Comments - Page 7
In June 2015 I reported 5 cases of avoidable child death and severe harm covered up at an NHS hospital to NHS Improvement under its external whistleblowing policy. I sent all the cases to CQC. Over the next year, as their "investigations" ground on, I had a growing sense that neither regulator was genuinely interested. In the event both told me that these were "historic" cases which had been investigated by the Trust. In any case neither they nor any body they knew of had the power or duty to investigate the cases I reported. They identified this as a regulatory gap or "lacuna" even claiming that I had discovered it. I met the CQC inspectors and the NHSI Medical Director who could not have shown less interest. It appears that once an NHS Trust has "investigated" a death, even if there is a cover-up" the regulators are powerless to do anything about it. In my experience the regulators are as much to blame for the deny delay defend response to complaints of serious medical harm as the trusts. PACAC has recommended a Hillsborough style inquiry into historic cases and now we have firm evidence of widespread failure in the NHS investigatory process it is time for such an inquiry to be commissioned.
In December 2014, 2 weeks after this legislation was introduced, I arranged a TC between Mike Richards and other CQC staff and several NHS whistleblowers. Sir Robert Francis had told us personally that FPPR would be a legal mechanism for holding CEOs to account for victimising whistleblowers. He reiterated this in his Freedom to Speak Up Report. Earlier he had even suggested that the suppression of whistleblowers should be either a criminal or at least a sacking offence. Sir Mike certainly never let on to us that it was to be the toothless instrument it clearly is.
The role of CQC appears to be nothing but another tick box exercise against a board's assurance. The case of the St Georges CEO is instructive. We presented evidence including a tribunal judgement of whistleblower victimisation and breach of the managerial code. CQC ignored this and signed off St George's approval of her appointment. That CEO's departure coincided with the news that she was due in court on fraud charges.
Evidence, including vindication in a tribunal, has been ignored as in the cases of Sharmila Chowdhury and Kevin Beatt. Serial victimisation of whistleblowers by one CEO highlighted in the national press only this weekend has been ignored. In the cases of the 3 CEOs I reported under regulation 5 I have found the legislation, at least as administered by CQC, to be stacked in favour of the director I have reported.
There is much talk in the NHS currently of a Just culture. If there is no way of holding to account directors who supress staff raising concerns thereby putting patients at risk there can be no Just culture. And no learning. And no hope for whistleblowers.
I met Jeremy Hunt with Simon Stevens in June 2014 with 6 other senior NHS whistleblowers. Hunt commissioned Francis to lead the Freedom to Speak Up Review. We had a series of meeting with Francis and submitted our experiences to his panel. He recognised our accounts he said from his work in a culture of fear at Mid Staffs. Since he had already made public his view that there should be criminal sanctions for CEOs who obstructed whistleblowers we were heartened.
On 11 February 2015 Hunt told HoC that Francis had reported to him:
"horrific stories of people’s lives being destroyed—people losing their jobs, being financially ruined, being brought to the brink of suicide and with family lives shattered—because they had tried to do the right thing for patients. Eminent and respected clinicians had their reputations maligned. There are stories of fear, bullying, ostracisation and marginalisation, as well as psychological and physical harm. There are reports of a culture of “delay, defend and deny”, with “prolonged rants” directed at people branded “snitches, troublemakers and backstabbers”, who were then blacklisted from future employment in the NHS as the system closed ranks."
In the event however Francis shrunk back from any sanction against victimising senior managers and asked for regulation 5, the Fit and Proper Person Requirement to be allowed time to be tested. Not a single whistleblower had any faith in this statute especially when it became clear that it would be administered by CQC, an organisation with a poor record in this area.
It comes as no surprise that Francis has now lost faith in FPPR. In the hands of CQC it has achieved nothing. Staff continue to be reluctant to raise concerns, senior managers continue to be unaccountable under the statute and consequently, as Francis seems to realise, and patient safety is still at risk. The Department of Health considers FPPR is better than nothing but is otherwise unwilling to comment. Presumably this level of complacency explains why Francis watered down his original quite radical views in favour of what we all knew was a non-solution. In response to a recommendation in the 2001 Kennedy report DoH agreed to secure a safe reporting culture for the NHS. In supporting FPPR it is actively obstructing this. Professional regulation of NHS managers is essential.
This is a singularly important occurrence in the NHS: no stone left unturned to expose the truth and a degree at least of reconciliation between a bereaved father and one of those he holds partly responsible for failures leading to his son's death.
