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Toxic cultures, NHS Trusts and the Francis Report.
Robert Francis has an incredibly difficult task. It is difficult for people who have not qualified in medicine, even managers and leaders of healthcare think tanks, to understand how this situation has arisen. Being a senior lawyer, his approach will necessarily involve “the law is not enough”. The NHS is currently a “political football”, but the overriding objective must be one of patient safety. Whatever your views about managers following financial targets religiously, and regulatory authorities pursuing their own targets sometimes with equal passion, it is hard to escape from the desire for a national framework for patient safety. This is at a time indeed when it is proposed that the National Health and Patient Safety Agency should be abolished, which indeed has oversight of medical devices and equipment. Indeed, one of the findings of the Francis Inquiry is that essential medical equipment was not always available or working. A general problem with the approach of the Health and Social Care Act (2012) has been the abolition of ‘national’ elements, such as abolition of the Health Protection Authority.
That the hospital assumes voluntarily a duty-of-care for its patient once the patient presents himself is a given in English law, but this fact is essential to establish that there has been a breach of duty-of-care legally later down the line. In the increasingly corporate nature of the NHS following the Health and Social Care Act, there is of course a mild irony that there is more than a stench of corporate scandals in the aftermath which is about to explode in English healthcare. Patients’ families feel that they have been failed, and this is a disgrace.
ENRON was a corporate scandal of equally monumental proportions, as explained here:
Mid Staffs NHS Foundation Trust was poor at identifying when things went wrong and managing risk. Some serious errors happened more than once and the trust had high levels of complaints compared with other trusts.
The starting point must be whether the current law is good enough. We have systems in place where complaints can be made against doctors, nurses, midwives and hospitals through the GMC, MWC and CQC respectively, further to local resolution. In fact, it is still noteworthy that many junior and senior doctors are not that cognisant of the local and national complaint mechanisms at all, and the mechanisms used for risk mitigation. There is a sense that the existing regulatory framework is failing patients, and public trust and confidence in medical and nursing, and this might be related to Prof Jarman’s suggestion of an imbalance between clinicians and managers in the NHS.
The Francis Inquiry heard a cornucopia of evidence about a diverse range of clinical patient safety issues, and indeed where early warnings were made but ignored. Prof Brian Jarman incredibly managed to encapsulate many of the single issues in a single tweet this morning:
Any list of failings makes grim reading. There are clear management failures. For example, assessing the priority of care for patients in accident and emergency (A&E) was routinely conducted by unqualified receptionists. There was often no experienced surgeon in the hospital after 9pm, with one recently qualified doctor responsible for covering all surgical patients and admitting up to 20 patients a night. A follower on my own Twitter thread who is in fact him/herself a junior, stated this morning to me that this problem had not gone away:
However, it is unclear what there may be about NHS culture where clinicians do not feel they are able to “whistle blow” about concerns. The “culture of fear” has been described previously, and was alive-and-well on my Twitter this morning:
Experience from other sectors and other jurisdictions is that the law clearly may not be protective towards employees who have genuine concerns which are in the “public interest”, and whose concerns are thereby suppressed in a “culture of bullying“. This breach of freedom of expression is indeed unlawful as a breach of human rights, and toxic leaders in other sectors are able to get away with this, in meeting their targets (in the case of ENRON increased profitability), “project a vision”, and exhibit “actions that “intimidate, demoralize (sic), demean and marginalize (sic)” others. Typically, employees are characterised as being of a vulnerable nature, and you can see how the NHS would be a great place for a toxic culture to thrive, as junior doctors and nurses are concerned about their appraisals and assessments for personal career success. “Projecting a vision” for a toxic hospital manager might mean performing well on efficiency targets, which of course might be the mandate of the government at the time, even if patient safety goes down the pan. Managers simply move onto a different job, and often do not have to deal even with the reputational damage of their decisions. Efficiency savings of course might be secured by “job cuts” (another follower):
Another issue which is clearly that such few patients were given the drug warfarin to help prevent blood clots despite deep vein thrombosis being a major cause of death in patients following surgery. This is a fault in decision-making of doctors and nurses, as the early and late complications of any surgery are pass/fail topics of final professional exams. Another professional failing in regulation of the nurses is that nurses lacked training, including in some cases how to read cardiac monitors, which were sometimes turned off, or how to use intravenous pumps. This meant patients did not always get the correct medication. The extent to which managers ignored this issue is suggestive of wilful blindness. A collusion in failure between management and surgical teams is the finding that delays in operations were commonplace, especially for trauma patients at weekends; surgery might be delayed for four days in a row during which time patients would receive “nil by mouth” for most of the day.
