Can’t tell, won’t tell

The Williams review reported this week. It’s worth a read – less for what it recommends, more for what it reveals. Often when patients die unexpectedly, the NHS still can’t or won’t tell what happened.

Learning from error

The Williams’ review was set up after protests at the case of junior doctor Hadiza Bawa-Garba. She was convicted for the manslaughter of Jack Adcock. The General Medical Council (GMC) then struck her off. Doctors felt “it could have been me” and worried she’s a ready scapegoat for wider NHS failings, because she’s veiled and black.

The panel’s report is now published. The press has claimed doctors will be protected if they make mistakes; that the GMC has been stripped of powers; that new medical examiners will look properly at all deaths.

The reality is different. There’s no change to the law on manslaughter. Instead, guidance will see that only the worst cases are prosecuted. The GMC’s powers have been trimmed. Medical examiners remain a work in progress.

So why read more of the Williams report?

First, the report makes clear that investigation of untoward deaths relies on the same institution that had responsibility for the deceased. When this fails, further scrutiny may be frustrated by the limited quality and independence of medical experts.

Second, the tiny risk that the average doctor is convicted and struck-off led the Williams panel to change the GMC. Yet the fact that non-BAME doctors are more likely to avoid regulatory or other proceedings saw the panel await further research.

I

What happens when we die?

Medical examiners won’t be doing the fundamental investigation. The Williams report confirms it’ll be done by the same local institution that’s liable if it finds error. This conflict of interest explains why the quality of local investigations has been “resistant to change”. It’s why whistleblowers and bereaved families struggle to be heard.

Onward investigation will depend on a medical expert who, as the report complains, may be neither sufficiently expert nor unbiased. So investigations of questionable medical practice are hindered by…questionable medical practice.

Let’s look at what the report says about the way an unexpected death is handled.

The local investigation

Learning relies on thorough local investigations, but the report finds their quality remains patchy.

9.15. …In 2000, the Department of Health report “An organisation with a memory” identified the absence of learning from failure as a weak link in driving safety improvements in the NHS:

“The NHS has no reliable way of identifying serious lapses of standards of care, analysing them systematically, learning from them and introducing change which sticks so as to prevent similar events from recurring. In this respect the NHS is behind some other sectors where there are risks in service delivery and where human safety is at stake”.

9.16. This point was again made in Sir Robert Francis’s report into the Mid Staffordshire Hospitals NHS Foundation Trust and in Dr Bill Kirkup’s Morecambe Bay Investigation.

9.17. While the importance of good local investigations is crucial in improving the quality of care and communications with patients and relatives about failings in care, this area of practice in the NHS in England has proved resistant to change. The panel heard from family members about their poor experiences of NHS investigations in which they felt that they were either not provided with full or, more alarmingly, accurate information. This led to concerns that there was a ‘cover-up’. NHS Improvement and the Care Quality Commission told the panel that the quality of local investigations was extremely variable.

Yet the report’s recommendation relies on these patchy local investigations.

15 para 4.2: There must be a thorough local investigation of all unexpected deaths in healthcare settings, both in the NHS and in the independent sectors…

The report claims external bodies lack the capacity to do any better.

9.26. …death is an intrinsic part of healthcare and unexpected death during treatment is not unusual. This makes it impossible for any single national organisation to be able to carry out investigations into all unexpected deaths. This reinforces the need for and importance of high quality local investigations.

The role of the regulator

The report finds that regulators like the Care Quality Commission (CQC):

4.2….should consider the effectiveness of such [local] investigations as part of its inspection programme of healthcare providers.

But the CQC generally won’t re-investigate. It’ll simply return queries to the hospital. And regulators have faced criticism for sitting on key evidence or suppressing it.

The role of the coroner, the police and the Crown Prosecution Service (CPS)

The panel reports:

9.7. …there is a lack of consistency about which cases coroners report to the police.

9.9. …coroners are likely to have considered very few cases involving suspected gross negligence manslaughter by a healthcare professional…

9.10 …Given that investigations into gross negligence manslaughter are rare, police experience of undertaking these cases is limited.

For the CPS, the panel reports:

8.6. …While the role of the [medical] expert is central in determining whether an investigation goes ahead, and indeed whether such a case proceeds to prosecution, there was general consensus that finding the right expert, with relevant clinical experience, knowledge and expertise, can be difficult and time consuming.

The role of medical experts

Experts have a pivotal role in quashing or promoting investigation. But the report expresses repeated concern about them:

8.2. Expert opinion is also key to fitness to practise cases considered by the healthcare professional regulators. The panel heard a number of concerns about the quality and consistency of opinion provided by healthcare professionals acting as experts or expert witnesses.

8.8. …the evidence that the panel received highlighted problems with the conduct and ability of expert witnesses in cases of suspected gross negligence manslaughter involving healthcare professionals. Although our terms of reference were limited to gross negligence manslaughter, the panel heard evidence of more general concerns about medical experts.

8.9. …Medical defence organisations and healthcare professionals raised concerns about the use of experts who did not have sufficient understanding of current healthcare practice, as they had retired or worked primarily in an area that was not directly relevant to the case under consideration…

8.10. Other concerns raised were that expert witnesses did not have an adequate understanding of the law or their duties to the court in providing expert opinion. There was also a suggestion that the CPS engaged in ‘expert shopping’, seeking further views if the initial expert did not support a prosecution…

8.11. The panel is clear that a number of steps are needed to improve the quality and availability of healthcare experts in both criminal and regulatory settings.

15 para 2.1. Healthcare professionals providing an expert opinion or appearing as an expert witness should have relevant clinical experience and, ideally, be in current clinical practice in the area under consideration. Additionally, they should understand the legal requirements associated with being an expert witness (including the requirement to provide an objective and unbiased opinion).

So despite all the public inquiries, when there’s an unexpected death, we still rely on local investigations and expert opinions of highly variable quality.

II

Inconsistent and arbitrary proceedings

The Williams panel raised the issue of inconsistency and arbitrariness in proceedings against doctors.

The fact that Black Asian and Minority Ethnic (BAME) doctors are more likely to face GMC referral led the report to await more research and more diversity training.

But the near intangible risk of a doctor being struck off after conviction for gross negligence manslaughter led the report to seek legal reform of the GMC:

…investigations of gross negligence manslaughter in healthcare are unusual, prosecutions are rarer and guilty judgements rarer still. There is no doubt, however, that recent cases have led to an increased sense of fear and trepidation, creating great unease within the healthcare professions. This has been compounded by a perceived arbitrariness and inconsistency in the investigation and subsequent prosecution…
During our deliberations the evidence we received led us to conclude that these inconsistencies must be addressed.

Patient safety, the report claims, has been damaged by the GMC’s conduct:

11.16. …The panel was concerned about the level of fear and mistrust that the medical community reported about the GMC. This is heightened by the right of appeal against MPTS decisions, which has undermined doctors’ trust in the GMC and has had a significant impact on their ability and willingness to engage with the regulator. This is deterring reflection and learning from errors to the detriment of patient safety.

But it appears that both the panel and GMC continue to overlook the bigger safety question: whether white doctors, like convicted surgeon Ian Paterson, are being under-referred to the GMC.

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