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Accountability:Who Cares? – A Personal View

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What a tumult of hoary, institutional scandal has burst upon this country in recent times.

In the bosom of the Mother of Parliaments, the mother of an expenses fraud. At News International, endemic and management-endorsed phone hacking. At the BBC, and elsewhere, cover-up, or at least the turning of an institutional ‘blind eye’, to the worst excesses of moral depravity and exploitation.

Now, as the nation tries to come to terms with the grotesque premature mortality rates recorded at the NHS Mid-Staffs Hospital Trust (and, it is thought, at least 5 other NHS Trusts), the journalistic vocabulary of ‘accountability’ has reached a new crescendo.  This vocabulary is imprecise, retributive and emotive, but nevertheless forms the predictable lyric to a thousand wailing voices that clamour for ‘justice’ in a swelling and macabre ululation that novelist, Alistair Maclean, would probably have referred to as a ‘threnody of despair’.

Systemic failure, double standards, institutional apathy, corporate secrecy, official corruption.  Who would have thought old Albion would have had so much blood in it?

It has rather less now.

StaffsignIt’s a scandal. It’s a crime. Or is it?

Who should be ‘accountable’ and to whom, and how, should they ‘account’?

The failure of an institution such as an NHS Foundation is only a ‘systemic’ failure because the responsibility for the failure is spread, and, in some cases, one must suspect, is deliberately syndicated, throughout the entire organisation.

“Who’s in charge?” was the first question that Florence Nightingale would ask upon arriving at the front-line hospitals in the Crimea.

Good question. If no-one is in charge, no-one is accountable to anyone. Convenient when things go wrong.

It is difficult to level a legal sanction at ‘systemic’ failure precisely because we are asked to believe it is the failure of everyone, and by virtue of that fiction, of no-one in particular.

But if every part of an engine has failed, the engine as a whole must be repaired or replaced; it is no use just changing the oil, or indeed, changing the driver.

constitution_logoThat this is all wrong is self-evident.  The Francis Report thinks this is wrong. Jeremy Hunt, Secretary of State for Health, thinks this is wrong and is now openly voicing the need for a criminal investigation of those responsible for the deaths at Mid-Staffs. Experience tells us that only a legal sanction that potentially hits the individual in the pocket, or results in individual criminal liability will stop the rot.

….1200 premature hospital deaths in 4 years, for Pity’s Sake!

It is difficult to see how a contrary view is tenable.

If all have failed, then all must be held to account, and such current legal sanctions as are available must be brought to bear, with granular rigour, against all who have fallen short of the basic standard of care required by the duties, for the reasonable discharge of which they have been reasonably, in some cases, more than reasonably, remunerated.

At this point, a quick scan of the NHS Constitution is instructive.

Never was there such an elaborate hyperbole of rights and duties.

Principle 7 of the over-riding principles governing the NHS is:

The NHS is accountable to the public, communities and patients that it serves”.

Section 3(b) (Staff Responsiblities) intones:

You have a duty to accept professional accountability and to maintain the standards of professional practice as set by the appropriate regulatory body applicable to your profession or role.”

Here are some of the basic ‘rights’ enjoyed by the recent victims of the level of care at Mid-Staffs and elsewhere:

    You have the right to be treated with a professional standard of care, by appropriately qualified and experienced staff, in a properly approved or regulated organisation that meets the required levels of safety and quality.You have the right to expect NHS organisations to monitor, and make efforts to improve, the quality of healthcare they commission or provide.
    You have the right to be treated with dignity and respect, in accordance with your human rights.
    You have the right to have any complaint you make about NHS services dealt with efficiently and to have it properly investigated.

So many rights………..so few effective sanctions for breach of those rights.

Let those individuals involved in organising and providing healthcare services at Mid-Staffs and elsewhere, remind themselves of the following ‘values’ that, by contract and by vocation, they espouse, and let them ask themselves whether they consider they should bear any personal responsibility for what has gone wrong there:

NHS Constitution
What is the point of such an ostentatious deference to the principle of accountability and basic standards of medical care, when there is no clear, swift and unambiguous legal sanction available to enforce the rule?

Without individual penalty for such grievous failures as have manifested itself over a prolonged period at Mid-Staffs, it is all just so much window-dressing…a tale told by an idiot, full of sound and fury, signifying nothing. ‘Come inside, wash yourself, feed yourself, thirst, suffer and die alone in your own filth’, would be a more fitting charter.

The NHS and its insurers can absorb any amount of civil liability. Nothing will change until the principle of individual accountability, both civil and criminal, is clearly enunciated and pursued.

Against whom?

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Criminal liability for clinical negligence is a subject that has exercised jurisprudential minds for decades and continues to do so. The basic principle seems to be that a medic who is ‘grossly negligent’ may incur, not only civil liability and professional sanction, but also criminal liability for manslaughter. The facts are always paramount.  A momentary, but lethal, mistake in the operating room, may not amount to a criminal act. However, deliberate or reckless, behaviour that leads to death can give rise to criminal liability.

Against this principle, how should we judge doctors, nurses and ward staff who, deliberately, wilfully, and continuously, deprive patients of basic care and assistance to the point of death, where no death should have occurred, often not only against the constant imploring of the patient, but also the voluble complaints and protestations of the patient’s entire family.

Criminal negligence? I’d say so. Seems like more than enough grounds for prosecution there, to me.

And where  such ‘carers’ are regulated by the General Medical Council and the Nursing and Midwifery Council, why have the disciplinary committees of these professional bodies not hauled up those so flagrantly breach of their professional codes of conduct  ‘en masse’ and, er, yes……held them professionally accountable?

And what about the governors and the directors of the trusts responsible for delivering the rights and standards set out in the NHS Constitution? Should they not be individually financially liable for damages for breach of trust in their capacity as trustees. The principle set out in section 31 of the Trustee Act 2000, that a culpable trustee has a right to be indemnified from the resources of the trust, has its limits. Surely, that principle of indemnity, should not apply to any trustee who deliberately, wilfully, or simply recklessly, flouts the care standards that he or she is entrusted to uphold.

If directors and managers can be prosecuted personally and receive custodial sentences and substantial fines for failing to maintain safety standards withing the workplace contrary to the Health and Safety at Work Act why should not the governors and directors of NHS Foundation Trusts, and those bodies whose role it is to monitor such Trusts, also be liable to criminal prosecution for breach of statutory duty for allowing standards to fall so low that patients are needlessly dying under the care of the institutions for which they are responsible?

My lecturer in the Law of Tort at Cambridge, the late, lamented ‘Mickey’ Dias, QC, Emeritus Professor of Magdelene College, a very precise and rigorous mind indeed, opened and, in the same breath, concluded his first lecture on Tort with the words: “First, there is a duty of care. Then there is a falling short of the duty of care. That’s really all you need to know about it”. I think he would not have needed to elaborate beyond these simple words to encapsulate the meaning of ‘accountability’.

notmyfaultWhilst there is no merit in ‘scape-goating’, those individuals responsible, in whole or in part, for causing death by deliberate or reckless neglect, should be prosecuted and held to account to the fullest extent of the criminal and civil law and to the fullest extent of their various regulatory bodies.

Where it is a matter of life and death, the prime responsibility must be individual, not corporate or institutional.

Let’s get rid of the ‘systemic failure’ defence and start bringing individuals to book.

It’s your fault.  It’s my fault.

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