Healthcare Law and Ethics

R (Howard) v Secretary of State for Health [2002] EWHC 396 (Admin): a missed opportunity to unravel the rotting carcass of covert Medical Misconduct Introduction
Until recently, medicine was able to rest on its historical laurels1, and need not provide justification for its professional privileges. Its bureaucratic and patriarchal system operated in such a way that the standard of conduct displayed by its members, remained covert. However, in the 20th-21st century, discoveries of serious misconduct of many clinicians, erected, likened to the sort detected of both a Dr. Clifford Ayling and Consultant Richard Neale. Resulting in a realisation emerging, that demanded public scrutiny of the medical system, in the form of Inquiries to be held with the purpose of; assessing the appropriateness and effectiveness of the procedures operating in the local health services, enabling health service users to raise issues of legitimate concern, identifying cultural and organisational factors which impeded ideal progress, and making recommendations to ensure that appropriate remedial action was taken. However, in the present case, what was asked of a system already embedded with impenetrability, proved too much; a public inquiry. Furthermore, the understanding of a request for a public inquiry is an ethical question, which in the present case was inadequately dealt with in a rigidly legal form. Serious questions about the procedural failures of the British Healthcare system have much broader implications than just legality and illegality. In addition, the department of health and judiciarys attitude towards complaints that arose evidenced a lack of courtesy2 which reflects poorly on the ethos of the medical and legal system thus far, as victims of serious professional misconduct and betrayal of the Dr-Patient trust; Patricia Howard and Sheila Wright-Hogeland, alongside the general public were owed at least, a prompt and adequate response to the detection of serious ailments. However no significant change occurred in the last century, due to the continued discouragement of the detection of failures, and a frivolous attitude taken towards reinforcement of professional ethic. With the existence of almost identical cases of medical misconduct today, 11 years on, it is plausible to suggest that Howard3 may be damned, a missed opportunity to address the internal failures that cultivated medical misconduct.

