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To turn the CQC into a “NHS disaster” story is for some hitting a target but totally missing the point
Hitting the target, but missing the point?
Some very well known people have totally missed the point. They are supposed to be professional commentators or editors. What happened yesterday, with the publication of the long-awaited report by CQC, was not another NHS “disaster story”. Such a story is intended to make you want to go #facepalm at the thought of needing to go into a NHS Trust. It may even be a story to tell you that the NHS is not a “national religion“, and is a ‘sacred cow’ which ought to be sacrificed on the Hayek Altar of Privatisation.
No, I’m being very ironic.
The CQC was set up to expose problems in hospitals and care homes. It had far-reaching powers of inspection which allow it to order reforms or even close health services which put patients at risk. The interviews between James Titcombe and John Humphrys and David Prior, this morning, on the BBC Radio 4 programme are here. The CQC has been found, however, wanting in a drastic way yet again. The BBC TV programme Panorama broadcast evidence of mistreatment on residents of a Castlebeck hospital on May 31, 2011. Despite evidence concerning the same institution having previously been given to the Care Quality Commission, the body failed to act and has since admitted “an unforgivable error of judgment”. Major changes unsurprisingly have been made in the upper echelons of the Care Quality Commission, with a number of senior people leaving the organisation. According to “Caring Times”, its Director of finance and corporate services John Lappin announced he had a new post last year but agreed to stay on to finalise CQC’s budget for 2013/14 and deputy chief executive Jill Finney left CQC in February to take up a senior role in the private sector. Louise Guss, director of governance and legal services, was reported to be set to leave at the end of May, as was director of operations delivery Amanda Sherlock. Director of human resources Allison Beale will apparently leave in September. David Prior is now the Chairman of CQC; his biography is here.
In future, CQC hospital inspections will include 15-20 experienced people for a month, according to David Prior this morning. However, the report published this morning winded an already beleaguered NHS. Regulators apparently deleted the review of their failure to act on concerns about University Hospitals of Morecambe Bay NHS Trust, where police are investigating the deaths of at least eight mothers and babies. James Titcombe (@JamesTitcombe) and his wife, Hoa, arrived at the Furness General Hospital at Morecambe Bay, Cumbria, on 27 October 2008. Their son, Joshua, was born that morning. Nine days later, James Titcombe, a nuclear engineer from Barrow-in-Furness, tragically witnessed his son die. Midwives and medical staff at Furness General had failed to detect and monitor an infection, which became so serious that Joshua had to be transferred for intensive care at two different hospitals. Joshua died on 5 November. James has led a very public campaign for a public inquiry into “serious systemic failures” at the University Hospitals of Morecambe Bay Trust which manages Furness General. The horrific story is laid bare by James in this account here.
Kay Sheldon (@kayfsheldon), a director of the Care Quality Commission, also accused its senior managers of “deceit and evasion” in refusing to be straightforward about its failings. Kay sits on the CQC’s board as a non-executive director, and her role is to hold it to account. She has now spoken out, having refused to sign a wide-ranging gagging order in the wake of attempts to have her removed by the former chairman after she gave evidence about its failings to the Mid Staffs inquiry. James was asked about the situation now.
“… One of the key things is… One of the things I need to say John [Humphrys] is how amazingly grateful I am to Kay Sheldon as a non-executive Director. This report would not have come out if it were not for Kay. She was very courageous, and she faced what whistleblowers often face in the NHS, which is a vilification of their actions, ..in quite an appalling way. This report vindicates those concerns, and I think CQC – and David Prior to whom you’re talking afterwards – could demonstrate a commitment to the kind of the culture people want to see. David Prior could publicly reinstate Kay Sheldon and will remain on the board of CQC. That would go a long way. Other than that, I will judge the CQC how it will react in the next few weeks, and lays out its proposals how nothing like this can ever happen again.”
The chairman of the CQC, David Prior, who has been in the post for four months, said he was “desperately sorry” that the situation had arisen.
Particularly in the aftermath of the global financial crisis, all the international financial regulators have reciprocal relationships to help them conduct their duties of public protection by sharing information. Any lack of sharing of information in a facilitatory way may be a fundamental barrier to effective regulation in healthcare, and time will tell. Prior said that,
“Unbeknown to us there was an investigation being held by Pauline Fielding which had been going on for four months, and found the maternity service was dysfunctional and unsafe. Her report was not finished at the time. We were not set up then and we are now set down to inspect hospitals…Our job is to inspect hospitals. We sent people in who had not worked in a hospital before. How could they do a proper job? We have been in the job of giving reassurances to the public.”
Among the various findings, the CQC was “accused of quashing an internal review that uncovered weaknesses in its processes“. David Prior was asked this morning by John Humphrys why one person in the CQC was asked to “destroy” evidence, to which Prior said that the “management board was dysfunctional.”
“I had known for a few months that we were not ‘fit for purpose’ as far as hospital inspections are concerned.”
Humphrys asked repeatedly if anybody who had left CQC were “punished”, and Prior said no. This issue of people moving on from failures in one job in NHS management to get a highly paid job elsewhere continues to haunt the NHS. Caroline Molloy very recently on the ‘Our NHS’ blog has described how this phenomenon has gathered momentum pursuant to the Health and Social Care Act (2012):
“In an increasingly marketised system, the opportunities for financial conflicts of interests are clear. It is curious that the media has chosen to focus on the conflicts of commissioning GPs. Whilst problematic, the sums involved are dwarfed by the huge fortunes to be made by the corporate clients of the big four currently embedding themselves at the heart of policy making.”
In August 2012 David Behan, chief executive of CQC, commissioned a report by management consultants, Grant Thornton. Names of those accused of a cover-up within the CQC were removed from this report. Humphrys explictly asked why the names in this Report had been redacted. Prior answered, “We had to make the decision on Friday to not publish the Report or publish the Report with the names, but we would have been breaching the Health Protection Act.” However, @dbanksy later on Twitter reported that:
Anyone who knows how English law works will know that the English law is there for all parties to interpret freely. A person will pay for legal advice, instruct the lawyer according to what result he or she wants. If a party were to instruct a lawyer to protect the identities of certain individuals, rather than to disclose a narrative which is clearly in the ‘public interest’, that would be perfectly possible. It would also be perfectly possible to instruct a different lawyer with different instructions. Get this – Hunt can sue the CQC if he wants. The NHS and CQC are not the same thing, shock horror!
Incredibly, some accounts failed to mention even Kay Sheldon, a key member of all this. James Titcombe was incredibly impressive as ever, in articulating what is clearly not a vendetta against the NHS, but an earnest desire for everyone in the NHS to learn from its mistakes. There are issues about what happened to Kay’s opinions, why healthcare regulators appear to coordinate poorly their regulatory inquiries, and the concerns of Kay Sheldon and a similar band of people Dr Heather Wood, David Drew, Dr Kim Holt, who have become sacrificial lambs in the whole cathartic process. People who whistleblow tend never to work again in the #NHS, and, for all the heroism, their opinions are marginalised at best, at worst ridiculed and humiliated. This episode is very clearly a debate about the efficacy of healthcare regulation. There is an urgent question to be had about the efficacy of the CQC’s regulation: why does England persist with a non-specialist “one size fits all” generic method of regulation in some parts? To have turned this into a privatisers’ charter was perhaps hitting the target for some, but missing the point, I feel.
A failure of leadership and management: toxic cultures, ENRON and the Francis Report
Robert Francis has an incredibly difficult task. It is difficult for people who have not qualified, 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. (more…)
We've been here before. On legislation against toxic culture within the NHS: lessons from ENRON for 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.
