Introduction

I’m an eighties child. Well, I was born in 1973. But, I came to life in Polka Dot leggings and badly crimped hair in the 1980’s. My memories of the adverts that aired on television in the early eighties, were commercials about the famine in Ethiopia. Towards the end of the decade, I mainly remember the adverts about the HIV/AIDS epidemic. There is a gap in my memory. I cannot remember the year that the Tsunami of ‘No Win-No Fee’ adverts hit the British shores. As a guestimate, I would say it was sometime in the early 1990’s. ‘No Win-No Fee’ culture refers to the free access that a claimant has to funding a medical negligence claim against a hospital or GP Practice for malpractice. If a solicitor takes on a case under a ‘No Win-No Fee’ agreement, the claimant will not be liable to pay any legal costs if they do not win the case. The ‘No Win-No Fee’ agreement has allowed many more people to make medical negligence claims. The ‘No Win-No Fee’ culture is now a prevalent part of our society, and it has changed the landscape of doctoring and medicine, from one of care and love, to one of fear and defensiveness. The rampant suing culture has made doctors afraid and self-protective. This post discusses how the ‘No Win-No Fee’ culture has created a climate of fear and distrust and disabled the authenticity of the doctor-patient relationship.

Fear of litigation has resulted in significant harm to the quality of public services, the experiences of those who use them, and the role of professionals. The fear of litigation stifles innovation and leads to defensive practices.[1]

The Patient’s Perspective

When something goes wrong with patient care, patients want it to be put right. Lives are destroyed by medical accidents. Patients want their lives back. Three billion pounds would not buy me back the last eleven years. It would neither buy me back the woman who I was, and it would certainly not erase the traumatic memories that I have of these brutal consultations with surgeons. However, if a clinician could diagnose and treat my facial pain, this would buy me my future. I would then be able to rebuild a normal life. The last thing that I would choose to do, is spend another decade wading through the judicial system. I reckon that 70% of the population would say the same. Yes, there are situations when it is right for a patient to bring a medical negligence claim against an NHS trust. But mostly, I think, patients want resolution. I certainly do.

After harm in healthcare, patients value patient safety efforts so that other patients do not need to endure the same suffering. Injured patients value disclosure and discussions that are compassionate, efficient, transparent, honest and include a genuine apology. [2]

An Incident

In 2019, I had a stern insight into the impact that the suing culture has on the doctor-patient relationship. I had an appointment to see a Head and Neck surgeon at an NHS Teaching Hospital. I had already been to this NHS Trust twice; once to the oculoplastic department re my periocular pain. They discharged me after one appointment with no diagnosis or treatment. I had also been to the Oral Maxillofacial Department, re the residual pain in my parotid gland. They too, discharged me after one consultation, with no offer of any help. This was my third visit to this NHS Trust. I was waiting outside the consultant’s room. A nurse walked past me, carrying my notes, which she was delivering to the consultant. She dropped them on the floor, by accident. My file landed face up. I couldn’t believe my eyes. I saw a green medico-legal form, that the NHS trust had already filled in. They had begun a defence to a medical negligence claim, but I had not even been to see a solicitor. I had not filed a claim against them. This incident just demonstrates how fearful the medical landscape now is. It was not a productive appointment. The surgeon was shifty and defensive, while I was reeling from the shock, from having seen the completed medico- legal form in my file. There was no space between us, for an honest or helpful conversation about my facial pain. We were both dancing around a puddle of fear.

Medical malpractice litigation stifles the patient voice and harms patient-provider relationship, by conceptualising patients as adversaries rather than partners. These issues hinder transparency and communication, and perpetuate distrust. Medical malpractice encourages defensive medicine.[3]

Non-Adversarial Resolution

The Standards Authority for Health and Social Care argues that a move to a non-adversarial clinical negligence system would ‘encourage a more open, constructive approach to clinical incidents, which would be beneficial to patient care and safety.’ (2.1) It states that ‘the fear of litigation is a key source of reticence among healthcare professionals in coming forward when avoidable harm has occurred.’ Their submission refers to a framework that was pioneered by The University of Michigan, that encourages early disclosure where things have gone wrong in healthcare. ‘The system has seen a drop in new lawsuits, and clinicians across U-M’s hospitals have felt freer to report situations that caused harm.’ (2.2) This has led to faster responses to investigate situations and reduced the chance of harm in the future.’[4]