The case of Howard: Analysis of the rigid Judgement

The case of Howard concerned the conjoined claims of Patricia Howard and Sheila Wright-Hogeland for judicial review of the decision of the Secretary of State for Health (SOSH), Alan Milburn, to not hold the Independent inquiries into the serious malpractice and criminal conduct of two doctors, in public, hereby prohibiting the press and public to attend formal investigations into the misery caused to a large number of women. The first claim concerned the misconduct of General Practitioner Dr. Clifford Ayling who in 1998 had been found guilty of, and imprisoned for 13 offences of indecent assaults against his patients. The charges related to the inappropriate touching during intimate medical examinations, of a large number of female patients who consulted him with gynaecological problems, resulting in some consequential serious long-term affects on their lives. One of the victims of an unnecessarily sexually motivated examination being, 16 year-old Patricia Howard. Upon which he was sentenced to 4
J. Montgomery, (1998) Professional Regulation: A Gendered Phenomenon, Feminist Perspectives on Healthcare Law, Cavendish Publishing, pg 50 2 R (Howard) v Secretary of State for Health [2002] EWHC 396 (Admin), at 16 3 Ibid.
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years imprisonment and in 2001 was struck off the medical register by the General Medical Council (GMC). The main issue concerning the case of Ayling that lingered was that his conduct took place over a considerable period of time, (1973-1998), however it was not until the mid 1980s that cause for concern of Aylings conduct was finally heard of. The second claim concerned Consultant Richard Neale, who had been struck off for deficiencies in the standard of care he provided. The main issue concerning the case of Neale was that he was previously suspended from practice in Canada but managed upon arrival in the UK in 1986 to continue practice as a Consultant Obstetrician and Gynaecologist at a number of NHS Hospitals in England, resulting in many botched operations on women for over more than a decade. Neale left a trail of damaged women across the country, including Ms. Sheila Wright-Hogeland. His name was finally removed from the medical register after convictions of 34 allegations of misconduct, in July 2000. Despite aims of the two inquiries being to open up the health care system for examination for improvements, the court decided in Howard, that The SOSH had been entitled to refuse public access to the two inquiries, stating the decision for privacy could not be impugned. The undesirability of this decision can be seen in the fact that this case brought about the opportunity to discuss the provocative subject of media coverage of the private world of the medical system, because this case was about more than just the two incidents of Ayling and Neale, but about the overall covert happenings in the medical field and the unfulfilled rights of the general public to know of the inadequacies within their healthcare system, in the wake the Human Rights Act 1998. Although the ethical analysis of this casenote may ask too much of Britain in the early 20th- 21st century, it is conceivable to suggest this was a missed opportunity for any real substantially preventative parliamentary reaction, especially since the conflictions at the heart of this case, later become the central basis for many cases to come. The deciding factors concerning whether the court would impugn the decision of the SOSH, were unfavourable for the claimants since they narrowed down an expansive ethical issue of patient autonomy into two limited questions which proved that the law in this area of medical ethics, as it stands, is often unhelpful for the rights-aware. Winning the present case became dependent upon, firstly, whether the decision of the SOSH were Wednesbury Irrational and Unreasonable. The legal phrase Wednesbury Unreasonable, relates to the standard of unreasonableness a public bodys decision must have in order to render it liable to be quashed on judicial review.4 The Law here was particularly unhelpful, because the grounds of the decision had to be explicitly outrageous in its defiance of logic or accepted moral standards5, and the wrongs that were occurring in the present case were highly covert. If we firstly consider the purpose of the inquiries6 as Scott LJ called on us to do, it remains unclear how far the purposes were appreciated in 2002; how far the judiciary then were prepared to subject health authorities to review. There indeed existed an irrational and unreasonable loss of opportunity to heighten awareness of clinical negligence, and expose the patriarchal old boys culture that was keeping the substandard conduct of medical professionals undercover thus far, at stake. Even if the defendant had been entitled to weigh the issues of the witnesses' expected candour; [and] the speed and cost of the proceedings7, given the current economic climate8. In depth ethical discussion should have led the court to
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 at para. 410, per Lord Diplock 6 Howard, OpCit. 7 Howard, OpCit. 8 P. Turner, (2002) Review of the UK economy in 2002 , Economic Review, Phillip Alan Updates, 20(4)
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understand the dangers of suggesting that speed and public expenditure can be classified as significant enough barriers to hamper ethical appreciation of the importance of public awareness of the criminal inadequacies within healthcare, and sacrifice patient autonomy for, when the funding of means to addressing such issues were raised for the very purpose of maintaining an adequate national heath service. Perhaps the reason the UK has been unable to prevent recurrences of future cases like that of Ayling and Neale lies in the reluctancy to spend, which a glance at the No-Fault system9 utilised in New Zealand, and their statistically low levels of misconduct10 solidifies. Nevertheless, the court here failed to establish independence from stakeholder influence [which perverts] public health goals11, seen in the unprepared attitude towards costs for a public hearing, despite the many preventative benefits to be gained. Although the possibility of the candour of the former patients who would give evidence as witnesses, being affected, remains the most significant argument for the SOSH, the fact that the female victims and their supporters unanimously campaigned for a full public inquiry,12 and that two former patients Patricia Howard and Sheila Wright-Hogeland went so far as to waiver their right to anonymity in order to bring the long term failures to light, emphasises the sacrifices willing to be taken in order to reap the benefits to be gained from publicity of the inquiry. Hence, it is clear the arguments the SOSH put forward were not entirely balanced logically against the former. In respect for patient autonomy, and the right to have accurate notice of the quality of healthcare being provided, the court should have held that any investigation into the failures of the healthcare system should take place in a public forum, however, these endeavours were sacrificed for the convenience of haste, leaving it fair to say the extent to which the SOSH can be said to have discharged his duty13 to secure improvement14 in the health of the people, and facilitate the preventionof illservices15 remains questionable. The second question, by which the claimants chances of winning were determined, was whether the decision of the SOSH infringed the Convention right to freedom of expression. On this occasion the judiciary decided Article 1016 could not be engaged with, deeming the request for a public inquiry, a right of access to information, and that the article did not confer a right on individuals to receive information that others were not willing to impart.17 Firstly, this argument highlights the very wrongs existent in the medical system, that the ability for the public to be informed on the adequacy of healthcare they are subject to is dependent on the willingness of leaders within the department of health. Secondly, although it is argued the SOSHs decision had not interfered with the claimants' ability to impart information by any other means available to them, this is merely judicial fluff18, and reflects the judicial reluctance to heed the serious nature of the review in question. As the law stood there existed within the freedom of expression the right to receive and impart information and ideas without interference by public authority19 which, in this particular instance needed

