What are some of the main medico-legal issues you've seen affecting anaesthetics and perioperative care?

When critical incidents happen, the key priorities for us as a medical Royal College are to support the specialty and our members, learn lessons from adverse events, improve patient care and promote safe anaesthesia practice.

The most common claims we are aware of are those around inadequate pain relief during Caesarean section under a regional anaesthetic and nerve injuries, often from positioning errors during surgery. We know that these are very distressing to patients.

Although much rarer, accidental awareness during general anaesthesia is also extremely distressing to patients. Following the publication of the 5th National Audit Project (NAP5) report of the Royal College of Anaesthetists and Association of Anaesthetists (the largest ever study into accidental awareness during general anaesthesia), we have produced guidance that distils the findings of the NAP5 report into actions that individuals and organisations can follow to reduce the risk of accidental awareness.

The most serious cases we see, but fortunately the rarest, are those relating to airway management, often including failure to recognise oesophageal intubation or loss of airway on induction of or emergence from anaesthesia. These cases result in the most serious adverse outcomes for patients.

Oesophageal intubation is tragic and should be preventable.  Working in collaboration with the Difficult Airway Society and the Association of Anaesthetists, we have developed resources - including a video tutorial, Capnography: No Trace = Wrong Place - which we hope will help prevent these mistakes from happening again.

During the perioperative period, many of the issues that come up are around consent, especially when the risks of the anaesthetic are greater than the risks of the treatment or no treatment, or when patients feel that they had not received all the information they needed about risks.

Following the Montgomery ruling, there has been a considerable shift in the way doctors are expected to provide information on risk, and to support them we have created a wide range of patient information resources on risk and anaesthesia and, in collaboration with the Centre for Perioperative Care, guidance on the shared decision making process. 

I am, however, concerned by the potential fallout of clinical negligence claims for inadequate or delayed care provided during the pandemic. While it's right that doctors should be accountable for their actions, it would not be fair for individuals to be singled out in claims that arise from less than optimal or delayed care due to lack of staff and resources during COVID-19.

The problem is perhaps systemic; a patient can only gain recompense by alleging medical negligence, and by no other route. I'm also concerned that these claims risk hitting NHS staff at the time when they might have barely had a chance to recuperate from a gruelling two years, and will feel exhausted and demoralised as they are asked to continue to support the recovery of the NHS.

There is a feeling in the medical profession that there is little acknowledgement of COVID-19 having exacerbated pressures that already existed before the pandemic.

How do you see issues relating to anaesthesia carrying over to other specialties and clinicians?

Our college is a major contributor to, and supports the work of, the Centre for Perioperative Care (CPOC). This is a cross-specialty centre dedicated to the promotion, advancement and development of perioperative care - the route to collaborative and effective surgical pathways for the benefit of both patients and the healthcare community.

This is not a new concept and many components of the perioperative care pathway already exist within the NHS, but we have some way to go still before they are consistently established across the NHS and we achieve full collaboration across healthcare settings.

The elective recovery presents an ideal opportunity to further perioperative care. With six million patients on waiting lists in England alone, there is no better time to embed prehabilitation of patients with complex healthcare needs ahead of surgery.

Turning waiting lists into 'preparation lists' would ensure that patients, in collaboration with their doctors, do everything they can to improve their lifestyle and manage pre-existing medical conditions. This would reduce the risk of post-operative complications, repeated visits or calls to their GPs after surgery, and even readmissions.

I would encourage any medical professional involved in referring patients for surgery to direct them towards our 'Fitter Better Sooner' patient information toolkit, which contains lots of practical advice on all the steps patients can take to ensure they are as well prepared as possible for surgery, and how to make the most of the waiting period.

How has the specialty worked differently - or 'stepped up' - during the pandemic?

The considerable overlap between the specialties of anaesthesia and intensive care allows each to support the other in times of need. The COVID-19 pandemic pushed intensive care workload to its limits, and the anaesthetic workforce responded by supporting their intensive care colleagues across the country.

