Mid Staffs and professional regulatory bodies

Mid Staffs and professional regulatory bodies

Today it was announced that the General Medical Council (GMC) was dropping the investigation into doctors that had been implicated in poor care at Mid Staffs FT. The television news featured Prime Minister commenting that the GMC and Nursing and Midwifery Council (NMC) had difficult questions to answer. Unless this was previously filmed footage, his comments were oddly ill-informed - he commented that nobody had been struck off (whereas three nurses have been struck off). 

Just as politicians shouldn't comment on the judicial process, they shouldn't comment on a quasi-judicial process. The GMC and NMC are accountable to the Council for Healthcare Regulatory Excellence. Their decisions are also subject to judicial review. Just like the criminal justice system, professional regulatory processes must be immune from political pressure. 

Whatever the temptations to respond to public outcry by overriding procedure, possibly in an attempt to 'uphold public confidence', and despite the oft-repeated phrase from the case of Bolton v Law Society that “the reputation of the profession is more important than the fortunes of any individual member", the GMC and NMC should not sacrifice professionals on the altar of public opinion. However frustrating it may be for patients and relatives, in a collective enterprise like healthcare it can be impossible to pin blame on one individual. So the failure to censure or sanction any doctors should not be automatically labelled as a failure of regulation. A witch-hunt might be momentarily satisfying, but it will not achieve the desired improvements. 

Clinical negligence and the GMC and NMC

Clinical negligence and the GMC and NMC

I have seen many patients or relatives who are baffled as to why the GMC or NMC do not necessarily get involved when there has been a compensation pay-out related to clinical negligence. In some cases, their bewilderment is justified, but in many cases they misunderstand both the implications of clinical negligence and the role of the these professional regulatory bodies.

The tort of clinical negligence requires in short the proof of a failure to meet the duty of care which has caused an injury. This does not entail that any individual was failing in their professional duty as such. Further, where a simple error is the cause of the injury, this is not something that requires censure by the GMC or NMC. This does not preclude local action, which is the first resort for complainants. This route has been emphasized by both the GMC and NMC as the number of complaints per annum has increased.

Errors of judgment are inevitable where difficult decisions are being made on a daily basis. Lord Denning was of the opinion that doctors should not be liable for "errors of clinical judgment". Later jurists have not been so deferential to the medical profession, applying the same principles as other torts. The way to achieve openness and improvement of healthcare is not by increasing the sanctions for clinical negligence, but by routinizing the investigation of clinical negligence.

"I want this to never happen again to another family"

"I want this to never happen again to another family"

Many of those who suffer clinical negligence don't want compensation, but they'd like to have an explanation, an apology, and measures taken to prevent the same thing happening again. Certainly the majority of clinical negligence is not litigated. Of course there are frivolous suits, and also people who received compensation payouts with confidentiality clauses which mean that the issues are not aired in the public domain and problems can be swept under the carpet. These out of court settlements have enabled some of the most notorious medical tortfeasors to continue in medical practice for years before having truly being held to account.

The medical negligence system is not geared towards improvement of the system. There have been innovations, with a notable example being the practice of the University of Michigan healthcare system. They have committed to openness and transparency and addressing any problems, whilst simultaneously robustly defending frivolous lawsuits. They have seen the costs of litigation fall.

What no system in the world can hope to achieve is the aim of ensuring all mistakes will never happen again (apart from the specifically identified "never events"). There are three main reasons for this - 1) human fallibility 2) economics 3) law of unintended consequences.

No system can completely eliminate the possibility and consequences of human error.

No system can afford the resources in terms of materials or man hours to ensure that no mistakes are made.

The effect of a measure to reduce the possibility of error A may be to increase the possibility of error B.

This is not to endorse fatalism or attempts to continually improve healthcare quality, but just an attempt to inject a note of caution and realism.

Cure the NHS tactics

Cure the NHS tactics 

There are a lot of admirers of Cure the NHS for their campaign to highlight poor care in the NHS. This is a laudable aim, but some of their other aims and more importantly their tactics are rather unsavoury. 

They have got the public inquiry they wished, which found there was poor care. Contrary to their constant accusations, no one has questioned this. There is absolutely no one denying there were instances of poor care.

However, the most repeated "facts" have been thoroughly debunked. No one can seriously argue that there were 1200 unnecessary deaths at Mid Staffs. No one can serious believe that patients were forced to drink dirty water from flower vases either. Any nurse will tell you that wards have not had flower vases for years.

