Francis's legal rigour is exactly what's needed

That low rumbling you’ve been hearing since the publication of the Francis report is the sound of wagons being whipped into a protective circle on the high plains of the NHS to fend off an attack from an outsider.

Never mind that the outsider in question was invited in precisely because he is independent of the troubled health establishment on which he has reported. Or that he’s a leading authority on the subject at hand.

‘The report is variously condemned as too long, too detailed, too complex and not “blamey” enough’

No. According to much of the commentariat, the second Francis report on Mid Staffordshire Foundation Trust has but one merit; it echoes the easy and aspirational line du jour: that the NHS needs a “culture change” − one that stretches from top to bottom.

Beyond that no one is best pleased. The report, at 1,919 pages, is variously condemned as too long, too detailed, too complex and not “blamey” enough. Most of all, however, it is far too legalistic.

“We asked the wrong person,” proclaims one of my favourite and normally firmly saddled commentators. “He is a lawyer so we have a lawyer’s response; more law, more regulation, more oversight.”

Legal remedies

But, from a patient’s perspective, isn’t a bit of legal rigour exactly what is required?

Hundreds of people died of neglect at Mid Staffordshire in plain sight of the managers, doctors, nurses and healthcare assistants charged with their care. That the report into the causes of this catastrophe should recommend a legal underpinning to the hotchpotch of professional and systems regulation we have today was surely always a given.

As any journalist or lawyer who has dealt with the human fallout of these types of cases will tell you, there is only one thing worse than suffering an avoidable tragedy at the hands of an individual or institution you trusted. That is to be denied access to justice.

So what legal remedy does Robert Francis recommend? There are three key changes; none of them, I believe, could in any sense be described as disproportionate.

An exact promise

First, he wants to see the NHS constitution redrafted to include a few specifics. Out would go the woolly “working together for patients” and in would come the much more exact promise to put “the patient first in all we do”.

This would be achieved through a new set of crunchier, traction-giving pledges. Among other things the constitution (and accompanying employment contracts) would require NHS staff to:

• put patients before themselves;
• do everything in their power to protect patients from avoidable harm;
• be honest and open with patients regardless of the consequences for themselves.

His second proposal for legal change is made in the context of his call for a carefully defined and limited set of minimum quality standards for the NHS.

Chapter 21 of his report politely but forensically demonstrates that too many of the sector’s august councils, colleges, boards and grandees are more talk than trousers.

‘The call for the NHS to aspire to “world class” standards in High Quality Care for All is described as “laudable”’

The General Medical Council, for instance, has reams of rules and guidance making clear that a clinician’s first duty is to the patient but it has yet to act against any doctor who worked at Mid Staffordhsire.

“The aspiration for excellence is healthily embedded in the healthcare system,” notes Mr Francis, before describing how the Department of Health has gone as far as to redefine the word “standards” and now uses it to describe what the rest of the world calls “goals” or “targets”.

Waffle and bluster

In a similar vein, the call for the NHS to aspire to “world class” standards in the 2008 report High Quality Care for All is described in the report as “laudable”. Mr Francis also makes clear it is high-level, imprecise and not aligned with patients’ real-world concerns.

At Mid Staffordshire the effect of all this type of waffle and bluster was to give “false assurance that all was well”. The answer, says Mr Francis, is a tightly defined set of minimum standards, rigorously policed and enforced with “zero tolerance”.

It is to this end that he proposes his second legal change: “A service incapable of meeting fundamental standards should not be permitted to continue. Breach should result in regulatory consequences… where serious harm or death has resulted to a patient as a result of a breach of the fundamental standards, criminal liability should follow.” This would apply to organisations and individuals.

‘Francis provides patients with real levers to pull when things go wrong’

The third legal change Francis calls for is the much more widely debated “duty of candour”; a clear statutory obligation on healthcare providers and all frontline healthcare workers to report incidents which they know or suspect caused death or serious injury directly to the patient concerned or their representatives.

A legal duty of candour would directly benefit patients by giving legal meaning to the much trumpeted rhetoric around transparency within the NHS. Importantly, it would also give whistleblowers the protection they have long been seeking to speak out without fear of legal reprisal.

I passionately believe each of these legal changes, together with the many other practical proposals which Mr Francis makes, should be introduced.

His report is indeed long and detailed and it is not possessed of the abstract concepts of which the healthcare establishment is so fond. What it does do is provide patients with real levers to pull when things go wrong. That is what is needed in a system that aspires to put patients first.

Paul Nuki is a journalist. The views expressed are entirely his own