However, the role of the anaesthetist during COVID-19 has spanned beyond ICUs and emergency care. We have seen anaesthetists as leaders, teachers, innovators and organisers of care in the fight against this devastating disease.

Now that we are slowly emerging from the worst of the pandemic, anaesthetists continue to play a critical role in the elective recovery and bringing down waiting lists.

What has particularly struck me during the pandemic is the team spirit in anaesthesia and ICU. There is no doubt that the pandemic has had a negative impact on the physical and mental wellbeing of anaesthetists, but in our COVID-19 surveys, what many of our members have told us got them through the toughest times was the way colleagues came together to face the challenge and to support each other.

What are some of the other lessons that can be learned from anaesthetists' experiences of late?

The pandemic has shone a light on how stretched and under-resourced the NHS and the social care sector are. It has forced all of us to recognise that it is no longer acceptable to have a healthcare service operating with the bare minimum capacity.

Our census tells us there is a shortage of 1,400 anaesthetists across the UK. That the NHS has not collapsed during the pandemic is due largely to the enormous efforts of its staff in managing a pandemic while at the same time trying to maintain services, but this has come at a cost on their morale and wellbeing.

Our retention report, Respected, valued, retained - working together to improve retention in anaesthesia, shows that a quarter anaesthetists plan to leave the NHS within five years, and that around a third felt COVID-19 made them less inclined to stay working in the NHS.

As well as doing everything we can to retain our most valuable resource, our people, we want the government to commit to building a sustainable workforce by investing in long term workforce planning and training. We are already starting to see a shift in public opinion on this, and we are one of 70 organisations supporting an amendment to the Health and Care Bill that would enable and strengthen strategic long-term spending decisions about workforce planning, based on demand projections for health and social care services.

We are also working closely with Health Education England on its review of Framework 15 on workforce planning and we will shortly be publishing our own supply and demand modelling for the anaesthetic workforce to show the extent of the problem that anaesthesia will be facing over the next 20 years.

What are your thoughts on the proposed HSSIB and its safe space?

I feel that the NHS still has some way to go when it comes to eradicating the blame culture. We hear repeatedly how medicine should learn from the aviation industry when it comes to dealing with and learning from adverse incidents, but for that to happen there needs to be much more transparency and less fear of criminal charges if doctors are to willingly come forward and speak honestly about mistakes.

I see the Health Services Safety Investigations Body (HSSIB) and its proposed 'safe space' as a positive step towards fostering a learning culture in healthcare, but I remain concerned that the safe space is not truly such, since it does not apply to coroners' requests as the current Health and Care Bill is drafted.

The very real risk of being brought in front of a GMC fitness to practise panel as well as a coroner's investigation would make any doctor think twice before sharing their own reflections on an incident for fear that these will be used against them.

Next year will see long-awaited reforms to the GMC's legislation. What are your hopes for GMC reform, particular to anaesthesia and the wider profession?

The primary function of the GMC is to protect patients through regulating the medical profession, but I strongly believe that this can be done in a balanced and compassionate way.

I think it's fair to say that the relationship between the GMC and the medical profession hit rock bottom with the Bawa-Garba case. What was striking about it is that what happened to Dr Hadiza Bawa-Garba could happen to any of us - doctors with impeccable records who fall victim to the blame culture, with little or no consideration of the systemic failures that have contributed to mistakes.

My predecessors, I know, have had many discussions with the GMC about how to make the fitness to practise process more compassionate. As the new president I continue to engage with the GMC and stress that when mistakes happen, systemic failures must be taken into consideration.

Ultimately, regulators and the judiciary need to appreciate that doctors face dilemmas that not many other industries face. Take aviation for example - it would be perfectly acceptable for a pilot to refuse to fly a plane that is in less than top condition. Doctors, however, do not have the luxury of turning away patients when the IT system is not working or colleagues and supporting staff are not available. They simply have to do the best they can with the resources they have available.

If we want medicine to continue to be an attractive career, more needs to be done to change the culture of blame in the NHS and to continue to make the regulation of medicine more compassionate.

The opinions expressed in this interview are those of the author. They do not necessarily reflect the opinions or views of the MDU.