Examination of witnesses (Questions 560
- 579)
THURSDAY 15 JULY 1999
THE RT
HON FRANK
DOBSON, a Member of the House,
Secretary of State for Health, was further examined, and PROFESSOR
LIAM DONALDSON,
Chief Medical Officer, Department of Health, was examined.
Mr Burns
560. Secretary of State, in the evidence that
your Department has supplied to this Committee in June of this
year, in paragraph 3 it defined an adverse clinical incident,
amongst other things, as where there has been an actual or potential
serious lapse in the standard of care provided to patients through
the performance of the Health Service and/or the healthcare professions
working within it. Most people would accept that the provision
of healthcare within our Prison Service is, compared to the healthcare
for the rest of the country, abysmal. I know that your Department
historically has strongly resisted paying for or taking over the
provision of healthcare in prisons, leaving that to the Prison
Service and the Home Office, so that there has been a tension
and a conflict between the Department of Health and the Home Office.
Given the definition in this memorandum to us, given what is going
on in prisons with the provision of healthcare, do you feel that
the healthcare provided in prisons falls way below the standards
and definitions outlined by your officials and would you, as Secretary
of State, be prepared to look at this again and consider taking
over the provision of healthcare within the Prison Service?
(Mr Dobson) The plain answer to your question at the
end is no. I have considered it with my officials and my ministerial
colleagues at the Home Office and we believe that, on balance,
the best thing to do is to leave the responsibilities as they
are, but improve the standard of healthcare that is provided within
the Prison Service because we think that that is the best way
to do it. If the Prison Service is going to be responsible for
everything else to do with people in prisons, we think that it
should be responsible also for their healthcare.
561. May I press you on that. Is the reason
that you, not necessarily the Home Secretary, I am sure not the
Home Secretary, but is the reason that you have said no because
of the costs involved in the Health Service and if the answer
to that question is partially or totally yes, is that actually
in the interests of the provision of healthcare to prisoners within
the Prison Service?
(Mr Dobson) I think the main reason is that I believe
that if someone is in prison, most of the non-adventitious causes
of their ill-health are likely to be the result of the circumstances
in which they are living in prison so that most of the things
that can be done to help them need to be done by the Prison Service
and I think, therefore, to separate it out and think that the
NHS could provide top-quality service while someone's treatment
in prison was harming their health, I do not think it would be
a sensible way of allocating responsibilities. That is my strongly-held
view and I stick to it.
562. Would you agree then that there is a significant
proportion of people serving prison sentences suffering from varying
degrees of mental health and it is quite clear to any outside
observer that they are not receiving the medical care and help
that they should be and they would be if they were not necessarily
in a prison and the system is severely failing them?
(Mr Dobson) Certainly it is the case, generally speaking,
not in every prison or every part of every prison, but in a large
number of prisons the prisoners are not getting the help, treatment
and care that would be appropriate to their condition, but that
seems to me to be a responsibility of the Prison Service to deliver
and certainly that applies to both physical and mental health.
One of the problems that the Prison Service faces is that there
are quite a number of people in prison who, but for the state
of their mental health, might not have got there in the first
place, but that is just how the situation is.
Chairman: Mr Burns, we are slightly off our
terms of reference here, and I do have a personal interest in
the areas you are pursuing with the Secretary of State, but we
do have a further session next week when perhaps these issues
could be explored in more detail.
Dr Stoate
563. Can I bring us back to complaints within
the NHS. When a complaint is received, the doctor or nurse involved
in the patient's care often takes it as either an indictment of
their own professional standards or, even worse, an allegation
of negligence. Do you see any way within the complaints procedure
in which we can separate the complaint itself from the culture
of feeling threatened by the complaint so that we actually get
a more rational approach to dealing with the problem?
