Examination of Witnesses (Questions 20
- 39)
MONDAY 14 JANUARY 2002
MR NIGEL
CRISP AND
MR ANDREW
FOSTER
20. In that case can you now tell me how many
board members have been dismissed since you were made aware of
the contents of this Report?
(Mr Crisp) What we have done since I have been aware
of the contents—
21. That is all I want to know.
(Mr Crisp) Since December 19, none.
22. None. If you look then at the case of Barts,
if you look at page 12 the inquiry found lack of managerial ownership
and control, lack of accountability, lack of clarity regarding
roles and responsibilities, lack of trust board awareness, lack
of internal reporting of problems and constraints, lack of clear
audit trail and a lack of clear senior managerial leadership,
otherwise everything was okay there. Are you telling me that a
report like that does not merit sackings at the very top?
(Mr Crisp) Let me talk about Barts & the London.
At the same time as this was effectively happening, from the Department
we had put in our own inquiry into a very wide range of issues
at Barts & the London. As a result of that inquiry ultimately
both the Chair and the Chief Executive decided to resign. That
is not referred to within this but that is because, as you said,
there were a catalogue of issues around Barts & the London.
In addition, you will see from this Report that the three most
senior managers—I think it was three in this case—who
were involved in this, or appeared to be involved in this, had
actually left by the time the investigation was completed and
were not re-employed.
23. You can have that many people who conveniently
decide to resign, which is part of the cover-up, allowing them
to resign, and yet we are told in paragraph five that the actions
caused patients to wait for treatment longer than the urgency
of their condition would suggest was reasonable, or possibly even
safe, and these actions were potentially dangerous to patients
and you tell us that all the board has done is sit back and watch
some senior officials resign. If I can go on to the next question.
(Mr Crisp) May I respond? The Chair and the Chief
Executive are not some senior officials.
24. Let me put in context what I am about to
say. In paragraph seven, that same board considered in February
last year the need for disciplinary action when they considered
the Report, the board concluded that there had been organisational
failure, therefore it would be inappropriate to single out individuals
for disciplinary action. It seems that it was a sort of spontaneous
institutional collapse of morality but that no-one actually made
a decision at any time that contributed to that collapse of morality.
Does that sound like a board exercising its functions properly?
(Mr Crisp) I think what this Report does not distinguish
is that it is a board of a different membership. I think by February
2001—I will have to check this, I have not got it written
down in front of me—the previous Chair and Chief Executive
had resigned by that time. In fact, I know that they had resigned
by that time. So the Chair and Chief Executive—
25. At what stage did they resign?
(Mr Crisp) They resigned at some stage during the
year 2000 and I cannot give you the date.
26. Was the inquiry under way then?
(Mr Crisp) The bigger inquiry was under way, the one
I said that we had set up to look at the whole issues to do with—
27. So they ducked and ran?
(Mr Crisp) I do not think it was at all like that.
I think this was a question of a number of issues coming out of
that inquiry in the light of which they took the view that it
was appropriate that they should resign. This was, therefore,
a new board, a new Chair and a new Chief Executive who were, therefore,
considering what had happened in the past, the previous Chair
and Chief Executive had gone, the two Directors of Operations,
who were the senior managers, potentially involved in this had
also left. It seems to me that the board took the only decision
that it could take in those circumstances, that the only person
left within their employ was a relatively more junior manager.
This is not a satisfactory state of affairs by any measure.
28. As I say, the board then ducked and ran,
there was no disciplinary action against them and they may well
be working elsewhere in the health service, I do not know. What
about in the case of Surrey? In the case of Surrey they deliberately
connived at fiddling the records by asking people when they were
going on holiday and then when they got it in writing when people
had their holidays booked they phoned them and offered them dates
for appointments in their holidays and when they could not accept
them they took them off the list or suspended them. Similarly,
they phoned them with non-existent cancellations offering very
short notice appointments and, again, when they were declined
they were suspended from the list. Surely that is corrupt and
if it is corrupt it should have been acted upon. What action was
taken against the board and what action was taken against the
management as opposed to negotiating comfortable resignations
for them with settlements?
(Mr Crisp) Again, if you look at this case in detail,
and I am not pretending this is satisfactory, you will understand
that, and also that I am shocked by some of the things that I
have seen here and we need to do better.
29. I am sure you will.
(Mr Crisp) What happened in this case was that for
a range of wider issues an agreement was reached with the Chief
Executive that she would leave before these issues were discovered.
What then happened was the trust took the view that the highest
priority was to tackle the issues for the patients, get them treated
absolutely as quickly as possible, which is true of all these
cases, and given that the Chief Executive had left it was inappropriate
to discipline anybody else within this situation. That was the
view that they took.
30. This looks like a conspiracy of convenience,
these resignations. The resignations mean that they have entitlements
to notice, to pension settlements, possibly to redundancy or departure
deals, as we have seen. What comes over is the sheer duplicity
of the whole set-up, the gagging clause that the Chairman has
referred to. I sat in the two hearings way back in 1994, one in
relation to education and one in relation to a consultant, where
this Committee ruled that gagging clauses were inadmissible. That
was in 1994. Your predecessor accepted that recommendation. That
was in 1994 but it was only in 1999 that you issued guidance.
