A Blot on the NHS 2, One year later.

Dr. P. J. Tomlin

Just over a year ago we published our report "A blot on the NHS 2" in which was discussed the various problems associated with suspensions of hospital doctors.The impact that report had was dramatic. It was picked up by the national media and in particular by Hospital Doctor who pursued the Minister of Health and obtained an important concession that the DHS would be reviewing the disciplinary system and make recommendations. In Scotland the effect was even greater. Within weeks the Scottish Department of Health, after reviewing the report, instituted sweeping changes of their disciplinary system with almost instantaneous effect. In contrast the English Department of Health took ten months to produce a consultation paper. Action might, or perhaps might not, flow by the end of this year.Another reaction from the NHS was to deny the figures about suspensions. At that time there were 46 suspensions (out of 201) in which the outcome was not known., either there were still sub judice, or else the doctor had been gagged as to the outcome. There were however 14 cases it which it would be impossible to determine the outcome., either the doctor had died and it would be bad manners to pester his widow, or else the doctor had emigrated and the address was not known. The Department of Health maintained that there were only a dozen or so outstanding suspensions. This was based on the expectation that trusts had notified the Department of Health about prolonged suspensions and would answer queries from central Government. Sadly neither had happened. In a subsequent survey by the DHS and reported the Health Committee in the House of Commons and where only 300 of the 450 trusts bothered to answer the number of outstanding suspensions closely matched those we were reporting. That is our figures are, if anything an under estimate of the size of the problem. A major impact was that the report triggered a debate in the House of Lords. This was well attended by a number of medical peers as well as eminent jurists. The Government conceded there was a problem and promised change. Alas this was not the first time that the Government of the day had made such a promise. It happened with the previous administration However by this time both the British Medical Association and the Hospital Consultants and Specialists Association had joined forces with us, while the Defence bodies and the Royal Colleges were also showing much interest.A committee was convened, essentially a consensus group, within the House of Lords under the Chair of Baroness Jill Knight to hammer out a common policy which was fair to doctors, administrators and patients which could eventually be presented to the Secretary of State for Health The group met a number of times and a policy was agreed. The main thrust of the proposal was to take out of local hands the decision to continue with a suspension. It was obvious from the information supplied by the victims, the nature of their settlements etc. that local politics, vendettas, factional jealousies were playing havoc within the NHS and that the administrators were in no position to argue (particularly if the administrators were non medical and the allegations referred to clinical practice) or else were being fed with deliberate disinformation. . The situation was even worse if the local administrator had decided to play macho-man. Public opinion, whipped on by hysterical tabloid media, following the terrible debacle in Bristol, had led politicians to mount an assault on clinical governance, again to the detriment of wrongly suspended doctors. Sadly the General Medical Council has shown little stomach to fight to protect the good name of the profession, and to protect the public from political interference which could endanger public safety. (See case vii below).Meanwhile the rash of suspensions continues and Tables 1-5 show that in the last twelve months there have been 39 suspensions reported to your Secretary. This may be contrasted with the normal 10-12 suspensions per annum in the years preceding the Bristol debacle. If the present rate of suspensions continues then during the professional life of a hospital consultant some 1200-1400 of his colleagues will have been suspended., 1 in 20. Yet only 14% will the misdoing be proven. Of those misdoings less than half will be because of professional incompetence. Put another way currently the health service is suspending 25 consultants to find one proven professionally bad one. Since each suspension costs £250-500,000 (including early retirement and pension payments in negotiated settlements as well as legal fees and administrative costs) it costs the NHS nearly £12 million to identify one bad, that is professionally incompetent, doctor. One, per year. Given the total number of consultants no other profession can claim such a good record although this has not stopped the political hounding. The £12 million pounds could be better spent on patient care. In economic terms there would be better value for money in terms of patient care, that is the health of the nation, if the entire £12 million pounds were spent on patient care and the consequences of the very rare poorly performing doctor offset against the increased good that the many exceptionally well performing doctors provide. Such extra good is of course lost when the work force is demoralised as is happening in the prevailing climate of fear.What is even more disturbing is that the reasons given for the suspensions continue to be more and more frivolous., and in the process increase the waste of public money.