Alternative Resolution Systems

Jennifer Schulz evaluates two other models of non-adversarial systems which resolve harm in healthcare; New Zealand’s Administrative Compensation Scheme, (ACC) and the USA’s Communication-and-Resolution Program, (CRP.) Shultz calls out for reform of England’s Medical Negligence system, and advocates for a no-fault compensation scheme, which values what patients want and need, after harm in healthcare. She argues that medical negligence litigation is misaligned with patients’ needs after harm. ‘Medical negligence litigation is an anathema to values in healthcare, particularly patient-centred care. It facilitates a “deny and defend” approach, whereas alternative approaches facilitate a “disclose and apologise approach.” The CRP and ACC no-fault schemes place the needs of the injured at the centre, which is consistent with patient-centred care, and values of honesty, disclosure, transparency and communication.’ [5]

NZ’s Accident Compensation Corporation (ACC)

1. New Zealanders apply to the ACC scheme for rehabilitation and compensation. The compensation standard is ‘no-fault’ as opposed to negligence.
2. The right to claim compensation is based on the injured person coming with the statutory conditions for cover, not on questions of liability. The first step for obtaining cover is that an injured person should get treatment from a healthcare provider.
3. Remedies offered by the scheme include; treatment, rehabilitation, earnings compensation and a lump sum for permanent impairment, instead of solely compensation.
4. The public can claim for ACC without the need for a lawyer. Patients are able to complete a simple document themselves.
5. Fears about the ACC scheme are accountability. However, if an injured person applies to the ACC for compensation and rehabilitation, they can file a complaint with the NZ health and disability commissioner. The other criticism is that it removes deterrents to injury-producing conduct, which is disincentive to safety. Schultz explains that fault schemes do not have a deterrent impact. Medical malpractice has a deleterious impact. Health providers engage in defensive practises.[6]

Compassion

In the USA, Communication-and-Resolution Programs are the alternative to medical malpractice litigation, in which hospitals disclose medical injuries, explain what happened, apologise, and sometimes offer compensation. They only operate in a small number of healthcare organisations, but ‘they value patient-centred care, patient safety and patient’s needs.’ Shultz’s research found that patients value the compassionate and non-adversarial communication throughout the process, and the ability to heal broken trust between provider and patient. ‘Assuming patients and providers value, honesty, integrity, transparency, communication, trust, and meeting the needs of patients after medical injury, these approaches fulfil those values much better than medical malpractice litigation.’[7]

My Case

There was a lack of transparency about clinical findings early on. Ten-years on, when abnormality shows on tests, histology reports and scans, clinicians fear that if they acknowledge the findings and diagnose my facial pain, that they will make the preceding NHS trusts liable for litigation. That is why, I believe, abnormal results are not being acted on, and no-one will take responsibility for the problem. I also believe this is the unconscious incentive behind a lot of the gaslighting that I have experienced from medical consultants. All I want is for someone from the NHS to come out and say; ‘sorry, we have got this wrong, and we will put it right.’

Human Relationships

Relationships are messy. No human relationship can survive without one person at some point, needing to say sorry for bad behaviour. If neither side ever takes responsibility for the breakdown in the relationship, then the relationship sadly dies. Sorry is not a dirty word. It is a vital word, that salves the wounds of wrongdoing, and allows relationships to repair. Human’s make mistakes. ‘To err is human.’[8] We all get things wrong. It is an integral part of the human condition, and no-one is immune from fallibility, not even doctors. If our human ability to make mistakes is stifled, we feel suffocated. The ‘No win-No Fee’ culture serves as a tight leash around doctors’ necks. It denies them any room for error and honest evaluation of their conduct. In denying clinicians this ability to self-evaluate, they cannot grow or improve.

Conclusion

Doctors are humans. They will, like all of us, make mistakes and get things wrong. This oppressive ‘No Win-No Fee’ culture disallows for human fallibility. It contributes hugely to the NHS Complaints Procedure being so futile. It is why, I think, clinical teams so routinely cover-up their failings. They fear that if they acknowledge wrong-doing, that they will make themselves liable to litigation. Doctors need to be granted space to be honest when they get things wrong, without the fear that it will make them vulnerable to legal action. As the Professional Duty of Candour states; ‘Apologising to a patient does not mean that you are admitting legal liability for what has happened. The NHS Resolution advises that saying sorry is the right thing to do, and a fitness to practise panel may view an apology as evidence of insight.’ (15) [9] The ‘No Win-No Fee’ Culture has had a crushing impact on clinicians’ ability to be authentic with patients. This tight leash around their necks must be loosened, to open up space for greater listening and authenticity within the doctor-patient relationship. Medicine is about healing, love and care, and these principles must be allowed to once again, govern the medical landscape.

