Ombudsman Rob Behrens was investigating complaints about NHS care when he was contacted by the doctors to say they did not feel they could talk about serious failings at their hospitals. Mr Behrens had already highlighted that certain trusts are covering up serious mistakes in patient care and refusing to discuss them with families involved.
The Ombudsman is responsible for investigating complaints about treatment by the NHS and other government departments, but can only investigate if that complaint comes via an MP.
Mr Behrens said that he had seen medical records being changed following a death and that a change in the law is needed to introduce a duty of candour to make the NHS accountable to patients.
However, there is already a statutory duty of candour in place in the NHS, which requires hospitals to explain to patients where they may have come to harm as a result of poor practice. I have nevertheless been involved in cases where obtaining records, which the hospital has a duty to disclose, has entailed hard fought litigation.
This led to evidence eventually being provided in one catastrophic birth injury case that proved that the records had been altered by two doctors, after the events in question. This was an attempt to exonerate particular medical practitioners from blame.
Mr Behrens believes that the current culture is too defensive to put patient care first and that an overhaul of the system is needed. He added that the avoidable deaths of babies because of poor coordination, wrong diagnosis or parents who were not listened to was the most shocking.
"Too many leaders are interested in preserving the reputation of their organisation, rather than listening to citizens who have legitimate complaints to make," he said.
"There is a deep reluctance to explain and give an account of what you do in the health service or the public service for fear of retribution."
Mr Behrens said that several doctors in Birmingham had told him they were "disenfranchised, because if we put our money on the table we're going to be disciplined by the system".
He called on the government to change the law to allow individual complaints to the ombudsman without the need to go through an MP and the power to widen investigations. He added he did not want his comments to be seen as an attack on public sector workers but as a call to change the system with a new duty of candour.
"It's not about blaming serious public servants for what they do on a daily basis, it's about transforming a system by changing the rules to encourage different behaviour," Mr Behrens said.
In my experience in running clinical negligence claim cases, education to doctors and trust officials about the current statutory duty of candour already in place is of paramount importance. Sanctions should ensure that practitioners are punished for not complying with the duty of candour, rather than the opposite as Mr Behrens believes is the case.
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