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Why has the government ignored quality laws?

A defunct law is described as one not in effect or use. It is surprising how many of these are still in the statute books. Some, even ludicrous, such as, ‘It could be regarded an act of treason to place a postage stamp bearing the British king or queen’s image upside-down’ or ‘It is illegal to die in the Houses of Parliament’.

Ludicrous or hilarious may be the immediate reaction, but hold just a minute, it is not that ludicrous when we realise that there are laws promulgated even recently which probably do not have the remotest possibility of ever being enforced: defunct from the time it was in the corpus juris. Existing legislation must have seemed defunct to Andrew Lansley, the former health secretary, when he wrote that “The NHS currently has no legal obligation to improve continuously the quality of care” to justify legislation for the implementation of his health reforms.

Surely Mr Lansley could not have been ignorant of the 1999 Health Act which with great fanfare declared that the Secretary of State is required to ensure ‘duty of quality’. Developing this further, former CMO Sir Liam Donaldson formulated the highly celebrated concept of clinical governance which is said to express this in a more meaningful form for the layman.

‘Clinical governance is the framework through which NHS organisations are accountable for continuously improving the quality of their services and safeguarding high standards of care by creating an environment in which excellence in clinical care will flourish.’

From the similarity of the words in Mr Lansley article compared with the definition of clinical governance it seems reasonable to conclude that he must have had some familiarity with the concept expressed in clinical governance.

Besides this confusion I have not been able to resolve, why any individual or organisation has not brought charges against the secretary of state – now Jeremy Hunt – in spite of all the accusations made over the deterioration in every sphere of NHS activity: failed ‘duty of quality’. How much more evidence do we need to establish the failure to comply with the statutory requirement set out in clinical governance? Is it simply because it has been already consigned to the list of defunct laws? Did it not strike Mr Lansley that his legislation would also be as defunct from the day it was promulgated, or is it simply meant to be political rhetoric?

Clinical governance itself has been a source of confusion. Dame Janet Smith in the Shipman report stated: “I personally did not find that definition easy to understand and it does not seem surprising that in the early days at least there was a great deal of confusion and uncertainty in the medical profession about the concept of clinical governance and about what it would mean in practice” – a touch of intellectual arrogance perhaps!

The confusion has not entirely gone away. The lack of clarity in the present usage possibly arises from clinical governance also being freely used by the GMC to assess Fitness to Practise in revalidation. Revalidation applies to a single practitioner. Clinical governance as defined by Sir Liam is about responsibility being laid on NHS organisations to ensure duty of quality. This clearly could be overcome by making a clear distinction between clinical governance for the individual and organisations.

In the meantime could we explore the possibility of whether the law as it stands would be sufficient to bring charges against the secretary of state – current or previous? Perhaps a legal mind could give it some thought.

Or could anyone envisage a situation where these laws would ever be enforced and any secretary of state being tried for violation of “duty of quality”. In the meantime, secretaries of state just carry on regardless. Either you were too smart or too foolish. Time may tell.

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