In this gloomy world for socialists and the ‘reforms’ of the NHS led by the market (or, rather, McKinsey’s), there was much to welcome in the report by Don Berwick into patient safety and lessons from Mid Staffs. The beauty of the Berwick report was it attempted to take a measured, proportionate response, but Berwick advised in a subsequent interview with Victoria Derbyshire on #BBCNewsnight that it was not a time to be “fuelled up by anger, remorse or hatred about what happened”. There are people who are truly hurt by their experiences at Mid Staffs, and their pain will never go away, but at some stage the Kubler-Ross grieving process will have to progress from anger to acceptance in its natural time-course . It is not as if Mid Staffs ‘never happened’, but the Berwick report places Mid Staffs into a context which makes general, almost quite philosophical, conclusions about what happened, and, more importantly, how one might progress.

The starting point is that Don Berwick has not been drafted in as a Republican to spit bullets at ‘our National Health Service’ as the Medical Director, Sir Bruce Keogh, is fond of saying. In an almost trance-like state, Berwick was saying the NHS deserves to be the ‘best system in the world for patient safety’, and as a country we should rather pat ourselves on the back for a ‘comprehensive, equitable, free-at-the-point-of-use’ system almost spoken like a true socialist. These are, after all, words you only hear from mostly neoliberal politicians here in this jurisdiction through gritted teeth, while policy is geared up for back-door rationing of care in all of its market-led fairly subtle guises.

Berwick’s philosophy poses problems for those experienced in medicine and management. He seems to advocate a ‘learning from mistakes’ culture while promoting ‘zero fault’. Yet elsewhere in the document he does talk about patient safety in terms of realistic risk mitigation. Berwick also talks about ‘wilful neglect’, and appears to offer criminal sanctions in the most extreme cases of misconduct rather than incompetence. This is not so for the lay person to understand, unless you understand two things.

Firstly, it is very hard to take a prosecution for ‘wilful neglect’ under section 44 of the Mental Capacity Act against managers, quite distal in the ‘chain of command’, compared to individuals who provide frontline care. The implementation of ‘wilful neglect’ in practice is complicated further by the capacity issues of elderly patients; physicians will be guided by their own professional guidelines on the withdrawal of food and nutrition in palliative care, but will not wish to be at risk of committing a criminal offence under the new proposals. Berwick indeed refers to ‘criminal’ and other ‘legal sanctions’, meaning it is uncertain whether Berwick, who is not a lawyer, is contemplating a civil (on the balance of probabilities) or criminal (beyond reasonable doubt) burden of proof.

Secondly, it could be that Don Berwick has really at the back of his mind ‘wilful blindness’, a concept popularised by Margaret Heffernan in relation to senior people in management turning a blind eye to misfeasance lower down in the organisation. Extreme misconduct was a feature of senior mangers in ENRON, and, in the end, the US had to legislate the Sarbanes-Oxley Act, to counter this toxic culture. Berwick is able to complete his analysis by indicating where this toxic culture has come from. Berwick clearly posits it is some managers who have ‘gamed the system’, working with national politicians who have not given frontline staff adequate resources. He feels that frontline clinical staff have ‘copped the blame’ for this, and they should in future not be frightened to speak out if they feel they have been given inadequate tools to do the job in hand.

An issue at the forefront of Berwick’s mind is not adding to the overwhelming bureaucratic and legal demands of the NHS. He feels the regulatory system is overly complex anyway, and clearly alludes to the potential that, with the regulatory bodies having duplication of duties, there could be a lot of ‘buck passing’ going on. This has been a problem with clinical staff whistleblowing about inadequate resources, or indeed a ‘duty of candour’, which theoretically are already part of the code of conduct of professional bodies. A clear solution to this would be to encourage sharing of information between the regulators, and Berwick sensibly proposes this. One does wonder though whether his idea of a ‘superregulator’, as also proposed for the legal services sector, has ‘any legs’. Berwick completes his analysis that people have been much more concerned about impressing the regulators and politicians, than the main focus: they should be more concerned about patient safety, then delivering shoddy care through depleted, exhausted frontline clinicians on the cheap, but which is personally very rewarding for them.

Berwick’s overall solution actually could have been suggested in the US jurisdiction, and indeed there is a lot of evidence both here and in the US to support it. That is, to listen to patients first, and to be open about a NHS driven by a real culture of organisational learning. How we get from what we have now to this Brave New Berwick world, requires us to do textbook change management, e.g. “unfreeze”, “change”, “freeze” as described originally by Kurt Lewin, and later elaborated on by Kotler and others. This is possible if done properly, but given the cack-handed way in which the entire NHS reforms were implemented, this could go dreadfully wrong. Whilst the headline media accounts emphasised that “Berwick does not call for a minimum staffing level”, Berwick clearly sees a link between safe staffing and patient safety, which in all fairness is impossible to deny.

The “Brave New Berwick World” is surprisingly apolitical, but it does put the patient and the frontline staff first. It will be ultimately for those in the legal and medical professions, their regulators, and management as a professional body, to work out their responses. Berwick has often highlighted the ‘waste and inefficiency’ of the US system, which is ironically exactly where we are heading with our newly outsourced, marketised and privatised NHS.  Berwick, despite media taunting, has tried not to state the size of the NHS as a weakness, in that he feels that one of the beauties of the NHS is that if a part of the NHS runs into problems it can call on the skill and expertise of another part.

The philosophical difficulty that Berwick will have, in giving some prominence to organisational learning, will be fully to embrace the heterogeneity of the NHS. The ‘zero fault’ methodology in patient safety was first popularised in anaesthetics, parking aside its history in the aviation industry. It may therefore be harder to apply in areas of general medicine where risk is a more pervasive theme such as oncology. All anti-cancer drugs have risks, for example, and not treating cancer (whatever type) has a risk of its own. Secondly, ‘learning from mistakes’ means one thing to experts in patient safety, but means something totally different in other areas of NHS management, such as innovation. The NHS has even toyed with rewarding managers who make mistakes in innovation to reward the process of experimenting.

But Berwick should be congratulated in introducing us to his “Brave New Berwick World“. Whilst it may have left scalp-hunters somewhat disappointed, there is a lot of substance in this very brief report that can be constructively discussed.