Hospital staff are scared to speak out and hospitals fear rising negligence claims. We need to match a new duty of openness with the introduction of “no fault compensation”, says Frank Dobson

Frank Dobson

When I became health secretary in 1997, I brought to the job my earlier experience of working for the local government ombudsman. That experience was backed up by what I was told when I met the parents whose babies had died before I set up the public inquiry into the Bristol heart surgery scandal

‘I understand and have some sympathy with junior staff who may still feel cowed into keeping quiet’

So I was convinced that the best way to respond when anything goes wrong is to admit it straight away, to apologise, to try to make sure it doesn’t happen again and to spell out what happened so others can learn from your mistakes. 

I believed very strongly in having an effective complaints system so I kept community health councils. I also concluded that whatever the system of regulation, it is the attitudes and performance of the people at the sharp end and their managers that makes all the difference.

But I also observed that many people were afraid to speak out in case their bosses responded badly and both they and their managers were inhibited by the threat, real or imagined, of claims for compensation.

So I got the law changed to give protection for the first time to whistleblowers and also to make hospital boards responsible, for the first time, for the quality of care. I started work on national service frameworks to set standards that should apply in every part of the country and established the Commission for Health Improvement to check on those standards and advise on how best to achieve them. 

Two different societies

To my profound disappointment, none of this proved up to the task of preventing the dreadful problems which arose at Mid Staffordshire Foundation Trust.

Despite having given legal protection to whistleblowers, I understand and have some sympathy with junior staff who may still feel cowed into keeping quiet. But I really feel that professional integrity requires senior clinicians and managers to speak out where wrongdoing is harming patients.

‘We could end up with some hospitals where the doctors are outnumbered by ambulance-chasing lawyers’

However, when it comes to the fear of negligence claims, we have to recognise that we have been asking doctors and nurses to live in two different societies − one inside the hospital, the other on the outside.

In hospital they are expected to “come clean” immediately if anything happens. Yet if they have a car accident on their way home from hospital, their insurer expects them to behave like the rest of us and deny all liability.

I welcome the Francis report’s proposal to replace the right to whistle blow with a duty to whistle blow, and to place a legal duty on all concerned, including management, always to be open, transparent and candid with patients, relatives, staff, other parts of the NHS and the public. 

It may seem draconian but it’s really a protection for all concerned. Of course this change, like all of Robert Francis’ proposals which are implemented, must apply to all NHS providers whether in hospital, community or primary care; in-house or franchised out.

Compensation culture

However, we must recognise that we live in a compensation culture where “coming clean” could lead to a massive increase in claims for negligence or breach of human rights.

I believe very strongly that we need to match a new duty of openness with the introduction of “no fault compensation”. If we don’t, we could end up with some hospitals where the doctors are outnumbered by ambulance-chasing lawyers. The situation is bad enough already

In 2011-12, the NHS Litigation Authority paid out £1.2bn in damages and fees. But that pales into insignificance compared with its estimate in the same year that future liabilities totalled no less than £16.7bn. That is partly because the settlements assume the patient will go private in future, even if free NHS care is available.

‘Management consultants and accountants have a tenuous grip on the real world and some of their measures of efficiency harm patients’

I’d rather see money on this scale devoted to improving patient care before anything goes wrong rather than paid out afterwards. In particular there needs to be a recognition that nurse staffing levels must reflect the extra time and attention that they need to give to older, poor or disabled patients compared with better-off, younger patients with the same condition.

Of course that would be denounced by management consultants and accountants as a reduction in productivity, which only demonstrates their tenuous grip on the real world and that some of their measures of efficiency actually harm patients. 

The Whittington Hospital which serves my constituency is one of the top hospitals for patient safety. Yet it is under pressure to reduce its nursing staff ratio and costs to some national “norm” in order to qualify for foundation trust status.

I’m only a simple soul, but isn’t it just possible that having more and better paid nurses may have something to do with the Whittington being exceptionally safe for patients?

Frank Dobson is Labour MP for Holborn and St Pancras and was secretary of state for health in 1997-99