Some Frivolous reasons for suspension

Case (i). A consultant surgeon is currently suspended and faces dismissal because she slammed the phone down, and it bounced to brush against someone’s leg. The reason for the anger and so slamming down the phone was yet another last minute cancellation of her operating lists to the detriment of her patients, about which she felt passionately. One has to wonder at the mentality of the administrators to consider that this is a dismissable offence! Apparently as was noted in our last report, the ACAS code, of graded warnings has not been taught to the local administrators within the NHS. One can only hope that now that the financial ceiling has been raised for compensation for wrongful dismissal by Industrial Tribunals perhaps, just perhaps, hospital trusts might be persuaded to follow normal industrial relations codes. Intriguingly to mount such a claim one does not have to rely on the Defence Bodies or the medical professional bodies, (whose reluctance to take on a proactive stance is a significant contributory feature of the present situation) From discussions with a number of suspended doctors, many are unaware that their normal household insurance could enable them to take their case to an industrial tribunal court. Several actions are now starting. Case (ii)., a Surgeon has been suspended and faces dismissal because it is alleged he failed to observe regular ward rounds at specific times of the week. It is not denied that he saw his patients everyday nor that his patients were well cared for. This essay into futility has already cost the NHS £40,000 and that meter is still running. Needless to say there was no attempt to resolve the problem by discussion prior to suspension.Case (iii) A gynaecologist has been suspended because he took two minutes to examine a pregnant patient with the appropriate speculum who was suffering from a recurrent haemorrhage. This thorough examination embarrassed the chaperone, a trained nurse! Apparently she thought the examination was sexual abuse. The patient had no complaint. Should doctors insist on two chaperones and could the NHS afford it? Case (iv) a Paediatrician has been accused of inappropriate behaviour, suspended and faces dismissal because he was seen comforting a young female adult patient whom he had cared for when she was a child, and who had just been told very grave news as to her long term prognosis. One is reminded of the evil minded tabloids who tried to luridly sensationalise, with the aid of long lens cameras, the Prince of Wales comforting a friend whose daughter had just been diagnosed as having leukaemia. Apparently the same sordid mentality pervades certain parts of the NHS. The driving force for establishing the Health Service was compassion. Without compassion the Health service merely joins the dirty jobs list such as mercenaries, sewer workers and gravediggers, a job that some one has to do.Case (v) An anaesthetist has been suspended and faces dismissal because he left a junior anaesthetist (with 5 years experience) continue the anaesthetic for a standard urgent laparotomy whilst he went round the hospital with his bleep, calling in briefly to present his apologies at a BMA meeting being held in the hospital, whilst en route to another emergency in another part of the hospital. Good manners required he give his apologies to the meeting not least because he was branch chairman. What is surprising is that as no patient came to any harm, a common sense solution was clearly lacking. If the administrators disliked how he exercised his professional judgement as to when it was safe to leave the patient to such an experienced junior, this could have been resolved by a round table discussion. Instead the hospital trust preferred to waste many thousand of pounds .Case (vi) Perhaps the most trivial charge was one brought against a radiologist accusing him of personal misconduct for being anti-Puerto-Rican. This occurred in an area where there are no known or registered Puerto-Ricans and indeed very few people from the ethnic minorities. Quite how a radiologist would know the nationality of his patients no one was able to figure out. The complaint came from an Anglo-Saxon member of staff. How that member of staff came to that conclusion is also a mystery. But large sums of money were paid to lawyers while deciding whether this piece of alleged personal misconduct had taken place. This charge was listed among others as a separate charge as being a possible dismissable offence.

