Cover story
35th anniversary:
a milestone for Action against Medical Accidents (AvMA)
A 35th anniversary is a milestone for married couples. The same is true of other institutions, and AvMA is no exception.
About the author
Lisa O’Dwyer is medico-legal director at AvMA.
In 1980, BBC2 aired ‘Minor complications’, a play by well-known playwright and author Peter Ransley. Based on real-life events about a woman whose NHS hospital treatment went wrong, the story centres around the main character, Kay Gilbert, and her quest to find out the truth of what happened to her. Faced with a medical profession that closed ranks against her, she then had to face being let down by another profession: the lawyers who she had expected to help her access the justice she so badly needed. The play resonated with the public; the demand for information was such that, out of necessity, Peter founded AvMA in 1982.
Initially called Action for the Victims of Medical Accidents (AVMA), in the early years it was shaped by the inspired leadership, determination and vision of Arnold Simanowitz OBE. Arnold, a South African lawyer by background, was quite simply offended by injustice. Many of the core services that AvMA offers now were born in those early days, although they have evolved to meet changing markets and different public needs.
The baton of leadership was passed to our current chief executive, Peter Walsh, in 2003. Shortly after, at the suggestion of AvMA’s then legal director, the late and much-missed Fiona Freedland, the name was changed to Action against Medical Accidents (AvMA). A subtle but significant change that better reflects our focus on enabling the public to access and achieve redress where appropriate; the lowercase ‘v’ is used in law to denote an action against one party by another. Peter’s focus for AvMA has been - and continues to be - patient safety and access to justice.
In many ways, the issues that gave rise to the need for AvMA in 1982, remain unchanged: all too often, patients still struggle to find out the truth about what went wrong with their treatment. Many feel a need to ensure that changes are made so that no one else has to suffer the same outcomes. There is still a need for the public’s voice to be heard, and for those providing medical treatment to be accountable. However, there have been many improvements along the way. The right to pre-action disclosure is a key one, although in practice there are still many delays in providing all the relevant papers. It is uncanny how often medical notes go missing and cannot be found!
There have been major developments in this area of law since the 1980s. There are now more medics who are prepared to stand up against their colleagues and criticise the standard of care provided. Most of today’s medico-legal experts remain in practice, and combine report writing and court appearances with their day job. If they go to trial, they are subject to rigorous cross-examination and often face colleagues who they know by reputation.
Being a medico-legal expert today is no easy task: they need to be on top of their game, on top of the patient’s papers, and they need to be part of a team that brings the case before the courts. AvMA has over 800 medico-legal experts on its database, covering a wide range of medical specialties and quantum. All of our experts are assessed by our specialist medico-legal team, which is comprised of qualified lawyers and doctors. The team endeavours to ensure that the experts are able to achieve an acceptable standard of report writing. Uniquely, AvMA experts cannot pay to be on our database, they are appointed to it.
Another big change is accreditation. AvMA set up the first accreditation scheme for lawyers, the AvMA Panel, which has been running for almost as long as AvMA itself; it is widely seen as the premier mark of excellence in the field. For lawyers to be admitted to our panel, they not only have to demonstrate experience and expertise in clinical negligence law, they also need to demonstrate client care. Hopefully, anyone using an AvMA-accredited panel member will be represented by a lawyer who knows what they are doing and will not face the ignominy of being let down by two professions, unlike Peter Ransley’s ‘Kay Gilbert’.
AvMA has been involved in many high-pro file campaigns over the years - from the Gosport inquests to the Mid Staffs inquiry. At Gosport, the coroner was asked to consider whether the deaths of several elderly patients at Gosport War Memorial Hospital, in the late 1990s, were contributed to by overprescribing sedative drugs such as diamorphine. AvMA provided the families with much-needed support, and called for a public inquiry into the deaths.
AvMA also supported many of the families affected by the scandal at Stafford Hospital. We not only provided advice and advocacy at the independent review of medical records and representation at the inquests, but again called for an inquiry into the care provided by the trust. When the public inquiry was set up, AvMA held core participant status and gave evidence to the chairman Sir Robert Frances QC.
AvMA’s work and support for the public has achieved much media attention over the years. We work with key stakeholders, such as NHS Resolution (formerly known as the NHS Litigation Authority), the Department of Health (DoH), the Legal Aid Agency, the Care Quality Commission and the Ministry of Justice, as well as with clinical negligence specialist lawyers and other charities to elicit change.
The nature of our work is such that where we cannot secure access to justice by agreement we will, where necessary, bring judicial review proceedings. In 2012, our judicial review of the government’s decision to remove legal aid for clinical negligence met with some success when we were able to retain legal aid for babies who sustained serious birth injuries.
Our involvement in the Mid Staffs Inquiry enabled us to highlight the need for a statutory duty of candour to be introduced, something that Sir Robert’s report recommended. AvMA had been calling for a statutory duty for many years, and we were delighted when it was included in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 SI No 2936.