(Mr Dobson) I am not sure that we can make any changes
to the procedure that would help very much, and I would be happy
to hear any suggestions along those lines. It seems to me, first
of all, that having tried to organise various things in my past
life and having worked for the Local Government Ombudsman, my
view on complaints has always been that the best place to start
if you have got a complaint is to complain to the person against
whom you are complaining, or, better still, to take up with the
person concerned some concerns you may have because it may not
even be a complaint at that stage. I think that that is the best
way to make a start, but it does have the problem that that can
very easily become confrontational and the person to whom you
are putting the point may become defensive, or offensive for that
matter, and if we can inculcate in people in the Health Service
a more open attitude, a less offended response, then I think that
would be to the benefit of everyone. There does seem to be very
considerable evidence even in cases which have been very serious
that had the initial response to a complaint been honest, open,
friendly and apologetic, the person making the complaint might
well have been satisfied and everybody would have lived more happily
ever after than happens because of the confrontation. However,
I have to say that I think one of the problems, and I do not know
whether the Chief Medical Officer shares this view or not because
he is not here just to say what I want him to say, but he is the
Government's Chief Medical Officer and he is entitled to say whatever
he thinks, but I think one of the problems is that with the growth
of litigation, if your insurance company from the point of view
of you driving a car warns you, "If you bump anyone, don't
acknowledge it was your fault in any way", which is, roughly
speaking, the world we live in, then quite a lot of clinicians
feel very reluctant for fear of litigation to acknowledge to the
person who is complaining what they would freely acknowledge to
a colleague.
564. That is precisely what I wanted to get
at because there seems to be in this inquiry the feeling that
when something has gone wrong, there is this culture of defensiveness
and then that obviously tends to shut people up because they do
not want to say anything which might incriminate them, and what
I wanted to get at is do you see any way that clinicians could
be persuaded that they actually ought to act as a partner within
the complaints procedure rather than as an adversary because,
exactly as you have said yourself, Secretary of State, if that
were the culture, an open culture of explanation, we may be able
to avoid a huge amount of further trouble and a lot of heartache
for the patients and indeed the clinicians?
(Mr Dobson) Well, certainly I would be very happy
if we could promote that culture and I think we are trying to,
but it constantly butts up against this problem of the growing
threat and burden of litigation. In the culture that we live in
now, the apparent concept is that if anything goes wrong, someone
must be to blame, and one of the things is that most of us sitting
around this room, with the exception of the two doctors on the
Committee of course, most of us have never been in a position
where if we got something right, somebody would live and if we
got something wrong, somebody would die, but that is the situation
which doctors and nurses and other professionals find themselves
in. They also find themselves in a position where they can do
something right and people still die and we have to have a situation
which recognises that.
Chairman
565. Do you want to come in?
(Professor Donaldson) If I could just comment briefly.
I would again just draw the distinction with the NHS complaints
procedure. I supervised that in my region for a number of years.
I think there is now far less defensiveness on the part of health
care professionals when they are complained about and that system
is supervised by an Ombudsman. So whilst I am not saying for a
minute that there are not problems with the system and we can
look at ways of improving it, I think the major problems lie in
the areas which are covered by other procedures or not covered
by procedures at all. So when defensiveness comes in I think it
is more likely to come in in a situation where a doctor or a nurse
is potentially subject to disciplinary action, it does not come
through the formal complaints procedure. When there is some incident
and it becomes public knowledge letters come in, the media make
enquiries, lawyers very quickly descend and the doctors are advised
by their defence unions that they may be subject to disciplinary
action and they should say as little as possible initially. I
think that is the sort of situation where there are problems of
that sort and that is why we are looking at the NHS procedures
to try and make them more flexible, broader and ideally so that
we can sometimes use educational solutions to dealing with poor
performance at an early stage before any harm has been done because
at the moment all we are seeing are problems that are presenting
at a late stage and disciplinary solutions being used. Finally,
I think on the proactive side of quality improvement where we
have got to is that the statutory duty of clinical governance,
if we want doctors and nurses to be open about their practice,
self-critical, look at where they may feel themselves that they
are not performing as well as they could, to admit those sorts
of weaknesses, then we must give them the opportunity to do that
in a culture which is as free of blame as possible for that sort
of proactive work, otherwise people are going to bury their mistakes
and in the long run quality will be driven underground.
Dr Stoate
566. Clearly, Secretary of State, there is a
problem sometimes around compensation. Do you see any way in which
the events procedure could be linked to compensation? Could I
ask your opinion on the no-fault compensation scheme, for example,
which might address some of these issues?