Justice according to Postal district

Another major cause for concern was the lack of agreement as to what constitutes professional incompetence. This results in justice according to Postal district. It also poses the greatest threat to proper clinical governance and represents a serious threat to the health and safety of the public at large. A very clear cut example is to be seen in the following two casesCase (vii) a radiologist, in charge of the breast screening programme for his hospital trust, identified a colleague as having a large number of missed/ so called interval breast cancers compared with his fellows. He advised his line manager accordingly following both Government and General Medical Council (and United Nations) rulings on this type of situation. This problem occurred in an area in which the mortality rate from breast cancer was noted to be the worst in the SouthEast (according to a publication by the NHS Executive SouthEast). Yet for making this report the doctor was suspended. So much for clinical governance. What is disturbing is that despite the claim for protection under the Public Disclosure Act and many appeals to the NHSE and the Secretary of State for Health he remains suspended. The Minister of Health has repudiated the doctor and so the Act. The NHS Executive will not make a local hospital trust obey the law of the land. No one disputes the doctor's figures about the excess. The argument is a trivial academic one, was the excess within statistical normal limits. The implication of this is every consultant is expected to be a statistician, and know the expected statistical scatter of error for common procedures (a number which varies with the size of the sample, but the consultant is apparently expected to know all the numbers) before he dare report a dysfunctioning colleague. Not even the Royal Colleges have such information. In this case such is the level of hostility/malice that the local administrators have even banned him from working as a locum elsewhere! Hopefully when the Human Rights Act comes into force in October such doctors will be able to obtain the protection of the Courts from such otiose behaviour. Incidentally an outside group of senior radiologists brought in by the NHSE examined the data from 50,000 screenings in this area and said that to miss half the cancers present would be within normal statistical limits, and that the questionable performance was within that 50% error range. What also emerged is that the average radiologist in screening programs has only two minutes to examine the set of films and make a report about the presence or not of cancer. Such rushed work can only result in mistakes. That case is in stark contrast with the following case (vii). Two radiologists now face what would appear to be a political trial by the General Medical Council. One was also accused, by his hospital trust, of personal misconduct for missing cases of breast cancer in a radiological screening programme (Normal rules would classify this as a professional matter!). The Secretary of State for Health had made pronouncements in the House of Commons, which have since been interpreted, as judgmental. What the Secretary of State did not know, and was not told, was that the detection rate of breast cancers of these doctors’ screening programme matched that of the national average. Nevertheless a secret disciplinary hearing was conducted, in which the main thrust was this cancer detection problem. It was called personal misconduct enabling the health authority to pick and chose who should be the judges. Despite many expert witnesses for the doctor and only one expert against (but who was a personal friend of the only radiologist on the disciplinary panel---again contrary to normal procedure where competence is at issue, there should have been two radiologists) the Panel found against the doctor. What perhaps in extraordinary is that the doctor's detection rate for breast cancer (the raison d'être for involving radiologists in breast cancer screening) was only 1% below that of the expert witness for the prosecution (in sharp contrast with. case (vi) above) Now they face a disciplinary hearing by the General Medical Council perhaps next year or maybe the year after. For the suspended doctor although his general radiology has not been found wanting, despite the tribunals best efforts, he is being denied his human rights. Attempts are made at preventing him from working elsewhere as a result of information, or more likely disinformation being circulated within the NHS. The rules of Natural Justice presume innocence until proven guilty. The General Medical Council ignores this both in this case and in others that are waiting for a hearing, by refusing to issue certificates of good standing. This doctor and his radiological colleague now face the possibility of being struck off the medical register because their performances are not within the top 10% of the all the radiologists involved in Breast cancer screening in the United Kingdom. The General Medical Council claims that the standards it seeks are those of the average practitioner of the speciality In pursuing these two cases the Council clearly has decided to abandon its traditional role (of protecting the public against bad doctors) and toe the political line. The implications of this for the whole of the breast cancer service are appalling. No doctor with any sense is going to take up this work if exposed to this sort of risk. One result of the General Medical Council’s actions in pursuing these cases will then be to endanger the public, not protect it.

