Health Committee - Minutes of EvidenceHC 657

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Oral Evidence

Taken before the Health Committee

on Tuesday 12 February 2013

Members present:

Mr Stephen Dorrell (Chair)

Rosie Cooper

Andrew George

Barbara Keeley

Grahame M. Morris

Mr Virendra Sharma

Chris Skidmore

David Tredinnick

Valerie Vaz

Dr Sarah Wollaston

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Examination of Witness

Witness: Robert Francis QC, Inquiry Chairman, gave evidence.

Q1 Chair: Mr Francis, you are very welcome to the Committee. You have devoted what must seem a very long period of your life to examination of a tragedy in Mid Staffordshire. We look forward to discussing your extensive report with you.

I would like, if I may, to open the questioning by referring to what is, I think, the core theme that comes out of your report, and that is the importance of achieving a change of culture, building on the lessons of what went desperately wrong at Mid Staffordshire. I want to link the concept of culture with the concept of accountability. I do not pretend to have read every word of every volume, but I have read the summary of your report and I was struck by page 37, paragraph 112, where you say: "Individuals and indeed organisations acting in accordance with a culture ... cannot always be held personally responsible for doing so."

That seems to me to encapsulate one of the central dilemmas here, which is whether individuals who fail in their professional duty can attribute that failure to a failure of culture or whether they should be held personally accountable for what they did on the day. I would like to open the session by exploring how you feel we should exonerate individuals for personal failings simply on grounds of culture.

Robert Francis: Chairman, thank you. Can I start by putting this in the context of my terms of reference, which were very much to examine the actions or inactions of organisations? I was specifically steered by the terms of reference to examine the culture of those organisations against a background of the most appalling care that has been given to large numbers of patients in circumstances where people were saying, "We didn’t know about it", but, on examination, it appeared there were any number of warning signs that, if looked at from a patient’s point of view, might have led to a different result.

There would have been two ways of running an inquiry of this nature, it seems to me, and that would have involved possibly different terms of reference from the ones we had. The way I approached it, given my terms of reference, was to seek to find out from as many people as possible involved in what actually happened in and around Mid Staffordshire what they did and did not do, and what their explanation was for that; through that, to build up a picture of people’s thinking; and, at the end of the day put that in a report and, to that extent, hold up a mirror not only to the organisations but also to those individuals to show them and the public in general what had happened and perhaps why it had happened.

I then went on to make recommendations, to draw the lessons for the future. Clearly, one of those lessons is that there is insufficient accountability in this system. It is for that reason that I make a number of recommendations in that regard. I have said in the seminars that I ran-so it is not something that was new to the report-that it was quite clear to me that there was what I described at those seminars as a tsunami of anger heading towards the NHS. The reason was that there was this complete-not "complete"; that would be unfair; there was an absence of thinking on a daily basis about the impact of actions on patients. But there is a lack of accountability for the leaders of the service. I use the word "leaders" as meaning anyone, from a sister running a ward to the head of the NHS or the Secretary of State. They are all leaders and they all have different responsibilities.

The alternative way of running this inquiry would have been to have as one of its terms to identify the individuals responsible for this disaster. That inquiry would have had to have been a fair process. You cannot try people without it being fair. I personally think that would have had a number of unfortunate results. The first, which is important, would have been the duration and expense of the inquiry. Every single person involved would have instructed lawyers and every single person would have had to have been a core participant. I know some have criticised the length of my inquiry as it was, but I think we would have been running this inquiry for years and the lessons would not have been learned.

But perhaps the most important point would be that I do not think we would have found out as much as we did. It is obviously a matter of opinion, but I took the view that I was given as full disclosure by individuals as I could reasonably expect in a complicated matter. I have not accepted absolutely all the evidence I have heard, and you will see where I have and where I have not. But, on the whole, I believe that this inquiry produced a picture-a very unhappy picture-of the system, which would not have been produced, and certainly not produced in the time that it was, if I had taken the course of looking at it through the individual perspective as opposed to the organisational perspective. That is the first point.

If I am going on too long, please tell me, but a more direct answer to your question is this. Of course, in one sense everybody who works in a service is personally responsible for their actions and has to reflect on that. But if you identify, as I have identified, an ingrained culture of "doing the system’s business", which is the way I have described it, rather than focusing on the patients, culture can get to the point where it is a habit and, at the end of the day, it is a habit everyone in the system has. A culture is sometimes defined as "the way we do things around here". It may need a cathartic moment in which everyone becomes aware that that is how the system is running and that it clearly needs to change.

That is really what I meant-and I have now given far too long an answer-by the rather short sentences in the report on responsibility and accountability.

I really do not believe that this report exonerates people at all. I can say that. I do urge those who have not done so to read the accounts given of the history in the various chapters about the organisations where I set out in detail what individuals have done and have not done, what letters they got and what their reaction was to those letters. Others may disagree, but I personally believe that that is the useful contribution a public inquiry can make to this situation.

Q2 Chair: Accepting that your inquiry was not a trial-that is the first part of the answer you have given, which explains the difference between the two, and I do not want to go into that-what I do want to go into is what the nature of the culture change is that you are looking for. Surely, absolutely at the heart of that culture change needs to be a greater individual acceptance of responsibility, including the responsibility for people to be difficult with their professional or managerial colleagues when they see something going on that should not be going on. Isn’t that absolutely what the culture change is all about?

Robert Francis: I could not agree more, Sir. It is absolutely important that everybody in the health service, from top to bottom or bottom to top, whichever way round you wish to put it, understands their own personal responsibility for changing this culture. There are any number of different ways in which that can be done, but in one sense it does not require any of my recommendations for people to do it. My recommendations are intended to encourage them-in some cases forcibly encourage them-to change. But I do think, whatever the field of activity it is, that people will have a responsibility for demonstrating their commitment to the reorientated culture and that there are different ways in which individuals will be able to do that. A nurse can do it by showing care and compassion to patients. The leader of a trust can show it by promoting openness and transparency. People further up the chain can show it by honesty in relation to whether a service can be provided or not or the provision of balanced information, by way of examples.

Q3 Chair: All of those things are important. I will have one more go and then I will allow my colleagues in. That is expressing it positively, and, of course, we all prefer the positive, but occasionally, as human beings, we see something go on that should not be going on. If the culture change is to happen, then we have to have a position where individuals accept their responsibility, as I have said, to be difficult about the people working round them and say, "That should not have happened and, if they don’t report it, I am going to."

Robert Francis: Yes. I make a number of recommendations designed to reinforce that very important need. I recommend that not only should there be a duty, for instance, on individuals to refer things to their managers but there should be a criminal offence for obstructing that duty. I recommend that there should be accountability by way of allowing leaders of organisations to be disqualified from eligibility should they breach the rules in a very serious way. I am very much in favour of personal accountability, but in order to impose that you need to have the structure to do it, and, unfortunately, we have now discovered that has not been there at least for a significant swathe of the service.

Q4 Valerie Vaz: Can I start by saying that we are all very grateful for your report and the time that you have spent doing it? It must have been quite difficult and in some cases quite harrowing. Forgive me that I did not read all three volumes of the report, but I did read all the recommendations and it feels like it is a doughnut in that, whether or not it is a ring or a jam doughnut-and that is a wrong kind of analogy to use on a Select Committee-in the middle, the jam or the hole is missing, and there does not seem to be a reference to money. How are any of those recommendations-we hope all of them-going to fit in with the current culture of the efficiency savings in the NHS?

Robert Francis: I agree that my inquiry did not look at the finance, partly, I suspect, because, in one sense, I was not asked to. The essential issues that I was looking at were about the absence of what I have called fundamental standards from the service. What I have sought to try and do is suggest a way in which there can be recognition and enforcement of fundamental standards, by which I mean the sort of things that were going on which no one would ever agree should be tolerated. If I can put it bluntly, that is not an area in which cost should be relevant. If you cannot afford to provide a service in which people are cleaned and fed properly and get their medication when it is prescribed and so on, then it should not be a service at all. Therefore, one starts from that position.

Obviously, the recommendations that I make need to be looked at in the context of money, but can I say this? It was specifically part of my role in the terms of reference to take account of the system as it now is. As you might imagine, over the last two years that has been, for me, a moving target and I make no criticism of that, but it was a challenge. One of the reasons I had not recommended the creation of new organisations and so on is partly because we do not want reorganisation. Also, I have done my very best to make as little change to the system as possible but by inserting into the system ingredients that put the patient first rather than the system’s business. I hope that can be done within existing budgets, but we will have to work that out.

Q5 Valerie Vaz: I have one quick followup. There are some amazing recommendations-all 290 of them-and I wondered if the Secretaries of State, old or new, mentioned to you about coming back and revisiting whether any of those recommendations were going to be put through. Do you have a brief to report back to the Secretary of State after the institutions have had a chance to look at the recommendations and implement them? Are you revisiting them?

Robert Francis: No. My brief, as you put it, ends with the end of this inquiry, as it stands. I was clearly anxious, as I say, that this report should not suffer the fate of some in the past. I believe there is in fact a consensus that it should not do so, but I was anxious that a way should be found to ensure that there was a continual review of that. You will see that the way I proposed is to involve yourselves, should you see fit to do that.

Chair: Thank you for that.

Robert Francis: Can I just say this? First, it has been clear to me-and I have quoted your reports in my own-that this Committee takes its job very seriously. Secondly, it does seem to me important that there is a democratic continued accountability, if you like-a review of progress in such an important area. That is not something I could ever provide even if I was asked to do it. Clearly, having spent three years of my life listening in horror to the stories I have heard, I cannot just walk away and forget I have ever done it and put it in the bag like another barrister’s case. It is just not like that. But, no, I have not been given a brief to continue to look at it, but will I continue to take an interest? Of course I will.

Chair: Thank you. Several colleagues want to come in, but I know Virendra needs to go so I will bring him in first.

Q6 Mr Sharma: You talked about changing the culture and that culture had been going on for many years. Individuals are part of that culture and you have not made any recommendations in regard to individuals. When you want to change that culture, the attitude of staffing and the board members at that time, would you expect system or professional regulators to take action against individuals as a consequence of the findings of your report?

Robert Francis: That is a matter for them. I have made observations in the report about the conduct of the regulators in the past when they have not, in my view, been sufficiently proactive in going and looking for individuals who are accountable under their codes of conduct for the things that are found wrong in a system. I believe they need to change in that regard. I have not said that individuals should not be held to account; clearly they should be where it is possible to do so. So I would endorse that. If you take the report of my two inquiries together, I believe you would find areas that are worthy of investigation and, as far as I know-you will have to ask them-they have been doing so.