James is one of the good guys. He has worked hard for this result. His persistence and attention to detail, friendships with people in high places (Jeremy Hunt, David Behan, Sir Robert Francis), a high media profile etc. will all have contributed to his success. He has positioned himself in a way no other has to obtain truth and reconciliation. The arrival on the scene of a CEO who seems to think differently to many about learning in a just culture was also essential.
All the more reason why the little people with no inside knowledge, no friends in high places, who are unknown to the public via the press, TV, radio etc. should receive equitable treatment. They too have suffered years of delayed grieving and re-traumatisation but with no end or hope of an end in sight.
Well done James, everyone will celebrate your achievement. Now is the time for the many others to be helped as recommended by HSIB EAG and supported by PACAC. You have proved that even after many years where there is a will there is a way. You have the ear of Jeremy Hunt, Sir Robert Francis, David Behan etc. They have the power to ensure we have a full TRC for NHS complainants.
The loss of a child is perhaps the most painful experience anyone (or two) can experience. Here is yet another example of this being compounded by a system that rather than admit its failings goes into delay, deny, defend mode. It is remarkable that the review panel and NHS England are so immediately on the defensive while the Trust gives a muted apology with no explanation.
Surely it is essential for everyone to admit that these parents have been given the run-around for 4 years and then, in a transparent process, involving organisational psychologists, try to understand how this happened. Following his earlier Bristol inquiry Sir Ian Kennedy said "It wasn't that no-body knew (what was happening), it was that everybody knew". It is essential to understand the psychology of what Sean's (and other parents?) must have increasingly understood, that no-one wanted to admit (to themselves or others) the extent to which they had failed this family.
The whole story begs the question of where we draw the line of error (or errors) and culpable wrongdoing. This is a good opportunity to explore that question. No-one is currently in a position to prejudge that.
An interesting and informative case. Those who have brought this to public attention are to be thanked. What we do not know is how much public money is being wasted and more important how much wrongdoing is not being investigated NHS wide.
It will not be lost on the NHS whistleblowing community that there is a mirror image phenomenon when Trusts seek to get rid of staff who have (as Robert Francis reported it) "tried to do their best for their patients". Good professionals (who supposedly bear gold-dust) are lost to the service, wrongdoing goes unaddressed and lessons go unlearned.
Both types of deal are covered by compromise agreements and both parties for their own reasons are prepared to move on. This is dressed up by senior management as expediency in an employment matter when in fact it is so much more. Current willingness to by-pass good governance and shroud the matter in secrecy cannot be good for patients, professionals or the NHS.
Well done Jackie Daniel and Shaun Lintern.
"First, the Secretary of State does not purport to exercise any statutory power that he may have to compel employers within the NHS to introduce the proposed terms and conditions.
"Second, he acknowledges, therefore, that in principle individual employers are free to negotiate different terms with employees.
"Third, he considers that the scope for individual negotiation may be limited because he has achieved consensus with the employers that the proposed new terms and conditions represent a fair and workable basis upon which to proceed to introduce a consistent, nationwide contract.
"Fourth, the Secretary of State reserves the right, should problems arise in relation to implementation, to consider the exercise of such statutory powers of compulsion as he has in order to achieve a consistent and uniform introduction of terms across the NHS."
Not being a lawyer I read this as (I stand to be corrected):
Hunt is not imposing the contract. Employers are free to negotiate. That freedom is (very) limited. If it doesn't work out he will impose the contract and presumably the IA will restart. Return to Go. Pay £X00K
This shows the impossibility of forcing a contract on a professional group when they say it serves neither patients nor professionals. It is lose-lose and should never have come to law.
Shaun Lintern and HSJ are to be applauded for exposing this wrong. The importance of their achievement is not to be underestimated. PHSO is the last port of call for complainants dissatisfied with their own or their relative’s NHS care. Apart from the financial risk of Judicial Review PHSO is the only mechanism for professionals complaining about failures by CQC, NHSI etc. In the past, all too often, PHSO has failed these groups. There is a widespread belief that PHSO in its judgements exhibits bias toward provider organisations. I understand (but am willing to be corrected) that no complaint against CQC has ever been upheld. In exposing the indefensible appointment of Mr Martin and the sloppy, unprofessional behaviour of the Ombudsman following receipt of Helen Mark's letter Shaun has given impetus to the much needed reform of PHSO. The NHS will be a better place when we have an organisation that acts competently and fairly in dealing with complaints that no-one else has been able to resolve.
