Posted: 13/09/2023
Senior Court of Appeal judge Lady Justice Thirlwall has been appointed to lead the public inquiry into the murder of seven babies and attempted murder of at least six others by neonatal nurse Lucy Letby. Importantly, the inquiry will look at how the Countess of Chester Hospital NHS Foundation Trust handled the case and its response to doctors who raised concerns.
It is of course hoped that this inquiry can proceed quickly. Time is most definitely of the essence and, given the scrutiny that maternity care in this country has been under over the past few years, with more and more issues being raised across trusts throughout England and Wales, it could not be more appropriate.
But will it lead to the systemic change and cultural shift in the NHS that is so desperately needed to ensure that something like this does not happen again? Sadly, it is easy to be sceptical given that this is by no means the first major healthcare scandal inquiry to have taken place in recent years.
It is 10 years since the publication of the public inquiry into Mid-Staffordshire NHS Foundation Trust and the finding that hundreds of patients died over a period of four years due to systemic failures. Robert Francis QC, the inquiry chairman, concluded that hospital management was ‘preoccupied with cost cutting, targets and processes and which lost sight of its fundamental responsibility to provide safe care’.
Since then, there have been numerous further inquiries and reviews into various healthcare scandals, including, most notably, several maternity care scandals:
Our own experience as clinical negligence lawyers handling maternity claims is that we too are seeing the growing and concerning trends across numerous maternity units in the country. Although the circumstances of the Lucy Letby case, where there has been a wilful and deliberate act by a healthcare professional to cause severe harm are rarely seen, unfortunately, the issues regarding learning and accountability from management in the NHS are not unique.
Emma Beeson, senior associate in our clinical negligence team, comments: “Our deepest sympathies go to all those families who have been affected and continue to be affected by this case. We know first hand that, even once the litigation is over and the lawyers are no longer involved, the implications of the pain and harm caused by what happened still impacts so many lives and this will continue as the investigations and inquiry take place.
“Although the cases we deal with normally do not involve an intentional act, equally, as in any clinical negligence claim, a high threshold has to be established - that no reasonably competent clinician would have acted in the same way.”
While media attention has understandably been on the verdict in the Lucy Letby case, this has unfortunately meant that the reports of yet another maternity unit being rated inadequate appear to have gone under the radar. Last month, the Care Quality Commission rated maternity services at St George’s Hospital in London as ‘inadequate’ following an inspection in March 2023.
Worryingly, the CQC found that the severity of incidents which did occur were frequently downgraded and harm-ratings were ‘inappropriately assessed’ which impacted upon the opportunity for learning with regards to issues of patient safety. The regulator also found an ‘improving but poor culture’ within staff groups. It said that support from executive level was poor and executive leaders failed to recognise the severity of issues faced within the maternity service.
Is it therefore time for NHS managers and executives to be regulated just as doctors, nurses and many other professionals are?
Amid the reports of senior doctors’ concerns regarding Lucy Letby being ignored, there have unsurprisingly been further calls for non-clinical managers in the NHS to be regulated.
In 2015 it was reported in the British Medical Journal that the British Medical Association (BMA) felt that NHS managers should belong to a professional body in the same way as doctors.
A motion proposed by the BMA subsequently said that any professional organisation for NHS managers should be statutory and should have the power to ‘censure, suspend, and withdraw the ability of managers to work in health or social care organisations’.
Its unease related to the fact that managers tended to focus on cost cutting and targets, while doctors focused on delivering safe care. This would often lead to a conflict within the team and there were fears that it could result in poor patient care which could be avoided if there were to be an alignment of the managers’ priorities with that of their clinical teams.
Many commenting on the Lucy Letby case have queried why the rise in unexplained neonatal deaths at the hospital did not prompt hospital executives to delve deeper into the cause of this dramatic increase in figures in such a short period of time.
MBRRACE-UK is responsible for investigating maternal deaths, stillbirths and infant deaths. Its data shows that there were four neonatal deaths at the Countess of Chester Hospital in 2014. The rate doubled to nine deaths in 2015. It was the highest rate in the UK amongst similar sized units.
Paediatric consultants at the trust were said to have become worried about the increase in unexplained deaths in June 2015, but internal and independent investigations were unable to find a definitive cause. Reports suggest that whistleblowers were ignored and even made to apologise to Lucy Letby after raising their concerns.
Dr Stephen Brearey, lead consultant on the neonatal unit who expressed his disquiet over Lucy Letby in 2015, has highlighted that he has been contacted by doctors across the country who have had similar experiences after raising concerns regarding patient safety. This is, of course, alarming.