Q7 Chris Skidmore: The Health Secretary spoke about the possibility of a police investigation into individuals involved in this scandal. Would you endorse that?

Robert Francis: If there is going to be a police investigation, then possibly I should not comment on it. I can tell you, because it is in the report, that certain of these cases have already been investigated by the police-at least one of them springs to mind-and the Crown Prosecution Service decided there was no evidence to prosecute. It is not that there has been an entire absence of police investigation. I do not think I could comment in advance of a police investigation whether it was worthwhile or not. If there are crimes committed, then, of course, that is so, but one of the recommendations I make, I am afraid, is to produce a wider range of criminal offences that could be looked into than currently exist. At the moment, you have the opportunity of an individual manslaughter charge and there may be possibilities of offences in relation to wilful neglect of vulnerable people, but-and it is not for me as I am not a criminal lawyer-there did not seem to me to be a range of criminal sanctions available to reflect the sorts of terrible things that I found but which do not necessarily fit easily into a criminal category. More than that I think it would be unfair for me to say.

Q8 Barbara Keeley: On the same theme you recommend the introduction of a fitandproperperson test for all directors of bodies registered by the CQC and all the foundation trusts registered by Monitor, including a requirement to abide by a prescribed code of conduct. From the evidence you have seen, what risk is there that some present directors of NHS bodies might not pass that test, and should in fact the test be applied retrospectively? As part of what we have just been discussing, should those things you have recommended now be retrospectively applied?

Robert Francis: I have not recommended retroactivity and I think that would be difficult to do, except in this way. If you impose a fitandproperperson test, as I have suggested, then the issue is, "Is the person a fit and proper person today?", and one of the things, no doubt, one could look at is history. Before one gets there, one not only needs a fitandproperperson test, but there has to be some means of due process to allow a judgment on that to be formed. In general, it is unfair-and probably, in certain circumstances, unconstitutional-to make things like this retrospective. But just as if you are employing someone to do a job, where you can look at what they have done in the past, no doubt the same, to some extent, if defined, could apply in a fitandproperperson test.

Q9 Chair: None of these people hold office indefinitely, so, as they are reappointed, presumably if there was a fitandproperperson test introduced, it would be applied on reappointment.

Robert Francis: If I may say so, my idea of a fitandproperperson test is that it is a state, so it is something that is continuous, and the mere fact that you have a job does not mean you cannot be looked at for such things that you either do in that job or maybe have done in the past. The comparison is really with the fitnesstopractise test that the General Medical Council and Nursing and Midwifery Council have, which looks at past conduct in relation to its relevance to today’s fitness.

Q10 Dr Wollaston: We accept that your inquiry was not a trial and that you found out more taking the approach you did. It is nevertheless surprising, isn’t it-given that if hundreds of people died in any other organisation, such as the police or the prison service, we would expect somebody to take accountability for that-that no individuals have resigned as a result of this? In particular, do you feel that Sir David Nicholson should be considering his position?

Robert Francis: I have come here as the chairman of a public inquiry with a report that I have written and I have to stand or fall on the basis of what is written about individuals in that report. I have said and will say here that all individuals who are named in that report need to reflect on what is in the report and evidence a commitment in relation to the change of culture. But more than that I do not think it is appropriate for me to say about individuals. All I would say is that it is not accurate to say that no one has resigned. If you look at the foundation trust level, those who are principally responsible for the care of patients in that trust are no longer there. I have made comment about the circumstances in which some of those have left and that was the foundation for my recommendations in relation to fitness for office. But I do not think it is right for me to comment. It is not for an inquiry chairman to say what people should do following an inquiry. It is for them and those who employ them to consider the report, and, frankly, that sort of question should not be addressed to me; it should be addressed to them.

Dr Wollaston: Thank you.

Chair: They are coming.

Robert Francis: I thought they might be.

Q11 Rosie Cooper: Your inquiry looked at incidents that had taken place over a number of years and I would like to fast forward to evidence we heard in the last few weeks from the two lead nurses-one from the Department of Health and one from the National Commissioning Board. I had an exchange with Jane Cummings about the CQC report, which said that there were a fair number-I think it was 15 or 16, of that order-of hospitals where nursing was seriously understaffed. Weeks had passed since that report and I asked her what she had done. She indicated that she was the professional lead nurse and that she was waiting for reports. I pointed out that time had gone by and asked what action she had taken. I could not ascertain any action that she had actually taken, but what she did say was that the CQC would take action very quickly if there was-and these are her words-"an absolute risk to patient care". So from that exchange, to me, there appeared not to be any inclination for the National Commissioning Board’s lead nurse to be accountable for the situation that pertained in those hospitals.

Recently, the Secretary of State Jeremy Hunt, I would suggest, has been seeking to distance himself as well because he admitted that politicians "on all sides have not been brave enough to speak out in the face of failure" and that the "deification" of the NHS may have led to the problems not being addressed. What we appear to have is the CQC as the backstop. If the people now at the current helm of the NHS, the National Commissioning Board and the Secretary of State do not take the lead, what is going to happen? Who do you think should get a real grip of this situation now? If the professionals leading it and the lead politician are both talking a good game but the doing seems still to be missing, what would your opinion of that be?

Robert Francis: I did not hear that exchange, but I can say two things about staffing and the lessons I would seek to draw. First, where it is known that there is a shortage of staff, as there was at Mid Staffordshire, it is dangerous, putting it bluntly, to take a long time over the skill mix review and so on and then say, "Oh, well, we will implement the necessary changes in nursing staff gradually because of the financial considerations," unless, while you are doing that, you make absolutely sure that you are delivering a safe service. That was one of the fundamental things that went wrong.

My recommendation for tackling that is, I am afraid, complicated, but anything to do with the NHS is complicated. I would like to see a simple and very clear set of fundamental minimum standards, which we all agree should never be breached, and if they are it is intolerable, and if it causes death it should lead to a criminal offence. But we need to be able to equip trusts with the information and the tools with which to make sure that they can comply with such exacting standards; well, they are not exacting standards-they are the absolute basic minimum. One of those is, "As a director of a trust, what staff do I need to run a cardiac unit or an old person’s ward? What principles do I apply?" I heard that there are tools out there, but there seems to me to be no clarity at all which would help the director of a trust to know what the situation was on his wards.

As part of the background of guidance and a means of compliance, I have recommended that NICE should do work on this, not just in a generic sense, "You need x number of nurses in a hospital," but, "How many nurses do you need on a daytoday basis in an older person’s ward or a surgical unit and so on?", to be sufficiently clear that a member of a trust board will be able to say to the director of nursing, "How does this guidance work on our ward today?", and they ought to know. One of the things with the trust was that they did not know-it took months to find out-how many nurses they actually had. So at this most basic level-

Q12 Chair: Presumably, they were paying them.

Robert Francis: Yes, but the pay records did not quite equate with the nursing establishment figures, and it took the new person-a human resources director-a long time to work out how many nurses she had on her staff. That is how bad and difficult it is. At that level, it has to be got right and that is the way I would seek to do it.

As to the broader question, "Who is taking responsibility higher up the system?", I have in my report commented on the move of the chief nursing officer to the National Commissioning Board and the director of nursing and public health in the Department of Health. All I have said about that is that I believe that that should be kept under review with regard to how effective that makes the voice of nursing at the centre of Government.

One of the crucial themes, I hope, of my report that comes through is the need to enhance what I have called the voice of nursing in all sorts of different ways. One of those, if I may say so, is the voice of nursing in, "How many nurses do you need to run an institution safely?" The senior nurse leaders in our country must be recognised as having an important role in that.

Q13 Rosie Cooper: Forgive me, Mr Francis, but while I absolutely accept everything you have just said-and I do-it is horrifying to have sat here a few weeks ago and had the lead nurse of the National Commissioning Board tell us that she did not believe in ratios, could not identify an action she took, except waiting for a report, and kept emphasising that she was the professional lead. As to this professional leadership, in an era of the CQC saying that hospitals are short of nurses, not physically going there and doing something to make certain of the things you have just spoken about, the people in the system-the public-will be horrified. How can a hospital not know how many nurses it has? How does the finance director-as the Chairman just said, they pay them-not know whether his books add up? You couldn’t run a shoe shop like this. So it is horrific. Do you believe-I think you have hinted at it-that we should establish minimum ratios of nurses to patients and that to breach that would be absolutely unacceptable?

Robert Francis: What I was told and accepted was that it is difficult and probably not helpful to have overall ratios and that is the standard you work to because circumstances change on a daytoday basis. The needs on one day change according to the needs of the patient. Some places using different work systems may be able to do the job perfectly safely and effectively with fewer staff. So there is a range. What I thought is that, however difficult it is-I am not for a moment suggesting it is not-we should provide evidencebased guidance which allows trusts to know that, if they follow it, they will have sufficient nurses to provide safe and proper care in an individual clinical setting. The difficulty is that, if you have something that is too broad, it does not take account of the multiple different ways which the ingenuity of the medical profession finds to treat the same condition. To lay down in a regulation, "Thou shalt have N number of nurses per patient" is not the answer. The answer is, "How many patients do I need today in this ward to treat these patients?" You need to start, frankly, from the patient, as you do with everything. "How many nurses or what proportion of a nurse do I need to treat Mrs Smith in bay 3?" You add up from that, it seems to me. But it may be, having done the work that I have suggested-and I really hope that that recommendation is taken on board-that you might end up eventually with a coherent formula that would work more universally. It did not seem to me, on the evidence that I heard, that we were there yet.

Chair: This is a subject Andrew wants to come in on.

Q14 Andrew George: Yes, it is. Our structure is slightly awry, but you don’t need to worry about that.

Robert Francis: I hope that is not my fault.

Andrew George: No, it is not your problem, but I wanted to telegraph that to our Chairman.

First of all, I want to come back to some of the broadbrush issues and then get back to the issue of staffing levels, if I may. Your report is excellent in identifying that in this case patient safety became subordinate to a preoccupation with tickbox targets and with making sure that the books balanced and so on, but of course the NHS also suffers from drowning in management babble as well. One of the difficulties I had in reading your report, if you don’t mind my saying so, is that there were a lot of unarguable concept phrases there about common values, fundamental standards, high levels of compliance, strong leadership, candour and compassion, and no one is suggesting or advocating that we should be doing the opposite-in a sense, you are pushing at open doors with entirely agreeable concepts.

