WHOSE FAULT IS IT ANYWAY?

Is this an opportunity to admit that our health system is broken and overdue for a rethink. There is already a viable, common-sense alternative available to address the conflicts of the vested interests involved. We should consider a more practical no fault scheme to compensate for the inevitable mistakes inherent in the high-risk healthcare situations and let the legal system cope with the real criminals. As there would then be no need for the very expensive Lawyers, Boards and generalist management “executives”, there would be much more money available to resource the hard-pressed professional health carers adequately.

The Letby case is a truly shocking and thankfully extremely rare incident of the unthinkable. It is thus natural to focus initially on the individual case to try to understand the incomprehensible and explain the inexplicable. But on reflection, we will want to know more about this tragedy; more than just which individual to blame. We need to know, not just why it happened, but how it was allowed to happen. We then realise that not only is there a broader systemic “failure involved, but that it is only unique in the horrendous outcome in this particular case. There are now very visible, some just as serious issues, which are not unique to this case; but perhaps this case could provide a shocking focus to catalyse those responsible to tackle, not ignore them. These issues are not unknown. It is amazing that our healthcare professionals deal with them so well; but I suspect the recent strains of pandemic and under resourcing are now revealing the cracks in our NHS edifice, of which this is a worrying example.

What are these common factors and issues?

On the face of it seems as if managers are tasked to play down, or ignore the legitimate safety concerns of their staff. Their remit seems to be to protect and enhance the reputation of the Trust, not its actual performance on the ground. To this end complaints and whistle blowing would be seen as counterproductive, off-message and unhelpful. So, they must rationalise this as a higher and more pressing, ambition and motivation, than the assumed primary obligations to patients This cannot be explained facilely as a hypocritical, rather than a Hippocratic stance, they must have a more important directive from above. To offer some sort of explanation, we have to look at the reason why we would have a pseudo corporate structure (Boards, CEO, professional “Managers”, etc.) to run essentially a highly professional critical national function. Similarly important professionals, such as the military, police, intelligence services, etc., are not organised in this way.

One explanation could be the unnerving escalation of the costs involved. A national health service is an extraordinarily expensive provision to which we have been committed as a country since the last world war. This has been inexorably exacerbated by an ageing population and medical advances requiring ever more expensive equipment and drugs. So, controlling rising costs has become a real concern and perhaps now the predominant priority of government. So naturally this requires an organisation whose focus is on the fiscal; so a conventional private sector Board with its overriding fiduciary duties, and corporate structure, is a natural choice.

But with such a focus, the Boards would be very conscious of one of the major costs involved, that of funding the whole legal apparatus involved in defending and mitigating medical errors and accident claims for compensation. (Over ￡1 trillion in 2013/14?). These insurance schemes, incentively reward the Trusts with the lowest reported incidents and claims. Management would therefore naturally focus on improving and presenting such a record. The intended result should be to increase the actual safety of the patients in the system. Unfortunately, this is a high-risk environment, where no action is not an option, so that split second decisions are necessary in very intense, stressful situations., These then are inevitably going to give rise to a significant proportion of “mistakes” and "normal" Perrow “errors”, from the best of intentions and often incomplete knowledge- (there is no time). So, the only way to continue to reduce the incidents is to try to ensure the Trust is not seen to be at fault. Evidence to the contrary is not what managements, or Boards will want to hear, or admit to their stakeholders and insurance providers.

So perhaps the ethical solution is to admit that these unfortunate, inevitable and inadvertent mistakes are going to happen, and that the staff, management and Boards involved, are doing their best as they see it, to meet unattainable expectations. In this case maybe a no-fault solution is more appropriate.

Sweden has such a no-fault system, and their safety record endorses the view that without the conflict of interest in the management chain, with all parties focussed on actual patient safety, rather than appearances, the system works better.?

It seems that the Government is also aware of this alternative, but currently is sitting on its hands, despite mounting calls to address these concerns urgently, from all the professionals involved (doctors, nurses, surgeons, solicitors, barristers, corporate lawyers and insurance companies).

Perhaps this case can persuade them finally to admit the problems and issues which are generic, systemic and no one’s Fault; except perhaps the Government’s for prevaricating.