Whether this toxic culture was isolated and unique to Mid Staffs, akin to how corporate failures were rather specialist in ENRON, is a question of importance. What is clear that there has been a fundamental mismatch between the status and perception of healthcare entities where certain individuals have “gamed” the situation. Alarmingly it has also been reported that the University Hospitals of Morecambe Bay NHS Foundation Trust have also had a spate of failures in in maternity, A&E and general medical services. The Sarbanes-Oxley Act (2002) was enacted in the US in response to a number of high-profile accounting scandals. In English law, the Financial Markets and Services Act (2010), even during Labour’s “failure of regulation” was drafted to fill a void in financial regulation. There is now a clear drive for someone to take control, in a manner of crisis leadership in response to natural disasters. Any lack of leadership, including an ability to diagnose the crisis at hand and respond in a timely and appropriate fashion, against the backdrop of a £2bn reorganisation of the NHS, are likely to constitute “barriers-to-improvement” in the NHS.
This issue is far too important for the NHS to become a case for privatisation. It is a test of the mettle of politicians to be able to cope with this. They may have to legislate on this issue, but David Cameron has shown that he is resistant to legislate even after equally lengthy reports (such as the Leveson Inquiry). It is likely that a National Patient Safety Act which puts on a statutory footing a statutory duty for all patients treated in the NHS, even if they are seen by private contractors using the NHS logo, may be entitled to a formal statutory footing. The footing could be to avoid “failure” where “failure” is avoiding harm (non-maleficence). Company lawyers will note the irony of this being analogous to s.172 Companies Act (2006) obliging company directors to promote the “success” of a company, where “success” is defined in a limited way in improving shareholder dividend and profitability under existing common law.
The law needs to restore public trust and confidence in the nursing and healthcare professions, and the management upon which they depend. The problem is that the GMC and other regulatory bodies have limited sanctions, and the law has a limited repertoir including clinical negligence and corporate manslaughter with limited scope. At the end of the day, however, this is not a question about politics or the legal and medical professions, it is very much about real people.
The advantage of putting this on the statute books once-and-for-all is that it would send out a powerful signal that actions of clinical and management that meet targets but fail in patient safety have imposable sanctions. After America’s most high-profile corporate fraud trial, Mr Lay, the ENRON former chief executive was found guilty on 25 May on all six fraud and conspiracy charges that he faced. Many relatives and patients feel that what happened at Stafford was much worse as it affected real people rather than £££. However, the Sarbanes-Oxley Act made auditors culpable, and the actions of managers are no less important.
This is not actually about Jeremy Hunt. Warning: this is about to get very messy. That Mid Staffs is not isolated strongly suggests that an ability of managers and leaders in Trusts to game the system while failing significantly in patient safety, and the national policy which produced this merits attention, meaning also that urgent legislation is necessary to stem these foci of toxicity. A possible conclusion, but presumption of innocence is vital in English law, from Robert Francis, and he is indeed an eminent QC in regulatory law, is that certain managers were complicit in clinical negligence at their Trusts to improve managerial ratings, having rock bottom regard for actual clinical safety. This represents a form of wilful blindness (and Francis as an eminent regulatory QC may make that crucial link), and there is an element of denial and lack of insight by the clinical regulatory authorities in dealing with this issue, if at all, promptly to secure trust from relatives in the medical profession. The legal profession has a chance now to remedy that, but only if the legislature enable this. But this will be difficult.
Taking Responsibility. What is the right level of credit or blame for a CEO?
I am posting this piece is as a background to how this issue is approached in the contemporaneous background literature. I strongly urge you to read the excellent article by Deborah Orr (@DeborahJaneOrr) published this morning in the Observer, ‘Bob Diamond is typical of the private sector. He wants power, and no responsibility’ (clicky). The part most relevant to that article is produced in a different colour.
