NHS Negligence Cases

Dan Poulter Excerpts

Tuesday 30th January 2018 Westminster Hall

[Andrew Gwynne (Denton and Reddish) (Lab)]

I beg to move,

That this House has considered NHS negligence cases.

As always, Mr Rosindell, it is a pleasure to see you in the Chair. I know that it is highly unusual for a member of the shadow Cabinet to speak from the Back Benches, so I am grateful to the Opposition Whips and to Mr Speaker for allowing me to do so as a final opportunity to seek some form of closure for my constituent in this very serious matter. I am especially grateful to Mr Speaker for granting this debate.

Sadly, I have to publicly outline how my constituent, Mr Hawkins, has been let down by public authorities. The law and NHS rules have been abused to avoid giving him the justice that is rightfully his. His attempts to seek that justice, along with some semblance of honesty and humility, have already passed the decade mark, so I shall be grateful for the Minister’s reply after I set out the case.

Mr Hawkins was admitted to Tameside General Hospital on 28 June 2006 to undergo surgery to repair a ruptured left Achilles tendon. Rupturing an Achilles tendon can tear it partially or completely, making walking difficult and the ankle feel weak. The surgery was listed for theatre in the afternoon under the care of an orthopaedic consultant surgeon, Mr Ebizie, but then postponed to the evening. My constituent believes that the most simple and sensible solution would have been to postpone it until the next day, allowing him to remain under the care of the same surgeon. He believes that that did not happen, however, because it would have meant the hospital missing its five-day Government target for a patient to receive treatment or surgery after attending accident and emergency. Records indicate that the surgery was instead carried out by Dr Manikanti, assisted by Mr Kumar. Mr Hawkins states that the change of surgeon was made without his knowledge or consent. Subsequently, both clinicians have left the hospital and the country, and the names and titles of those who carried out the surgery have been disputed.

Mr Hawkins states that the surgeon made a critical clinical error. He believes that the surgeon misunderstood the positioning of the two diagonal sutures forming part of the modified Kessler suture. They were brought to the surface and closed, which permanently fixed the repaired Achilles tendon to the rear of his leg. On 7 July 2006, nine days after the surgery, the plaster cast was removed, revealing an open wound between the two sutures. Steri-strips were applied in an attempt to close the wound, but the duty consultant wrote in his records that the wound had healed very well after surgery. Mr Hawkins states that despite being aware of the error, the hospital failed to correct it by releasing the repaired tendon from the rear of his leg as soon as was medically possible. This allowed serious adhesion and tethering to form as the sutures disintegrated.

On 12 January 2007, Mr Hawkins was discharged from the care of Tameside Hospital. Throughout the previous months, the repaired Achilles tendon had been continually swollen because of the aggravation of the fixation. Mr Hawkins raised concerns, which were ignored. Weekly and monthly appointments at the hospital were required thereafter. Mr Hawkins believes that he was discharged by Tameside Hospital before he was clinically prepared and regardless of his condition. He feels that that was done to conform to Government targets.

Mr Hawkins immediately made a complaint through the hospital trust’s internal complaints procedures. He believes that on receipt of his letter of complaint, the trust should have called him in for an examination and a scan. It should have admitted that a serious problem had occurred and carried out a further operation to release the Achilles tendon from the rear of his leg. In Mr Hawkins’s mind, the matter would then have been resolved. However, the trust decided to take a different route: it instantly instructed Hempsons solicitors.

Although, obviously, Mr Hawkins is concerned about the clinical errors that have caused him lasting damage, he is rather more appalled by the actions of a variety of organisations afterwards. He believes that those actions were deliberately designed to cover up the fact that a clinical mistake had been made, caused primarily by the replacement of a consultant surgeon with a junior doctor.

In 2008, Mr Hawkins instructed a solicitor, who requested disclosure of all full medical records. The trust passed his request on to Hempsons. However, in the immediate period after his request he received only a very selective number of his own medical files from Hempsons. Mr Hawkins’s solicitor failed to ensure that all full medical evidence was disclosed within statutory time limits and failed to apply for a court controlled disclosure, while knowing that the records he had listed were missing. Mr Hawkins’s solicitor instructed a clinical litigation medical expert, who produced a case-closing report that failed the objectivity test and was therefore invalid. The trust and Hempsons initially failed to disclose relevant medical records, doing so only after continued and considerable pressure from Mr Hawkins.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

The hon. Gentleman is a strong advocate for his constituent and makes a compelling case about the difficulties that his constituent has faced. Does he agree that the case flags up a wider problem? He mentioned solicitors being involved at a very early stage in the process. The current system for dealing with medical negligence in hospitals pushes defensive medicine and defensive approaches from hospitals. That fundamentally needs to change, because it is not good for doctors and it is not good for patients. Does he think that no-fault compensation may be a good way forward?

[Andrew Gwynne]

The hon. Gentleman makes an important point. As Mr Hawkins himself acknowledges, if the hospital trust had taken his complaint down a different route by accepting that it had made a clinical error and deciding to put it right, I would not be standing in Westminster Hall today raising his case.

Mr Hawkins continued with his complaint. In 2013, the trust eventually conceded and his remaining medical records were fully disclosed. On analysis of the records, it was plain to see that there were omissions and that pre-action protocol time limits had been exceeded. In response, Hempsons sought the opinion of a medical litigation expert. A report was produced, but it was based on the selected medical records that I mentioned earlier, as well as on the falsified information. Mr Hawkins believes that that report would fail any objectivity test and is therefore invalid.

