Speech at Royal College of Physicians and Faculty of Forensic and Legal Medicine Joint Conference on Multiple Medico-Legal Jeopardy

Speech by Ann Abraham, UK Parliamentary Ombudsman and Health Service Ombudsman for England

27 November 2008

The idea of ‘multiple jeopardy’ is no doubt an intimidating one for those of you who live your professional lives in its shadow, a case of constantly looking over your shoulder to see where the next challenge is coming from. I expect there are many who suspect that ‘multiple jeopardy’ is already in the process of undermining professionalism, leading to demoralisation and defensive practice – the very opposite, in fact, of the sort of aspirations most people would have for the health service and most medics would have had for themselves when they embarked on their professional careers.

Well, without sounding too much like Polly Anna, I want in this session to strike a more positive note, and part of my justification for doing so is that, as far as complaints handling about medics is concerned, we are very shortly to see the removal of one of the layers of accountability – the Healthcare Commission – and the reduction of the complaints system from three tiers to two. From April next year, my office – in its role of Office of the Health Service Ombudsman for England – will be the first and only port of call for complainants once they have exhausted the local complaints-handling mechanism. The good news is, as a result, that the degree of ‘jeopardy’ is about to narrow considerably, at least if these things can be judged on a straightforwardly quantitative basis.

But before you get carried away with the euphoria, I want to explain why I want to keep the pressure up, why I think the quantitative reduction in accountability must not be seen as a qualitative reduction as well, and, actually, why that is in fact part of the good news. Complaints – like regular check ups and daily aerobic exercise – are good for you, even if you don’t realise it at the time. And I want to explain why I believe this by doing three things: I want to restore the business of complaining to its ethical context, so we can see it for what it is and not as a form of individual psychopathology or social disease; I want to make the connection between that ethical context and what I see as a shared vision for the health service, a vision which recognises the NHS, as the Secretary of State put it not so long ago, as a ‘social movement’ just as much as a health care system; and I want to explain what an Ombudsman has to do with all this, what sort of thing a health service Ombudsman in particular is and the sort of contribution an Ombudsman can, and does already, make to the business of ‘making things better’. This is not to rule out jeopardy altogether, of course, but it is, I hope, to make some sense of that jeopardy and to acknowledge it as part of the way forward.

So let me start with a few words about complaining. It is tempting to think of complaining as a form of weakness, a lack of personal resilience and sense of balance, an inability to cope with life’s troubles and so as a form of personal failure. Perhaps the model for our picture of the typical complainant is Victor Meldrew, a man with too much time on his hands and an insatiable capacity for a misplaced sense of outrage. But I want to switch from that image to something rather different. I expect like me, and regardless of your political preferences, many of you will have watched with a sense of wonder and humility the election of Barack Obama as the first black president of the United States. Nothing of the Victor Meldrew about Obama or his personal story, we might think. Yet it is not too fanciful to suggest that the social process that led Obama to the White House started with a complaint, a complaint that grew in the 1960s from an ordinary sense of injustice and indignity in Alabama, and in Selma, and in Montgomery, a sense that things were not right and could not simply be left to rot any longer. Now at its best, all complaining is like that – rooted not in self-interest and a false sense of self-importance but in a sense of things being out of order, of their needing to be put right, not just for the person brave enough to put their head above the parapet and make the complaint, but for everyone else as well. As in all walks of life, when it comes to complaints there are good and bad, good complaints and bad complaints, but, at their best, complaints imply a sense of disappointment, a falling short of ideals, and a belief that it matters enough to make a bid for change.

Complaining has a noble modern history, from Emmeline Pankhurst to Martin Luther King and Nelson Mandela, but just as the severity of a medical complaint should be measured not by how loudly it draws attention to itself but by the extent to which the body really is damaged, so we should not mistake the loudness of a complaint for its importance. It is with complaints that really do express the sense of a ‘body damaged’ that I am most concerned, not least because such complaints when directed at the quality of healthcare contain within them a vision of what ‘the body’, in this instance the health service, should feel like when in proper working order. And so before turning to the distinctive role of Ombudsman in the therapeutic task of remedy, let me say a few words about the state of the health service ‘body’, about what it can and should aspire to when in proper working order.

