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When regulators fail

Catastrophic events can follow the failure of regulating bodies to respond to complaints

Photo of elderly hands: istock

23 April 2012

Specialist personal injury and human rights lawyers at Leigh Day & Co are sadly familiar with the consequences of failed regulation and are increasingly concerned that a raft of recent senior resignations from various regulatory health bodies leave some of the most vulnerable members of society exposed to poorly-regulated health and social services.

Poor regulation can have devastating consequences as the families of people who died at Stafford Hospital between 2005 and 2008 can demonstrate.  Leigh Day & Co represented over a hundred of these families in successful compensation claims relating to the deaths of their mostly elderly relatives whose deaths were either directly caused by, or were hastened through gross and degrading treatment and “appalling” standards of care . 15 nurses were suspended for failing to improve standards at Stafford Hospital and one manager has been disciplined.  The head of legal services was sacked in June 2010.  Cynthia Bower, the former chief executive of the NHS West Midlands' strategic health authority, which was responsible for Stafford Hospital, moved to become chief executive of the Care Quality Commission, a post from which she resigned in February 2012

The CQC’s job is to regulate and investigate reports of poor standards of care in the country’s NHS hospitals and care homes.  Bower faced increasing criticism that the CQC was not fit for purpose and questions still  remain about whether too little was done to investigate the complaints of relatives’ claims of appalling treatment at Stafford Hospital.  The public inquiry into the Mid Staffordshire hospital scandal heard evidence from two whistle-blowers calling into question the "leadership, capability and culture" of the NHS regulator that oversees hospitals and care homes.

The CQC was investigated by the Department of Health because of serious concerns about its effectiveness in 2011.  This followed the publication of a string of critical inspection reports relating to the care that the elderly receive in hospitals and care homes.  The most shocking failure uncovered in 2011 was that of an abuse scandal at Winterbourne View hospital which continued despite complaints about the hospital being made to the CQC. In September 2011 the Select Committee on Health published a highly critical report about the CQC which accused the body on cutting back on the number of inspections it carried out and instead focused on the registration of care providers in the country.  In March 2012 the cross-party Commons Public Accounts Committee said it still had concerns about the performance of the CQC and concluded that the CQC had failed its vital role of protecting people from poor quality and unsafe care.

Further criticism of the CQC will be aired tonight in Panorama’s programme, Undercover: elderly care which reveals more disturbing footage of an elderly woman with dementia being slapped by a care worker at Ash Court in London which is run by Forest Healthcare. Jane Worroll secretly filmed her mother's room and recorded care worker Jonathan Aquino slapping her mother six times. It has been reported that Aquino was later convicted of assault and was sentenced to 18 months in prison in April 2012. Before the assault, the CQC had rated the home as "excellent". The CQC said the home still "ensures people who use the service are protected from abuse or the risk of abuse".

The Nursing and Midwifery Council is also experiencing problems at the moment with the recent resignation of the chair of the council, and the publication of an interim report into its failure to successfully undertake its statutory duties.  The Council for Healthcare Regulatory Excellence found that the regulating charity is "confused over its regulatory purpose and lacks clear, consistent strategic direction".  The NMC regulates some 670,000 nurses and midwives and employs over 400 staff, and is currently functioning with an interim chief executive and chairman.  The report found fundamental flaws in the leadership, financial control, transparency, business systems and in relationships within the organisation.

The failure to properly regulate the actions of poor-performing nurses and midwives can have far-reaching and devastating consequences.  Our clinical negligence lawyer deal with many extremely high-value claims on behalf of babies who are catastrophically brain-injured during their births who then need expensive and full-time lifelong support and care.  An effective regulatory organisation is essential if the mistakes that nurses and midwives make during their work are not to be perpetuated.  An effective regulator can help to tackle the problem of a lack of transparency and openness when mistakes are made through regular and efficient inspections.

A key to successful regulation is an understanding of the human rights of resident, patients and other vulnerable people in the care of hospitals, care homes, the justice system and social services.  A recent report by the Equality and Human Rights Commission reviewed how well public authorities deliver human rights protection and promotion in England and Wales.  Whilst the report was able to identify many areas of good practice the EHRC noted 10 areas where improvements could be made, amongst them the statement that: ‘Health and social care commissioners and service providers do not always understand their human rights obligations and the regulator’s approach is not always effective in identifying and preventing human rights abuses’ and that ‘The legislative and regulatory framework does not offer sufficient protection of the right to a private life and for balancing the right to a private life with other rights being of particular relevance to our regulating bodies.’

Leigh Day & Co remains concerned that the pursuit of ‘light touch’ regulation will continue under the present coalition Government leading to further episodes of abuse, neglect and poor treatment.  We call on the Government to ensure that our regulating bodies are staffed by the most able and talented administrators available, and to guarantee that funds to run these bodies are maintained at a level that ensures their safe operation.

To speak to one of our specialist abuse claims solicitors please contact Emma Jones or Alison Millar on 020 7650 1200

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