Building Internal Governance: Duncan Astill On Healthcare Safety Beyond External Regulation

Speaker A: And I think the starting point, the first thing in mind is don't let anyone else tell you how safe your care is. You don't rely on people externally to tell you that. You've got to know as a senior team in a hospital, in a care home, in anything, you know exactly what's going on in your name on the ground. And you've got to build an internal system of governance to do that, not rely on external verification.

Speaker B: Hello and welcome to the Connection, where RL Datax's Chief Customer Officer Liz Jones and and medical Director Darren Kilroy are joined by leaders and colleagues from within the healthcare industry. In the Connection, we explore how people and technology in healthcare can come together to create great experiences and support patient safety. We hope you enjoy listening.

Speaker C: Welcome to this edition of ah, the Connexion Podcast. My name is Liz Jones and.

Speaker D: Hi everybody, my name is Darren Kilroy, Medical Director here at Oral Datix, uh, at the Connected Health and Care Summit 2025.

Speaker C: We are live from the exhibition area and I'm really delight to say that we've been joined by one of our guest speakers from this morning, which is Duncan Astell from Mills and Reeve. And we have just freshly come out of a session where we were reflecting on your experience of 20 plus years as a lawyer in health and care and outside, uh, of health and care. And we're going to have a little bit of a chat about that and some of your reflections, if that's okay, Duncan.

Speaker A: Sure.

Speaker C: So, Darren, Duncan and I have known each other, we've just established since 20 years and I think going back in time is the right place to start because I think your story about when you studied law and how you got into in particular health is an interesting one. Would you share that with us?

Speaker A: Well, it's good to have a new audience member who hasn't heard my story. Uh, but yeah. So I finished my law degree and needed some cash for the summer, so I got a temp job pulling medical records at a hospital.

Speaker C: Those would have been printed medical records.

Speaker A: Yeah. And you literally would have to run around the hospital trying to find the notes to pull together the clinic list. But it was at an old orthopedic hospital called Harlow woods that was closing down. So it was great because it was really quiet and busy and it was a lovely summer. And then someone found out I got a law degree. So they immediately grabbed me by the collar and marched me up to Sherwood Forest Hospital that was sort of taking over and put me into on the old site. I Imagine, yeah, Kings Mill. And literally my first day on the job, I actually started on the Thursday, having planned to start on the Monday because someone had died overnight on a surgical ward, having bled out after an operation. So I spent the morning with the trust solicitor, basically interviewing all the staff from the ward and basically creating statements for the subsequent inquest. So I then went to a first inquest a few months later in the death of that Gina Rickers, still remember her name. And I guess from that point of view I was sort of quite fascinated by this world of medicine and the legal process. So I moved to the part time legal practice call stayed on at the hospital and did my solicit exams part time over two years while carried on working at the hospital. So that was 1994.

Speaker D: It's a parallel though because as you were talking there about that really interesting sort of career trajectory, it takes me back to my early clinical days because when I was at university at med school, I was working part time, as was then an auxiliary, a healthcare assistant. And it gives you a totally different perspective on your future career without even knowing it then, um, because I was doing it for money because my mum was a nurse. But it sort of gives you a totally different outlook, doesn't it, on what you end up doing as a. You must have found that.

Speaker A: Yeah, I mean, I had no idea about the medical law and hadn't even signed up on my degree to the medical law option. You know, no interest. I was much m feeling why was I doing law when I was doing law? Because my old cricket club captain had a big jag and I quite fancied one of those. So it certainly wasn't about patient safety and the journey I've been on and

Speaker C: it's really defined your entire life because again, I think you said last night you think you've been to over a thousand inquests.

Speaker A: I was probably a little exuberant in that, thinking back on the number, but it will be in the high hundreds that I've done myself and then as I've got more senior supervising a team of people doing inquests. But we used to have, at any one time we would have a hundred open inquests as a team. So yeah, you've probably been responsible for or involved in that many and I suppose all the ones from the hospital as well. I suppose so, yeah, it might be that high, but yeah, don't hold me to that number.

