Examination of Witnesses (Questions 80
- 99)
MONDAY 14 JANUARY 2002
MR NIGEL
CRISP AND
MR ANDREW
FOSTER
80. If people were prepared to cheat because
of the targets that were set then, the targets are going to be
more severe now, how are you going to be certain that there are
not going to be more who will cheat because the targets will get
worse, as far as they can see it?
(Mr Crisp) I think the two big points are, firstly,
the openness one, so that it is patients who can actually see
what the arrangements are in their local trust and can identify
how they fit in with that. I think that is a very big and powerful
message and the NHS needs to be becoming much more patient driven
in that sense. The second thing is we have put in here, as you
said, in the press release and elsewhere, a number of safeguards
about quality, including the Audit Commission spot-checks. These
will help us move on.
81. You probably will not answer this question
but I will try anyway. Are the targets that are being set reasonable
or not?
(Mr Crisp) I believe that they are reasonable. I believe
we can do it. I can see movement in the right direction. I can
also see that some trusts are well down the track already. I think
at this moment, of course, we have got a financial settlement
that will see us through to the targets over the period of that
financial settlement.
Chairman: These are policy matters, we do not
need to go into that.
82. Has every trust been checked to see that
everything is okay?
(Mr Crisp) It depends what you mean by that. As you
will be aware from your last Report, the National Audit Office
took the view that our information was satisfactory for its purpose
with some exceptions. What we are doing here is wherever there
are trigger points which give us worry about the trust, and I
have indicated what some of those will be, then we will make sure
that there is a detailed inspection. We do not actually audit
every waiting list position.
83. I will move on to a different topic now.
I do not think one could do this Report without asking some questions
on the topic that Mr Williams brought up. When I read it, I wrote
down that the NHS must be the only organisation where employees
who face disciplinary charges come out of it better off. Let us
look at some of the financial positions. On page three, and Mr
Williams brought this up, it says that at four trusts seven staff
were suspended, four eventually resigned receiving something like
£260,000 compensation. At Plymouth two received £146,000
with confidentiality clauses and clear references. Then we have
the one that Mr Williams brought up on page 7, Surrey and Sussex,
fiddling, manipulation, fraud, and yet he walks away with £95,000
compensation with a confidentiality clause and no claw back. In
both cases it was clear that it was not just manipulation, it
was clear fraud. These compensation payments cannot be justified
and yet it happens time and time and time again, not just in the
NHS but other public services.
(Mr Crisp) And you may want to enquire whether it
happens in the private sector as well. I have no doubt that people
make pragmatic decisions. What we need to be clear about is that
some of the people we are talking about here in these cases certainly
do not accept that they were in the wrong and that was, in part,
because disciplinary procedures were not completed. I want to
be careful in saying that. What people did here was they took
the pragmatic view as chairs or as boards that it would be less
costly, there would be less disruption for patients—
84. How can you say it will be less costly to
pay somebody £95,000 for not doing their job properly? How
can it cost you more if disciplinary action is taken?
(Mr Crisp) Let me bring in Mr Foster again.
(Mr Foster) A body taking a decision of this nature
would take external advice. We see reference in some of these
cases to advice from lawyers about the percentage chance of success
in an industrial tribunal. An employer would have to take into
account what the prospects of success would be were their decision
challenged in a tribunal and would have to take into account the
likely legal costs associated with fighting the case, and they
may well be advised therefore that to take a certain course of
action to pursue disciplinary procedure risks loss of case, risks
significant compensation and risks significant legal costs, and
so they are faced with a choice to make (professionally advised)
as to whether to compromise on a lesser sum. That is the sort
of issue that employers are faced with and they have a duty to
protect the public purse and they have a duty to spend the minimum
amount of public money on these cases. I can quite understand
circumstances where they may be so advised.
85. I am told time is up so I cannot pursue
that. I am sorry, I find that an incredible answer. Regardless
of what lawyers are telling you, it is about time that somebody
took a stand and said, "This person is incompetent, this
person did not do the job properly, he or she is sacked and we
are not paying £95,000 in compensation, take us to court."
