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Explicit acknowledgement from the Court of Appeal that the government is taking the TSA model to attempt widespread NHS reconfiguration
The judgment from the appeal court (Court of Appeal), the second highest court in England and Wales, provides useful clarification on the reasoning behind why Jeremy Hunt lost.
This judgment has been published thus by LJ Sullivan, with their other Lordships in agreement, including significantly the current Master of the Rolls.
Jos Bell explains elegantly the situation regarding Lewisham on the ‘Our NHS’ website as follows:
In the Lewisham case, the judge, Justice Silber, had ruled that Hunt and his administrator Matthew Kershaw had no right to use the ‘special administration process’ in a neighbouring NHS trust – South London – to meddle in the affairs of unrelated Lewisham Hospital – and to ignore the view of local GPs.
In part, this sudden pop-up Amendment (to Care Bill Clause 109) is the action of a government shoring themselves up for a judicial defeat. Lewisham campaigners suspect that the government senses their Appeal, due to be heard just a week after the Lords debate has been tabled, is on rocky ground. Although the Amendment will not apply retrospectively to the Lewisham case, if it passes it would enable them to rain blows on Lewisham that they have been unable to inflict by other means, all over again.
It is reported that the health minister Frederick Howe had explained in a letter to peers that the amendment would “put beyond doubt” that the trust special administrator has power to make recommendations and that the health secretary (or Monitor in the case of foundation trusts) has the power to take decisions that affect providers other than the one to which the administrator was appointed.
The Court of Appeal decision fundamentally hinges on a very strict point of law – that is, what parliament had intended, particularly in relation to how Chapter 5A must be construed in the context of the 2006 Act as a whole [as legislated].
Due to the separation of powers in English law, it is not for judges to make the law generally.
Judges are there to interpret the law.
The Court of Appeal appears to be acknowledging that the current government is taking the TSA model to attempt widespread NHS reconfiguration. The evidence for this strikingly emerged in para. 19 of the Judgment:
- The fact that in some cases a TSA might think it necessary to go further and make recommendations for action in relation to other Trusts, as happened in the present case, might be a justification for conferring wider powers on TSAs and the Secretary of State, but whether or not that would be desirable is a matter for Parliament, not this Court. We were told that a new clause has been inserted into the Care Bill, which is presently before Parliament. The new clause provides that references in Chapter 5A to taking action in relation to an NHS trust include a reference to taking action “in relation to another NHS Trust”. This is precisely the kind of provision that one would have expected to see in Chapter 5A if Parliament had intended it to have the meaning attributed to it by the Appellants.
Now it is crucial for Parliament to decide how it is going to progress on this issue.
It is also vital to acknowledge that the Care Bill 2013 has not obtained Royal Assent yet.
It’s not law yet.
But it is getting closer and closer.
As confirmed by Jos Bell, the next steps are going to be crucial.
The law has to be “clear, unambigious and devoid of relevant qualification“.
Judges in deciding upon controversial cases often have to go behind ‘what parliament had intended’.
But what parliament had intended was clear.
Lawyers are indeed allowed to look to external statutory aids to help them interpret the law. This can conceivably even in come in the form of Twitter. Andy Burnham MP, the former Secretary of State for Health, announced on Twitter on 28 October 2013:
Jeremy Hunt’s cardinal mistake for both the High Court and the Court of Appeal was try to act outside of his powers. What the current executive is attempting here is an aggressive use of the ‘special administration process’ to shut down NHS entities, contrary to p.47 of the 2010 Conservative Party Manifesto.
That the Conservative Party had broken their Manifesto pledge was articulately demonstrated in #pmqs by Heidi Alexander MP this week (as reported in Hansard):
The Coalition is propelling us at high speed into the chaotic “dog-eats-dog” ‘rule of the market’. It is this out-of-control market which appears fundamentally, and rather paradoxically, anarchic.
For Labour currently, it is critical that abuse of powers through the TSA ‘route’ is stopped.
It is widely anticipated that Liz Kendall MP and Jamie Reed MP will be playing a critical rôle in Labour’s response to the Care Bill including its amendments. One cannot wish but to give them full support, as this parliamentary fight is not over by any means.
In a significant step, Jeremy Taylor, Chief Executive of “National Voices” has asked for the Department of Health to withdraw this amendment to the Care Bill. He has copied in fact his letter to Norman Lamb MP and Una O’Brien.
