Evidence submitted by WITNESS
1. WITNESS AGAINST
ABUSE BY
HEALTH AND
CARE WORKERS
WITNESS (formerly POPAN) has 15 years experience
of working with people who have been abused by health or social
care workers. It runs a Helpline and a Support and Advocacy Service
for people who have been abused and for professionals, relatives
and others who are concerned that abuse may be happening. WITNESS'
brief is to work across all health and care sectors, including
hospitals, community, mental health settings, social care, primary
care, in complementary therapies and in counselling. WITNESS also
provides training in professional boundaries and abuse for professionals
and the public.
2. INTRODUCTION
This briefing focuses on the NHS Redress Bill.
The Bill takes forward some parts of the "NHS Redress Scheme"
outlined by the Chief Medical Officer in 2003.[84]
WITNESS supports quicker and easier access to justice for the
survivors of abuse by health professionals and believes that the
Bill has the potential to achieve this for claims below the planned
cap of £20,000. However WITNESS is concerned that the Bill
as it is currently drafted does not do enough to ensure an equitable
system of accountability, there is an absence of independence
in the management of the proposed schemes and these factors will
not help inspire confidence in people having need of it.
It is important to understand that the Bill
is not only concerned with clinical errors such as misdiagnosis
or mistakes in surgery but will also encompass abuse, whether
intentional or accidental. Whilst there is relatively little information
on the extent of abuse by health workers, there is an emerging
acceptance that the problem is sufficiently widespread to require
improved systems of accountability and control. The Pleming Inquiry
into Drs Kerr and Haslam[85]
posited the possibility that as many as 13,000 doctors have had
sexual contact with one or more of their current patients. Recent
research for the CHRE[86]
found that there was very little guidance issued by the nine healthcare
regulators in the UK on professional boundaries. The Department
of Health estimates that the potential cost of "unsafe to
practice" psychologists alone is as much as £9.6 million.
3. OVERVIEW
WITNESS supports the Bill in principle and believes
that providing a new mechanism for redress in the NHS is an important
step forward. In general terms there is a shared objective of
ensuring that when things go wrong there is recognition and acceptance
of responsibility on the part of health agencies providing care
and treatment.
It is therefore vital that NHS authorities be
allowed to address concerns in a direct way and that the new scheme
does not mitigate against openness and honesty by encouraging
over-reliance on procedure. In other words NHS Trusts must be
free to recognise mistakes made and to respond appropriately of
their own accord and without waiting for an application to the
new scheme to be made. It is therefore positive that there appears
to be an expectation that scheme members will in time initiate
access to the scheme of their own volition, thereby removing the
onus from the potential applicant.
However, for people who have suffered abuse
there remains a danger that schemes will become overly bureaucratic,
fixing on processes and procedures which may not allow for the
individual to reclaim some of the personal autonomy lost in their
experience of abuse. Indeed, one of the major benefits of civil
litigation is that it is client driven and many clients find that
this is beneficial and therapeutic in itself.
Regulations should make clear that NHS services
can expedite the process in clear cut cases.
4. INDEPENDENCE
The bill proposes that the NHS itself be responsible
for investigation, adjudication and decision on compensation and
this is, in our view, inappropriate and would work against natural
justice. In abuse cases it would mean asking the same body which
may have allowed the abuse to happen to investigate it, to assess
responses and to make a judgement about compensation. In many
cases abuse has happened over a long period[87]
and the NHS Trust may have a distinct conflict of interest which
will mitigate against open and honest inquiry. It is of crucial
importance that new arrangements have the faith of the people
they are there to help. The principle of external involvement
in serious complaints is already established with the Healthcare
Commission's role in the second stage of the NHS Complaints procedure.
The NHSLA have stated[88]
that an independent party will be brought in for disputed cases
(though this does not appear on the face of the Bill or in the
Explanatory Notes). However the idea of an independent person
to report on disputed cases begs further questions: what experience
would they have; what training; how could we be sure that they
understood the dynamics of abuse cases. The person would be effectively
given the role of a judge.
An external body, such as the Healthcare Commission,
should be given the duty to organise and manage the scheme.
