Mid Staffs Inquiry report: Human rights abuses need human rights solutions – Sanchita Hosali
6 February 2013
This guest post is by Sanchita Hosali, Deputy Director at the British Institute of Human Rights. A number of 1 Crown Office Row barristers represented parties to the Inquiry, none of whom has contributed to this post.
Hundreds of people have died; others have been starved, dehydrated and left in appalling conditions of indignity, witnessed by their loved ones. Surely this is what Chris Grayling, Justice Secretary, had in mind when he recently cautioned to need to “concentrate on real human rights”?
Yet the rights, legal accountability, and practical benefits of the Human Rights Act are rarely mentioned in discussions about the shocking failures of care such as those featured in today’s Public Inquiry Report in events at Staffordshire Hospital between 2005-2008.
As Mr Francis makes clear, what happened at Staffordshire Hospital was a breach of basic rights to dignity and respect, and what is needed now are stronger lines of accountability and culture change which places patients at the heart of healthcare. Human rights speak to the fundamental standards that the Report says are needed to achieve this transformation in care.
When we need to use NHS services most of us will receive care and treatment which respects our basic rights to equal dignity. Sadly, for others, often at their most vulnerable, this is not the case. Today’s Francis Report from the Mid-Staffordshire Public Inquiry, the latest in a long line of similar reports into failures of care, presents an opportunity to reflect on why it is important to frame these discussions in human rights terms. Put simply we are talking about risks to and abuse of basic human rights, so our solutions both for immediate accountability and longer-term change should include human rights.
Seeking accountability? That’s what the Human Rights Act is for
Just one of the stories from Mid-Staffs is a stark example of the serious human rights issues at stake. Following hospitalisation for a fall at home, one woman’s “care” resulted in pressure sores, dehydration and malnourishment, an array of serious infections and frequent pain due to lack of medication. After three months she died in hospital, and her body was so contagious she was denied the final dignity of a proper burial.
The family argued this was so appalling it amounted to a breach of the right to be free from inhuman and degrading treatment under the Human Rights Act, and the family distress at witnessing their mother’s suffering breached their rights to physical and mental well-being. Leigh Day and Co helped this family and many others secure over 1 million pounds in out of court settlements, and perhaps more importantly a personal letter of apology from the top. It is also worth recalling that families relied on the Human Rights Act to secure the Public Inquiry in the first place, relying on the investigative duty included within the right to life and freedom from inhuman treatment.
Applying a human rights lens also raises serious questions about the time it took to respond, particularly as health practitioners and those in regulatory bodies have talked about the concerns they raised. Positive obligations under the Human Rights Act to take action can include investigating credible allegations of harm and taking preventative measures. Perhaps now is the time to consider the role of regulators and “whistle-blowing” laws in light of these positive obligations.
Beyond Mid-Staffs the Human Rights Act is now being used to challenge other care-related failings. For example, Liberty is representing two former residents of Winterborne View who suffered physical violence and humiliation. Beyond the courtrooms, BIHR works with advocacy groups to use rights language in their everyday interactions to make sure services are dignified and accountable, including for example the groups which challenged the blanket use of Do Not Resuscitate orders in hospital wards.
Re-introducing the human into healthcare
Mid-Staffs is a stark reminder of what happens when targets and financial imperatives become the focus and services lose sight of the person. A human rights approach looks at using the law in practice to design and deliver services that place patients at the heart of healthcare, seeking to respect, protect and fulfil their rights.
Our work with Mersey Care NHS Trust shows how a human rights approach helps put patient voice front and centre, transforming services and changing staffing cultures and practices. In the Learning Disability Service staff, patients and carers work together to understand their human rights and what they mean in a healthcare setting. Evaluation has shown the powerful difference this work makes to both patients and staff. More than three-quarters of service users and carers said it has a positive impact on their mental health. Over 90% of managers said this approach had positively changed them as a person, with significant numbers reporting a change in attitude and practice.
Moving forward: naming human rights abuses here at home
Clearly the Human Rights Act is not a magic wand; but when we need health services, it is not too much to expect to be treated with basic dignity and respect. Placing human rights at the heart of healthcare is an important step in making this a reality.
So will this happen? You only need to visit the pages of this blog to see the increasingly toxic nature of our domestic debates about the Human Rights Act. Sadly, this game of political and headline one-upmanship helps foster a climate which fails to identify appalling standards of care as a human rights concern, ignoring an important accountability mechanism and a means for a fresh person-centred approach.
Mid-Staffordshire should not be seen as a one-off or something from the past. As a recent report notes the climate of increased demand for services coupled with “austerity” may lead Trusts to focus more (or exclusively) on cost rather than quality of care, raising fears “that there could be another ‘Mid Staffs’. As Jeremy Hunt, Health Secretary, considers the Francis Report and the much broader need to ensure “patients must never be treated as numbers but as human beings” we should all be reminding him that the Human Rights Act should be part of the toolkit for ensuring accountable, dignified and respectful services.
