House of Commons - Public Accounts

Select Committee on Public Accounts Forty-Sixth Report

FORTY-SIXTH REPORT

The Committee of Public Accounts has agreed to the following Report:

INAPPROPRIATE ADJUSTMENTS TO NHS WAITING LISTS

INTRODUCTION AND LIST OF CONCLUSIONS AND RECOMMENDATIONS

1. Most patients are treated promptly by the NHS, but a significant number wait for treatment. At 31 March 2002 some 195,000 people in England had been waiting over 13 weeks for an outpatient appointment and 1,035,000 were waiting for treatment.[1] We took evidence in November 2001 on progress in reducing waiting lists and waiting time, ways of improving performance and steps being taken to give patients better information and choice on where to be treated.[2]

2. In January 2002, we took further evidence on the basis of the Report by the Comptroller and Auditor General into Inappropriate Adjustments to NHS Waiting Lists.[3] We looked at the extent and causes of inappropriate adjustments made by some NHS Trusts, how investigations into the adjustments were handled and what action was taken, the impact on patients and the steps being taken to prevent a recurrence.

3. In the light of this examination, the Committee draws four overall conclusions.

· The arrangements for identifying those involved and for taking disciplinary action fell well short of good practice. In some cases the inquiries were not rigorous or complete and some of those allegedly responsible were allowed or encouraged to resign during the process. Some trusts breached NHS guidelines on agreeing confidentiality deals as part of severance packages, which cost the NHS some £260,000, and in some cases they did not include clawback arrangements when those involved went on to work elsewhere in the NHS. The Department of Health have promised a new standard for future disciplinary investigations and a variety of actions to strengthen the arrangements on confidentiality agreements, clawback and future employment of those involved.

· NHS trusts took steps to develop action plans covering the 6,000 or so patients affected by the adjustments, including sending patients to other trusts and to the private sector for treatment. However, the Department of Health still do not know the extent to which patients' health suffered as a result of delays in treatment or whether compensation will have to be paid. They should complete their investigations quickly.

· It is unacceptable that NHS employers should reach confidentiality agreements that prevent full disclosure of the circumstances to another employer, particularly in the NHS. The Department should act quickly to outlaw the use of confidentiality agreements, and the Treasury should remind other public bodies that such agreements are inconsistent with proper accountability for public money.

4. Our more specific conclusions and recommendations are as follows.

(ii) Following the 2002 Budget, the Government announced plans to establish a new Commission - the Commission for Healthcare Audit and Inspection - which will validate published performance assessment statistics on the NHS, including waiting list information.[4] The introduction of independent validation, with the results published, is particularly important in rebuilding public confidence in reported waiting lists and times.

(iii) The inquiries into the original nine cases often took too long and were inconclusive. There were procedural and other weaknesses, and many of those affected complained of inaccuracies and lack of fairness. None resulted in completed disciplinary action, and weaknesses in the investigations completed could have prejudiced the prospects of a sustainable outcome. The Department should quickly introduce a standard format for future investigations of this sort, and give trusts clearer guidance and a clearer framework for disciplinary action.

(iv) These cases also raise doubts over whether each of the 189 trusts in England can be expected to have the expertise to handle complex disciplinary cases in a consistent way. The Department should explore further the case for much stronger central support, especially in the human resource and legal issues.

(v) Of those under investigation, five resigned during the investigations, and four of the suspended staff have been re-employed within the NHS. Because under the current arrangements each employer is a separate entity, disciplinary action could not continue once the staff resigned. The Department are taking action to change the basis of NHS contracts in this respect and should complete this work soon.

(vi) Four trusts reached confidentiality agreements with those who resigned, and in some cases their terms of departure militated against the trusts disclosing the circumstances to potential new NHS employers. All NHS employers should carry out thorough pre-enrolment checks on all the staff they employ, and the Department plan to make this mandatory.

(vii) Four chief or deputy chief executives of the trusts involved subsequently resigned or had previously left, receiving compensation payments totalling over £260,000. In one case the agreement provided for clawback of compensation in the event of such re-employment, but in two they did not. The Department should now implement their plan to make it mandatory to include clawback arrangements in any future severance packages.

