Public Interest Responsibilities of Professionals
13th October 2005
Lecture by The Right Honourable Lady Justice Smith DBE, Chair of the Shipman Inquiry
First may I say what a privilege and honour it is for me to be invited to give this annual lecture for Public Concern at Work. During the Shipman Inquiry, I heard for the first time of the work of PCaW. Guy Dehn came to give evidence and I was greatly impressed by the enthusiasm and determination with which he and the small group with whom he works have pursued their goal of encouraging openness and accountability in our society. Their achievement in only 12 years is remarkable. They have put whistle-blowing on the map in this country and have changed the way in which we think of whistle-blowers. They are doing much to educate and help employers to change the prevailing attitudes towards those who seek to report wrongdoing. They provide a helpline which is available to all. And, they have been highly influential in getting the Public Interest Disclosure Act on to the statute book. I congratulate them and, as I say, I regard it as a privilege that I should be invited to speak to you this evening.Willingness to blow the whistle when wrongdoing or incompetence is suspected is an important public interest responsibility. It is a responsibility that may fall upon any of us, whatever our job or position in society. This evening, I want to talk about the public interest responsibility of professional people, with particular reference to their duty to report any concerns they may have about the practice of other professionals or the working practices at their place of work. It is, in my view, a special responsibility for reasons which I will later explain. But before I do that, I want to say something about how the Shipman Inquiry became interested in the issues of whistle-blowing.
The Shipman Inquiry was set up as a response to Shipman’s conviction for the murder of 15 of his patients. It was realised that the various systems we have for the protection of the public from rogue doctors had not worked. These systems include death and cremation certification, coroners’ investigations and inquests, controlled drugs regulation and the monitoring and supervision of the medical profession. The Inquiry had to examine all of those systems. Apart from seeking to establish the true extent of Shipman’s criminality, a task which we undertook at the outset, the objective of the Inquiry was to discover why the existing systems had not detected Shipman; why no one in the area where he worked had noticed that many of his patients died sudden and unexpected deaths closely associated with his presence or a recent visit to the patient; why none of the relatives had reported any concerns to the coroner or other authority; why no one had noticed that he was hoarding diamorphine and why the authorities responsible for the supervision and regulation of the medical profession and GPs in particular had not noticed what he was doing.
Although the primary focus of the Inquiry was to find out why Shipman had been able to get away with murder for so long and how we might be able to prevent such a dreadful thing from happening again, in practice, the Inquiry took on a much wider remit. This was because, on examining the systems, it became apparent that they were not fit for the ordinary purposes for which they were intended. So, in the event, rather than focussing on how to stop another Shipman, I found myself painting on a much broader canvas and seeking to outline the essentials for new improved systems that would serve the interests of society in the 21 st Century.
One of the questions which people asked when it was realised that Shipman had killed so many patients was, ‘Surely someone must have complained? Surely someone must have known what he was doing or at least had suspicions? Why did they not speak out? So, we investigated whether anyone had complained and whether anyone had had suspicions. And the answer was that nobody had complained or raised concerns abut a single death. In early 1998, by which time he had killed more than 200 patients over a period of over 20 years, two funeral directors became suspicious about the circumstances of some of the deaths. At just about the same time, the doctors at the practice adjacent to Shipman’s became suspicious when they noticed that they were signing an abnormally large number of cremation certificates for him. The funeral directors shared their concerns with the doctors and one of the doctors reported the joint concerns to the coroner. That was as it should have been. Alas, the police, to whom the coroner passed the report made a very superficial job of the investigation and concluded that there was nothing amiss. The detective inspector in charge thought the concerns were unfounded from the start because Shipman was well respected. His mind was not really open to the possibility that what was being suggested might be true.
Prior to 1998, only two people had had any suspicion at all. One of them was the warden of sheltered accommodation where several of Shipman’s patients lived and where, over a period of years, several died at his hand. In about 1995 or 1996, this lady gradually came to realise that there was a connection between Shipman’s visits and the unexpected deaths of residents. She did not know what to do. She mentioned her concerns to a friend who advised her strongly: ‘do nothing; people will say you are mad’. She could not get this problem out of her head and she began to be ill with worry. Eventually, she tried to tell her supervisor. Because she was so worried about saying anything, she spoke in a rather oblique way. She did not say: ‘I think Dr Shipman is killing his patients’. Instead she said that a number had died while he was there or were found dead just after he had left. The supervisor dismissed her concerns as ‘an obsession with death’. The friend had been prescient. Of course, when the truth came out about Shipman, this woman was wracked by guilt and the feeling that she should have done more. Her health has suffered, I think for the long term. In a way she is one of Shipman’s victims.