England’s review of clinical negligence presents a timely opportunity to present an alternative resolution system to address patients’ needs after medical injury. In a climate where quality and safety, patient-centred care and compassion are heralded as important values in the health-sector, shifting away from medical malpractice litigation, that is misaligned with those values, is much needed.[10]

Foot Notes

[1] Clinical negligence: a culture of litigation? | Medical Negligence and Personal Injury Blog | Kingsley Napley | Independent Law Firm of the Year 2022 [2] Schulz Jennifer; Reforming Clinical Negligence in England: Lessons about Patients’ and Providers’ Values from Medical Injury Resolution in New Zealand and the United States of America © Royal College of Physicians, 2022. [3] Schulz Jennifer; Reforming Clinical Negligence in England: Lessons about Patients’ and Providers’ Values from Medical Injury Resolution in New Zealand and the United States of America, © Royal College of Physicians, 2022. [4] Written Evidence Submitted by The Professional Standards Authority (NLR0047) www.professionalstandards.org.uk. All quotations within this paragraph are quoted from this source. [5] This is taken from the same source as footnote 2&3. [6] This paragraph on NZ’s ACC Scheme is quoted directly from the same source as footnote 2,3 & 5 [7] Same source as footnote 2,3 & 5. [8] Kohn L et al; To Err is Human; Building a Safer Health System-PubMed (nih.gov) [9] The General Medical Council; The Professional Duty of Candour, www.gmc-uk.org [10] Reforming clinical negligence in England: lessons about patients’ and providers’ values from medical injury resolution in New Zealand and the United States of America – PMC (nih.gov) Photo Credits; World Sikh Org, Alex Green, Cottonbro, Tima Miroshnichenko, August de Richelieu & Mart Production on Pexels. Cytonn Photography, Dave Lowe, Hunters Race, Thomas Kinto & Brett Jordan on Unsplash.

Introduction

The Parliamentary and Health Service Ombudsman, (PHSO) is a UK government agency, that was ‘set up by Parliament to provide an independent complaint handling service for complaints that have not been resolved by the NHS in England and UK government departments.’[1] The PHSO shares its findings from its casework ‘to help Parliament scrutinise public service providers.’ [2]The PHSO is not part of the government or the NHS in England. They are not a regulator. Their powers are set by The Health Service Commissioners Act, 1933.[3]

Our vision is a voice for improvement in public services through the provision of an independent, impartial and fair complaints handling service. 

The Parliamentary and Health Service Ombudsman

This post discusses my experience of the PHSO. It also asks whether the PHSO is really independent, or whether it is a government agency that protects other government agencies. Is the PHSO really a government body that is committed to impartiality and fairness, or is it’s support biased towards the big organisations?

How It Works

If you are unhappy with the final response that you receive from the NHS body, you can take your complaint to the PHSO, who may investigate it. You need to bring your complaint to the PHSO within twelve months of receiving your final response from the NHS body. You also need to have exhausted the local complaints procedure first, and have received your final response from the NHS agency. The PHSO triage team will assess your complaint, and decide whether or not to open an investigation. If the PHSO decide to investigate it, they will allocate your complaint to a ‘case-worker.’ The wait time for allocation can take months.

Once allocated, a case worker will begin an investigation. They will ask the NHS agency to submit their version of events with supporting evidence. The case worker will get an ‘independent’ medical opinion from a clinician, who specialises in the field that is relevant to your medical case. The case worker sends you a provisional decision, at which stage, you can add your thoughts. The PHSO will then send both parties a final investigation report.

Recommendations

The PHSO either upholds, partially upholds, or does not uphold complaints. If the PHSO upholds or partially upholds your complaint, it can make recommendations to the NHS body to put things right. Recommendations can include; offering an apology, or devising a plan to show how they will prevent the same failing from happening again. If you are unhappy with the outcome from the PHSO, and you acquire new medical evidence, you can ask them to look at their decision again. You must do this within twelve months of receiving their final report.

