The NHS: Broken on the Wheel

"It may be just another day for you but to the patients and families, this is often the worst day of their lives." is a line that every nurse will hear at least once during their training. I'm fond of this old cliché for a couple of reasons; it cuts pretty close to the heart of nursing and at the same time shows how utterly inadequate the public discourse around the NHS is. It captures nursing both at its worst, as seen in hidden camera documentaries of nurses laughing around the station while their patients suffer, and at its best; as when the nurse who has seen hundreds of "worst days" just like yours makes what seemed impossible manageable again.

A person at the worst time of their life is always weak and here we get to the real, difficult, core of the power imbalance in healthcare. The weak are vulnerable not just to headline-worthy overt abuses but to a more insidious drift between institutional concepts of their needs and their actual needs. To the healthcare provider it's just another day; they're unlikely to be questioning the norms by which they work and are, in any case, probably powerless to change them. An extreme example is the hospital that recently had acute surgical patients waiting, unsupervised, on trolleys in the corridor because the surgical admissions ward was full but keeping them in A+E any longer would breach the four hour target.

The solution to this problem, we are told, is patient choice but is this anything more than an overstretched metaphor masquerading as policy? The idea of a market for healthcare is simple enough for, say, laser eye surgery but having the worst day of your life, or being chronically ill, is probably not analogous to buying a car in any meaningful way. The idealised rational health consumer that the policy is predicated upon bears little resemblance to real patients. Many patients are, and will continue to be, trapped. Trapped by the location of the relatives whose visits will be their main, perhaps only, form of psychological support. Trapped by the denial, loneliness, fear and impotent anger that attends a hospital admission. Trapped by a faith in the medical staff and a quiet fear of displeasing them. Trapped by disease processes and drug treatments that often make dispassionate analysis a near impossibility. 


Patient choice is important; for the reasons above, not despite them. If, however, choice is to be anything more than a fig leaf for quiet privatisation then the way in which it is provided will need to reflect the reality of those that it is provided for. Failure to do this will produce nothing more than an extension of choice for the rich, the supported and the well. Staff need to be able to offer choices and support the making of them and organisations need to prioritise this, even where it could potentially cost them money. So if patient autonomy is the ideal, and its a very good ideal indeed, then what is required is a fundamental shift in practice of all the healthcare professions, a complete organisational restructuring of every healthcare provider in the country and a Department of Health that provides strategy instead of band aid solutions and hype. This requires evolution, not revolution and this kind of directed incremental change is all but impossible in an organisation that undergoes a major structural reorganisation every year or two.


This cyclical structural change is now so entrenched that it doesn't merely dominate the discourse; it has become the discourse. The government quickly becomes panicked that the last changes have had no discernible effect, the restructuring begins anew, the organisations spend more resources administrating the changes, the managers spend more time implementing them, the clinicians more time adapting to them and so patient care becomes ever more technocratic, remote and dysfunctional. So the wheel spins again and with every spin everyone's role becomes more dislocated and more immutable. The government; any government, doing anything, are no longer the strategic brains but the enemy "attacking our NHS". The managers, instead of bringing an essential layer of coherence to one of the largest organisations in the world are "taking money away from front line jobs". The nurses, burnt out and facing impossible staffing levels, "don't care". The patient, alienated first by illness and again by institutions, is left with the unenviable role of the noble victim.


To recognise the truth to any of these characterisations and demand wholesale reform is to do little more than demand another spin of the wheel. But to deny that the government is hysterical, the managers preoccupied and many staff hardened by exhaustion is to ignore the realities of the situation. A more nuanced approach is required and, from Parliament, a more humble one. Every healthcare system in the world faces massive challenges in the years ahead, any healthcare system worth having will be expensive and the NHS in particular has deep cultural problems that do require addressing. It's hardly surprising that every new government is tempted  by utopian reform but for the wheel to stop the NHS needs something far less dramatic and infinitely less fashionable. Piecemeal social engineering; fix the bits that are broken and allow the structure to evolve. Such an approach might even allow the deeper culture to adapt and the changes to be informed by empiricism rather than ideology but perhaps I'm veering into utopian visions myself now.


This has been an broad, philosophical post, barely touching on the details of the current Health and Social Care Bill but this context is important. If everything changes then, once again, nothing will and all those people having the worst days of their life will be left a little more alone by an organisation slowly losing its human face.

Healthcare and the Duty to Protect Life

Last Wednesday, in Rabone and another (Appellants) v Pennine Care NHS Trust (Respondent) [2012] UKSC 2, the Supreme Court ruled that a hospital trust had an operational obligation under the European Convention on Human Rights to protect a voluntary mental health patient from suicide. This is the first such ruling and, while the case is potentially important for a number of reasons, I'd like here to examine the possible implications of several obiter dicta.


Background to the case
On 20 April 2005 Melanie Rabone, aged 24, successfully took her own life. After a number of unsuccessful suicide attempts she had been admitted on the 11th of April that year to Stepping Hill Hospital on a voluntary basis. She was released from the hospitals care on the 19th of April and despite the vocal concerns of her parents, who were to be her only carers, she was allowed two days of 'home leave'. It was in this time that she hanged herself.


