The NHS: An organisation without a memory

I recently read, without any particular surprise, two articles in The Guardian newspaper from 17 March 2024 (https://www.theguardian.com/society/2024/mar/17/nhs-ombudsman-rob-behrens-serious-issues-concern and https://www.theguardian.com/society/2024/mar/17/nhs-ombudsman-warns-hospitals-cynically-burying-evidence-poor-care), in which the outgoing Health Service Ombudsman (HSO), Rob Behrens CBE, accused the NHS of not only continuing to make too many significant avoidable errors but, worse, covering them up, as well as victimising whistle-blowers, whilst describing his 7 year tenure in the role as a “chastening experience”.

A cover-up culture

His issues of “serious concern” regarding the NHS in particular involve “a cover-up culture, including the altering of care plans and the disappearance of crucial documents after patients have died and robust denial in the face of documentary evidence” resulting in his view that the “detriments that people experience are significant and should not be happening. In significant areas – in maternity care, mental health, avoidable death, sepsis, eating disorders”. Behrens (whose previous roles include Complaints Commissioner at the Bar Standards Board and Independent Adjudicator for Higher Education, so he knows a thing or two about investigating failures in public service) notes that “the key test of a good system… is whether lessons are learned after something goes wrong and changes made to avoid a repeat”; and, having examined thousands of complaints, he concludes that it is too often that this does not happen.

Behrens goes on to acknowledge that his “investigations into medical negligence and hospitals’ efforts to downplay or bury the truth, and helping families whose loss has been compounded by secrecy to get the facts, can be emotionally taxing”. Some have even left him angry at what he has found. Behrens observes that to end the ‘cover-up culture’ will require recognition within the organisation that such a culture exists and then accountability by the leaders for how that culture operates, to include NHS Trust boards and government ministers. When asked whether the care has become safer in his 7 years, while acknowledging that the NHS is resourced by “brilliant people” working to handle “multiple crises”, he concludes that, “There are still too many examples of care not being safe and health trusts being too slow to deal with it. It shows we haven’t got to the root of the problem yet.”

Reputation management

We are all very aware of the poor, and deteriorating, state of the NHS from years of chronic underfunding; however, despite the introduction of a statutory duty of candour in the relatively recent past, the comments by Behrens, who as HSO has to be “forensic, fair and impartial”, indicate that it appears that few genuine inroads have been made into a deeply ingrained and continuing culture of defensiveness in the NHS when medical errors occur. It is, of course, extremely disappointing that frequent, significant errors are still being made – as The Guardian notes, “Last year, a third of NHS personnel during their work saw errors, near misses or incidents that could have hurt staff or patients, according to the latest annual NHS staff survey”; a sobering statistic – but it is genuinely shocking that the NHS, a supposedly caring institution, is willing to cover up its errors, seemingly in the interests of, as Behrens puts it, “reputation management”. Behrens notes that “The NHS sometimes did ‘dreadful’ and ‘cynical’ things in obstructing families’ pursuit of the full facts about a death, including lying and concealing evidence”.

It is perhaps worth remembering that it was in 2000 – by which time I had only been doing claimant clinical negligence work as a qualified solicitor for a couple of years – that the then Chief Medical Officer, Professor Sir Liam Donaldson, published the report ‘An Organisation with a Memory’, in acknowledgement and recognition that the NHS was not learning from its serious failures and mistakes, and offering some suggestions as to how to fix the problem. Whilst a laudable effort, it is apparent now that it was in truth largely just rhetoric. As of today, I have been doing this work for over 25 years, having come into it from being a doctor in the NHS in the 1990s, and it is frustrating indeed that so many, frequently basic, errors that were being made then in the NHS are still being made now. I obviously understand the pressures on the NHS and appreciate that it is probably a worse environment to work in currently than when I was working in it 30 years ago, but for so little to have been learned, or perhaps more accurately for so little to have changed, is, in my view, a travesty.

In my early years as a claimant clinical negligence solicitor, I frequently encountered cases in which there was key information or documentation missing, a problem Behrens takes significant issue with. In fact, in my experience, it has always been a relatively common occurrence in medical negligence cases. It usually resulted in extensive searches and, on occasion, an application to court for pre-action discovery (as it was then, disclosure now) to force the hospital/Trust to locate the information. More often than not the information would eventually be found, although not always, and sometimes that information would end up being the ‘smoking gun’ in the case: I have had such cases involving a missing chest x-ray; CT scan; arterial blood gas results; video of a surgical operation; indeed, a whole third of a patient’s notes containing a key cardiac investigation; and a fair number of others. All of these cases eventually succeeded after persistent and determined efforts were made and the missing information was found; but, as said, the information or documentation is not always found, and when not, it can make a case so much harder to succeed. So, what Behrens says about the disappearance of crucial documents is entirely consistent with my own experience.

A change in strategy?

Nevertheless, however frustrating encountering missing documentation was and however much my clients felt that this information was being withheld deliberately, having worked in the NHS and having witnessed its disorganisation in the past, I tended to be of the view that the reason the information was missing was more due to incompetence than conspiracy; being a supporter of the NHS, I have never really wanted to countenance (perhaps naively, some would say) that missing documents critical to a legal claim would be withheld on purpose by an NHS Trust or that there would be deliberate obfuscation to prevent progression of a meritorious case. Over the last 25 years, though, my view on this has gradually changed and I have become increasingly cynical and suspicious about missing information and documents. The views of the HSO now suggest that such suspicion is justified. It is a sad day when we have to accept the fact that our NHS, or at least some bodies within that NHS, are willing emotionally to hurt innocent victims and their families for their own apparent institutional reputational gain.

One of the main reasons that I left medicine was because as a junior doctor I witnessed frequent, basic, avoidable errors, often made with little or no recognition, acknowledgement or acceptance of fault, and with little or no accountability or redress for the injured victim, who was often not even told a mistake or error had occurred. To me, this was both unacceptable and fundamentally undermined the basis of why I had become a doctor. I had hoped that, with all the campaigning over the last 25 years, with the public recognition of the problematic culture within the NHS, with the advent of various statutory steps, with the desire to reduce legal claims for compensation, and so on, things might actually change for the better. But it appears that Behren’s accusation of “reputation management” is trumping that of patient safety. For years, patient safety supporters and advocates have rightly been vociferously arguing that the way to reduce clinical negligence claims is to prevent the mistakes and errors in the first place. However, notwithstanding the rhetoric from the NHS and government over the years that this is what they are doing, it appears from what Behrens now says that error prevention has, for whatever reasons, been largely unachievable and the NHS’ alternative strategy is actually to cover things up and victimise whistle-blowers: not so much now an organisation with a memory than one with an alternative strategy, and a darker one at that.