In the House of Commons, in media studios, in the pages of national newspapers and on Twitter the NHS and its regulator are the subject of a fairly fierce blame game, still spilling over from last week.

In summary, did the Care Quality Commission (CQC) cover up hospital failings, did the then health secretary, Labour's Andy Burnham, know it, and is the current health secretary, Jeremy Hunt, someone who's done a bunch of things in office that's made everything worse?

Lawyers and the law may not be centre stage, but lawyers are closely mixed up in events here. One of CQC's in-house lawyers was criticised in Grant Thornton's report on the alleged suppression of a critical report on University Hospitals of Morecambe Bay NHS Trust (an account those criticised in the report deny). And solicitors advising former patients, or their relatives, were central to maintaining pressure on both CQC and the trust itself.

The issue is important, even if Burnham, Hunt, ex-CQC senior staff and the media are getting a bit unclassily shouty on the topic. But I can't help feeling that the tonal virulence of the exchanges is in part based on the poor likelihood of blame being definitively pinned anywhere.

Clinical negligence cases are, of course, harder to bring than ever. But even if they were substantially easier, non-clinical sources of ‘blame’ are rarely held to account with any reference to the law.

Points on both sides of this row include the following. One is that the last government, of which Burnham was a member, created and then superintended a flawed regulator – with an inspection regime that fell short of that use by its predecessor bodies.

Another, also leveled at the last government, is that PFI deals used to build and manage new NHS facilities were too expensive and are now resulting in cuts, even at a time when NHS expenditure is ‘ringfenced’.

A more general charge leveled against the current government is that cuts in public services, which for complex reasons can be taken to include the ‘ringfenced’ NHS, lead to poor standards of care. Further, that the current NHS reforms are creating upheaval in the health service at a time when it requires stability – that radical change is expensive and disruptive.

Floating around these four points are two related ‘tools’ that sound like they could help, but in fact do not.

The first is the Civil Service Code, which includes a requirement to use and present data fairly and accurately. Overzealous attempts to present information in ways helpful to the ministerial cause (of either government) would seem to breach this. So would poor or ill-thought-through advice to ministers.

Yet a breach of the code is rarely invoked successfully for anything other than fairly grubby misdemeanors.

An offence that sounds like it should be closely related to both the code and the rival scenarios presented above is the offence of misfeasance or misconduct in public office.

Here, in summary, the public office-holder takes actions that he or she knows will cause unjust loss to someone – they have been warned of the dangers, but pushed on ahead anyway wasting public funds and doing harm to folk in the process. (These are not the only test.) Again, I doubt case law is about to be made here. But behind the scenes immigration lawyers have looked seriously at this in relation to changes in government policy – where the dissonance between evidence and policy is, to put it politely, wide.

The possible prison sentence for misconduct in public office is a cool 25 years. That would rather focus the minds of headstrong ministers or slap-dash civil servants.

But pursuing these avenues are not in discussion. Neither are reforms that would make pursuing them easier. The government would, in fact, like to make it easier for civil servants to act more partially – a distinct overreaction given the civil service’s record under the current and previous governments.

They should be there in the mix – or some other remedy should that allows those ‘wronged’ to go right the way to all the origins of their wrong.

Without something in this space other than loud accusations, that lingering sense that justice is never fully done will remain. And trust in politics and public life will simply not return.

Eduardo Reyes is Gazette features editor

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