Jeremy’s letter could not be clearer:
We recognise the special and difficult circumstances surrounding trust failure. We do not accept that these conditions justify cutting out patient and public involvement. If anything it is the reverse. Without the input of the citizens affected by the changes, decisions taken in haste are more likely to be wrong and more likely to erode public confidence. The circumstances call for a different model of engagement, not an absence of engagement. National Voices, together with our members, partners and friends, offers to work with the Department and other key system players to help co-produce such a model.
A clear solution for what (now) ‘parliament intends’, especially given that no party won the general election of 2010, is not in sight yet.
Can you divide hospital Trusts into “good” and “bad” hospitals?
Ringfencing or Ring-fencing occurs when a portion of a company’s assets or profits are financially separated without necessarily being operated as a separate entity.
This might be, for example, for regulatory reasons, creating asset protection schemes with respect to financing arrangements, or segregating into separate income streams for taxation purposes.
As an example, Royal Bank of Scotland has said it will not split itself into separate so-called “good” and “bad” banks. RBS will create an internal “bad bank”, ring-fencing £38bn of bad assets – such as loans it does not expect to have repaid. The bank remains 81%-owned by the government following a massive bailout at the height of the financial crisis.
The shares were among the heaviest fallers on the 100 share index in morning trading, falling almost 4% to 353p.
Whilst some people have argued against the validity of the separation between “good banks” and “bad or casino banks”, bad banks might be considered to be those with an excessive amount of risk.
Risk for a hospital could of course be a risk in the clinical setting, or risk in an economic setting (embracing financial risk and business risk.)
A political row has long erupted over the legacy of PFI for the health service as trusts face insolvency.
South London Healthcare, a merger of three hospital trusts, first began having problems spending 14% of its income on repayments to a private finance initiative (PFI).
The government said the financial problems are caused by a PFI scheme signed off under Labour, but Labour said that there are wider financial pressures in the NHS, and PFI also delivered many new hospitals.
Only recently the higher courts have ruled on the legal validity of the reconfigurations at Lewisham, but there are another 20 trusts that have declared themselves financially unsustainable in their current form. The current Care Bill amendment might see a mechanism come into play where NHS Trusts are legally allowed to conduct their reconfigurations.
The component of risk for a hospital which is clinical could in a sense be mitigated against through potentially simple steps.
Various hospitals, many of them busy district generals, have been issued with warnings by the Care Quality Commission after its latest inspections. Each was told it did not have enough staff “to keep people safe and meet their health and welfare needs” — the standard every part of the health service must meet.
Of course some argue that the real discussion is to consider whether the whole budget for the NHS should be ‘ringfenced’.
One traditional strategy for avoiding this discussion, as it is so politically totemic, has been to consider what components of the budget should still remain in scope.
Critics have argued that this has produced, willingly or not, an approach of ‘smoke and mirrors’. How, for example, would an incoming Labour government actually achieve safely combined health and social care funding monies which have come from the NHS and local government funding streams respectively?
Speaking to the Today programme’s Sarah Montague, former Labour health minister Lord Warner gave his view that ‘many elected politicians want to appear to protect the NHS’, but it is time to end the special treatment of the NHS. Warner argues that a 1% increase in “real terms”, to cover rising prices.
The problem with the ring-fence is that it “creates the illusion in the NHS that people don’t have to change the way they deliver services,” he explained.
John Appelby, chief economist of the King’s Fund, said that “pressure in certainly felt by hospitals and staff in the NHS”.
Back to the original issue, it might be possible to ringfence hospitals into ‘good’ and ‘bad’. Whilst the term has been bastardised by the NHS as a justification for closing hospitals in some quarters, part of the rationale for ringfencing has been traditionally to ring-fence liabilities.
For example, when financial entities ‘go bust’, they don’t take the rest of their empire with them.
Now that the privateers have got their way with the market, the public is left with a bundle of ‘economic activities’ comprising the so-called “NHS”.
Cumulatively, the Labour and Conservative Parties have made a mockery of the mantra, “no decision made about me without me.”
What’s best for a person isn’t necessarily what’s best for a hospital
It is pretty clear that the NHS as currently engineered puts Foundation Trusts on an elevated platform. Hospitals, being paid on the basis of activity involved for any one patient, can act for a sink for funding, when the health of any particular person is not easily matched to the aggregate level of activity for that person in a hospital.