When I was looking at the issue, something which is repeated through the report on many occasions-you repeated it again this morning-is that this should be founded on fundamental standards. I looked throughout the report-I have to say that I did not read every word, but I read quite a lot of them-and could not find any indication as to what those fundamental standards are. We can all agree that there should be fundamental standards, but can you give us any kind of indication? Give us some hard edges.

Robert Francis: I apologise for that. I do give what I consider to be some examples in the report. I am afraid off the top of my head I cannot tell you which page, but I will do so later, if you wish. In so far as I am nonspecific about what those fundamental standards might be, that is for a very good reason. The reason is that in the past-it is a complaint I heard frequently at the inquiry-the standards that have been set for the CQC to regulate by, or before it the HCC, have, on the whole, either been set by Government and handed down, or at least, where there has been consultation and so on, it has been perceived by those in the system that that is the position and they have never been, in the jargon, "owned". I utterly accept what you say about management babble, and I am sorry to hear you think I have adopted it, because I really tried not to in my report.

What we need is a set of standards that are the result of a consensus between the public who are being served and the professionals who have to provide the service according to these standards, and then endorsed by Government. The sorts of things I have in mind on the page that I am talking about-I actually mentioned some of them this morning, and this is not drafted-are that it should be regulated that it is unacceptable that a patient should be left in filth; it should be unacceptable that a patient is left without food and water; and it is unacceptable that a patient should not receive medication that has been prescribed. I am talking about extraordinarily basic things of that nature which we would all think would be provided day in day out in our hospitals but manifestly were not on some, at least, of the wards of Stafford.

Q15 Chair: Can I be very clear about this? When you talk of minimum standards, are you talking about those kinds of standards from the patient’s perspective?

Robert Francis: Yes.

Q16 Chair: So the patient knows whether the minimum standard has been observed or not.

Robert Francis: Yes, exactly.

Q17 Chair: You are not talking about NICE guidelines about how to deliver care.

Robert Francis: No. I have deliberately not used the word "minimum". What I am talking about as a standard I call a "fundamental standard", which is something that no sane person would ever accept not to be provided. If you have a minimum standard, a core standard, or whatever, I am afraid that evidence tends to suggest that that is what people work to and that is all they provide. I am talking about things that we used to assume were provided but we now know were not. They are things that a patient can recognise are not being provided, a member of staff there can recognise are not being provided, and, therefore, both can immediately take action to do something about it. My impression of the current standards regulated to by the Care Quality Commission is that it may be that the Care Quality Commission understands, by going round, whether there is a breach of them or not, but you or I wandering around a ward would not know. It is for that reason, rather strangely, although there are criminal offences theoretically involved in a breach of the regulations, that they can only be prosecuted if a warning notice has been served in advance. That means that some of the terrible things I have seen witnessed in the report about the care of patients could not be prosecuted as a breach of the regulations because there has been no warning notice.

Q18 Andrew George: I want to come back to the issue of registered nurse ratios. I totally agree with you that you should not adopt a onesizefitsall approach for all the reasons you have explained. In terms of getting those minimum standards right and the priority of where the different standards might lie, if someone is lying in faeces, for example-which clearly is something which is unacceptable-but, on the other hand, there is another patient next door who is about to have an acute episode that might result in termination, clearly there is a priority there which a nurse needs to make a professional judgment about taking action on, as to whether to clean up a patient or whether to save a life. You do accept that, in terms of the challenges that nurses face on a ward on a momentbymoment, daytoday basis?

Robert Francis: Yes, I do, but the way I deal with that is by saying in relation to an offence that there is a defence that it has to be reasonably practicable to do that. What I want to see is a circumstance where, if I take an illustration, if a nurse comes on duty and discovers that there are two nurses and 30 patients and they are all in desperate need, clearly she has to prioritise what she does, but she should not be put in that situation in relation to the compliance with fundamental standards. What she must do, and is under a duty to do, is to inform her management that this just cannot go on. If she does that, she has done all she possibly can. But has the management? Probably not, because they have not got the staffing right and they must do something about it. I want, through this, to ensure that those who are responsible professionally at the front line are not just left with nothing to do. I wish to see them empowered and encouraged to express a view because, by expressing the view, they are actually defending their own position. It is often said that the problem with serious sanctions is that it causes defensiveness. Let us use the defensiveness by ensuring that the responsibility gets to where it should be, which is where someone is capable of doing something about it.

Q19 Andrew George: Can I come back to the issue? I am glad we are on the nuts and bolts of the service itself. With regard to the media reporting of lack of compassion and almost incompetence of nursing, especially professionals, in the service itself, I want to be clear, in terms of your own mind having looked at it in such great detail, whether this was a case of quality or quantity of registered nurses, for example. Was it fundamentally the fact that the registered nurses and other staff were put in an impossible position, or was it because it just happens to be the coincidence of a particular group of rather incompetent and compassionless staff that happened to all arrive at one site at one particular moment in time?

Robert Francis: It is a combination of the two. We had, over a period of years, a growing and chronic staffing deficiency. Through that, I am afraid people are habituated to poor standards. But, in addition to that, there was clear evidence of some inexcusably callous treatment of patients, which had absolutely nothing do with whether there were sufficient staff around or not, but simply, I am afraid, people who did not care. As to how individuals get to that stage, it is possible that some of them arrived in the profession like that, but, unhappily, it may be that morale deteriorated and people became like that. So it is a combination of those.

Chair: You can have one more go.

Q20 Andrew George: I want to be absolutely clear on this point, that you are saying that establishing registered nurse to patient ratios is something which is desirable, bearing in mind that you cannot establish a onesizefitsall across the whole service. But having a mechanism by which-within your fundamental standards, I assume-that can be achieved is something you believe is the obvious outcome of your report.

Robert Francis: Can I deconstruct that slightly? The obvious thing is that on a dayindayout basis, the ward sister, the director of nursing or whoever else it is in a hospital, needs to know, "I have enough nursing staff of the right calibre on this ward to deal with the patients I have there today." The board needs to know that is happening on a daytoday basis. In order to do that, having a standard in my regulations, as I will propose, that says, "Thou must have X number of nurses" will not, in my view, work-certainly not on what we know at the moment. What we need is evidencebased guidance, which, if followed, would mean that the hospital would say, "We have done our level best to produce that and actually we do have enough staff" We then need to look, if that is the position, at why the individual nurses are not providing the work. Yes, you do need that.

Q21 Chair: If a fundamental standard is something that can be recognised by a patient, it cannot be "a number of nurses", can it?

Robert Francis: No, except in the broadest possible way, which is not very helpful.

Q22 Barbara Keeley: To go back on this issue, it is very important that we are covering this ground and stressing this issue. Not only was it absolutely clear from the accounts of families in your report that the lack of nurses was such a critical issue-reports of hunting for a nurse for quite considerable periods of time, multiple buzzers ringing and totally being ignored, patients falling due to lack of assistance when they needed to use a commode, or whatever; that is there-but we are in a situation, as a Committee, where we have a situation across the piece where this is happening in more places than Mid Staffs. The CQC have reported that 17 hospitals currently have a dangerously low staffing ratio and that is affecting patient safety; and they have said that.

Unfortunately, though, there seems to be a view, which has already been touched on, of national nurse leadership that other things can come into play which negate this point about essential nurse staffing ratios. In fact, having put the questions that we did-I know you were not here, but it is important that we play out this argument-the answers we got back were something like, "It is not just about ratios; it is also about leadership," as if somehow leadership could overcome this difficulty. I do not personally believe it can and I think it is absolutely important that we pin this one down. However good or compassionate and everything else that a nurse personally is, it is an impossible situation for them. It is almost as if they hid, from the descriptions that were around; I think they were pushed into a situation of not coping; they just were not around. It needs to be stated that this is something which cannot fall in this hospital, or other hospitals, to levels where an organisation like the CQC are saying, "It is dangerously low", because it seems that nurse directors and nurse leadership, right up to the Commissioning Board level, are thinking that this does not have to be the case and that there are other ways round it. Can I put that to you because that is what we are getting, both as Members of Parliament from Ministers and from nurse leaders in this Committee? It is very important that we pin this down.

Robert Francis: I agree entirely that you cannot provide a safe service, complying with anyone’s fundamental standards, unless you have sufficient staff to do it. A lack of that, by whatever means of judgment you have, is a very important danger signal that needs to be examined. However, leadership is also extremely important, whether you have the right number of staff, or particularly, frankly, if you do not have the right number of staff, it is the leader on the ward who should be banging the drum and saying, "I don’t have enough staff," and, with their professional integrity and, dare I say it, courage, which is certainly necessary, saying, "We cannot do this, and I must report this wherever it is necessary to report."

Can I make another point on leadership? Although you are of course right that in Stafford many of the problems may well have been attributable to the fact that there were not sufficient staff around, there was also evidence that such staff as were around would not be paying attention to any patient on the ward. There is, I am afraid, an element of that. That aspect, undoubtedly, is attributable to leadership. No ward sister on a busy ward should be allowing staff not to go and look at their patients. I would not wish my answer to be taken as meaning that nurse leadership is not important; it is absolutely vital, but, within itself, it is not the answer to issues concerning inadequate staffing levels.

Q23 Barbara Keeley: That is the view that seems to play back to us in this Committee and the House-that somehow, with adequate leadership or some other magic ingredient, you can get over issues of nursestaff ratios.

Robert Francis: I can see that good leadership can make the work that the nurses do more efficient-for instance, which is a hypothetical example we are familiar with and have been hearing about it, stopping the nurses reading their magazines at the desk and getting them out working with the patients. Leadership is about producing effective work from the work force that you have. But if you assume that your nurses are working effectively and you still do not have enough staff to go round, then that is where you have the problem. I am afraid all these things are difficult and I am not going to pretend they are not, but it is a combination of having enough staff and the right leadership. One without the other is not sufficient.

Barbara Keeley: The point you made about the voice of nursing is very important, because our concern was that the voice of nursing did not seem overly bothered about this issue, and it is a very important issue, I think.

Q24 Chair: Can I be clear that when we talk of "fundamental standards"-again, I am picking up the points you made that this must be recognisable by the patient-the fundamental standard, as I hear what you are saying, is that there should be adequate nurses, properly qualified, to discharge the function in the care environment rather than some kind of predetermined formula? Is that a correct summary of what you are saying or not?