After you receive their review outcome, if you think that the PHSO has acted unfairly or illegally, you can apply for a Judicial Review from the courts. You must make an application for Judicial Review within three months of receiving your decision from the PHSO. This all sounds hunky dory, right? The reality, however, is that once the administrative cogs are set in motion, it is not as peachy as it sounds.

My Complaint

In 2015, in the early stages of my facial pain, I took a multi-agency complaint to the PHSO about two NHS Trusts, who stopped my antibiotics when I still had an infection, and a GP Practice, who refused to then refer me to another specialist. I had to seek private care to get the blood tests and medication that I needed. This cost me £18,000 of borrowed money, and I did not get a satisfactory response to my complaint from the NHS agencies.

I provided the PHSO with the blood tests from the NHS trust, which showed evidence of infection, the Ophthalmologist’s clinic letters; one acknowledging an infection was present, and the other instructing the GP to stop my antibiotics. I submitted the blood tests from the private hospital, showing that I still had an infection, and a statement from my MP, who I went to see at Parliament when this happened. He verified that he spoke to my then GP, who told him they would not refer me to another Ophthalmologist, unless I found a specialist, and if they agreed with their diagnosis. I requested that the NHS Trusts reimburse me my costs for blood tests and medication.

My Experience

I went into the PHSO process naively. Not dissimilar to how a child envisions Jesus Christ, as a bearded man in the sky, I imagined the Ombudsman to be a person sitting in the middle, holding the scales of justice, and giving both sides a decent hearing. That couldn’t be further from the reality. The Health Ombudsman, who in 2015, was Dame Julie Mellor, does not see the complaints. The complaints are dealt with by low-skilled case workers, who act more as secretaries. It is their managers and the medical teams behind the scenes, who make the decision.

It is not a ‘fair’ or equal set up from the start. I sought help from the Citizens Advice Bureau, who assisted me with my PHSO complaint form. However, even with advocacy support, I could not match up to the defence unions and powerful legal teams that the NHS bodies had to assist them. I was knocked out before the match had started.

‘Reasonable?’

‘Reasonable’ is a vague term, with far-reaching boundaries, when used in administrative processes. The bench mark that the PHSO uses to decide if there has been any malpractice or maladministration, is whether the NHS body acted ‘reasonably’ or not. An ophthalmologist, who admits a patient for intravenous antibiotics because there is clinical evidence of infection, and then discharges them, and instructs the GP to stop all her medication, without doing a blood test, to see if her infection markers have normalised, is not reasonable. For the GP to refuse further referrals, is unfair, and it left me in an unfathomable predicament.

I felt both aghast and outraged, (as was my advocate) when the PHSO sent me their provisional report. They had overlooked all of my evidence, and had defended the actions of the NHS Trusts and GP, as being ‘reasonable.’ Their report had gaping holes in it, and swerved the facts. Their ‘medical advisor,’ who had never examined me, said that my left ptosis, which was diagnosed by a Professor of Ophthalmology, after the first ophthalmologist had stopped my treatment, was not true. The PHSO also said that I ‘chose’ to seek private care. The NHS Trusts and GP stopped my medication and blood tests, and I became very ill. They also closed the doorway to any more referrals. I had no choice. My MP verified this in a statement, which the PHSO also disregarded.

PHSO Review

I asked the PHSO to look at their decision again, on the grounds that they overlooked my original evidence. I also submitted new medical evidence, along with a revised statement from my MP. It took them an unreasonable eleven months to complete their review. Their procedure was more dishonest than the first round. They discounted and undermined my new evidence, and neglected to honour my MP’s statement. The PHSO still concluded that I chose to spend £18,000 to get medication privately. They also said I could have moved GP’s, when I supplied them with data, that no other GP would accept me, as I was outside of their catchment area.

For a body that prides itself on values of ‘independence, ‘fairness,’ ‘excellence,’ and ‘transparency,’ their service did not reflect any of these principles. Their conduct represented dishonesty, unfairness, bias and a poor-quality service, with unreasonable wait times.

Judicial Review

Public bodies have to obey the law in how they take decisions and act. [4]

I quickly found a public law solicitor, who took on my case for Judicial Review. This was to challenge the fairness of the PHSO’s approach to handling my complaint. Judicial Review is ‘a court proceeding in which a judge reviews the lawfulness of a decision made by a public body. It challenges the way in which a decision was made, rather than the conclusion reached.’ [5]The courts can issue a quashing order, which overturns the decision, or a mandatory order, where the court directs the body to take a new decision. They can also award damages, if your human rights have been breached.