The other person who suspected Shipman was a taxi driver named John Shaw who had a number of regular elderly customers. He began to notice unexpected deaths, always patients of Shipman. He became worried and, in about 1995, he began to keep a note of the deaths about which he was suspicious. His suspicions grew and he wanted to tell the police about them. He talked to his wife but she was strongly opposed to the idea; she was worried that, if the allegation turned out to be untrue, Shipman would be able to sue them for defamation of character and they might be ruined, even lose their home. Mr Shaw came to share his wife’s anxiety. He knew of no source of advice and so he did nothing - except that he kept adding to his list. When the news emerged that Shipman was under suspicion of murder, Mr Shaw went to the police and showed them his list. It had 21 names on it. Of those, I found that Shipman had killed 19; the other two turned out not to be patients of Shipman at all. Mr Shaw, too, feels wracked by guilt and regret.
Those two stories will not surprise anyone in this audience who is familiar with the problems faced by whistleblowers. The pity is that, at the time Mrs Simpson and Mr Shaw needed advice, Public Concern at Work was a new organisation and very few people, I think, had heard of it. If either of them had known that advice and support was available to them, I am sure they would have availed themselves of it and it is possible that the last few years of Shipman’s murderous career might have been curtailed.
Although Mrs Simpson and Mr Shaw felt a sense of guilt, I did not think that they should be criticised. They were not professional people, although of course, Mrs Simpson did have some responsibility for the welfare of the elderly residents in her care. She had tried to make a report but it had fallen on deaf ears. Mr Shaw had wanted to act, only from a sense of public responsibility.
There was one occasion on which an opportunity to examine Shipman’s conduct was lost through the unwillingness of two professional men, consultants at the local general hospital, to report Shipman for what they knew to be seriously substandard treatment. In February 1994, Mrs Renate Overton, a patient of Shipman’s, was admitted to hospital late one evening in a coma. She was aged 48 and an asthmatic. The history accompanying her, which came partly from her adult daughter, partly from the paramedic ambulance men who brought her in and partly from Shipman himself, was that the patient had called Shipman out in the evening because she was suffering an asthma attack. He used a nebuliser and the attack subsided. At this stage, the daughter, who had been present, left and went up to her own room. A while later Shipman summoned her. She found her mother unconscious on the floor. Shipman instructed her to call an ambulance and then to help with resuscitation. When the paramedics arrived, they found Mrs Overton in respiratory and cardiac arrest. They ventilated her and restarted her heart. While they were on their way to hospital, Shipman telephoned the Accident and Emergency Department and imparted the information that he had given Mrs Overton 10mg of diamorphine (or he might have said 20mg morphine - the hospital notes gave both versions in different places). The notes recorded that the drug had been given ‘stat’, which was understood to mean that he had given it in one go. Alas, Mrs Overton had suffered irreparable brain damage; she never recovered consciousness and died just over a year later.
The two consultants who were jointly in charge of the intensive care unit, one an anaesthetist and one a cardiologist, knew that morphine was contra-indicated for this asthmatic patient and realised that to give so large a dose in one go was highly dangerous. They did not say anything to anyone about their concerns. One of them claimed that he had made a report but I am afraid that it was plain that he had not. The other admitted that he had not done so. He advanced a variety of reasons why; none of them to my mind very convincing. One of his explanations was that he thought Shipman must have made a simple mistake and, he said, we can all make mistakes. But he did not know whether Shipman had made a simple mistake or whether he actually thought it was acceptable to give 20mg morphine to an asthmatic patient. Of course I accept that he could not be expected to suspect that Shipman had deliberately tried to kill his patient. But, the danger of this consultant’s attitude was that it assumed the explanation most favourable to Shipman. Another explanation advanced was that the culture of the profession was against reporting a colleague. I think that culture was still prevalent in 1994, even though the GMC had made it plain (not that it should ever have been in doubt) that it was a doctor’s duty to report a colleague, where the concern was something that might affect the welfare or safety of a patient. I concluded that both these consultants ought to have reported their concerns about Shipman’s treatment. Had they done so, it is possible, although by no means certain, that Shipman’s misuse of diamorphine might have been discovered. At the very least, he would have been given a real shock and might have curtailed his activities.
