Select Committee on Health Minutes of Evidence


Memorandum re Inquiry into Procedures Related to Adverse Clinical Incidents and Outcomes in Medical Care

CONTENTS

  Introduction and background

  Flaws pin-pointed in the NHS complaints procedure

  Independent complaints investigating mechanisms in existence

  Performance of existing professional disciplinary mechanisms in Britain

  State disciplinary mechanisms in continental Europe

  The legal process and compensation mechanisms concerning health care

  Final word

  Note

INTRODUCTION AND BACKGROUND

  It is difficult to imagine that the undoubtedly intelligent minds responsible for establishing and developing the NHS complaints procedure in its original form(s) seriously believed their creation was a credible mechanism for resolving greviances, fairly and effectively, for the parties concerned in a complaint. Did it not occur to them that, as an internally-managed investigating mechanism, and whatever its construction, there would be less than an even chance of receiving the approbation of those it was designed to help? Apparently not.

  If that was not enough, the same fundamental misconception was repeated in the Wilson report on NHS complaints procedures published in May 1994. After meeting nine times "to consider various aspects of NHS complaints procedures" and having the "benefit of some 250 pieces of written evidence" from individuals and organisations, Professor Wilson and his review committee drew the following conclusions.

  "Complainants want impartial consideration of their complaint. Impartiality is achieved by care and accuracy on the part of the investigator. This applies whether the investigator belongs to the organisation concerned or is outside it. Investigation by someone external to the organisation may appear more impartial, but we believe this is not essential. However, public confidence will be promoted if responses to complaints include further information about who complainants should approach if they wish to take their complaints further."

  In reality, this verdict flew in the face of suggestions received by the review committee that "complaints against the medical profession face such a "closing of the ranks" unless an independent element is incorporated." The extent of this independent element is reflected in the detail of the current NHS complaints process, and follows later in this report.

  There are those who may consider that such conclusions are inevitable where a predominance of written evidence received, and used, has emanated from sources with an apparent axe to grind. Indeed, the organisations who presented evidence to the committee do appear to be dominated, as a group, by professional bodies, health authorities, NHS trusts and providers. Well-represented also, but to a lesser extent, were national organisations of various types but largely associated with health matters; health councils; local medical and dental committees; and a handful of others. About ninety individiuals, including twenty-one doctors, made up the balance of the respondents.

  The end-result was that the central dubious component of in-house complaints inquiries moved basically intact from the previous system to the new NHS complaints prodecure which took effect from 1 April 1996, and remains in place today.

  Powerful a constituent though it clearly is, an autonamous complaints investigation system, and the impartiality that it conveys, is not in itself the sole prerequisite for a credible health complaints policy. The quality and credentials of those investigating grievances are equally essential considerations, as are their powers and remit, towards achiefing this end. This factor has not been given nearly enough thought in the current model, with key investigators being appointed by the NHS Executive and vaguely indentified with no clear pattern in terms of calibre, credentials or experience. [Incidentally, this information (such as it is) is not readily available for public consumption.]

FLAWS PIN-POINTED IN THE NHS COMPLAINTS PROCEDURE

  The mechanism is managed and investigated from start to finish by a combination of NHS personnel, non-executive directors of health trusts and health authorities and NHS appointees recruited externally comprising lay conciliators, chairpersons and clinical assessors. In this guise, the complaints procedure may be considered by many as being heavily short on independence and unlikely to arrive at just resolution of complaint.

  Lay conciliators can be brought in by health authority to intervene in the "local resolution" first phase as an alternative to direct contact with a GP practice by a complainant. In theory a good thing within the context of the complaints procedure, but in reality this intermediary is generally not regarded with much confidence by those lodging a grievance. The credentials of these individuals can not only be suspect but their origins may also be obscure—even unknown. (My own experience of such a person is not good: here was a man of barely moderate intelligence and intellect, his background was unidentified, except that he had taken early retirement; he had received some minimal training; and had been in the job for two or three months. His line of "conciliation" was unquestioningly partisan in a case involving a sudden fatality occurring in at least doubtful circumstances; and he even asked me if I felt a sense of guilt about this death. If this kind of approach is anything to do with the form of prior training these people receive, serious questions need to be asked as to its quality and purpose. The interview with this "concilliator" clearly indicated an attempt by him to dissuade me from proceeding further with my complaint in the face of some pretty watertight facts suggesting that the reverse course of action would have been more to the point. The pathetic and rather silly report that followed rubber-stamped this impression in all respects. It also showed that he was unable to string words together in reasonable readable form, and subsequently it became apparent to me that the health authority were somewhat embarassed with his efforts. As a result, the convener appointed later had no hesitation in accepting the complaint for "independent review".)