Injury Prevention, Rehabilitation and Compensation Amendment Act (No.2) 2005 Oliphant, (2007) Beyond Misadventure: Compensation For Medical Injuries in New Zealand , Medical Law Review, 15 (3), pp. 357-391 11L. London et al, (2012) Conflict of interest: A tenacious ethical dilemma in public health policy, not only in clinical practice/research, South African Journal of Bioethics and Law 5(2) 12 Daily Mail. Doctors Victims Launch Bid For Public Inquiry, Available from, http://www.dailymail.co.uk/news/article98634/Doctors-victims-launch-bid-public-inquiry.html [Accessed 9th March 2013] 13 National Health Service Act 1977 (c.49) s.2(a) 14 Ibid. sec.1(1) 15 Ibid. sec.1(b) 16 The Human Rights Act 1998 17 Leander v Sweden (1987) 9 EHRR 433 18 C. Edward Good, (1989) Mightier Than the Sword: Powerful Writing in the Legal Profession , Lel Enterprises Publishers Pg 20 19 The Human Rights Act 1998 Sch. 1 Part I Art.10(1)
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judicial protection from frontiers20 in the form of the SOSHs prohibiting decision, which would inevitably take the form of licensing restrictions on the media that would hamper the exercise of these freedoms21. It was for the judiciary to utilise its power in assistance of those most vulnerable within the legal system, and heed the female victims plea, noting for whom exactly a decision in favour of a private inquiry would be most socially desirable. Moreover the subsequent cajolery that interested parties or their representatives would be allowed to attend all of the inquiry hearings22, was simply not enough since any inquiry which endeavours to discuss errors and improvements to be made on a public service, should ideally operate objectively, and openly, upon a collective notion of societys expectations of preventative conduct23. Thus, any such agreement made without voluntary inclusion of the people, cannot be considered legitimate at all.24 Furthermore, the protection of future patients well-being should have been paramount, with the judiciary deciding within its power to what extent the decision to keep the public ignorant of the criminal happenings within their healthcare system is one necessary in a democratic society25, and one which is in the interests ofpublic safety, for the prevention ofcrime, for the protection of health or morals,26 or whether the protection of the reputation of both the already affirmed inadequate medical professionals, and the security of the SOSHs reputability, has been regarded as above the latter. The happenings here in Howard, display how the law often operates parasitical[ly] upon the subjugations of classes of27 the under represented who may lack knowledge of the judicial system, and fall disadvantaged as their pleas are diminished.

The impropriety of a Legal Assessment

It is unsurprising that one can lack confidence in there being a sound enough assessment of the conditions to be balanced in a request for a public inquiry, because all that took place here, was a legal assessment. Appropriate analysis of Howard, reveals that the legal process was entirely inappropriate for the issues at hand to be questioned in, highlighting the limits of legal intervention. Asking whether an inquiry should be held in public is a different question, of an ethical nature. The questions of legal unreasonableness and infringement of legislation above, analyse the legality of the SOSHs decision but not the ethical reality of private inquiries and what is best for reforming and inhibiting future cases of inadequacy, which would have been publicising. It was inevitable that the claimants argument would fail because its basis was derived from an impossible notion. Neither claimant nor anyone else (even in Wagstaff28, the sole case in the court concluded that a ministers decision to hold an inquiry in private was unlawful) could establish the pre-requisites necessary for a legitimate expectation that the inquiries be held publicly, without being permitted to wholly evaluate the ethical issues and importance of reformation at stake. Legislation was not constructed in such a way as to offer an appropriate tool for addressing
ibid. ibid. Art.10(2) 22 Howard, OpCit. at 22 23 A. Leavens, A Causation Approach to Criminal Omissions , California Law Review, 76, at 547-575 24 L. Spooner, (1870) No Treason: The Constitution of No Authority, Boston, (6) 25 ibid. 26 ibid. 27 Internet Encyclopaedia of Philosophy, Social Contract Theory, Available from, http://www.iep.utm.edu/soc-cont/ [Accessed 20th November 2012] 28 R. v Secretary of State for Health Ex p. Wagstaff [2001] 1 W.L.R. 292
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[wronged patients] injury29. Only a policy decision could save the claimants argument, which meant this case had to be attacked in a different way to show it was a cornerstone case, as important as, if not more than Wagstaff (Harold Shipman). The main distinction between the two being that the latter involved cases of death, but an approach of only acting radically when the status has reached a position of extreme gravity is undesirable, especially when there are positive known advantages30 from acting in advance, that exist in the form of openness helping to restore the lost confidence society has in the UKs healthcare system. Furthermore, the policy argument of the SOSH that a forward looking inquiry should not take the form of publicity, normally attributed to criminal prosecutions, is simply not enough to disregard the important discussion of errors that occurred in the past. Alongside generously overlooking the fact that Aylings inquiry involved discussing criminal conduct. The argument also portrays the incessantly covert nature in which the legal system dealt with issues of this nature.