Speaker C: So some of what we have been talking about in the run up to this and some of what you've talked about this morning has been whether or not there is time for a bit of a renaissance around governance, actually, because, certainly, and it's interesting, we were in a CQC session yesterday and there is this, what feels like a bit of a reversal in some of the mindset. There's quite a lot of people who are saying, well, tell me how I can pass the test of regulation, tell me how I can be safe. And I think your first reflection from the session this morning is a really important kind of starting point for a conversation about where do we go now in terms of patient safety.

Speaker A: Yeah. So you asked me what are the three things that I would tell someone, as it were, from that career I've had? And I think the starting point, the first thing in mind is don't let anyone else tell you how safe your care is. You don't rely on people externally to tell you that. You've got to know, as a senior team in a hospital, in a care home, in anything, you know exactly what's going on in your name on the ground. And you've got to build an internal system of governance to do that, not rely on external verification.

Speaker D: What's your reflection? I've obviously worked in. I was always front end in emergency medicine all my career, so I used to enjoy inquests in the nicest possible way because they're a great learning environment and very underplayed in that way.

Speaker A: Way.

Speaker D: We'll come back to that in a minute. But we often see, uh, statements released by healthcare leaders when there has been a regulatory input and they say, oh, uh, we're working on the plan, we welcome this review. And it's almost as if they've been caught unawares by what's been inspected and found. What's your reflection on that kind of mentality we have, whereby people are welcoming the review that they've had and they're working on the action plan and the improvements. You think a cynic might say, well, weren't you aware of all that anyway? Why did you need a regulator to tell you that your maternity care was inadequate, for instance?

Speaker A: Well, I mean, you shouldn't rely on that. And that was the talk this morning. We went through a little bit of history around Nottingham, um, University hospitals and the inspection of maternity services by the CQC and the time they were rating it as good and leadership as outstanding, whilst also concluding they'd breached five of the regulations and were committing, therefore, five criminal offences. Um, during that time. There was then the two index cases, really, that have led to all the current Independent review by Donagh Ockendon, two prosecutions by the Health and Safety executives, two and a half million pounds in compensation repayment of cnst, you know, NHS Resolution, Maternity Discount or whatever it's called now. And that just goes to demonstrate why, in my view, you can't rely on external regulators, tell you what's going on. I think there's a slightly separate point, isn't there, about welcoming external scrutiny and whether really people do that. And I think the problem is that it's a, uh, sort of game, isn't it? It's all about the rating. And so inevitably, everyone's very defensive and it's playing this game because it's about the rating. And, um, in inquests, I guess there was a similar experience for me that back in the day, it was a sort of open, you know, it was a, uh, relatively benign legal process that was there to establish, with no blame, no criticism, who the deceased was, how they came by their death. And in some respects it was very constructive because it was an external look, see what happened, and everyone shared the story and it was cathartic as well for the family and things. And over the years, it's just become another competitive process where you've got two sides trying to prove a particular case, a coroner who is desperate to tell a chief executive how to run a hospital with PFD reports. And again, everybody's really nervous about it and so they'll turn around and say, yeah, we welcome the report. In actual fact, they've done everything possible to sort of prevent that level of criticism, which they see it as criticism, and the CQC take it as criticism when surely it's just another good piece of safety data.

Speaker C: But some of this is about who really owns improvement as well. I think there is something in the fact, and it's not even just the cqc, this has gone before with the Healthcare Commission would take some ownership for owning part of the improvement agenda. We're not regulating, we're also helping you improve. It's an improvement mechanism and therefore there's a bit of a juxtaposition in terms of are you actually here to score me and to put me on a rating and, um, my public facing reputation be described, or are you here to help me see where I can improve? And I think you can see organizations get really trapped in that and do you find that they're the ones that challenge more or rather than welcome the constructive feedback?

Speaker A: Yeah, well, I'm not sure I can sort of categorize. I think it's very personality driven, so that you've got people who are much more willing to kind of stand up and fight their corner. And there are some people who wouldn't do that because they'd be concerned about their jobs. And so it very much depends on that senior leadership team as to how they go in challenges.

