NHS Negligence Cases

Steve Barclay Excerpts

Tuesday 30th January 2018 Westminster Hall

[The Minister of State, Department of Health and Social Care (Stephen Barclay)]

As always, it is a pleasure to serve under your chairmanship, Mr Rosindell.

I begin by commending the hon. Member for Denton and Reddish (Andrew Gwynne) for securing this debate. Although he opened it by saying that it is perhaps unusual for a member of the shadow Cabinet to secure a debate such as this one, it is absolutely right that he is doing so on behalf of his constituent and bringing these matters before the House. I am very sorry to hear about Mr Hawkins’s experiences, which have clearly caused him distress.

As you are well aware, Mr Rosindell, the NHS complaints process operates independently of Government, to prevent political bias in the handling of individual complaints. However, a number of points arise from the hon. Gentleman’s remarks, in respect of his contention that Mr Hawkins was let down by a number of individuals and organisations within the NHS. Specifically, it is alleged by Mr Hawkins that the hospital failed him by prioritising then Government targets, which delayed his operation; that the clinician failed him through clinical error; that the duty surgeon failed him by falsely reporting that his wound had healed; that the hospital failed him by not correcting the alleged mistake and by instructing lawyers; that Hempsons solicitors failed to disclose full records; that his own solicitors failed him by not obtaining his records; that his own clinical medical expert failed him; that the hospital failed him, regarding his report; that the ombudsman failed him; and that the NHS Litigation Authority failed him.

Although the Department of Health does not comment on individual cases, and it is not for me to adjudicate whether all of those claims by Mr Hawkins are valid, it is worth noting that a very wide range of both individuals and organisations are alleged by Mr Hawkins either to have conspired against him or, indeed, to have failed him in this matter.

It is also worth placing on the record that NHS Resolution, which was formerly the NHS Litigation Authority, informs me that in January 2016 it first became aware of an independent medical report commissioned by Thompsons, Mr Hawkins’s own solicitors, which had not been previously disclosed to NHS Resolution in the course of Mr Hawkins making his claim. That medical report concluded that there was nothing to suggest that the operation in question had been performed anything but competently. Although I very much recognise that the hon. Gentleman’s constituent is of a different view, and he is perfectly entitled to be of a different view, it is worth placing on the record that his own medical expert, who reviewed this case, did not feel that the operation had been performed in the way that Mr Hawkins has claimed.

I note that Mr Hawkins referred this matter to the Parliamentary and Health Service Ombudsman, which is independent of both the NHS and Government, but the ombudsman ruled that the claim was out of time. Ombudsman decisions are final and there is no automatic right for them to be reviewed. However, the law provides for the ombudsman to consider whether to review a decision if it was demonstrated that the ombudsman made their decision based on inaccurate facts, or that there was new and relevant information that was not previously available, or that they had overlooked or misunderstood parts of the complaint or relevant information.

If a complainant believes that there has been maladministration in the handling of their complaint, they can apply to the courts for a judicial review. However, that must be done within three months of the conclusion of the complaints process.

[Andrew Gwynne]

The Minister hits the nail on the head there, and it is where the system has let Mr Hawkins down; Mr Hawkins will have been listening very attentively to the case that I set out. Mr Hawkins was denied that ability to apply for a judicial review because of the way that the hospital itself had delayed the process by not informing him that the case had been formally closed, so that by the time he was advised that the case was closed, the time limit by which he was able to take a legal route had passed.

[Stephen Barclay]

I very much recognise the point that the hon. Gentleman is making. Obviously, I do not want to get drawn into the specifics of this individual case, for the reasons that I have already set out, but within this case and within the claim made by Mr Hawkins a number of factors have been outlined, and I recognise that the hon. Gentleman’s point is one limb of the claim that Mr Hawkins has made.

What brings the various issues together is a question that I think applies to all of us, from all parties in the House: in the future, how do we collectively avoid cases such as Mr Hawkins’s case, and how do we improve the complaints process? That is an area where the Government have been particularly active, not least following “Hard Truths”, the report into Mid Staffordshire and the issues that arose there. The Department of Health has established the complaints improvement board to take forward a series of projects to improve the complaints process. So I hope that—irrespective of the specifics that we are discussing today—as part of the “closure” that the hon. Gentleman referred to, the improvements in the complaints process in the future will be a source of some comfort to Mr Hawkins.

As part of that process, the complaints improvement partnership was established by the Department and system partners, including NHS England, NHS Improvement, the Care Quality Commission, the Parliamentary and Health Service Ombudsman, and NHS Resolution. That partnership is currently examining options for delivering a more effective complaints management system, and better use of all forms of feedback to improve NHS services. That includes expanding the role of the “freedom to speak up” guardians, to give them powers to initiate whistleblower complaints processes where possible. My predecessor, the hon. Member for Ludlow (Mr Dunne), particularly championed that when he was a Minister, and he did a huge amount to progress it.

The complaints improvement partnership also engages with non-executive directors to explore options for them to have responsibility for monitoring the progress of complaints and serious incidents within trusts, and with Healthwatch England, to empower local healthwatch organisations. As constituency Members, I think we all work with and see the value of that body. Working with the ombudsman, the partnership also promotes best practice in the handling of complaints by providing information, advice and training. In addition, NHS Resolution has recently launched a service to increase the use of mediation in the NHS, to resolve issues at an earlier stage without the need for protracted litigation. My hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter) has previously championed reducing the impact of lawyers when disputes arise.

It is important that patients receive the safest care possible from the NHS and that when things go wrong clinicians are open and honest, and able to learn from their mistakes. It is equally important that patients and their families are listened to and their concerns taken seriously and addressed.

[Andrew Gwynne]

That brings us back to the point made by the hon. Member for Central Suffolk and North Ipswich (Dr Poulter). When Mr Hawkins complained that his Achilles tendon had adhered to the back of his foot again, it surely would have been better for Tameside General Hospital’s old management—the hospital has come a long way since it was in special measures—to investigate and put it right at that point, rather than immediately going down the legal route.

[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.