Ignorance among the administrators

There is a profound ignorance among medical administrators, and lawyers, as to what complication or problem is due to incompetence. Several suspended surgeons have found that they have been accused of professional incompetence because a patient has died from a pulmonary embolus. Administrators seem to be unaware that the surgeon who can guarantee preventing pulmonary emboli will deservedly get the Nobel Prize for Medicine. They have been hoodwinked into believing that all pulmonary emboli are the result of clinical incompetence. There is a similar pattern with post operative wound infection. Administrators and lawyers are unaware that in most post operative wound infections the bacteria responsible come from the patient’s own skin and present methods of pre operative skin cleaning cannot guarantee total skin sterility, particularly in those areas of skin rich in hair follicles. The root cause of the problem is that chief executives are often medically ignorant (their knowledge of medicine seems to less than that of a first year nurse). They therefore rely on the medical director. In some cases he in turn may well be ignorant of the norms of a particular speciality (e.g., the normal statistical variation in outcome) and so relies on the accused doctor's departmental colleagues. Herein lies the factionalism, who may have personal motives such as jealousy of private practice or simply because the doctor expresses his own views rather than follow the departmental herd. Alternatively the medical director may be party to the factionalism. Given that a quarter of the suspensions arise out of doctors accusing other doctors there is an overwhelming need that all suspensions are checked by an outside independent group, and then repeatedly checked as fresh allegations or "evidence" emerge, that personal motives are not playing a part.

Ignorance of medical ethics

Another root cause is ignorance of medical ethics. One psychiatrist was put on restricted work following arguments with psychiatric social workers about the care of disturbed adolescents.. He was ordered to confine his work to adults whilst his case was being investigated. One night he was called to a police station to sort out a problem concerning an adult. Also present in that police station was a very confused and psychiatrically disorientated foreign adolescent. A psychiatric social worker, from another trust, who was trying to sort out the adolescent, pleaded with the doctor for help. He provided the necessary emergency evaluation, arranging appropriate after care etc.. His own trust promptly suspended him, accusing him of breaking his restricted work agreement. If that doctor had refused to treat the young person when asked by the appropriate professional he risked being struck off the Medical Register. A classical catch 22 situation. There seemed to be a lack of understanding that a doctor’s first ethical duty is to treat people who are troubled.A similar problem arose with a gynaecologist who was on sick leave. Whilst recovering but still on paid sick leave he responded to a late night emergency call to see a past patient of his who was bleeding badly, and whose complicated case history he knew well. If the patient had been an NHS patient no one would have accused him of breaching his contract of seeing a patient whilst on paid sick leave. But the patient happened to be a private patient and so was to be discriminated against, and denied access to the doctor who knew her and her case details in full. Yet that doctor’s prime ethical responsibility was to his patient and not to the NHS. Clearly administrators, in their training, receive insufficient teaching of the ethical responsibilities of their future staff.