Speaker C: So is it personality driven or is it that certain personalities have got better data and knowledge than. Go back to your original proposition.

Speaker A: Well, in terms of challenging the cqc, what I can tell you is that the independent sector is far m more likely to challenge than the public sector. I mean, that isn't necessarily surprising because there's lots of people, the different group of people looking over the shoulder, aren't they? There's investors and shareholders over the shoulder of the independent sector, you know, all charity trustees. But with the NHS then you've got lots of senior people up the chain to answer to. So they're much more within that context. I mean, I remember a chief exec ringing up wanting to JR their regulator and the first thing I said to him is, well, have you got another job to go to? Because that would have been the end result, which ultimately was the end result of him because he couldn't resist challenging on another day at another hospital, the head of the Strategic Health Authority and he lost his job.

Speaker D: Yeah, just all the inquests you've been to over the years, do any stand out more than others in your memory as being particularly significant for you about what you learned or what was said at those events?

Speaker A: Yeah, I mean, they're very interesting beasts. You know, you've got hundreds and hundreds of different coroners now and so they do have a sense of the individual. So some stand out for very much the wrong reasons and the coroner. But one does stand out, which was one here in Birmingham actually, where the consultant in the local A and E department was desperate for the coroner to conclude that one a cause of death was the four hour wait in Target in ae. And he really wanted that as an outcome because he was so concerned about the way that the service was run to deal with such a. With a target. And it wasn't so much the Target itself, it was a good ambition, but it was the consequences of breaching it and the big sticks, the financial consequences on the organization. There was so much pressure which led people to make decisions because of the Target, not because of the patient in front of them.

Speaker D: I totally remember that, uh, I was around as a young consultant when the four hour Target came into being and it created almost like a Fear culture for us clinically, around how you would have to get patients through the department. And then we had this concept, it wasn't a concept, it was real, of putting them onto an observation ward off the clock.

Speaker A: Because you admit them and they're off the clock. Yeah.

Speaker D: Which was a safety and governance nightmare. And I would spend endless hours on weekend mornings patrolling the wards, which I wasn't qualified to do because I wasn't a ward based consultant doing ward rounds on these patients who were just there, uh, to be off the clock and they had no input through the night. And so, as you say, they were inquests.

Speaker A: Yeah. So that was exactly the case. So a patient comes in, got a pneumothorax, sent for X ray, four outtakes, so they're admitted to the observation ward. So then no one gets to look at the X ray till the following morning.

Speaker D: That's right. Which sort of brings us back then to the governance point around how you have to put policies and procedures in place to prevent that happening.

Speaker C: Which is your second point you made in terms of your thought around learning before we do that, because it's nice to have a conversation with two people who've got sort of different perspectives, but of the same thing. So question back to you in terms of the inquests, because that's been a big part, you said, is there any that stood out for you for different reasons?

Speaker D: Not one. But when I used to go to a lot of inquests, it must have been a virtue of the fact I had lots of shifts and that ended up with people. Uh, I worked in a really busy department and my local coroner was the shipman coroner. Uh, and so he was post shipment, he was very attentive to the, you know, as you can imagine, he had a particular course to be. And so the thing that I always think about the inquest was that I always used to share with all the other people who were in the team when I got back to base. Was it. In the majority of cases, the things at the inquest which were the most meaningful were the basics that weren't done well. It was all around note keeping, it was around medication reconciliation, it wasn't around anything fancy, it wasn't around whiz bang technology or making big clinical decisions. A lot of it was pretty prosaic and mundane and the Swiss cheese effect of all these different things not being done led to the death. And that was my biggest reflection, always on inquest. You know, you've been to more than me, but the vast majority of them it was all around the basics not being done properly, illegible notes, which of course now we've got EPR systems in place, you'd imagine isn't a thing in some locations. Exactly. But it's still an issue.

Speaker C: And presumably presenting their own challenges around safety.

Speaker D: Yeah. And, uh, medicines not being correctly transcribed, these basic things were the things that were the significant findings, things always for me. So that's always my reflection of inquest.

Speaker C: Well, that is actually interesting then, because that does lead through to your second point and the talk this morning.