The fact that people can tend to give leaders too much credit or too much blame for organisational outcomes is an intriguing aspect of organisational behaviour. People can be like that, but always, and such people can be followers, leaders, or neither. A popular way of contemplating this issue could be a thorough transactional analysis, which encompasses personality, perception and communication (Berne, 1966 cited in Mullins (2010)). “To credit” can be defined as ‘to give somebody public acknowledgement or praise when a person’s responsibility for an action or idea becomes apparent’, and “to blame” can be defined as ‘to hold somebody responsible for a fault or wrong’ (Oxford English Dictionary, 2011). Both are undeniably complex mental states, embracing both cognition and emotion, and understanding the precise circumstances in which leaders are credited or blamed is of enormous significance in leadership.
The possibility that ‘bosses matter’ is elegantly described in an article by Robert Sutton for McKinsey Quarterly (2010). Sutton reviews what has now popularly become known as ‘the romance of leadership’, describing the phenomenon what leaders get far more credit and blame, a thesis advanced prominently by James Meindl and Sanford Ehrlich (1987). Sutton writes as follows, “… largely because, cognitively, it is easier and more emotionally satisfying to treat leadership as the primary cause of performance than to consider the convoluted and often subtle mishmash of factors that actually determine performance differences. It is especially difficult to resist demonizing the bosses of failing organizations, however irrational that may be.” Theories and examples can be applied about how credit and blame are assigned to leaders, but, for such an analysis to be attempted to all, one has to concede that, in reality, there are complicated follower-leader dynamics, including the existence of different ‘follower syndromes’ and ‘leadership styles’ (e.g. Kets de Vries (1989), cited in Clements and Washbush (1999)). Furthermore, it may not be entirely clear to what extent leaders are truly responsible for their actions, consistent with theories of empowerment and delegation, and power and influence. This article will first consider why sometimes too much blame can be given by people towards leaders, before considering why sometimes too much credit can be given instead. There are many different ways of approaching this analysis, but it is simply not possible to review how every theory of leadership which has ever existed will apply
Perhaps too much blame?
Assigning blame can be healthy in the context of responsible organisational behaviour, and is considered to be crucial for the successful running of public life. For example, in a wide-ranging critique of the response by leaders to Hurricane Katrina, Martinko and colleagues (Martinko, et al., 2009), observed that: “CEOs often get much more credit and more blame from the public than they deserve, even though economic and political conditions are often times responsible for their short-run performances”. In any organisational structure, including public administrations and private corporates, knowing where to pin any credit or blame, and to what extent to do this, is essential for the axes of accountability and responsibility in business ethics. This is arguably very important given that “individual credit and blame constructs illusions of organizational environment and behavior that result in a dysfunctional organizational environment and actually inhibit honest and open accounting” (Anderson, 2009). However, Gibson and Schroeder (2003) had taken the view that these credit and blame attributions can play an important role ‘in aligning individual and organizational performance expectations.” Interestingly, their synthesis provides that leaders tend to attract more blame than credit, but that the converse is true for lower-level positions.
Individual differences are likely to play a part in assigning blame to leaders, especially from the perspective of interactions between the personality traits of leaders and their followers. Employees constitute a particular subset of people, and it is helpful to consider why people might attribute too much credit or blame to them in the context of the ‘psychological contract’ (pp. 14-17, Mullins (2010)). A psychological contract is not a written document, but implies a series of mutual expectations and satisfaction of needs arising from the people-organisation relationship. Fundamentally, it is considered to involve a process of giving and receiving by the individual, and by the organisation. On the basis of their empirical research, Kiewitz and colleagues (Kiewitz, et al., 2010) suggested that individuals who are prone to making hostile attributions may blame their organisations for a psychological contract breach to a higher degree than those who do not hold such a hostile bias (Martinko and Gardner, 1987).
This proposal has as its backdrop ‘attribution theory’, described as Mullins (2010) on pp. 237 thus: “it seems therefore that part of the process of perceiving other people is to attribute characteristics to them. We judge their behaviour and intentions on past knowledge and in comparison with other people we know. It is our way of making sense of their behaviour”. The origins of attribution theory are generally traced back to the work of Fritz Heider (1958), emphasing cause-effect relationships of individuals with their environments (discussed by Martinko and colleagues, 2007). An aspect observed by Tsang (2002) is that senior management tend to credit themselves for positive outcomes, and blame negative results on the external environment.