The problem with ‘money following the patient‘ is it depends on whether you view it to be a success or failure that more money is spent on you the more ill you become. When a patient is admitted for an acute medical emergency in England, the care pathway can be pretty unambiguous. Most reasonable doctors on hearing about a history of cough, sputum and temperature, for a person with new breathing difficulties, on seeing the appropriate chest x-ray, would embark on a management of pneumonia; depending on the hospital, the course of antibiotics would be pretty standard from i.v. to oral, and the person would end up being discharged.
However, ‘activity based costing‘ and ‘payment by results‘ for hospital totally ignore the health of a person outside hospital. And if a healthcare model is to shift with time to ‘whole person care‘, what happens to a person outside of hospital is going to become increasingly important. If a person is better ‘controlled‘ for diabetes in the community, it is hoped that emergency admissions, such as for the diabetic ketocacidotic coma, can be avoided; or for example if a person is able to monitor their breathing peak flow in the community and notice the warning signs (such as a change in the colour of sputum), an acute exacerbation of chronic obstructive pulmonary disease may be headed off at the pass.
Medicine is not an exact art or science, and the approach of ‘payment-by-results’, of a managerial accounting approach of activity-based costing, is at total odds to how decisions are actually made. Even in complex economics, within the last decade or so, the idea of “bounded rationality” has conceded that in decision-making, rationality of individuals is limited by the information they have, the cognitive limitations of their minds, and the finite amount of time they have to make a decision. Many ‘decision makers’ are not in fact perfectly rational, and it is likely that even the best doctors will differ in exact details for management of a patient in hospital for any given set of circumstances.
In health care, value is defined as the patient health outcomes achieved per pound spent. Value should be the pre-eminent goal in the health care system, because it is what ultimately matters for patients. Value encompasses many of the other goals already embraced in health care, such as quality, safety, patient centeredness, and cost containment, and integrates them.
However, despite the overarching significance of value in health care, it has not been the central focus.
The failures to adopt value as the central goal in health care and to measure value are arguably the most serious failures of the medical community.
Health care delivery involves numerous organisational units, ranging from hospitals, to departments and divisions, to physicians’ practices, to units providing single services. The fundamental failing has been not to acknowledge how all these units interact in the “patient journey”.
In health care, needs for specialty care are determined by the patient’s medical condition. A medical condition is an interrelated set of patient medical circumstances — such as breast cancer, diabetes, inflammatory bowel disease, asthma, or congestive heart failure — that is best addressed in an integrated way. Therefore, a patient can be ‘plugged into the system’, as Mr X attending the specialist cystic fibrosis clinic at a local hospital. However, it is equally true to say that there are many patients with many different conditions, which interact either in disease process or treatment. And there are people who may later develop a medical illness who are perfectly well at any one ti,e.
For primary and preventive care, value could be measured for defined patient groups with similar needs. Patient populations requiring different bundles of primary and preventive care services might include, for example, healthy children, healthy adults, patients with a single chronic disease, frail elderly people, and patients with multiple chronic conditions. Each patient group has unique needs and requires inherently different primary care services which are best delivered by different teams, and potentially in different settings and facilities. However, life is clearly not so simple, and the beauty about the National Health Service is that it does not consider a person as the sum of his individual insurance packages.
Care for a medical condition (or a patient population) usually involves multiple specialties and numerous interventions. The most important thing here is that value for the patient is created not by any one particular intervention or specialty, but by the combined efforts of all of them. (he specialties involved in care for a medical condition may vary among patient populations. Rather than “focused factories” concentrating on narrow sets of interventions, we need integrated practice units accountable for the total care for a medical condition and its complications. To give as an example, optimal glucose control for diabetes in the community could possibly mean fewer referrals to the specialist eye clinic for the condition of diabetic retinopathy, an eye manifestation of diabetes, or to the vascular surgeon for a gangrenous toe requiring amputation.
A major barrier to delivering this care will be a fragmented, outsourced or privatised, NHS. In care for a medical condition, then, value for the patient is created by providers’ combined efforts over the full cycle of care — not at any one point in time or in a short episode of care. The only way to accurately measure value, then, is to track individual patient outcomes and costs longitudinally over the full care cycle. And this will be difficult the more care providers there are for any one patient.
Although outcomes and costs should be measured for the care of each medical condition or primary care patient population, current organisational structure and information systems make it challenging to measure (and deliver) value. Thus, most providers fail to do so. Providers tend to measure only the portion of an intervention or care cycle that they directly control or what is easily measured, rather than what matters for outcomes. For example, current measures often cover a single department (too narrow to be relevant to patients) or outcomes for a hospital as a whole, such as infection rates (too broad to be relevant to patients). Or providers measure what is billed, even though current reimbursement is for individual services or short episodes.