The NHS Trust settled a clinical negligence claim in 2008 however they did not admit liability for breach of article 2. Both at the first instance and in the Court of Appeal no 'operational duty' under article 2 was found although the Court of Appeal did note that had it existed the Trust would have been in breach of it.


The Supreme Court faced a number of questions however the only one of relevance here is
(i) whether the operational obligation under article 2 can in principle be owed to a hospital patient who is mentally ill, but who is not detained under the MHA [14]


The Nature and Scope of the 'Operational Duty' under Article 2
The relevant part of article 2 simply states 'Everyone's right to life shall be protected by law'. In addition to the 'negative duty' to refrain from taking life the European Court of Human Rights has interpreted this as carrying a positive duty to protect life in. In particular the ECtHR found in Osman v United Kingdom (2000) 29 EHRR 245 at 115 that 'the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual'.


It has since been found that this operational obligation may also apply in a number of situations including, significantly, psychiatric patients at risk of suicide who are detained under the Mental Health Act 1983 (Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681). However the ECtHR in Powell v United Kingdom (2000) 30 EHRR CD 362 found that, as Lord Dyson summarised in this case 
 'if the hospital authorities have performed their obligation to adopt appropriate general measures for the protection of the lives of patients in hospitals (for example, by ensuring that competent staff are recruited, high professional standards are maintained and suitable systems of work are put in place), casual acts of negligence by members of staff will not give rise to a breach of article 2.'[19]

The central question for the Supreme Court was to determine whether the Trust's negligence was 'casual' in this sense or whether it, as in Savage, involved a breach of the operational obligation. Lord Dyson's reasoning contained the following points;

• A “real and immediate risk” to life is a necessary but not sufficient condition for the existence of the duty.[21]
• The duty applies to all detainees, particularly those who are physically or mentally vulnerable. [22]
• Where an individual is sufficiently vulnerable the ECtHR has been willing to find an operational duty even where control has not been assumed by the state.[23]
• If the risk is 'of the kind that individuals in the relevant category should reasonably be expected to take' the operational duty will not arise.[24]
• The differences between voluntary and detained psychiatric patients 'should not be exaggerated' [27] This difference is 'more apparent than real' both due to the holding powers under section 5 of the Mental Health Act 1983 [28] and the real fear that many informal patients have that if they attempt to leave they will be detained in any case [29]
• Savage showed that medical staff can be under an operational duty to prevent a patient from committing suicide.

On this basis an operational duty was found to exist in Melanie's case.

Implications Beyond Mental Health

Both Lord Dyson and Lady Hale were at pains in their judgements to distinguish between a voluntary mental health patient and a physical patient. Obviously these comments are obiter however I feel that the distinction is not tenable in all cases. The implication then would be that, despite Powell, a further extension of the operational duty may occur in the future.

At [26] Lord Dyson noted that

It is true that (i) patients who are in hospital suffering from physical illnesses are often in a vulnerable state, (ii) the hospital authorities will have assumed responsibility for them and (iii) such patients may face a real and immediate risk to their lives. But the Strasbourg jurisprudence shows that these factors are not sufficient to give rise to an article 2 operational duty on the part of the state.

The distinction that he then enunciates between the voluntary psychiatric and physical patient has three limbs:

• The existence of holding powers under s.5 of the Mental Health Act 1983 means that the Trust has statutory powers of detention with regard to voluntary patients at risk of suicide. In contrast "No such powers exist, or are necessary, in the case of the capable patient in the ordinary healthcare setting" [28]
• The underlying fear of being detained that many voluntary patients feel amounts to a situational, if not legal, coercion. [29]
• The nature of the risk to which a physical and suicidal psychiatric patient face is different. " In the case of the suicide of a psychiatric patient, the likelihood is that, given the patient’s mental disorder, her capacity to make a rational decision to end her life will be to some degree impaired ... On the other hand, the patient who undergoes surgery will have accepted the risk of death on the basis of informed consent" [30]

(Emphasis in the quotes added)
The first point that can be made about this reasoning is that it uses a planned surgical patient who has given clear consent as the exemplar of physical care. This can also be seen at [27] and, in Lady Hale's judgment, at [106]. This is important because, as the quotes given above show, it rests on an assumption of capacity on behalf of physical patients that is simply not true in all cases. Many physical patients lack capacity due to illness, drugs or other reasons at some point in their hospital stay.


This emphasis on capacity in making the practical distinction despite the fact that the judgment is, on the face of it, about de facto detention in mental health settings is important. It undermines the first bullet point above; The Mental Capacity Act 2005 allows for the deprivation of liberty of, and actions to be taken on behalf of, any patient who lacks capacity. Beyond that a use of capacity as opposed to mental health 'status' as the criteria for determining liability allows more finally grained judgments. An individual may have capacity in one area and not another and this 'fine-tunable' nature accords far better with the 'case by case' [25] approach rightly taken in the judgment as a whole.