THE EXTENT AND CAUSES OF THESE INAPPROPRIATE ADJUSTMENTS

5. The Comptroller and Auditor General identified 9 trusts which had inappropriately adjusted their waiting lists, 3 of them for some three years or more, affecting nearly 6,000 patient records. The numbers involved ranged from five patients at University College London Hospitals NHS Trust, to 1,800 at Surrey and Sussex Healthcare NHS Trust.[5]

6. Levels of seriousness ranged from University College London where none of the five patients had their care affected, to Barts and the London NHS Trust where the inappropriate adjustments went on for a number of years, and which posed potential threats to the patients affected, because their treatment was delayed.[6] (Figure 1)

Figure 1: Duration and type of irregularities
Trust	·Irregularities	Duration
Guy's & St Thomas'	·Inappropriate suspensions	4 years
Redbridge Health Care	·Inappropriate suspensions	2-3 months
South Warwickshire General	·Delays adding patients to the waiting list	4-5 months
University College London	·Patient records altered	2 weeks
Barts and the London	·Patient records altered ·Inappropriate suspensions ·Patients deleted from the waiting list ·Other inappropriate adjustments	4 years
Plymouth Hospitals	·Inappropriate suspensions ·Patient records altered ·Delays in adding patients to the waiting list ·Other inappropriate adjustments	1 year
Salford Royal Hospitals	·Long waiting patients not reported ·Inappropriate suspensions ·Outpatients not put on list till month of appointment ·Patients not put on the waiting list	3 years
Stoke Mandeville	·Inappropriate suspensions ·Non-deliberate administrative and systems errors, including failure to re-instate suspended patients	5 months
Surrey and Sussex Healthcare	·Patients not added to the waiting list ·Inappropriate suspensions ·Patients offered admission during their holiday period ·Patients offered non-existent short notice admission dates	1 year

7. Two of the key indicators of problems with the accuracy of reported waiting lists are the percentage of patients suspended, and the number waiting more than 12 months for treatment. The Comptroller and Auditor General suggested that the Department might investigate the 13 trusts where suspensions exceeded 10 per cent and where patients waiting more than 12 months exceeded 2 per cent (Figure 2).[7]

Figure 2: NHS Trusts with over 10 per cent of their waiting list designated as 'suspended' and with over 2 percent of patients waiting over twelve months
Royal United Hospital Bath NHS Trust	Wrightington, Wigan & Leigh NHS Trust
Epsom & St Helier NHS Trust	Good Hope Hospital NHS Trust
Isle of Wight Healthcare NHS Trust	Wirral Hospital NHS Trust
Nuffield Orthopaedic Centre NHS Trust	West Suffolk Hospitals NHS Trust
Countess of Chester Hospital NHS Trust	Royal Devon & Exeter Healthcare NHS Trust
Dartford & Gravesham NHS Trust	Winchester & Eastleigh Healthcare NHS Trust
Royal Liverpool & Broadgreen University Hospitals NHS Trust

8. In the light of the Comptroller and Auditor General's findings, the Department launched reviews of each of these cases and at the time of our hearing had not found any inappropriate manipulation. However in May 2002 the Department issued a press release announcing that while no evidence had been found in 12 of the cases, the review at the Royal United Hospital Hospitals in Bath had found:[8]

suspended lists being used inappropriately;

failure to report breaches of targets for long waits;

a series of adjustments to figures held on the patient administrative systems prior to waiting list figures being reported; and

poor systems, inadequate training, confusion, lack of leadership and inadequate financial management.

9. The Chief Executive had already left the trust. But as a result of the inquiries the Chair resigned with immediate effect and the Director of Finance was suspended. A team has been sent into the trust to sort out the situation, and ensure that waiting lists are managed better in future. A disciplinary investigation is underway.

HOW INVESTIGATIONS INTO THE ADJUSTMENTS WERE HANDLED AND WHAT ACTION WAS TAKEN

10. Figure 3 summarises the action taken in the nine original trusts where inappropriate adjustments took place. We looked specifically at how the investigations were handled and the terms on which staff left the trusts involved, including the use of compensation payments and confidentiality clauses.[9]