A way to get round this problem is to consider “indicators” which are are biological measures in patients that are predictors of outcomes, such as glycated hemoglobin levels (“HBA1c”) measuring blood-sugar control in patients with diabetes. Indicators can be highly correlated with actual outcomes over time, such as the incidence of acute episodes and complications. A HbA1c can be a good indicator of the compliance of an individual with diabetes with his or her medication or diet.
Indicators also have the advantage of being measurable earlier and potentially more easily than actual outcomes, which may be revealed only over time.
This is where over-focus on the wrong measure can be unhelpful. The launch of the ‘friends and family test’, which has seen an explosion of innovative technologies being sold to NHS Foundation Trusts over all the land, may be an important means of ensuring patient safety. Or it may not. We don’t know, as the data on this doesn’t exist.
However, patient satisfaction has multiple meanings in value measurement, with greatly different significance for value. It can refer to satisfaction with care processes. This is the focus of most patient surveys, which cover hospitality, amenities, friendliness, and other aspects of the service experience. Though the service experience can be important to good outcomes, it is not itself a health outcome. The risk of such an approach is that focusing measurement solely on friendliness, convenience, and amenities, rather than outcomes, can distract providers and patients from value improvement.
Value measurement in health care today in the English NHS is rather limited, and highly imperfect. Most physicians lack critical information such as their own rates of hospital readmissions, or data on when their patients returned to work. Not only is outcome data lacking, but understanding of the true costs of care is virtually absent. Most physicians do not know the full costs of caring for their patients — the information needed for real efficiency improvement.
In the recent target-driven culture of the English NHS, senior physicians are well aware of how length-of-stay has been gamed so there has been a ‘quick in and quick out’ mentality, seeing readmission rates for certain patients with cardiovascular or cerebrovascular disease sky-high.
At worst, what could have been a properly managed non-ST-elevation acute coronary syndrome ultimately ends up being a full-blown heart attack. Or what could have been a minor transient ischaemic attack ends up being a full-blown haemorrhagic stroke, causing a patient to be in a wheelchair and numerous healthcare teams looking after him or her.
Today, measurement focuses overwhelmingly on care processes. Processes are sometimes confused or confounded not only with outcomes, but with structural measures as well. Radiologists focus on the accuracy of reading a scan, for example, rather than whether the scan contributed to better outcomes or efficiency in subsequent care. Cancer specialists are trained to focus solely on survival rates, overlooking crucial functional measures in which major improvements vital to the patient are possible.
Cost is among the most pressing issues in health care, and serious efforts to control costs have been under way for decades. At one level, there are endless cost data at all levels of the system. However, as an ongoing project with Robert Kaplan makes clear, we actually know very little about cost from the perspective of examining the value delivered for patients.
Understanding of cost in health care delivery suffers from two major problems. The first is a cost-aggregation problem. Today, health care organisations measure and accumulate costs for departments, physician specialties, discrete service areas, and line items (e.g. supplies or drugs). As with outcome measurement, this practice reflects the way that care delivery is currently organised and billed for. Today each unit or department is typically seen as a separate revenue or cost centre. Proper cost measurement is challenging because of the fragmentation of entities involved in care.
To understand costs properly, they must be aggregated around the patient rather than for discrete services, just as is the case with outcomes. It is the total costs of providing care for the patient’s medical condition (or bundle of primary and preventive care services), not the cost of any individual service or intervention, that matters for value. If all the costs involved in a patient’s care for a medical condition — inpatient, outpatient, rehabilitation, physiotherapy, dietician, occupational therapy, diagnostic services, pharmacy, physician services, equipment, facilities — are brought together, it is then finally possible to compare the costs with the outcomes achieved.
Proper cost aggregation around the patient will allow us to distinguish charges and costs, understand the components of cost, and reveal the sources of cost differences.
Today, most physicians and provider organisations do not even know the total cost of caring for a particular patient or group of patients over the full cycle of care. There has been no reason to know, and Doctors resent turning their profession of medicine into one of bean-counting.
In aggregating costs around patients and medical conditions, we quickly arrive at the second problem: “the cost-allocation problem“. Many, even most, of the costs of health care delivery are shared costs, involving shared resources such as physicians, staff, facilities, equipment, and overhead functions involved in care for multiple patients. Even costs that are directly attributable to a patient, such as drugs or supplies, often involve shared resources, such as units involved in inventory management, handling, and set-up (e.g., the pharmacy). Today, these costs are normally calculated as the average cost over all patients for an intervention or department, such as an hourly charge for the operating room. However, individual patients with different conditions and circumstances can utilize the capacity of such shared resources quite differently.