My Grounds For Judicial Review

The details of the matter being challenged were, The PHSO’s:

1. Failure to appropriately exercise its discretion in relation to my case;
2. Failure to take into account relevant considerations and/or taking into account irrelevant considerations;
3. Failure to undertake sufficient enquiries into why I was unable to seek the assistance of another NHS GP in January, 2014;
4.  Failure to ask the questions necessary and undertake a sufficient enquiry to discharge its decision-making process;
5.  Decision is unreasonable/irrational in the Wednesbury sense. The grounds for this are:

•  The decision was unreasonable or irrational in the Wednesbury sense;
•  Material error of fact;
• Failure to undertake a sufficient inquiry by asking the right questions or taking reasonable steps to acquaint themselves with relevant information;
• Taking into account irrelevant considerations or ignored relevant considerations;
• The discretion of the Respondent in the application of its policy was fettered.

The legal aid Agency awarded me legal aid to cover the first stages of Judicial Review; the Pre-Action Protocol and request for permission. We served notice on the PHSO and submitted a permission request for Judicial Review from the courts. The PHSO submitted a lengthy, (and late) defence. I received an offer from the court to attend an oral hearing, to request permission from the Judge. However, the process had exhausted me, so I declined the offer of an oral hearing. I dropped the case. This is how the system works. It asks people to jump through extensive loopholes, which grind down the individual’s resolve. These administrative processes do not support the individual having a voice.

Rob Behrens

I have been heartened by the reports from the current Health Ombudsman, Rob Behrens, who has come down hard, on the lies and cover-up culture within the NHS. I wondered whether he had transformed the culture within the PHSO; that they now acted more in accordance with their values and held NHS bodies more to account? However, according to people who I have spoken to, the service that the PHSO provide is even worse. They open even fewer investigations than they did in 2015. If this is correct, then the PHSO is guilty of the very thing that Rob Behrens is so scathing of; covering up failings, and not being accountable for mistakes.

Conclusion

My experience of the PHSO was crushing. They overlooked factual evidence, and did not look at my complaint honestly or fairly. They were heavily biased towards the NHS Trusts and GP Practice. Many others have had similar experiences to me. The PHSO, in my experience, is not an independent or impartial body. It is a body that is predisposed towards the state funded organisations. There is little listening or support for the little man/woman, who has suffered an injustice within the UK healthcare system. If there was, I would not be in the predicament that I am in now. The question that my and many other’s experience raises, is how can the PHSO really improve public services, if the PHSO does not look into complaints with real impartiality and fairness?

Foot Notes

[1] www.ombudsman.org.uk/who we are

[2] https://www.ombudsman.org.uk/about-us/who-we-are

[3] This comes from the same source as foot note 1 & 2.

[4] The Public Law Project; An Introduction to Judicial Review.

[5] https://www.judiciary.uk/how-the-law-works/judicial-review/

Advocacy Resources

These are UK wide agencies, who can provide advocacy support with the PHSO complaints process.

Citizens Advice

NHS Complaints Advocacy | POhWER

What we do | Healthwatch

Find your local Healthwatch | Healthwatch

York Advocacy Hub – NHS Advocacy

VoiceAbility | NHS complaints advocacy

Independent Health Complaints Advocacy (IHCA) – Advocacy for Bromley

Judicial Review Resources

These are useful resources for anyone wanting to challenge the fairness and legality of a PHSO decision.

Apply for a judicial review of a decision: Form N461 – GOV.UK (www.gov.uk)

Find a Solicitor – The Law Society

Judicial Review and other Public Law Challenges | Bindmans

Casework – Public Law Project

Check if you can get legal aid – GOV.UK (www.gov.uk)

Photo Credits: Tingey Law Firm, Mufid Majnun, Gr Stocks, Yaopey Yong, Lucas Santos, Brut Carniollus, Gayatri Malhotra, D Koi and Nsey Benajah on Unsplash. Anete Lusina, Katrin Bolovtsova and Sora Shimazaki and Brett Jordan on Pexels.

