The originator of the HSMR method should be taking greater pains to ensure that the data are not misrepresented.
Many people are familiar with this quote, attributed to Disraeli (although the originator may in fact be Mark Twain). In some ways this is quite pejorative of the important data encapsulated by a statistic, but recent events remind of us of just how much a statistic can be bent to give a totally misleading impression.
There are two main types of statistics, descriptive and inferential. Descriptive statistics are simply a statement about the prevalence in the sample of particular characteristics - so the raw death rate at a particular hospital will be a descriptive statistic. There are a number of difficulties in drawing inferences from such statistics, but we can reliably determine the death rates at a hospital (although there may be issues with definitions of post-operative mortality, for example).
Often we wish to draw conclusions from a limited sample of a larger population, or we might wish to adjust a patient population in order to make comparisons between different hospitals. Here we come into the realm of inferential statistics. So we may look at the data from a limited sample, and try and draw conclusions about the prevalence of a particular condition in the wider population. If we design the study correctly so the sample reflects the wider population, we can say that the parameter lies within a certain range by calculating the confidence intervals, which enables us to say the parameter is between two values with a 95% confidence (if that is the confidence interval we've chosen).
All the mathematical tricks in the world are irrelevant if the design of the research is incorrect, so that the sample doesn't represent the wider population we're trying to research. With statistical models that attempt to adjust the patient population for all the factors that affect the variable we're looking at, there needs to be robust research conducted. So for cardiac surgery, studies were done so that it could be established with confidence what effect certain conditions had on the mortality from cardiac surgery. When these methods are reliable, as well as stating that a certain unit has X mortality for cardiac operations, we can also say with reasonable reliability that this unit has higher mortality than other units. We cannot say what the reasons are for that raised mortality, but we can say the likelihood is that these results did not occur by chance.
All these issues are specific to each statistical calculation. Of course there are the issues of probabilities, and the inevitable fact that as a matter of chance 50% of the population will be below average, but these are relatively mundane. However, without a more sophisticated understanding than this, the public will continue to be misled. The bald statement that there were 1200 unnecessary deaths at Mid Staffs and 13,000 at 14 other NHS hospitals is a blatant misrepresentation of the strength of the statistical method used. The originator of the HSMR method should be taking greater pains to ensure that the data are not misrepresented.
Saturday, August 24, 2013
NHS in Crisis?
NHS in Crisis?
The Coalition government keeps on telling us the NHS needs to reform. It has to persuade the public of this, so it can push through privatization. There has been surprisingly little media scrutiny of the claims made. The claims of 13,000 unnecessary deaths made by some newspapers were swiftly rebuffed by the author of the report being "quoted", Professor Sir Bruce Keogh. £500 million is being used to "bail-out" failing A&Es, but this comes nowhere near the £2.2 billion "underspend" returned to the treasury. Smoke and mirrors some might say.
The Lancet criticized the Coalition for treating the NHS like a failed bank.The mantra of "clinical and financial sustainability" is being repeated by the Trust Special Administrators at Mid Staffs. Financial sustainability means what exactly? Simply that the Coalition is cutting the NHS (which they have been forced to concede after a rebuke by the UK Statistics Authority). How can any part of the NHS be singled out as making a loss? It is a public service. It is never going to "make a profit"
The Coalition government keeps on telling us the NHS needs to reform. It has to persuade the public of this, so it can push through privatization. There has been surprisingly little media scrutiny of the claims made. The claims of 13,000 unnecessary deaths made by some newspapers were swiftly rebuffed by the author of the report being "quoted", Professor Sir Bruce Keogh. £500 million is being used to "bail-out" failing A&Es, but this comes nowhere near the £2.2 billion "underspend" returned to the treasury. Smoke and mirrors some might say.
The Lancet criticized the Coalition for treating the NHS like a failed bank.The mantra of "clinical and financial sustainability" is being repeated by the Trust Special Administrators at Mid Staffs. Financial sustainability means what exactly? Simply that the Coalition is cutting the NHS (which they have been forced to concede after a rebuke by the UK Statistics Authority). How can any part of the NHS be singled out as making a loss? It is a public service. It is never going to "make a profit"
Wednesday, August 14, 2013
Criminalizing poor care
Criminalizing poor care
There have been calls from some quarters for criminal sanctions for those responsible for poor care at Mid Staffs and other hospitals. Both Robert Francis and Don Berwick consider there may be a role for creating new criminal offence(s) relating to poor care, but also state this is be rarely required (rather than used with gay abandon as some would like). There are several reasons why criminalizing poor care is not a good idea.
1) Criminal standard of proof.
The criminal standard of proof would make it difficult, as it is 'beyond reasonable doubt'. Civil suits and professional sanctions only require to be proved on the balance of probabilities. Additionally, negligence claims require no proof of wrongdoing.
2) Effect on transparency
If criminal sanctions were a possibility, then any investigation intended to improve the quality of care would be hampered, regardless of whether or not criminal prosecution was likely. So the quality of care, and certainly transparency, might worsen.
3) Disproportionality
If poor care was to be criminalized, this would make healthcare totally different from other areas. Where care is abuse, then this can already be prosecuted. Making someone guilty of simple mistakes a criminal would be contrary to the nature of criminal law which is about condemning morally reprehensible behaviour, not negligence (with a few exceptions)
4) Effect on frontline staff
This sanction is most likely to affect frontline staff, due to increasing evidentiary difficulties with more remote actors. Often poor healthcare is down to the performance of several members of staff, and assigning responsibility becomes difficult. This can be seen with the failure to convict anyone except sole traders for corporate manslaughter.