Howard into context: The lost address to Ethics

It is important to also address the ethical context behind which a request for a public medical inquiry stands, (which this judicial review failed to discuss,) as this may shed light upon how covertness developed within the UKs healthcare system, and how dear the need for it to be remedied existed. First and foremost as a Public Authority, (SOSH) conducting an inquiry that concerns the adequacy of the public health, and therefore the general public, should ideally take place publicly and not in private, however this principled logic was lost, due to problems within the historically embedded patriarchal system of the medical field, which needed to be addressed. Firstly, the system as it existed was more preoccupied with protecting the autonomy of doctors than alerting society of the covertly developing, incidents in the medical field. One of the ways it achieved this was by protecting the medical relationship from outside challenge31, which can be seen in the treatment of Junior Doctors. Senior doctors for example sought to limit the autonomy of their juniors by subordinating their practice with control, and cornering them into admin, which meant experience and growth were hindered and many ended up lacking in competency. At times no balance was found so that when autonomy was given to junior doctors it was given frivolously in a fashion that encouraged the masculinist hunger for power over their occupation, as Doctors like Mr. Ayling viewed allocating more work to a junior, as a chance to adopt a more relaxed attitude in terms of their workload, regardless of the negligent consequences this entailed. 32 Limiting the strength of voices in opposition with the weapon of clinical camaraderie also strengthened the protection of the autonomy of doctors, with the weight of the opinion of medical professionals in formal procedures diminishing the voice and interests of the patient. For example, in 1987 the indecent assault Mr. Ayling inflicted upon Mrs A during the delivery of her baby led her to consult her solicitors for a negligence claim, but her claim did not proceed because Ayling had worked alongside the disgraced gynaecologist Mr Rodney Ledward, who wrote a report stating that in his view there had been no negligence, which was subsequently upheld. The weapon of camaraderie even transferred onto
S. Sheldon, (1996) 'Subject only to the Attitude of the Surgeon Concerned: The Judicial Protection of Medical Discretion' , Social & Legal Studies, pp. 104 30 Howard, OpCit. at 73 31 S. Sheldon, OpCit. at 104 32 Kent Online. NHS to investigate high death rates at Medway Maritime Hospital Available from, http://www.kentonline.co.uk/medway_messenger/news/2013/february/11/hospital_death_rates.aspx [Accessed 11th February 2013]
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regulatory boards since the GMC had to rely on co-operation from the medical profession since its members were often elected directly from the profession. It is also unsurprising the cases of victims could go further with the undesirable biasness leaking into the tests for misconduct within the judiciary. The Bolam Test as interpreted in the higher courts precluded detailed scrutiny of professional standards.33 Furthermore, other tests left the determination of misconduct to professional brethren34, highlighting the detrimental internal state of both the medical and legal system, permitting the professionals themselves to define what conduct they should do, and how it should be done,35 and with the test already predetermining the opinion of a fellow clinician as of good repute and competency36; even Mr Rodney Ledward could be included in this reputability. The issues of biasness highlights the problems with self regulation, which publicity of the inquiry would have exposed, destroying the pillar of protection which allowed clinicians who were struck off abroad, like Canadian Consultant Richard Neale, to successfully approach a former colleague to contact the GMC in London and be told that problems abroad did not preclude him from practicing again in the United Kingdom.37 Publicity would have opened up the inadequate and ineffective internal systems to scrutiny that would have meant more imminent discussion of an independent system for the monitoring of hospital and medical staff performance. For example, the reform of the Commission for Health Improvement 2000 could have occurred, - an optimistic body that could be likened to the medical fields OFSTED, with aims to check on implementation of guidance, and perhaps the feature of referral of all problems to the GMC could be reformed by the existence of an umbrella organisation with accurate oversight in order to ease tensions between regulatory powers, and ensure adequate co-operation between the two. Secondly, the predominantly patriarchal system at the time of Howard could have learned from the struggle