Huffpost UK uk
The Blog

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Dr Raj Persaud Headshot
Dr Peter Bruggen Headshot

NHS Gagging Orders Will Continue to Cause Needless Deaths

Posted: Updated:
Print Article

It has been reported that the General Medical Council (GMC) closed cases against four senior doctors who held management positions at Stafford Hospital, while neglect and abuse occurred. These physicians face no further action from the GMC, and appear to have suffered none during the investigation.

One explanation is that the GMC would have to prove the doctors unfit now to practice, not just failed duty at the time.

Barrister Tom Kark in his advice to the GMC said it would not be possible to bring witnesses to prove that the physicians had breached their obligations as doctors at the time of the scandal.

Niall Dickson, chief executive of the GMC, explained that; 'there is not the evidence to establish either misconduct or impairment against any of the doctors'.

Doctors who manage other doctors, as medical directors do, have two roles. Doctors must answer GMC requirements. As managers of doctors, in Trusts across the country, they have been, amongst other controlling activities, suppressing physicians speaking out via gagging clauses in leaving agreements.

Is the GMC absolving medical managers from their fundamental responsibility as physicians to oppose Trusts when they are a danger to patients?

Brian Jarman from the Dr Foster Unit, Imperial College Faculty of Medicine, writing recently in The Lancet medical journal, reminds us of how Mid-Staffordshire happened despite the red flags.

The statistic used was the Hospital Standardised Mortality Ratio (HSMR). The number of observed deaths over a certain period, compared to the number that would be expected, if the hospital had the national death rate accounting for adjustment factors, such as age, sex, diagnosis, and emergency admission. Crucial to understanding Mid-Staffordshire.

Brian Jarman reminds us that from April 2007, alerts were sent to the chief executives of any English NHS hospital trust found to have a risk-adjusted death rate for a particular condition double the national rate in the preceding three months; and a false alarm chance of less than one in 1000.

Brian Jarman's paper 'Quality of care and patient safety in the UK: the way forward after Mid Staffordshire', points out that in 2007, the Mid Staffordshire General Hospitals NHS Trust boasted an HSMR fifth highest of English acute trusts.

After the appalling care received at that trust was documented in the Francis Report, 14 trusts with high death rates had begun to be investigated.

Prof Sir Bruce Keogh, the NHS's medical director in July 2013 reported failings of 14 trusts in England, between them responsible for up to 13,000 more than expected deaths since 2005. The scandal of Stafford Hospital, was far from a one-off.

Brian Jarman questions in The Lancet whether the NHS has an investigator of poor clinical care, and joins calls for this regulatory gap be closed.

The GMC licenses and regulates performance of individual doctors, not the healthcare system. Others argue that investigating clinical care should be the job of the Care Quality Commission.

But there is a grave danger of what psychologists term the 'bystander effect', where the more people witnessing something like a criminal assault, the less likely anyone individual is to intervene to help.

Psychologists refer to a 'diffusion of responsibility', which seems to take more hold when victimisation occurs before a group, as opposed to an individual. Lone individuals seem more prone to assist than larger crowds.

Could the tragedy of the NHS be that's it's become one large bystander effect - where no one feels responsibility to act? Not even doctors or their regulators?

In January 2012 the General Medical Council issued guidance reminding doctors of their obligation to report substandard patient care. In 'Raising and acting on concerns about patient safety' the GMC emphasises that doctors must not sign any agreement with clauses preventing them from raising such concerns.

Referring to infamous gagging clauses in leaving agreements, GMC chief executive Niall Dickson said: "These clauses are totally unacceptable. Doctors who sign such contracts are breaking their professional obligations and are putting patients, and their careers, at risk."

The GMC guidance says doctors have a duty to take action if patient safety is being jeopardised, or if patients' care or dignity is at risk.

Under a headline 'NHS 'covered up' £4million of gag orders' The Daily Telegraph Newspaper recently reported that the Department of Health admitted that the NHS had used gagging orders to silence 133 staff in the past four years.

But what the newspaper did not report, and what the public and even parliament seems to remain unaware of, is that when doctors are subject to such gagging orders, Medical Directors appointed by Trusts, are involved in implementing them. Given that gagging orders are something the GMC says are explicitly against good practice - why no action against those doctors around the country who made other physicians sign them?

We are told gagging orders will be no more - is that really true? Particularly as the medical directors who enforced them in the past are still in post. Why has no medical director been confronted by the GMC to rescind a gagging order?

A doctor can't get another job in the NHS without a medical manager's good reference. Remember that the NHS is practically a monopoly employer of physicians in the UK. When these medical managers put a gagging clause in front of a doctor to sign, they are hard to resist. The need for a reference remains a form of gagging.

If medical mangers at Trusts where patients were negligently treated, did not speak out, then the GMC risks the role of bystander if it does nothing. What has happened to its own advice to doctors?

Instead it is notable how silent individual doctors have been in criticising the NHS and its regulation, despite the accumulating evidence of widespread poor patient care. Robert Francis, a barrister, has been prominent in critiquing the NHS via 'The Francis Report'.

Can anyone name an NHS doctor who has spoken out? How is it there is no equivalent of 'The Francis Report' but by doctors?

Why don't we hear more of senior doctors around the country opposing Trusts and resigning from medical management roles when they witness patient neglect?

The GMC has prosecuted doctors for bringing the profession into disrepute.

1200 needless deaths in Mid-Staffordshire, and thousands elsewhere, doesn't bring the profession into disrepute?

Around the Web

NHS hospitals spend £2m on gagging orders preventing staff ...

BBC News - NHS chief denies cover-up over gagging orders

NHS chief denies cover-up over £2m gagging orders | Society | The ...

Head of NHS blames Treasury for use of secret gagging orders ...

NHS chief should quit now over gagging culture, says Tory MP ...