The remaining point, that voluntary psychiatric patients often experience situational coercion, is sadly also true for a large minority of physical patients. For some illness alone may impose this feeling however for others the authority with which doctors and other staff are regarded is a huge factor. In patients suffering temporary confusion due to illness or drugs a sensation of being imprisoned is so common that, at least in critical care, providing appropriate support is considered to be a relatively routine part of the nurses job.


An Example
The above analysis risks being too abstract so a concrete example may be of use. Many High Dependency Unit patients have an arterial line; a small catheter that sits in the artery and allows continuous blood pressure monitoring and the taking of certain blood samples. If such a line becomes disconnected arterial pressure will force blood back up it, risking a potential haemorrhage. For this reasons the monitoring has an 'arterial disconnect' alarm and the patient:nurse ratio in HDU is only 2:1. However alarms can be switched off and staff can be negligent and were such a patient to be left haemorrhaging it is at least conceivable that they would die as a result.


HDU patients are awake and, sometimes, confused. When confused they often pull at arterial lines (and other medical devices) without fully understanding the possible consequences. In such a case it is quite possible for the line to break in such a way that the patient does not see the back-flowing blood. If such a patient were to bleed to death it would clearly be a case of negligence however, beyond that, it may be a breach of the article 2 operational duty.


If we apply Lord Dyson's reasoning in this case: There is a 'real and immediate risk' to the life of the patient. The critical care patient is extremely vulnerable, often both physically and mentally. The risk is certainly not  'of the kind that individuals in the relevant category should reasonably be expected to take'. Furthermore the patient lacks capacity in the matter at hand. He is effectively in the Trusts control and may have little realistic chance of survival were he to leave the ward. The MCA 2005 would, by statutory means, allow for actions in the patients best interests.


In such a case, I would argue, the operational duty would exist.


Conclusion
A lack of capacity on behalf of the patient may provide some rationale to the exceptions to the rule in Powell that 'casual' acts of negligence in healthcare do not breach the article 2 'operational obligation'. It would also suggest that at some point in the future the duty could be usefully extended to certain classes of physical patient without placing too onerous a burden upon the authorities.


Further Reading
Judgment
Summary of the case by ObiterJ
Comprehensive analysis on UK Human Rights Blog from Matthew Hill Part 1 and Part 2
Analysis of the constitutional implications of Lord Brown's dicta in the case from Alison L Young
Excellent analysis of the implications of the case by Nell Munro

First Words

It seems appropriate to start this blog with some kind of explanation why it exists and who I am. I am, to grab a couple of the blithe labels by which we all classify ourselves, a nurse and a law student. The blog will be about healthcare, law and broadly related topics. My inspiration comes from the huge number of high quality legal blogs, from The UK Supreme Court to The Small Places. I hope, in my own small way, to join their number.

I want to start by talking about hospitals, human rights and why I'm studying (and blogging about) law at all.

Hospital care in the UK, and probably everywhere else, is profoundly dehumanising. The physical insults of catheters and drips are negligible when weighed against the profound social harm, often amounting to loss of liberty, that being a patient brings. A patient's needs, as determined by a professional, are at the centre of hospital care however a patient's needs, as determined by themselves, barely register in practice. This is, I believe, the result of a simple imbalance of power; the Stanford prison experiment writ big. This power relation permeates and distorts all hospital care to some extent or another but some examples may illustrate what concerns me:

• Failure to inform the patient of decisions made on their behalf. Nell Munro describes the effects of this simple omission brilliantly.
• The insistence by professionals, that I have seen several times, that critically ill patients who are known beyond doubt to be inoperable and in the end stage of their disease be subject to the humiliation of further tests to 'determine the cause' more accurately.
• The wheedling and emotional blackmail that even a reasonably well patient attempting 'self discharge' will inevitably be subject to. This may be a 'soft' use of power but all patients are in an emotionally vulnerable position and at times this practice can come uncomfortably close to a deprivation of liberty.
• Extreme examples such as Mid-Staffordshire. As Robert Francis said in his closing remarks to the inquiry 'I do not think anyone now maintains that at least some of the appalling experiences of which I have heard are unique to Stafford'. Such practices are not, unfortunately, contrary to the underlying culture of the NHS but rather an example of what happens when its own internal logic is allowed to run unchecked.

Hospital trusts are, of course, supposed to be scrutinised. That this scrutiny has been hopelessly inadequate is both the anticipated finding of the Mid-Staffordshire public inquiry and my own personal experience. However the problem runs far deeper than that; the NHS is simply too big for every ward to face external scrutiny on more than a very occasional basis. Scrutiny by patients or relatives is often floated as a solution to this problem however this is to ignore the unequal power relation at the heart of the problem. You won't, usually, complain about your relatives mistreatment because to to do so would be to risk causing them further problems at the hands of vengeful staff.

What is needed then is a more profound cultural change, both by staff and patients, and this is why human rights matter. They might be, as JAG Griffith characterised them, political claims masquerading as something more noble but they can be made by more people and in wider circumstances than would otherwise be possible. This makes them a relative good if not an absolute one. The point has been made eloquently by Edwin Cameron in his Leslie Scarman lecture:

"Through legal agency, even if applied imperfectly, material benefits can accrue to human lives. Legal rights can change social practice, by altering discourse."