(Mr Dobson) I probably represent more lawyers than
any other Member of Parliament, but I have a very strong views
on their involvement in health care, which is basically their
proper place is on the operating table and certainly keeping doctors
and nurses out of court and lawyers out of hospitals seems to
me to be the best working principle. I am very concerned at the
huge rise in the number of cases and the huge rise in the cost
of litigation.In some cases it is obvious that lawyers are doing
nothing other than feathering their own nest because I think from
memory it is 83 per cent of medical negligence cases that are
actually decided by the court are lost. But in those 83 per cent
the lawyers presumably told the person complaining that they had
a good case otherwise they would not have pursued it. There are
100 definitions of no-fault compensation, but it seems to me we
have got to be prepared to consider other methods of compensating
people rather than in effect demanding that they go to court or
threaten to go to court before they can get any compensation and
I am prepared to look at that, particularly as with the increase
in litigation it may be that doing it the other way will ultimately
be cheaper. You could have argued two or three years ago with
the lower incidence of court cases, lower incidence of litigation,
that to have a scheme which offered compensation not quite automatically
but fairly easily to a broader group of people than were seeking
it through the courts would be more expensive, but if we are going
to get litigation soaring out of sight it may even be cheaper
to have some non-litigious form of compensation and I think we
will need to always bear that in mind. Then there is the other
consideration which is the damaging impact of relying on a litigation
route to compensate people because it is hugely expensive in terms
of expert witnesses and doctors who from everyone's point of view
would be better off treating patients, putting huge amounts of
efforts in to preparing their case for the plaintiff or the defendant
and all that sort of thing and that is not even allowing for what
it is said has developed in the United States, which is a process
of defensive medicine whereby people rather than contemplating
what would be best for Dr Stoate on the operating table would
look at what would look best in court and we have got to try and
avoid all those things. I think we have got to have open minds
about whether there is a better way and a more straightforward
way and a less confrontational way of resolving these things.
567. If we could just remove the costs of it,
although I entirely take your point on that. Do you think it would
engender a better culture within the Health Service if we could
remove the adversarial lawyer based system and replace it
(Mr Dobson) I have no doubt whatsoever about that.
Audrey Wise
568. Secretary of State, there are, are there
not, some instances where there is actually somebody who should
be blamed? So whilst it should not be a general pattern that the
first recourse is litigation or that recourse to litigation is
seen to be necessary at any stage, first, second or third, I take
it from your answers that you, nevertheless, do not want to say
that nobody should ever litigate in circumstances where they believe
there has been negligence?
(Mr Dobson) It would depend. We would have to have
in place a wholly satisfactory alternative mechanism before we
could talk about saying that people could not go to court, but
it would be possible to envisage a system in which people could
not resort to the courts and there was a mediation/arbitration
arrangement and if you wanted to use that then you could not resort
to the courts. One of the problems at the moment, it seems to
me, is this huge amount of investigatory time that is being put
in. You could easily have four investigations into one incident
-by the local management because there has been a complaint about
their outfit ,into a complaint from the person concerned or their
relative, you could have legal action which would involve investigation
and you could have an investigation by the General Medical Council
and the UKCC. Speaking off the top of my head, what I would like
to see is, if all these bodies have still got to be there looking
into things and there are certain functions that one or two of
them cannot carry out, they cannot do a comprehensive look at
it because the UKCC or GMC are looking at the professional aspects
of it, whether it would be possible to have what might be described
as a common investigation and then those who adjudicate it could
adjudicate on the basis of a common investigation. I believe in
some cases this is done with a post mortem, where somebody is
regarded as doing a neutral post mortem examination of a body
and then everybody accepts that as the facts. I do not know the
practicalities of it, but it would certainly save an awful lot
of time. It is not just the people complaining or the patient
who may get into litigation, it may be the clinician complained
against may get involved in litigation trying to stop the investigation
or, if the employer wants to get rid of them, threatening wrongful
dismissal action and then, in order to save money on that sort
of litigation, the employer may think, "Oh, well, we will
settle up with them and give them a golden handshake because that
way it will be cheaper and less of the NHS's precious money will
be going out of the patient care system and so on." Litigation
makes a mess of things in all directions.
(Professor Donaldson) I think the other downside of
litigation is that generally the opportunity to learn lessons
for improved quality is lost because the matter immediately becomes
sub judice, there is no systematic analysis and then the
case is settled out of court and forgotten about, so the opportunity
to use the incident or the adverse event to immediately bring
about improvements for future patients is not there.
