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May 2014
Number 6


“For millions of years, mankind lived just like the animals. Then something happened which unleashed the power of our imagination. We learned to talk and we learned to listen. Speech has allowed the communication of ideas, enabling human beings to work together to build the impossible. Mankind’s greatest achievements have come about by talking, and its greatest failures by not talking. It doesn’t have to be like this.”    Stephen Hawking.

One of the most interesting things about working as an expert witness is the ability to think and to talk to others – lawyers and the Court, but hey, they are human – about problems and puzzles, without any duty to cure anyone. At least not unless you spot some urgent life threatening disorder or disease. Then it is time to forget being a witness and to act.

It is the same, one might suggest, about being a politician. You can talk a great deal, consult, bask in the transient admiration of voters and civil servants, and actually do very little. Unless you spot some urgent election threatening disorder or disease. Then it is time to forget being a Minister and to act.

So with a year to go until the general election, how should professionals, expert witnesses, and lawyers read the latest Jeremy Hunt initiative, announced as it was in Seattle? Sleepless or otherwise, his party is thought by many to be walking to a disaster with the NHS as a wobbling pillar of Hercules.

Thus a new ambition to “reduce avoidable harm in the NHS by half over the next three years, cut costs and save up to 6,000 lives” can be read on many levels. Why it is limited to only 6,000 lives is a mystery, but if even one life would be a bonus. The Secretary of State announced details of how NHS organisations will be encouraged to work together to improve patient safety and save money. For veterans of the 1996 QED (Quid Each Day) campaign or the 2006 "Every Lightbulb Helps" this may not seem revolutionary, but it is at the very least of interest to expert witnesses. If not doctors and administrators.

Each NHS organisation will apparently be “invited” (is this an offer they cannot refuse?) to ‘Sign up to Safety’ and set out publicly what are intended to be ambitious plans for reducing avoidable harm, such as medication errors, blood clots and bed sores over the next three years. The NHS Litigation Authority, which readers know indemnifies Trusts against law suits, has agreed to review the plans and, when approved, reduce the premiums paid by all hospitals successfully implementing them. The equivalent of Direct Line giving a discount to policy holders who join the Guild of Experienced Motorists or some such worthy group.

This is more than frippery. This year the NHS will spend at least £1.5 billion on litigation claims and a further £300 million on legal costs. Anything that reduces this sum must be worthwhile for the taxpayer, let alone the patient.

Hunt has once again promised that the government will actually introduce the long awaited Duty of Candour, making openness and honesty the norm across all health and social care organisations. It will apparently mean providers must notify the patient about incidents where ‘significant harm’ has occurred and provide an apology. This will mean that there will be a base from which experts can review the nature of the sub-standard care where a claim is actually made – but it is also hoped that candour will reduce the number of claims. Jeremy Hunt said: “It is my clear ambition that the NHS should become the safest healthcare system anywhere in the world. I want the tragic events of Mid Staffs to become a turning point in the creation of a more open, compassionate and transparent culture within the NHS.”

Other plans to improve patient safety as part of the package include consulting on the threshold for duty of candour to include significant harm, as part of the Care Quality Commission’s (CQC) registration requirements (as recommended by the Dalton-Williams review). This will mean every organisation registered with the CQC will have to be open about all cases of significant harm including death, severe harm and moderate harm, including prolonged psychological harm.

If this all comes to pass, no doubt it will be welcomed by experts and practitioners as well as by doctors and patients. Can it be delivered by the next election? Time will tell and, if not, it will be interesting to see whether it will survive any change of regime that is put in place.

For expert witnesses, however, the duty to enquire neutrally, and to report to the Court, will remain regardless of how the Duty of Candour applies in practice. As Dr Hawking said at the opening of the paralympic games – “Don’t look down at your feet, look up to the stars: be curious”. A fine message for all our readers. Next month – Ambulance Chasing: a cautionary tale from the North East.

By Jonathan Dingle, Barrister-at-Law of 218 Strand and a leader on Specialist Info medico-legal courses.