A culture where staff and patients can speak openly about successes and failures in the NHS, as well as more specifically on safe staffing issues, is essential for the NHS to move forward. Perhaps most intriguingly, the failure of the English law to cherish the need to ‘speak out safely’ in the NHS can be tracked back to four Acts of parliament ranging in the last thirty years uptil the present day.

The focus recently has tended to be about whether things would or would not work, and have either been economic or regulatory in perspective.

The Health and Social Care Act (2012), all 493 pages of it, is fundamentally a statutory instrument which proposes the mechanism for competitive tendering in the NHS (through the now infamous section 75), the financial failure regimes, and the regulatory mechanisms to oversee an emboldened market. It is therefore a gift for the corporate lawyers. It does, though, successfully mandate in law the abolition of the National Patient Safety Agency in s. 281.

There is therefore not a single clause on patient safety in this voluminous document. Patients, and the workforce of the NHS, are however at the heart of the NHS.

The language has been overridden by economic concepts misapplied. “Sustainability” is a very good example. Too often, sustainability has been used as a synonym for ‘maintained’, usually as a precursor for an argument about shutting down NHS services. It quite clearly from the management literature means a future plan of an entity with due regard to its whole environment.

Discussion about regulators can lead to a paralysis of policy.

No sanctions against Doctors have yet been made by the GMC over Mid Staffs, which does rather appear to be a curious paradox given the widespread admissions of  undeniably ‘substandard care’. The regulator needs to have the confidence of the public too. One of their rôles is commonly cited to be to ‘protect the public‘, and this is indeed enshrined in law under s.1(1A) Medical Act (1983).

It is of regulatory interest how precisely the GMC ‘protected the public’ over Mid Staffs, whatever the operational justifications of their legal processes in this particular case.

Strictly speaking, promoting the safety of the public might include promoting the ability of clinical staff ‘to speak out safely’, and this could be an important manifestation of a core legal objective of that particular regulator?

On the other hand, confidence in the regulator is never achieved by any regulator on the basis of conducting “show trials“. This can be always be a big danger, as GMC cases on occasions attract wider general media interest. This will, of course, be to the detriment of defendants with complicated mental health issues.

There is little fundamental dispute about the need for clinicians to be open about medical errors in their line of work. Even the Compensation Act (2006), if you need to cite the law, provides that an apology does not mean an admission of liability in section 2.

There can be disputes about upon whom the ‘duty of candour’ should fall, whether this might be the Trust or an individual clinician, and who is going to enforce it.

But just because there are legal issues about the practicality of it, a civilised society must use the law to reflect the society it wishes for.

There is currently, for example, a statutory duty for company directors to maximise shareholder dividend of a company with due regard to the environment (as per s.172 Companies Act (2006)). There is no corresponding duty for hospitals to minimise morbidity or mortality on their watch.

“Whistleblowers” are often accused of raising their complaints too late.

Whistleblowers can find themselves becoming alien for NHS organisations they are devoted to.

Often, there is a ‘clipboard mentality’ where ‘colleagues’ will raise issues to discredit the whistleblowers. Often these ‘colleagues’ are protecting their own back. Regulators should not collude in such initiatives.

And yet it is clear that the Public Interest Disclosure Act 1998 fails both patients and whistleblowers.

There are ways to bring about change. Most often regulation is not in fact the answer.

A cultural change is definitely needed, and this appears to go beyond corrective mechanisms through English jurisprudence.

This in the alternative requires staff and patients from within the NHS prioritising speaking out safely.

The information which can be provided by ‘speaking out safely’ should be treated like gold dust – and be used for improvement for patient safety in the NHS, as well as in the performance management of all clinicians involved.

Arguably the precise information is much more useful than an estimate such as the ‘hospital standardised mortality ratio’ which does not operate on a case-by-case basis anyway.

A new-found desire to speak openly might also include a wider policy discussion about safe staffing levels. Regulating a minimum staffing level might shut down important debates about ‘what is safe’, such as the skill mix etc. And yet there are equally important issues about how to prioritise this in the law.

The hypothesis that unsafe staffing levels or poor resources generally lead to poor patient safety in some foci of the NHS has not been rejected yet. It’s essential that managers allow staff to be listened to, if they have genuine concerns. Not everything is vexatious.

Most of all, society has to be seen to reward those people who have been strong in putting the patient first.

Small steps such as Trusts in England supporting the Nursing Times’ “Speak Out Safely” campaign are important.

Critically, such support is vital, whatever political ideology you hail from.

It could well be that the parliamentary draftsmen produce a disruptive innovation in jurisprudence, such that speaking out safely is correctly valued in the English law, and thenceforth in the behaviour of the NHS.

Hopefully, an initial move with the recent drafting of a clause of the “legal duty of candour” in the Care Bill (2013) we will begin to see a fundamental change in approach at last.