Speaker A: So, because I moved, then went into work for a, uh, panel, NHSLA panel firm and did lots of clinical negligence claims for years, then started doing more and more inquests, I then moved into our, uh, at, uh. The time was a regulatory team members that did all sorts of regulation across all sorts of industries. You know, environment agency, Health and safety was the mainstay. Builders merchants, you know, we're our biggest client and, uh, I go all over the country to builders merchants to deal with, you know, yet another health and safety incident. And so I'd sort of start to then understand health and safety law. The methodology underlying it all that all goes back to 1974. It's not new, it's not novel. But their starting point is to identify the hazards, identify what can go wrong, put in place a series of control measures to prevent that happening, observe is it working? If the reason to think that it's not working because something's happened, you go back to the start and review it. And that methodology sort of, in my mind is very different in a clinical environment, we don't use that methodology at all. And we've, since the organization with the memory in 2000, have really concentrated just on the review bit and we just concentrate on the, oh, something's happened, what can we do to fix it? And we do all these little tweaks and we're not effectively designing from the outset safe systems and processes, literally starting from scratch. Okay, we want to run an AI department. What can go wrong? Post operatively. How are we going to deal with a suspected hemorrhage or whatever. Yeah, whatever. How are we going to deal with that? What's the process that kicks in? And every other industry would have those systems and processes set up.

Speaker C: Risk prevention rather than incident learning.

Speaker A: Yeah, I mean, I didn't say it's a bit trite, isn't it? But the way I've always put it, if, you know, NHS was going to open an airline, NHS Airways, and, um, we're going to court patients Court customers on the basis that don't worry every time a plane crashes, we're going to do a really thorough root cause investigation. You want to buy a ticket?

Speaker D: Exactly. That's all right. When I've been involved in reviewing poor care myself as an NHS md, thinking about maternity, the biggest issue we always used to find was cultural issues there. When things went wrong and escalation was required and responses were required, cultural identities of who the roles involved were became a real issue. And I wonder to what degree you've seen the cultural problems in healthcare around different teams and not getting on and disengaging with each other. And then when it really matters, that is a safety issue. And, um, have you got any reflections on how team working has influenced what you've seen over the years?

Speaker A: Yeah, so, I mean, definitely seen that in the days when I did brain damage. Baby cases and the interaction between the midwives and the doctors is still a problem, isn't it?

Speaker C: It's still there now.

Speaker A: Exactly. And I don't know how you resolve that. There's almost two professions that are just, you know, jar. So I think there needs to be something far more fundamental around maternity services. And it's interesting what this rapid review

Speaker D: will come out and I was wondering, with your reference to builders merchants, I, uh, may be talking totally naive on this. There isn't that cultural problem in builders merchants in terms of risk mitigations and planning for eventual.

Speaker A: You haven't got different professions, different professionals with different approaches and different cultures. Absolutely.

Speaker C: But you have got a scenario where in those organizations the ability to work out what their risk appetite is, because it's a, it's a financial decision for commercial organizations, which is quite different, isn't it?

Speaker A: Yeah. So coming back from a, uh, trip to the south of France at the weekend, you know, we get to the end of the Runway and they turn the plane around, take us back and disembark markets and they say, sorry, there's a technical problem with the plane. We have to sit there moaning for five and a half hours waiting for a new plane. But as I got on the new plane and I looked over to see some guys lying on their back with some torch lights, taking the engine apart on the plane. We just got off. I was quite pleased I was on another plane.

Speaker D: It's always the analogy, isn't it, around the healthcare plane. As you say, if it was an airline, you were one member of steward staff down or you wouldn't set off because you can't. But you don't have that luxury in healthcare because we permit it to be the case that you will fly off on NHS airlines or healthcare airlines.