Figure 3: Action taken with individuals allegedly involved
Trust	Action Taken
Guy's & St Thomas'	Junior staff involved - no action considered appropriate.
Redbridge Health Care	Individual only accepted responsibility for 85 of the 250-300 inappropriate suspensions. Suspended and asked to resign during the disciplinary enquiry. Re-employed within the NHS. (Note 3)
South Warwickshire General	Individual suspended on full pay. Agreed to resign. Compromise agreement included a confidentiality clause and paid £22,500. No provision for clawback if re-employed. Reference made no mention of inappropriate adjustment, but new NHS employer aware of circumstances.
University College London	Individual resigned before adjustments came to light. Re-employed within NHS.
Barts and the London	No disciplinary action taken against manager allegedly responsible; considered to be 'organisational failure'.
Plymouth Hospitals	Two individuals suspended on full pay; they subsequently reluctantly resigned. Compromise agreements paid £146,000, and had confidentiality clauses; also provision for clawback if re-employed in the NHS. Both were. References did not fully reflect enquiry findings but new NHS employers aware of circumstances.
Salford Royal Hospitals	Responsibilities still being investigated.
Stoke Mandeville	Disciplinary action started against three individuals, who were suspended on full pay from June 2001. Two have since retired or resigned.
Surrey and Sussex Healthcare	No individual identified. Chief Executive left having failed to meet waiting list targets and received £95,000 in compromise agreement which included a confidentiality clause but no provision for clawback if re-employed within the NHS. Trust subsequently considered recovering part of the payment, and withheld £7,500.

(a) How the investigations were handled

11. At all trusts there was an inquiry. At four trusts this was internal, at five it was external. Most inquiries took between two and 12 weeks to complete, though in one case it took almost a year. In two cases trusts considered there were weaknesses in the inquiry report that impacted on their ability to take disciplinary action, and many of the staff involved have commented on what they consider to be major failings in the accuracy and completeness of the inquiry reports.[10]

12. At five of the trusts disciplinary action was considered against those allegedly involved. At the time of our hearing, disciplinary inquiries were still underway at two trusts. However, in the other cases, despite investigations into the irregularities, no one has been dismissed.[11]

13. The Department accept that in many of the cases the processes were inconclusive. In some cases they did not satisfactorily identify those responsible, and even where they did they did not follow through with disciplinary action. The decision-making and the preparation for disciplinary action often took too long. As a result, the Department are putting in place a standard format for investigations of this sort, and expect this to be agreed by the end of May. [12] They accept the need to give trusts clearer guidance and a clearer framework, and perhaps more support, but they do not see the need for some form of expert group, on the lines of the NHS Litigation Authority, to handle complex disciplinary cases. They believe this would run counter to moves to give the NHS greater freedoms and more responsibility locally.[13]

(b) The use of compensation payments and confidentiality clauses in settlements

14. At four trusts, seven staff were suspended. Four chief or deputy chief executives subsequently resigned or had previously left, receiving compensation payments totalling over £260,000. In one of these cases, the agreed termination took place before the irregularities were discovered.[14]

15. The Department told us there was a need to distinguish between suspicion of involvement in irregularities and proof. What people had done was to take pragmatic decisions as Chairs and Boards that it would be less costly, less disruptive for patients, and in the wider interests of the NHS to allow staff to leave. They would weigh up the potential legal and compensation costs involved, the prospects of success if challenged in an industrial tribunal, and whether it might be better not to have a long, protracted disciplinary process but get new people in quickly and move on. They would then reach a view, with professional advice, on the solution that best protected the public purse.[15]

16. Four of the suspended staff have been re-employed within the NHS. In one case the compromise agreement provided for clawback of compensation in the event of such re-employment, but in two they did not. In some cases their terms of departure militated against the trusts disclosing the circumstances to potential new NHS employers.[16]

17. All NHS employers are expected to carry out thorough pre-employment checks on all the staff they employ. Where staff have moved on, currently it is not possible for the NHS to continue disciplinary action against them because each trust is a separate employer. The Department plan to take action to remedy this situation in future, by strengthening arrangements for termination of contract. They also plan to look at whether it is possible to claw back money from those who received compensation payments and then went on to work elsewhere in the NHS, and to issue directions to deal with claw-back if similar cases arise in future.[17]

18. As regards confidentiality clauses, the NHS had issued guidance making clear that they should not be used, following earlier reports from the Committee of Public Accounts. Nevertheless, confidentiality agreements had been concluded in 4 cases at the initiative of the trusts.[18] In one case (Plymouth), the trust had misinterpreted the guidance. The Board had been aware that confidentiality agreements should not be used to gag whistleblowers, but they thought it appropriate to have an agreement that prevented the departing employee from talking badly about the trust. The Department confirmed that they would be making it clear confidentiality clauses have no place in the public sector. In doing so, they will check for consistency with other Government Departments and will share their experience with them.[19]