  Much more significant is the position and one-sided power of the convener of an "independent review panel." This officer is normally a non-executive member of the very trust or health authority board which may be concerned in a complaint, and on whose behalf will decide whether or not a review panel will be set up to deal with that complaint. She/he will also be significantly involved in the process of investigation that may follow.

  Once a convener decides to accept a complaint for "independent review" a lay chairman is appointed from lists developed by the NHS Executive regional office (or its equivalent) and, in conjunction with the convener, spearheads the complaints investigation that is to take place. The NHSE lists from which chairs are selected are the result of advertising and recruitment from a "broad brush" of lay people. Candidates, we are told, may be retired individuals or employed in industry, business, the professions or local government with experience or report writing, assimilation of information and communication skills. It seems there is no requirement for appropriately qualified and experienced professionals in any recruitment drive—unlike Scandinavia as an example. (In the cases of the two "independent review" sessions with which I was involved, one of the chairmen was a bank manager and the other retired from local government. For reasons of confidentiality I am not permitted to go into any detail about the panel's verdict in either case. Suffice it to say that these were blatantly disgraceful and the complaints have been referred to the Health Service Commissioner.)

  Even the third member of a review panel is either a non-executive of a health authority or some other nominated person, where a NHS trust is concerned in a complaint.

  The Health Service Commissioner (Ombudsman), the final arbiter in a complaint against a NHS practitioner, will not consider a grievance until the complaints procedure itself has been exhausted—which can be a long and debilitating process for many complainants. Even after this there is no certainty that a complaint will be further investigated by the HSC, with some cases accepted while others are rejected through a screening process. Alternatively, complaints may be referred back to the NHS for re-appraisal and it is a return to square one.

  The office of the Health Service Commissioner in a much more developed, one-stop form with greater powers and remit, and many more regional offices, could be a worthy successor to the current NHS model. It will almost certainly engender greater public confidence in complaints handling, probably take a shorter time to evaluate and arrive at a resolution and, who knows, such a mechanism may also cost less to run. (It would not go amiss to look at the system in place in Norway as an example. Here the Board of Health is represented by nineteen regional offices located on a countrywide basis, each of which is headed by a County Municipal Officer.)

  There are other serious in-built obstacles confronting complainants in the NHS complaints procedure. The research for my book Who cares about the health victim? reflects some severe criticism of the protracted and defensive form of complaints investigation that is the NHS model, a process regarded by many on the outside, including some on its fringes, to be too weighted in favour of health and medical practitioners—and of the NHS itself.

  A complaint enquiry proceeding through the full course will normally run into anywhere between a year and three years before a resolution of one kind or another can be expected. The problem is compounded by the fact that, by design, the process calls for the sustained involvment of patients/complainants at what could be one of the lowest points in their lives. [I can confirm this from personal experience and, but for the fact that I was able to give my case more than two years of fairly undivided attention (not being gainfully employed for the duration), it is more than likely that complaint would not have gone past "independent review".] Community health councils (and their equivalent) have a good record of being helpful to complainants. Nonetheless, their assistance can alleviate only some of the emotional and other pressures resulting from this long, drawn-out and often extremely distressing process.

  Negative attitudes, perceived or otherwise, adopted by some health practitioners, and the fear of being "struck off" can also be real if a complaint happens to involve a GP. Further, there is some evidence pointing to an abiding suspicion of the medical profession when a complaint is involved, and a belief that its members will "cover" for one another, and that you can't "buck the system". (In my experience of two "independent review" sessions the GP assessors were indeed defensive, evasive and closed ranks with the practitioner being complained against—in the face of some pretty open-and-shut facts which were ultimately confirmed in the findings of the review panel.)

INDEPENDENT COMPLAINTS INVESTIGATING MECHANISMS IN EXISTENCE

  Austria, Denmark, Finland, Norway, Sweden and the States and Territories of Australia operate independent complaints investigating mechanisms. With the exception of Austria, the complaints bodies of all these countries are open, in most cases, to complainants regarding health care in both the public and private sectors.

  In continental Scandinavia complaints investigations have a strong legal component with all panels or committees spearheaded by experienced legal professionals. Indeed, in the cases of Sweden and Denmark, the chairman of a panel must be (or have been) a high court judge, or possess the qualifications and experience to be one—a facet our legislators need to seriously consider in any future replacement to the present complaints system.

  The effectively one-stop complaints procedures established in Scandinavia and Austria predictably give rise to speedier resolution of grievances than is the case in the UK's NHS model; and the mechanisms as a whole appear to receive general approval in those countries.