Speaker A: But I do think it's a really interesting point that I've got to at a couple of point times in my career is advising trusts on well when is it done safe. And there was a lot of discussion around the corporate manslaughter and corporate homicide act came in about really at what point are you making a. Because you had an exemption from the act for public policy decisions. So actually a decision not to close A and E and not to treat anyone would be exempt from any prosecution for corporate manslaughter. But a decision to carry on with a substandard set of without enough people and someone dies underwater room absolutely could be prosecuted. So actually there is an acceptance ultimately that you do need to make those calls somewhere along the line and say you know what, it's not safe, we're not going to do it. The problem is that it has then a knock on effect, doesn't it? Because what happens to those other people, where do they go? What do they do? And uh, which is why people don't do it. But there isn't a sort of in a sense an honest debate about when to down the plane and when to disembark.

Speaker C: And just going back to your central premise which is we've got to have really strong systems and risk and controls process. So the board assurance framework would be the whether or not it's through committee structure is the kind of meant to be the main tool of doing that. Out of pure curiosity that's a bit weird. I looked at uh, I must have looked at about 30 board papers over the last two weeks just looking to see whether or not anything was interesting. Had anything evolved in the border assurance framework? Did they feel like copy and paste? You know we've got to keep the text in. They struck me as being so static and thoughtless almost as in they just weren't very dynamic and live documents and when they were first introduced they were meant to be incredibly dynamic living cascaded documents. So I'm just wondering if you think there's anything that needs to happen there in terms of the governance process.

Speaker A: So governance process, I mean that's quite interesting. We've kicked that around over the years and I don't suppose I've got to a terribly settled view of how to actually structure a governance situation because everything's always going to have downsides as well to however you do it. And I suppose what I have seen though is so much energy even in organization that I'm a trustee of so much energy go down as to where something should be. Is it on this board, this framework, on that one, is it a strategic risk? If not, it shouldn't be at the board. And it's kind of so much. And, um, my little pet hate is scoring risks. I'm not sure why we're doing that. Everyone has to get to the same point is that you've controlled, so far as is reasonably practicable, that risk. So the only reason for scoring, in my mind is to prioritise because you can't do everything at once. So I suppose that's, in my mind is that forget the kind of arguments about which document and where and grit and dynamism by saying, right, well, this is your responsibility, whatever level in the organization. How are you going to make sure that all the control measures that are necessary are implemented and who are you going to report to to demonstrate that's been done?

Speaker D: One of the things I always used to find really infuriating about that was for any given board meeting as, ah, you know, you've got literally hundreds of pages of documentation to theoretically read, wade through, make sense of and act upon, and that volume of stuff you can't realistically cope with, but yet there is an obligation to report all this stuff on a regular basis. And so we used to spend many hours, as you say, worrying about which bit to fill in and that bit hasn't got enough text. And that narrative's the same as last month. Has no one changed that narrative? That graph needs updating. He thought, whoa.

Speaker A: And it just becomes all about the process.

Speaker D: Absolutely.

Speaker C: You can see the cut and paste.

Speaker A: I did a sort of health and safety review for a client, it was a mental health trust, actually, who was sort of enlightened enough to invite us in. And I think mainly part of the reason was that they were really trying to find home for people and where people should best sit. And so we did sort of slightly rejig how they were approaching it all. But I remember there that basically there was endless committee meetings where literally they just spent the time arguing over the score to give to us, because if it was above a certain score, it got out of the divisional risk arrestor. And so it was just this debate of, do we want, you know, can we resolve it or not?

Speaker D: Then there's no training on the scoring. So we used to have. Everything was catastrophic in one team.

Speaker C: I used to, you know the board game Risk?

Speaker D: Yeah.

Speaker C: I don't know why no one thought of this in the legal profession yet, Duncan. But that would be absolutely ideal if it was repurposed as some sort of like a health and social care version of the risk board game.

Speaker D: Yeah.

Speaker A: But the case in point is, you know, the board meeting I was at last week for the air ambulance that I'm a trustee of, the number one priority risk on there is that a pilot might inadvertently give away some patient information and that was scored so high it was the first risk on the report.

Speaker C: Yeah. So I'm conscious that we at some point this podcast buzzes and all of the tech stops working. So your final point in the presentation this morning was around blame, which is links into Darren's point around culture, just your reflection on blame.