Summary

This post debates the NHS complaints procedure, within the context of The Professional Duty of Candour. I discuss my experiences of the NHS complaints procedure; how clinical teams rarely self-evaluate or reflect on their conduct, during investigations. They seldom take any responsibility when things go wrong with a patient’s care. This makes the NHS complaints process futile for patients, and devoid of any transparency. This post asks how the NHS complaints procedure can work better for patients who are seeking redress to genuine grievances?

The NHS Constitution

‘Everybody has the right to make a complaint about any aspect of NHS care, treatment or service, and this is written into the NHS Constitution on GOV.UK.’[1] The NHS pledges to:

• ensure that when mistakes happen or if you are harmed while receiving health care you receive an appropriate explanation and apology, delivered with sensitivity and recognition of the trauma you have experienced, and know that lessons will be learned to help avoid a similar incident occurring again
• ensure that the organisation learns lessons from complaints and uses these to improve NHS services[2]

The NHS Complaints Procedure

Any patient can send a complaint to an NHS trust, by email or post. Once the NHS trust receives the complaint, a member from the complaints team will send an acknowledgement to the patient, within 2-3 days. This will confirm that the patient’s complaint has been received, and sent to the clinical ‘team manager.’ This is not a clinician. The complaints team will forward the complaint onto the administrative manager of the clinical team. The manager will then contact the patient, to check that they have understood the points that the patient has raised in the complaint.

The team manager will  ‘investigate’ the complaint, by speaking to the medical professionals involved, and looking at the patient records. They will send the patient a formal response within 28 days, which the Chief Executive, (CEO) of the NHS trust signs. The report provides details of the Parliamentary Health Service Ombudsman, (PHSO) who the patient can refer to, if they are unhappy with the response from the NHS trust.

The Duty of Candour

‘The intention of the duty of candour legislation is to ensure that providers are open and transparent with people who use services. It sets out some specific requirements providers must follow when things go wrong, with care and treatment, including providing reasonable support, providing truthful information and an apology when things go wrong.’ It states that, ‘Registered persons must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity.’[3]

Good Medical Practice

Good Medical Practice states that doctors ‘must’;

45 be open and honest with patients if things go wrong. If a patient under your care has suffered harm or distress, you must follow our guidance on Openness and Honesty when things go Wrong; the Professional Duty of Candour, and you should:

a put matters right, if possible

b apologise (apologising does not, of itself, mean that you are admitting legal liability for what’s happened)

c explain fully and promptly what has happened and the likely short-term and long-term effects

d report the incident in line with your organisation’s policy so it can be investigated as appropriate – and lessons can be learnt and patients protected from harm in the future.

46 You must respond promptly, fully and honestly to complaints. [4]

Every health and care professional must be open and honest with patients and people in their care, when something goes wrong with their treatment or care, and causes harm or distress. General Medical Council

The Professional Duty of Candour

The General Medical Councils’ Professional Duty of Candour makes clear that; ‘all healthcare professionals have a duty of candour – a professional responsibility to be honest with patients when things go wrong.’ Healthcare professionals ‘must’

• Tell the person when something has gone wrong
• Apologise to the person
• Offer an appropriate remedy to put things right
• Explain fully the long-term effects of what has happened.[5]

It states that a professional must apologise to the patient; ‘when something goes wrong with their care, and they suffer harm or distress as a result.’ (9)  It instructs that doctors ‘should share all you know and believe to be true about what went wrong, and why. You should explain if anything is still uncertain and you must respond honestly to questions. You should apologise to the patient.’ (12)

Saying Sorry

The Professional Duty of Candour sets out that patients expect to be told three things as part of an apology;

1. What happened
2. What can be done to deal with any harm caused
3. What will be done to prevent someone else being harmed. (14)

It makes clear that ‘apologising to a patient does not mean you are admitting legal liability for what has happened, and that the NHS Resolution advises saying sorry is the right thing to do.’ (15) The Professional Duty of Candour advises against a ‘formulaic approach to apologising, since an apology has value only if it is genuine,’ (17.) It states that when apologising to a patient, you should consider that; ‘patients find it more meaningful if you offer a personalised apology, rather than a general expression of regret about the incident on the organisations behalf.’ (17.d)[6]

The Professional Duty of Candour also encourages a learning culture. ‘When something goes wrong with patient care, it is crucial that it is reported at an early stage, so that lessons can be learnt quickly and patients can be protected from harm in the future.’ (23)[7]

My Experience

Having read the Professional Duty of Candour, I feel short-changed. I have complained to five out of the fifteen NHS trusts that I have been to, for my facial pain. My complaints have ranged from consultants stopping my antibiotics when I still had an infection, forcing me to pay for private treatment, to clinicians prematurely discharging me, clinicians not following through on promised actions, and being rude and insulting. I have not once, received an apology or any honest explanation of what went wrong. I have not had any of my grievances put right.

