Towards a Fair and Open NHS

Edmund BurkeThe only thing necessary for the triumph of evil is for good men to do nothing

Confucius – If you know what is right, and do not do it, that is the worst form of cowardice

Martin Luther King – Our lives begin to end the day we are silent about the things that matter

Nelson MandelaA fundamental concern for others in our individual and community lives would go a long way in making this world the better place we so passionately dream of


 

The Mid-Staffordshire Independent Inquiry Report of 2010 highlighted a number of flaws in the healthcare system that it examined, including ‘insufficient attention to the maintenance of professional standards’, ‘a lack of external and internal transparency’, and ‘a weak professional voice in management decisions’. The public inquiry of 2013 (Francis Report) highlighted the need for compassion to be at the fore in everything that staff do, whether they be clinicians or managers. The problems uncovered by both inquiries would appear to be present to some degree throughout the NHS, and point to a more fundamental problem of culture. As the closing submission of the lead counsel to the Mid-Staffordshire Public Inquiry (December 2011), noted – ‘The NHS must prioritise patient safety and quality patient care above all else. Quality standards must be accompanied by a culture shift within the NHS’. On a similar theme, Ballant and Campling have noted in their book, Intelligent Kindness, ‘We believe that putting a fraction of the effort that has gone into processes of organising, regulating and industrialising the NHS into developing our understanding of what helps and hinders kindness in its staff would have enormous ramifications for effectiveness and efficiency, as well as for the experience of the patient’ (2011, p. 4).

Three independent, external reports on standards and quality of care in the NHS were commissioned by a UK Health Minister and delivered to the Department of Health in 2008, and also covered related management issues. These reports were prepared by the Joint Commission International (Download JCI Report), the Institute for Healthcare Improvement (Download IHI Report) and the Rand Corporation (Download RAND Report). The report by the Institute for Healthcare Improvement (IHI) talked of ‘gaps and conflicts between managers and clinicians’ and ‘a culture of fear and top-down control’. It also noted that ‘the NHS has developed a widespread culture more of fear and compliance than of learning, innovation and enthusiastic participation in improvement’. A useful summary of all three reports has been prepared by Professor Sir Brian Jarman, Emeritus Professor of Primary Health Care and past-President of the British Medical Association, and is available here – Download Summary of three reports. A related editorial by Professor Jarman in a 2012 issue of the British Medical Journal is also available here – BMJ Editorial.

It is the issue of the relationship between managers and clinicians, which was highlighted in the IHI Report, that is a crucial component of plans to work towards a compassionate culture in the NHS and which is an important part of these proposals.

It has been estimated that suspensions of staff cost the NHS around £40 million per year. In 2003, the National Audit Office raised concerns about such costs and the performance of NHS management (National Audit Office report). In a High Court case in London in 2007 between a doctor and his employing Trust, the judge in question (Justice Stanley Burnton) commented, ‘Whatever the rights and wrongs, given that a hospital’s funds are necessarily limited, and legal costs and clinician’s time are presumably at the expense of medical expenditure and clinical care, it is essential that more expeditious procedures are adopted and followed’.

In 1999, the UK Department of Health noted in a circular, Occasionally it is necessary to suspend a medical practitioner. However, misuse of this power can result in individual injustice and major waste of public money. Recent cases have highlighted that this leads to corrosion of public confidence in the NHS. Sadly, little seems to have changed over the years. In 2012, a UK High Court judge, Mr Justice King, expressed concern about unjustifiable suspension of a doctor. He noted that suspension had three serious consequences (the same of course applies to unfair dismissal) – stopping the doctor earning a living, harming his reputation, and depriving him of the opportunity of demonstrating excellence in conduct and performance.

Between 2004 and April 2012, 92 doctors died who had an open Fitness to Practise case with the General Medical Council, that is around one doctor a month whose death may be directly or indirectly related to the stress of a GMC referral. It is uncertain how many of these cases were suicide, but suicide is a well-documented consequence of doctors finding themselves in occupational distress (Article on suicide in doctors under stress). Many of these 92 doctors were from the ‘Black and Ethnic Minority’ community. One nurse at the Mid-Staffordshire hospital committed suicide after complaining about being bullied at work. The Department of Health needs to carry out a wide ranging fact-finding and listening exercise to hear the concerns of NHS staff, especially those who have been unfairly treated or have suffered miscarriages of justice.

Some NHS Trusts behave as if they are a law unto their own, with institutional self-preservation often taking priority over being honest about failures. It is clear that a ‘hands off’, ‘laissez-faire’ approach is ineffective, unjust and harmful. There therefore needs to be fundamental reform of the current outdated management system in the NHS, a system which is simply not fit for purpose and can result in decisions that are perverse. In some Trusts, there seems to be a policy of ‘Management First’, rather than ‘Patients First’. The NHS spends huge amounts of money on settling disputes and on legal costs, money which could be saved and spent on patient care if a fairer management system was put in place. Where staff are demoralised or feel victimised, this will inevitably make it less likely to achieve better clinical outcomes for patients. It is ironic that a caring profession such as the NHS sometimes does not care properly for its own staff.

