David Oliver: Treating NHS staff fairly when things go wrong

It seems to me that we are caught in a lock here that is hard to break. On the one hand, in the several investigations that I have been involved with, all of the families who had suffered harm and bereavement understood that health care is complex, risky and demanding, and that things go wrong sometimes. They didn’t blame clinicians for that. Where they lost sympathy, however, was when they saw denial, concealment, and cover up.

On the other hand, it is very obvious that clinicians do fear blame, and there are good reasons for that in their past experience of Trusts, regulators and the media. We may also underestimate the capacity of clinicians to blame ourselves for mistakes, and the way that trainees see many role models react reinforces self-blame and guilt. That can often lead to a lack of openness in dealing with those harmed, ranging from reluctance to disclose or to apologise through to denial and cover up. The result is a loss of trust between clinicians and relatives that may be disastrous for all concerned.

This cycle will surely continue until we begin to do some things differently. One is to shift the emphasis of professional regulation away from pursuing clinicians who have made mistakes to see if they might be negligent, and pursuing instead those who falsify and conceal and thereby fail to learn. The investigation of incidents should be directed towards finding out what went wrong and why, and not towards who might be blamed. We need to introduce some appropriate education in responding to error for trainees, to counter the often unhelpful behaviour learnt by observation.

Some of these changes are now being talked about, and recently even planned, but there is surely still a long way to go. Until we go further, the failing complaints system will remain just one of the visible signs of a deeper malaise.

Bill Kirkup
Former Chair, Morecambe Bay Investigation

David suggested I comment here following a Twitter conversation about this article. I do so with the the baggage that I have, but never asked for, of being one of those having had a relative 'failed horribly' by the NHS.

Treating all those involved fairly when things go wrong is an important aspect of good investigation, resolution and learning. When complaining to the NHS you enter the ethereal world of NHS Complaints, a mystical place where normal everyday terminology has its own meaning; where timescales for response are not set. Years easily start to roll by. To quote a fellow complainant, ‘the object is to exhaust the NHS Complaints system, before it exhausts you!’ Someone once told me the average time before the system exhausts you is 6 years. I know people who have been fighting for resolution relating to the death of a parent, or a child who died in NHS care for 10, 15 and 26 years. What kind of person hides behind a system that does this to another person? I know people who have been harmed and had to wait 5, 10 years for cases to come to court to get money for ongoing care following harm. Lives, literally placed on hold. I ended my NHS Complaint after four-and-a-half years. It remains unresolved.

Every scandal mentioned by David starts with the failing of the NHS Complaints system. In 2011 the Health Select Committee concluded ‘NHS Complaints system is not working ‘(1) and in spite of numerous inquiries, reviews and reports, I would argue that this is still the case. A wall goes up when you submit an NHS Complaint faster than a rocket and higher than a skyscraper. The trust get their lawyers or in-house legal advisers on it, and the power imbalance begins.

The person responsible for an NHS Complaint under the legislation is the CEO. The measure of a good leader is both in how they conduct their day to day business and when things go wrong. In the case of serious NHS complaints, there seems to be a pattern. The CEO will deny the issue, ignore it, cling onto the position for as long as they can, and when things get serious, maybe with the regulator, or the press, they will resign, with a massive pay off and retained pension rights. Or they may retire and claim that hefty pension. Usually they will then either find consultancy work, or be recycled into another NHS management role. The last CEO I dealt with left when the trust had an 'inadequate' CQC report, following identified financial and care failings in an ambitious IT project. He's now heading up Digital Innovations at NHS England. No joke.

Is the job of an NHS CEO the last true ' job for life?'

This lack of accountability affects those directly involved in the incident immensely. It does nothing for the good guys out there who run their trusts with integrity. It’s a lose:lose situation. NHS managers have no professional regulation but are supposed to adhere to the professional standards that apply to those in public life.