Mr Hawkins had involved the Information Commissioner’s Office on two occasions: in 2009 and in 2013. In both instances, it judged that the Data Protection Act 1998 had been breached by the trust’s failure to disclose relevant medical records on several occasions. After much time and effort from Mr Hawkins, on 11 December 2013 the new management team at the trust finally admitted to maladministration and awarded remuneration for it. In a move that Mr Hawkins believes was an attempt to close his complaint and prevent the case from going back to the Information Commissioner, or to the court for disclosure, the new management team disclosed that it would no longer discuss actions taken by the old management team. Mr Hawkins also believes that the Limitation Act 1980 was breached from 2008 and that rules 31 and 35 of the Civil Procedure Rules 1998 were breached in compiling medical reports, because the medical experts failed in their duty to the court to be objective.

The delays in disclosure of information meant that Mr Hawkins’s complaint to the Parliamentary and Health Service Ombudsman was ruled out of time. My constituent believes that that makes a mockery of the trust’s failure to disclose his medical records within statutory time limits, which he believes the ombudsman ignored while upholding the strict time criteria regarding his making a complaint to the ombudsman.

Mr Hawkins appealed the decision on several occasions when the evidence was retrieved through the Information Commissioner. However, he was unsuccessful in overturning their original view that a letter from the trust indicated that the complaint was closed in 2007, which he utterly refutes. Hempsons later apologised and admitted that that letter did not clearly state that the local complaints procedure was closed. However, the ombudsman still refused to investigate the complaint and, in doing so, Mr Hawkins feels that the ombudsman has assisted the trust to conceal the cause and effects of a clinical error.

In 2013, Mr Hawkins wrote to the NHS Litigation Authority, as the trust was not reporting clinical mistakes. Initially, the NHS Litigation Authority would not get involved and requested my involvement, as Mr Hawkins’s Member of Parliament, which I duly offered. Two replies were received that indicated that the NHS Litigation Authority was involved in the case, despite previous assertions and written evidence that it was not involved. Mr Hawkins was notified in writing that the trust, on receipt of his letter of complaint, had instructed Hempsons in January 2007, with the NHS Litigation Authority directly instructing Hempsons and the trust from November 2007 to February 2009.

Hempsons was aware of a breach of the Limitation Act 1980 and the Data Protection Act 1998 when it disclosed to Mr Hawkins his missing medical records in October 2009. This means that the trust and Hempsons had illegally avoided disclosing all full medical records within statutory time limits and successfully passed the three-year limit for litigation. Mr Hawkins believes that indicates that the NHS Litigation Authority was aware that rules had been broken, yet failed to take retrospective action based on the strength of the evidence that he had disclosed to it in 2013.

The actions taken by the trust, assisted by Hempsons and the NHS Litigation Authority from January 2007 to December 2013, clearly indicate that the trust was covering up a clinical incident and its cause. With so much time having passed since my constituent first exited the operating theatre in the summer of 2006, I hope that today the Minister of State will be able to afford Mr Hawkins guidance and support in this matter, and finally bring to some closure what has been a dreadful episode for my constituent.

--- Later in debate ---

[Stephen Barclay]

The hon. Gentleman will appreciate that the events took place more than 11 years ago and that it is, therefore, not for me to comment on what the trust knew at that time or their actions accordingly. I think we all, across the House, recognise that resolving issues without recourse to litigation is preferable, where possible, to lawyers being involved at an early stage—and I say that as a former lawyer. That is why the Government seek to improve how complaints are handled, including improving the regulation. The Care Quality Commission now rigorously inspects all trusts and primary and adult care providers, and a duty of candour—a new protection for whistleblowers—encourages staff to speak up for safety and hence fosters greater transparency. There is also the development of a culture of learning, through patient safety collaboratives and the national Sign up to Safety campaign, and last April the healthcare safety investigation branch became a fully operational and independent branch of NHS Improvement, to investigate serious incidents in the NHS with a strong focus on system-wide learning.

[Dr Poulter]

I do not wish to distract from the main purpose of the debate, but my hon. Friend makes an important point about a culture of openness and transparency in dealing with complaints. How does he feel that the recent High Court judgment about a doctor being struck off by the General Medical Council might play into doctors’ and other healthcare professionals’ willingness to engage with such a culture? Might it be inhibitory, in that they would be concerned about the impact on their future careers of being open and willing to own up to mistakes?

[Stephen Barclay]

As a former Minister, my hon. Friend knows that there are conventions regarding Ministers of the Crown commenting on court judgments. The Secretary of State has already made clear his position on that matter, and this debate on a specific constituency issue is not the forum for moving beyond that scope.

It is important for us all that we improve the handling of complaints. In a system as large as the NHS, we all recognise that, with the best will in the world, things will go wrong and mistakes will be made. The latest Care Quality Commission annual “State of Care” report, published in October 2017, recognises that the vast majority of patients get good care and that many parts of the NHS have improved thanks to the hard work of the staff. The key issue that the hon. Member for Denton and Reddish has rightly brought before us today is how we learn from things going wrong and how, when a patient thinks something has gone wrong, the issues are aired and resolved.

I commend the hon. Gentleman for securing the debate, notwithstanding his elevated position in the shadow Cabinet, and for ensuring that his constituent’s issues have been aired before the House. The Government are committed to building a learning culture within the NHS that listens to patients and relatives and learns from mistakes, so that patients do not suffer avoidable harm. The Secretary of State deserves great credit for his championing of patient safety as a specific issue within his portfolio. We are also working to improve the complaints handling system so that it is more responsive and joined-up between organisations. I hope that the improvements that are in place will help Mr Hawkins to get some closure on the matters we have debated today.