A number of commentators have compared the safety culture in aviation with the relative absence of a similar culture in the NHS. Captain Chesley Sullenberger, who safely brought down his plane in an emergency in the Hudson River, New York in January 2009 when it hit a flock of birds, has commented – We have purchased at great cost lessons literally bought with blood that we have to preserve as institutional knowledge and pass on to succeeding generations. We cannot have the moral failure of forgetting those lessons and have to relearn them. These words apply equally to the NHS, and to learning lessons from both clinical and management failures. In an interview with the Civil Service Magazine in 2013, the chief executive of the NHS, Sir David Nicholson, noted – If we use every mistake as a learning opportunity, I think the public will get a better service than they will if every time something goes wrong they want people suspended. In the words of Professor Liam Donaldson, the former Chief Medical Officer in the UK Department of Health – To err is human, to cover up is unforgivable and to fail to learn lessons is inexcusable.

If we fail to act, the costs and damage to the NHS will only escalate. We all have a duty to protect and defend a resource as valuable and as scarce as the NHS, and to ensure that its excellent reputation throughout the world is not tarnished by avoidable scandals.

This reform has to address –

(Scroll down or click on one of the headings in blue)

1. Treatment of whistleblowers & staff well-being
2. Transparency of information relating to performance by an NHS Trust
3. Management attitudes towards clinicians
4. Grievance, dismissal and appeal procedures
5. Accountability and professionalism of managers
6. Clinicians in management roles
7. Practical steps for a better NHS

1. Treatment of whistleblowers & staff well-being

1.1 In 2009, the House of Commons Health Select Committee noted, The NHS remains largely unsupportive of whistleblowing, with many staff fearful about the consequences of going outside official channels to bring unsafe care to light. There should be major reform of how whistleblowing is handled in the NHS – investigation of whistleblowing allegations should always include some independent, external scrutiny. It may be worth looking at how whistleblowing bodies operate elsewhere, such as the National Whistleblowers Center in the USA. Whistleblowing is an important issue, but is fraught with complexities such as what constitutes a genuine whistleblower and how can whistleblowers be redeployed if they find themselves having lost their job. A dedicated body would develop resources to deal with such issues. Such a body could be called the Staff Support Commission, and its remit would be to deal with issues such as whistleblowing concerns that emanate from staff, staff well-being and safety, mediation in NHS disputes and redeployment of whistleblowers who finds themselves out of a job.

1.2 NHS staff who have genuinely raised concerns relating to patient care, staff bullying, etc, and who consider themselves as whistleblowers, should be protected from unfair treatment. Only under the most exceptional of circumstances relating to conduct or performance should they be subject to disciplinary, exclusion or dismissal procedures. In such cases, there needs to be completely independent scrutiny of procedures used. Employers should not be allowed to use the legal cloak of ‘some other substantial reason’ for the dismissal of NHS whistleblowers. Any NHS whistleblowers who have in the past been dismissed for this reason, and who have won a case for unfair dismissal at an employment tribunal, should be offered automatic reinstatement, if that is their wish. Bullying by managers, or by clinicians in management roles, should not be tolerated in the NHS, and in the eyes of many people unfair dismissal and unfair suspension are the worst forms of bullying.

1.3 A key recommendation of a recent report by Ann Clwyd and Tricia Hart into patients’ complaints should be implemented – These concerns relate firstly to securing justice for past whistle-blowers whose careers have been seriously jeopardised and who have suffered financially as a result of drawing attention to malpractice. We urge the Department of Health to undertake the review of such cases with a view to both learning lessons for the future and undertaking restorative justice for those individuals affected.

1.4 Most NHS whistleblowers who leave their employer, and also other unfairly dismissed staff, are sadly treated like ‘lepers’ and find it difficult or impossible to get jobs again in the NHS. This may due to a reluctance to take on ‘a troublemaker’ or may even be due to collusion between managers across differing Trusts to ensure that a sacked employee is ‘blackballed’. Such exclusion from jobs can be disastrous and extremely distressing for individuals and their families, and it represents a form of blatant discrimination and a complete absence of compassion. This form of collusion between managers should be outlawed. Specific measures should be introduced to ensure that whistleblowers or unfairly dismissed staff, or staff unfairly reported to a regulatory body, are not put to any disadvantage – e.g. ‘Referral to a Regulatory Body’ in NHS job application forms should be replaced by ‘Penalised by a Regulatory Body’, with applicants no longer being obliged to have to report a simple referral to a regulatory body.  Employers who refuse to consider for posts staff such as whistleblowers or unfairly dismissed staff for posts should be penalised for behaving in this way.

1.5 Whistleblowers are particularly susceptible to being punished on the basis of a charge of ‘bringing their employer into disrepute’. There should be clear guidelines as to when this charge can be laid, and where it is brought against a genuine whistleblower, it should be subject to external scrutiny.

