Advocacy and Accountability: the need for manifest(o) change

Estimated reading time: 5 minutes

This week, AvMA published its first Impact report. Up until now, we have produced an annual report which we file, alongside our statutory accounts, with the Charity Commission, but in the spirit of being more open and transparent about our work, we decided that we would publish a separate Impact report where we describe the difference we make as a charity. We know we make an impact because the many people who use our services tell us, often in the most glowing terms. And like other changes we are embarking on at AvMA, we are in the foothills and will continue to build on the improvements we make in the years to come and in support of our ambitious five-year strategy which we recently published.

I am conscious that I am writing this blog in the middle of a general election campaign, the outcome of which will change how some of our public services are provided, regardless of which party wins. At all elections, politicians make their “retail offer” to the public and set these out in their respective party manifestos. AvMA’s own priorities are shaped by the issues that those we support raise with us. Through them, we hear, first-hand, of their experiences. As you can imagine, some of the events we are told about are disturbing and shocking. And the cumulative experience of all those events leads me to think about what my dream manifesto would include.

In thinking about this, I start with the opening line from the NHS Constitution, which reads, “The NHS belongs to the people”. That strong opening sentence is supported by a range of commitments about what the NHS should deliver. And of course, we at AvMA are not just concerned with healthcare. Part of our role brings us into direct contact with the legal system, where we also support many families as they seek justice, whether to fund a needed care package or to get answers about the death of a loved one through a Coroner’s inquest.

Healthcare:

In terms of healthcare, my dream manifesto would therefore commit and prioritise:

1.     Reducing healthcare inequalities and investing in preventative healthcare strategies. The NHS is overwhelmed with record-high backlogs. Pumping in more resources is not feasible without raising taxes, which no party seems committed to. Therefore, we should address healthcare inequalities, which we know are linked to patient safety incidents, and implement a preventative healthcare program to help people be healthier, reducing the strain on the system.

2.     Eliminating compounded harm. Too often, when medical harm occurs, the healthcare staff involved in trying to deal with the aftereffects can make matters worse. This is seldom deliberate but points to a poor culture of safety combined with a lack of understanding and training for staff in how to resolve such matters using best restorative justice practices. If this is to improve, then training and supporting staff in what compound harm is, and how to better understand and support patients and their families in such circumstances using restorative practices, must be an essential priority. This would form part of sensible investment in a modern workforce committed to patient healing and care. And whilst there would be an up-front cost involved in delivering this, I am confident that there would be real savings in downstream litigation costs as undoubtedly some of the litigation we see is directly attributable to this compounding of the harm.

3.     Reviewing the NHS complaint system and ensure an effective independent second stage. Many people today find that complaining to the NHS about their treatment is a wholly unsatisfactory process. There is a general lack of respect by healthcare providers for the importance of the complaint process – honesty, accountability and genuine apology are all too often missing. Investigations are poorly carried out, staff are inadequately trained, and candour is lacking. While there is a second stage mechanism to take the case to the Parliamentary and Health Services Ombudsman (PHSO), the PHSO is working under arcane legislation and limited resources, which means that it can be an unsatisfactory process for too many people.

Advocacy and Accountability:

An NHS that belongs to the people must provide effective advocacy when avoidable errors occur and be more accountable. Four further manifesto dreams that are practical ways that advocacy and accountability could be strengthened would be:

4.     Deploy Independent senior advocates in the NHS. A new Government must acknowledge and recognise that many people find navigating our NHS difficult and complex, especially if an issue or problem arises such as medical harm. Injured patients and/or their families cannot be expected to manage this journey on their own but should instead be provided with the option to receive readily access support from a trained, independent advocate who is experienced and knowledgeable in navigating the NHS in helping patients secure the outcome they need and are entitled to.

5.     Revision of Fixed Recoverable Costs. When people impacted by avoidable medical harm turn to and need the help of a legal adviser then they should not be penalised to pay for the costs of litigation if they secure compensation designed to meet the costs of future care for themselves or a loved one. The rules of costs need to be reviewed with meaningful consultation with the interested organisations and parties.

6.     Equality of arms at Coroner’s Inquest. A grieving family must have equality of arms at a Coroner’s Inquest. The Justice Committee heard evidence on this point at length and recommended that non-means tested public funding should be available to a family so they too can have legal representation at the inquest and, therefore, the opportunity to participate in the proceedings in a meaningful way. That recommendation has only been partially delivered. Families seeking representation at a healthcare inquest are invariably unable to overcome the exceptional funding merits test, which requires them to show that it is either an Article 2 ECHR inquest and/or that representation is in the public interest such that a class of person will benefit from funding for representation being awarded.

Ensuring equality of arms for families is about recognising and respecting the fact that if a publicly funded body such as the NHS has legal representation, then the family should too.

7.     Implementation of a National Oversight Mechanism (NOM). A well-conducted inquest can identify important seams of learning, whether through an NHS Trust volunteering an Action Plan to address the failings or through the coroner issuing a prevention of future death report (PFD). To make the most of that learning and to ensure the changes promised occur, there needs to be a National Oversight Mechanism (NOM) – this, too, has been recommended by the Justice Committee but not implemented by the Government.  A NOM could ensure that the changes are delivered and that themes, trends and patterns of poor practice can be better identified.  Learning could be shared nationally and not confined to a particular region as happens now.  A well set up and properly funded NOM would promote and improve patient safety. It would act as a red flag by being able to identify persistent weaknesses in individual Trusts, poor practices and/or management contributing to deaths and potentially pre-empt further scandals and poor practices. It could ensure accountability is secured by making sure that lessons learned, and changes promised from such events are meaningfully made and fulfilled.

So that is seven ways that a new Government could make real improvements to patient safety and access to justice and improve accountability of a cherished NHS. Yes, each has a cost, but the alternative is a cost borne by every person who contacts us in distress at the harm they have suffered, which in turn impacts their well-being, health and, for many, their economic livelihood. We cannot ignore those costs any longer.

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Action against Medical Accidents (AvMA) is the UK’s leading patient safety and access to justice charity.  We offer a range of services to patients and families impacted by avoidable medical harm. We are completely independent and rely on volunteers, fundraising and generous donations from supporters to enable us to help patients and bring about change. Find out more at www.avma.org.uk

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