4 March 2013 | By Joanne Harris
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11 October 2013
The Mid Staffordshire Inquiry’s call for a duty of candour will have far-reaching effects on the NHS and clinical negligence - if it is ever implemented
The recently published report by 3 Serjeant’s Inn’s Robert Francis QC into failings at the Mid Staffordshire NHS Foundation Trust that caused the “appalling suffering of many patients” was both eagerly awaited and warmly received.
The public inquiry followed a private inquiry and a number of claims brought by patients and the families of patients who experienced unacceptable levels of care - in some cases fatally so - at Mid Staffordshire hospitals.
Francis’s report lays out 290 recommendations that essentially call for a significant cultural change in the NHS. But for these to have any impact in improving care given to patients at state hospitals and cutting the number of professional negligence claims brought against healthcare professionals, they need to be implemented.
Private and public
The first, private inquiry into Mid Staffordshire reported in 2010. Francis was appointed to chair the inquiry following a Healthcare Commission report into failings at the trust. His findings prompted a full public inquiry under the Inquiries Act 2005.
Eversheds partner Peter Watkin Jones was appointed as solicitor to the inquiry, following a tender. Along with 30 other lawyers from the firm, Watkin Jones trawled through more than a million sheets of paper and interviewed hundreds of witnesses to produce evidence for Francis to consider.
Watkin Jones says the key thing for an inquiry solicitor to remember is that unlike litigation, which is adversarial, an inquiry is inquisitorial.
“I don’t go in assuming I know everything, I want people to tell me,” he explains.
The inquiry team started with patients of Mid Staffordshire and their families before moving up the chain of command to local GPs, the trust itself, the regional strategic health authority, primary care trust and finally to the Department of Health.
“It builds up as you go along,” says Watkin Jones of the evidence-gathering process. “It’s a specialist skill and it does involve listening rather than accusing. Everybody has a story to tell.”
Francis and his team uncovered horrifying tales of neglect on the Mid Staffordshire wards and a culture that failed to recognise and deal with problems and complaints. His recommendations centre on the need to change the culture both at Mid Staffordshire and, more widely, in the NHS.
“The underpinning recommendation Robert Francis has come out with is that there must be openness in the system from top to bottom,” explains Watkin Jones. “A trust that’s harming its patients has a duty to say so.”
The report’s key recommendation, which has been warmly welcomed by lawyers in the clinical negligence sector, is for a “duty of candour”. Francis says this means that “any patient harmed by the provision of a healthcare service is informed of the fact and an appropriate remedy is offered, regardless of whether a complaint has been made or a question asked about it”.
He recommends revising the NHS Constitution to include the duty, removing gagging clauses from employment contracts so those exercising the duty of candour need not fear losing their job, and making the duty of candour a statutory obligation on healthcare providers and registered medical practitioners and nurses.
Francis also recommends making it a criminal offence to obstruct the duty of candour or provide information to a patient or family member intending to mislead them about an incident.
Mandy Luckman, an Irwin Mitchell partner who has represented patients and families in litigation against the Mid Staffordshire trust, says the duty of candour element of the recommendations is “incredibly important”.
“It’s something we’ve campaigned for for a number of years,” she adds. “If there are individuals who have concerns about what’s happening they should have the option of reporting these without fearing for their career.”
Others agree. Lawyers practising in the clinical negligence field say their clients generally come not in search of compensation - although in certain cases, such as when a long-term disability is involved, this can be the case - but of answers, or because they want to try to stop what happened to them happening to someone else.
“A lot of clients approach us as a last resort,” says Luckman. “They don’t really want to complain. The motivation is to get an explanation, an admission and an apology.”
“Most claimants come to us with a heavy heart,” agrees Kate Rohde, head of Kingsley Napley’s clinical negligence team. “What Francis is doing is joining up the dots. [The duty of candour] may reduce the number of people who want to bring claims because they feel they have their questions answered.
“It’s not a panacea, but it would mark the start of a culture change that would be helpful.”
Rohde also points out that getting an admission that something has gone wrong in a patient’s care early in the investigative process leading up to a potential claim could cut costs and effort.