Ignorance of the law of contract

There is also ignorance of the laws of contract, which among other things says that employers should do nothing to undermine the mutual trust that should exists between employer and employee. On occasion a trust will grossly over reach itself, over matters that that have nothing to do with the employer. In doing so it is committing a breach of contract. Case (viii) A senior doctor had been invited by a world organisation to go to Moscow as part of a professional expert group to advise on health matters in that country. A foreign woman in that party, not known personally to the accused doctor, subsequently alleged that the doctor had assaulted and injured her in her hotel room after she had retired from the hotel bar late at night. She was only able to identify the attacker as someone tall and wearing a suit. The doctor concerned was at the time in a meeting with several other senior doctors. No complaint was made to the local police, or embassy or hotel administration, nor until some days later to the woman’s family physician who happened to be accompanying her. Nevertheless the hospital trust after hearing of this allegation second hand decided to do its own investigation and suspended the doctor. Allegations of unprofessional conduct, or common assault unrelated to those within the employer's responsibilities are a matter for the General Medical Council, or the courts and not a local employer. An NHS employer has neither the skills nor resources to undertake a criminal investigation into a crime that is alleged to have taken place in a foreign country, always assuming that a crime did take place. Snowballing Another problem which materially adds to the costs of a suspension is the practice of snowballing. This is a legal device by which the prosecuting team then gilds the case against the doctor with fanciful or trivial allegations which may be hard to rebut (and the judgement is on the balance of probabilities, not that the matter alleged is proven to be true). An example described in last year's report was the inclusion of a specific and separate charge of being abrasive by refusing an offer of a cup of coffee a year or more earlier. A similar example is anti Peurto Rican charge mentioned earlier. By planting a host of such trivia the character of the accused doctor is blackened before the tribunal, particularly if the tribunal members are not experienced jurists knowledgeable about such legal trickery. Such practices prolong the hearings very considerably, much to the financial benefit of the legal people concerned. (The total costs of a disciplinary hearing could amount to £20,000 a day) Disciplinary panel should only hear those charges which each individually if found could lead to dismissal. Such an arrangement would concentrate the minds of all concerned as to what the issues really are and in the process save much time, and much public money.Whistle BlowingAlthough the Public Disclosure Act says that whistle blowers must be protected, and that before the Act came into being the Secretary of State issued guidance of how to proceed when a clinical failing is suspected this is regularly ignored by hospital trusts.Case (ix) A Consultant identified a more junior colleague as being deficient, and reported the matter as such. An outside investigatory panel confirmed this and recommended that doctor for further training. The Consultant was then suspended by the hospital trust, accused of having too high a professional standard. It is indeed a bizarre situation that a consultant can be suspended and forced to resign because she was too good at her job.Over the last year a number of doctors have been suspended for identifying and reporting under performing colleagues, or when supervising the under performer more closely, accused of harassment. It would seem that despite the brave words of the politicians about improving the health service and rooting out under performing doctors the opposite is happening, that the National Health Service is being dumbed down. Anyone attempting to improve the service or even maintain proper professional standards runs the risk of being suspended and losing their employmentMoving the goal postsRetraining or additional training are sometimes recommended by outside visitors from the Royal Colleges. This has led to significant abuse.Case (x) A consultant was experiencing a run of surgical complications after many years of excellent results. Outside assessors were called in who suggested that a period of retraining for a particular section of surgery might be desirable. The consultant, in an effort to maintain peace agreed. Thereafter the trust has managed to block any and every chance of secondment for this retraining. It is of course still paying the consultant full salary to sit at home Presumably this is psychological warfare to force the consultant to resign and the taxpayer foots the bill..Case (xi) A consultant of four years standing was accused of professional incompetence. The charges proved to be totally unfounded and unsustainable, but the suspension was maintained. Trawling through the consultant's curriculum vitae it was then alleged that he had overstated his clinical involvement during a six-month period as a research registrar prior to becoming a senior registrar and two years before being appointed as consultant. Negotiations were then undertaken and a period of retraining was agreed. The goal posts then shifted and later it was demanded that this be full time for two years (the extent of the so called under training related to part time clinical work over six months!). Eventually this was whittled down to one year but attempts to obtain this are being blocked by a whispering campaignPerhaps the Royal Colleges should instruct their experts that if asked to evaluate a professional competence problem and they recommend a period of retraining they should be very specific about its duration and type. The Royal Colleges through the Postgraduate deans should then insist that this is provided using all its powers. Economically it costs the public purse nothing since that Consultant is already being paid, and the receiving trust has the advantage of an additional experienced doctor on its staff for free. This malignant malice of whispered disinformation must be stamped out.