IMPACT ON PATIENTS

19. The inappropriate adjustments to waiting lists will have had differing degrees of impact on the patients concerned. In some cases, there was no impact, with patients waiting no longer than they would otherwise have done, and unaware of any irregularities. In others, patients waited longer than they should and their condition deteriorated during the longer wait. Particularly serious are those patients who were inappropriately suspended (at least 700 identified), were never put on the waiting list (at least 435 identified) or who were deleted from it (total number unknown). If action had not been taken to correct these irregularities, the trusts had no way ensuring that these patients received the treatment they needed.[20]

20. At one end of the spectrum were trusts such as University College London, where there were only five patients involved, none of whom had their patient care affected, and South Warwickshire General where, though the total number of patients was high, few if any had their treatment delayed. At the other end, were trusts such as Salford Royal Hospitals where over 200 patients were denied the opportunity to be treated within 18 months, and Barts and the London where inappropriate adjustments went on for a number of years, posing potential threats to the patients affected because their treatment was delayed.[21]

21. Once the inappropriate adjustments came to light, trusts took prompt action to identify all patients who may have been disadvantaged, and to ensure that they were the subject of remedial action. Such actions included sending patients to other trusts and the private sector for treatment, and re-instating suspended patients to the waiting list.[22]

22. The Department of Health do not believe that any patients died as a result of these cases, but they have asked trusts to review the impact on patients. The Department expect that by the end of May, the trusts will have reported back to them on the extent to which patients who may have been harmed have been told it was the result of waiting list manipulation, and the extent to which cases have led to compensation to patients.[23]

ACTION TO PREVENT A RECURRENCE

23. In response to the Comptroller and Auditor General's Report, the Department of Health took initiatives to ensure that any inappropriate adjustments to waiting lists are identified and that effective action is taken against individuals and within organisations where similar cases occur in future.

They introduced a series of triggers, for example where the number of patients suspended from the lists totalled 10 per cent, to identify cases for review.[24]

They had asked the Audit Commission to initiate a series of spot checks on waiting list statistics hospital by hospital, starting in 2002-03.[25]

Waiting times for all NHS consultants will be published on the internet, so individual patients will be able to see if their experience bears out claims on waiting times. They are also moving to a system of booked admissions by 2005.[26]

Any manager found to have distorted waiting figures will face dismissal on grounds of gross misconduct. This will be supported by a new mandatory code of conduct for NHS managers, as recommended by the Bristol Royal Infirmary inquiry. Anyone breaching that code will not be re-employed in the NHS. The Department are looking, in particular, at how the Code will deal with people who resign from one NHS Trust before disciplinary action has been completed and then seek employment elsewhere in the NHS.[27]

In addition, they now have much better systems for whistleblowing and are putting in place an inspection system through the Commission for Health Improvement, and they will publish more information on NHS Performance.[28]

24. In April 2002, in Delivering the NHS Plan, the Government announced the creation of a new Commission for Healthcare Audit and Inspection (CHAI), which will bring together the work of the Commission for Health Improvement , the health value for money work of the Audit Commission and the private healthcare role of the National Care Standards Commission. The new body's role will include validating published performance assessment statistics on the NHS, including waiting list information.[29]

1 C&AG's Report, Inpatient and outpatient waiting in the NHS (HC 221, Session 2001-02), paras 1-2; Q53 Back

2 45^th Report of the Committee of Public Accounts, Inpatient and Outpatient Waiting in the NHS (HC 376, Session 2001-02) Back

3 C&AG's Report, Inappropriate adjustments to NHS Waiting Lists (HC 452, Session 2001-02) Back

4 Delivering the NHS Plan, Cm 5503 Back

5 C&AG's Report, para 2 and Figure 1 Back

6 C&AG's Report, para 2 and Figure 1 Back

7 ibid, para 3 Back

8 Qs 3-5 Back

9 C&AG's Report, Figure 1 Back

10 C&AG's Report, para 2 Back

11 Qs 11, 115-116 Back

12 Qs 11, 111-113, 184 Back