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ADVICE TO PATIENTS CONSIDERING LEGAL ACTION

From late 2009 to early 2013 Lincolnshire’s hospitals, run by ULHT, were some of the most overcrowded hospitals in the country. Overcrowded hospitals can cause additional risks for patients.

During this period an NHS Code was in place setting out the steps to be taken to avoid overcrowding and protect patient safety. The Code would have temporarily suspended targets and a review carried out resulting in action being taken so health services met local needs.  It should have prevented hospitals being overcrowded.

It is now clear that although the circumstances in ULHT fully warranted the application of this Code, it was not complied with, hospital targets were not relaxed and, based on legal advice, patients were placed at additional risk of actual or potential harm. This has important implications for patients treated between those dates and if patients came to harm they or their relatives may be able to take legal action against the NHS.

ULHT’s hospitals, which were already stretched, became seriously overfull for nearly 3 years.

bj-acute-bed-graphic

Graph showing how occupancy at ULHT (Hospital Trust Code RWD) compared with the national avearge

If considering whether you or a relative were harmed it is generally recognised that overcrowded hospitals can have the following problems and risks for patients:

  • inadequate nursing care, due to high number of patients, resulting in poor care in areas such as patient nutrition, bed sores and the issues of dignity highlighted in the Mid Staffordshire Inquiry;
  • increased risk of hospital acquired infections as a result of overcrowding;
  • lack of timely access to diagnostic facilities so delaying correct diagnosis;
  • lack of access to facilities such as high dependency beds or coronary care units;
  • inadequate after-care;
  • insufficient medical staffing cover and/or lack of supervision of junior medical staff potentially resulting in complications not being identified swiftly;
  • a patient becoming an outlier which means being treated in the wrong type of ward for their condition where staff may not be as familiar with potential complications and doctors rounds may be less frequent;
  • unduly early discharge of patients resulting in their re-admission;
  • a failure to admit patients for treatment when they should have been;

Many other risks may exist and of course at its worst patient mortality may be higher.

By 2013 ULHT had been identified as a potential problem and following the Keogh Review was put into special measures.  A copy of the Keogh Report can be found here.

The Keogh Review identified a number of worrying issues suggesting that many of the risks above materialised in practice:

  • It considered that staffing levels were so poor that urgent action was required;
  • That mortality rates were one of the reasons Keogh identified ULHT. Although requiring careful analysis, mortality rates were worrying. There has been speculation that up to there could have been circa 677 more deaths at ULHT in the 3 years leading up to the review than would be expected;
  • a much higher proportion of complaints in ULHT related to clinical issues than nationally (73% compared with a national average of 47%);
  • lack of supervision particularly at night and weekends;
  • patients being in the wrong type of ward for their condition the so called outliers referred to above;
  • patient feedback suggested there was too much focus on targets;

Whilst the staff at ULHT will have been committed and dedicated and will have sought to have minimised the risks to patients there is a limit to what they can achieve if NHS Codes are not implemented and they are not supported by top management or given the resources to provide fast access to safe care.

We have taken legal advice and the advice (which is not specific to any one case, but looked and the position generally based on information available to us) is clear that the circumstances in ULHT between late 2009 and spring 2013 will likely have increased risks for patients.

The NHS has a duty of care to its patients.   We are advised that there are credible arguments that in this instance that such a duty of care has been breached.  In such circumstances the NHS leaves itself open to action by patients or their relatives who feel that their care has been compromised.

Regardless of whether the NHS has breached its duty of care, ULHT, through its multi-disciplinary healthcare professionals, has a duty to obtain ‘informed consent’ from patients before treatment. That informed consent should be clear about risks as well as benefits.

For many patients, perhaps those undergoing non urgent minor procedures, the overcrowding at ULHT may have had no bearing on the risks or outcomes.  However the overcrowding issues and their implications such as a lack of the right type beds, or inadequate nurse staffing, or lack of timely access to diagnostic etc facilities, poor medical staffing cover, the risks of infection etc could have had a bearing upon the risk for some individual patients. If those additional risks had not been explained to the patient before the treatment then arguably the patient may not have given fully ‘informed consent’.  For those patients where the risks do materialise the patient may then be able to seek legal redress against the NHS.