569. I would not like it to be thought that
I am an advocate of litigation any more than you are, but it is
easy to slip from one side to the other, but either there is nobody
to blame or everybody is to blame and I am just concerned to explore
your views there.
(Mr Dobson) I think Professor Donaldson made a very
important point right at the start, which is that when there is
someone to blame it is not usually a unique fault on their behalf,
there is something wrong with the system as a whole, so there
are others partly responsible.
570. Of course. There should be fail-safe things
so that somebody's error is hopefully not a tragic error because
something else kicks in and the error is discovered before it
(Professor Donaldson) Or in one of the cases I can
think of but will not describe in detail, for example, somebody
has been appointed to a post that they should never have been
appointed to and then they go on to commit a serious error or
series of errors and that is a fault of the system which compromises
the standards of training and making appointments. It is not just
about the immediate events preceding an error, it is sometimes
a long time back and you can almost see in retrospect the disaster
having been created long ago.
571. What is your view about a situation where
if there is an out-of-court settlement a condition is imposed
that any complaint pending to the General Medical Council has
to be withdrawn? Do you think that that is a proper thing to impose
on people, especially in view of what you have just said about
learning from experience?
(Professor Donaldson) I am not sure technically that
a complaint can be withdrawn from the General Medical Council,
it may have been possible years ago, but once a concern about
the dangers of a doctor's practice has been flagged up with the
General Medical Council I am not sure that it would be right for
them to dispense with it in a legal negotiation. My general opinion
on the question you have asked is that I do not think it would
be right that just because somebody has received recompense that
patient may have felt that they have got justice, but not to put
in action to prevent a future patient from being harmed I think
would just not be right at all.
572. That is a very useful answer. Mr Dobson,
I was interested when you said that you wanted things taken up
whether complained about or not and you also talked about near
misses. I have become concerned in the course of this inquiry,
not really about near misses so much because we do not know about
the near misses as a Committee, but about situations where patients
finish up with an adverse outcome but they have no idea whether
they have cause for complaint or whether it is just a misfortune
or, indeed, whether it is an idiosyncrasy of their body. When
you talk about better mechanisms do I understand that one of the
things you would have in mind is the proper monitoring of complications
which arise both in general and in individual clinical practice?
We have seen an awful lot of women with slit bladders and perforated
bowels and you would not think that that was an expected complication
of gynaecological operations, but those women had no idea that
they had a cause for complaint. If somebody was monitoring how
many slit bladders and how many perforated bowels that seems to
me to be a way of preventing it going on because either there
is something wrong with the practice or the operation is inherently
dangerous and people should be warned before they give consent.
(Mr Dobson) It is the intention that placing a duty
of clinical governance on the board and chief executive of a trust
would ensure that they had in place machinery which was logging
the sort of serious incidents that you refer to. There are major
problems with this because sometimes people will complain about
something that has happened to them and they feel that they have
not been properly treated, but a study of that particular procedure
would show that a substantial proportion of people do suffer from
whatever it is they are suffering from at the end of the process
because it is one of the chances of having that sort of operation
and people's bodies do respond in different ways. The people at
Hope Hospital in Salford, with the trauma research there, still
did not, other than youth and fitness, the last time I talked
to them have much idea why, with an apparently similar traumatic
injury, some people live and entirely recover, others are crippled
for life and others die. So there are all these factors at work
in cutting people open.
(Professor Donaldson) If we look at what might be
expected in modern medical practice and perhaps forget about the
past, I think, first of all, that the patient should enter a procedure
having given informed consent and if it is an operation which
does carry naturally a substantial risk then they should be made
aware of that risk at the time that they give consent. Secondly,
under these new arrangements we should be able to monitor for
complications of surgery and if they seem to be particularly high
then investigate. Thirdly, if a doctor makes a serious error,
let us say, in a bowel surgery operation, then were he to cut
open the bladder and have to repair it during the course of surgery
I think good medical practice would mean that post-operatively
they should visit the patient at the bedside and tell them that
this complication had occurred, say that they regarded it as a
complication perhaps that could occur in that type of surgery,
but if the patient then wished to complain and did not accept
that they were unlucky and they happened to be in the small percentage
that would develop such a complication then I think they should
be entitled to complain and the complaints procedure, as you know,
includes an element of independent professional review, at the
end of which they would get a report which would place the incident
in context.
