Abstract
Western liberal societies depend on the mutual collaboration and activities of their citizens in all aspects of everyday life, within a framework of laws and conventions that define the extent and limits of those activities. 1 Citizens trust each other within their societies to maintain this framework, often barely consciously, and thus maintain their freedoms within it. Large organisations, such as Government, the Courts, the NHS, insurers, colleges or major corporations, may inadvertently or even intentionally restrict these freedoms. However, trust is primarily a matter of relations between individuals. Trust is built on the mutual expression of confidence in the behaviour of others, relying on the competence, reliability, integrity, interpersonal relations and communication skills, not only between individuals, but between individuals and organisations. 2 Trust therefore subsumes concepts of social justice and personal liberty. 3 In medical practice, trust is implied between the patient and the doctor as it is in legal practice between the client and the lawyer. 2 But it may not be freely offered or may, perhaps, even be subverted for personal gain, avoidance of responsibility, or actual harm, as in so-called ‘fake news’. 4 Despite these risks, the seamless working of society depends on trust between societal members demonstrated by friendship, honesty, judgement and mutually supportive behaviour. 5 Inter-personal trust fosters transference of trust to the institutions people serve. Thus, trust in an organisation is dependent on the organisation’s trust in its employees, determined empirically from a basis in selection and training, and in individual relationships between the employees themselves and between employees and their clients. There are therefore trusting links between individuals and also between individuals and institutions. The conventions enshrined in trust in the context of society depend on laws that have evolved over centuries of questioning, debate and conflict, with the growth in Britain of parliamentary democracy. Other European countries have developed broadly similar solutions that pervade their thinking and behaviour.
Trust as a behaviour consists of an attitude of goodwill that is specific to a particular person. Trust requires empathy, the ability to identify with or understand another’s situation or feelings within their frame of reference. In a medical context, at its simplest, trust involves two persons and a matter at hand. 6 Typically, it is the consequential good resulting from trusting another person that is valued above that of the trusting attitude itself.6,7 Trust in a relationship is implicit. Trust implies reliance on others and is ubiquitous in everyday life. Trust does not depend on a commercial relationship, or on fear of sanctions if something goes wrong, but on good practice. It can be regarded as an emotional or moral response, or even a virtue in honouring someone else’s trust, but it is susceptible to competing social and political factors.6,8 Trust in organisations is always weaker than inter-individual relationships since it is the human aspect of a relationship that is the determinant, 9 not the local organisational regulations. The continuing relevance of trust in medical practice has been questioned, largely because of the growth of multi-doctor involvement in patient care.9,10 Discussion has tended to centre on diminishing trust or confidence in NHS management rather than on the doctor–patient relationship itself, but the latter is the crucial factor.
Medical litigation as a breakdown of trust
The COVID-19 pandemic was accompanied by a remarkable, if transient, surge of public demonstrations of belief in the NHS’s capacity to look after those infected, with widespread rainbow-poster decorations and repeated government-derived slogans to ‘Save the NHS’. Nevertheless, there are longstanding mixed feelings concerning trust in the NHS as an organisation, perhaps brought to prominence because the NHS has become an electoral plaything for politicians. The NHS is widely understood as a government-led organisation, 9 politically influenced, beset by accusations of underfunding and, recently, by controversy concerning its preparedness for the COVID-19 pandemic. Long waiting lists for treatment further imperil trust in medical encounters.
These underlying concerns are heightened by media reports of inquiries into failings in NHS care and by reports of medical litigation. 10 Such adverse publicity is a powerful determinant of public perception. The legal definition of negligent injury is determined against a background of the recognised risk of any medical procedure, what a patient was told about those risks in the context of the physician’s duty of care, and a demonstrable resultant injury. 11 However, the patient’s understanding of such discussions is rarely tested. The annual UK tally of tort litigation for alleged negligence, i.e. culpable error, illustrates the scale of the problem. In 2018–2019, the annual NHS budget for England and Wales was £130bn, funding 1257 hospitals, 26,958 general practitioners (GP), 23.6 million diagnostic tests and approximately 6 million hospital admissions. 12 In 2019–2020, there were 11,682 new claims against the NHS and its employees alleging clinical negligence, with a total outstanding potential liability of £84.1bn, excluding investigational costs and diversion of staff time, a sum amounting to more than half the annual NHS budget. In that year, £2.3bn was spent on settling claims, 13 a sum sufficient to fund several NHS Hospital Trusts. The Medical Defence Union paid £83.2m in discretionary indemnity claims and legal costs in the 2019 financial year, £31.2m in medical and advisory costs and £8.8m in reinsurance costs. 11 Claims for compensation for alleged negligence are increasing by about 10% annually, 11 a rate of increase that is not sustainable. There is obvious scope for reform, but how this should be approached is uncertain.14–16 Despite the often-devastating impact of medical litigation on medical practitioners, its underlying drivers are not well understood,10,11 but loss of trust in a doctor or in the NHS itself underlies or accompanies much medical litigation.
