Feature

A time for justice

Negligence cases have severely damaged trust in the NHS. Josephine Ocloo argues for a new system of accountability

Much has been written about modernising NHS services, but the issues of openness and real accountability when something goes wrong still seem to be difficult areas to discuss.

This is territory where the lines are often firmly drawn between patients, who want health professionals and hospitals to be held to account, and those in the NHS, often managers and powerful professional groups, who want to create a ‘no-blame culture’ when clinical negligence or mistakes occur.

When something goes wrong in the NHS, I believe patients are entitled to apportion blame if something is shown to be the result of negligence. This is a basic principle of justice. It includes the right to get all the facts, have a public admission of the truth, to hold someone to account if necessary, and to have a proper system of redress.

But at the moment the system is fundamentally flawed, and in a climate where medical negligence is a major problem, often affecting the most vulnerable in society, the basic human right of patients to get a fair and public hearing is abused.

This situation creates deep anger and distress in those who have suffered negligence, and results in demands for public inquiries and the establishment of patients’ action groups which have lost faith and trust in the systems supposedly set up to protect them.

It is vital for NHS users to be able to access a proper independent system of investigation, one that can provide a means of redress independent of the courts. If this is not done in a way that gains patients’ confidence, if there is no accountability , then the lessons arising from negligence inquiries will not be learnt.

My desire to see real change stems from my experience of trying to find out what happened when my 17-year-old daughter died unexpectedly while under the care of her cardiologist at the Royal Brompton Hospital, London, in December 1996. Justice continues to elude me.

After more than five years of battling to get at the truth in December last year the hospital was found guilty of negligence in not providing Krista and me with sufficient information about her condition, and in not providing her with a follow-up appointment after an admission to hospital to investigate concerns.

However, I lost my court case on the issue of causation, because I was obliged to prove that negligence was the cause of Krista’s death. The hospital applied for an order for costs against me which are likely to be in excess of £100,000.

My case highlights the inadequacies of a system that fails to be transparent and honest when something goes wrong. This has left many people with no option but to turn to litigation which, despite its inadequacies, often presents the only chance for patients and their families to get a truthful account and a review of the facts.

The irony of my situation was that I went through three separate inquiries set up by the hospital, all of which declared that there had been no negligence. Eventually, I was forced to go to court. This route is not an option for most families. Legal aid is limited to those on the lowest incomes, and getting a conditional fee agreement from lawyers is difficult unless one is perceived to have a high chance of success.

Winning a case is frequently hampered by the difficulties of getting medical records, which provide crucial evidence of a patient’s treatment and condition in the hospital, vital in proving any case for damages. Yet too often crucial information, which should be in the records, is not available – as in my case – but this is not held against a hospital in a legal action.

The Brompton and Harefield Inquiry found that important information had often not been written into the medical records. According to the inquiry, ‘in a significant minority of cases, important documents appeared to be missing, or casenotes were badly organised’. It also found that few of the parents involved in the inquiries had used the NHS complaints procedure to resolve their concerns. Those who had, had found it unsatisfactory.

In a climate where reports of professional abuse of power are still all too common, and where staff attitudes are still seen as one of the biggest obstacles to progress, it is vital to establish a mechanism to enable patients and families to get answers and for individuals to be held to account.

It is only through tackling what health secretary Alan Milburn has described as a ‘culture of secrecy’ that a culture of openness and transparency can emerge, based on mutual respect between NHS users and health professionals. This is vital in rebuilding shattered trust and should done as part of a wide-ranging consultation process involving users.

Energy that has been previously been channelled into trying to get justice could then be used positively to transform the NHS for the better.

As a result, patients would be less likely to go down the route of litigation, although it should be their right should they wish to do so. They would be more likely to feel satisfied that their complaint had been dealt with properly and that future users would be protected from suffering a similar experience.