“Often, claims are fought by the NHS when they shouldn’t be,” adds Field Fisher Waterhouse head of medical negligence Paul McNeil. “This leads not only to a delay in justice but also a massive increase in legal costs.”
Anthony Collins clinical negligence head Tony Hall is also optimistic about the impact of introducing a duty of candour.
“Hopefully, the duty of candour won’t only apply to doctor-patient consultations but also in terms of making prompt admissions in claims for compensation that would minimise the costs ultimately incurred,” he says.
However, a real culture change is required to make any impact in this regard when it comes to patient care and the amount of clinical negligence litigation in the system.
“If you’re going to change a culture you don’t just wish and hope for the best,” says Watkin Jones. “It must be that everybody in the system is trained in it and has to buy in. That’s a fundamental shift in emphasis for the NHS and that’s what people are beginning to realise coming out of this report.”
McNeil says the NHS culture has been changing in the past few years, but not fast enough.
“I’m afraid it’s far from the case at the moment that hospitals tell patients where things have gone wrong,” he says. “In the healthcare service you can’t cover up mistakes because you’ve got to be honest with patients. If you ask me if things are any different from when I started out doing clinical negligence claims then yes, there’s been a massive change - there’s much more openness, but we’re not there yet.”
Hall argues that other changes need to be made as well.
“Hopefully, the Mid Staffordshire inquiry has made the Government sit up and take notice that there does need to be an appropriate level of staffing on wards,” he says. “If you’ve got appropriately trained staff on the wards rather than doing [non-clinical work such as] management reports then you’re going to save money in many ways. The easiest way to cut clinical negligence claims is to cut out clinical negligence.”
The effect of the inquiry cannot be underestimated, say lawyers. Rohde says the exposure of the deep failings at Mid Staffordshire shows that talk of a “compensation culture” has been exaggerated, although Hall does say it might also encourage some to bring a claim against the trust.
“The fact that Mid Staffs has been so high-profile has encouraged a number of claimants to come out into the open,” he says.
Whether or not the inquiry reduces clinical negligence claims is yet to be seen. In the meantime, lawyers feel the time and expense has been worthwhile, and the profile of Mid Staffordshire could be a key factor in ensuring that lessons really are learned.
“Inquiries are extremely expensive but without this one the patients at the hospital would never have seen the light uncovered,” says McNeil. “They are a blunt weapon to find out what happened and correct mistakes hospitals have made.”
Luckman feels the inquiry provided answers that patients and families were looking for.
“It was thorough and extremely detailed,” she says. “Francis gave serious consideration to the concerns the families expressed.”
Watkin Jones, meanwhile, says the important thing is to implement Francis’s recommendations as fully as possible. He points to some past public inquiries into cases of negligence in hospitals, such as the Kennedy Inquiry into paediatric deaths at Bristol Royal Infirmary’s cardiology unit, as examples of situations where lessons have not been learned.
“It would be a tragedy if Mid Staffordshire goes the same way as Bristol, where some things happened but not enough,” Watkin Jones says. “There needs to be wholesale reform to avoid that happening again. The impact will depend on the reaction from government.
“There’s a groundswell of public opinion that now is the time to grasp the nettle, and that Francis has shown the way,” he concludes.
The inquiry team
Robert Francis QC
Francis, a tenant at 3 Serjeant’s Inn, was appointed to chair the first inquiry into Mid Staffordshire before being chosen to lead the public inquiry.
He previously appeared as counsel involved in the Bristol Royal Infirmary Inquiry, the Royal Liverpool Children’s Inquiry and the Neale Inquiry, and has a raft of big clinical negligence and medical treatment cases on his CV.
Tom Kark QC
Kark was selected as counsel to the inquiry, leading a team of three juniors. Francis praised the work of the QEB Hollis Whiteman silk in his report, saying Kark and his team “performed with great distinction” the work of analysing and presenting evidence.
Kark’s practice includes regulatory, fraud and crime work as well as public inquiries and General Medical Council cases.
Peter Watkin Jones
Eversheds partner Watkin Jones was solicitor to the inquiry. Mid Staffordshire is the latest in a string of inquiries he has been involved in, with notable cases including the seven-year long Bloody Sunday Inquiry and the Shipman Inquiry.