I urge anyone who has not already done so to watch David Fenton's excellent BBC documentary "Broken Trust" (I will not have to explain the word play to HSJ readers) still available on BBC iPlayer http://www.bbc.co.uk/iplayer/episode/b07w6ww7/broken-trust
Also the comments on the Twitter hashtag #BrokenTrust including comments from affected families, Southern Health employees and informed members of the public are instructive. Many avoidable deaths of vulnerable patients. Warnings of patient risk ignored. Poor or no investigation of deaths. Lessons not learned. Lessons not learned. Lessons not learned. No accountability. Failure rewarded. Whistleblowers despatched.
Simon Stevens is right to say that "at Southern Health, patients and families have been let down and public confidence undermined." That begs the question as to what he or any other NHS leader is going to do to restore public confidence.
Jeremy Hunt wants the safest, most transparent health service in the world but politicians and NHS leaders alike are apparently prepared to tolerate this scandal. Is this learned helplessness, diffused responsibility (no-one is responsible) or simply a subliminal wish that it will all go away if ignored?
A week ago I sent an opinion piece to HSJ titled "UK law fails to protect whistleblowers" It compared the recommendations of a new international study with the sadly deficient ones in the Francis Freedom to Speak Up review. Sadly I have heard no more of it. In summary:
UK law designed to protect whistleblowers from retaliation in the workplace is inadequate.
PIDA does not meet most international standards
New report recommends wide ranging legal changes in the public interest.
Francis Freedom to Speak Up protections look weak in comparison
No doctor, junior or otherwise, is safe when raising concerns under the present law for reasons this new study makes clear. The strategies for dealing with whistleblowers driving cases through suspension, disciplinary procedures and then dismissal by employment law under reason 6 are intact. HEE do not seem to think that the withdrawal of Dr Chris Day's NTN was related to his whistleblowing. Why will they not restore his training status and admit they got this wrong?
Dear Shaun, you express surprise at:
"the genuine desire (among NHS staff) to conform, combined with a fear of being ostracised by the tribe."
I am surprised that you are surprised having seen what you have seen. This is at the heart of the NHS culture of fear. As the consultant told the Midstaffs PI when asked why he had not blown the whistle, "I have a mortgage to pay". Advancement, jobs, careers, family finances, health, happiness, all are put at risk by incurring the displeasure of peers or the hierarchy. There is a spectrum of effect from pure self-interest to survival. Real solutions depend on a fundamental understanding of this culture. I am not convinced that NHS leaders (including CQC) or our politicians have shown a genuine interest in this as yet. It might make their own power-bases vulnerable as most of this culture has its origins at the top.
"where the circumstances merit, a separate process should be carried out to review these aspects (individual actions)." James at 7:20
First time I have heard this so perhaps a bit off script? So, in some situations 2 investigations. One on the HSIB model with safe space and for learning. The other? Locally determined? Purpose? Accountability (aka Blame)? The latter will provide the opportunity for reason shopping. Which comes first? How do they relate? What if they come to different conclusions? Is this your own idea Jim or supported by others? Just asking.
It is unlikely that we will have a "just culture" in the NHS in our lifetimes. There are simply too many competing interests; defence of personal and organisational reputations, weak and insecure leadership, borderline personality disorders, passive aggressive stance to those who raise concerns about patient safety. A just culture as described by James is essential to safe patient care and unjust cultures underlie many of the NHS scandals of our time.
Last year Sir Robert Francis described the horrific victimisation of good professionals by senior NHS managers "simply because they tried to do their best for patients". Not one of those many professionals has received any help from the NHS. Not one of the victimising managers has been held to account in any way by CQC which has been given the job of administering the Fit and Proper Person Requirement. Francis and Hunt missed an opportunity to address an unjust culture, introduce measures to ensure a safe reporting culture and promote safe care. Instead we have half-hearted measures which Hunt has admitted might change culture over the next 10 to 20 years.
Much of the confusion in this discussion is caused by the gap between aspiration and reality in NHS cultures. We cannot generalise; some are much worse than others. The gap is sometimes so wide that as insider commenters here suggest the idea of bridging it provokes a wry smile.
Sadly, I detect, once again, a whiff of do as we say not as we do by CQC.