It may seem surprising that so few people noticed anything unusual at all about Shipman’s practice. The explanation was that he worked in unusually isolated circumstances; the only other professional person who worked closely with him was his practice nurse. Although she was highly qualified, she was kept in a very subservient position, was conditioned to hold Shipman in deep respect and would never have thought that anything he did was less than perfect.
Shipman’s practice was unusual in that most professional people work in closer association with colleagues than he did. In all the other medical scandals about which I read, colleagues had been aware of the existence of a problem for some time, sometimes several years, before the truth eventually emerged. But those colleagues had been reluctant to make any report about the situation. As I have said, it was not done. Those who tried to raise a concern were sometimes treated very badly. In the Bristol Royal Infirmary case, Dr Steve Bolsin had tried to draw attention to the problem in the paediatric cardiac surgery department but no one listened for a long time and he was treated as an outcast by colleagues. I think that his treatment was not untypical of the prevailing culture of the time.
This attitude towards whistle-blowing was symptomatic of the general culture of the profession. In his book, The Doctor’s Tale, Sir Donald Irvine , former President of the General Medical Council described the culture within the profession over the span of his long career. His shorthand for it was to describe the profession as the ‘medical tribe’. There were some good aspects to that culture. High standards were required for admission to the profession. Once inside, a doctor was within a society of like-minded people who understood each other and shared common interests. A doctor would be trusted by his fellow professionals and doctors would give each other mutual support. I recognise what he was describing from my own experience of life at the Bar. From the outside, my profession, no doubt, looked remote and elitist. From the inside, it was friendly and supportive. In both the medical and legal professions, and no doubt in others, this support would be available to help in the development of skills and attitudes for the good of the individual professional, the profession as a whole and, of course, for the benefit of clients or patients. But, in both professions, I think, there were serious disadvantages inherent in the culture. First there was a reluctance to report or take any action on wrongdoing or incompetence. It was not done to criticise a fellow professional unless they had done something completely beyond the pale. Then the tribe would turn against the offender and hound him out.
It was a disadvantage inherent in the process of self-regulation that all the rules and arrangements were made internally by the professionals themselves. Human nature being what it is, it is not surprising the arrangements were protective of the profession. Only in recent years has pressure come from outside to ensure that the arrangements made are in the public interest. And there is still some way to go. In the Fifth Shipman Report, I spoke about the problem of having a majority of elected members on a regulatory body. I know that many regulatory bodies are, in effect controlled by elected members, although I think all now have a strong lay element, appointed against public interest criteria by a body such as the Public Appointments Commission. I found that decision-making in the GMC, which has an elected majority, still favours the internal interests of the profession. I pointed to two important matters, revalidation and the reform of fitness to practise procedures, in which the initial proposals, which were very satisfactory from the public interest viewpoint, were ‘dumbed down’. The changes all favoured the protection of the profession rather than patients and the public. In short, there were times when the rank and file was acting more like a trade union than a regulator. In my view, regulatory bodies should be dominated by people appointed against public interest criteria. That is not to say that the majority should not be members of the profession. I think they should be, although there should be a significant lay element. Nor do I suggest that there should be no elected members. That might be a step too far. But there should be a voting majority of members (lay and professional) who are appointed against public interest criteria.
Let me turn to something else. In the Fifth Shipman Report I described how the systems of complaints handling both locally and at the GMC had been biased in favour of the doctor. Even in the field of clinical negligence claims, the odds were stacked against the patient claimant. Doctors were reluctant to criticise a fellow professional. I know this from my own experience. For example, when I was in practice at the Bar in the 1970s and 1980s, it was often very difficult to find a doctor who would even examine the papers to give an opinion in a case alleging clinical negligence, let alone give an opinion critical of a colleague. Certainly one had to go the other end of the country to find one. Practising in Manchester , I would have to advise solicitors to seek an opinion from a doctor in London , Birmingham or Newcastle on Tyne . I used to keep a book of names of doctors who were prepared to accept the work and there were not many of them. Then there were difficulties in getting hold of the medical records. Usually you had to make an application to the Court to look at your own client’s records! The doctors’ stance was that only another doctor should be allowed to see them. All that has gradually changed. Doctors are now much more willing to do clinical negligence work. And patients are now entitled to see their own records.