It seems to me that the draft NHS Constitution, and the thinking behind it, is a better place than most to turn for a vivid image of what the NHS is all about. I don’t intend to rehearse in any detail the content of the proposed constitution. Instead I simply want to point to what I take to be its distinguishing characteristic, the desire to put the individual human person at the centre of things. That desire is given expression in the references to respect and dignity, to compassion and to the assertion that ‘everyone counts’. It is present also in the aspiration to ‘work together’ for patients and to ‘improve lives’. This is not, as I see it, a technocratic vision of mechanised systems and impersonal efficiency. Of course, excellence and professionalism are part and parcel of the vision, but they are presented very much as a means to an end and not as a technical end in themselves. That desire to put the individual human person at the centre of things translates very easily in the draft text into a statement of rights and responsibilities that underpins the shared vision of quality care. Far from detracting from the importance of care and compassion, the statement of rights and responsibilities helps put some flesh on the bones of those ideals by explaining what the minimum expectations of users should be, and by recognising those areas where the NHS will ‘strive’ to do even more than meet those minimum expectations.

The draft constitution in other words explains what it means by asserting that ‘the NHS belongs to the people’. To make that assertion is not to deny that the NHS belongs as well to you, to those who work in it. But it is, I suspect, to introduce a deliberate emphasis that it is surely hard to argue with: the NHS is run first and foremost for those who use it, not for those who run it.

I am reminded of the time some years ago when I was Legal Services Ombudsman for England and Wales. What became increasingly clear over the years was that part of the problem with the legal system was the way in which large swathes of it were still run as if the most important things were the status, professional pride and personal convenience of lawyers. The manifestation of those priorities, some of them dating back to the nineteenth century, had become unconsciously embedded in the system, to the extent that many lawyers of goodwill simply no longer noticed the lop-sided way in which much of the system operated.

Now, I would not presume in front of this august audience to draw too detailed an analogy between the medical and the legal professions, but I do wonder whether the shift from a health system predicated on the primacy of ‘patient need’ as identified and interpreted by the doctor, to a system that puts patient rights and empowerment first, is not in some ways similar. Certainly the challenge to established culture and practice is as evident, even though I suspect that the vision of patient empowerment is not too far away from the spirit of 1948 and is already present in many of the changes that have marked the NHS in the last twenty years.

That recognition of the primacy of patients is, I would suggest, where I come in. The role of Ombudsman is of Scandinavian origin. The first ombudsman was established in Sweden in 1809. It was not until 1967 that we in the UK established our own Parliamentary Ombudsman, and even then we were typically coy about it all, calling the office not Parliamentary Ombudsman but Parliamentary Commissioner for Administration. It was not until 1993 that the health service role was added to the remit, with oversight of clinical judgment complaints added even more recently in 1996. At the very heart of the ombudsman concept, as originally imported from Scandinavia, is the idea of ‘lay’ oversight, of being a representative of ordinary people, of seeing things from their perspective, unencumbered by all the misperceptions that can go with too much specialised experience and too much arcane expertise. The danger of a too narrowly focused expertise is of course that we can end up not seeing the wood for the trees.

Conversely, the task of seeing the wood and not being overwhelmed by the beauty and intricacy of the individual trees, the task in other words of an ombudsman, is all about the bigger picture, about the bigger picture afforded by seeing the patient as an individual human person, by seeing medical intervention as part of a whole range of social and economic factors that make up the complex possibilities of well-being, about the bigger picture that recognises that individual patients rarely exist in isolation from their families and other social networks, and that very often there will be many other people too with a stake in their care.

It is the need to keep that bigger picture in view that has led to an important initiative in my Office over the last couple of years to produce what I like to think of as a trilogy of basic principles governing our work and the work of those public authorities within our jurisdiction. The trilogy comprises concise statements of principle in respect of good administration, of remedy and of complaints handling. These are not rules, of the sort you might expect a court or a Hattie-Jacques-type Matron to be concerned with. They do not prescribe desirable behaviour in any detail, nor do they tailor their application to particular sectors. They apply just as much to the Inland Revenue as to the health service, to the Rural Payments Agency as to the Consumer Council for Water. The key principles outlined are these: getting it right; being customer focused; being open and accountable; acting fairly and proportionately; putting things right; and seeking continuous improvement. These key principles of legality, flexibility, transparency, fairness and accountability are, if you like, my rule of thumb for evaluating the performance of public authorities, including those in the healthcare sector.