1.6 Whistleblowers in the NHS are often key to improving patient safety. Consideration should be given to an award scheme to reward genuine whistleblowers who have shown courage and self-sacrifice in raising concerns.

1.7 At the Conservative Party conference in Manchester in 2013, the Health Secretary Jeremy Hunt talked of the Chief Inspector of Hospitals being ‘the nation’s whistleblower’. There is a strong case for having two Chief Inspectors of Hospitals, one for clinical care and one for the effectiveness and fairness of management.

1.8 While it is understandable that patient safety must take priority over other concerns, studies have shown that staff well-being and patient safety are closely intertwined – e.g. the2011 report by Professor Michael West and his colleagues at Lancaster Business School, NHS Staff Management and Health Service Quality. As Professor Rajan Madhok has eloquently pointed out in an article in the Health Service Journal, November 22 2013, there must be recognition of this fact, with greater attention and resources paid to staff well-being. Volume 3 of the Francis Report (p. 1510) referred to the tragic case of Eva Clark, the Mid-Staffordshire nurse who committed suicide in the context of finding herself bullied at work. The Executive Summary of the Francis Report, makes a pertinent point (Findings, 1.94) – It should be recognised that there are cases which are so serious that criminal sanction is required, even where the facts fall short of establishing a charge of individual or corporate manslaughter. The argument that the existence of a criminal sanction inhibits candour and cooperation is not persuasive. Such sanctions have not prevented improvements in other fields of activity. In the case of NHS staff who raised concerns, who were bullied to the extent that they committed suicide, consideration should be given to allow a charge of corporate manslaughter to be brought against the individuals involved.

 

2.  Transparency of information relating to performance by an NHS Trust

2.1  Positive information about Trusts is more readily available than negative information. On Trust websites, there should be much greater transparency and ease of access to information relating to – incidence of bullying, cases referred to regulatory bodies and the expenses incurred, cases of suspension or dismissal and the expenses incurred, compromise agreements and the amounts spent, cases that have gone to employment tribunal and expenses incurred, cases that have gone to the High Court and expenses incurred, litigation/compensation cases and expenses incurred, patient complaints, adverse clinical episodes including ‘Never Events’ (serious, preventable patient safety incidents), etc.

2.2 It can often be difficult for senior officials in the Department of Health to know what is happening on the ground in the NHS. Staff in the Department of Health, and in bodies such as the CQC and Monitor, should be encouraged to spend time working ‘at the clinical coal-face’ and meeting up with NHS staff, especially those who have voiced concerns.

2.3 NHS Trusts sometimes have to provide public apologies for major errors they have made. There should be greater transparency about such apologies, and apologies should feature prominently on their websites.

2.4 Where NHS managers refuse to authorize the release of information under the Freedom of Information Act or the Data Protection Act, there should be completely independent scrutiny to establish that such a refusal was fair and reasonable, and that it was not done to conceal wrongdoing. Where information is released, but parts are redacted, both redacted and non-redacted versions should be available to independent scrutiny, to ensure that redactions were reasonable and did not part form of a ‘cover-up’ of mistakes or wrongdoing.

2.5 The Mid-Staffordshire and other scandals have shown that it is very difficult for health care regulators such as Monitor and the Care Quality Commission to have detailed knowledge of what is happening in a Trust. It would therefore be worth considering whether each Directorate in a Trust, as well as each General Practice, had an ’embedded’ employee who was specifically paid by either or both of these bodies, one day a week, to monitor on their behalf quality of patient care and staff well-being. This person could be called a CQC-Monitor Consultant, and his/her role would include ensuring that professional standards and guidelines were followed by a Trust / General Practice, and alerting the regulatory bodies at an early stage if things appear to be going wrong.

2.6 Hospitals in Britain were once inspected by teams from professional bodies such as Royal Colleges, but these inspections were replaced by those carried out by regulatory bodies. Those inspections by professional bodies should be reinstated or incorporated into inspection teams, since such inspections are more likely to show up failures such as refusal or inability to adhere to professional standards and guidelines. It is possible that retired NHS staff could play an important role in these inspections, and of those by regulatory bodies. Whistleblowers often have unique insights into failures in patient care, and how this can be covered up – each inspection team should contain at least one whistleblower.


3. Management attitudes towards clinicians

3.1 High quality staff are the NHS’s best resource and there is a need to ensure that staff do not leave because of dissatisfaction with management, who currently appear to exercise undue power. Evidence should be gathered on how many NHS staff have left the NHS for other jobs or taken early retirement because of their unhappiness with NHS management, and the reasons should be examined so that lessons can be learned.

3.2 Where clinical staff also have a management role, it should be recognized that their clinical duties must be primary if there is tension between clinical & management requirements.

3.3 There should be clear guidance from the Department of Health with regards to secretive monitoring undertaken by managers in respect of NHS staff – hacking or cloning of computer disks, surreptitious entry to offices of staff, secretive monitoring of electronic communications, opening of mail, monitoring or recording of telephone conversations, secretive surveillance, etc. This is not only in the interests of those who are targeted; it is also in the interests of managers, since some of these actions border on criminal behaviour. In view of the highly sensitive and possibly illegal nature of these actions, the Department of Health should keep a record of cases of secretive and surreptitious monitoring of NHS staff.