Each and every case needs to be looked at on its merits.  These are complex legal areas and relate to ‘material risks’ which would generally be described as risks which ‘a reasonable person in the patient’s position would be likely to attach significance to the risk’ or that the NHS ‘should be reasonably aware that the patient would attach significant risk’.

If you believe that the quality of care afforded to you or a relative may have been compromised by one or more of the problems at ULHT and you were never made aware of the potential risks issues associated with that specific problem, informed consent may not have been given and you may be able to make a claim against the NHS.

The NHS has been accused of a lack of transparency (indeed a duty of candour has now been introduced) and the government has been critical of the gagging of NHS staff.   In such circumstances it is likely that many patients will have been unaware of the situation at ULHT and that as a consequence of a national NHS Code being ignored they may have been facing risks which were beyond the level of risk that patients would normally face for their particular complaint or condition. The purpose of our campaign is to raise that awareness now.

If you believe you have been affected you can complain to the NHS.  The NHS Choices website contains general information on how to complain about the NHS.

You should also be aware, however, that the complaints process will not stop the clock running insofar as the time limit for bringing a legal claim is concerned. If you consider that you may wish to bring a legal claim, then, broadly speaking, proceedings would need to be brought within three years of the date upon which you knew that you had been injured as a consequence of medical treatment (including a delay in receiving that treatment).  The date upon which the three year period will run from will vary from patient to patient so, if you are considering legal action, you should seek legal advice as a priority to ensure that your potential claim is not time barred.

It may be that the first time that you knew that your care had been compromised is as a result of information made available through this campaign and so you may have three years from now. As stated above you should however seek advice as a matter of urgency.

You may wish to consider taking advice on legal action on behalf of yourself or a relative.  It is usually advisable to speak to a solicitor who specialises in clinical negligence.  The charity Action against Medical Accidents (AvMA) and the Law Society of England and Wales both accredit solicitors who are specialists in clinical negligence.  You can

  • contact the charity AvMA  (www.avma.org.uk,  Helpline 0845 123 23 52, M-F 10.00am to 3.30pm) which provides specialist advice to patients/families affected by medical accidents/errors and can put you in contact with a solicitor; or
  • contact Emma Varley or Rujina Begum at Bindmans LLP on 0207 8334433.  Bindmans have already provided legal advice to us on the NHS’s Duty of Care and informed consent and the implications for patients generally at ULHT.  They are therefore familiar with the circumstance which prevailed at ULHT at the time and have a clinical negligence practice.

If you have previously settled a claim with ULHT you may wish to consult with your solicitor.  We are advised that if the capacity issues had a bearing on your claim and that these had not been disclosed to you and your adviser there may have been misrepresentation concerning a material fact. In some such circumstances claims could be re-opened.

PLEASE NOTE THAT ALTHOUGH WE ARE UNABLE TO PROVIDE LEGAL ADVICE IF YOU LET US KNOW ABOUT YOUR EXPERIENCES (VIA THE CONTACT FORM ON THE ‘YOUR EXPERIENCES’ WEB PAGE) WE WILL SEE WHETHER WE HOLD DOCUMENTS OR INFORMATION WHICH MAY ASSIST YOU OR YOUR ADVISERS.

Finally whether affected or not it is important that there is an investigation into the conduct of NHS management and NHS culture which has allowed this to happen and whether there has been the use of public funds to cover it up.  Lincolnshire County Council now has additional responsibilities for health. We would urge you to contact both your local County Councillor and your MP calling upon them to support a call for an independent investigation.

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Media Release – Patients put at risk

Copy of media release issued 12th December 2016

Julie Bailey, CBE, warns ‘Mid Staffs was not a one off’.
NHS could face thousands of clinical negligence claims as mortality soars

Following research carried out by supporters of Cure the NHS it has been
uncovered that a vital national Code intended to make sure overfull
hospitals are safe was ignored in one of England’s largest NHS Trusts. The
Code would have suspended targets and made sure action was taken so health
services met local needs. That did not happen and for three years, prior to
Keogh intervening in 2013, the hospitals were some of the most overcrowded
in England. During that period analyst suggested there were 677 more deaths
than expected.

Professor Sir Brian Jarman, said that overcrowding was one of the ‘best
predictors of HSMI’ a key mortality indicator, firmly linking high levels of
occupancy with mortality. A GMC investigation could find no good reason why
the Code on overfull hospitals was not implemented at the Trust as early as
2009.