PERFORMANCE OF EXISTING PROFESSIONAL DISCIPLINARY MECHANISMS IN BRITAIN

  On this equally consequential issue, the unimpressive records of regulatory bodies like the GMC and UKCC—and their close association with doctors and nurses respectively—seem to be powerful enough reasons for the introduction by the country's legislators of a statutory, independent disciplinary mechanism to oversee and investigate allegations of professional negligence and misconduct. Scandinavia and The Netherlands have long seen fit to follow this course, and there may well be one or two others who have recently entered the frame.

  Recent warning sounds by the government suggesting that the GMC could be replaced by a sate disciplinary authority if strong sanctions for poor performance are not put in place may well be regarded as a positive step in the context of self-regulation. But it could be seen as a convenient way of evading the prospect of independent jurisdiciton. A remodelled GMC is unlikely to materially succeed in dispelling its poor public perception and its capacity to investigate complaints against doctors. The same will equally apply to the UKCC and, perhaps, to other parallel medical institutions.

  Another problem about the existing system is the remit of disciplinary powers exercised by these bodies, which seem to be framed to exclude all but the most serious allegations of professional negligence or misconduct. For instance, the Professional Conduct Committee of the UKCC (whose members' registration fees fund their work) have statutory powers to deal only with cases which are serious enough to warrant removal from the register, and are also supported by evidence to prove any allegations beyond a reasonable doubt. Otherwise, complaints will not get past the Preliminary Proceedings Committee first stage. The role of the GMC seems to be similarly restricted, and the same may also apply to other such professional regulatory organizations.

  In any event, medical disciplinary bodies in Britain have had all the time in the world to get their act together and have singularly failed to do so. This failure is evidence in some particularly serious cases which have recently surfaced and, as a result, have been the cause of much public outcry. The GMC's proposed re-validation scheme, under which there could be periodical checks on the fitness of doctors to practise, is clearly a positive move in the present situation. Unfortunately, it addresses only a small, albeit significant, part of a much bigger problem.

  There is nothing special about British medical practitioners, as distinct from those in some other advanced countries, which can justify self-regulation. Indeed, as already stated, the records of their regulatory bodies are not considered to be exemplary, with accusations abounding of clinical investigators closing ranks with those against whom complaints have been made. So, why should we have to accept second best from our health providers?

STATE DISCIPLINARY MECHANISMS IN CONTINENTAL EUROPE

  Denmark, Finland, Norway, Sweden and, it seems, The Netherlands have all established state professional disciplinary mechanisms with powers leading up to and including revocation of a licence to practise, that is being struck off the medical register. (The subject is described in greater detail in my recently published book, a copy of which was sent to the Chairman of the Health Committee earlier this year.) It is likely that one or two other countries have lately set up similar regulatory bodies.

THE LEGAL PROCESS AND COMPENSATION MECHANISMS CONCERNING HEALTH CARE

  With civil litigation the only route for seeking compensation in the UK, there are many who are excluded from the process simply because they cannot afford the expense. Even those who may feel that they are eligible for civil legal aid will discover that the rules are very tight and can involve major financial contribution towards legal costs. As a result, none but the very poorest in society is allowed access to this facility. Quite apart form the financial considerations, civil action can often extend over years bringing further pressures to bear upon the parties concerned in a case.

  Once again, Denmark, Finland, Norway and Sweden and, it seems to some extent Austria and Spain, have grasped the nettle by introducing cost-free replacement/alternative compensation mechanisms which, in some cases, are open to both public and private health care.

FINAL WORD

  The internal nature of the NHS complaints procedure, and the absence of meaningful redress when a complaint is found to be justified, probably encourage unacceptable professional attitudes and practice—just like any other inappropriately regulated major area of activity. And the lack of independence in medical disciplinary investigations merely adds to the problem. As a consequence, there are practitioners who seem to think they can get away with almost anything—and sometimes do.

  A change to autonamous mechanisms will not only engender public confidence, reflecting a probable reduction in the incidence of complaints going to litigation, often as a first resort, but it may also result in higher professional standards.

  On another associated issue, complaints can arise as a result of medical mishaps in comparatively poorly-equipped hospitals, with medical pesonnel of not the same calibre as those in district general hospitals. These refer to community hospital and, pershaps, GP hospital which are often located some distance away from the district general hospital.

  In these circumstances, the lives of patients requiring emergency expert care can be put at risk before and during the transfer to the more appropriately equipped unit. There are patients with serious medical conditions who are routinely admitted by GPs to these secondary hospital in the first place. Whatever the reasons, this cannot be right. (These observations are drawn from personal experience.)

  The subject of patients' rights, some of which is to form part of the Health Committee enquiry, has not been covered as such in this report because doing so would be a lengthy process.

NOTE

  More than ninety per cent of the content of this report appears in my book where it is much more comprehensively portrayed. The book was published in December 1998.


 
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Prepared 27 July 1999