Nicholas Braslavsky QC
Personal Injury/Clinical Negligence Special Report: Health Checks
18 May 2009
Will justice ever be seen to be done when a profession regulates itself? Nicholas Braslavsky QC of Kings Chambers says it’s time for the independent regulation of healthcare professionals
Most of our experiences of our National Health Service are positive. More often than not, we praise the tireless efforts of healthcare professionals. We respect our doctors; we admire our nurses. But from time to time we hear or gain personal experiences of avoidable error on an individual or even a national scale.
The Stafford Hospital revelations are still fresh in the mind. Those involved or their families are entitled to know exactly what happened. There is a public and private interest in identifying those responsible, in understanding exactly what went wrong and in taking such steps to minimise the potential for repetition. Most of those involved will want an investigation into what happened, an explanation of what went wrong and, above all, an apology.
These ambitions are frequently held by those who feel they have been ‘victims’ of the healthcare system. There are currently three potential routes of investigation and redress: a complaint to the relevant trust or health authority which will generate an internal inquiry; a complaint to the General Medical Council; or the prosecution of a civil claim for compensation.
In practice, many individuals become locked into the latter route, which is likely to achieve few or none of the ambitions they hold. Strong cases in which negligence and causation will be made out are likely to be compromised without an admission of liability. Otherwise, the process is lengthy and draining. Ultimately, findings of fact are about what probably occurred rather than about the ‘truth’ of what happened.
Judgments occasionally make reference to wider issues surrounding avoidability, but the courts are particularly reluctant to be drawn into resource-based arguments. All this is understandable. The civil courts provide a particular form of redress governed by substantive and procedural law. In the Civil Procedure Rules era, the process is arguably faster and more effective, but it is not designed for any separate or allied agenda.
There is an ever-increasing series of expectations surrounding healthcare services. There are legitimate concerns about patient safety and institutional standards. We are informed of our rights as patients; we must give informed consent; we are entitled to know everything.
The corollary is that there is a greater appetite for scrutiny and review of both individual and collective responsibility. We believe something went wrong; we demand an inquiry; we seek answers and an apology; we need ‘closure’.
However, there is insufficient public awareness of and confidence in internal hospital complaints procedures to provide effective and comprehensive resolution, particularly in detailed and complex matters. These procedures have neither sufficient resource nor the benefits of independence. There are serious disadvantages in the public seeing the healthcare system governing itself. Nor do healthcare professionals enjoy carrying out their own work under what they often see as the ill-informed supervision of their administrators, or worse still the over-zealous whistle-blowing of their managers.
Hospital trusts and health authorities need to gain the confidence of their own staff, while investigating and reaching a fair, reasonable, measured and swift resolution of every complaint.
The GMC is apparently consulting with a view to amending its misconduct process to weed out ‘frivolous and vexatious’ complaints (see box). There is presumably a belief that the frivolous and vexatious is currently investigated with an unwarranted rigour and determination.
There is undoubtedly an increasing disquiet with self-regulation, with the processing and results of GMC complaints becoming the focus of increasing professional and media criticism.
Medical practitioners appear to fear but not respect the process. The investigations are viewed as costly, lengthy and cumbersome. Above all, the lack of independent regulation is a huge barrier to public and professional confidence in efficient and effective regulation. Even after the post-Shipman shakeup in the wake of Dame Janet Smith’s report, there are grave doubts surrounding doctors regulating themselves.
One might reasonably ask why, if there is sufficient confidence in GMC procedures, there is a need for a supervisory body - the Council for Healthcare Regulatory Excellence? This body oversees and, where necessary, challenges the findings of the GMC committees.
Ultimately, the path towards quick, efficient and fair resolution of complaints is littered with unnecessary hazards. There needs to be universal confidence in any system of regulation. Doctors need to be as confident of protection as complainants are of an appropriate investigation.
For now, the inevitable corollary of self regulation is the perception that dismissal of a complaint is the natural and probable consequence of self-protection.
If a complaint is made out, it will often be branded a witch hunt by the regulated. How, then, might a process of inquiry and disciplinary regulation enjoy the confidence and respect of the complainant and the complained about? The answer, I suspect, may well suggest itself.
When internal complaints go wrong
The internal complaints system is being undermined by an increasing public awareness of cases such as Dr D, which involved a village GP whose career was effectively wrecked by the maladministration of a futile complaint surrounding a short reprimand by the GP to a patient who had been rude to a nurse.
10-month inquiry followed. Seven years - and a mental breakdown on the part of the GP - later, the Health Ombudsman found that the GP had been the victim of ”significant injustice” perpetrated by the two primary care trusts that dealt with the complaint.
Dr Nicholas Braslavsky is a QC at Kings Chambers