3.4 Clinical scientists, nurses and allied health professionals – that is key professionals other than medical doctors – should be accorded greater respect and authority in the NHS than they currently have. In respect of dismissal and appeal hearings, they should have the same rights as doctors.

3.5 Guidelines of professional bodies should be treated with respect by managers, and by doctors in management roles. Wherever possible, such guidelines should be followed in respect of clinical service delivery, teaching and research.

3.6 A healthcare professional should ideally be line managed by someone from the same profession. Only under exceptional circumstances should a clinician be managed by a non-clinical line manager.

4. Grievance, dismissal and appeal procedures

4.1 The Department of Health should provide national guidelines on grievance, dismissal and appeal hearings. At present, Trusts often turn to an ACAS guide, which is a generic document that does not take into account specific needs and issues associated with working in the NHS. There should be a complete revision and updating of relevant Department of Health (DoH) documents, such as Maintaining High Professional Standards in the NHS (2005) and Handling Concerns about the Performance of Healthcare Professionals (2006), and this revision should include detailed consultation with appropriate professional bodies, including the Royal College of Nursing, the British Psychological Society and the Health Care Professions Council. The legal profession has pointed to major limitations in documents such as the 2005 DoH guidelines – see the article by Professor John Hendy, QC PDF File.  The use of such guidelines by Trusts should be clearly stipulated, since there is currently an option for Trusts to bypass parts of the guidelines if they so wish. Some dismissals or suspensions may of course be fair and justifiable for reasons such as major errors that seriously impact on patient care. However, too often they seem to be used for reasons relating to ‘internal politics’, or where someone such as a whistleblower is labelled as ‘a troublemaker’ and he/she is suspended or dismissed for the flimsiest of reasons or is penalised under some general charge of ‘bringing the Trust into disrepute’. Allegations by management of a ‘breakdown in relationships’, or use of the terms ‘dysfunctional’, ‘is not a team-player’, should be treated with suspicion, as they are often used against staff who have repeatedly raised concerns or are otherwise considered to be an irritant. Conscious or unconscious cognitive bias may contribute to punitive action which is wholly disproportionate to the alleged wrongdoing. NHS panels, General Medical Council panels and employment tribunal panels need to be trained and forewarned about the cognitive psychology of legal reasoning, its fallibility and its biases, as is now a requirement in some legal settings in the USA (Fallibility and Bias).

4.2 In the case of NHS dismissal and appeal panels, there should be fair and transparent constitution of such panels, with minimal allowance for conflicts of interest. At present, it is clearly a case of ‘the police investigating the police’, with Trust managers often acting as judge, prosecutor and jury, and the whole procedure resembling a ‘show trial’ – as the judge remarked in the case of Dr Kapur (see Case Stories page). In the case involving John Watkinson (see Case Stories page), the employment tribunal judgment was reported as remarking that the NHS dismissal process that he went through ‘flew in the face of any concept of fairness’, and that in addition the subsequent NHS appeal process ‘was a travesty of anything approaching basic concepts of fairness’. The triple principles of Plurality, Independence and Expertise (PIE principles) need to be enshrined in the constitution of such panels. The three principles were first proposed by Dr Narinder Kapur in April 2013 in an article on applying Gandhian principles to the NHS. These ‘PIE principles’ have since gained support and acceptance as being fair and just. In the case of healthcare professionals, there should be an external chair who is independent of the Trust in question (someone such as an employment law judge); two senior NHS managers from outside the Trust; three individuals from the host Trust; and, depending on the particular case, 2-4 external professionals with recognized expertise in the field of the staff member who is being considered for dismissal.

4.3 All dismissals of NHS staff in the past five years should be urgently reviewed by Trusts, with independent expert input, to decide if there have been instances of a miscarriage of justice. Some dismissals or suspensions may of course be fair and justifiable for reasons such as patient care. However, where suspensions or dismissals are deemed to have been unsatisfactory, appropriate action should be taken. Thus, for example, where a recent dismissal of a staff member now appears to have been unsatisfactory, in appropriate cases such a dismissal should be downgraded to suspension on full pay pending the outcome of the Department of Health comprehensive review. In all cases where dismissed NHS staff have subsequently been cleared by a professional regulatory body, or by an employment tribunal or related legal authority, this downgrading should be automatic, and in some cases compensation should be offered to individuals who have suffered a miscarriage of justice.

4.4 Alternatives to dismissal of an NHS employee should be scrutinized by a completely independent panel to the Trust, especially in a case of dismissal for ‘Some Other Substantial Reason’.

4.5 NHS dismissal and appeal hearings should be recorded or accurately minuted, so that there is no uncertainty as to what was said at such hearings.

