Leo Huseyin is reading law at Warwick University.
It has sometimes been commented that, much as Prussia was said to be “not a country with an army, but an army with a country”, Britain is increasingly becoming the NHS with a mere auxiliary nation attached.
As conservatives, we should be sceptical about the inexorable growth of any part of the state, especially when results do not seem to improve in relation to its size. This is especially true of the NHS, which holds a total monopoly on the vital task of treating the sick in this country.
Given this, robust systems must be in place to hold the NHS and those who work for it to account when things go wrong, whether this is by malice, neglect or mistake.
Yet the long-running history of scandals surrounding the NHS indicates this is not the case. The recent tragic examples of the Letby murders, alongside the alleged cover-up of baby deaths in Nottingham, have exposed critical shortcomings in the NHS’s ability to investigate wrongdoing occurring within its ranks.
But these problems are not new. The Gosport Independent Panel found that between 1989 and 2000 “there was a disregard for human life and a culture of shortening the lives of a large number of patients.” and that “when the relatives complained about the safety of patients and the appropriateness of their care, they were consistently let down by those in authority”.
Crucially, this is not an isolated example; indeed, the list of hospitals marred by scandal is a long one, from the illegal stripping of dead children’s organs at Alder Hay to the multiple instances of neglect, incompetence, and abuse of patients at Stafford Hospital.
Despite some of the truly harrowing details of suffering detailed in the catalogue of reports, inquiries and investigations into NHS failures, perhaps the most disturbing finding is the pattern of managers and systems closing ranks to defend the institution rather than patients. Again, the Gosport Independent Panel found that:
“The senior management of the hospital, healthcare organisations, Hampshire Constabulary, local politicians, the coronial system, the Crown Prosecution Service, the General Medical Council (GMC) and the Nursing and Midwifery Council (NMC) all failed to act in ways that would have better-protected patients and relatives, whose interests some subordinated to the reputation of the hospital and the professions involved”.
It’s clear that a so-called ‘Blue Wall of Silence’ – the term used to describe the apparent code of silence among US police officers concerning alleged wrongdoing in their ranks – exists within the NHS. More worrying though, is the fact that the police and CPS have, it seems, been repeatedly unwilling or unable to break through this.
A multitude of factors likely explain this, on the one hand, the often technical and complex nature of investigations into wrongdoing in the NHS is beyond the means of local police forces, and allows experts within the profession to leverage their superior technical knowledge to limit outside security.
On top of this, there is the continued defence towards the medical profession and the NHS that is deeply ingrained into the British psyche.
Finally, we saw with the Letby case how managers explicitly warned staff against referring the matter to the police due to the disruption and reputational damage it would cause to the hospital, engaging in what was a truly disgraceful form of emotional blackmail against those courageous doctors who could clearly see that something was going terribly wrong.
Considering these issues and the long-running and well-established track record of self-policing failures, I propose a new, independent investigatory and prosecutorial body with a broad remit to investigate criminal activities involving the NHS.
Such a body would be completely independent of both the NHS and the Department of Health and Social Care, existing as an independent non-ministerial department within the Attorney General’s Office, with a statutory underpinning to investigate and prosecute crimes related to the exercise of the functions of the NHS and its staff.
The Government has recognised the need for some form of independent scrutiny of the NHS, creating the new Healthcare Safety Investigation Branch in 2017 and granting it statutory independence under the Health and Care Act 2022. And yet, this body is both insufficient and inadequate to address the challenge of patient safety in the NHS.
Firstly, it is minuscule and is set to be subsumed by the Care Quality Commission this year. In other words, it will be hosted within the existing structures that have failed to protect patients and lack the powers of criminal sanction needed to break through the NHS’s thick blue wall of silence.
An independent Healthcare Criminal Investigation Office, modelled on the existing Serious Fraud Office, should be created and sit outside the NHS and the political centre of government under the relatively independent Attorney General’s office.
It would need to be properly staffed with a combination of medically trained investigators and specialist lawyers, with a budget of around £100 million (comparable to that of the SFO) and – unlike the police and the CPS – possess the specialist knowledge needed to finally give patients and staff alike the confidence that NHS misconduct will be properly investigated by an authoritative, powerful and specialised body.
There may be those who question why a separate body is needed for one particular public service, but we have dedicated transport and military police, whilst the NHS spending comfortably exceeds that of transport and defence combined. Indeed, just as the SFO was created in response to a series of financial scandals in the City of London that destroyed the public’s trust in the way serious or complex frauds were handled, the recent plethora of NHS scandals calls for a similar response to restore public confidence and keep patients safe.