THE BLOG

'Don't Ask, Don't Tell' NHS Must Change

06/01/2016 09:56 GMT | Updated 05/01/2017 10:12 GMT

The news last month that a single NHS Trust failed to investigate the unexpected deaths of more than 1,000 people since 2011 (as revealed in a report about Southern Health Foundation Trust) was shocking and concerning, but unfortunately comes as no surprise to those of us seeing such cases on a daily basis.

Many parts of the NHS have long-adopted a 'Don't Ask, Don't Tell' policy in cases where it's possible that injury (even where it results in lasting harm or death) has been caused by failures in care or medical negligence.

The news on Southern Health was preceded a few days earlier by another report supporting this view. Figures published by Dame Julie Mellor, the parliamentary and health service Ombudsmen, states that in 73% of cases her office investigated (where there was a clear breach of a duty of care) the hospital had previously concluded that no fault existed.

I've written here before about the need for a more open and transparent NHS, and indeed, in 2014, the introduction of a 'Duty of Candour' was meant to lead to a fundamental change in approach, requiring medical practitioners and institutions to quickly own up when mistakes were made.

However, both of these new revelations confirmed what professionals dealing with clinical negligence claims on a daily basis already know, that the duty of candour remains a myth.

This bad situation could be about to get even worse by the end of 2016, when the government plans to introduce fixed fees for medical negligence cases.

This is an attempt to reduce the NHS' ever-growing legal bill (£1.3 billion at the last count) - a perfectly reasonable thing to do.

However, for this new system to work, the NHS is going to have to learn to co-operate and own up when things go wrong.

Fixed fees will place limits on the amount of time (and therefore costs incurred) by lawyers investigating cases of clinical negligence. This will make it even harder to hold poor practice to account, as long as the current wall of silence is maintained.

Recourse to the civil law has become an important avenue for patients unable to get a satisfactory response to their complaints, as well as providing the financial support needed by those suffering reduced earning capacity or long-term change to their quality of life.

Experienced solicitors apply the pressure to break down the wall of silence and establish the truth about what has happened. Fixed fees may limit this investigative capability, putting the onus on the NHS to be more transparent.

If the NHS doesn't make this change, it could mean that fixed fees become a shield for negligent doctors and surgeons to hide behind, left to continue unchecked and potentially cause harm to more patients in the future.

However the introduction of fixed fees, if it forces changes in behaviour in the NHS to one of openness and transparency, also presents a huge opportunity to make a clean break from the past and create a system that is both fairer and faster, helping those who have suffered injury to get the answers they seek and move on with their lives

Also, the new system must place an obligation for fair play on both sides, with penalties for NHS Trusts that deliberately hide or obscure examples of negligence.

In such an atmosphere of openness it may even be possible to innovate with cheaper ways of managing claims - for example, for both sides to share a single, independent expert witness, bringing down the costs of claims dramatically.

The consultation process for the fixed fees regime is expected to begin in February of this year. Anyone who cares about the future of the NHS and the quality of care it provides, will push for a system that helps to protect patients, not negligent doctors in a fast, fair way.