4.6 In a modernized management system for grievance, dismissal and appeal hearings, NHS managers and clinical staff should have equal access to legal funds. At present, managers have automatic access to apparently unlimited Trust funds to use at their own discretion, but many clinical staff in dispute with managers often find that they have to find funds from their own resources. Where they are eligible to receive union-derived or insurance-related funds, this funding is often limited in amount and subject to restrictions.  Even when they can raise money to fight a case, it is usually no match for the level and quality of legal support purchased by a Trust, and this puts the NHS employee at a distinct disadvantage. Many staff just give up because they cannot afford to continue with a legal case. This unjust and unfair situation needs to be rectified since it often contributes to extreme distress to staff and to their families, and in some cases to appalling miscarriages of justice.

4.7 Any case of dismissal of an NHS employee for ‘Some Other Substantial Reason’, that is where clinical performance and conduct are not at fault, should require prior Department of Health approval, or approval by a regulatory body such as the Care Quality Commission (CQC) or Monitor. The Department of Health or CQC or Monitor should send an observer to every Employment Tribunal or similar legal hearing that involves an NHS employee, to see what lessons can be learned.

4.8 Chief executives of NHS Trusts should authorize and approve each case of dismissal of a senior member of staff, and where that dismissal has been subsequently shown at an Employment Tribunal to be unfair, chief executives should be held partly accountable.

4.9 There should be a review of dignity issues when an NHS employee is dismissed – currently, an NHS employee of whatever grade can be subject to instant dismissal, with all the indignity and adverse effects on clinical activity and patient care that accompany such an instant cessation of work.

4.10 At the present time, it appears to be common practice for money to be offered to aggrieved individuals to drop or settle NHS cases out of court, often with gagging clauses attached. The result is that wrongdoings by managers or other staff are then swept under the carpet and never brought to light. Such attempts to conceal wrongdoings in the NHS should be outlawed by the Department of Health.

4.11 If an NHS organization loses at an Employment Tribunal hearing, or at any subsequent Employment Tribunal Appeal hearing, it should be subject to a formal inquiry by the Department of Health or a regulatory body, and if found wanting, it should be fined.

 4.12 The Department of Health should consider setting up a dedicated NHS Mediation Unit to advise and assist NHS managers and staff resolve disputes before they incur the major costs and time associated with commercial mediation or legal action. This Mediation Unit could be self-funding if Trusts and other NHS bodies paid a fee for its services.

4.13 When NHS staff, including those who have been whistleblowers, are dismissed, Trusts may try to prevent their reinstatement by an employment tribunal through the ploy of abolishing the post of the staff member. This action should be outlawed, or at the very least approval required by an independent body.

4.14 Trusts may also try to prevent former staff from speaking out about patient safety concerns, sometimes by bringing legal pressures on either staff or on the particular media who wish to publish such concerns. These actions should also be outlawed.

4.15 Where a staff member has been suspended or dismissed due to a breakdown in relationship with clinical colleagues or managers, but his / her capability and conduct are not a major issue, or where a staff member is forced to resign under difficult circumstances, clear mechanisms should be put in place to exhaustively explore  whether that staff member could be re-employed with another NHS employer, to avoid him / her becoming deskilled. Consideration should be given to setting up an NHS Redeployment Unit to help such employees readjust after their ordeal and to find alternative posts, as has been successfully pioneered on an informal basis by the NHS in Wales and the Welsh Assembly.

4.16 At present, there is a post of Health Service Ombudsman, who deals with complaints by patients who are dissatisfied with how their complaint has been handled locally. It does not appear to be within the remit of this post to deal with staff complaints. A separate post of NHS staff Ombudsman should be established to deal with complaints by staff regarding their treatment, if they are similarly dissatisfied with how their complaint has been handled locally.

4.17 Non-disparagement clauses included in Compromise Agreements when aggrieved employees leave an NHS organization are counter-productive to the concept of an open and transparent body that is willing to learn from its mistakes. Such clauses generally put the fear of God into an employee, and – though employers may claim otherwise – help to discourage him or her from speaking out about genuine concerns. They should be replaced by something along the lines of – Both parties are reminded of the laws of libel and slander, of the rights of free speech under the Human Rights Act and of the confidentiality requirements of regulatory bodies. They should therefore take appropriate care before contemplating any statements or actions.

4.18 Although Compromise Agreements are by their nature confidential documents, there should be a degree of transparency about them, and there is also a need to know how many such agreements occur in various Trusts. The number of Compromise Agreements agreed by a Trust in any one year should be made available on its website. It would also be beneficial if copies of such agreements were sent, anonymised if necessary, to bodies such as the Department of Health, NHS England, the Care Quality Commission, Monitor, the NHS Trust Development Authority and the National Audit Office.

4.19 Until fair disciplinary procedures in the NHS are put in place, there should be a selective moratorium of dismissals of NHS staff. Apart from certain serious offences or where patient care is clearly at major risk, staff should be suspended rather than face dismissal so as to avoid harm to patient care, miscarriages of justice, waste of public funds, damage to the reputation of employers and the NHS, and distress to staff and their families.

