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Is
this the INDEPENDENT STATUTORY AUTHORITY [ISI] for which SIN has
been campaigning for two years?
We believe SIN has been completely vindicated! We believe
it is only because of pressure being maintained by SIN and
other patient support groups that improvements are beginning to occur
which should result in better protection for the patient.
A new agency which will
have the powers to suspend and dismiss dangerous doctors should be in operation
by April. This Agency has been created to restore the public faith
in the medical profession.The Sunday Telegraph, dated 7th January 2001,
outlined the powers of this new Agency, which will be involved with monitoring
both GPs and hospital doctors.
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It will monitor standards and
identify doctors suspected of negligence or of deliberately harming
patients.
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doctors who come under investigation
will be suspended immediately
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those found to be dangerous
will be banned from working in the NHS
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the Authority will supplant
the discredited GMC as the main guardian of patient safety, although
the GMC will retain the formal right to strike off doctors.
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the new Authority
will investigate any doctor whose annual appraisal exposes serious weaknesses
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It will also carry out checks
on those who are found to be deficient during hospital clincial
audit
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the Commission of Health
Improvements (CHI) , the new hospital inspection service, can
refer doctors to this new Authority
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complaints
by patients will be investigated
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the Authority
will use a new a new national data base to monitor death rates and
"clinical near-misses" - incidents in which treatment goes badly wrong
through malice or incompetence.
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there
will be a rapid appeals process as a safeguard for doctors.
SIN
will
be following with interest this new Agency. On the surface it looks very
promising. Intelligent lay people, with high integrity, should be part
of the team responsible for running it, and preferably there should be
representation from damaged patients. One of the most most promising aspects
is that complaints coming directly from patients will be investigated.
It is most important that patients will be able to present their
evidence to impartial panels and that statements from patients should receive
the same credibility and respect as those from the health professional
or the NHS administrator.
LORD WOOLF'S
INAUGURAL LECTURE AT
UNIVERSITY COLLEGE, LONDON,
WEDNESDAY, 17th. JANUARY 2001 |
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SIN
congratulates Lord Woolf on his review of the English Courts' treatment
of medical litigation. Iatrogenic patients may now hope
for more justice.
At SIN's launching Conference
on 25th September 1999, the serious weaknesses of the 1957 Bolam Test and
the Sidaway judgement were highlighted and discussed by delegates. The
major route in Britain for obtaining compensation for medical damage has
been through the courts, and both the Bolam test and the Sidaway
judgement have been instrumental in thwarting successful claims by ambiguous
and perverse interpretations of these judgements. SIN was the first group
which had the courage to make public the fact that damaged patients could
be denied medical care - a point conceded by Lord Woolf.
In SIN's Paper, entitled
"The Patient's Voice For Equity" submitted to the Bristol Inquiry
2nd July, 2000 the Bolam Test was criticised because in our view
"it covers a multitude of sins" see page 8 Section 6.2
"The
test is the standard of the ordinary skilled man exercising and professing
to have that special skill. A man may not possess the highest skill at
the risk of being found negligent. It is well established law that it is
sufficient if he exercises the ordinary skill of an ordinary competent
man exercising that particular art.".
SIN is delighted to read
that Lord Woolf, in his lecture has exposed the weaknesses of the Bolam
and Sidaway judgements and their irrelevance in today's climate of
public awareness and the developing of greater equality in the doctor /patient
partnership, and he warns that the medical profession will no longer be
treated with "excessive deference in the courts", which it has enjoyed
to date.
Following
is SIN's understanding of some of the main points:
Reasons
for excessive deference:
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for
too long both the public and the courts have "extended to the medical profession
......the presumption of beneficence".
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there
has been a reluctance on the part of the courts to question the expertise
and quality of any honourable professional, including both doctors and
lawyers, which would ultimately result in a judgement of negligence.
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difficulty
for damaged patients in finding reliable medical expert witnesses
to speak out against colleagues.[already exposed by SIN]
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the
need of the courts to contain the costs of successful claims against the
NHS to prevent similar excessive litigation prevalent in the US
Causes for change:
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A realisation that the courts
have treated doctors and the health service with undue deference and leniency
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Only 17% of medical litigation
cases are successful in England. The courts are increasingly conscious
of difficulties of bona fide claimants in successfully establishing claims.
[already
exposed by SIN]
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Increasing awareness of patients'
rights and public expectations.
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" Automatic presumption of
beneficence" has been dented by a series of well publicised scandals resulting
in deterioration of confidence in the profession.
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" Our courts were aware that
courts at the highest level of other Commonwealth jurisdictions , particularly
Canada and Australia were rejecting the approach of the English courts
. They were subjecting the actions of the medical profession to a closer
scrutiny than the English courts, yet this was not obviously followed by
such an excessively litigious culture as is to be found in the USA".
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The NHS lawyers have defended
all claims to excess - regardless of their legitimacy, incurring
huge insurance and litigation costs. " The scale of litigation indicated
that the Health Service did not give sufficient priority to avoiding medical
mishaps and treating patients justly when mishaps occurred. It was clear
to the courts that the hospitals and the medical profession could not be
relied on to resolve patients' justified complaints". [exposed
by SIN]
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Medical technology and knowledge
are advancing rapidly and are raising points of law regarding
fundamental ethical issues hitherto unexplored.
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The final influence in the
change was the incorporation into English domestic law of the European
Convention of Human Rights in October 2000.
Weaknesses of the Bolam
& the Sidaway Tests:
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Over the last decade courts
in Canada and Australia have greatly modified their interpretation
of the Bolam and the Sidaway tests recognising the illogicality and injustice
inherent in these rulings.