Meanwhile on the other side of the wall, most complainants will make many stops on their NHS Complaint journey. One may well be the GMC, NMC etc because, as David says, clinicians are accountable for their practice. Clinicians are fearful of these organisation which beggars belief to NHS Complainants because referring a clinician to their regulator is usually a long haul counted in years where the end result is usually ‘no case to answer.’ Other stops can include local CCG's, CQC, Monitor (now NHSi) the police, the Secretary of State, and PHSO. There are not enough words to describe how torturous this journey is. I lost track of the times I wished for someone, anyone, to just take this away from me and say 'Don't worry, I can help you with this.' When you complain to the NHS, you really are alone.

The notion of staff as the ‘second victim.' (Google it, too many articles and studies to cite) is a perfect example of where the focus lies . It’s the study into how healthcare workers are affected when things go wrong. A patient's relatives become their carer when their loved one is harmed. If their loved one has died, their life changes forever. Drop a pebble in that pond and the ripples really can be endless. There's no such study that I know of into how harm, premature and avoidable deaths affect those close to the patient. We have no empathy-laden title, we are just called 'complainants.' To quote another complainant, 'a complaint is something you make when your kettle is broken, not when you've had a loved one die.'

What usually starts out as a focused issue, possibly even just a set of questions (as my complaint was) over the years escalates into what David describes as a simplistic narrative focused on individual accountability. Is it any wonder that, when someone is forced down the path I describe above, this is the end result? It rarely starts this way. The public on the whole have the greatest of respect for NHS staff, and will not hesitate in saying so. When things go wrong the treatment from those we expect to offer compassion and care for us can be quite a shock.

My suggestion is that we need to look back at past scandals to really get to the crux of what went wrong, and how it was handled. There are many crossovers. Failure in NHS complaints is one. Lack of accountability is another. A 'where are they now' of those involved would be illuminating I'm sure. I keep an eye on what those involved in mum's care are up to, you know, just to make sure I never have to come into contact with them again. They're climbing their professional ladders. I wonder if they remember my mum?

http://www.parliament.uk/business/committees/committees-a-z/commons-sele... The NHS Complaints System is not working

Editor

I thank Michael Stone for his thoughtful response

Like any NHS consultant i have had to respond to occasional complaints about patient care or communication on my own watch. I have also been the independent arbitrator in numerous complaints about cases i was not involved with, including in many in other organisations. I have been an independent investigator for the old NHS regulator for many cases and also expert witness in a fair few court cases. And like any NHS consultant, i have also attended many governance meetings at which complaints were discussed in some detail to help prevent problems in the future. And of course i have read a string of Ombudsman's reports on badly handled complaints.

What is so very clear from all of this is the following.

1. Most complaints would never happen in the first place if staff were able and willing (time and workload allowing) to be available, visible, accessible, and willing to communicate with patients and in particular their families in real time, either face to face or on the phone or electronically. Its a truism, but most complaints entre on communication. If people have a chance to discuss their concerns and be sure that they are being taken seriously or receive the assurance and explanation they seek, complaints don't usually follow

2. Once a complaint or a PALS call has been made, exactly as Mr Stone says, if staff try to answer them openly and honestly and apologising appropriately and genuinely, then they will generally proceed no further. It is crazy to put patients and families through an opaque, drawn out bureaucratic process if it can be deal with early and openly

3. When complaints do proceed to a more formal footing, even here they should be responded to openly and fully and promptly so as to avoid further distress. There is a slight proviso here that, as i said in the column a thorough, rigorous, transparent, candid response means looking at every concern or allegation raised properly, impartially and fully and this can sometimes take a while by the time statements are gathered, notes retrieved, staff come back from leave etc. This may sometimes take weeks but should never take months.

None of this means that the NHS should go around apologising or accepting fault for every thing alleged in every complaint, not least in a way that then is effectively blaming staff who may be blameless. Fair and honest and open and rigorous doesnt mean one-sided - in either direction

David Oliver