Robert Francis: Not quite. My fundamental standards are, as you quite rightly say, the things that the patient, and indeed a member of staff, can recognise on the ward, and that is: is the patient being cleaned and are they being fed?-all those sorts of things. I am not going to prescribe that list because it can grow, but it has to be things that are achievable. In order to be achievable, of course you need the right staff to do it. I think putting a number on the staff in the regulations, or even saying that at that level of regulation you need adequate staffing, is maybe the wrong way to go, because the patients may not know what that answer is and the individual member of staff might not even know what that answer is. What we need is to make sure, through the guidance, the research and the evidence base that every board has a means of knowing whether, on a daytoday basis, a ward is staffed. That is not quite the same as saying it is one of the fundamental standards. It is how you get to comply with the fundamental standards; it is how you deliver the fundamental standards.

Q25 Chair: The fundamental standard itself probably would not refer to it. It is a means of delivering the fundamental standard.

Robert Francis: I don’t mind there being a regulation somewhere, as there is now, that says you have to have adequate staffing, but it does not do anyone any good.

Chair: Understood.

Q26 David Tredinnick: Looking ahead, what indicators would you use to identify the successful implementation of the cultural change that you are recommending in the NHS?

Robert Francis: That we stop hearing about patients being left in the condition that those in Stafford were left in; that, if it happened, we have heard that members of staff have spoken up about it; that, if it is impossible for the standards to be met, those in charge are honest about it and say, "We cannot provide this service," for whatever reason-money or whatever; and that the public are given open and honest information about the performance in every hospital.

We have not talked about my other sort of standards, which are basically, I would suggest, a responsibility of those commissioning services-what we pay for in terms of the wider quality field. In relation to those, we need to have proper, informed information about how hospitals are doing against those sorts of standards, and we need the truth. At the moment, I am afraid we tend to get what the hospital board wants to tell us is good news rather than the bad. In broad terms, that is what we need. I could go on as I have five main heads about nursing and so on, and you have seen what they are. I would like to see those. Above all, we need openness, honesty, transparency and candour, because the rest almost invariably follows.

Q27 David Tredinnick: Moving on from that but related to it, you say that care workers were doing the system’s business rather than focusing on the patient. You said that this morning. Do you suspect that this system’s business rather than healthcare of patients is widespread across the health service and not something that you have just seen at this particular organisation?

Robert Francis: Because I have described it as a culture, and possibly an institutional culture, that must be the case. It is something that has to be guarded against continually because no one put the policies in place from either Government that we have looked at in order not to look after patients. That is what the purpose was. But those that do the work end up doing the job, not serving the patient. I do believe that means have to be found to put in front of every person in their mind every day the question of, "How is what I am doing impacting on patients?" If they can do it in a shop, I don’t see why they cannot do it in the NHS.

Q28 David Tredinnick: So this mechanical process has spread across the service.

Robert Francis: Yes.

Q29 David Tredinnick: I put it to you that doctors, nurses and healthcare workers are not naturally uncaring. They all go into healthcare because of, very often, a vocation, because they love patients and want to dedicate their lives to patients. So we are talking about a systems failure here, which you have already alluded to, in the management structure. Crucially, how are you supposed to audit the quality of nurse and doctor care then? It is a qualitative thing. It is not necessarily something that you can put down in numbers, is it? How do you audit that?

Robert Francis: I am glad you mentioned numbers. I strongly believe-it is in answer to your question but it is also rather wider than that-that the statistics of performance are very important, but so much of what went wrong in Stafford, whether it was to do with an individual doctor or nurse or the system as a whole, could have been identified by just looking at the story of one patient. I can think of the one patient, and I will not name her-deceased as she is-here today. If you followed the experience of one patient from her arrival in hospital through to her death because she had not been given the medication that she was prescribed when she arrived, you would have seen a system at that hospital that was failing its patients. You need not one other case, but you needed to be told that story and its impact.

The same applies to the performance of individual doctors and nurses. In relation to appraisal processes for doctors at the moment-revalidation-they need to evidence, and I believe will, their ability to care for their patients; and I believe the same should be done for nurses. For that, I recommended that every patient should be, at any given time, the responsibility of an identifiable nurse and, indeed, an identifiable doctor, and we should be obtaining feedback from those patients, not necessarily at the bedside but when they have gone home, about that. You find out far more, I think, asking the patients once they have gone home with their families-hoping they do go home, or from their families perhaps if they have not-about individuals. That should be built into an appraisal and revalidation process. That would be one of my suggestions in that regard.

Q30 David Tredinnick: I have one last point to make. Listening to you and reading your report, to me, it is as if there has been a catastrophic failure to use information technology properly, either poor systems or an inability to access them and a lack of understanding of them. A lot of this patient information should be quantifiable in a proper IT system. Certainly, if I look at what the police have done in my county, in Leicestershire, they have improved their processes so much by knowing exactly where all their operatives are. They know where their cars and the police are-the different categories-and they can move them around. These models are available, and I would suggest to you that, apart from the qualitative aspect, the quantitative analysis is absolute rubbish and that is something that we really need to focus on.

Robert Francis: I have a number of recommendations to make about information. Some of them, I am afraid, necessarily are nonspecific. It is absolutely vital, in my view, that we have open and comparable information about performance, in its widest sense, where it is relevant about individual surgeons, but certainly at team level and ward level. Information that is just about the hospital as a whole will conceal bad news in bits of it, and we need to show it in the wards. I have been to hospitals where they actually have on the wall in the ward that everyone can look at-if you can understand what is there-their performance on C. diff rates for the last month; they would have a red dot, which is bad news, for every single case of hospitalacquired infection on the ward in the last month and the last year. Compare that with the ward next door and on that measure you know which the best ward in the hospital is. We-the public-need to have that information; the regulators need to have it; and I would like to see a system, where it is relevant, that I can tap in on the website and find out what the rate of infection is on ward 11.

Q31 Valerie Vaz: That feeds quite nicely into the point I was going to make about this table of complaints. You could have in a redacted form the type of complaints or concerns that are coming through that should really be made public.

Robert Francis: Yes. That is certainly my view and I hope it is expressed clearly in the report. We need to use the information that we get from complaints far more broadly than we do. In Stafford, unhappily, even the board was not receiving information of that level because they considered that an operational detail, which is, in my view, inexcusable.

The information from complaints, the story that each complaint tells, should be available to commissioners, who, after all, are paying for the service on the public’s behalf and therefore need to know this information. Having highlevel figures that lump all complaints about clinical care into one category is not very helpful, frankly. There is an issue about the numbers of complaints and how you handle the telling of the stories, but they should be available. You can see a lot of complaints now if you look on the various websites that publish them. That is an incredibly powerful tool, in my view, if it is developed further.

Q32 Valerie Vaz: Having heard from various bodies in the NHS, which one do you think would be the best to coordinate best practice level of complaints?

Robert Francis: The healthcare systems regulator needs to have a role-I emphasise not in terms of being a tier of processing of the complaints but simply in terms of the information you get out of complaints. That needs to be an integral part of the information they have, possibly within their quality risk profile. Because there are so many, clearly the significance of that needs to be assessed at a local level rather than on a national basis. That would be one source. But it is an area where we need more than one lot of people looking at it, if I may say so.

The people most intimately involved and responsible, in my view, for checking whether a proper service is being provided as commissioned must be the commissioners. I am anxious that if that is the system we have-and there is an argument to be had about that, fortunately not for me to have an opinion on-if we have commissioners who are buying services, then they must have the means to check that those services have been delivered according to the specification that they have agreed with the relevant trust. That needs, obviously, national coordination through the Commissioning Board, and individual groups need support, but it is a vital part of what they do. They would find out far more from that than looking at throughput figures and all the rest of it, in my view.

Chair: I want to bring in Grahame, who has been very patient, on duty of candour, and then go to Andrew.

Q33 Grahame M. Morris: You have covered a lot of ground and there are a couple of examples relating to what you have said previously on a ward setting about how important it is to have a duty of candour and what lessons we are learning from the Francis report going forward so that these situations do not happen in the future. I am aware of a very recent example, after the publication of your report, relating to the Yorkshire Ambulance Service, where staff have raised concerns about proposals by management to deskill the paramedics and have emergency care assistants. The response of management has been to derecognise the trade union that raised those concerns. How do you feel about that?

Robert Francis: It sounds like a matter of concern, but obviously I cannot say really. But-

Q34 Grahame M. Morris: It is absolutely outrageous, isn’t it?

Robert Francis: An essential part of what I am seeking to get over in my report is that there should be no obstruction to individuals, or groups of individuals, raising honestly held concerns about patient safety. Those need to be listened to. If there is to be a penalty, it should be to penalise those that do not exercise their responsibility to raise those things, not the other way round. It is why I have recommended within the hospital setting that it should be a criminal offence to deliberately obstruct the reporting of information. I have recommended that what are commonly called "gagging clauses"-I have been corrected and told they should be properly called "nondisparagement clauses"-should be banned, certainly in relation to patient safety. I can quite see there is a case for clauses preventing people being gratuitously rude to colleagues, or whatever, but this is far more serious than that. There needs to be full protection for people who genuinely raise concerns rather than the extremely complex system we have at the moment. If we did that, we would not have to be talking about whistleblowers. We could talk about everybody contributing to a safe system and being welcomed for so doing.

Q35 Grahame M. Morris: Can I ask a short supplementary? Within the context of the inquiry, because you had fairly strict terms of reference, is the environment in which healthcare is now being delivered-in the context of the Government’s changes and NHS reforms, the financial pressures that are affecting ambulance services and hospitalbased services-a factor in how these situations are developing?

Robert Francis: In times of economic challenge, it must be even more important to protect patients and their safety by ensuring that there is openness and honesty in the system, and by that I mean that there is genuine honesty about what can and cannot be done. The reason I have concentrated on-I am sorry to go back to it-the fundamental standard is that the very least we can expect of a national health service is that those who run it, at any level, tell us when something cannot be done safely and, therefore, we can no longer do it, and to reorder whatever the service is accordingly.

There is no point in us providing a service to patients that does them harm, which is a grim truth, and it is awful to have to say it. So we need to provide a service that does not do that, and, if we cannot do that, we need to think again.

Q36 Chair: Did you have a go at drafting what you meant by a statutory duty of candour? You mentioned that there is always a tension in this subject between wanting to encourage an open culture, for all the reasons you have identified and I agree with, and score settling between individuals who have private agendas. Who should be subject to a statutory duty of candour and how should the duty be formulated?

Robert Francis: It seems to me that one of the problems with this area is that there is a little bit of confusion often in what we mean by a duty of candour. Conventionally, the discussion has been in terms of candour about honesty to the patient, in telling a patient who has been harmed or might have been harmed by care the truth about that. There is a wider field of candour, which I distinguish by calling it "openness and transparency", which is about the truth as to more general information concerning the service.