(Mr Crisp) We also have to prove these things. These
are issues of judgement and it is a minority of cases.
Mr Steinberg: Let me give you an example in
the North East of England not in the Health Service but in the
police force. A certain policeman has been suspended now for three
or four years but the constabulary will not allow him to resign
because at the end of the day they are going to take it right
to the very end. Whether the man is guilty or not, I do not know,
but they have not allowed him to resign so the case can be brought.
Chairman: A good question but unfortunately
you are not responsible for the police force.
Mr Steinberg: The NHS could do something similar.
Chairman: Thank you very much, Mr Steinberg.
Mr Geraint Davies?
Geraint Davies
86. Can I start where Mr Steinberg left off
because he ran out of time. Mr Foster, what you seem to be saying,
if I understand you correctly, is if the legal and other possible
down side costs of pursuing a certain case clearly outweigh the
cost of seeing it right through, then obviously you may have a
situation where you have a confidentiality clause and someone
who has basically manipulated and distorted the figures ends up
elsewhere in the NHS in a similar position presumably doing the
same. Do you think there is a conflict here between the financial
interests of an individual trust perhaps and the wider interests,
financial for the moment, of the NHS and, more importantly, the
interests of possible patients who may find themselves not being
treated because of your microscopic commercial decision?
(Mr Foster) As Mr Crisp has said, this is a matter
of judgment. We are talking about people who have not been proven
to be guilty of this and the employer, on external expert advice,
making a judgment as to the likely success of going through proper
proceedings. I am not saying that every single one of those judgments
is necessarily correct but I can understand the circumstances
under which an employing trust is told, "If you take this
course of action it will cost you a certain amount, if you take
the other course of action, there is a risk of it costing you
a lot more. If it costs you a lot more, you have then got to explain
to your auditors in your accounts why you have used money which
is allocated for patient care for taking a particular course of
action."
87. So you would accept that there is a conflict
of interest between auditors on the one hand and the treating
of future patients? Can I ask you, Mr Crisp, to comment in your
response on this quote from your press release from December 2001
which concludes: "In future, any manager found to have deliberately
distorted waiting figures will face dismissal on grounds of gross
misconduct. This will be supported by a new Code of Conduct for
NHS managers. Anyone who breaches that Code of Conduct will not
be re-employed as a manager—anywhere in the NHS." Is
that your position or is your position Mr Foster's that this will
happen as long as the numbers add up and if they do not this chap
or this woman will have another go elsewhere?
(Mr Crisp) What I was going to say, Mr Davies, was
I take your point. I think what Mr Foster has been explaining
to us is the position that people have to consider in making their
judgment. It is not a conflict of interest, I think it is a different
set of considerations that a trust board has to decide. They have
to decide how they are spending money from the public purse and,
as Mr Foster said, explain that to their auditors if they are
doing it in a way that appears to be different from what their
auditors would be saying. They also have to take into consideration
the greater good of the NHS in the light of what we have been
saying. I think this Report has helpfully brought this out.
88. Can I ask you something slightly different
but similar, namely, if, on the balance of risk, it was decided
by managers not to pursue an individual manager who may be culpable
but had agreed to resign (given the circumstances of fiddled waiting
lists) and it is decided not to pursue him and a confidentiality
clause is released, are you now saying that you will undertake
to make sure that the information is made available not only to
subsequent trusts but to the public?
(Mr Crisp) Let's be careful exactly what we are saying
here. What we are saying is that we will put in directions which
will deal with the issue of confidentiality, so take that out
of the equation, we will not have confidentiality agreements,
it will also deal with claw-back if there is any payment here,
and it will also deal with references, so that references are
available. If somebody has not gone through a disciplinary procedure
then you have to be very careful about precisely what the references
are saying. But there is another consideration which trust boards
take into account (and this is why we have good chairs and experienced
people on boards) which is what is the best deal for their local
patients as well, because in some cases it is better to not to
have a long, protracted disciplinary process but to get somebody
in there quickly to move it on.