573. Do you think that people do get information
on which to base informed consent? What about the bit at the end
of the consent form that says "and anything else that you
want to do" when you sign?
(Professor Donaldson) If, for example, a man in his
sixties has had very serious heart disease and undertakes a heart
bypass operation, in my view a proper discussion before the patient
signed the consent form would be to talk about their risks of
survival, which hopefully would be quite high and to talk about
the risks that they might develop some serious post-operative
complication. I think in those sorts of circumstances then somebody
should be given the statistical information to the best of what
is available. If it is a minor operation to remove a big toe nail
where the complications would be of a tiny risk of a reaction,
of an anaesthetic death, apart from checking that somebody was
not allergic to things, then I think it probably would not be
necessary to go through the risks in quite such a thorough way.
Chairman
574. We met a number of women who had gynae
operations where things appeared to have gone quite badly wrong.
You mentioned, Secretary of State, your belief that as a process
people who were complaining perhaps ought to speak directly to
the doctors involved. I think one of the worries that I have got
is that, knowing many doctors and knowing many of my constituents,
they feel unable to speak to doctors, they talk a different language.
With the greatest respect to the two doctors here today, I think
that is a general issue, some people do not feel able to communicate
with the doctors and cannot understand what the doctors are saying
to them in return. The second area that was a worry in respect
of some of the cases that we looked at was the way in which people
who did go to make a complaint were told that in respect of their
particular case they perhaps needed to have psychiatric help.
This was a very real worry and I think this was very common among
the responses that we received and from our point of view raised
questions about whether it was appropriate to go directly to see
the clinician involved in those circumstances.
(Mr Dobson) My understanding is that quite a number
of hospitals have people who are designated to be in effect the
complaints officer or what have you and people can approach them
to approach officialdom or the doctor to try and get some sort
of response and there clearly are difficulties of the sort that
you referred to that have come up in the evidence the Committee
has taken. Nevertheless, I still feel that generally speaking
they either should go to the doctor who dealt with them or their
GP because they may be more familiar with their GP and find it
easier to talk to their GP and then get their GP to take the matter
up with the hospital doctor, all that sort of approach may help.
There is partly a horses for courses aspect to it.
Mr Gunnell
575. We saw a group of women who had complaints
and they had got together because they were patients of a doctor
who had been struck off. If the Department of Health actually
removes somebody or they are removed from the register as a result
of some court practice, would you under those circumstances actually
investigate or warn the patients of that doctor that there were
difficulties and, therefore, if they had complaints or if they
had complications they should report the matter? In this instance
it was a surgeon who had been removed and it was seen that that
put a particular responsibility on following up what had happened
to the patients in his care.
(Mr Dobson) I would certainly be prepared to consider
putting in place some arrangements which considered whether or
not to do that, supposing the GMC or the UKCC strikes somebody
off, then look at whether other patients ought to be warned or
counseled, but I do not think you should necessarily do it automatically
because it might be that the nature of the particular complaint
that led to them being struck off was not general and the last
thing I think anyone would want to do would be to suggest to someone
who had a successful operation that it might not have turned out
as well as they thought. I think that could make matters worse.
I certainly would be prepared to look at trying to put in place
the machinery to make sure that if someone was found guilty of
serious professional misconduct of a clinical nature then the
previously employing trust would consider whether other patients
needed to be warned or examined or whatever.
(Professor Donaldson) I would agree with the Secretary
of State. If the doctor is taken out of practice either by the
NHS or the GMC the proper course of action should be to set up
a help-line so that patients who have concerns can ring in and
be given information and have their cases assessed. What I think
I would have a concern about was any suspicion of allowing a doctor
to continue in practice where there were doubts about him or her
and warn patients that if they were treated by that doctor they
would be at a higher risk. I would not condone that. Our whole
problem at the moment with these sorts of cases is that we cannot
intervene to resolve the matter definitively quickly enough because
the GMC takes due course to have its deliberations and the NHS
disciplinary procedures are very legalistic and so people end
up in long impasses suspended without the patients concerned getting
the opportunity to see what the facts of the matter were and for
us to be able to resolve the question of whether the doctor is
safe to practice. These sorts of things are taking months and
sometimes years and a lot of public money is being spent in the
course of that and that is why we are trying to design some new
procedures which will be quicker and more effective and will resolve
these sorts of things in a way that has not been possible in the
past.