Cure the NHS might argue that these are small details. What is more damning is the party political line Cure the NHS is taking. There was a concerted attack on Andy Burnham on the basis of leaked figures from the Keogh report, which were so vicious that Professor Sir Bruce Keogh felt he had to apologise to Andy Burnham (even though none of this was his fault and he disavowed the newspaper reports).

 http://skwalker1964.wordpress.com/2013/07/15/national-media-keogh-says-13k-nhs-deaths-keogh-er-no-i-dont/

They have also tried blackmail and lobbying people against their opponents (unsuccessfully). One mentally unstable Cure supporter regularly describes critics as "vile" without being able to articulate why. The blackmail attempts are ironic, given that a prominent member of Cure is reputed to have a past conviction for fraud which resulted in a prison sentence. Gary Walker, after complaining about bullying in the NHS, uses reprehensible tactics to try and silence critics on Twitter, making frankly libellous comments and making ad hominem arguments, here is one example:
 https://twitter.com/Modernleader/status/372657707557601280
Utterly false, but in any case irrelevant to the issue. A very transparent "monstering" tactic to shut up opponents, which demonstrates the character of the man. Indeed the rumours I've heard through back channels from Lincoln suggest that his sacking was not so unfounded.

Julie Bailey has also claimed that there has been a campaign of harassment. The police investigated after reading of the allegations (it appears that the incidents were not reported to them by Julie Bailey), and found no evidence to lead them to any particular individual. Indeed it is not clear if they found any evidence at all. In the newspaper accounts of the alleged harassment, Julie Bailey mentions a 'Thank You' card she received that read inside "Thank you for closing Stafford Hospital. Ha, Ha, Ha, you better now spend more time watching your mother’s grave". Unpleasant, but not a threat to personal safety and not even a direct threat of criminal damage. A comment from a paramedic stated "Julie Bailey, I hope you suffer a life-threatening illness at night where you have to travel further than you should do because your local hospital is closed (your fault). Serves you right, go back to your bacon butties girl and leave the staff alone." This was reported as being a death threat, which it clearly isn't. She also complains that people are "boycotting" her cafe (as if the people of Stafford were not free to choose where they drink coffee).These are the incidents that have been reported in the media. These must be some of the  most serious incidents, so exactly how this constitutes a "sinister and orchestrated campaign" is frankly baffling. On the other hand, Julie Bailey has accused a local Labour activist of being behind this with no evidence whatsoever. Not the first example of her double standards, and unlikely to be the last.

Julie Bailey has formed a limited company, presumably for the fees she intends to earn talking about "patient safety".  She lists herself on LinkedIn as leading a "government agency" with over 10,000 employees. Quite what has led her to publicize these fantasies is not clear, but she's becoming increasingly erratic in her pronouncements. If her book is anything to go by, she will be ranting and vilifying NHS staff and anyone who did not assist to her satisfaction. A local councillor is consulting with lawyers over the issue of defamation re her book. It's unclear what their purpose is now. They claim to be interested in patient safety, but it's not certain how they intend to achieve that. Their mantra is "accountability" when in fact they mean "vengeance". They claim that they only want the truth, when what they want is heads to roll.

Speaking to the people of Stafford

Speaking to the people of Stafford
When I first heard the news stories about Mid Staffs hospital, my first reaction was an inward groan - "what's happened now?" I assumed that the media would be exaggerating the problems a bit, but I had no reason to doubt the essential narrative. However, my conversations with Cure et al and Stafford locals left with me with a rather different impression. Things just didn't quite add up. So I arranged to speak to some Stafford people - and they were very happy to. Their openness and willingness to dialogue was in contrast to Cure, whose members very quickly become defensive and/or abusive if anyone challenges any part of their narrative.
My conversations proved to be an epiphany. Certainly no one denied that there had been problems at Mid Staffs. Some of my interviewees didn't wish their quotes to be attributed, such was the atmosphere created by this small group of protestors. I had the impression that the whole town was cowed to an extent. Fortunately community organizers mobilized the majority and the march of support which attracted 51,000 people was the result.
Cure do not speak for the people of Stafford, and their attempts to smear the town have earned them a certain amount of enmity. However, the woman who was used by Cure to try and spoil the march was treated with only compassion and kindness. Cure were invited to be involved with the campaign to save the hospital, but chose not to be involved.
Even now the local newspaper presents a balanced picture of the hospital, despite requests from Cure to silence certain locals. They even accuse the local press of inflaming an alleged hate campaign, which the local police investigated but found insufficient evidence to proceed:
 http://skwalker1964.wordpress.com/2013/08/25/bailey-hounding-investigation-dropped-now-theres-a-surprise/

Duty of Candour

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.

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.