Human Rights

As was explained in last year’s report the present disciplinary system is an abuse of the Human Rights Act. According to instructions issued from the Lord Chancellor’s Office Government departments are supposed to act on it now, although technically it will not come into force until October 2000. The Department of Health’s legal advisors claim that the disciplinary system in the NHS does not come within the jurisdiction of the Act. Senior Counsel disagrees. A dramatic extension of the abuse is the recent introduction of the grey warning letters. These are sent out by the employers to any prospective employer or place of work (e.g., private hospitals) of any suspended doctor (or nurse). Thus the accused is prevented from practising his profession, that is his Human Rights are being breached. The accused person has not had a fair trial, in fact no trial at all, his case has not been heard by an independent tribunal and he can be in this state of limbo for years Any private practice income will be lost and even if he is cleared it will take many years to make up the deficit. There has been no suggestion of compensation even if it is admitted that the hospital trust had made a mistake. It is claimed that these are sent out only when there is a potential threat to patients. This is not true The Department of Health has no means of ensuring that its instructions in this matter are being followed. One doctor had to threaten legal action to force the private hospital to withdraw their block on his work as the suspension related to an allegation of neither personal nor professional misdoing (he was subsequently cleared of that charge). Other suspended doctors have also found that they are denied the right of private practice even though the allegations against them have no bearing on their clinical abilities. Fundamental to this problem is that the doctor is not innocent until proven guilty. He may be denied the right to work or earn his living merely because some administrator has been panicked by a false allegation. It is of course open season for any person with a grudge. One leading Queen’s Counsel has already stated that these grey letters are contrary to the Human Rights Act. The Department of Health promised to look into the matter again. Since then the silence has been deafening, but the abuses carry on.Regrettably the General Medical Council appears to be heading down this same path, blocking a doctor from earning his living following untested allegations e.g., refusing certificates of good standing. The driving force behind this is political, as politicians panicked by hysterical media response to the tragedy at Bristol, lash out at everyone and trampled on their traditional rights, liberty and freedoms. It is claimed that this is to protect the public but even the most hardened criminal, bank robber, murderer, etc. is not denied the right to earn his living (and freedom to commit mayhem against the public) until detailed charges are heard in a properly appointed court.

Discrimination

doctor (the prosecuting hospital trust picks most of the judges, decides on the rules of evidence and procedure, blocks the defending doctor from obtaining evidence on his behalf and the so called balance of probabilities) yet very few suspensions are ever proven justified. From the following tables it will be seen that only 26 out of 180 completed incidents were proven justified. This suggests that in many cases the initial suspension was unwarranted as not being of sufficient gravity as to justify dismissal. This in turn suggests that Chief Executives and Personnel Department Managers are insufficiently trained to know what constitutes behaviour that could justify dismissal. Part of their problem is their technical ignorance of medical matters so those allegations made by another senior doctor causes them to panic. Following the knee jerk panic rush into suspension there is then felt a need to justify the suspension There is a clear need for training of both Chief Executives and Personnel Department managers as to what would justify suspension and dismissal. To offset this level of ignorance all suspensions should be reviewed by an outside group that is not tainted by local office politics but whose recommendations are binding This review should be a matter of priority for each case.It is also evident from the tables that doctors are not very good at recognising professional incompetence Only one in ten allegations by a doctor about a colleague were proven justified. Although this figure is distorted by malicious allegations yet there would seem to be a genuine problem of recognising real incompetence and the boundary between human error and incompetence. This has serious implications on the question of clinical governance and the Public Disclosure Act (the whistle blowers Act). Public safety would require that whistle blowers should be encouraged but, and there is a big but, this simply transfers the onus of establishing whether there is a genuine problem on to management. For this critically they need hard data of what are the standardised results of diagnosis or treatment, which in turn means knowing the normal scatter adjusted for age and sex etc. This data already exists in the Hospital Activity Analysis records for most of the common hospital treatments. But individual consultants, i.e., the whistle blowers, are not medical statisticians and cannot be expected to know the details.Sex discrimination is obviously much less. Female doctors are no longer more vulnerable than male doctors as far as suspensions are concerned. This represents a change from the past. However it is obvious that male chief executives have great difficulty in reinstating a female doctor whom they have wrongly accused of misdoing. Less that half the wrongly suspended female doctors are reinstated as compared with 60% of male doctors. This male egoism costs the country dearly in compensation settlements. It also is a profound waste of the public money that was invested in that doctor’s training.Discrimination against non-Anglo Saxons is obvious both in the number of suspensions from those groups and also their eventual treatment. The NHS proudly proclaims it is a non-racist organisation. The figures clearly show that those making such pronouncements are out of touch of what really happens. The institutional racism is so ingrained that Trust chief executives can no longer see it. The National healthy Service relies on these overseas doctors. Without them the service would collapse. It is incompetent management to alienate so many by these discriminatory practices.  Tables