Trust and medical consultations
Trust in medical practice is built on the physician showing an early and sensitive interest in the patient as an individual, with a clear sense of time available for the consultation or process of care. By demonstrating professional competence and developing mutual concordance between the patient and the physician, an alliance of trust is built with the patient and family.5,14–16 Mutual eye contact and touch, as in the physical examination, are long established and very important in this process. However, medical consultations are brief and the physical examination is often omitted. Further, the increasing use of internet or telephone consultations traduces personal contact. This, and lack of continuity of care by an accepted and recognised physician, introduces hazard to the development of mutual trust.14,16 The old-fashioned virtues of availability, time and caring, which lie at the heart of successful and enjoyable clinical practice, need support in current, socially troubled times.16,17 The long-established clinical virtues are sometimes constrained by nationally defined clinical decision pathways. The latter have been developed, for very good reasons, by expert groups organised by the NHS itself, through the advice of its own subsidiary, the National Institute for Health and Care Excellence (NICE), 18 but there is no certainty that adherence to rule-based practice is always either necessary or for the best.
Medical and surgical specialisation, increasingly reliant on sophisticated imaging and biological tests, also alters the doctor–patient relationship, requiring hospital-based assessment, often involving more than one doctor. Despite electronic data transfer, GPs often have only a relatively minor role in decisions regarding complex care arrangements, for example, in cancer, stroke or cardiac management, and they may find themselves in arrears of the trail of information transfer.16,17 In addition, in this increasingly centralised and technical medical system there is concern among patients regarding inequity in availability of specialised care in local hospitals. These factors risk an erosion of trust between the doctor and the patient. Uncertainty as to concordance between a patient’s expectations and the role of the NHS as the sole statutory organisation responsible for providing care is also potentially erosive of trust. Patients can access the internet and often attend well prepared with medical information, which, although sometimes incompletely understood, must nevertheless be respected. This self-taught knowledge carries expectations that may be difficult to meet, and no doctor can know everything, so additional opinions are often necessary. The issues underlying mutual trustworthiness are increasingly complex. 19
Trust in an NHS monopoly
That the NHS is a healthcare monopoly is under-recognised.11,18 The NHS has absolute responsibility not only for the whole of Britain’s potential patient population, but for all the hospital buildings, health-related services and employees, including the personnel, equipment and goods, required to deliver care at every level of complexity. 11 Crucially, the NHS also acts as the sole insurer responsible for determining and distributing funding and payments, using income derived from general taxation. Only GPs, as independent practitioners, partially escape this overall monopoly. There is no independent UK yardstick against which to make judgements about the NHS, although its performance has been much analysed. 12 There are cogent reasons to consider monopolies as inappropriate in any commercial context – and the NHS is a very large commercial monopoly. As an instrument of government, the NHS is a victim of its founding document, written in the desperate economic and social circumstances of 1945–1948.12,18 Major changes in its governance, its funding or its management require Parliamentary approval, over at best a five-year election cycle. While this protects it from over-hasty changes, it does not encourage fundamental rethinking. Further, it inhibits development of local initiatives.
Despite the introduction of quasi-independent NHS Trusts some 30 years ago, the NHS remains dominated by a centrist management ethos, driven by political imperatives, and by weak cost control. The introduction of new techniques and treatment plans is quite properly subject to validation of their effectiveness by appropriate research and audit. However, lack of local relevance in publicised NHS plans, and a managerial culture of belief in past planning success that is not supported by the reality of previous attempts at reform, as experienced by patients and especially by medical and nursing staff, too easily compromises trust in the competence and ability of NHS staff to deliver modern healthcare. It is important that the trust, competence and expertise of individuals should be recognised by patients, managers, government agencies and the public at large. Open publication of operational data and clinical outcomes should be encouraged.20
What next?
Trust between individuals is the basis for any acceptable system of healthcare,2,6,9,14 just as in other aspects of our society. 1 Increasing healthcare expectations, changing patterns of practice associated with technical advances, media anxieties and a rising tide of litigation are indications that all is not well. Trust in medical practice and in the NHS as a healthcare system assumes truth-telling, including frank admission of limitations. This applies not only to the doctor–patient relationship but to management at all levels, including the Department of Health and, especially, politicians. 21 A carefully considered process of reform, perhaps by unbuttoning the monopoly at the heart of the NHS, although likely to be difficult and controversial, is surely now imperative. Seventy years after its foundation society has changed, but trust in people and their institutions is a fundamental good that must always be supported.