Recent  news that Southern Health NHS Foundation Trust has been criticised for failing to properly investigate the deaths of more than 1,000 patients comes in a period  that has seen considerable bad news for the NHS.  Most notably the bad news appears to be in dealing with complaints and  investigations.

It should be remembered that the majority of the NHS is now under “a duty of candour”; a contractual obligation to be honest and open with patients and their relatives in relation to adverse incidents of moderate and above severity. 

One would assume that deaths of any patient is likely to be considered serious and the idea that an NHS Trust may have failed to properly investigate deaths of so many occurring as they did over a one year period between March 2010 and April 2011 seems, frankly, astonishing.  This of course was not the time when the duty of candour was in place but the very fact that many of these deaths were not investigated properly is a matter of concern. 

Earlier in the week, Dame Julie Mellor, the  current Parliamentary and Health Service Ombudsman demanded an  overhaul of how hospitals examine serious complaints made against them in which those mistakes led to patients being possibly harmed or killed

She found that three out of four investigations by hospitals into complaints that patients had suffered avoidable injury or death failed to identify any serious failings in care.  It seems that she found that hospital staff enquiries were often inadequate and many complainants were simply met with a wall of silence. 

For those of us working in clinical negligence work, this does not come as a surprise.  Despite the duty of candour and the emphasis on open and frank discussions following the North  Staffordshire Hospital scandal, many of my clients still present, having gone through the laborious complaints procedure, no wiser than when they entered.  Further, I am still receiving correspondence that completely denies any wrongdoing in the face of what would appear to be barn-door negligence. 

This isn’t the case with all Trusts and some hospitals have taken on board a more pro-active and responsible approach.  However, some Trusts are still providing clients with convoluted, obscure and poorly drafted responses to complaints.  The only possible logical interpretation of some of them is that they are intended to confuse the complainant or to divert their attention to other matters.  They often contain apologies in relation to minor indiscretions and problems with care, but the real issues are very rarely addressed. 

Even when the client has a letter indicating fault, it doesn’t necessarily mean that the litigation that may follow is likely to be straightforward.  I have a case where the Trust admitted fault.  They admitted that a lumbar puncture should not have been done at the time that it was and as a result of which, my client is paralysed.  However, the solicitors acting on behalf of the Trust (via the NHSLA) appear to have no such instructions.  I am informed that they are investigating the matter. 

My client is elderly, paralysed and living in wholly unsuitable accommodation.  If the Trust’s solicitors continue to act in this way, it will delay the settlement of the claim by eighteen months, during which time my client is essentially when at home a prisoner in one room.  None of her family can get her out of the house because she is in a form of accommodation that is unsuitable so the only way that she can get out is when the ambulance service come to remove her by physically carrying her through the doors.   I had hoped that we would be able to resolve and obtain an interim payment for my client at an early opportunity in order to try to provide them with accommodation that was much more suitable to her needs.  I now have to explain to the family (as I have done so) that despite what they were told in the meetings with the Trust, despite the assurances of the Legal Department of the Trust and the senior Consultant, no such resolution appears to have occurred.

This is not indicative of a new world of open and fairness.  This is not indicative either of a system which wants to reduce legal costs.  The legal costs of both sides investigating an issue which should be resolved at the outset is likely to be somewhere in the region of £100,000 to £200,000. How is that of any benefit to the NHS?  It certainly isn’t of benefit to my client.

For all the clinical governance in Trusts and for all the publicity from Trusts saying that they have learned their lessons and they will be honest and open with their patients, it seems to me that we are a long way from that.  The complaints that were investigated and the deaths that were investigated were a few years ago.  The attitude that led to that situation is not changing very quickly while the numbers of people affected rises.

That is the tragedy of this recent news.  It reinforces what clinical negligence solicitors find every day.   We are not getting the co-operation that we should be getting in order to resolve cases early and to reduce costs.  That does not help the NHS and it is of no assistance at all to our clients.