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Read more:
- Mid Staffordshire Public Inquiry report published
- Whose voices count in our human rights debate? – Sanchita Hosali
- After Winterbourne View: the untapped potential of Article 8 – Lucy Series
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Maybe what we should be saying is “Everyone’s Rights” rather than “Human Rights” so that it becomes totally inclusive and that every single person in the world has these rights as of right.
Sadly, the fact is that Human Rights legistlation is simply a rhetoric. It does not provide an effective legal remedy, as it is not an effective deterrent of abuse of the human rights of the elderly and the most vulnerable memebrs of our society.
There is no transparency in important decisions, made by professionals, whether or not to treat patients. Often there is no monitoring of patient’s condition, no examination of X-rays, even when they are available. My late mother was left to choke on her vomit and die in a rehabilitation ward, which made no attempt to rehabilitate her. She was severely dehydrated, suffering from diarrohea for eight weeks and was given no oxygen, when she was poorly, but her records of course state otherwise. I was ordered to sit in the corridor all night outside my mother’s room.
It took me three years to access her medical records. Additionally, the experts bent backwards and forwards tro exhonerate their colleagues. A junior Dr. signed a DNR order without even informing me. The night nurse told me that they expected my mother to die that night, but she could not let me into the room. After her death I spent two years going through the NHS Complaints procedures, right up to the Ombudsman, who simply refused to investigate.
When I finally went to the Court as the last resort the case was simply struck out, on grounds that those responsible left this institution. This clearly demonstrates that the wrongdoers are given impunity. I am left to pick up the NHS solicitors bill of £6,000 which I can’t afford to pay.
Can you please tell me how the Human Rights Act could have protected my incapacitated mother, who lpost her speech, from abuse of her human rights, when the records were under their full control? I am left suffering with depression and a deep sense of injustice which is suffocating me. The key issue here is justice and fairness for all.
Dear Marie
I am saddened so much by your post. It is heartbreaking.
Did you go to your MP about this?
I went to the MP and he has set things in motion after some six and a quarter years of obfuscation about how my mother died in circumstances too appalling to relate, but I do totally empathise with you.
The Manager of Legal Services of the successor Hospital Trust is currently investigating my original complaints made BEFORE my mother died.
But, like you, I went to the Ombudsman who simply stated that there was nothing found wrong – but I have not accepted this and went to the General Medical Council and made complaints about specific doctors,
There must be transparency and candour.
I believe that finally I might get some answers because I trust the Legal Services Manager of this Hospital Trust – a man with probity.
Don’t accept the Court is the final place – complain about the individual practitioners who you say did not treat your mother correctly. The Nursing Midwifery Council and General Medical Council both have Fitness to Practise sections and they will assist you.
You might be told that there is a five year timeline from the date of objection, but if it took you three years to get the records, and have gone through Court, you could point out that only now do you have all the information.
Did you get an autopsy or a Coroner’s Inquest?
I am currently requesting an Inquest for my mother.
I wish you well.
We have to stand up for our loved ones.
Rosemary
The comments here are almost as telling as the post itself. We have a serious problem with the complete lack of true accountability of the medical community in this country. Since considering it, I cannot think of a single reason why virtually EVERY position of public office should not come with a statutory duty of candour, let alone doctors, in whom we trust our very lives. After all, you are all there to serve the public, who are paying you to act in their best interests, are you not?
Some time ago, Will Powell, (the long-standing force behind the call for ‘Robbie’s Law’, a statutory duty of candour for doctors), suggested that the reason it was resisted from the top, was because the politicians feared having the same duty imposed upon themselves at some future point, should they be seen to accept the introduction of the concept. I don’t find his theory in any way challenging to accept as plausible. I also don’t see it as the slightest excuse not to have one.
When it comes to the medical community, this lack of requirement for candour is often abused for the purpose of blatant self-protection and without question this is to the detriment of us, the patients. Medical errors are becoming something you have to spot for yourself if the effects aren’t obvious, or easily explained away. Add to this your medical records, which are unfairly in the sole custody of the potential defendant at all times and yet accepted as absolute evidence in any legal challenge, despite how open to compromise this ‘evidence’ blatantly is.
