Liverpool Care Pathway – The Audacity Of Hindsight

This is the Care Quality Commission statement on the Liverpool Care Pathway – 

CQC statement on the Liverpool Care Pathway

12 December 2012

The CQC has agreed a statement with other health and care regulators about each organisation’s role and responsibilities in relation to the Liverpool Care Pathway (LCP).

It is the duty of those professionals involved in the care of the dying to work together as a team to determine, in association with the person and those close to them, when it is appropriate to implement the LCP. The relevant regulators need to be informed if any person believes the implementation of the LCP to be inappropriate.

By publishing this statement, we aim to clarify what each regulator's role and responsibilities are where issues and concerns of poor practice or professional misconduct are brought to our attention about the LCP. 

We also set out our expectations of the responsibility of clinical and other staff working in regulated services about what they should do as individuals if they witness malpractice or unprofessional conduct in their work place.

Issues and concerns of poor practice or professional misconduct should be brought to the attention of the relevant professional regulator or the health and adult social care regulator.

• The Nursing and Midwifery Council (NMC) where they are about a registered nurse or midwife which may call into question his or her fitness to practise.
• The Health and Care Professions Council (HCPC) is the regulator of 16 professions. If any registrant has concerns about the performance or conduct of any colleagues that they work with, they should bring it to the attention of the relevant regulator.
• The Care Quality Commission (CQC) where there are any concerns and relevant information about a health or adult social care organisation in which health professionals practice which may call into question its registration. Please contact 03000 616161 or email enquiries@cqc.org.uk.
• Please refer to the General Medical Council's (GMC) statement on the LCP and reference to their guidance.

We wrote to the CQC in November of 2009. We had been in ongoing correspondence with the Healthcare Commission (HC) which had been shut down and so approached this regulatory body which had, apparently, been set up in its place. Not so. This whole tier of appeal had been shut down. After the Primary Care Trust (PCT), the next port of call to take your complaint became the Parliamentary and Health Service Ombudsman (PHSO).

We wrote again to the CQC in March of 2011 -

Care Quality Commission
St Nicholas Building

St Nicholas Street
Newcastle upon Tyne

NE99 5AU                                                                                             20^th March 2011

Dear Sir/Madam,

Re: Caterham dene Hospital

We have pursued a case on behalf of my mother, Mrs. ***** ***, with the NMC. We have been informed thus by Mr. Peter Pinto de Sa:

We are not empowered to undertake a general investigation into the performance or conduct of unnamed individuals at a particular institution or organisation where it is said that there have been general failings on the part of that institution or organisation or its staff in general.

We are therefore pursuing this case with the CQC with regard to the negligent policies of Caterham Dene hospital.

In May of 2011, a CQC Inspector, Mr. Huw Jenkins, left a message on my mobile phone. I phoned and wrote back.

Huw Jenkins

CQC Inspector

Care Quality Commission
St Nicholas Building

St Nicholas Street
Newcastle upon Tyne

NE99 5AU                                                                                   5^th May 2011

Dear Sir,

Re: Caterham Dene Hospital

I refer to my letter of 20^th March 2011 and to your message left on my home phone last Thursday. As this was the long Bank Holiday weekend I left returning your call until the first working day following which was Tuesday the 2^nd May. You were not available and so I left my contact telephone numbers with you.

This letter was also submitted via email. An acknowledgement was received –

Thank you for your recent communication to the Care Quality Commission.‏

19/05/2011

To ****** ***

From:	Enquiries (Enquiries@cqc.org.uk)
Sent:	19 May 2011 06:04:06
To:	****** *** (******@hotmail.com)

Please accept this automated response as acknowledgement that we have received your email.

If your email concerns a safeguarding issue we will treat this as priority.

For all other enquiries please note that you will receive a full response within 10 working days.  

In the meantime, you may find our website useful which contains all the latest guidance. This can be viewed on the following link: www.cqc.org.uk.

If you are a Service Provider and have emailed us a notification, registration or self assessment the National Correspondence Team will forward this on to the relevant team in the Commission. Please ensure to include the full name and address of your service in all correspondence to us.

Once again thank you for contacting the Care Quality Commission's National Correspondence Team.

Statutory requests for information made under access to information legislation, such as the Data Protection Act 1998 and the Freedom of Information Act 2000, should be sent to: information.access@cqc.org.uk

Mr. Jenkins finally made contact. We were informed that there were budgetary constraints on the CQC and that at that time investigations were focussed on care of the elderly. I pointed out that such investigations could also incorporate investigation on the use of LCP. Mr Jenkins acknowledged what I said but did not hold any hope of such a proposal being accepted.

Here we are, at the threshold of a new year, 2013, and the CQC have the temerity to publish this - and only following a hard-hitting campaign by a national newspaper, which has itself been vilified for undertaking such a campaign!