of women in the medical system, trying to achieve medical professional status. This is because as females sought for a similar privilege of status medical male professionals enjoyed, they found themselves having to justify this with logic to the rationale of the status, thus the expertise and high moral character of practitioners had to be demonstrated, not merely asserted.38 Publicity of the inquiries would have made clinical professionals feel the pressures, felt now in 2013, in the wake of the now entirely public misconduct hearings, which placed emphasis on collective responsibility39 to evidence the feminine ethic of caring40, that could be attributed to the work of Nurses, Midwives and Health Visitors in the early 20th century who went beyond merely ensuring that their acts were not detrimental to patients, but to also promote their interests.41 This is important as viewing ethic as a responsibility, rather than a right that can be asserted, meant the duty to fulfil it attacked the moral conscience hereby increasing the likelihood of its fulfilment. In adopting this approach the dominant market-place42, and ill cost-driven thrust of the medical field could have been addressed, substituting monetary goals for the reinforcement of professional ethics.
J. Montgomery, (1989) Medicine, accountability and professionalism, Journal of Law and Society, 16, pp.339 Allinson v General Council for Medical Education and Registration [1894] 1 QB 750 at 761 35 T. Johnson, (1972) Professions and Power, London, Macmillan 36 Ibid. 37 Howard, at. 31 38 J. Montgomery, (1998), OpCit. pg 51 39 J. Montgomery, (1998), OpCit, pg 50 40 C. Gillian, (1982), In a Different Voice, Cambridge, Mass: Harvard University Press 41 United Kingdom Central Council for Nursing, Midwifery and Health Visiting, (1992) Code of Professional Conduct for Nurse, Midwife and Health Visitor, 3rd ed. London: UKCC, Clause 2 42 M. Stacey, (1988) The Sociology of Health and Healing, London, Unwin Hyman
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The GMC could also have learned from the struggle of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC), in terms of the reinforcement of whistleblowing that needed to be encouraged. The UKCC had since been holding its practitioners responsible for reporting situations where standards of care were compromised.43 Whereas the collegiality44 amongst doctors in hospitals, which excluded Nurses, contributed to the reduced likelihood for other doctors to speak up about inadequacies within the system. The boundaries in the bureaucratic system needed to be exposed and broken, because effective communication, from the top leadership down and from the frontline staff up45, is the only way issues can be identified. The breaking of the boundaries between patient and doctor must also not be neglected, as this area is now even more dear to defend since a well drafted libel claim could now have the effect of silencing someone who has foreseen inadequacy within the medical products and procedures we all rely on and are subject to. A preventative approach was something the GMC unquestionably lacked, with its reluctancy to provide ethical advice of what constituted good practice, which it left to non-statutory bodies such as the British Medical Association46. Unlike the UKCC, which was ready to invoke disciplinary sanctions when a practitioner engaged in professional misconduct, the GMC merely focused on serious professional misconduct.47 In July 2001 when Ayling was struck off the medical register, the professional conduct committee stipulated his actions constituted "criminal indecency of a particularly wicked kind". This revealed the GMCs retrospective approach and that the board acted undesirably, only when the situation has reached the point of becoming criminally culpable; one of the great failings within the regulatory system. The decision to continue covertly with the inquiries in question in Howard, meant questions of how complaints could have gone unaccounted for, how a doctor could neglect his vow of professional conduct, and how the predominantly male system of clinicians operated undesirably unlike its counterpart, went unaddressed. Interestingly, medics could also learn from the professional training of lawyers, for whom, adequate professional conduct is even graver, as lawyers receive work by reputation, and therefore never enjoy the occupational closure48 which a career as a clinician provides. Misconduct would result in a non-existent client base before the Bar Council could even say struck off. The openly constant competition lawyers endure amongst their peers as law students, at law school with applications, and even once attained position as lawyer or barrister in competition with other firms and chambers, is extremely healthy since it allows the system to easily distil itself of inadequacy.

Conclusion: a missed opportunity, thus, a hypothetical reform.