Attribution of blame presents itself as various guises in the current literature. Social psychology has been used to understand the attribution of blame in corporate failures (Pal, Medway and Byrom, 2011). Pal and colleague (2011) draw on the Shaver sequential model of blame attribution (Shaver, 1985), which puts great emphasis on the causality of events leading to blame behaviour, and the boards’ knowledge of the events involving the leader. According to Gibson and Schroeder (2003), human nature links culpability to individuals, rather than faceless corporate identities; and, especially, senior leaders such as CEOs tend to bear the brunt of the criticism. There can also be an unhelpful component, where people might blame leaders overly for poor performance of their respective organisations. Pfeffer and Sutton (2006) highlight that this perhaps occurs because people have to use cognitive short-cuts to make some sense of the mass of information about their leaders which they are forced to evaluate.
Other critiques offer equally valuable insights. Emotions can impact on the attribution of blame; it has been discovered that people tend to ascribe more blame in situations when the blameworthy outcome elicits greater negative emotions (Alicke, 2000). Zemba, Young and Morris (2006), in discussing the worst accidents of industrialised societies (corporate fiascos), observe that ‘perceivers’ often blame persons more if they are proximal to a harmful outcome (after Schultz & Schleifer, 1983). Zemba and colleagues (2006) discuss how the degree to which a leader could be blamed can be disproportionate through a ‘romanticised conception of the leader controlling outcomes’(Meindl, Ehrlich and Dukerich, 1985). This could be the saving grace of leaders of toxic organisations. For example, Bob Diamond in a recent Select Committee of the Treasury has freely admitted that he was not aware of the (alleged) fraudulent actions of certain traders and colleagues in LIBOR setting in Barclays Bank, in that he assumed that such problems would be made aware to the Compliance Officers. No such problems were made aware to the Compliance Officers, according to Diamond, until relatively rate. This means that Diamond is sufficient far removed from the fiasco, according to him for him not to be directly responsible for the fiasco in Barclays Bank.
It is nevertheless widely appreciated, however, that attribution theory is not simple. For instance, Keaveney (2008) argues that, if two parties do not simply like each other, or have been engaged in conflicts through a long period of time, many task-based conflicts may be perceived as ‘personal attacks’. It is clear then the analysis of giving ‘too much blame’ drifts subtlely from a focus on individuals to a focus on a few people and whole organisations.
Perhaps too much credit?
At the other end of the extreme, some people give no blame to leaders, and conversely tend to give too much credit. In a ‘normal’ leader, it could be that there is a tendency for leaders to take the credit for the work of people with whom he or she works: for example, the famous saying from Robert Townsend, “True leadership must be for the benefit of the followers, not the enrichment of the leaders.” (Townsend & Bennis, 2007). However, people giving too much credit or blame, a rather subjective decision, might possibly be understood in terms of follower wishing to participate in, and get involved, in decision-making, (Hersey, Blanchard and Johnson, 1996). However, not all leadership-followers behaviours are optimal. Lynn Offerman, in a provocative article for the Harvard Business Review (Offerman, 2004) called ‘When followers become toxic’, attempts to provide a coherent explanation for this. She feels that people are susceptible to making cognitive ‘short cuts’, which she labels as ‘cognitive miserliness’, in that people tend to give too much credit for leaders when others are doing so as well. Offerman states that people do not wish to be ‘the odd one out’, and give too much credit consequently to leaders. As a result of excessive credit by some people, it can be hard for some leaders to receive honest feedback. Offerman explains that, in regard to this, Bill Gates offer ‘turns to’ Melinda Gates.
Too much credit, while things are going badly wrong in corporates, is often implicated in explanations of corporate governance scandals. In a formulation by Lipman-Blumen (2004) about toxic leadership, toxic leaders are said to require followers to give too much credit; the need of followers for authority, a need for job security, the need to feel special, the need to belong, the fear of ostracism, and the fear of powerlessness. Followers, it seems, might also be to blame for giving too much credit to leaders, even if the leaders are not themselves toxic: when leaders appear to succeed, followers (and leaders) might conclude it was due to inherent skill in personality and/or business strategy (what psychologists call the ‘attribution error’), or followers (and leaders) give leader too much credit (what psychologists call the ‘confidence bias’); an interesting account of why leaders do not appear to learn from successes was provided by Gino and Pisano (Gino and Pisano, 2011).