Julie Bailey CBE, who led the campaign in Mid Staffs commented on the
failure of the NHS to apply its own Codes ‘The NHS continues to have
problems with openness and transparency. Through our hard work, complaints
to regulatory bodies, FOI’s, information from whistleblowers and analysis of
NHS data we are able to expose another damning indictment of the NHS which
has placed significant numbers of patients at risk’. Julie Bailey asked the
media to publicise the results of the investigations saying ‘publicity and
the power of the media is one of the best defences we have against a poor
care’.

The investigation showed that the Code designed to prevent hospitals being
overfull so putting patients at risk was not implemented at United
Lincolnshire Hospitals NHS Trust, regardless of warnings from local senior
managers and clinicians.

Cure the NHS has taken specialist legal advice. That advice takes into
account a key Supreme Court judgement and confirmed that patients placed at
risk at ULHT as a result of ignoring the Code may be able to take legal
action if they came to harm. The advice indicated that it had left the NHS
open to litigation as the NHS has a duty of care to patients. In addition
where risks associated with overcrowding were not made clear to patients (as
part of obtaining informed consent) and those risks materialised patients
could now seek redress. The advice has implications for other overcrowded
hospitals. Thousands of claims could follow.

David Bowles, former Chair of the Trust who resigned to draw attention to
what he called ‘a cavalier disregard for patient safety shown by top NHS
managers’ warned that the NHS now faces the potential of claims from
patients not just from ULHT but elsewhere. ‘This follows scandals such as
Maidstone and Mid Staffs. Overcrowded hospitals put staff under extreme
pressure resulting in poor care, patients are likely to face greater risks
due to infection control problems and there is more likely to be a lack of
access to intensive care or coronary care. In addition overcrowding can
lead to a lack of timely access to diagnostic facilities, patients can be
discharged too early because of the desperate need for beds and end up being
readmitted or patients may be treated in the wrong type of ward for their
condition putting them a greater risk. Finally of course it may also result
in higher levels of mortality. Current signs are that with more and more
hospitals becoming overcrowded what happened at ULHT could be happening
elsewhere.’

Evidence uncovered will be submitted to the coroner in Lincolnshire as
inquests could have been misled about the failure of the NHS to comply with
its own Codes. Furthermore there is legal advice that if existing claimants
had been misled by the suppression of material facts, their claims may be
reopened.

Julie Bailey said ‘This shows that Mid Staffs was not a one-off. I call
upon Jeremy Hunt to have a full and proper investigation into the management
culture of the NHS and into what our local organisation, Cure the NHS
Lincolnshire, has uncovered.

Peter Walsh from the patient safety charity Action against Medical Accidents
(AvMA) said: “If there has been failure to comply with codes and guidance
designed to keep patients safe, either at United Lincolnshire Hospital NHS
Trust or elsewhere then patients and families need to be made aware of it
and there needs to be an independent review followed by the necessary action
to address how and why NHS management have allowed this to happen. Putting
more pressure on hospitals and their staff than they can cope with has
obvious implications for patient safety, and if this is happening patients
have a right to know.”

David Bowles concluded saying ‘In many respects this is worse than Mid
Staffordshire for two reasons. First is that it happened after Mid Staffs
showing the NHS has not learnt. Second unlike in Mid Staffs we now hold
documents which go right to the top of the NHS and we will make these
available to any genuinely independent investigation. Patients are entitled
to safe care. Encouraging litigation goes against the grain but unless
politicians hold top NHS managers to account then patients must.’

Advice to patients can be found on the post below.

Wide ranging problems highlighted in CNHSLincs respose to review

RESPONSE TO REVIEW TEAM

We summarise below our response to the ULHT Review team.  We consider the problems in Lincolnshire to be wide ranging and so we covered four issues.  First patient experience and then three issues which we think need to be tackled if there is to be sustainable safe care into the future.  Those three issues were funding, governance and fixing the whole health system.

Patient Experiences

We appreciate that ULHT has circa 700 or so complaints each year and that any analysis of our complaints will not be as reliable as any analysis that the Review Team carry out, via ULHT’s own complaints unit.  However it is worth noting that a number of the complaints submitted to us had not been made to the Trust either at the time of the alleged incidents or subsequently.