It is important to remember that this is my starting-point. My statutory remit as far as the health service is concerned is, in essence, to investigate alleged injustice or hardship sustained as a result of a failure in service or as a result of maladministration. As far as I am concerned, the key tools at my disposal for determining whether there has been maladministration or service failure are contained in the Principles of Good Administration. It is the failure to live up to those principles, to apply those principles in the detailed context of health care provision, that is likely to lead to an adverse finding.

Recently, the courts have had cause to consider the relationship between the standard applied by my Office and the standard applied in professional negligence proceedings, the so-called Bolam test, which sets the standard as that adopted by a ‘reasonable body of medical opinion’. As the court made clear, however, the Ombudsman is perfectly entitled to approach the question of failure in service from a point of view that is different from the approach of the courts in negligence actions. It would, for example, the court said, be open to me, whilst recognising that a finding of negligence could not be made, to make a finding of failure in service if the clinical care fell below best practice within the NHS. I inherited from my predecessors the habit of putting this alternative standard in terms of service falling below that which the patient could reasonably have expected in the circumstances. With the publication of my Principles of Good Administration, it should come as no surprise that those expectations should have begun to be shaped by the Principles themselves. It is after all the failure to live up to those standards that is a sign of culpability.

But let me make it clear here and now, today, that the statutory test remains what it has always been – maladministration or service failure. However, when it comes to the task of determining whether there has been an infringement of either standard, the publication of my Principles of Good Administration dictates that I will first and foremost have regard to those Principles in reaching my decision. In doing so, I will indirectly have regard to lots of other things too that are implicated in those Principles, to the NHS Constitution when it comes into force, to specific guidance and ‘soft law’, to the overarching framework of human rights principle, and of course in certain circumstances to the way the courts apply ‘hard law’. But it is the Principles of Good Administration that pull together those various threads into one coherent pattern.

Is this then an example of ‘multiple jeopardy’? I suppose that it might be seen that way, since it is perfectly possible for a health authority to resist a claim of professional negligence yet find itself on the wrong side of a finding by me of maladministration or service failure. To that extent, there is no escape. But there is a big difference between my findings and those of a court or of the General Medical Council, for example. And that big difference is that at the end of an investigation I do not make a final enforceable judgment that must be complied with for fear of legal consequences. Instead I make recommendations, which may or may not be complied with. Naturally, I expect that in most cases my recommendations will be complied with, and in fact in 99% of cases that expectation turns out to be justified. Nevertheless, It remains open to a public authority to refuse and to face the music instead. True, there is a certain amount of moral compulsion behind an authoritative Ombudsman recommendation, but in the end there is no legal compulsion. To that extent, the jeopardy is of a rather different sort from that to which arises in legal proceedings. And the jeopardy is, I would suggest, of a kind that is quite properly moderated to fit the distinctive remit of an Ombudsman, as a lay ‘voice’, albeit an authoritative one, in an unfolding dialogue between patient and hospital, patient and medical practitioner. This is, to put it in the jargon, a ‘mandate of influence’ rather than a ‘mandate of sanction’.

Let me turn by way of conclusion to consideration of the way in which this ‘multiple jeopardy’ is not quite the bad news for practitioners that it might at first glance seem to be. And I will do that by pointing to a couple of recent examples where ‘good complaints’ have helped bring about real change of the sort that I feel confident most medical practitioners would approve.