4.20 Dismissal of staff should always be seen as a last resort, with independent verification that, where appropriate, the ‘three strikes and you’re out’ rule had been applied (the individual having been given three warnings and chances to improve before dismissal), and independent verification that all alternatives to dismissal, including supported secondment in another NHS employer, had been fully and fairly exhausted.


5.  Accountability and professionalism of managers

5.1 At present in the NHS, if a clinician is at fault, there is a recognized professional body to whom an aggrieved individual can complain. That does not apply to managers in the NHS, or to individuals other than managers, such as clinical staff who take on management roles. There should be regulation and professional accountability, just as already applies to staff who perform clinical roles. In the closing submission of the lead counsel to the Mid-Staffordshire Public Inquiry (December 2011), he noted – ‘Professional training and regulation of trust board executives, non-executive directors and NHS managers needs to be considered and rolled out on a national basis…..There is also a strong case for the regulation of senior health care managers. The Department of Health accepts that there is an unjustifiable incongruity between the position of clinicians and accountants who may sit on trust boards and be subject to professional regulators, whilst the likes of the Chief Executive may not be. Public confidence in the NHS requires that managers should not be rewarded for failure’.

5.2 The training of managers in NHS needs a major overhaul. There should be a recognition that particular professions require managers with knowledge and experience of that profession.

5.3 Chief executives of NHS Trusts should be subject to 360-degree feedback from NHS staff in their organization, and information from such feedback should be provided to the Department of Health and to governors in an NHS Foundation Trust. Governors should have a much more active role in monitoring the actions of a Trust, and be prepared to comment on matters such as dismissals or suspensions of staff, legal expenditure and adherence to professional standards.

5.4 All NHS staff, clinical and non-clinical and including managers, should be required, annually, to take a form of Hippocratic oath that requires them to uphold certain standards of ethics and professionalism in their conduct. Such an oath could, amongst other things, incorporate the ‘Seven Principles of Public Life’ (‘Nolan Principles’) supported by the UK Committee on Standards in Public Life – Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty and Leadership. It could also incorporate the simple maxim, that the end does not justify the means.

5.5 Currently in the NHS if a major medical or surgical error occurs, there are detailed investigations carried out, numerous meetings held, reports submitted to external regulatory bodies, apologies to those who have been harmed, and no expense is spared to ensure that lessons are learned and that similar mistakes do not happen again in the future. Statements are issued with phrases such as ‘the care fell below our usual high standards….we offer a heartfelt apology for the distress that has been caused….we have taken all possible steps to learn from this event’. However, when mistakes in management occur, there is usually nothing even remotely similar that occurs. Major management errors, especially where they result in situations such as wrongful suspension or dismissal, should be subject to similar levels of inquiry, similar reports to regulatory bodies, similar apologies to those who have been harmed or wronged, and similar attempts to introduce changes as a result of lessons learned. Managers should be treated no differently than other NHS professionals. To paraphrase the words used by the UK Chief Medical Officer, Sir Bruce Keogh, we simply need to know of any NHS professional – How well are you doing your job? If you are not doing your job well, what can be done about it?

5.6 The category of ‘Never Events’, which currently applies to clinical errors leading to serious adverse events that should never have happened, should be extended to  include management errors, or if that term is not feasible a similar category of management error should be introduced for an error with very serious consequences. For example, dismissals by a Trust of a staff member that are subsequently ruled to be unfair in a legal setting should perhaps be classified as a ‘Never Event’ or equivalent; or negligent expenditure by an NHS Trust of over £100,000 on legal proceedings that could have been avoided; or, as a further example, where a Trust dismisses a doctor for a clinical error, and he/she is subsequently exonerated and cleared by the General Medical Council, and ruled as fit to return to practice without restrictions or any warning, this dismissal should also be classified as a ‘Never Event’ or equivalent. The introduction of such changes would give an indication as to how serious such events can be – if, as has happened, a doctor commits suicide as the result of the actions of hostile or grossly negligent management, does this not deserve to called a ‘Never Event’ – which in the words of the Department of Health are events that are ‘unacceptable and eminently preventable’?

5.7 The decision by the Secretary of State for Health to encourage Department of Health officials, including himself, to periodically carry out ‘hands-on’ work in clinical settings should apply across the board – to managers, directors and chief executives in hospitals, to those who sit on health advisory panels, disciplinary hearings, commissioning boards or inquiries, and to academics who teach or carry out research in areas relating to clinical practice.


6. Clinicians in management roles

6.1 The appointment of clinical service directors and medical directors lacks transparency and is often by a ‘nod and a wink’. There should be some form of voting system, a clear indication as to financial inducements given to directors, an indication as to the maximum period they can serve, a requirement to indicate conflicts of interest between NHS and other duties, comprehensive 360-degree feedback in respect of performance, and a greater element of formal training. Medical directors should receive formal training in dismissal procedures, and this training should include lectures by NHS staff who have been unfairly dismissed.

6.2 Each directorate in an NHS Trust should have available an external advisory panel of experts to whom it can turn for independent, expert advice on complex issues that arise. A member of staff in dispute with the clinical director should have an automatic right for advice to be sought from this external advisory panel.