What I have received, is a defensive explanation of their view of the situation. This leaves me feeling unheard and more hurt as a result. The NHS trusts swerve key points that I have raised. They use blanket statements like; ‘lessons have been learnt,’ but the NHS trusts never specify what lessons they have learnt. This makes wording of this nature, nothing more than a platitude. All responses that I have received have lacked any self-evaluation from the clinicians involved, or willingness to take any responsibility for the failings that have caused me harm. This has left me to carry the unresolved grievance, alone.

The Worst Response

The shoddiest response that I received, was from an NHS Trust in Scotland. The surgeon, who I saw, had promised to do two scans and see me for a follow-up, but I never heard from him again. I complained to the NHS trust that the surgeon did not give me a follow-up consultation and closed my case, with no explanation. He had referred me to Pain Management. They had refused to see me, because I was not ‘suitable’ for their service. I received no answers from the NHS trust about the surgeon’s decisions. The NHS trust just advised in their response, that I ‘go to pain management,’ when they knew full well that Pain Management had refused to see me. They led me down a dead end, which they knew was a dead end. This behaviour is quite the opposite to being ‘open’ and ‘honest.’

The Ombudsman’s report found the physical harm patients suffer following mistakes is often “made worse” by “inadequate, defensive and insensitive responses” from NHS Trusts. [8]

What Patients Want

Patients want hearing and validating. They want answers about what has gone wrong. They want an apology, and they want the issue putting right. All I have wanted is an honest explanation about why has gone wrong with my care, and for the NHS trusts to remedy it. I have not received this, so I have stopped raising complaints. There is no point. I just come up against a brick wall, every time that I try to get answers.

Conclusion

The responses to my complaints have not complied with The Professional Duty of Candour. Clinician’s failings have caused me genuine harm, which they have not acknowledged, or put right. This begs the question – what is the use of having an NHS complaints procedure, if ‘investigators’ just defend clinician’s mistakes? How can medical teams ‘learn lessons,’ from failings in care, if they are not honest about their mistakes, and do not evaluate themselves candidly?

To ensure that medical teams adhere to The Professional Duty of Candour, professionals need to listen to patients more openly, and learn to say sorry. Apologising is not an admission of legal liability. It is an avenue for redressing grievances, improving services, and preventing further harm. Abdicating from taking responsibility for their failings does not serve the medical professionals either. Rigorous self-scrutiny should be at the top of the agenda for self-regulating doctors. Without this, clinicians cannot develop professionally, and will repeat the same mistakes, causing more harm to future patients.

The Ombudsman’s report pointed to “confirmed failures to accept mistakes” and the failure of some NHS trusts to “take accountability” for turning lessons into actions.

Jane Kirby, The Standard.

Foot Notes

[1] https://www.nhs.uk/contact-us/how-to-complain-to-the-nhs/

[2] Department of Health and Social Care, GOV.UK; Guidance NHS Constitution for England, March, 2012

[3] Guidance Duty of Candour GOV.UK October, 2020

[4]General Medical Council; Good Medical Practice, 2024. © 2023 General Medical Council.

[5] General Medical Council; Openness and Honesty when Things go Wrong: The Professional Duty of Candour, ©2015 General Medical Council. Note; This is joint guidance with the Nursing and Midwifery Council, (NMC.)

[6] General Medical Council; Openness and Honesty when Things go Wrong: The Professional Duty of Candour, ©2015 General Medical Council. Note; This is joint guidance with the Nursing and Midwifery Council (NMC.)

[7] Extract from same source as foot note 5 & 6.

[8] Kirby Jane; Ombudsman Finds “Culture of Cover-Up” in NHS When Patients Are Harmed, The Independent, June, 2023.

Photo Credits; Matthias Zomer, Shvets Production, Alex Green, Trung Nguyen, Ann H and Antoni Shkraba on Pexels. Doctor, Tim Mossholder, Randy Laybourne, Nicolas J Leclercq and Nick Fewings on Unsplash.