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ADVICE TO PATIENTS CONSIDERING LEGAL ACTION

December 12, 2016

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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