However, in both the handling of complaints and in the field of whistle-blowing, the pace of change has been discouraging. Research into complaints handling shows that many general practitioners are unwilling or incapable of conducting a fair and unbiased investigation into a complaint against a member of the practice or a members of its staff. I know from personal experience that it is very unpleasant to have a complaint made against you and extremely difficult to be objective about it. The same goes for complaints made against close colleagues and friends. The evidence I heard at the Inquiry suggests that some practices are making real efforts to improve their complaints handling but I fear that, human nature being what it is, progress is likely to be poor. That is why I have recommended that complaints against GPs should be investigated by the primary care organisation, at least if the complaint involves any possible criticism of the conduct or performance of a doctor or other member of the clinical team.
Turning back to the problems of whistle-blowing, the evidence I heard both at the Inquiry and in numerous personal communications since the Inquiry finished, suggests that in the health care professions, reporting concerns about bad behaviour, incompetence or poor performance is still not widely done. The evidence is that hospitals are still hierarchical and junior doctors and nursing staff find it impossible to report. They fear for their professional careers. They also still fear reprisals and detriments of various kinds.
This is disappointing because it is particularly important that professional people should be willing to blow the whistle themselves and scrupulous in their treatment of those who make reports to them. One reason why I think it is important is that the open reporting and good investigation of reported concerns would make a major contribution to patient safety. But another reason why it is particularly important is that openness in this way would do a great deal to uphold and, where necessary, restore the trust and confidence that the public has in professional people. Professionalism may be described as that basket of qualities which enables a member of the public to place an unreserved trust in his professional adviser. That trust will comprise confidence that the professional is master of the complex body of knowledge that comprises his subject and has the skills necessary for the practical application of that knowledge. It will include trust that his secrets and confidential information will be respected. It will include a belief that the professional will act in the best interests of his patients or clients. And it will also include confidence that the professional person will be of integrity and will put the general good above his own interests. How can a profession expect to command the respect and confidence of the public if its members are not prepared to report wrongdoing and incompetence? It must be highly damaging to the reputation of a professional group for the public to realise that a member of that group has not reported a concern about wrongdoing or has failed to investigate a concern that has been reported to him. Failures in these respects may be understandable but they are professionally unacceptable. Professional people have many advantages. They are highly educated; in general they have secure positions; in general they have status and command respect. I told you about the warden and the taxi driver because I wanted to point up the contrast between their positions and the position of a professional person. I have much sympathy with the warden and the taxi driver and did not criticise them for not making effective reports about Shipman. Their position was very different. Among professionals there should be no excuses.
As I have said, the culture in the professions has changed a great deal in the last few years and I am optimistic that it will change further. How should this be achieved? First, through education. At the GMC Medical Education Conference earlier this year, I spoke about the need to teach students from day one about professional behaviour and their ethical responsibilities. These are not add-on subjects to be fitted into the interstices of the syllabus. They should be at the heart of the teaching of the core subjects. I think they should be tested too.
But, even if young entrants set out with the right principles, they are vulnerable to what one might call old fashioned influences once they arrive in the workplace. There are still far too many Sir Lancelot Pratts out there in the medical profession and his equivalent in other professions. It is very difficult for a young professional person not to absorb the philosophy and attitudes of an admired, possibly charismatic senior. I know this to be the case in medicine, where a consultant will have enormous influence over the house officers in his department. I know how much influence a pupil master can exert over a pupil barrister. So, educating the young is not the whole answer. We must also seek to educate the established professional and to change deep seated attitudes that are based at bottom on self interest. We can change attitudes; we can change the culture. It has happened in respect of many issues in the last 30 years. Take as a small example, the attitudes of society to drinking and driving. When the breathalyser law came in, in the late 1960s, it was regarded as an interference with liberty and people used to boast when they had got away with it. Not any more. Think about the changes in our attitudes towards the old deep seated taboos against divorce, abortion and homosexuality. Take our attitudes towards race and sex discrimination. How things have changed in the last 20 years. They may not have gone far enough but the change has been immense. These changes have come about because people who believed that change was needed kept talking about it and kept the issues in the public eye. That is what I think we must do. Public Concern at Work does a great deal. But it is a small organisation.
In my view, it is up to every professional who feels that a change in the culture of his profession is needed to talk about it, to make his position clear and to take on those who disagree. I do not feel that I have done much tonight because I think I am preaching to the already converted. But, I talk to the unconverted as well and sometimes get a roasting; but I shall continue. I hope that you will do the same.