Medical Negligence specialist comments on The Francis and Mellor Reviews
The Freedom to Speak Up Review was published this morning and makes for extremely worrying reading. At a time when we hear the NHS talk about being more open and transparent and about learning from patient experiences, it is simply not acceptable for NHS staff to feel scared to raise concerns or to be victimised if they speak up against the system.
Sir Robert Francis' review into creating an open and honest reporting culture in the NHS involved taking evidence from over 600 people and receiving further information from a further 1,900 people online. As he notes in his Executive Summary in explaining the reason for his review, "In many cases staff felt unable to speak up, or were not listed to when they did. The 2013 staff survey showed that only 72% of respondents were confident that it is safe to raise a concern. There are disturbing reports of what happens to those who do raise concerns. Yet failure to speak up can cost lives."
There was a hope that the review would find that the NHS had moved on and that such concerns no longer existed. On the basis of my experience of litigating with the NHS for over 10 years, I was less optimistic, but even so the report makes awful reading. The review found numerous examples of bad experiences. To again quote from the report "Many described a harrowing and isolating process with reprisals including counter allegations, disciplinary action and victimisation. Bullying and oppressive behaviour was mentioned frequently, both as a subject for concern and as a consequence of speaking up." I have no idea how the public are meant to have confidence in a body where its own staff are made to feel this way, indeed the report states "lack of transparency creates suspicion and mistrust", findings which ring true from the experiences of my clients.
From my, and my colleagues', own experiences of dealing with the NHS, the above findings are as expected. I say this as frequently clients will come to us and say that they are struggling to get any meaningful information from the hospital where they have been treated in spite of them raising valid complaints. Take for example the young mother whose child was born with cerebral palsy. She naturally had concerns about the birthing process and embarked on the complaints process with the relevant hospital. The hospital promised her a swift response and that they would conduct a full and thorough investigation into the treatment she received. When, some months later, after numerous delays, she received the response, it simply said that the treatment was reasonable and the outcome was unavoidable. Not satisfied that this was the case, she instructed me to pursue a claim, and a little over three years later liability was admitted, and the claim subsequently settled for in excess of £10,000,000. If NHS staff are worried about victimisation, disciplinary action and bullying as a result of speaking out, is it little wonder that this was the case? Until such time as NHS staff feel that they can speak freely about their concerns there is little hope for progress to be made.
Dame Julie Mellor's review into the NHS complaints scheme also makes damning criticisms of the NHS. In a review of 150 cases into allegations of avoidable harm or death, it found failings in how 61 complaints were handled.
Again, this comes as no surprise. I will frequently meet with clients who will tell me that the hospital refused to share the internal investigation report with them. When I eventually manage to obtain it, often having had to apply to the Court, incurring further fees which ultimately come out of taxpayers' pockets, the report makes damning criticisms of the care received, hence the refusal to share it with the client in the hope that they will simply go away. In other cases the reports will be incomplete and will frequently use language designed to discourage the injured party from taking legal action. Phrases such as "it is impossible to say if the outcome could have been avoided" are often used, and frequently signify that the hospital has either failed to investigate the case fully or does not want to share the full extent of its findings.
As Dame Julie has herself said "When the NHS makes a mistake their duty is to investigate - these investigations shouldn't be about attributing blame but should find out what happened and why in order to prevent the same mistakes from happening again. Our evidence too often shows this is not the case."
Finally, to quote from the Department of Health itself, "We've set out the ambition to make the NHS the safest healthcare system in the world and we know that listening to patients and staff is absolutely vital to improving care." It is very much my hope that the combination of these two reports will act as a wakeup call to the NHS and that over the next few years we will move towards a more open and transparent healthcare system where staff concerns are taken seriously and where patient safety is once again the over-riding concern of those in the healthcare profession so that the NHS is indeed the safest healthcare system in the world.
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