6.3 The concept of ‘external peer review’ should be applicable not only for clinical activities, but also to doctors and others in senior management positions, whether they be divisional directors, medical directors or senior managers. This proposal leads on from a specific recommendation in the Francis Report – The creation of a caring culture would be greatly assisted if all those involved in the provision of healthcare are prepared to learn lessons from others and to offer up their own practices for peer review. Whilst peer review will have a specific relevance in cases of practitioners where there may be concerns about substandard performance, it has a far more fundamental role in changing behaviour to ensure a consistent and caring culture throughout the healthcare services (Executive Summary, p. 76.).

 

7. Practical steps for a better NHS

7.1 Clinical commissioning groups should have a voice in the treatment of whistelblowers, and in whether they are reinstated in their former posts. In the recent case involving whistleblowers and the South Devon NHS Trust, it was leadership shown by the local clinical commissioning group that led to the suspension of the chief executive who had been found at fault by an employment tribunal.

7.2 The Guidelines drawn up by system regulators, such as the CQC and Monitor, should undergo major revision to allow for the needs, concerns and protection of whistleblowers. The Guidelines should also be revised to include stricter codes of conduct for managers and HR professionals who deal with staff who raise concerns.

7.3 System regulators should more generally have a greater focus on staff well-being and how management treat staff. They should ascertain how many whistleblowers have been disciplined, suspended, dismissed or reported to regulatory bodies. They should ascertain whether dismissed whistleblowers have been given back their jobs if they have won cases at an employment tribunal or been cleared by a regulatory body. Regulators should pay particular regard to how those from black and ethnic minorities are treated.

7.4 The Guidelines drawn up by professional regulators should undergo major revision to allow for the needs, concerns and protection of whistleblowers. The Guidelines should also be revised to include stricter codes of conduct for healthcare professionals who find themselves in management roles.

7.5 Bodies such as the GMC have to deal with complex and delicate matters and usually get the balance right. However, they are sometimes seen as being unfair, irrational and dogmatic. They should ensure that they call on independent, expert advice in respect of cases that they consider and where there are issues in dispute. There should be an annual external, expert audit of how professional regulators have handled concerns, similar to the ones carried out in 2007 by Kings College London and in 2013 by the Professional Standards Authority in respect of the GMC. When the audit picks up on cases where decisions or processes are unsatisfactory, these cases should be re-opened.

7.6 There needs to be better coordination and understanding between regulatory bodies and those bodies that represent NHS staff. Thus, bodies such the GMC, the CQC, Monitor and organizations such as the BMA, the RCN, The British Psychological Society, & ethnic medical organizations should seek to have more in the way of joint meetings, joint representation, etc.

7.7 There should be greater harmony in fitness to practice and related disciplinary standards adopted by regulatory bodies. Thus, for example, the GMC but not the HCPC permits complainants to view responses by a registrant to complaints that have been made. Furthermore, the GMC and the HCPC do not allow registrants to take themselves off a register if they are under investigation, but the NMC does allow this for nurses, and in a recent case the Professional Standards Authority had to take High Court action to prevent this from happening.

7.8 Recommendation 219 of the Francis Report stated – An alternative option to enforcing compliance with a management code of conduct, with the risk of disqualification, would be to set up an independent professional regulator. The need for this would be greater if it were thought appropriate to extend a regulatory requirement to a wider range of managers and leaders. The proportionality of such a step could be better assessed after reviewing the experience of a licensing provision for directors. In the light of further scandals in the NHS since the publication of this report, such as the recent one at South Devon NHS Trust, it may now be appropriate to more specifically recommend the regulation of all those in management, including HR professionals and chief executives.

7.9 The Mid-Staffordshire and other scandals have shown that it is very difficult for health care regulators such as Monitor and the Care Quality Commission to have detailed knowledge of what is happening in a Trust. It would therefore be worth considering whether each Directorate in a Trust, as well as each General Practice, had an ‘embedded’ employee who was specifically paid by either or both of these bodies, one day a week, to monitor on their behalf quality of patient care and staff well-being. This person could be called a CQC-Monitor Consultant, and his/her role would include ensuring that professional standards and guidelines were followed by a Trust / General Practice, and alerting the regulatory bodies at an early stage if things appear to be going wrong. 

7.10 Hospitals in Britain were once inspected by teams from professional bodies such as Royal Colleges, but these inspections were replaced by those carried out by regulatory bodies. Those inspections by professional bodies should be reinstated or incorporated into CQC inspection teams, since such inspections are more likely to show up failures such as refusal or inability to adhere to professional standards and guidelines. It is possible that retired NHS staff could play an important role in these inspections, and of those by regulatory bodies. Whistleblowers often have unique insights into failures in patient care, and how this can be covered up – each inspection team should contain at least one whistleblower.

7.11 Inspections of healthcare providers should include interviews with staff who have raised concerns over the previous few years, have been involved in grievance procedures or have taken their employer to an employment tribunal. Inspections should also sample those staff who have left the employer for any reason over the previous few years, since such staff will feel safe to speak out without worrying about their career prospects or their relationships with existing colleagues.