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In England the Bolam
Test has meant that so long as a body of opinion can be produced in court
to uphold the defence, the Judge is not obliged to differentiate between
the quality of the two sets of clinical opinions. [ see the Bolitho v City
of Hackney Health Authority].
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However, in Canada common
sense prevails and the Law maintains that a body of medical opinion must
be logically sustainable . Coyne J's argument in the Supreme Canadian Court
explains the necessity for this approach for otherwise if any body of medical
opinion were to be accepted without scrutiny, health professionals
" .....could legislate themselves out of liability for negligence to the
public by adopting or continuing what was an obviously negligent
practice............"[ SIN asks : Is this not
the scenario which has prevailed in the English courts since the
Bolam judgement in 1957?]
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The Canadian courts also
respect the layman's opinion and his ability to evaluate certain aspects
of the case.
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The 1985 Sidaway judgement
- involving the extent of a doctor's duty to inform the patient of
the inherent risks of a proposed treatment - exacerbated the consequences
of the iniquitous interpretations of the Bolam Test.
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The courts in England have
until now adopted what appears to be an incredibly paternalistic attitude
which Lord Woolf suggests has come to mean " that patients are entitled
to know only what their doctor thinks they should".
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Both Canada and Australia
have a much more patient orientated view towards informed consent.
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In Canada doctors are under
a duty to provide patients with all relevant information relating to their
health care, surgical or otherwise together with the consequences of no
medical intervention.
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In Australia the amount of
information to be revealed is governed by the interest shown by an individual
patient in their medical condition.
Summary
SIN also welcomes
Lord Browne-Wilkinson's exposure of the flaws of the Bolam Test following
the judgement of the Bolitho v City of Hackney Health Authority
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He said that a court is not
bound to hold that a..."doctor escapes liability for negligent treatment
or diagnosis just because he leads evidence from a number of medical experts
who are genuinely of the opinion that the defendants treatment or diagnosis
accorded with sound medical practice ....."
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Lord Woolf said that he [Lord
Browne-Wilkinson] inferred that " in rare cases it would be negligent
to act in accordance with professional opinion which 'is not capable of
withstanding logical analysis'."
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Lord Woolf believes that
:"A new culture is required. A culture where if a
patient unfortunately had an unsatisfactory outcome the medical carers
were able to sympathise with the patient. They needed to recognise that
because patients felt that they had been a victim of medical malpractice,
this did not justify withdrawing treatment. It
meant that those who had a responsibility for treating the patient were
under a particular duty to achieve the best result possible for the patient".
SIN's
comments on Lord Woolf's speech:
Iatrogenic
patients have for long suspected that the legal system has been deliberately
or otherwise "rigged" in favour of the medical profession and Lord Woolf's
speech appears to have summarised the main causes of this medical
bias.
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undue
deference to the medical profession.
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The
courts persistent assumption of beneficence
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The
prolonged reluctance (43 yrs) to reassess the original interpretation of
the Bolam Test and the subsequent Sidaway ruling. Jointly these judgements
have, made the success of bona fide medical legal cases extremely unlikely.
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The
need, above all, to contain the costs of compensation claims for the NHS
(although litigation costs have soared).
Unfortunately
no one considered the consequences:
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If
the medical profession and hospital administrators know that the courts
will almost always find in their favour, then a decline in standards for
patients was inevitable.
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There
has been total denial, at all levels in the health care system, of the
effect of this unwholesome and unjust state of affairs has had on the iatrogenic
patient and relatives.
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NO
ONE SHOULD UNDERESTIMATE THE TRAUMA AND DISTRESS OF BEING DENIED JUSTICE
AND THE TRUTH ABOUT THE DEATH OF A LOVED ONE OR A MEDICAL CONDITION.
In
addition, and which is now conceded by Lord Woolf,:
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many
iatrogenic patients have to suffer the fearful effects of being denied
appropriate specialist care
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Which
ruins quality of life and carries with it a potential life threatening
risk
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THIS
EFFECTIVELY AMOUNTS TO DENYING US OUR BASIC RIGHTS TO MANDATORY HEALTH
CARE.
Lord
Woolf acknowledges that changes are imperative:
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the
implementation of the European Human Rights Act ( October 2000).
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However,
SIN believes that homage should be paid to, and credit given to the pressure
for change which has been exerted by all those courageous, iatrogenic patients
and their families who have been drawing attention to this wholly unacceptable
state of affairs for many years.
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Quarry
House NHS, Leeds, Richmond House NHS, London, and the GMC have been
swamped by "tons" of paper as whistle-blowing patients alerted
the authorities to low standards in the NHS.
It
is shameful that English courts have for so long endorsed
a culture which has resulted in the inhuman treatment of some of our most
vulnerable citizens.
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We
agree with Lord Woolf's call for a change of culture.
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SIN
has already expressed it's views on this matter , please refer to our concluding
para 11.8 page 15 of our paper " The Patient's Voice For Equity"
: (9th June,2000 ):
"
Damage is not always due to technical "negligence". Irrespective of the
cause of the iatrogenic damage the patient has a right to the truth and
should be compensated appropriately for any permanent injury sustained
without having to resort to legal action. This solution would transform
the culture of denial and cover-up to one of openness and accountability
. An equal partnership with the medical profession with the patient's integrity
respected will only be achieved when patients have access to truthful and
relevant information; control over their medical records; access to mechanisms
of impartial accountability which function; the myth of clinical infallibility
exploded; the end to professional allegiance and direct access to the policy
makers".
To read Lord Woolf's lecture in full contact : www.thetimes.co.uk |