In 2015, well after the statutory organisational duty of candour became law, I made a detailed submission to CQC that they investigate an NHS Trust under this statute for lack of candour over the possibly avoidable death of a baby. The Head of Hospital Inspections promised an investigation. He promised a detailed written account of the outcome. I subsequently discovered that the CQC "investigation" was a process investigation and had not even involved speaking to the parents. Whose opinion is more important than the parents I asked CQC? The written response was "In respect of guidance for inspectors. There is detailed guidance, but nothing specific about relatives or carers (parents in this case)."
In fact CQC have failed to share anything about their "investigation" of a reported possible regulation 20 breach. Their apparent lack of diligence and complete lack of transparency could be interpreted as a reluctance to ensure that this statute is used ensure learning and protect patients.
I have written to Sir Mike Richards, the "Whistleblower-in Chief", for clarification on this but he has not replied.
Hard to understand why anyone would want this job. It is a sop to the large number of NHS staff who reported victimisation after they raised concerns of poor care, patient harm, wrongdoing etc. to Francis in 2014. His report made it clear that things were so bad that something had to be done and so, 18 months down the road, this is something. I have not met a whistleblower who thinks this role has any chance of protecting staff or changing culture. Open culture Trusts will not need a local guardian; it will be an unnecessary expense. In closed culture Trusts the local guardian, answerable to the CEO, will not have a chance of altering the fate of a whistleblower. Even if the local guardian passes a case up the line to the National Guardian there is no mandate for in-depth investigation (which the Trust solicitor would interpret as interference in an "employment dispute") and no powers to intervene to protect. This is a bulldog with no teeth with respect to the new incumbent.
No, Francis had it right the first time when he told the Health Committee that the best way to fix this patient-endangering, whistleblower-victimising culture would be to dismiss any NHS CEO found suppressing a whistleblower. Sacking is the right strategy. Suppressing a whistleblower is specifically against the interests of patents, professionals and the public at large. Clinical staff are under a professional obligation to report poor/unsafe care. When they do so it has often been a career ending action. That has been as a powerful deterrent to staff speaking up. The security of knowing that CEOs who victimise them are under threat would provide protection and quite rapidly change this culture. Even better would be a statutory individual duty of candour (Robbie's Law) but it seems we are a long way from that.
CQC is quite familiar with fully evidenced reports under the Fit and Proper Person Requirement of CEOs who have supressed whistleblowers and continue to do so. They have done nothing. Ironic then that the National Guardian sits with CQC.
There has been a widespread recognition of board weakness, poor governance and what sometimes amounts to wilful blindness in NHS failings that have been at the back of poor patient care.
The huge dissonance between the statement on behalf of the PHSO non-executive directors by Sir Jon Shortridge and the story as told by Shaun Lintern over some months is telling. It at least suggests that the NEDs may not have had the insight they should into what was happening in their organisation. Again, this is a great opportunity to learn why that is so. Another thing to look out for in Sir Alex's report.
No need to reiterate anything from this excellent article. It demonstrates the power of careful objective journalism. But the story is not yet fully told.
The PHSO bills itself as the organisation that "looks into complaints where an individual believes there has been an injustice...". In recent times it has been led by Dame Julie who ignored information about a glaring (and extensively evidenced) injustice in which the person she had helped appoint, Mick Martin, had been fully complicit. How can anyone go to PHSO looking for justice knowing that?
Good to hear Dame Julie has acted swiftly to ensure this never happens again. Can I suggest that this is an important opportunity to learn why senior figures so often side with their own colleagues against lesser mortals who report injustice? It is often labelled “cronyism. This question was at the heart of the Francis Freedom to Speak Up Review but because Sir Robert refused to look at it from the perspective of organisational psychology and cognitive bias he gave no answer. Exactly why does a very senior, intelligent and experienced person like Dame Julie turn a deaf ear to a person with evidence of the gross injustice that Helen Marks presented? I refuse to believe it is because she is a wicked person which some will conclude. But unless we have a proper analysis of her thinking (to her it was simply a mistake) we will learn nothing and the problem will persist. It is also by the way at the heart of the criticism of NHS disciplinary proceedings (“Kangaroo courts”) covered in HSJ last week.
It is possible that Sir Alex Allen's report will help. We live in hope.
Finally there is the vexed question of the many people who, in recent years, have complained to PHSO and feel they too have been denied justice. Will there be a review of their cases on fresh appeal?