The NHS in England has latterly become obsessed by its “funding gap”. Much health care is delivered in over-resourced facilities. Routine care, for example, is delivered in expensive hospital settings. Expensive space and equipment is underutilised, because facilities are often idle and much equipment is present but rarely used. Skilled physicians and staff spend much of their time on activities that do not make good use of their expertise and training. It is not uncommon for junior doctors to end up spending hours in a hospital taking blood, putting in catheters, or putting in venflons.
It is likely that ‘payment-by-results’ will at some stage have to go. Reimbursement should cover a period that matches the care cycle. For chronic conditions, bundled payments should cover total care for extended periods of a year or more. Aligning reimbursement with value in this way rewards providers for efficiency in achieving good outcomes while creating accountability for substandard care.
Improvements in outcomes and cost measurement will greatly ease the shift to bundled reimbursement and produce a major benefit in terms of value improvement. Current organisational structures, practice standards, and reimbursement create obstacles to value measurement, but there are promising efforts under way to overcome them.
The “payment-by-results” model is a complete anethema to how decisions are made in the real world. Prospect theory is a behavioral economic theory that describes the way people choose between probabilistic alternatives that involve risk, where the probabilities of outcomes are known. The theory states that people make decisions based on the potential value of losses and gains rather than the final outcome, and that people evaluate these losses and gains using certain heuristics. The model is descriptive: it tries to model real-life choices, rather than optimal decisions. The theory was developed by Daniel Kahneman, a professor at Princeton University’s Department of Psychology, who won the Nobel Prize for economics in 2002.
It is a pity that the payment-by-results ideology has been so overwhelming, perhaps powerfully pushed for by the accountants and management consultants wishing to drive ‘efficiency’ in the NHS, taking the media with them on this escapade. However, it is poorly aligned to how healthcare, psychiatric care and social care professionals make decisions in the real world.
Critics will correctly argue that value is notoriously difficult to measure, and might be virtually impossible to measure across a ‘care cycle’. Indeed the original criticism of the Kaplan and Cooper (1992) account of ‘activity based costing’ warned against organisations allocating excessive resources to collecting information which they are then able to make use of properly.
We are quickly coming to an age where it is going to be a ‘good outcome’ to keep a frail patient out of hospital through high quality care in the community through integrated teams. By that stage, the ideological shift from cost to value will have needed to have taken place, and funding models will have to reflect more the drive towards value and ultimate clinical outcome.
The Health and Social Care (2012) was not about patient safety: implications for the Keogh report
The Health and the Social Care Act (2012) is a massive tome. It actually reads, for lawyers who are well acquainted with such statutory instruments, like a huge patchwork quilt of commercial and corporate law strands. While voluminous, at 473 pages, it has two critical clauses. The first is section 75, and its concomitant now famous Regulations, which provides the statutory basis for procurement contracts in the NHS to be put up for price competitive tendering as the default option, thus fixing the NHS in a competitive market of an economic activity. This is of course the mechanism for outsourcing NHS services into the private sector, and indeed the vast majority of contracts have now been won by the private sector. This was widely predicted, as the private sector have skills and resources to make slicker bids, irrespective of the bid they ultimately deliver, to transfer a much higher proportion of “NHS services” into the profit-making private sector. All of this costs the NHS more money sadly, as while it may not matter to you ‘who provides your services’, you’re in trouble if the private provider goes bust, and you’re not paying for anything at anywhere near cost-price because of the mark-up for profit. This section 75 clause acts in tandem with section 164(1)(2A) which allows any NHS hospital to receive up to 50% of its income from private sources. Thus the Act, and the £2.4 NHS “reforms”, have been a bonanza for the private sector, and disastrous from the perspective of a state-provider of universal, comprehensive healthcare.
Patient safety is in fact only mentioned once in the Act, in clause 281. That is in reference to the abolition of the National Patient Safety Agency. The National Reporting and Learning System which was hosted by NPSA has a two year stint at Imperial College Hospital NHS Trust, while a tender process is scoped and developed by the Board. NPSA’s responsibilities concerning patient safety will transfer to the NHS England.