Why did it take five years to give guidance and why is it now
in answer to the Chairman you have had to already backtrack and
say "of course, it is only guidance"? Why has it taken
so long to do too little? Not you, the organisation.
(Mr Crisp) I understand that. The first point is I
thought, and somebody behind me might check for me, that we had
issued guidance before 1999. If I am not able to give you that
assurance now I will make sure that we send you a note afterwards.
The point is, I am not backtracking, this has always only been
guidance. I am sure you know the relationship between the Department
of Health and the NHS and that most of what we do with the service
is to give guidance as to how things should be done. In certain
cases the Secretary of State takes power of direction.
31. How soon can we expect action to ban such
agreements?
(Mr Crisp) Soon.[1]
32. Okay, let us know immediately it is done
and let us have copies of whichever rules you issue. In conjunction
with the gagging clause there were one or two other corrupt arrangements
where references were agreed as part of the deal to persuade people
to enter into the gagging clauses so they could not squeal against
their senior managers and their colleagues and, in addition to
giving them references to go to other employers who were going
to take on possibly incompetent staff, they also used taxpayers'
money to make settlements that most of us here would feel these
people were not entitled to. This is why I say this is corrupt
rather than incompetent.
(Mr Crisp) There were two cases, three if you include
the case where the person resigned before this came to light,
where payments were made as part of compromise agreements. Let
me just deal with the confidentiality clause issue in the case
of Plymouth. At the top of page 18 you can see the confidentiality
clause. It starts "Mindful of its obligations to permit this
Agreement to be subject to proper public scrutiny," ie, this
Committee and others, "the Employer will. . ." do various
things. I have spoken to the Chairman about this and I asked the
Chairman of that trust why they did not follow the guidance. There
was a clear view expressed that they were aware of the guidance,
but they had misinterpreted it. They were aware that confidentiality
agreements should not be entered into where there was any risk
of gagging whistle-blowers, but what they were concerned about,
in their view, was that it was appropriate to have an agreement
with a departing employee which prevented them talking badly,
effectively, about the trust. There are two different issues there.
We will be making it clear that confidentiality clauses, in the
words you have used, "have got no place in the public sector",
with the possible minor exceptions (which are your exceptions)
where there is commercial interest.
33. You have chosen two examples—
(Mr Crisp) There are only three.
34.—Of pulling together all of what I
call "corrupt" efforts to obtain silence because in
the case of Plymouth they agreed a reference for senior management
who resigned, but for none of the three individuals did the reference
refer to the findings of the inquiry reports. So there is the
use of the reference as a further inducement to persuade people
to keep quiet. Then in addition, as the Chairman has implied,
they kept them on pay for three months at a cost of £67,000,
so they gave them £176,000 compensation to buy their silence.
This trust squandered a quarter of a million pounds of taxpayers'
money partially to protect its own back.
(Mr Crisp) The agreements were £146,000 rather
than a quarter of a million—
35. That was because there was a refund.
(Mr Crisp) There was a refund of £30,000.
36. There was a refund of £31,000.
(Mr Crisp) I am just reflecting that that was the
figure rather than the quarter of a million.
37. The quarter of a million is when you add
together the "gardening" leave they were given and what
is not mentioned here, but I assume were the pension entitlements
and other fringe benefits they had over the time they were on
gardening leave.
(Mr Crisp) In a moment I will ask Mr Foster if he
would just explain what guidance was given because guidance was
given before 1999 on conditions of service. However, in this case,
and having gone through this in some detail with the chair, I
am aware of the decision-making process that the board went through
and there are a number of considerations, including, as again
your chair has indicated at the start, fairness towards employees
and making sure that we have first of all in our mind fairness
towards patients, that is our top priority, but also fairness
towards employees. It is right that these things should be investigated,
it is right that they should then go through a disciplinary procedure.
What happened in this case is that the board took the view, having
received advice on it, that it was better, it was less costly,
there was less disruption to the trust to reach a compromise agreement
as a pragmatic way forward, rather than to go through the disciplinary
procedure and hold people properly to account and maybe inflict
some other damage. That is not the way we will do it in the future
but that is the position and that is the series of decisions that
this board made over that period.
38. Do you not think that the sacrifice of a
few clearly responsible heads might underline that you mean what
you say and, secondly—and I finish on this because my time
is up—the Department of Health has produced a press release
saying that waiting list manipulation is unacceptable and it says:
"In future, any manager found to have deliberately distorted
waiting figures will face dismissal on grounds of gross misconduct."
We obviously welcome that. Can you tell us—because your
Executive covers only England and the NHS covers Wales and Scotland—whether
that ruling includes Scottish and Welsh trusts but, nevertheless,
do you know if this stronger disciplinary conduct will apply in
Wales and Scotland as well as in England?
(Mr Crisp) I should have remembered to get myself
briefed on Wales and I did not. I do not know the answer to that,
I am afraid.
Mr Williams: It is not your responsibility.
Chairman
39. Thank you. Mr Williams. You mentioned, Mr
Crisp, on the question about confidentiality clauses a very important
word, the word "soon". We will probably need further
particulars on what "soon" means and you may have to
write to us.
(Mr Crisp) Indeed we will.[2]
Chairman: Mr Bacon?
1 Note by witness: We intend to issue directions
during 2002. Draft directions are currently with the Department's
solicitors prior to consideration by Ministers. Back
2
Ref footnote to Q 31. Back
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