If you request a copy of your medical records, I understand the first thing they do is hand the file to your doctor, for them to remove any items from your copy which they deem to be ‘not in your best interests’ to be shown. Too upsetting, confusing etc. Now even though the person may ACTUALLY be one in this instance, it doesn’t take a real-life brain surgeon to work out that if your patient has requested a copy of their medical records, this may spell trouble for you or one of your team ahead. A little ‘housekeeping’ at this stage can often save one’s self a lot of unsavoury trouble further down the line…
Throw in a target-driven pressure from above, which puts the emphasis on ruthless cost cutting and controls and this makes for a potentially lethal cocktail. More chances for mistakes and less chance of being told the truth when they do happen. On top of this, a fragmented and ineffective regulation structure means that this high-wire act is being performed with nothing resembling an effective safety net for patients. The regulation systems offer, if anything, further layers of protection, around which a complainant can be run for years to the point of exhaustion, without anything to show for their devotion to finding the truth. The legal system offers little comfort as a last resort.
These are our very lives which are being played with here. Even to the point of consent being utterly over-ridden – a criminal offence in certain circumstances. I personally regard the NHS to be a dangerous place to find yourself at the moment, particularly at weekends and Bank Holidays. Whilst I know there are many fantastic people who work in the NHS, I also see a dark side to this world.
All is not well here and people are dying unexpectedly at a rate which puts 9-11 and 7-7 into stark perspective. This one is just easier to hide unless a Julie Bailey comes along. Even when she does and many support her, somehow, nobody is responsible? Imagine public reaction to THAT as a conclusion, if we’d had TWENTY 7-7s bombings – which is what it would take to achieve a comparable death toll to Mid Staffs. With NOBODY responsible? And that’s just one hospital so far.
This is not a time for political rhetoric or point-scoring. It is not a time to let everybody play musical chairs again and hope we forget until events can be referred to as ‘historic’ and declared fixed. People are dying. It is a time to rid ourselves of this deadly infestation of cover-ups, which could cost any one of our family members their lives, on any given day.
We can’t afford NOT to keep pushing for our human rights to be put firmly at the centre of this debate. They should come above all other considerations in providing NHS services. Honesty and ethics are not optional extras for doctors, in delivering against these basic rights. The law must be seen to acknowledge this. ‘Sidestepping’ responsibility for up to 1200 deaths is not an option. A legal duty of candour is a must. Regrettably, I too shall not be holding my breath.
There is a culture of discrimination of the elderly, apathy and lack of accountability and unless there is a change in culture, nothing will change. For example, If you complain about the care your parent or child received in hospital, they bully you and stick labels on you that you are “mentally ill” or that you distress your parent, and they ban you from seeing them – anything goes – as long as they can get rid of you. If you ask them to clean your parent they will say that you are harrassing them.
The UK laws do not offer real protection to the vulnerable members of our society and perhaps it is time to recognise this fact and do something about it, rather than denying us access to justice, on technicalities, to absolve the professionals from criminal liability. This cannot be fair or just.
And so we should applaud and value the Human Rights Act and the fact that it enabled families affected by failures at Staffordshire Hospital to secure a very valuable Public Inquiry. We need to help people to understand what human rights are and how valuable the Human Rights Act is. ‘Human rights’ sounds like such an obvious phrase but actually most of us don’t know what the Human Rights Act encompasses. I think we can so easily let transgressions happen to other people, but also, when we are vulnerable, to ourselves. Using a human rights approach as a starting point when designing and delivering services would help us all to have a better understanding of human rights, empowering both service providers and service users. The work with Mersey Care NHS Trusts seems like such a positive example. Lets hope that more NHS Trusts follow suit.
No matter how much we will yap yap, it won’t fix the problem. The problem only be fix when we elect a real government who cares about the people, and would scrap our justice system altogether, as it stinks. Start all over from scratch.
A brand new police force, a brand new set of laws, get rid of lawyers and represent our selves in court, bring to justice every person who has been doing wrong to the people of this country, give a new and fair rial to everyone presently in prison and pay a fair compensation to anyone found innocent and incarcerated. M minimum of one million pounds, per year of wrong incarceration.
Let’s get all together and so things wright once and for all.
Albert
Good post. There is a great deal of law which can be brought into play in this area but the basic point is that patients must be treated with respect and given proper care. Just how would these so-called ‘professionals’ feel if they were treated in the way some of these vulnerable people have been treated? Why has basic decency left the system?
My late mother had a stroke which left her paralysed and without speech. The NHS placed her in a rehabilitation ward of a mental hospital in London. She was left sitting on her bed 24/7 sleeping in a sitting position for eight weeks, dehydrated, with bed sores( she was incontinent) and citated heavily with antisychotic drugs. She only survived for seven weeks in this hospital. She was left to choke on her vomit and die and I was not even allowed in the room with her in her last hours. I am still recovering from the trauma from seeing my mother left to die.
Sadly, the UK Courts struck out my Human rights claim. Both myself and my mother have been victims of a grave injustice which is swept under the carpet. There are many vulnerable people out there, like my mother. They deserve to be treated with dignity and respect, but no one really cares!