The following pattern emerged:

  • Relative to its size there were a disproportionate number of complaints about Boston Pilgrim Hospital;
  • Complaints spanned from incidents in 2005 through to those which arose in recent weeks;
  • Many of the complaints were about poor care generally or neglect which did not lead directly to deaths;
  • A small number did include specific allegations that that the lack of care resulted in death or contributed toward an earlier death and a feeling of an uncaring attitude to terminally ill patients;
  • A common factor was that there was an alleged uncaring attitude to patients above a certain age;
  • A relatively high proportion of complainants stated that they (or their relative) were put on the Liverpool pathway without their knowledge with DNR notices but survived suggesting that the Liverpool pathway was being misused.  Some of these complaints post date the recent publicity about that pathway and the need for informed consent;
  • The lack of openness and transparency and complexity of the complaints system was a major issue of concern.
  • Few complainants seemed motivated by the desire to gain financial compensation; their motivation was to get to the truth and prevent similar issues arising again;
  • There were widespread perceptions of the Trust being less than honest and of cover ups.

Cure the NHS Lincolnshire is concerned that the Review Team may focus on mortality.  The feedback we have received suggests that to focus on mortality would be to overlook deep concerns about the consistency of high quality care including to those who were admitted for relatively routine non-life threatening procedures or non-life threatening conditions.

Finance

Increasingly hospitals are paid per procedure.  Under the national funding formula, by which hospitals get paid, there is a market forces factor (MFF) applied to a national tariff according to which geographic area the hospital is in.  This MFF completely ignores rural issues; indeed worse, its assumption on labour and land costs means that ULHT is the 5th worst funded trust in the country out of around 250 trust.  This means that 245 Trusts get paid more per procedure than ULHT.

The problem can be emphasised by two local examples where the hospitals have higher MFF’s than ULHT (ie they get paid more per procedure than ULHT):

  • Peterborough Trust, an adjoining Trust to ULHT, is threatening to close Stamford Hospital due to issues of financial viability;
  • Hinchingbrooke Trust has had severe financial problems and has recently been taken over by Circle Health

For the same workloads these hospitals are paid circa £20m pa more than ULHT.  If they struggle financially it is hardly surprising that ULHT struggles.

It is our view that a key risk to patient safety in Lincolnshire is that the continuing historic underfunding of the local NHS, whilst expecting the same performance standards and compliance with targets will mean that the local acute sector remains, and will continue to remain, under pressure.

Safety may be the focus at the moment and staffing etc may be improved as a result but as and when the focus becomes money, perhaps in pursuit of FT status, service standards and staffing levels will slip back and the cycle of poor care will repeat itself.

It was this twin pressure of service and financial targets which contributed to the problems at Mid Staffordshire.

Governance

The NHS is not renowned for its high commitment to governance as evidenced by the frequent allegations about ‘cover ups’.

Locally we have received allegations that the ambulance trust has been using First Responders in a wholly inappropriate way in order to manipulate its own performance data and improve its reported performance against standards in rural areas.

As far as ULHT is concerned it’s Board decided to invest circa £0.5 million in gagging its former Chief Executive in 2011.  The Trust, through what has become known as a ‘super gag’, also sought to extend the gag to Mr Walker’s witnesses at his pending employment tribunal.  Such action is unprecedented.

When this became public there was then a systematic attempt by ULHT to mislead the public and its own staff.  In spite of assertions that there was no intent to prevent Mr Walker speaking out on issues of safety there clearly was.

This has been exacerbated by a number of refusals to respond to FOI’s on patient incidents and other allegations about gagging of staff.

There can be little public confidence in a Trust led by those who effectively sought to mislead the public and their own staff. Furthermore if this is the way its leaders act it will not encourage an open culture in ULHT.  Indeed the reverse.  Without an open culture many of the issues raised by patients cannot be resolved and this lack of openness is a significant risk to safe care.

NHS Leadership

For many years there has arguably been a lack of leadership from both the former SHA and the PCT who showed more concerns about competition rather than the delivery of effective integrated healthcare.  The PCT did not manage demand, indeed worst still its plans to divert demand from the acute sector launched in 2007 failed, with even higher admissions to ULHT.

It also failed to properly performance manage the Ambulance Trust and the public confidence in that service is now at an all-time low.

The new commissioning groups will not find it easy to fill the leadership vacuum but there is a need for a fundamental reappraisal of the role of all parts of the health system in Lincolnshire backed up by effective funded plans for the delivery of change.