89. Say that you and I are running a trust together
and the Chief Executive "Frank Jones" suddenly discovered
there was a big problem with fraudulent waiting list statistics,
manipulated outputs and Frank said, "I am resigning, I am
going to get another job," and the board said, "Why
don't we have a fresh start, get on with it. We know what was
going wrong with it from our investigation, Frank Jones has gone,
let's get on with it." The alternative is to pursue him in
a situation where it is very expensive and time-consuming and
uncertain in terms of the evidence and it is unclear whether we
will find him guilty or not guilty and the easy way forward is
to let him go and he will end up presumably with a hand-out and
running another trust.
(Mr Crisp) I think that under-estimates the quality
of the people we have got as non-executives on our trusts.
90. What are you doing to stop that easy choice
being made in individual trusts?
(Mr Crisp) I have to say I do not think anyone has
made any easy choices here. I think, having talked to a number
of people, that people have agonised over this because you have
to balance getting on with things and making a clean start, fairness
to the individual, rightness to the NHS, and the accountability
issues that Mr Foster has pulled out. What we are saying is that
we are going to make it easier for trust boards in the future
because, as the press release says, we are going to say that our
expectation is that people will be held to account.
91. If I were sitting on a board and a Chief
Executive's position came up and somebody applied for this who
was on the chicken run, who had escaped before the results of
an inquiry had emerged—and you mentioned the case of Barts
where people did the chicken run before the outputs came through—would
I somehow know that as an interviewer, for argument's sake, through
your system or would I know in retrospect that I would be able
to sack that person if I found information which came to light
after he was appointed, and are these systems now in place?
(Mr Crisp) The two points are that you should either
have a reference from a current employer, or the individual applying
for the job with you should tell you at interview, otherwise you
have got a case in terms of your appointment process for dismissing
them if relevant information is not provided.
92. In the case of Barts and the London—I
do not know if you know the answer to this—was it not the
case that the Chief Executive went off and only junior staff were
left. Do you know what happened to the Chief Executive of that
trust? Did he get another job?
(Mr Crisp) On Barts and the London there were four
people who left if you look at the statistics. There was a wider
review on the back of which the Chief Executive, who was and is
indeed an extremely honourable man, took the view that as this
was happening under his stewardship, it was appropriate that he
should go, although he was not directly involved, and he has left
and is not working in the NHS.
93. When did he leave?
(Mr Crisp) I do not have that date here but it was
some time in 2000. The chair also resigned and the two senior
managers are not working in the NHS, I checked that, so none of
the four people involved are working in the NHS.
94. You were the London Regional Director until
1999.
(Mr Crisp) That is why I am familiar with the situation.
95. He left and did he get another job, did
you say?
(Mr Crisp) No.
(Mr Foster) Can I say something about this point which
you have been pressing us on because we have said that we will
be producing a new Code of Conduct and there are certain issues
we will have to consider about how it operates, so that, for example,
at the moment if a consultant is about to undergo disciplinary
procedures and then resigns so that disciplinary proceedings cannot
be concluded, nonetheless, an alert is issued to the various bodies
to ensure that he is not re-employed without the issue being sorted
out. We must find a similar mechanism to address exactly the problem
you are raising so that you cannot simply get away from this just
by resigning. You have got to have a tagging mechanism—
96. And you are putting that in place?
(Mr Foster) We will have to find the best mechanism
of doing that.
97. My understanding, correct me if I am wrong,
is that we are talking in this Report about nine out of 300 trusts?
Are you saying there is only a problem like this in those nine
or is that the nine we know about?
(Mr Crisp) They are the nine that we have found. I
ought to say that these are the ones that came up, five from the
NHS and four from people alerting, that we found over a period
of about four years.
98. You are confident that it is not more than
12, for argument's sake?
(Mr Crisp) You have added another three.
99. I know I have.
(Mr Crisp) I am pretty confident that this is the
order of magnitude at most that we are talking about. There may
be one or two others.
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