5. DETAILED COMMENTS
5.1 Setting/Applicability
The bill states that the schemes are to apply
"[. . .]in connection with the provision [. . .]of services
in a hospital"(Clause 1(2)). It is not clear why primary
care services or other contracted health services services are
not included. The Explanatory Notes state only that "[. .
.] consideration would be given to whether [. . .] the scheme
should be extended beyond hospital services [..]." The commitment
is only to a consideration of whether it should be reviewed.
Given that there are around 250 million primary
care appointments each year[89]
this is a major gap. In addition the current proposals will act
disproportionately against mental health service users in that
many services are now provided in the community. As the draft
Mental health Bill proposes new compulsory community treatment
it will be important to determine which services are "hospital"
and therefore subject to the scheme and which are "community"
and therefore not subject to it.
If the proposed arrangements had been in place
historically survivors of sexual abuse by Dr Ayling, Dr Green
and Dr Healy (all GPs) would not have been eligible for redress
under the scheme and would have had to seek compensation through
the courts.
The scheme should be widened to include all
NHS provision, including primary care, domiciliary care, mental
health services and contracted community services.
5.2 REDRESS
It is positive that clauses 3(2,3) allow for
a range of options for redress (financial, apology and explanation,
remedial treatment). In particular, where abuse is the issue,
remedial treatment appropriate to the patients needs and circumstances,
should be built-in. This may include NHS or contracted treatment,
for example for counselling or other support services.
The cost of remedial treatment should not routinely
be part of any financial settlement but should be provided through
the NHS in the normal way, except where the client is not happy
to accept this.
5.3 LEGAL ADVICE
The Bill makes provision for free legal advice
(Cluase 8). The Explanatory notes state simply that this advice
(to the individual seeking redress) is for an independent assessment
of the amount of the initial offer made under the scheme. Sub-clause
(b) allows for the provision of services "designed to help
in reaching an agreement" and the Explanatory Notes say that
this might include mediation. The Bill leaves open the question
of what else might constitute "services designed to help
in reaching an agreement".
5.5 ASSISTANCE
Clause 9 places a duty on the Secretary of State
to arrange for the provision of assistance to individuals seeking
redress and that payments may be made for this service. The assistance
may be "by way of representation or otherwise" and must
be independent any person who is involved in dealing with the
case. However there is no guidance on what kind of assistance
could be provided and no clarity on how it will be provided.
There should be a duty to ensure the provision
of independent specialist support and advocacy services for individuals
seeking redress. The advocacy role should be described by statutory
order and advocates trained to carry out the role. The new schemes
should be required to ensure that support services specialising
in working with abuse survivors and survivors of medical accidents
are contracted to work with individuals seeking redress.
5.6 STANDARD
OF PROOF
The "Bolam" test is planned as the
way to settle claims; it is designed to test whether there has
been a breach of the duty of care by assessing whether the same
actions would have been taken by the "the reasonable man"
or the "reasonably competent practitioner". The use
of this test is problematic as it implicitly involves transplanting
a complicated legal test, much argued over in court, from the
legal system into NHS services.
WITNESS believes that this test should be replaced
with one designed to determine whether or not the alleged action
took place and that it was the result of avoidable error or action.
We are supportive of the notion of an "avoidability test"
where adverse events would be compensated for except where they
were unavoidable.[90]
5.7 DISCLOSURE
OF INFORMATION
This clause(12) requires that information, including
patient records, be provided to the scheme, except where to do
so would breach the Data Protection Act. This is to be welcomed
but is not in itself an adequate replacement for the "Duty
Of Candour," proposed by the CMO and not present in the Bill,
which would have ensured that information, including individual
recollections of events and opinions, clinical and otherwise,
not recorded on paper, would have been brought to light.
The Duty Of Candour should be re-introduced.
Jonathan Coe
Chief Executive
WITNESS
November 2005
84 "Making Amends". Back
85
The Kerr/Haslam Inquiry TSO 2005. Back
86
A Comparison of UK Health Regulators' Guidance on Professional
Boundaries CHRE 2005. Back
87
Eg Kerr, Haslam, Ayling, Britten, Allison, Green, Healy. Back
88
Steve Walker NHSLA APPG Patient Safety 24th October 2005. Back
89
Chief Executive's Report to the NHS, Nigel Crisp 2002. Back
90
See AvMA NHS Redress Bill Briefing. Back
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