Mr Z, aged 74, was admitted to hospital with pneumonia. He was in intensive care until transferred to a respiratory ward. He later contracted MRSA, developed diarrhoea and was found to be infected with C.difficile. He was then transferred to another hospital where he suffered recurrent C.difficile infection. Mr Z died a couple of weeks later, with the cause of death noted as respiratory failure. Not surprisingly, Mr Z’s daughter questioned the death certificate and wondered whether the Trust had not contributed to her father’s death and his acute suffering during his final days. My office’s investigation found that a number of specific alleged failing on the part of the Trust could not be upheld. We did find, though, that when taken in the round the evidence pointed to serious failings in the quality of the Trust’s service. These included, for example, a lack of monitoring while Mr Z waited to be transferred from intensive care and a delay in carrying out a medical review. We also found there had been extremely poor nursing care in relation to planning, communication, pain management, infection management, patient privacy and dignity, and monitoring of fluid intake and output. On top of all that, we concluded that the complaint should have prompted a wider review of nursing care, which in turn may have led to a more co-ordinated approach to implementing improvements and would certainly have given strong indication that the complaint was at least being taken seriously. The result was that the Trust wrote to Mr Z’s daughter apologising for the failings identified and promising to review the areas where there had been serious failures. In particular, it agreed to provide Monitor (the body that authorises and regulates NHS Foundation Trusts) with information to demonstrate that its practices in the areas in question were in line with current standards and to report back to Mr Z’s daughter on the action taken in response to our recommendations.

A second example concerned Mrs M, who was advised to have a bilateral mastectomy. When she discussed the operation with the Breast Care Nurse, Mrs M made it clear that the position and cosmetic appearance of the scarring were important considerations in whether she would have the operation or not. When the Consultant Surgeon gave Mrs M a consent form to sign, she hesitated and did not sign the form immediately. She did eventually sign, however, and the operation went ahead. When the bandages were removed, Mrs M was horrified to discover that, rather than two scars below the breast line, as she had expected, she had been left with what looked like a single horizontal scar across her chest wall, above her breast line. Mrs M complained about the appropriateness of the surgery and consent procedure in relation to the nature and extent of the scarring. She made it clear that she did so, not to get compensation, but to have it acknowledged that the operation performed was not the one she had consented to. We found that the operation was in fact entirely appropriate and that the consent procedure was in many respects acceptable too. However, we also noted that there was no review of the consent at the time of the admission immediately before the operation. We also concluded that, in the light of the information given to Mrs M, she might well have expected two separate scars running across the lower to middle part of her chest. In other words, there were overall sufficiently serious shortcomings in the consent process to undermine its validity. As a result, the Trust apologised to Mrs M and in addition gave an assurance that lessons had been learnt from her complaint, and offered an explanation of the changes made to prevent the failures being repeated.

Now, these examples seem to me to be instructive in a number of ways and to justify what we are today being invited to think of as ‘multiple jeopardy’. First of all, these strike me as ‘good complaints’, in the sense I referred to earlier: they express a sense of disappointment and disillusionment, and they are motivated by a desire to put things right for others in the future rather than by self-interest. Secondly, as in so many cases, the issues are not black and white, but rather an indeterminate shade of grey: in a number of regards the hospitals and medics in question had performed well, but in a few crucial aspects they had not. Thirdly, the ‘blame’ did not fall fairly and squarely at any one individual’s door: these were collective and organisational failures, no doubt made up of some individual failings too but in essence a systemic falling short of acceptable standards. Fourthly, the remedies achieved were examples of what I would regard as restorative justice, in the sense that steps were taken to restore to the complainants their confidence in the system and a sense of their own worth as individual users of the system: not only did the hospitals undertake to put things right in future but they involved the complainants in that process and kept them informed of progress. And finally, the delivery of that form of restorative justice comprised what I would regard as a mixture of individual and public benefit: the individual dispute was resolved but the future benefits, derived from lessons learned, had about them a public and shared quality.

For the individual medics on the receiving end of these findings, I dare say there was a measure of discomfort, and, let’s face it, on the facts there should have been. More importantly, these were complaints that showed up not just individual failings but damage to the body of the health service as a whole. It was right that this damage was brought to my attention, and incumbent upon me to seek to repair it. Without that intervention I believe that the future of the service would have been diminished, for those who use it as patients, certainly, but also, and just as importantly, for those who work in it as doctors, nurses, paramedics, managers and support staff. What I say to you, then, by way of conclusion, is that in the end, multiple jeopardy, perhaps against all the odds, has the potential to turn itself into a form of multiple benefit, and that I hope you will agree makes it all worthwhile.

Ann Abraham
27 November 2008