In relation to candour to the patient we already have a professional obligation, in their codes of conduct, on the part of doctors and nurses to be honest with patients. What we lack, except by means of guidance, is an obligation on the part of organisations to be honest with patients. First, the organisation must have that responsibility, and, in practical terms, it is the organisation that needs to organise the telling of the patients quite a lot of the time.

I believe that, therefore, there should be a statutory duty on the part of the organisation where a patient has been harmed or may have been harmed by the care provided to tell the patient that, whether they have asked questions about it or not, and that should be a statutory duty. The reason I think it should be a statutory duty is that it is all very well having a contractual obligation to a commissioner, but the reality is that the obligation is to the patient. There needs to be that direct relationship, which needs to be recognised and, dare I say it, it follows that there will be a remedy involved if that was breached in itself. So there is that duty enforced by a sanction, which means that anyone who gets in the way of that duty deliberately should be subject to criminal sanction.

The reason I have come to this view is that, you will see, I have spent quite a lot of time in the report describing certain incidents at Stafford where important information, in my view, was withheld from relatives of a deceased patient because it was believed-honestly believed-by those doing it that it was in the trust’s best interests to do that, which is, I am afraid, not a happy story for my profession. That is the defensive culture that has grown up and it needs to be changed. That is my duty of candour.

I have other duties that I suggest in relation to openness and honesty about information, which require honesty and balance in what is put forward. Does that answer your question?

Chair: In general terms, yes.

Q37 Grahame M. Morris: Is there enough protection for whistleblowers who raise concerns? If there is not, how would you strengthen it, over and above the kind of case-

Robert Francis: It has been remarked that I have not made any recommendations specifically called "whistleblowers". That is because the problem is wider than that. Whatever legislation you have about whistleblowers, so-called, it will not in itself stop the sorts of things that the Stafford whistleblowers had to put up with from their colleagues, so-called, in the ward. It may help you at an employment tribunal later down the line, but it does not help you at the time. What we have to do is to find a means of making it the normal thing to do to raise concerns about what is going on in the hospital and, if necessary, about colleagues. The way you do that is by making it more difficult not to do that than it is to do it. I know that sounds slightly counterintuitive, but we need encouragement, I am afraid, for people to take their courage and to make it their obligation so that they have at least the protection, and can say to their colleague, "I am frightfully sorry but I had do this because if I didn’t I could be prosecuted." That is a pretty good start when talking to your colleagues. I believe, although it may, when you first think about it, sound paradoxical, that it will encourage openness as the norm at a stage before you need to talk about whistleblowers.

Q38 Chair: That applies in cases where somebody has broken or is suspected to have broken a criminal law. It applies also, does it not, if they had not complied with good professional practice-

Robert Francis: I think that is right, yes.

Q39 Chair: -and where prosecution does not arise but question marks over registration might.

Robert Francis: Yes, and it does-

Chair: I was picking up your word "prosecution"; that is all.

Robert Francis: Yes, I am sorry. It is often said that people will become more and more defensive, but that has not been seen as a reason for codes of conduct, which could lead to being struck off if you do not do it, saying, "You must disclose concerns about colleagues." The extent to which it happens is questionable, but I think it is happening more, anecdotally, than perhaps it used to.

Q40 Chair: But not enough.

Robert Francis: Not enough. The point here, I think, is largely that people faced with impossible conditions on a ward have not done anything about it or have been put off doing something about it. At Stafford-and I have said this in the report-the medical profession on the whole must have looked the other way or not paid attention or whatever. It is difficult. Someone asked earlier about people being held to account. It is rather difficult to identify individuals about this, but collectively-and there was some graphic evidence about it-people were admitting, "We kept our heads down for a quiet life," and that has to change.

Q41 Andrew George: The culture of fear, which you clearly identified and was played out rather well in the very compelling evidence from Helen Donnelly on page 1502 onwards in the report, demonstrates some of the perhaps quieter pressures that are put on staff. While there may be a duty of candour, that candour can be career limiting. You are not necessarily going to be fired on the spot, but the pressures are clearly there. I know from some staff that I have spoken to-I know that this appears to come out in the report itself as well and I would like your comments on it-that dynamics of leadership, which you say is really very important, and candour in fact can push in the opposite direction. In other words, what is often said by leaders on wards and by leaders speaking to the sisters and matrons on wards is, "Well, your colleagues seemed to be able to manage with that level of staffing. Why can’t you?" It is that kind of level of pressure, the questioning of competence of someone, why they cannot manage with threadbare staff when others can. Do you not see that there are two pressures working in opposite directions here?

Robert Francis: Of course there are and it is impossible to legislate entirely in relation to what, at the end of the day, will sometimes be a genuine matter of opinion. That is difficult. But it does seem to me that we can do something about the gross and appalling behaviour that, for instance, nurse Donnelly was subjected to by colleagues. It is the human reality, probably even in the best run of hospitals in the most general sense, that, unfortunately, it is the reaction of colleagues who are perhaps guilty of poor practice to seek to defend themselves and they will defend themselves in that way, which is why we need to change the culture so that the momentum of people who talk openly about these things and raise the concerns defeats those who are promoting the more negative culture.

I regret to tell you that, in my view, legislation in itself is not going to solve that. It has to be done through changing behaviour by leadership, by example. By that, I mean that you have a chief executive who visibly welcomes and supports those who come to him with unwelcome news, even if he does not agree with it-and I think this is the important point-the divisional manager does the same thing, the ward sister is heard to listen to worries of her staff, even if she does not agree with them, and they then have to explain to these people who have made the complaint why that is the position.

I heard something very compelling-it was not evidence because it was at the seminar-from a chief executive dealing with nuclear safety. He was absolutely adamant that the way in which you encourage this is personally to be talking to people, and, when they tell you something which you do not really want to hear, you thank them for it and recognise them for that, and then, if you disagree with it, you explain to them in unthreatening terms why it is you disagree with them and you hope to persuade them. If you do not persuade your staff, you are not leading them. That is why leadership is so important and that is one of the reasons I want to train leaders in this sort of thing.

Q42 Andrew George: But those leaders need to listen and take action. In terms of the practical outcomes of the complaints that were raised by Helen Donnelly, one was that nurse preceptors were thrown straight into the deep end on an A and E unit, whereas years ago they would have had a year of being effectively supernumerary, or thereabouts, on wards. Surely that should be one recommendation-that we should have a system whereby, for the first year or the six months that nurses come straight out of training, they should not be subjected to working entirely on their own in circumstances like that. That was a proper complaint, which needed some action and should never happen, surely.

The other complaint is that, while you have shied away from saying that we should prescribe registered nurse-to-patient ratios, should it not in any case be a benchmark? Should we not have some kind of clear national guidance that would give people at least some indication of a certain level of acuity, a certain specialty or on certain types of wards that you should have certain levels of staff?

Robert Francis: I have not shied away from that, with respect, because I am suggesting that we get the best evidence we can from the experts in all the various fields as to what it is that you need to run a particular activity safely and, if that is not happening, then questions can be asked. All I am suggesting, for the reasons I have mentioned, is that that is not your fundamental standard as such because that should be about what is delivered. The number of staff you have is how you deliver it. To have an overall ratio that says you must have x number of people in the hospital is not terribly helpful because you would have so many exceptions to it that it would become meaningless.

Chair: You might not agree with it, Andrew, but I think we have covered that.

Q43 Valerie Vaz: I want to come back to your point. I have heard evidence from people, from the professionals, to say that when they have raised issues it is the management that told them to be quiet and actually have made their life a misery. They can organise, sometimes, evidence where the doctor or the nurse is removed from their post. Other than your code of conduct for managers, what else would you propose for management accountability?

Robert Francis: First, we need much more active clinical engagement by the healthcare professionals in management. It is a distinctive fact about Stafford that, for all sorts of reasons-demoralisation among them-clinical staff did not come forward in relation to taking on these posts. Their voice was not heard. We have somewhat disempowered clinicians who actually understand these things in favour of managers who are more likely to do the system’s business. What I am trying to do via the recommendations in so far as managers are not clinically qualified is to see that they are trained in a form of ethics that is comparable to that, so that they all have the patient’s interests first.

That may sound wishywashy, but it is not when you ally it to having accountable directors, who could be, in effect, disciplined by being found unfit and not proper people for the job, because it is their responsibility to ensure that their management act according to the core values that we all agree should be in place. I have said that we should keep under review whether a wider disciplinary system is needed for managers as a whole. The reason I have not said to go for that now is, first, I think you need an evidence base for that, which you could develop over a period of time, and, secondly, it might be thought that now is not the appropriate time to be recommending yet another organisation regulator to be set up.

Q44 Rosie Cooper: I wonder whether you would comment on the duty of candour for an individual as opposed to the legal advice that individual would also get and the conflict that a lot of people find themselves in.

Robert Francis: Do you mean the legal advice that "You are less likely to get into trouble if you keep your head down"? I don’t understand what you mean by "legal advice".

Q45 Rosie Cooper: Forgive me. As a former chair of a hospital, it was very difficult to get doctors-not just doctors but clinicians as well-to come forward and be open and honest about what had happened and examine an incident, when at the same time the legal advice they would be receiving would tell them to take a different view. A clinician in a situation would have, yes, a duty of candour, but also not just defensiveness but that selfprotection and the legal opinion that would come to him or her, as the case may be.

Robert Francis: I think it was Sir Ian Kennedy at my inquiry who said that the offence of not owning up to the mistake should be regarded as more serious than the mistake itself. I have not quoted him exactly. I would agree with that. We need to put into the system that recognition.

How one does that is, first, through all the things that are wrapped up in the management term "clinical governance", which you will be familiar with, but in terms of ensuring audit, clinical audit, appraisal and so on, so that there is open acknowledgment in a practical way of things that go wrong. Of course the doctor is faced sometimes with the fact that what he has done might expose him to a charge of professional misconduct of one sort or the other, or, under some of my proposals, possibly the theory of a criminal sanction. I think it is necessary to recognise that, where unfortunate things have happened, it is much more important that we get the truth as to what has happened and produce the remedy for the patient and learning. Therefore, a failure to take those steps should be regarded as much more serious than what happened originally-in most cases.

