The Letby case inquiry will lead to more blame and suspicion in the NHS – and patients will be less safe | Mark McDonald

I have been Lucy Letby’s barrister for the past two years. I have spent thousands of hours going through the evidence, speaking to experts and examining what happened to the babies who died or became seriously unwell on the neonatal unit at the Countess of Chester hospital. I have worked with nearly 30 experts, including internationally recognised specialists in neonatology, pathology, insulin, statistics and other fields. It may be to some an inconvenient truth, but I am convinced that Letby is innocent, and her convictions represent one of the most serious miscarriages of justice in modern British legal history. That means she was failed by the police, the NHS, the criminal justice system and, importantly, a plethora of experts who simply got it wrong.My work on the case has also raised wider concerns about the evidence and conclusions surrounding the deaths on the neonatal unit, and what the lessons being drawn from this case will mean for doctors and nurses in neonatal medicine.Neonatal units are among the most demanding environments in the NHS. These are tiny, desperately ill babies. Their condition can change within minutes, and doctors and nurses make difficult decisions under enormous pressure, often with incomplete information.Sometimes, despite the best care, babies die. That is an uncomfortable truth, but any serious discussion about neonatal safety has to acknowledge it. What worries me is that we risk creating a culture in which clinicians become frightened to work in these environments.Imagine being a doctor working a night shift in a neonatal unit. A baby’s condition suddenly deteriorates and you have to make decisions quickly, but despite your efforts they die. Then, years later, the circumstances of those decisions are reconstructed with the benefit of hindsight. Every action is examined. Every decision is questioned. And the possibility of a criminal investigation hangs over the process. Who would still want to work in neonatal medicine?This is not only a theoretical question. The NHS already faces enormous challenges in recruiting and retaining staff. We need people who do take on this challenging work to feel confident enough to make decisions. We need them to be able to say: “I don’t know”. We need them to admit mistakes, report near misses and challenge colleagues and managers. Above all, we need them to tell the truth.For many years, the NHS has tried to develop what is often described as a learning or “no-blame” culture. The idea behind this was never that there should be no accountability. What it means is that when something goes wrong, the first questions should be: what happened? Why did it happen? And what can we learn?A public inquiry set up after Letby’s convictions, chaired by Lady Justice Thirlwall, delivered its report in mid-September. The report placed great emphasis on monitoring and surveillance, and specifically stated a need to move away from the no-blame culture. These recommendations risk creating a surveillance society within the NHS, where clinicians fear that every adverse outcome may lead to scrutiny and blame. Patient safety depends on openness, trust and learning from mistakes, not a culture of suspicion in which clinical error, systemic failure and deliberate criminal conduct become dangerously blurred.That would be a terrible unintended consequence. The safest NHS is not one in which staff are frightened of making mistakes and practise defensively. It is one in which staff feel safe enough to admit mistakes.Thirlwall’s is not the first major inquiry into failures in maternity and neonatal care. Over the past two decades, there have been major investigations into trusts in Morecambe Bay, Shrewsbury and Telford, East Kent and Nottingham, among others. Again and again, inquiries have found problems with leadership, communication, escalation, teamwork and listening. Again and again, recommendations have been made and promises given that the NHS will learn. So perhaps we need to ask a more difficult question: why hasn’t it?The answer cannot simply be that we need another set of rules, another layer of monitoring, or another system for identifying individual responsibility. We need to listen to the people who actually work in these units. This is where I am particularly critical of the government, of successive governments.Who is asking what these changes will feel like to a nurse working a 12-hour shift in an understaffed neonatal intensive care unit? Who is asking what it will feel like to a doctor knowing that an unexpected clinical outcome could result in years of scrutiny? The government has a responsibility to protect patients. But it also has a responsibility to protect the workforce on whom patient safety depends. The two things are inseparable.I think trade unions also have a responsibility here. They should defend patients, but they should also defend their members. This does not mean defending wrongdoing. It means defending fairness, and making sure that a doctor or nurse is judged in the circumstances in which they actually made a decision, rather than simply with the benefit of hindsight. It means recognising that an adverse clinical outcome is not evidence of criminal conduct.skip past newsletter promotionafter newsletter promotionThere has been remarkably little public debate about the possibility that the response to Thirlwall’s inquiry could create fear among NHS workers. Furthermore, no Labour MP has spoken up, and that silence matters.The Thirlwall recommendations risk creating an environment in which a disgruntled healthcare professional can point the finger at another, triggering investigations that can quickly become criminal investigations.The doctors and nurses caring for vulnerable newborns deserve protection from unfair hindsight, disproportionate suspicion and a culture in which every adverse outcome becomes a potential question of individual blame. Because if the lesson we take from the Thirlwall inquiry is that we need more blame, more surveillance and more fear, then I worry that we will have learned the wrong lesson.We will not have made the NHS safer. We will simply have made it harder for the NHS to care for the babies who need it most. Mark McDonald is a criminal defence and human rights barrister specialising in miscarriages of justice