3 July 2011

Insulin, badly drafted law, & the threat of No win No Fee claims.

An increasing amount of time at the Stafford Hospital inquiry is being spent on looking into the circumstances surrounding one individual case.
A press report of the inquest of this case is here.
Last week we heard from the Health and Safety executive who unexpectedly found himself at the centre of the Stafford Hospital mess. He came under astonishing pressures from a number of different directions to use a legislative loophole and open up a legal case.
The HSE took the best advice it could get and backed away from this action, for reasons that were very thoroughly explored in the evidence.  The HSE may have had a theoretical power to act, due to a very loose piece of legislative drafting on an old bill, but taking action in this particular case would set precedents that would have had major implications for all of us. 
The main function of the HSE is to protect the health and safety of people at work. Their 500 inspectors cover the entire working environment for the entire country. They have to prioritise their work. Within hospitals they are often concerned with matters like safe lifting, techniques, they also have some requirement to look at the safety of the premises and equipment.  Here are examples of work that they have done in a hospital setting. The delivery of treatment is not normally considered to be within the remit of the HSE. This is covered by other regulators, and therefore the HSE is instructed to avoid duplication of effort.
The arguments for using this legislation to take this particular case are highly unusual. The case might potentially be winnable, but the effects of this would potentially to a huge increase in the numbers of health and safety claims in all manner of working environments. It would require a massive increase in the numbers of HSE inspectors, and it would mean taxpayers and insurance payers channelling a lot of public money through No Win No Fee lawyers.      
We frequently hear from the press about the unintended consequences of over use of Health and Safety legislation. Here is the most recent example.
This quote is in relation to school trips but does flag up the worrying impact of a claims culture
The people behind unreasonable rulings were often "well-meaning but misguided jobsworths" who go too far, said Hackitt, adding that many organisations imposed restrictions not out of concern for people's safety but due to fears of no-win no-fee lawsuits for personal injury. Other bodies used the guidance as a cynical excuse to cut services, she added.
This government is keen to reduce red tape and the number of burdensome insurance claims.

The particular case at Stafford is about the failure to give insulin at the right time. This is clearly wrong, The Coroner is clear that it did contribute to the death of a very sick lady, and the family have every reason to be hurt and angry.  

I was certain that I had heard that this is in fact an extreme example of what is a very common occurrence.
I found this study from the US.

The Patient Safety Alert follows a review of 16,600 patient safety incidents involving insulin, reported to the National Reporting and Learning System (NRLS) over a six year period between 1 November 2003 and 1 November 2009. Six deaths and 12 incidents resulting in severe harm were reported. Of the 16,600 incidents, 26 per cent were due to the wrong insulin dose, strength or frequency and 20 per cent were due to omitted medicine. Patients being prescribed or dispensed the wrong insulin product accounted for 14 per cent of incidents.
The NPSA analysis shows the main categories of failings.

administration of a wrong dose,
● administration to the wrong patient,
● use of the wrong insulin type,
● administration via the wrong route,
● wrong timing of doses,
● omission of doses,
● failure to properly adjust insulin therapy, and
● improper monitoring, timing, and assessment
of blood glucose (BG) results.

One of the main things that many families want when their family member has been involved in a tragedy of this nature is to ensure that lessons are learned and that other families should not suffer in the same way. They often have a very generous wish that other people should benefit from the mishap that they have suffered. If we look at the actions being taken by NPSA we can see there is now a detailed programme to improve the care of patients with diabetes in hospital. This will involve a widespread training programme for staff and new safety protocols.
I have no way of knowing if all this was triggered by this individual case, but if it was then it is a major achievement for the family. If this has the effect of reducing the very substantial numbers of insulin related incidents that take place in our hospitals all the time, then they can have the satisfaction of knowing that they will have made a substantial difference to health care.  
It would be good the think that this knowledge, in addition to the great many apologies the family have received may go some way to healing the hurt.
As to taking the case through the courts, maybe for some families there does need to be a way to do this.  It is clear that there was at the time of this incident a real gap in the powers of the Health Care commission. The Inquiry evidence shows us that the clear focus of the HCC was to learn from things that went wrong, and work to improve matters. It was not their remit to focus on individual cases.  That goes a long way to explaining the very real frustration suffered by the families. I am sure that Robert Francis will be ensuring that in the future there are simpler and more effective ways of a addressing the needs of families who feel that the problems they have suffered crosses the line into injustice.
The HSE would certainly see it as preferable that this should not be done through the legislation that they have to operate. They do not believe it would be in the public interest, and I think the figures I have quoted on insulin related cases above indicate that they may well be right.  Cases related to insulin would just a tiny proportion of the potential cases that no win no fee lawyers could seek to bring if this particular legislation was to be used.
The local and national press have been campaigning for justice for the individual family. I am sure that Robert Francis will be taking a great deal of trouble to find a solution that is good for this family and good for the wider public interest.
When we do campaign for a particular course of action it is I would suggest always worth listening very carefully to those individuals who have detailed knowledge of what this would imply; People who can show us the unintended consequences of the actions we take. We need to be careful what we wish for.