Some cases are gross and you are never going to legislate those out of the window, but the approach, for instance-I know this from my own practice of the Professional Conduct Committee, and it is not called that now-at the General Medical Council is that they will look much more favourably at individuals with regard to their continuing fitness to practise if they show insight into what has happened, they have reflected on it and they have done all they can to remedy the situation, rather than the man or woman who continues to deny that anything ever went wrong. That is all one can say about that. We need a situation where the legal advice is going to be, "I know this is unfortunate, but you are going to be better off by telling them about it and being honest and open about it than not."

Q46 Chair: It is one of the complexities, is it not, of introducing the concept of the criminal law into that debate? I am not a lawyer, but as I understand it, it is an old principle of criminal law that you cannot be required to give evidence against yourself. That is, in some circumstances, precisely what you are required to do by professional obligation.

Robert Francis: The prosecution discretion is undertaken by the Care Quality Commission, not the police, in the matters I am talking about. I think they would be able to take that into account as a matter of discretion whether or not to prosecute. If there is a duty of candour and it is a criminal offence to obstruct that, then that is what I would suggest prevails. At the end of the day it is a matter of drafting, I believe.

Q47 Barbara Keeley: One of the key issues is the gaps between the functions of the different regulators, and obviously the situation where Monitor was authorising foundation trust status but ignoring serious concerns that the Healthcare Commission had found about the trust. Could you tell us-because there have been varying reports-what you propose about the future of Monitor and the Care Quality Commission, because you said there should be a single owner of quality, and that is understandable? But you have also said that there should be no temptation to introduce new regulatory bodies to replace the CQC and, generally, you have talked of avoiding further system reorganisation. What is your proposal about those two bodies?

Robert Francis: My proposal is that one regulator, in assessing the safety of the hospital or the compliance with standards of the hospital, should be considering both what have up to now been called the quality outcomes but also the financial corporate governance that makes that compliance possible under one roof. That is not to say that the expertise that Monitor have in relation to looking at those matters is not absolutely valid-it is-but what we saw here was that dealing with them separately, under separate organisations, meant that one did not talk to the other. It might be said, "You can sort that out by getting one to talk to the other," but I think you need the teams who do these things to be working together so that the perspective of each in the course of their investigations and so on feeds off each other so that we no longer have the issues of corporate governance being dealt with without people thinking to themselves, "How is this in itself impacting on patient safety?"

Therefore, I would envisage initially much the same people who do this in Monitor continuing to do it. It is simply that I believe they ought to have the same boss, if you like. I have not suggested one way or the other whether that means you get rid of Monitor or you amalgamate them, because there are other functions that Monitor perform. I see this as-and I said it should be-an evolutionary process because we have to keep such regulations as we have going while we do this. The operational implementation of that is something that I do not feel qualified to go into. That would require another volume of a report, no doubt. But the important point is simply that this should be work that is done together for the benefit of patients rather than separating off the system bit from the outcome bit.

Q48 Barbara Keeley: It is initially working together and possibly a merger.

Robert Francis: Yes, and working together pretty soon, frankly.

Q49 Barbara Keeley: Straight away.

Robert Francis: The relations between the organisations were characterised at the time we are talking about by, putting it bluntly, boundary disputes that should not have happened. If you have separate organisations in separate buildings, separate offices, you are bound to have practical communication difficulties of the sort we saw here. There was an attempt, at low level, of communication between the two but it never got anywhere. If you actually say, "We are investigating Stafford"-or wherever it is-and you put your whole team on it, in one organisation it is much easier to do that. I know it is a simple point to say; it is more difficult to put it into force, but it is a vital one given what we saw happen about Stafford.

Q50 Chair: That is very helpful because one of the headlines that came out of your report last week is that "Francis recommends the merger of Monitor and CQC"-and that is in fact not what you are saying.

Robert Francis: No, it is not what I am saying. If you like, it is a merger of particular functions under one roof. One function of Monitor, at least in theory, is of diminishing volume because, in theory, if everyone becomes a foundation trust this aspect has gone. But the function of continual regulation remains.

The other important point is that the powers that Monitor has in terms of intervention are powers, it seems to me, that arise as much out of failures in relation to CQC’s outcomes as they do elsewhere. There is something slightly odd, I think, in having a different lot of people making the judgment about what intervention is needed than the people who are finding out what is wrong. We had that with Stafford because the healthcare commission was reporting on things that were going wrong; Monitor was hearing about that, but it was making the judgment. Then you had the assumption in the system, which we have seen too often, that all this is someone else’s responsibility until later.

Q51 Chair: It is something we have commented on in our recent report on the CQC. There needs to be a clearer understanding of who is responsible for what between the two. But, at the other extreme in Monitor, there is the issue of the responsibilities of the Cooperation and Competition Panel-nothing to do with the CQC.

Robert Francis: That is nothing to do with the CQC.

Chair: That is helpful; thank you very much.

Chris, do you want to go back? There is a certain amount of confusion because we have missed out a page; apologies.

Q52 Chris Skidmore: In many ways, if it was not for Julie Bailey in the Cure the NHS campaign, Mr Francis, you may not be here in front of this Committee today.

Robert Francis: No.

Chris Skidmore: And a thousand people would have been buried without any notice being paid whatsoever to the appalling standards of care that were missed by the strategic health authority, the Department, Monitor, the Litigation Authority and the scrutiny committees.

Reading your report, for me-although obviously the evidence is horrendous and appalling-probably one of the most damning passages was on page 1312 of volume 2, which referred to a meeting that took place between Sir David Nicholson and Ian Kennedy on 14 May 2008, at which point Sir David warned Sir Ian Kennedy of the Healthcare Commission that the local campaign group had been in existence in Mid Staffordshire for some time and clearly patients needed to express their views, but he hoped the Healthcare Commission would remain alive to something that was simply lobbying or a campaign, as opposed to widespread concern. You have talked about-

Robert Francis: Can I say something about that passage, in fairness? I considered the evidence surrounding that and the conclusion I came to-Sir David denied that that was said and the person, it was Anna Walker, I think, from memory, who wrote that-

Q53 Chris Skidmore: You said he could not recollect it, which is distinct from a denial.

Robert Francis: I could not be satisfied that that was what was said, so that was my finding of fact.

Q54 Chris Skidmore: But in terms of a defence-

Robert Francis: I did say that if it had been said it would not have been acceptable, and those are not my words in the report.

Q55 Chris Skidmore: Does that not go to the heart of what is essentially, as you said, a defensive culture here? If we are going to have an NHS-in many ways, the sound of your report slamming down on to the desks to replace the bedpan rattling through the corridors is a seismic moment for the NHS-we have to put patients and patient groups at the centre of concerns. Given the fact that Cure the NHS went for so long without their concerns being recognised, how do you feel the patient groups should be accepted within a new NHS structure?

Robert Francis: First, can I absolutely accept the importance of the role of Cure the NHS in this story and the help they gave my two inquiries? The patient voice is absolutely vital, whether it is an individual or a collection of people. If only more time was spent by all listening to what the individual patients have to tell them, many of these things would never come about.

What I have suggested is that there should be far more integration of what I would call loosely the patient point of view at all levels of the system. I have suggested there should be patient involvement in commissioning groups; there should be patient involvement in the Care Quality Commission; there should be far more contact between people in the Department of Health and, put it this way, real patients, rather than talking between managers. How you do that is, I accept, a challenge, and there is a reason for this. Patients and the lay public in general are excellent sources of information about what they want, what their experience has been and their feelings about that. That is information which should inform the service that is provided. We need patients in all these places.

What the patients-and I am sure you would agree-are less able to do is to come up with the solutions. If you take Julie Bailey as an example, she quite properly, in my view, refused to get involved in the trust. She was complaining about it and wanted them to hear what she had to say, but, when they invited her to come inside the tent, she refused to do so because she said, "That’s not my job," if I can paraphrase it, and I understand that position. It is, in a sense, the role of the patient and patient groups to say what they want, say what their experience is and what they would like done about it. It is the responsibility of the service to respond to that and deal with it. So that is the model.

I have in my report been less than complimentary about the patient involvement schemes-and their effect at Stafford at least-over the years that we were looking at. I was and still am not able to comment on the effectiveness or otherwise of their replacement, but what is absolutely vital is that it is not sufficient to create a structure in which you put patients in a room, provide something loosely called "administrative support" and expect that to become meaningful and effective. If you are to have patient groups of this nature, they need proper support so that the issues that they raise can be translated into something that is going to have an effect in the health service. Individuals themselves are never going to be able to do that.

Q56 Chris Skidmore: Just on that issue, do you think that the Government’s new friends and family test is in itself sufficient? Do you think, referring to what you have just said, that it will need to be backed up?

Robert Francis: I don’t know enough about what is meant by the friends and family test to know, but what I can say is what I think is required, and then perhaps it is for others to see whether that fits it. We need as many forms of feedback from patients as we can-and staff of course, but I am dealing specifically with patients and their families. It is absolutely right that one should try and collect feedback while patients are in hospital, but we all know that many people are very reluctant to raise concerns while they are sitting in a hospital bed, for reasons that are obvious and we do not need to go into. We need to follow up what patients thought about their care once they have gone home. It happens only too frequently, in my experience, when I have been to a hotel, or whatever it is, that someone is following it up.

A very simple thing-and I know it is not possible or practical in all cases-that occurs to me is to wonder why it is that after a patient has gone home the sister of the ward does not pick up the phone and ask someone how they are getting on. That is just a simple service element. But there should be a more systematic way in which we ask patients who have gone home to say what their experience was like rather than waiting for them to complain. A lot of people would like to raise a concern but not complain. The system should listen to the concern with as much seriousness as they listen to the formal complaint. My experience in a lot of fields is, "Don’t look at the compliments"-which you always will get, quite rightly most of the time-"but look at the concerns," which may be a small minority, but that little minority tells you much more about what you need to do than all the compliments in the world.

Q57 Grahame M. Morris: While we are covering this area, what are your thoughts about the proposal by the Prime Minister to create an inspector general of hospitals, sitting within the CQC presumably?

Robert Francis: Again, my conclusion was that, in terms of regulating hospitals, the most effective means demonstrated, and therefore one that should be continued, was in physical inspection of hospitals by trained and experienced hospital inspectors. My recommendation was that the Care Quality Commission should consider developing a team of such hospital inspectors. If the concept of a Chief Inspector of Hospitals does that, then all well and good, but at the moment all I have is a headline.

Q58 Dr Wollaston: Can I come back to the subject of regulators? I am wondering whether you feel that regulators like the GMC and the NMC should be far more responsive to situations such as occurred at Mid Staffs.