There have been calls from some quarters for criminal sanctions for those responsible for poor care at Mid Staffs and other hospitals. Both Robert Francis and Don Berwick consider there may be a role for creating new criminal offence(s) relating to poor care, but also state this is be rarely required (rather than used with gay abandon as some would like). There are several reasons why criminalizing poor care is not a good idea.
1) Criminal standard of proof.
The criminal standard of proof would make it difficult, as it is 'beyond reasonable doubt'. Civil suits and professional sanctions only require to be proved on the balance of probabilities. Additionally, negligence claims require no proof of wrongdoing.
2) Effect on transparency
If criminal sanctions were a possibility, then any investigation intended to improve the quality of care would be hampered, regardless of whether or not criminal prosecution was likely. So the quality of care, and certainly transparency, might worsen.
3) Disproportionality
If poor care was to be criminalized, this would make healthcare totally different from other areas. Where care is abuse, then this can already be prosecuted. Making someone guilty of simple mistakes a criminal would be contrary to the nature of criminal law which is about condemning morally reprehensible behaviour, not negligence (with a few exceptions)
4) Effect on frontline staff
This sanction is most likely to affect frontline staff, due to increasing evidentiary difficulties with more remote actors. Often poor healthcare is down to the performance of several members of staff, and assigning responsibility becomes difficult. This can be seen with the failure to convict anyone except sole traders for corporate manslaughter.
Tuesday, August 13, 2013
Zombie statistics
Zombie statistics and zombie facts
In the BMJ recently, David Spiegelhalter (Winton professor for the public understanding of risk at University of Cambridge) described the figures for 'unnecessary deaths' at both Mid Staffs and 14 other hospitals inspected for the Keogh Report as potentially 'zombie statistics' - debunked figures that "will not die in spite of repeated
demolition". This seems to be the case at least among Cure and their supporters. There are constant references to "the number of graves".
There are also 'zombie facts'. The mythological flower vases that were never on Mid Staffs wards in the period in question now were also full of "rotting flower water". http://www.dailymail.co.uk/femail/article-2349149/NHS-whistleblower-Julie-Bailey-gives-interview-make-blood-boil.html
The confusion between a flower vase and a water jug is possible, but the additional detail of "rotting flower water" strikes of wilful exaggeration at best (and downright lying at worse).
The same article has other 'zombie facts'. Despite no evidence whatsoever, Julie Bailey continues to accuse local Labour party members of orchestrating a hate campaign. She has stated there has desecration of her mother's grave. When Steve Walker of http://skwalker1964.wordpress.com/ investigated as to whether any of these alleged incidents had actually been reported to the police by means of an FOI request, he was accused by Cure members of "stalking".
The desire by Cure for transparency doesn't extend to their own activities, even when there is a very definite public interest case in disclosure.
Thursday, August 8, 2013
Cure the NHS and patient safety
Cure the NHS and patient safety
Cure the NHS have in the past highlighted poor care in Mid Staffs. That should be applauded. However, more recent activity should give rise to concern. Julie Bailey has Tweeted that case note reviews to ascertain whether there have been avoidable deaths is a waste of time as "Case notes as evidence is a myth" ( http://themedicaljournalistoncall.blogspot.co.uk/2013/08/cure-nhs-or-nhs-gremlins.html ).
Cure the NHS has not been behind the campaign to save Stafford Hospital despite all the improvements made in quality. Cure supporters continue to quote the HSMR figures despite this being clearly inappropriate ( http://skwalker1964.wordpress.com/2013/07/28/at-last-the-truth-about-stafford-hospital-starts-to-go-mainstream/ ). They have repeated the now debunked myth about patients drinking water from flower vases.
Worse of all they continue to attack those who dispute their version of events, making repeated attacks without any proof against local people. In fact their contempt for local people is quite extreme, and no doubt has contributed to their unpopularity among people who are surely in an ideal position to judge the quality of care at Stafford DGH. Stafford people wish to keep local hospital services, and sadly Cure have never made any commitment to assisting with that.
Sunday, August 4, 2013
The problem with deifying "whistleblowers"
The problem with deifying "whistleblowers"
Everyone agrees that it's right that whistleblowers, especially in the NHS, should be applauded and protected. Not everyone agrees on who is a whistleblower though. If we deify anyone who claims to be a whistleblower, then we risk allowing the plain incompetent or incapable to play the whistleblowing "card" to avoid dismissal, even when it's clear there are valid reasons for concern.
Let us consider a hypothetical situation. A member of a inspection body is acting strangely, enough to warrant assessment by a doctor with regards to mental health. The person appears to be paranoid, and has her colleagues at their wits end. So if that person then claims to be a whistleblower, should we just accept that? Or would we be concerned that a person is acting erratically and even irrationally at times is in such a position of responsibility?
The whistle blower's version of events may be strongly contested. The BAILLI report of the Employment Appeal Tribunal hearing of Drew v. Walsall Healthcare NHS Trust (Religion or Belief Discrimination : no sub-topic) [2013] UKEAT 0378_12_2009 describes a rather different situation to that has been reported in the media. Rather than Dr Drew being suspended for simply expressing Christmas wishes or once quoting St Ignatius, the picture appears to be one of an extended failure to work effectively with colleagues and keep his personal faith personal. Whatever the rights and wrongs of expressing faith in the workplace, it would have been easy enough for Dr Drew to comply with the Trust's requirements.
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