There were many advantages to have utilised if the court had found the SOSHs decision to conduct the two inquiries privately, irrational, and permitted a public inquiry, in terms of viable prevention. It is plausible to state that Howard was a missed opportunity because although the SOSHs decision to not hold the inquiries in public may have been

United Kingdom Central Council for Nursing, Midwifery and Health Visiting, OpCit, Clause 11-13 M. Davies, (2007) Medical Self-regulation: Crisis and Change, Ashgate Publishing, Ltd., pg 397 45 Health Service Journal. NHS must rise to the cultural change challenge, Available from, http://www.hsj.co.uk/leadership/nhs-must-rise-to-the-cultural-change-challenge/5057190.article?referrer=RSS [Accessed 26th April 2013] 46 J. Wiley & Sons, (2012) Medical Ethics Today: The BMA's Handbook of Ethics and Law, Wiley-Blackwell Publishing 47 Ibid. pg 44 48J. Montgomery, (1998), OpCit, pg 33
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lawful, the decision was not ethically sound, and the judiciary in permitting the decision, assisted in the continuance of transparency being an endangered species49 within Britains Healthcare system. One of the advantages would have been an opportunity to provide a much needed clarity to the blurred ethic in the medical field caused by scandals of misconduct, and with the extent of the covertness being so, that the quality of medical ethic was never overtly called into question, it was important for the department of health to have been transparentin making difficult choices50 setting the tone for more confidence to be entrusted in the system. This transparency would have been achieved by opting to ethically and rightfully inform the general public of the quality of healthcare they are subject to, and to provide proposals for a more balanced and equitable board to determine the course an inquiry will take, as the inability for the court to address some sensitive issues, highlighted the inappropriateness of judicial review in these particular cases. As this casenote observes, there exists an array of great need for better support from legislation for the proposition that the public have a right to hear about inadequacies within the medical system. Article 1051 left victims with a weak argument that could be easily rebutted by the assertion that there were other means to soliciting the information. However, the enlightening of society of the covert inadequacies within their healthcare system is not an issue which should be dealt with unofficially, and permitting witnesses of inquiries to talk to the media after hand52 can never substitute the much needed official heightened awareness and pressure in the form of media presence to address the serious matter of medical misconduct. It is also important for progress to be made on both sides of the spectrum; showing respect for the rights-aware individual and reinforcing the illegality of criminal and substandard conduct amongst medical professionals. Finally, the greatest benefit a public inquiry would have brought would have been the opportunity to highlight the errors in the current regulatory system, and to finally reform this system to in relation to the pressures on the continued respect for the professions calling.53 Perhaps, this casenote asks too much of both the legal and medical system in 2002, which was entrenched with inscrutability, perhaps the law at the time was too limited to allow the judiciary jurisdiction to be anything but tight-fisted with the discussion of the serious ethical issues at stake here. Nevertheless, Howard surely went on to set a precedent trail of private inquiries deemed lawful54, some perhaps more deserving than others, however, the urgency for publicity faded which allowed the medical system to continue, maintaining the fiction of meeting everyones needs55, and the possibility for lessons [to be] learnt56 diminishing along with it. Facilitating for the most undesirable outcome; grave misconduct resurfacing in British Hospitals 11 years later57; conduct that could be likened to the sort whos significance was called into question a century ago, and if one can clutch a positive outcome, it would be that the need for a public nature to inquiries was finally realised in the 2013 Staffordshire Scandal, and that it indeed revealed all the internal failings foreshadowed by Howard. Covert misconduct
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T. Annett, (2002) Public inquiries: an endangered species? Clinical Risk, 8(5), pp. 199-202.

K. Syrett, (2006) Opening eyes to the reality of scarce health recourses? R (on the application of Rogers) Swindon NHS Primary Care Trust and Secretary of State for Health. Public Law, pp. 670 51 HR 1998 52 Howard, OpCit. at 23 53 J. Montgomery, (1998), OpCit, pg 51 54 R (Persey and Others) v Secretary of State for the Environment, Food and Rural Affairs [2003] Q.B. 794 55 S. Harrison, (1998) The Politics of Evidence-Based Medicine in the United Kingdom , Policy and Politics, 26, pp.18 56 Ibid. at 829 57 BBC. Stafford Hospital report: At a glance. Available from, http://www.bbc.co.uk/news/health-21357532 [Accessed 6th February 2013]