Robert Francis: Yes is the simple answer. I have said they should be more responsive by way of not just sitting back waiting for a complaint to come in-and, of course, they must react to complaints-but, where they become aware, as they will do, of concerns about a system, they should be alert to considering proactively whether those deficiencies, which are being brought to light or of which they are made aware of, are due to a failing on the part of someone who is accountable to them and a breach of whatever their code of conduct is. That, I think, requires a different approach from the one that they have been undertaking to date. It requires in real life, I am sure, much closer cooperation with the systems regulator and possibly joining them in their investigations so that, if an investigation is taking place of a particular place, the professional regulators are involved in that.

Q59 Dr Wollaston: Further to that, there is another whole separate category of healthcare workers who are not registered at all, and you refer to them in your report; that is healthcare assistants.

Robert Francis: Yes.

Dr Wollaston: And there is the wider area of the training and continuing professional development that is available to healthcare assistants. The Government have indicated that they are more minded to have a system that looks at barring those who are unsuitable. Do you think we should go further than that and make sure that it is a much more positive process-that all healthcare assistants are registered?

Robert Francis: My view expressed in the report is that there should be a registration system. The reason I say that is the very basic point that it seems to me that someone who is allowed to undertake direct physical care of any patient, let alone highly vulnerable people who cannot even speak for themselves, should be the subject of at least some record of who they are, where you can get hold of them, where they are employed and, if they are no longer there, why they are not there anymore.

I make the point in the report that it seems strange to me that there is more regulation for nightclub doormen and minicab drivers than there is for healthcare support workers. The fear expressed sometimes about registration is that you bring with it a whole raft of complications with regard to qualifications to be on the register. I am afraid I don’t see that. It seems to me that, if you are employed in a post that comes within the definition for which registration is required, you get registered. Then, if you are registered, you have to be registered in order to do the job. It could start as a formality, but what it means is that there is a means of getting hold of this individual, and where they are found to be unfit or unsafe to leave with patients we know about that, or, most importantly, another employer can get to know about it.

At one end of the spectrum you could set up, or charge a regulator to set up, an entire disciplinary system to deal with that. But I believe that you could also have a simpler system that involves allowing employment contracts to rule, so if an employer dismisses the unfit person they are then obliged to tell the register about that and that information is then available to another employer-I think probably not, in that instance, to the public because there would not have been the right form of due process. At the moment, quite literally, a healthcare assistant who is found totally unfit in one hospital can walk down the road and get a job in another, and one does not need to know about what happens in the other place.

Q60 Dr Wollaston: Can I go back to that? One of the other issues here is the wider impact of your report on the social care system. Many healthcare workers might go out and directly be employed by a very vulnerable individual in their own home. If we did not have a system of transparency, how would family members, perhaps employing someone to look after a very vulnerable relative, know? Why should they not have the right to access such a list?

Robert Francis: There is a great deal of force in what you say. I recognise in the report that what I have to say in terms of its implementation needs to take account of the fact that the healthcare workers work in the private sector as well, and my report has only been about the hospital service as such. But you asked me the question and I will give you the answer. I see no reason why such a register should not be accessible, or the information on it, to someone who is contemplating employing someone privately. We have a system of CRB checks, and I have no idea whether it works in that regard for healthcare support workers-probably not-but there is no reason why one should not have a system where, for good reason, you can access that part of the register.

The alternative, if that is not going to work, is to have a more developed disciplinary system, which would have tribunals of the type that exist for qualified nurses. But I do recognise the numbers involved here are such that you might want to start on a more modest base and see how that works before moving to something else. Of course, I recognise it does require legislation.

Q61 Dr Wollaston: Would you anticipate that this role would be best undertaken by the NMC or do you think it should be entirely separate from the NMC? Have you made any assessment of what kind of extra resources that would require for the NMC?

Robert Francis: I have suggested that the logical place to put this would be in the NMC because of the overlap between qualified nursing and this category of worker. Of course, many committed and caring healthcare support workers start off that way and then become qualified nurses, so there is an interaction there.

As far as resources are concerned, we looked at how much, currently, a nurse is charged for being registered on the register, and I have now forgotten what the figure is, but it is about £100 or £120, something of that order. I know there are issues about the resources of that organisation, but that sum covers the cost by and large of the much more complicated system that is required for registering and disciplining nurses. So, whatever the figure is for healthcare support workers, and bearing in mind the bulk of numbers involved, I would envisage something very much smaller than that. That is the scale of what we are talking about.

Q62 Dr Wollaston: My final question is about the actual training and continuing professional development of healthcare support workers. Could you elaborate further on that and say what further resources you think should be available for continuing professional development?

Robert Francis: The level of training required is different from that required for a qualified nurse, for all sorts of reasons, but I was concerned to find that there seemed to be no consistency at all about the training required for this grade of worker. In a lot of cases the amount of training before they are let loose on patients, if I can put it that way, can be as little as a few hours. I don’t think that that gives anything like sufficient recognition to the difficult and valuable job that these people do.

Everyone talks about basic care as if it is easy. The respect that is due to people who undertake this work, in my view, is absolutely immense, and they get too little of that. Therefore, we need some training standards. They do not need to be very complicated, but I emphasise two things. First, we need to test people’s aptitude, both for this sort of work and also to become nurses, and, secondly, we need to test their aptitude not just for any technical skills but also for their attitude and their commitment. These are difficult and sound like woolly concepts, but they are extremely valuable and we all know, I am sure, from interviewing people how you can judge these things.

We need recruitment for that, but we also need to train people, whether on the job or not, about what it means to provide a compassionate and caring service to patients. Frankly, in the hospitals I have been round as a result of this inquiry, you immediately see how some people do it and some people do not. However caring you are, you need to be trained, I think, to know how you are caring in these very difficult circumstances that they have to deal with. We need training standards, recruitment involving values and we need to instil those values, both at the beginning but also throughout their actual work in this job.

Q63 Chair: That commitment to training, which I think is very broadly shared, raises the question immediately, doesn’t it, whether you link the successful completion of that training process with registration for healthcare assistants?

Robert Francis: Yes.

Q64 Chair: Your version of registration, as you described it a moment ago, divorced the two and said that registration was purely a question of knowing who we are talking about.

Robert Francis: There are obviously stages in this, and if you are starting at a stage where you have no consistent training standards, no mechanism to deliver those, then you have to recognise that. It seems to me you have to start, if you are selected to be employed by someone who is providing this particular type of service, by being on the register, and if you are on the register you can be disqualified from it. That seems to me the very basic minimum. You can develop from that, but, as to whether you need to, you need to see first whether the minimum suggestion works better than what we have at the moment.

Q65 Chair: There is a school of thought that we need to make more registration effective for some of the more advanced professions.

Robert Francis: There is that; I understand that point of view.

Q66 Chair: Can I come back to where Sarah started, which was on the implications of this report for the GMC and the NMC, with its current scope of responsibility and what could, in principle, be a recommendation with huge implications for those organisations, that they need to move beyond reacting to cases of professional malpractice towards being a more engaged, proactive regulator of the provision of care, with the implied requirement on both of those organisations to provide themselves with a sufficient flow of information to allow them to carry out that function effectively? I wonder in how much detail you have thought through the implication of that.

Robert Francis: In a wellfunctioning system of regulation-and I appreciate there is a large "if" in that-if you have that, then a lot of the systems information should already exist in that which is collected by the Care Quality Commission. We heard lots of evidence about the quality risk profile and the intelligence that lies behind that and-[Interruption.]

Chair: That is a tribal signal.

Robert Francis: I understand that. Do you mind if I wait?

Chair: You will find that it will start again in a couple of minutes; they are praying now.

Robert Francis: I am afraid it has completely distracted me from where I was. The Care Quality Commission and the quality risk profile: there is a huge amount of information already being collected for that, and I have made suggestions as to areas where they may collect further information into that. What I am really suggesting is that the professional regulator should plug in to the information that is already available.

Q67 Chair: But it is quite a big leap, isn’t it, to go from where they are now to plugging in to that information and, by implication, possibly-this is a question-themselves initiating inquiries on the basis of that information without any case having been brought to them by an injured party?

Robert Francis: If there are concerns about systemic deficiencies of this nature, you would expect, in a system that was being run properly, that the Care Quality Commission itself would have detected that or the cause for concern and be investigating it. What the General Medical Council, the Nursing and Midwifery Council or whoever could bring to that process would be the necessary input to say, "While we are looking at that, there seems to be a problem. You are telling us there is a problem in the surgical division. We have had a peerreview report of a dysfunctional surgical division." In my experience, a dysfunctional surgical division never comes about without dysfunctional surgeons, so we would need then to go and look at those surgeons.

They have teams of investigators who respond to individual complaints, and some of those complaints involve very complex investigations into particular cases or a whole series of cases. The way they look at the competence of doctors in an overall sense requires experts to be brought in to be quite proactive about how they assess people’s practices. Once they have been alerted to it and are thinking that way, I would not have thought that this would require a lot more people. It requires a different approach by the people they have and very close cooperation with the Care Quality Commission, plus one other thing that I have suggested, which is that they need to use more perhaps than they do what I have described as peerreview techniques-in other words to use the expertise that exists in the professionals who wish to root out poor practice, to identify where the problems are. So bring in, as it were, professionals for particular purposes.

Q68 Chair: In your view of the world, just to be clear, if the CQC identifies the surgical department of a hospital as being a problem, then, without any individual doctor or nurse having their practice questioned, inspectors could arrive from the GMC to look at a department, for example.

Robert Francis: The way I came to this was that, when the Royal College of Surgeons examined the surgical division in Stafford in 2007, it came to the conclusion that it was dysfunctional. If you look at the report that they wrote, it reviewed a whole stream of cases of people treated by surgeons and made comments on those, in some of which they thought there was no cause for concern and in others they did. In their 2009 report there is a catalogue of cases of concern. The peer review was to look at a department but obviously the individuals in it. That was information that, in my world, would be disclosed to the Care Quality Commission. It should be disclosed to the General Medical Council, in my view, and should have been. That would lead quite quickly to a professional regulator being able to identify individuals who would need their attention.

Q69 Andrew George: On the point you were making earlier that your inquiry also observed some very good examples in other hospitals of care and the nursing care training of healthcare assistants-support workers-and the proper support of nurse preceptors, you gave an example from page 1515 onwards of St Christopher’s Hospice, where clearly you were very impressed. They clearly provided a Rolls-Royce service in comparison with others. I have checked, and what you fail to mention is that they have a registered nursetopatient ratio of one to two or four. When you have a resource like that, would you not acknowledge that you have perhaps the luxury of time and resources to provide all of that training and support that staff clearly deserve if they are going to provide the kind of excellent service that St Christopher’s does?