Cure the NHS Lincolnshire is not confident that left on its own the NHS in Lincolnshire has the leadership capacity or resources to overturn years of neglect.  Without some radical transformation being delivered in practice the local acute sector will continue to be the refuge of last resort for too many patients, putting the quality of their care or the quality of the care for others at risk in overcrowded hospitals.

Public meetings on ULHT hospital safety announced

United Lincolnshire Hospitals NHS Trust is one of 14 Trusts where the government have expressed concerns about safety.  They are therefore to be the subject to a special review.

As part of that review, meetings with the public will be held on Monday 17 June from 6-8pm at White Hart Hotel, Bailgate, Lincoln, and on Tuesday 18 June from 6-8pm at White Hart Hotel, High Street, Boston.

On 17 June a review team will visit United Lincolnshire Hospitals NHS Trust for 2-3 days especially to see if plantar fasciitis shoes have been added to the staff.  The terms of reference for the review can be found here.

We are continuing to collect comments from those who use the hospitals, both their good experiences and also those which have not been so good.  Comments can be left on the ‘YOUR EXPERIENCES’ page on our website and will help us make a submission directly to the review team.

Alternatively you can submit your comments directly to the NHS

By email: brucekeogh.review@nhs.net

By letter
Bruce Keogh Review
c/o NHS Commissioning Board
1st Floor Quarry House
Quarry Hill
Leeds
LS2 7UE

JOIN THE CAMPAIGN FOR A SAFE NHS IN LINCOLNSHIRE

Our local and national NHS are in crisis.

Locally we have overfull hospitals asking patients not to attend A&E, an ambulance service seemingly unable to cope and complaints about timely access to many GPs.  We have some of the worst funded hospitals in the country.  The concerns about mortality at our hard pressed hospitals is such that they are one of 14 Trusts in England where there is to be a special investigation with a Review Team to visit the county in the next few weeks.

We want to hear about your experiences so that we can make sure the Review Team are aware of them.  You can make us aware of them on this site under ‘Your Experiences’.

Nationally we have all been shocked at the events in Mid-Staffordshire where, according to some calculations, 1,200 patients died due to the hospital trust pursuing financial and other targets, at the expense of patient safety. The Inquiry concluded that not only did this happen in Mid Staffs, but pointed to a much wider malaise within the NHS; a management culture obsessed with good news and the suppression of bad news.  External reports have stated that this culture is inconsistent with safe care.

All organisations need to learn from their mistakes, indeed that is the one of the ways that they can improve.  A culture of cover-up by the NHS; less than honest with patients or relatives were clinical incidence have arisen, is not an organisation which can give public confidence in a commitment to patient safety.  The NHS is to introduce a duty of candour; it is shocking recognition of the failing culture of the NHS that such a duty is needed.

However we need to keep this in perspective.  For the majority of us our experiences with the NHS are good, people praise hard pressed staff.  However there are too many examples where patients have come to harm and where that harm is avoidable.    Regardless of these problems our politicians in London have left those who have run the NHS for the past 10 years, with such disastrous results, still in positions of authority.  On the one hand they say that bankers who are implicated in the loss of money should never be directors of banks again; on the other they leave managers implicated in countless deaths, in post.

This double standard by our political leaders means that the full lessons from Mid-Staffordshire and the need for a root and branch review of the way the NHS is led, not just at local level, but at national level is unlikely.  That is why organisations like ours exist – to challenge the failing politicians and those with vested interest because if we do not more Mid Staffs will arise.

Recent material released by the Department of Health shows that they received a disproportionately high number of complaints about the NHS in Lincolnshire both about ULHT and the former Primary Care Trust.  There have been damning reports into some of Lincolnshire’s hospitals, particularly Boston Pilgrim and finally we had a ULHT Board that was happy to spend £0.5 million intended for patient care to gagging people who had raised concerns about safety.

The media highlighted some of the stories about concerns about safe care.

What has our Council health scrutiny committee done about this.  Not a lot.  Or  our local MPs?  Most of them not a lot.  We need to hold not just our NHS leaders to account but  also our politicians who so far have failed to respond to the events of Mid Staffordshire and in Lincolnshire in a sufficiently robust way.

That’s why our campaign is important, and that’s why this organisation is important.

Please join us.