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Who takes responsibility for the patient in the new NHS?

Who takes responsibility for the patient in the new NHS?

Please see my reflections and concerns on the current NHS reforms and why I fear that patient-care will suffer.

Who is responsible in the new NHS?
It's clear that the public has no real appreciation of just how far the NHS has changed under its new system.  More worrying, perhaps, is just how little those involved within the NHS understand it either.

One GP practice manager told us this week: 'We have no idea how it all works yet.  It's so complex and these are still early days.  We'll just have to wait and see.'

But the new system is already operational and this practice along with thousands of others have signed up to contracts, so 'wait and see' doesn't give the greatest confidence.

Essentially the fundamental change, as explained by the government, is that much more power has been put into the hands of GPs.  But there is a second key move, which will mean that treatment can be bought from many more providers.

But GPs aren't organizing their patients' treatment.  We rely on them as our safeguards, our gatekeepers to the NHS.  But because it places a major new responsibility on them they are banding together in consortia, and often those consortia are themselves getting into partnerships with major healthcare providers such as Serco or Virgin.

Virgin as a major healthcare provider?  Who knew?  Don't they make records and fly aircraft and, er, handle private finance?  Yes, but now they have been drawn into the NHS in a big way.  So far they have 18 NHS contracts, for everything from providing computer back-up systems to carrying out surgical procedures.

Max Pemberton in the Daily Telegraph no less has melodramatically described Virgin Care as 'one of the first of many vultures to start picking over the rich, tender flesh of the NHS now that is has been splayed open'.
Serco on the other hand is a huge American company with no known previous links with healthcare in this country, or perhaps at all.

So what has drawn them into working with the NHS?  Altruism?  Possibly, though it's just possible that profit plays a part too.

Now this isn't political - there is nothing wrong with making a profit.  All I'm concerned with is patient care and avoiding scandals like the Bristol children's heart surgery debacle and the fiasco over contaminated blood for haemophiliacs - in which both of which I was involved.  It's just that, if huge companies are drawn into the NHS then it's fair to assume that they think huge profits can be made.  So it's reasonable to ask just how that can happen, when all reports suggest that the NHS is already desperately short of money.
But this firm's main concern is with patient safety and what happens when things go wrong; when a patient has a poor experience and suffers injury during surgery.  So our concern is to look for the facets of the system which can let down the patients.

Too often in the old NHS it was the breakdown in systems or communications which led to tragedy.  Somebody didn't write up the patient's notes in full, or somebody else didn't read them.  Directions for what to do in an emergency weren't followed.  A piece of equipment was not working but nobody bothered to report it.  All these were common occurrences.

Yet they all occurred within one organization.  It has to be of concern just how fractured those systems and communications might be now that each stage in a patient's treatment is covered by a different organization.  There is a very real danger, almost an inevitability in my view, that patients will 'fall between the cracks'.

Anyway, how confident can we be that there will be 'joined up' disclosure of data for audit, for example, or when a legal claim is made against them?  Experience suggests there would be very little.

Also, many health scandals in the NHS emerge through the revelations of whistleblowers.  How would that still be possible?  Whistleblowers face huge obstacles to revealing covered up problems within the NHS, but in a private company they would have no protection whatever.
Then when something goes wrong, who do we as lawyers approach to hold responsible?  The last government introduced independent sector treatment centres run by the private sector, ostensibly to reduce NHS waiting lists.  But they weren't thought through.  Nobody was clear who was responsible when something went wrong during a patient's treatment.  On occasions, though poor surgery had been performed by the private clinic, the damages for the resultant injuries were paid for by the NHS!

Patients must have a clear route to redress if they have suffered avoidable harm.  In circumstances where a patient has been treated by a private healthcare provider under contract to the NHS, that still means suing the NHS for breaching what remains their overall duty to the patient.  Any contracts which the NHS undertakes with other providers is not the concern of the patient: he or she has still presented to the NHS for treatment and wherever the NHS arranges that treatment it is still their responsibility.  But clearly, private companies must face the consequences of botched care by their hospitals, and the NHS - and the taxpayer - must ensure it is not out of pocket.  The question is: will that actually happen?

This issue of the fracturing of the NHS is presently our major concern, and particularly at the moment the puzzle over insurance.  The NHS insures itself through arrangements with government, not with the insurance industry, and GPs are covered by their indemnity organizations.  But the private companies are required to take out commercial insurance.  Now I can't see the NHS indemnity extending to private providers.  So where are the private healthcare companies working within the NHS getting their insurance from?  How on earth can those insurers underwrite risks which might go back 20 years or more?
So when there is a partnership of GPs from within the NHS and private companies, and we have to sue the partnership, whose insurers cover the claim?

At the moment the two large private healthcare providers we have approached haven't given us an answer.  So we are enquiring through Parliament to see if anyone there can help us.  Complexity in a system is invariably a problem when something goes wrong.  Just how much of a problem remains a serious issue of concern.

Created: 01/06/2012
Categories: NHS Issues