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Is the answer to abject failure of medical regulation yet more regulation?


There are parallels with the discussion of whether the financial sector was too lightly regulated in the events in the global financial crash. This also happened under Labour’s watch. And Labour got a fair bit of blame for that, despite the Conservatives appearer to wish the regulation in that sector to be even “lighter”. Despite uncertainties about the number of people who actually died at Mid Staffs, for statistical reasons, there is a consensus there are clear examples of care which fell below the standard of the duty-of-care. Such breach caused damage, within an accept time period of remoteness, causing different forms of damage. The problem in this chain of the tort of regulation is that there appears to have been little in the way of damages. It is clear that the regulatory bodies have found it difficult to process their cases in a timely fashion in such a way that even some members of the medical profession and the public have found distressing and unproductive. The medical regulators are, however, fiercely concerned about their reputation, which is why any rumour that you have beeen involved in a cover up, ahead of patient safety, is potentially deadly.

There is a mild sense of panic amongst government ranks, with the introduction of a ‘Chief Inspector of Hospitals’, conducting OFSTED type assessments, and a “legal duty of candour”. It is proposed that this new legal duty might apply to institutions rather than individuals, unless Don Berwick, currently running for Governor of Massachussetts, has any better ideas in the interim. Here is the first problem; the GMC and other clinical councils take a punitive retributive approach (if not restorative), rather than rehabilitative, and Sir Robert Francis QC has emphasised that this is a wider culture malaise where it is difficult to find ‘scapegoats’. Organisations such as Cure however point to the fact that nobody appears to have taken responsibility, and are reported to have a shortlist of people who they’d like to see be in the firing line over Mid Staffs. The GMC is not in the business of blaming organisations, only individuals. In fact, its code (GMC’s “Duty of a Doctor”) is set up so that Doctors can report other Doctors to the GMC, and even report Managers to the GMC.

There is a possibility that NHS managers are not even aware of the professional code of the Doctors who comprise a key part of the workforce, but paragraph 56 of the GMC’s “Duties of a Doctor” is pivotal in demanding Doctors see their patients on the basis of clinical need. This is this clause which provides the tension with the A&E “four hour wait target”, but it is perhaps rather too late for medics to flex their professional muscles over this years after its introduction.

56. You must give priority to patients on the basis of their clinical need if these decisions are within your power. If inadequate resources, policies or systems prevent you from doing this, and patient safety, dignity or comfort may be seriously compromised, you must follow the guidance in paragraph 25b.

Paragraph 25b provides the trigger where Doctors have a duty in their Code to let their NHS manager know:

25. You must take prompt action if you think that patient safety, dignity or comfort is or may be seriously compromised. (b) If patients are at risk because of inadequate premises, equipment*or other resources, policies or systems, you should put the matter right if that is possible. You must raise your concern in line with our guidance11 and your workplace policy. You should also make a record of the steps you have taken.

And indeed following the legal trail, according to the CPS, a person holding “public office” can have committed the offence of “misconduct in a public office” if he or she does not act on such concerns, according to current guidance:

Misconduct in public office is an offence at common law triable only on indictment. It carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office. The Court of Appeal has made it clear that the offence should be strictly confined. It can raise complex and sometimes sensitive issues. Prosecutors should therefore consider seeking the advice of the Principal Legal Advisor to resolve any uncertainty as to whether it would be appropriate to bring a prosecution for such an offence.

(current CPS guidance)

It is a legal point whether a NHS CEO meets the definition of a person holding “public office”. However, few will see little point in a Doctor, however Junior or Consultant, reporting a hospital manager to the GMC for lack of resources. The GMC indeed have a confidential helpline where Doctors can voice concerns about patient safety, even other colleagues, but this itself is fraught with practical considerations, such as when data are disclosed beyond confidentiality and consent, or a duty for the GMC not to encourage an avalanche of vexatious and time-consuming complaints either.

Indeed, the whole whistleblower affair has blown up because whistleblowers feel they have to make a disclosure for the purpose of patient safety in an unsupporting environment, often directly to the media, because nobody listens to them at best, or they get subject to detrimental behaviour (humiliation or bullying, for example) at worst. Clinical staff will not wish to get involved in lengthy GMC investigations about their hospital, and it would be interesting to see how many the actual number which have resulting in any form of sanction actually is. This is even amidst the backdrop that more than half of nurses believe their NHS ward or unit is dangerously understaffed, according to a recent survey, reported in February 2013. The Nursing Times conducted an online poll of nearly 600 of its readers on issues such as staffing, patient safety and NHS culture. Three-quarters had witnessed what they considered “poor” care over the past 12 months, the survey found. Understaffing in clinical wards has been identified as a cause of nurses working at a pace beyond what they are comfortable with, and the subsequent effects on patient safety are succinctly explained by Jenni Middleton (@NursingTimesEd) and colleagues in their video for the “Nursing Times Speak Out Safely” campaign.

In the same way, the cure for recession may not be more spending (this is a moot point), the answer to a failure of medical regulation may not be yet further regulation. The temptation is to add an extra layer of regulation, such as an OFHOSP body which goes round investigating hospitals, but we have already introduced a ‘Chief Inspector of Hospitals’. At worst, further regulation encourages a culture of intimidation and secrecy, and Prof Clare Gerada clearly does not believe the NHS being caught up in yet further regulation is practicable or advisable:

Clare Gerada

And yet most would agree, following Mid Staffs and the revelations over CQC at the weekend that ‘doing nothing is NOT an option’ (while conceding that a “moral panic” response cannot be appropriate either.) The fundamental problem is that this policy gives all the impression of being designed in response to a crisis, how acute medics work in ‘firefighting’. Likening patient safety to the economy, it might be more fruitful to focus attentions to the other end of the system. This is the patient safety equivalent of turning attention from redistributive (or even punitive) taxation to predistribution measures such as the living wage. Some advocates call for a greater emphasis on compassion, and reducing the number of admissions seen in the Medical Admissions Unit or A&E, but in a sense we are coming full-circle again in the underlying argument of an under-resourced ward being an unsafe one. Transplant on this a political mantra that the main parties have had divergent views about whether NHS spending is adequate now or has been adequate before, in apparent contradiction to the nearly £3bn savings which were not ploughed back into patient care. or the £2bn suddenly found for the complex implementation of the Health and Social Care Act (2012). The existing regulatory mechanism for complaints to be made about under-resourcing affecting patient safety is there, but the intensity of the incentive for professionals using this mechanism appears to be low. Professionals will argue that they have a professional duty to maintain patient safety regardless of yet further regulation, but professionals have reported the mission creep of deprofessionalism in the NHS for some time now. Here, the medical professions have a mechanism of holding the NHS to account, and, if adverse reports were investigated quickly and acted upon, it is possible that NHS CEOs are not overly rewarded for failure. But if this mechanism is considered unfeasible, along with a “new improved” performance management system incentivising somehow ‘whistleblowing’, it’s back to the drawing board yet again.

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