The Health and Social Care Act 2012 (c. 7) is an Act of the Parliament of the United Kingdom. It is the most extensive reorganisation of the structure of the National Health Service in England to date. It proposes to abolish NHS primary care trusts (PCTs) and Strategic Health Authorities (SHAs). The Act’s proposals were not discussed during the 2010 general election campaign and were not contained in the 20 May 2010 Conservative – Liberal Democrat coalition agreement, which declared an intention to “stop the top-down reorganisations of the NHS that have got in the way of patient care”. However, within two months a white paper outlined what the Daily Telegraph called the “biggest revolution in the NHS since its foundation”. The white paper, Equity and Excellence: Liberating the NHS, was followed in December 2010 by an implementation plan in the form of Liberating the NHS: legislative framework and next steps. The bill was introduced into the House of Commons on 19 January 2011, and received its second reading, a vote to approve the general principles of the Bill, by 321-235, a majority of 86, on 31 January 2011.
The British Medical Association opposed the bill, and held its first emergency meeting in 19 years, which asked the government to withdraw the bill and reconsider the reforms. A later motion of no confidence in Lansley by attendees at the Royal College of Nursing Conference in 2011, however, succeeded, with 96% voting in favour of the motion. Nurses have consistently been opposed to the the “efficiency savings” measures being undertaken across the NHS, with many raising concerns of their material impact on frontline medical services. “People will die”, Richard Horton, editor of The Lancet, warned in March 2012, as he predicted “unprecedented chaos” as a result of the reforms, with a leaked draft risk-assessment showing that emergencies would be less well managed and the increased use of the private sector would drive up costs.
The Bill is now Law, and where are the measures to deal with this longrunning problem of patient safety, particularly in the acute setting? There are none. The media was sent into overdrive in portraying the NHS has a “death machine”, despite the best attempts of nurses and Doctors to run the service under difficult conditions. The publication of the damning Keogh Report (“Report”), which spelt out the failings of 14 hospital trusts which did not quote “13,000 “needless deaths” since 2005″, is despite exhaustive pre-briefing to the media. The Report depicts a situation in certain trusts where patient safety is poor, with no reference to what action has been taken by the Government and their civil service to remedy this since the General Election in May 2010, which the Conservatives lost. Sir Bruce Keogh, the NHS’s Medical Director, will describe how each hospital let its patients down through poor care, medical errors and failures in management, but the Report is as if the clinical regulatory bodies do not exist, the General Medical Council, the Nursing and Midwifery Council and the Care Quality Commission. How they have escaped blame for this reported ‘scandal’ is incredible, although one suspects the media will catch up with them eventually. It might be that the media for whatever reason known to them do not feel the clinical regulators are in “the firing line”, despite being supposed to be responsible for patient safety, in the same way that lawyers are not responsible for the global financial crisis despite being supposed to regulated on the safety of financial instruments.
From a management point of view, the Keogh Report serves a function for convincing the public of a need to take patient safety extremely seriously. However, to sell the Keogh Report as “Do you now see the need for the NHS reforms?” maybe hitting a target but missing a crucial point. The NHS reforms are all to do with outsourcing and eventual privatisation of the NHS. They are nothing to do with patient safety, as even right-wing think tanks and their spokesmen have previously conceded in public. In fact, it is worse than that. The £2.4 reorganisation which nobody voted for, but which private healthcare companies extensively lobbied for, was a reckless missed opportunity to put resources into something other than frontline care, and the opportunity cost of this piece of legislation will continue to haunt the general public for many years. Unfortunately, the media and the members of the Establishment, some members of which have tenuous links with the institutional shareholders in private healthcare companies, will be more than aware of this hard fact. The Conservatives are desperate to pin every conceivable woe of the NHS on Andy Burnham, and every interview which Burnham now does must feel like “Groundhog Day” for him. He has nothing much more in his defense. Meanwhile, the Conservatives are exasperated that they have been unable to get the Burnham scalp, but there are as yet unresolved issues about what Government departments have done about NHS complaints in the last three years since May 2010. The bottom line is that the Health and Social Care Act is nothing to do with patient safety: even safety campaigners in the NHS know this, and they know of the even worse battle now facing them, of a fragmented privatised NHS which is even harder to regulate from that point of view. The NHS reforms, and more specifically the Health and Social Care Act which underpins them, have nothing to do with patient safety. More disturbingly, the Keogh report, when eventually published, will not stop ‘another Francis’, and it is entirely the Government’s fault we are in this stupid ridiculous position.
To turn the CQC into a “NHS disaster” story is for some hitting a target but totally 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.