Speaker A: So rarely is it an individual's fault. Obviously there will be times where someone has behaved accordingly and there will be obviously the Harold Shipman type cases that obviously you just have to put to one side. But I think generally people are operating in a system, they're going to work to do a good job. Most of the errors are innocent mistakes, as they were termed. And there was a lot of work done a few years ago about some categorization of error. And I just think to her as human, if you're designing a system that effectively requires on people being very well trained, highly expert and error free, then that system is going to fail from time to time. And so you've got to try and design that out of the system. But when it happens, don't blame the individual for not taking enough care. Or in one of the 300 clinical decisions they had to make that day, they made one that in retrospect was slightly poor. You've just got to reflect that and understand that it's the system they're in. And there are many cases, the Barwa Gaba case I referred to David Selou, where actually, why isn't there a very, very clear system? So in, you know, a colorectal surgeon is often dealing with breakdown of a diverticulum and you know, peritoneal leak. So why isn't there, you know, an absolute go to in a process for all of the nurses and the junior doctors to follow in that eventuality? Why is it left a judgment?

Speaker D: And, um, that's where you would need the technology. You know, one thing I always think is really important is with apps and everything else, we're now at, uh, your fingertips clinically. We need to push the technology there to make sure in those eventualities which are gonna happen, because that's physiology and pathology, that we are able to furnish people with the policies, the escalation process in the palm of the hand, if possible, at the time of need, rather than having a review about it because they couldn't access it because it was on a laptop or a document was in a cupboard somewhere.

Speaker A: Ah.

Speaker D: Because you can't remember all this stuff

Speaker C: in your head and neither should you be expected to. But then the other side of this, which I think goes back to your learning point, which is then when something goes wrong, actually one of the things you're doing in raising an incident is actually asking potentially for some support rather than just flagging something that's going to go into a process. And you and I know that actually there isn't always the feedback loop that there ought to be.

Speaker A: So that you heard, and that partly becomes creating that environment where people can be open and honest. And I referred to some years ago, just after Francis, I came across this, that in Denmark, they had given basically doctors and nurses, basically indemnity against any kind of prosecution or employment action if they reported an error.

Speaker D: Uh, that's interesting, isn't it? I wanted to ask you a quick question personally. Don't worry about this. You're a lawyer and clinical staff who are listening to this podcast, they'll be fearful of litigation because that's just the nature of the business that we're in. What would be your 1 tip for a clinical member of staff in their everyday practice that would help to keep them on the right side of litigation in what they do all day?

Speaker A: Well, litigation comes down to what you can prove, and therefore, if it's not written down, it didn't happen, is generally the approach that the lawyers and the judge will take. So we'd make sure you've written it

Speaker C: down or you've scribed it ambiently in the new world order. Duncan, last question. So one of the things we like to do on this podcast is think about the different types of careers that are within the health and social care sector.

Speaker A: Right.

Speaker C: And yours is one of those. So if you were sitting there now in front of a law student who is thinking, why would I go do this in health and safety, and particularly in health and social care, what would you say?

Speaker A: Well, I mean, it's been fascinating. I mean, the stories, I mean, that's what it's all about. Uh, is that the privilege of being involved in these stories is very much something that I've enjoyed. It's been fascinating and is very, very different to most of my colleagues in the office who are dealing with property purchases or corporate purchases. It's very personal. And that's what I've enjoyed about it.

Speaker C: It's about the humans.

Speaker D: Yeah.

Speaker C: Yeah. Love it. Thank you so, so much.

Speaker A: It's our pleasure. Good chat for Amazon.

Speaker C: Brilliant to chat to you and we will keep in touch.

Speaker D: Thanks for listening everyone. See you soon.

Speaker B: Thank you for joining us on today's episode of the Connection. We hope this episode has provided you with valuable insights on the role that both technology and people play within, um, the healthcare landscape. For more information and resources, visit rldatix.com don't forget to subscribe to the Connection on Apple Podcasts, Spotify, or any other podcast platform you use. Join us next time as we continue to explore how healthcare is impacted by connecting people and, um, technology. On behalf of the RL Datix team, thanks for listening.