576. Amongst the things which you listed at
the start as your concerns you had said poor practitioner performance
was one of the concerns that you had. What arrangements would
you wish to put in place so that patients in a sense have greater
protection from poor practice by health professionals and how
would you propose what? What funding proposals would you have
that go with that in order to ensure that it can be done in as
economic a way as possible?
(Mr Dobson) We will be very shortly publishing a consultation
paper on how best to deal with poorly performing doctors and I
hope it will be fairly comprehensive, but as I have already said
to some representatives of the medical profession, I am sure it
will not be the end of the story and even the Chief Medical Officer
does not have a monopoly of wisdom in this sphere and so we would
expect that people would put forward other proposals either to
modify what we are suggesting or put forward additional proposals
that everyone will agree turn out to be more useful. We are determined
to change the present arrangements because they are just unsatisfactory
and they are unsatisfactory for the clinicians as well as for
the patients.
Mr Amess
577. Could I just follow up a point on your
comments about reporting anxieties to patients because when Mr
Staniforth was with us he said that the guidance your Department
had issued had been drawn up in the 1950s when patients' interests
were not taken so much into consideration. In the light of his
comment, is that guidance from your Department currently under
review and are you about to issue new guidance?
(Mr Dobson) The whole thing is under review. We have
got the relatively new complaints machinery that is presently
being independently reviewed, as you know. The Chief Medical Officer
is looking with this expert group at learning from experience
and we would expect that to report by the end of the year. The
Chief Medical Officer's consultation document, or I guess it will
end up being my consultation document officially, on what we do
with poorly performing doctors and all of those things is being
considered at the moment and so, for that matter, are the things
to do with general advice to health trusts on how they should
respond. Stuff on whistle blowers was issued a long time ago and
basically said "stop them". In 1997 Alan Milburn sent
out a letter in effect saying "ignore that advice and take
a much more liberal attitude" and that is what they are supposed
to be doing. We want to modernise the whole thing. The trouble
is all of these things are inter-linked.
Dr Brand
578. Secretary of State, you told us earlier
that 83 per cent of claims failed in the courts. Do we have any
idea how many get settled outside the court because that would
give us a clearer picture of what is going on?
(Mr Dobson) There are a lot that get settled outside
the court, in the door of the court or half way through the proceedings.
I do not have the figures for those. I was just making the point
that nevertheless there must have been lawyers who advised the
people to complain.
579. The reason why I ask my question is do
we actually know what happens because these things do not get
reported to anyone presumably? One of my interests has been that
we seem to be discussing setting up an NHS run parallel GMC/UKCC
service on looking at fitness to practise, under-performing doctors,
the need to retrain and revalidate. We appear to be twin-tracking
the same thought but we have not seen any evidence of closer integration
between what the NHS does and what it expects the General Medical
Council to do. Certainly one of the impressions that I have had
from our witnesses is that they have the assumption that once
a problem has been unearthed and has been reported to an authority
somewhere that it works its way through the system to the General
Medical Council or to the UKCC but of course this does not happen.
(Mr Dobson) That is one of the problems. Not just
in the sphere of things to do with the health service but in other
spheres, people think that once a complaint has been made all
of the various bodies who might be involved will begin to do their
stuff but it does not work like that. That may be one of the ways
forward so that things will be initiated generally if somebody
makes a complaint which is germane to the other bodies. My principal
doubt about the way that the National Health Service has been
run in the past, and this is not a criticism of the previous government,
it is a criticism of all previous governments, is the fact that
the National Health Service as an institution has played virtually
no part in trying to identify good practice and spread it. Clearly
the arrangements are inadequate and that is why, with the support
of the profession and with various parts of the profession, we
are putting in place machinery to improve performance. That is
being done in parallel with developments at the General Medical
Council. I know that from time to time the GMC take quite a bit
of stick but these days the GMC is much more involved in trying
to improve performance and give doctors who may be marginally
below par the necessary encouragement and help to improve their
performance. What we are trying to do is basically in parallel
with that. We do have discussions both at ministerial level and
at official level with the General Medical Council but in the
end we cannot tell them what to do. That is the basic principle,
that we cannot tell the General Medical Council what to do.
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