Trouble at the end of the line

If better end-of-life care depends on more funding, expect only a higher number of claims against the NHS

Helen Goatley

The controversial Liverpool Care Pathway (LCP) is likely to be phased out following an independent review chaired by Baroness Neuberger, published on 15 July.

Developed in the 1990s the LCP was intended to bring the hospice model of end-of-life care into hospitals, enabling people to have a dignified death. The pathway was well-intentioned and works well when managed by a senior and experienced doctor in full consultation with the family of the dying person.

However, the LCP came in for criticism, particularly last year when it came to light that many hospitals were being given financial incentives to put people on the pathway. There was a growing number of complaints from families about standards of care on the LCP which, it appears, had increasingly been implemented by junior personnel without the knowledge of, let alone input from, relatives.

You can never get away with a tick-box system when caring for human beings. It is all very well having guidelines but you have to tailor them to individuals. Every good doctor and nurse knows that.

The review recommends the replacement of the LCP with a more bespoke end-of-life care plan tailored to the patient’s emotional, social and spiritual needs as well as their physical comfort.

I doubt anybody would find the report’s recommendations controversial, and, if implemented, they will substantially improve the quality of palliative care at the end of life.

The trouble is that the report calls on the Government to “inject considerable funding” to ensure tick-box exercises are confined to the waste paper basket. Will this be made available against the background of the deficit reduction programme, hospitals in special measures and all the other issues facing a crisis-stricken NHS? I doubt it.

It is widely known that the first articles of the Human Rights Act provide that no one shall be deprived of life intentionally and that no one shall be subjected to torture or to inhuman or degrading treatment by the state. Unless the LCP is replaced with something that works better, the UK, via the NHS, is in danger of being in breach.

Will this lead to more actions against the NHS? There is a lot of negative press about the NHS at the moment. And following the Jackson reforms there are many law firms who, seeing less profit in whiplash claims, have set out their stalls to provide clinical negligence services and are seeking clients.

Claims arising from a failure of end-of-life care are not going to attract large awards and it is questionable whether non-specialist lawyers will be successful in such claims. But there is scope for plenty of trouble to be made for the NHS now that unsuccessful claimants will not have to pay the legal costs of their successful opponents.

My hope, for the sake of us all, is that the funds are found from somewhere to back up Baroness Neuberger’s recommendations with solid action. But I predict the LCP will be replaced with good intentions and no budget to make them work. The baby will have been thrown out with the bathwater
yet again.