Hard cases make bad law

Why the terrible case of a murdering nurse might not be the best template for addressing patient safety.

A nurse sees you, even touches you, when you are unable to look after yourself. Nurses’ work focuses on people at their most vulnerable and helpless. It is therefore not surprising that a nurse with murderous contempt stirs our deepest fears. Particularly when she looks after tiny, seriously sick newborns. It truly is the stuff of horror films.

Predictably, her case has triggered a wide ranging debate about patient safety. Normally confined to earnest conference presentations and occasional discussions in specialist media outlets, patient safety has broken through into mainstream debate, covered by the broad sheets and the BBC. Equally predictably, some voices call for changes in laws and regulation: Defendants should be made to appear in court for sentencing, hospital managers should be registered with a professional regulator, Boards need to be held more accountable.

Focusing on Systemic Patterns

Important as it is to reflect on the specific circumstances of this horrific case, it is likely to be more fruitful in terms of policy response to focus on patterns that are not in fact that unusual. To learn from and respond to what has shown to be the case in so many patient safety failures, including this one.

First up, far too many babies and women are harmed in maternity and neonatal care in England. The vast majority of them don’t fall victim to professionals acting with malicious intent, but to under resourced, badly managed services, often riven with professional conflict, unable to consistently and comprehensively prioritise the safety of patients. Adding insult to injury, data shows that minoritized and particularly Black women and babies fare much more badly in these toxic, unsafe environments. The relative position of England in neonatal death league tables, and the disproportionate burden of poor outcomes experienced by Black women are a scandal we should talk about every week.

Instead, we seem to go round a constant exchange of stale positions about whether the discrepancies can be solely explained by pre-existing health inequalities, or are due to discrimination, and whether continuity of midwife care is or isn’t achievable within given resource envelopes.

Much has been made of the fact that doctors in this case tried to alert hospital leaders to their inkling that something was wrong, and were dismissed. This is clearly an aspect of the whole terrible story that needs to be further investigated. But we shouldn’t forget that mothers, parents and families of women and babies who have come to harm, again and again, have been dismissed as unreliable, hysterical even, with often decades of neglectful practice being covered up by defensive and inhumane governance responses.

The Crucial Lesson from Past Failures

The inability of the NHS to hear what people are saying when they are describing harm, was the major learning point Baroness Cumberledge chose to emphasise in her review of harm caused by medical devices, namely vaginal mesh (or shall we say caused by indifference and the dismissal of women’s testimonies?): ‘Patient experience must no longer be considered anecdotal and weighted least in the hierarchy of evidence-based medicine’.

What else isn’t new about the Lucy Letby case? Another thing that looks distinctly familiar is the open rift between clinicians and healthcare managers, with clinicians resentful that they are subject to professional regulation, and therefore very personally liable when things go wrong, and what they perceive to be the lack of accountability of managers. But we have also seen this rift described from the opposite perspective before, with NHS managers describing their perceived powerlessness when confronting ‘medical hierarchies’ and their perceived unwillingness to collaborate with management.

Finally, as some commentators have asked, might some of the reluctance of managers to confront the reality of this nurse’s behaviour be explained by her being a nice white middle class woman, ‘someone like them’? It does indeed seem entirely possible that a nurse from a minoritized background, or who had qualified abroad, might have been treated with more suspicion.

So where do these patterns, these observable shared traits of patient safety failures lead us in terms of thinking through a response to this terrible story? I believe that ‘character’, which clearly here played a major role, might not be the most promising focus for anyone with responsibility for patient care.

Addressing Harm at its Roots

As has been demonstrated consistently before, patients come to harm where systems and processes fail, often processes layered on top of each other to stop harm from materialising. These processes are as such not designed to address people acting with criminal intent. But where clinical and managerial teams work in trusting collaboration to better understand and address uncomfortable or unclear signals in the data, where staff are encouraged and supported to express concerns and doubts, even if they haven’t got proof, where managers feel they can take concerns to their Boards, and Boards are curious and pragmatic in asking questions about their organisations, harm is much less likely to continue for extended periods of time – in plain sight.

Today and every day, thousands of people using the NHS will come to harm, some of those cases will be life changing. Often this is sadly unavoidable, a necessary consequence of clinical risk. A tiny proportion of this harm will have been intentionally inflicted by professionals (although it does seem that this is far more common in mental health and particularly learning disability services). A much larger proportion will be the consequence of over stretched, badly managed, inconsiderate care that lacks attention, compassion or a commitment to constant learning from patient and user feedback.

We might never be able to fully understand why a young nurse chooses to harm her vulnerable patients. But we all had far too many opportunities to understand that NHS service leaders far too often shrug their shoulders when confronted with the trauma and pain of avoidable harm.

In trying to respond appropriately to the malice we feel we are confronting in this case, we must not forget that it is mostly nestled in a far more banal form of evil – management failure, professional turf wars, indifference, bias. It is the normalised behaviour of ‘normal’ people in ‘normal’ services we need to pay far more attention to, for the sake of babies, their families, and all of us.

Written by Dr Charlotte Augst, PPL Senior Advisor