If a doctor nurse or midwife faced the allegations of incompetence this CEO does they would be referred to their regulator and most likely face a fitness to practice panel. There is no such regulatory safeguard for NHS managers. Her board has to approve her as a Fit and Proper Person to hold her post. Which of course they do. CQC are happy if the board is happy.
One response to the published "Statement on behalf of patients and relatives of Southern Health #Justicefor LB" (this group probably has no access to HSJ Comments) speaks volumes:
30th June 2016 at 11:23 am
I’ve struggled to find a compassionate way of expressing how I imagine many people will be feeling – including many good and committed staff – about Southern Health’s inability to hold its management to account. All I can manage is that an organisation that enables, and then accepts, such treatment of the most vulnerable adults in the country, is not one that should be part of the National Health Service.
It is important that we distinguish the use of internal NHS disciplinary procedures in cases of misconduct and lack of competence and staff who find themselves on the wrong side of management as a result of raising concerns. I mean those who make protected disclosures or claim to. The Francis Freedom to Speak Up Report showed the latter is widespread and acts as a deterrent to creating the safe reporting culture which Jeremy Hunt espouses.
The Health Select Committee is well acquainted with the problems staff who raise concerns encounter when they face disciplinary procedures. In September 2013 in their report “After Francis; Making a difference”, in section 3: Raising concerns and resolving disputes:
Disciplinary procedures, professional standards hearings and employment tribunals are not appropriate forums for constructive airings of honestly-held concerns about patient safety and care quality.
Three years on and this recommendation has got lost in the post somewhere between HSC and the Department of Health. Senior Clinicians and others are still being dismissed and blacklisted after raising concerns.
The Health Committee clearly understands the conflict of interest in allowing Trusts to be judge and jury over staff who they want to dismiss. In the Times article about Amina Abdullah, the excellent nurse who died by self-immolation after his disciplinary hearing, lawyer Aprita Dutt speaks of “the vindictive behaviour of NHS managers in disciplinary cases.” That is something many of us reported to Sir Robert Francis in his F2SU review. Sir Robert was loathe to recommend any further investigation of that. I applaud Professor Kapur for suggesting that the only way we are ever going to get to the truth of this matter is an independent review, preferably judicial. Certainly CQC who have had evidenced reports (including ET judgements) of CEOs supressing whistleblowers, guilty of nepotism, breaching the NHS Management Code of Conduct are completely unwilling to take any notice of this.
Royles and Kapur agree that current disciplinary procedures are not fit for purpose, are open to misuse and that things have to change. Changes should be evidence based. This requires a proper study of the injustices perpetrated under the present system.
"He (Walsall CEO) said: “We saw a big increase in activity in key departments in a short space of time and we didn’t respond to that well enough as it was happening. I would accept that."
“We have also had a culture in the trust of seeking to soldier on in the face of increasing pressure. If we are going to continue to deliver a service we need to be able to deliver it well, if we can’t we need to say so and set out what we are going to do about it."
“This report is an example of us attempting to tackle that culture.”
Sadly this statement by the Walsall CEO is characteristic of the disingenuity which is now essential to putting a brave face on failure in the NHS. The report is not an example of "us attempting to tackle that culture". Walsall requested the review on the instruction of TDA at a time when it was clear they were going into special measures. Otherwise there would have been no review.
They did not “see a big increase in activity” in maternity as though it was a surprise. The expansion of births from 3,500 to 5,000 was a conscious policy. It resulted in 1500 x maternity tariff accruing annually. It is clear that there was no responsible planning in terms of medical or nurse staffing, support or fabric. The same goes for midwifery numbers as pointed out in the CQC inspectors report. So, it was not a matter of poor response to the expansion of birth numbers but lack of planning for it which was the board’s responsibility.
The board failed, probably in an attempt to contain costs, and as a result, as the report makes clear, allowed the neonatal unit to operate with unsafe staffing levels. It cannot be that the board and senior clinicians failed to recognise this as a serious problem. If the directors had listened to frontline staff (who would have been ready to tell them and perhaps did) they would have understood perfectly well that the situation was unsustainable and unsafe.
It would be so refreshing to hear a CEO admit, "We took on 1500 extra births, didn't plan for or risk-assess them properly and put babies at risk." Until we get that level of candour we should understand that this is all spin to protect what is left of an organisations credibility.
I agree by the way with RCPCH report’s view of frontline staff. They are largely of sterling quality, highly motivated, enthusiastic and compassionate. They are what came between Walsall babies and disaster.