More recently, we have been working hard to ensure that the DoH’s proposals to introduce fixed recoverable costs for so-called low-value claims, that is claims under £25,000, are not made so uneconomic that, in fact, they become commercially unviable. We need and want experienced lawyers to take these cases so that the public continues to have real access to redress: for access to justice to happen, it needs to be more than an expression, it needs to be something real and something that the ordinary person in the street can call upon when it is needed. Clinical negligence work is unique for many reasons, not least because the value of a claim is not always synonymous with complexity.
AvMA never loses sight of how fortunate we are in the UK to have access to the National Health Service. In many ways, it has become a symbol of the best of who we are and what we strive to be as a nation: that all people have the right to be treated with dignity and respect and to receive the best healthcare possible, regardless of gender, creed or nationality, is something that we are all rightly proud of. The highly professional men and women who work tirelessly for those who are sick and ailing - and all of this free of charge - are the true heroes and heroines of our society.
But, like any other job, things can and do go wrong, and when this happens there is the expectation that this will be discussed openly and honestly, and resolved as swiftly as possible. This, after all, is in the best interests of both the patient and the staff involved. Sadly, in practice, it does not always happen like this.
There are many reasons why legal actions do not settle early on. Sometimes it is due to missed opportunities; for example, failings in the complaints process; sometimes it is due to a human and understandable fear in coming forward and admitting that mistakes have been made. Why does the fear of coming forward exist? It is an easy question, but the reasons are complex. Certainly, fear of litigation may play a part, but equally staff may also feel unsupported or they may be concerned about professional reprisals as well as personal and professional embarrassment.
AvMA has been involved in looking at ways in which the fear in coming forward might be addressed, and the concept of a ‘safe space’ has some support. However, safe space does not and cannot trump a patient’s right to know what went wrong with their treatment, and this means ensuring that they have access to all relevant documents generated as part of the investigation. This is the spirit of the duty of candour, and there can be no compromise.
This is a thin and difficult line to tread but, nonetheless, we continue to walk it, and with others look at ways in which patients' rights and support for treating clinicians and medics can be balanced. The answer will not happen overnight, but with good will, determination, commitment and hard work, it is hoped that a way forward will evolve.
Despite the fact that clinical negligence work continues to face many changes and challenges, we have still maintained our independence. AvMA benefits from its in-house conference team’s specialist skills; we are very proud of our cutting-edge conferences, with speakers who are from the medical profession and leading lawyers, and I have no hesitation in saying that the excellent reputation of our conferences is well deserved.
Another of our key strengths is our staff, many of whom have given long-standing service. Among our many outstanding team members are the following:
Tracy Minns, who was, in effect, one of AvMA’s first legal directors, a professional to whom we owe considerable thanks for her legal insight as well as the excellent advice and service she gives members of the public.
Gillian Savage, our helpline development officer, who joined us aged just 18 and whose empathy and ability to communicate with our host of volunteers and understand the public is a hallmark of this service.
Liz Thomas, our policy manager, whose commitment to what is in the patient’s best interests is as strong and resolute today as it was in 1989, when she first joined.
It is the long-standing dedication from staff such as these that makes AvMA unique; it also says more about the organisation than I can put in words.
Despite the excellence of our Lawyers’ Service and the fabulous team that provide advice and assistance to our members, our conference department and our committed staff, being an independent charity means that our future is unpredictable. While we raise some of our own funds from our conferences and our Lawyers' Service, we also rely on donations and support from the public to enable us to continue to provide our services free of charge and impartially to those who need us. It is a demanding task: our helpline alone receives 1,500 calls annually and our pro bono inquest service provides advice, assistance and representation to over 100 families a year.
This year, to really celebrate our continued successes and to prepare ourselves for the needs of the public for the next 35 years, we are celebrating! An array of exciting and fun events has been put together:*
AvMA is hosting a ball, in London, on 1 December, but to make sure we are all ready for the event, the partying has begun. In addition, many of our loyal supporters have stepped up and are putting on events of their own:
- The South West Dinner will be hosted by St John’s Chambers on 21 September;
- Cloisters Chambers are preparing an anniversary garden party at Middle Temple on 11 July;
- For the more adventurous, there is a parachute jump and the North West Dinner in November; and
- Newcastle is warming up for a Curry Night.
AvMA continues to go from strength to strength, taking on all manner of fights to improve patient safety and access to justice. Sticking with the metaphor, we have been successful in many battles, but the war is not yet won! There is still plenty of work to do to secure better and safer care for the public. There is a desperate need for the NHS, and other healthcare providers, to create better, more open and honest communication with those who have been injured, and to ensure that the factors which cause adverse outcomes are fully identified and addressed. Here’s to the next 35 years!