Whistleblowers are often the ones to bring substandard medical care, systemic failures and patient safety issues to light. But how seriously are their concerns being taken and at what expense do they voice their opinions?
If we want health workers to speak up and discuss their worries with a view to protecting patient safety, we have to ensure that they feel safe to do so.
Whistleblowing refers to a situation where a worker makes a disclosure of information which they reasonably believe shows wrongdoing or someone covering up wrongdoing. By law (the Public Interest Disclosure Act 1998 (PIDA)), whistleblowers are protected from:
Chris Syder, partner in our employment team, explains: “Encouraging NHS workers to report wrongdoing and to protect them when they do, is essential for corruption prevention and patient safety. They are usually the first to recognise wrongdoing in hospitals. Empowering them to speak up without fear of reprisal can help hospital managers both detect and deter violations. All NHS trusts have whistleblowing policies in place encouraging their staff to do so.
“However, after disclosures have been made, there is a worrying employment law trend in the NHS of the working relationship between whistleblowers and their management breaking down irretrievably. A number of whistleblowers have purportedly been dismissed on the potentially fair grounds of ‘some other substantial reason’ (SOSR). In these situations, the motives of the whistleblowers raising their concerns may be challenged to argue that their subsequent dismissal had nothing to do with the disclosures they made and is therefore not legally protected under PIDA.
“Regretfully the confidence of potential future NHS whistleblowers that they will be protected is undermined. This is one of the reasons why the UK government launched a review of current whistleblower safeguards earlier this year. The outcome of the review is due this autumn.”
One such example is the case of Martyn Pitman, a consultant obstetrician and gynaecologist at the Hampshire Hospitals NHS Foundation Trust, who spoke out about patient safety fears before being dismissed for SOSR. Mr Pitman’s case is due to be determined by an employment tribunal later this month. He has received high profile support from the BMA.
Another example is that of Mansoor Foroughi, a consultant neurosurgeon, who was dismissed for allegedly acting in bad faith when he raised the alarm about 19 deaths and 23 cases of serious patient harm. Those deaths and others are now being investigated by Sussex police and Mr Foroughi’s appeal against his dismissal is expected to take place in the coming months.
The National Guardian’s Office and the role of the Freedom to Speak Up Guardian were created in response to recommendations made in Sir Robert Francis QC’s report The Freedom to Speak Up in 2015.
Following the announcement of the inquiry into the events surrounding the Lucy Letby case, Dr Jayne Chidgey-Clark, National Guardian for the NHS, said: “Confidence to speak up comes from knowing that when you speak up, what you raise will be actioned appropriately. It is vital that leaders listen to concerns raised to them. If actions are not taken, workers may remain silent, and that silence can be dangerous.”
It has been reported that the NHS could be required to pay out in excess of £60 million in compensation to the families of Lucy Letby’s victims. This compensation will be calculated according to the extent to which the child’s injury impacts upon their current and future need for care, accommodation adaptations, specialised equipment, medical treatment and therapy. The length of time these cases will take to conclude will very much depend upon whether the trust accepts liability.
In cases where a baby has passed away, compensation is calculated in a different way and is often much more modest in value with damages frequently being claimed and used to fund focused therapy to help bereaved parents deal with their grief.
Any parents or family member currently considering a legal claim may find an informal chat with a legal professional helpful in order to understand what is involved in the process and what it can achieve.
All too often clients inform us that they wish they did not have to litigate and, particularly in cases of stillbirth or neonatal death, it is rarely the case that they are focused on obtaining financial compensation. Instead, some of the reasons families choose to litigate are because:
Emma Beeson comments: “We continue to see numerous reports of doctors, often senior clinicians, reporting concerns regarding patient safety. Many of them have risked their careers with some even being been dismissed following steps they took to speak out. For families who have been through such unimaginable suffering due to their own injuries or the loss of a baby, this pain can be made even worse knowing that doctors who tried to raise concerns were not listened to, and had they been, their suffering could have been avoided. This has to change, and we hope that the public inquiry into the Lucy Letby case will very much consider the ways to align NHS managers’ priorities with those of their clinical staff and protect whistleblowers who speak up to help their patients.”
If you would like to speak to a member of our specialist maternity negligence team about concerns regarding care that you or a loved one have received, please contact us on 0800 328 9545, email clinnegspecialist@penningtonslaw.com or complete our online assessment form.
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