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was found again with appalling58 standards of care leading to 1,200 deaths. Cost was also identified at the centerpoint of the scandal with target obsessed managersprioritising policies over59 the adequacy of the health services which should have been the prime responsibility. Furthermore, a lack of accountability framed the scandal, leaving the Prime Minister questioning why no doctors or nurses had been banned from their professions.60 The pursuit of change within the British healthcare system is synonymous with the pursuit of publicity on the system, because the main way to incite change was to incite awareness, and the media fulfilled what this revolution needed, since it dealt with misconduct more radically than the judiciary, shocking an imminent response out of Parliament with its journalese61. Although internal opposition has emerged claiming media coverage has clouded the overall view of British healthcare, and adequate doctors who want to develop innovative procedures would be caught by this intrusion on occupational autonomy, this transparency is a necessary price to pay in order to awaken society as to the failures that have been developing covertly. Since press heightened coverage of discoveries such as the fact that despite being struck off by the GMC, [the disgraced gynaecologist] Mr Ledward had [still] been working as a pharmacist in Ireland62, led to Governmental independent body proposals such as The CEO at the Care Quality Commission, whistleblower in chief acting without fear or favour of vested interests,63 and proposals for the revalidation of Doctorate training; proposals Howard could have championed. The actions of the government, even in the face of internal opposition from medics, is optimistic and suggests a more vigorous approach to addressing the need for clear leadership and oversight will be taken in the future. In respect of the criticism to the newly proposed overhaul of regulation by the government, leaders should, whilst heeding the mistakes of the GMC of solely helping doctors keep out of trouble64, not remain centred on disciplinary, but provide preventative action by defining good practice, likened to the approach taken by the UKCC65, and require practitioners to improve their professional knowledge and competence, through emphasis on education as a constant process. Today, in the more rights-aware society, and given the great backlash to the most recent incidents in the NHS, perhaps the covert nature of the medical field is slowly being lifted as doctors are discovering[since] the nature of [undisturbed] professional power now available to health workers in the UKrequires subordination to [the] socially determined [altruistic] roles reinforced by professional discipline.66 In the wake of the Stafford inquiry, hundreds of

Ibid. Ibid. 60 The Telegraph. Stafford scandal: doctors and nurses facing disciplinary hearings still working in NHS, Available from, http://www.telegraph.co.uk/health/healthnews/9854502/Stafford-scandal-doctors-and-nurses-facing-disciplinaryhearings-still-working-in-NHS.html [Accessed 7th February 2013] 61Public Inquiries. An Inquiry into Quality and Practice within the National Health Service arising from the Actions of Rodney Ledward, Available from, http://www.publicinquiries.org/inquiries/1990-1999/rodney_ledward [Accessed 5th February 2013] 62 The Telegraph. Disgraced doctor Rodney Ledward dies of cancer. Available from, http://www.telegraph.co.uk/news/uknews/1371714/Disgraced-doctor-Rodney-Ledward-dies-of-cancer.html [Accessed 8th February 2013] 63 Health Service Journal. Exclusive: Hospital leaders say chief inspector role wont work http://www.hsj.co.uk/acutecare/exclusive-hospital-leaders-say-chief-inspector-role-wont-work/5056837.article [Accessed 28th March 2013] 64 J. Montgomery, (1998) OpCit, pg 42 65 United Kingdom Central Council for Nursing, Midwifery and Health Visiting, (1992) Code of Professional Conduct for Nurse, Midwife and Health Visitor, 3rd ed. London: UKCC, Clause 3 66 J. Montgomery, (1998) OpCit, pg 51.
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senior NHS managers will find themselves being taught how to be more inclusive, compassionate and caring as part of the response to the inquiry.67 It is indeed undesirable that what was required to initiate change came 11 years later, yet inevitable, that it would have to be shockingly public in order to highlight the need for a more patient-centric service culture68 in the NHS. Nevertheless, if the openness and publicity given to inquiries as of recent, and the invasive approach taken by the government, and regulatory boards new reinforcement ethos continue, we can be hopeful for a victory for a feminine ethic of responsibility [reclaiming our healthcare systems] over a masculinist hunger for power, albeit at the expense ofautonomy.69 For the system in place at the time of Howard, sacrificed what could have been a watershed moment for the NHS70 to illuminate the faults in the medical field, and bridge the gap between the public expectation and the actual of quality of care from health professionals.

Health Service Journal. Hundreds of NHS directors to be taught compassion, Available from, http://www.hsj.co.uk/news/hundreds-of-nhs-directors-to-be-taught-compassion/5058290.article?referrer=RSS [Accessed 8th May 2013] 68 Health Service Journal. NHS must rise to the cultural change challenge, OpCit. 69 J. Montgomery, (1998), OpCit. pg 50 70 Ibid.
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