7.12 When NHS staff find themselves in employment tribunal settings, it is sometimes a case of ‘lambs to the slaughter’. The adversarial nature of employment tribunal and related legal settings can be extremely distressing, especially for healthcare professionals who are trained to be compassionate rather than combative. This is all the more worrying as in recent years the government has introduced changes to the employment tribunal system that make it more difficult for claimants.  Few people need to be reminded of the well-publicised case of Frances Andrade who committed suicide in 2013 after a period of distressing and hostile cross-examination by a barrister. The Bar Council and the Justice Secretary both expressed concerns and initiated reviews after that tragic event. The adversarial nature of proceedings, and the use of ‘forensic straight-jacket’ questioning, does not make it easy for truth to be gathered, and may even result in distortions to the truth. This is particularly evident in medical-legal settings (Ryan, M. 2003. The adversarial court system and the expert medical witness: ‘The truth, the whole truth and nothing but the truth’. Emergency Medicine, 15: 283-88). Although this is not the place to discuss the relative merits of the European inquisitorial system, with the onus on several judges to ascertain Truth and Justice, the limitations of cross-examination in the adversarial system need to be highlighted, as Iain Morley has pointed out (Morley I. (2009). The Devil’s Advocate. Second Edition. London: Sweet & Maxwell). There is a feeling amongst NHS whistleblowers – If the NHS management system doesn’t kill you, the legal system will, since it can be so hostile and distressing from a Claimant’s perspective. There should be a recognition that in its interface with the NHS the legal system currently has flaws and often works in such a way that it is very difficult, stressful, expensive or impossible for whistleblowers and others to seek and obtain justice. Key House of Commons Committees and the Law Society should gather evidence and make recommendations in this respect. Relevant procedures in employment tribunal and related legal settings should be reviewed with these concerns in mind.

7.13 NHS staff who find themselves in a legal dispute with their employer are usually at a grossly unfair advantage in terms of financial resources available for legal and related expenditure. This area of unfairness should be scrutinised to see if there can be a more level playing field for NHS staff.

7.14 The Law Society should review the ethical and professional behaviours of solicitors and barristers in cases involving NHS staff and their relationship with managers and HR staff in NHS Trusts. The direct employment of legal staff by NHS Trusts should be reviewed.

7.15 Employment tribunals that hear cases involving NHS staff should make special provision for consulting independent medical experts, and for ensuring that such cases are heard by judges of the highest calibre and with knowledge, skills and experience relating to NHS matters. Training of employment tribunal panel members, including judges, should be reviewed, as there seems to be a great deal of variability in the quality of panel members.

7.16 In a recent Royal College of Physicians Report (Healthy Staff; Better Patient Care, 2014), almost half of Trusts were found not to have a policy in place for staff mental wellbeing, and around a quarter of Trusts did not monitor the mental wellbeing of staff. Recent research has shown the value of psychological knowledge in dealing with issues such as those raised in the Francis Report into Mid-Staffordshire Trust (Kapur, N. 2014. The Francis Report and Mid-Staffordshire Hospital. What does Psychology have to offer? The Psychologist, 27: 16-20). To deal with these two complementary and overlapping issues, there should be a post of staff support & patient safety psychologist within each major healthcare provider. Such a post could be part-funded by the Care Quality Commission and part-funded by the healthcare provider. One of the roles of this person could be to help create a more durable interface between NHS providers and the CQC.

7.17 In view of the fact that many of the problems in the NHS relate to the behaviour of staff, and also touch on the behaviour of patients, the discipline of Psychology should have a greater voice in decision-making processes at both strategic and local levels. In the case of a strategic voice, there would be value in creating a post of Chief Psychologist in the NHS, to parallel the role of Chief Medical Officer. The Cabinet Office Behavioural Insights Team has shown how simple behavioural solutions can yield great benefits and save millions of pounds, and a greater prominence for Psychology may well result in similar benefits for the NHS.

7.18 The Francis Report noted amongst its findings (Executive Summary, 1.184) – The creation of a caring culture would be greatly assisted if all those involved in the provision of healthcare are prepared to learn lessons from others and to offer up their own practices for peer review. Within each ward or department or health centre, there should be a designated Best Practice Officer whose role would be to visit other centres of good practice, arrange for onsite visits from leading staff of such centres, and ensure that information on good practice is disseminated to other staff in the unit.

7.18 There should be greater scrutiny and accountability of healthcare providers in the private sector, in particular hospitals and rehabilitation centres. Since many NHS patients are treated in such facilities, on a sub-contractual basis to the nHS, this should be a matter of concern for the Department of Health. In particular, each independent hospital or major private healthcare provider should have formal links with an NHS teaching hospital to share resources, such as on-call staff. If financial arrangements were in place, this would also benefit the NHS sector. There have been too many scandals of patients suffering or dying in private healthcare facilities as a result of easily avoidable adverse events.