Select Committee on Health Minutes of Evidence


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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