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This Electronic Thesis Or Dissertation Has Been Downloaded from the King's Research Portal At This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ Iatrogenic Harm Redress and the NHS Goldberg, Rhoda Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Oct. 2021 This electronic theses or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ Iatrogenic Harm – Redress and the NHS Title: Author: Rhoda Goldberg The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENSE AGREEMENT This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License. http://creativecommons.org/licenses/by-nc-nd/3.0/ You are free to: Share: to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. THE DAY AFTER IATROGENIC HARM – REDRESS AND THE NHS Rhoda Goldberg Centre of Medical Law and Ethics School of Law, King’s College London A thesis submitted in partial fulfilment of the requirements For the degree of Doctor of Philosophy of the University of London October 2012 1 IATROGENIC HARM: REDRESS AND THE NHS ABSTRACT The thesis addresses how effectively or otherwise litigation and NHS complaints procedures redress ‘harm’ suffered by patients through treatment under the NHS. I argue that patients’ entitlement to redress within the NHS is founded on corrective justice principles, requiring one who harms another without justification to indemnify the individual harmed. Entitlement is finite because the NHS is a communal enterprise with limited resources explicitly expected to be shared throughout the population. Accordingly, distributive justice must apply to monetary compensation. For my purposes, harm includes significant adverse events, even where the requirements for actionable negligence necessary to mount successful legal action are not met. The emphasis is on patients’ access to justice, with account also taken of the toll on doctors under the present system. I explore what patients seek from redress and the possible forms compensation may take. Litigation, curtailed by withdrawal of public funding, can only offer damages for loss. Complaints procedures theoretically offer, inter alia, explanations, apologies and undertakings to repair. Careful consideration of both systems reveals that in their present unconnected form, insufficient congruence obtains between what aggrieved patients with complex needs require and what they receive. Lack of open disclosure of adverse events perpetuates power differentials between parties and adversely affects patients’ abilities to seek appropriate redress. Analysis of constraints on disclosure highlights the nuanced communication that is necessary and the fears of legal ramifications which apologies engender. After discussing apology- protection legislation in other common law countries, I argue for the role that full apologies can play in explanation, communication and undertakings to repair, particularly in addressing intangible loss. I also argue that in a universal health service, non-pecuniary losses should not be monetarily compensated because they are uncommodifiable and because of distributive justice demands. The thesis concludes with reflection on the prerequisites for a just and effective redress system. 2 ACKNOWLEDGEMENTS If no man is an island, then no doctoral candidate can reach this point in their studies without the help of an unseen army of supporters. Dedications and acknowledgements have been referred to as ‘making the private public’ and everyone mentioned below has assisted me in ways that words alone cannot convey. My philosophical, legal and ethical viewpoint comes shaped by inspirational Professor, Jonathan Glover, and the Centre of Medical Law and Ethics at King’s College, London. Professor Ben Bowling’s Research Seminars were an excellent introduction to the discipline of studying for a doctorate. I am particularly obliged to Professor Prue Vines, University of New South Wales Law School, for generously making available to me her creative and humane writings regarding apologies in the context of clinical negligence. My first supervisor, Associate Professor Mr Mark Lunney, introduced me to the doctoral process, while my second supervisor, Professor Maria Lee, saw me through the transition from MPhil to PhD. Professor Rosamund Scott, my final supervisor, manages to combine immense scholarship with grace and unflagging support and humour. I am grateful to Ms Annette Lee, learning and teaching officer, for her guidance and common sense, and to Brigitte Shade and Madeline Cohen who always managed to make best copy from my jottings. Although the subject matter of the thesis is about when medical matters go awry, this is not a reflection of my experience. It has been my good fortune to have learned from exemplary doctors. For many years I worked with Dr Dora Black, Consultant Psychiatrist (Child and Adolescent), who set the standard for excellent practice. Professors John Studd and Margaret Johnson, Dr Clive Malcolm Tonks, Dr Kevin Zilkha and the late Dr Isaac Kashi all combine compassion, humour and understanding with the highest professional standards. In this they represent the highest traditions of the original NHS. If the adage “by his friends shall ye know him” holds true, I would be proud to be counted as one of the Tuesday Stitching Group. The indomitable four ladies buoyed me up when I was flagging and offered education, information, practical help and pleasant distraction as necessary. My dear friend, the late Dr George Renton, explained the 3 mysteries of Intellectual Property law with clarity and humour and Sandra, his very special wife, took up where George left off to see me through to the final thesis. This thesis is dedicated to my husband, Berny, for his enormous generosity of spirit, love, and his practical skills with computers and language, translating Americanisms into English. My dear cheerleading children, sons-in-law and grandchildren provided the encouragement, laughter and fun throughout the whole project. Finally, I wish to honour the memory of my parents and my wonderful cousin Regina who would be proud that this endeavour has come to fruition. 4 TABLE OF CONTENTS ABSTRACT...................................................................................................................2 ACKNOWLEDGEMENTS...........................................................................................3 TABLE OF CONTENTS...............................................................................................5 CASES .........................................................................................................................11 STATUTES..................................................................................................................16 TABLE OF ABBREVIATIONS .................................................................................16 INTRODUCTION .......................................................................................................21 PURPOSE AND PLAN OF THE THESIS..................................................................21 I. INTRODUCTION ............................................................................................21 II. ARGUMENTS AND THEMES .....................................................................22 A. The Problem ................................................................................................22 B. Claimants and Complainants: Both Short-changed?...................................23 C. Implicit Assumptions ..................................................................................24
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