What is the purpose of having a Human Rights Act if it can’t offer real protection to those who need it, most. If Doctors and nurses have no duty of candor, how can the Human rights Act protect us, protect our parents or children?
I hope I’ll be proved wrong but my guess is that there’ll be lots and lots of talk, meeting, papers circulated and so on just as there was after Shipman but no action, none that actually makes any difference anyway and none now rather than perhaps, only maybe, in some far-off month or year ahh but then the UK’s debt and election will get in the way and everyone will forget about this again until the next time a Trust gets found out… If all the recommendations in the Shipman report had been acted upon we might have had no need for Mid-Staffs. Why is there no follow-up on the recommendations made after expensive public inquiries?
This report makes a lot of noise about the Nursing and Midwifery Council (NMC) but rather less about the GMC (and none about some other regulators for example the HPC – or have I missed it?), this is wrong. GMC guidelines are only that, they are often not applied and the GMC itself (and NHS) actively discriminates and treats people less favourably because of their colour/race. When doctors speak out about this discrimination they are labelled as trouble-makers and all of a sudden they may be ‘found’ to be clinically incompetent and/or ‘suffering from mental health problems’ – that’s how the NHS/GMC shut up those who dare point out failings. Oh and why is the GMC a charity when it fails to perform its statutory purpose and its charitable function: to protect patients from poor care?
The same pattern of lies, denials and cover-ups after errors have been made/harm has been caused continues today in your local hospitals and GP surgeries, I’d like to believe this can and will change but I fear my hopes are naive and groundless. Until real data is collected on outcomes (doctors don’t want this, should we ask why?) and medics/staff are applauded for speaking out and acting for patient safety nothing will change but there are too many powerful bodies who wish to keep things just as they are – not least Deaneries and Royal Colleges: their selection of candidates and training might be found unfit for purpose.
I too, as James Lawson writes, won’t hold my breath. How to force change when the greater will is for none?
11 February 2013
Dear Ms Hosali and JenTheHen,
There seems to be a need to return to good old-fashioned medical care the like of which we used to have in the 1960s and 1970s but in the last 10 to 20 years everything seems to have gone wrong, and we no longer have faith in our NHS system and nurses are demoralised having to do the work of more than one person, tickbox culture is the norm, doctors having too much work, and ultimately we are all suffering.
Why has this happened at all?
We have some truly inspirational doctors, nurses, health professionals all doing their very best but the entire Welfare State is coming apart at the seams and we need action now, not later. We need a revolutionary way of thinking.
Mental health is a case in point.
Why should a person be taken out of their home and be placed in a mental asylum – for that is what it is – and subjected to inhumane torture of being “sectioned” against their will when they have done nothing wrong?
That is the worst human degradation imaginable and yet nobody is sticking up for their Human Rights to abolish the terrible Mental Health Act 1983[2007] and other legislation pertaining to mental health which was supposed to empower people to be able to make decisions as per the Mental Capacity Act 2005 but which in practice is commonly used to remove a patient’s right to make a decision because the person testing it uses the fact that the patient does not agree with them to be “evidence” that this shows that they must be unable to make a “proper” decision and go ahead and make a “best interests decision” without so much as a by-your-leave of the patient in question.
And this of course relates to the so-called “pathway to death”.
It is horrific.
I think these laws need to be removed from the statute book urgently and a national debate held as to how to make a NEW WELFARE STATE altogether, bringing education, health, police, social services, housing, local councils all together to help people in a truly beneficent way that does not demean people and respects their human rights.
That is my hope and prayer for 2013.
Thank you very much for your timely article.
Yours sincerely,
Rosemary Cantwell
Now that the Government has discharged its obligations under Articles 2 and 3 to carry out a full and thorough investigation as a consequence of a violation of the right to life and the prohibition on inhuman or degrading treatment, perhaps we could be kept informed as to who has or will be arrested, charged and arraigned before the court? Who will have their licence to practice revoked? Who will be struck off the nursing register? Who will be barred from running a company? Who will be sacked as a result of these failures or will in any way be brought to account or otherwise bear any form of personal liability and who of those bearing such responsibility are going to turn up in an NHS trust somewhere near YOU now or at some time in the future?
I won’t hold my breath
Excellent post. Incredible to believe that the kind of medieval mistreatment outlined here even exists to be challenged in the first place.
I have written about similar problems unfolding in Canada. My mother was put on a similar pathway, albeit in a surreptitious manner. She survived and is alive over 4 years later. The struggles I had with doctors at her hospital — to keep her alive — were difficult to believe, let alone manage. I have written several articles about this on my website. Here is a link for one of these articles: http://ireneogrizek.ca/?p=5762