Another pathological relationship, where followers may get whipped up into a frenzy of giving too much credit, seemingly not in keeping with actual performance, is in the context of ‘narcissistic leadership’ (review, Yukl, 1989). Maccoby (2006) attempts to provide a balanced account of the perceived ‘successes’ and ‘failures’ of narcissistic leaders. Indeed, he cites George Soros and Jack Welch as ‘productive narcissists’. However Maccoby explains that narcissists tend to be oversensitive to criticism, and it is the leader-follower relationship, with followers giving too much credit, which eventually causes the problems: “narcissistic leaders are quite dependent on their followers – they need affirmation, and preferably, adulation”. This is perhaps consistent with the rapidly evolving notion that narcissists can make bad leaders (Philips, 2011).
In the scenario of ‘narcissistic leadership’, praise is perhaps ‘a given’, but there remains the potential for a vast schism between performance feedback and performance level. A more constructive debate is how leaders can use performance feedback for performance improvement usefully. Robert Kaplan (Kaplan, 2002) has indeed suggested that certain leaders, CEOs, have ‘a hard time’ in dealing with too much credit. Kaplan proposes that the reasons for this are multi-fold, as they are concerned that expectations will be raised even further, too much credit (in the form of public praise) will go to their heads, and they are frightened of complacency. The somewhat counterintuitive strategy for CEOs to deal with this, according to Kaplan, is that followers should still give ‘too much credit’, but he recommends that the group should instead instead the positive comments in clusters. Such pragmatic advice could be useful for other leadership styles. Tichy and Ulrich (2008) provided that, ‘a transformational leader delineates the organisational dynamics of change, with reference to the organisational structure, culture, and people involved.’ Acccording to them, Lee Ianocca, former CEO of the Chrysler Organisation, was given too much credit in turning Chrysler around from ‘impending bankruptcy’; this was achieved at a cost (for example, job losses in their thousands).
It is also helpful to consider how feedback may be implicated to boost organisational (and leader) performance in ‘charismatic leadership’, reviewed by Reagan McLaurin and Bushanain Al Amiri (2008). Charismatic leaders can be defined as ‘those who have a high level of self-confidence, a clear vision, sometimes engage in ‘unconventional behaviour’, and can act as ‘change agents’, while remaining realistic about environmental constraints. However, it is often described that charismatic leaders seem so special, due to their strategic insight, strong convictions/beliefs, self-confidence, unconventional behaviour and dynamic energy, that subordinates idolise (i.e. give them excessive praise and respect); similar to explaining why a leader arise in situation of an emergency, the “power-influence theory” has evolved (review, Yukl, 1989), which explains the behaviour of followers towards people in power. An example of a charismatic leaders includes John F. Kennedy (Stracener, 2005); examples of crisis leaders typically include Rudy Giuliani, Mayor of New York during 9/11. It is interesting that Rudy Giuliaini himself remarks on the importance of positive praise, which may include ‘too much credit”, “Leaders are rarely doers. They rely on other people.” (Guiliani, 2005).
Conclusion
Understanding why people may tend to give too much credit blame for organisational outcomes is trying to pin down a fast-moving target because of the rapidly evolving leadership literature. Fundamentally a coherent explanation comes down to the characteristics of the leaders and other people (who may be other leaders, followers, or neither), and the precise environment in which they find themselves in. This article did not examine the effects of politics, diversity or geographical culture, which may add further ‘smoke and mirrors’. Notwithstanding that, attribution theory repeatedly occurs in published observations, but that is not to say that other analyses (such as the nature of the leadership itself) are not valid. Producing a synthesis of why people may give too much credit or blame, furthermore, will depend in the future of the literature on both individual and collective decision-making. Most of the advances reported in this article have occurred relatively recently, and this bodes very well for the future of this field of academic and practitioner research.
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(c) LegalAware blog 2012