Here is another national newspaper, The Telegraph -

Liverpool Care Pathway: watchdogs must be informed about 'inappropriate' use

Health watchdogs must be informed when doctors or loved-ones think the Liverpool Care Pathway has been used “inappropriately”, the Care Quality Commission has stated.

By Stephen Adams, Medical Correspondent

7:00PM GMT 14 Dec 2012

Doctors and nurses must also “work together as a team” with the patient and their loved-ones, to come to a decision about when to use the approach to end-of-life care.

The statement, issued by the CQC, is intended to “set out our expectations of the responsibility of clinical and other staff” regarding use of the controversial pathway.

Designed to ease the suffering of those close to death, the LCP is now used in most NHS hospitals.

But in recent months many relatives have complained that they were not informed their loved-ones were put on it in the last hours or days.

Some doctors have concerns that if used badly it can result in additional suffering, while others are worried it could hasten death and so amounts to a form of euthanasia. Most doctors reject these charges.

The CQC’s statement reads: “It is the duty of those professionals involved in the care of the dying to work together as a team to determine, in association with the person and those close to them, when it is appropriate to implement the LCP.

“The relevant regulators need to be informed if any person believes the implementation of the LCP to be inappropriate.”

A Department of Health spokesman said: "We are clear the Liverpool Care Pathway can only work if each patient is fully consulted, where this is feasible, and their family involved in all aspects of decision-making. Staff must properly communicate with the patient and their family - any failure to do so is unacceptable.

“We support the regulators in making their roles clear, and would expect all trusts to investigate any reports of abuse or clinical failure and to act accordingly.”

Is this a sign of 'something being done', or is it just paying lip-service? The CQC statement is nothing new; it is merely a restatement of what 'should' happen.

"Health watchdogs must be informed," quotes the Telegraph.They are so informed, and choose to do nothing.

If we are going to pick nits, and perhaps we should, the CQC agreed statement concerns professionals involved in the care of the dying. In their Statement on the Liverpool Care Pathway, the CQC refers to a 'duty of those professionals involved in the care of the dying'.

The CQC chooses to ignore that, in the non-hospice settings where the LCP is being implemented, professionals are not involved in the care of the dying; they are involved in the care of the sick and the ailing, most likely the elderly and the vulnerable, and making judgement calls to 'diagnose' dying.

The CQC advises to 'work together as a team to determine, in association with the person and those close to them, when it is appropriate to implement the LCP'.

The situation is fraught.

The relevant regulators need to be informed if the implementation of the LCP is thought to be inappropriate says the statement.

In other circumstances, where outcomes are less certain, where 'the person' may themselves report ill effects and bad outcomes, the whistle-blower may well demonstrate their case as a viable one. In the circumstance of a 'treatment' which has as its outcome the death of  'the person', their case will be more difficult to substantiate.

According to this article,

Currently about 80,000 patients per year have been supported by the LCP and there is no doubt that it has hugely improved the care of many thousands of patients in the last hours and days of life. 

Furthermore the fact that most patients are dying within 33 hours of being placed upon it tells us that they are dying not from dehydration but from their underlying conditions. People usually take 10-20 days to die from dehydration and patients in the last hours or days of life often do not utilise fluids well and have no desire to drink.

We are speaking of the sick, the frail, the fragile and the vulnerable; any 'care' regime which promotes and directs to a terminal outcome is going to have precisely that effect! Thus, the 'inappropriate' implementation becomes harder to prove, particularly if other members of the team are 'on board' with the decision. The decision is a self-fulfilling one.

The new 'glasnost' bandied by the NHS Employers is not at all reassuring and is less 'healthy' than it appears.

The CQC statement goes on to say,

Issues and concerns of poor practice or professional misconduct should be brought to the attention of the relevant professional regulator or the health and adult social care regulator.

According to Mr. Pinto de Sa -

We are not empowered to undertake a general investigation into the performance or conduct of unnamed individuals at a particular institution or organisation where it is said that there have been general failings on the part of that institution or organisation or its staff in general.

In other words: ‘where the failings have been a result of implementation by the 'institution or organisation'.

This begs the question: May these 'institutions or organisations' be sued for Corporate Manslaughter?

In this article, it is owned that

it is clear that in some care homes and district hospitals implementation has been sub-optimal.

If shortcomings have led to avoidable deaths it may be hard to prove for precisely the reason stated above, that we are speaking of the sick, the frail, the fragile and the vulnerable; any 'care' regime which promotes and directs to a terminal outcome is going to have precisely that effect!

After all, Jane Barton – who was found guilty of dangerous prescribing leading to the deaths of at least 12 vulnerable but non-terminally ill patients in the Gosport War Memorial Hospital was actually permitted to continue to practice! Why no case of corporate manslaughter...?

As the old adage goes, 'Doctors bury their mistakes!'