Robert Francis: You may be right about that, but in addition to training their own staff, they were going out and training staff in nearby NHS hospitals. Presumably they were being paid for that. It may require some resource, but we are dealing with a situation that requires remedy. We cannot have, it seems to me-it is unacceptable that we have-people who have no training, particularly no training in intending to exploit the compassion and so on, and allow a situation where people are left in filthy beds because people are not caring; I am sorry.

Q70 Andrew George: Of course I agree, but in terms of the two issues that arise from that, one which is newly qualified nurses and the right kind of support, which St Christopher’s clearly provides, your recommendation is that nurse preceptors should have a minimum of three months of undertaking personal care so that they can develop those skills and that understanding. You do not go further and ensure that they are able to develop their nursing skills, because a postqualified nurse is unable to administer IV, for example. In your 290odd recommendations, that is the only issue that I can see that you recommend with regard to newlyqualified nurses. I wonder whether you felt that you could have gone a little further in terms of giving them support and opportunities.

Robert Francis: Can I remind you that my brief was not to review nursing or medical training as a whole but to learn the lessons from Stafford? I was seeking to address the appalling level of care delivered by some nurses in a particular field. You may be right; you may be wrong; but it is simply about the further training that is required. To my mind, I am still shocked that I have to say that there needs to be some standard requiring nurses to have that sort of handson experience. Of course many do, but it seems to me that it is not a standard requirement and I believe it should be. I rely heavily here-I make no secret of it-on my nursing assessor, who now has another job to do in relation to the aftermath of this, but we need to ensure that nurses not only do this work but that they have the aptitude to do it. The only way to test that is by getting them to do it, frankly. It sounds basic.

Q71 Andrew George: Further to the very welcome comments you made about health support workers, and following Dr Wollaston’s question in terms of the resource implications of your recommendation, did you see with the health support workers, because they are very low paid, that there was clearly, inevitably, a higher turnover of them and, therefore, if you are going to keep them in a particular job and invest training time, there must be a resource implication going forward?

Robert Francis: It seems to me that either we value the work that these very important people do or we don’t. They need recognition and support as much as any other worker in the hospital system. Making mend and do by hoping that the ward sister, or whoever it is, is keeping an eye on people is not a way to instil a coherent culture to which everyone in a hospital is signed up. I am not suggesting anything terribly elaborate or necessarily anything that lasts, but I think we need to have a conversation between those who know about these things about what is it that is required of people in this category and how we ensure that they are given the ability do it.

One just has to think about how someone with no training, probably very few qualifications of any sort-not that you need academic qualifications for this sort of work-is plunged on day one into a ward full of elderly confused patients and given the equipment with which to wash and clean them, with the occasional passing comment of some nurses, which should not happen but it can happen. It is not surprising if things go wrong. So we need to put more in place here.

Q72 Rosie Cooper: You found a confrontational and defensive approach to handling complaints that were made to the Mid Staffs trust. Do you believe that the present complaints process requires further amendment in order to properly address patient concerns?

Robert Francis: The system is there in theory and it is probably more about how people work within it. What happened in Stafford was that lip service, it seems to me, was paid to the concept of complaints more than the practice. So complaints were received and there was a letter sent back, often not quite addressing all the points that were made by the complainant. In so far as the complaints were addressed, there was the action plan, which I have said more than once is a notable feature of the National Health Service, where everything gets an action plan, but the problem tends to be, "Does any action actually follow from it?" People were fobbed off, frankly, with a routine apology, a cursory examination of what the complaint was about and an action plan, which could not have been implemented because we then see six months later the same thing happening in the same ward and the same sort of letter coming out with the same sort of action plan.

The system is there, but it is about making it real. The way to do that is to spread information more widely about the complaints. First and obviously, trust boards need to be far more gripped than the Stafford board was with the reality of complaints. That means not just having the figures, but, as a lot of boards do now, seeing complainants.

Chief executives should take possession. This chief executive had letters put before him and he signed them, so he took ownership to that extent, but chief executives need occasionally to see complaints. Mr Sumara, in trying to sort all these things out, was seeing complainants on a daily basis almost, as far as I can see.

But, just as importantly, the substance of the complaints needs to be shared with the commissioners, the Care Quality Commission and-I see no reason why not in a suitably anonymised form-with the public. There would be visibility then as to what is happening about these things. If we are seeing a repeat of elderly patients breaking their legs because they have been falling over in a particular ward because no one was there to help them to the toilet, and that has happened two or three times, we will be beginning to wonder whether this is a hospital capable of maintaining fundamental standards and, therefore, whether the service of this particular ward, or whatever the service was, should be allowed to continue. That is a commissioner’s job, it seems to me, as well as the regulator’s job. Between them, you have two organisations, at least, and in the background the public through patient involvement groups or whatever, being able to bring pressure to bear to make sure these things are done. I am not sure that changing the structure is necessarily the answer. There may be tweaks that could be made to it. It is about ensuring that the structure we have is acted on properly.

Q73 Rosie Cooper: Absolutely, but I don’t think Mid Staffs was short of any public information and anger. It was what was going on in the hospital.

Robert Francis: It was, if I may say so-this is not a criticism of anyone-the desperation later on that produced Cure the NHS. Before then, people’s complaints were not being heard but there was not that public outcry.

Q74 Rosie Cooper: I suppose that is where I am going. Complaints are expected to be resolved locally, and they can range from the very simple-I suppose in the early days they would be-to the fiendishly complex and horrific, which is, I would suggest, where Mid Staffs ended up. For me, there has not been a support or advocacy agency as effective as the community health councils-now long gone. Everything I have come across since then have been pale shadows. So when local resolution fails, the complaint often ends up with the Ombudsman, who only investigates a tiny portion, a small percentage, of the cases. I was wondering whether the high probability that the Ombudsman is not going to investigate-nobody is really going to prosecute the patient case-is the reason that those who are guilty of poor practice bank on getting away with it.

Further to that, in your report, you considered the work of the Ombudsman and the complaints made about Mid Staffs, but you did not make any recommendations about the work of that office. Could you comment on that, and then what role does the Ombudsman have in the future? If so few complaints get there, it really perhaps is still a worrying situation.

Robert Francis: Yes. Partly in answer to this but also partly something I forgot to mention in relation to the last question, one of my other recommendations is that there should be a much more extensive use of independent investigation of complaints, leaving the responsibility for that in the hands of the trust because that is where they are responsible primarily for doing it. There is some use at the moment of arm’s length investigation by some outsider being appointed to come in and do it, because, if you do that, you get a report from an outsider who sets out things, one would hope, in a systematic way, and you have a report that may well identify systemic issues where they arise. That can be shared with the commissioner, the regulator and so on.

You are quite right that I considered the work of the Ombudsman. I recognise that only a tiny proportion of the complaints that she receives are then taken up and investigated, and of course only a tiny proportion of those end up being upheld. Underlying all that, of course, is the other factor, which is that the Ombudsman only gets a tiny proportion of all the complaints that are made anyway.

I made no recommendation for this reason. It seemed to me that the Ombudsman performed a highly valuable function but at a high level. Because of the nature-almost random, if you like-of the cases that get to the Ombudsman, she is able to produce, in my view, highly valuable reports as to learning about handling of complaints and about particular interventions and so on, which are valuable. Who knows what the Ombudsman personally thinks, but I do not see the Ombudsman as ever being the solution to ensuring an effective complaints-handling system in any given hospital and guaranteeing that that is the position all over the country. The only way you are going to have that happen is by local intervention from the commissioner, the Care Quality Commission, the local inspector and local patient groups, whoever it may be-Healthwatch or whatever. So I would prefer to see a strengthening of the local surrounding of the trust by all those interested groups to keep an eye on complaints because they will have a better understanding of what is happening locally. That is why I made no recommendations about the Ombudsman. Does that answer your question?

Q75 Rosie Cooper: It does and I am sympathetic. The independent angle is the really good new element to it. I think most people still struggle to even get close to getting complaints resolved. In terms of accountability, everybody then just looks at the Care Quality Commission as the big backstop and, if it gets through there, well, "It is your fault anyway."

Robert Francis: Can I add two things? I am sorry if I keep on forgetting things I should be saying. You asked about support for patients making complaints. Two things struck me in relation to the advocacy support that was available. First, the support seemed to be largely focused, in an understandable way, on those who would be described as having difficulties-people with disabilities or whatever-and that is perfectly understandable. But less support was offered to people who were what one might just call ordinary patients, ordinary members of the public-the people that form the vast majority of those who complain-on the assumption, I think, that they can speak for themselves.

As you quite rightly say, people making complaints are in an extremely vulnerable position. They are dealing with a complex system. They don’t understand it and they need help. Not everyone wants it, but I don’t believe that sufficient help is available. Part of that, which I found very striking, was the understanding at least of the advocacy support in Staffordshire-that they were there to help formulate a letter, for instance, or to accompany somebody to a meeting with the trust, but not to provide advice about the substance of the support. As a lawyer, I find that a rather difficult concept because, if I am an advocate, I am allowed also to give advice to someone about their complaint in the sense of, frankly, "Is this a good one or isn’t it?", or, "Have you missed something out?" It is that sort of support you need, or, "Would you be better off getting a solicitor because you have a negligence case?" I do not know why an advocate should not be allowed to provide that sort of advice. I think the reluctance is partly to do with training, and you would need a little more knowledge, but there was too much of an inhibition there. That is what I would say about advocacy support.

Q76 Dr Wollaston: This question touches on complaints that are raised after patients leave hospital, but time and again we hear reports of patients lying in their hospital bed feeling frightened about raising complaints and that staff would be vindictive towards them. This is shocking. Do you have any thoughts about how we can make it easier for the patient-or their family-in the hospital bed to raise this and how can we change the system to make that more responsive?

Robert Francis: Some hospitals will send governors round talking to patients on a regular basis, and some are better than others at that function. People are possibly more willing to talk to an outsider. I think that there is a potential role-you might think not adequately discussed in the report-for helping those who cannot speak at all for themselves, who need some sort of voice when they are in hospital. But it is very difficult. You have the nurses there, you have the patient there, and unless you change the culture and root out that sort of behaviour-and that requires responsibility on the part of those running it-it is quite difficult to see the answer to that.

The one answer I will give is that PALS does not work in this context. It has its value, but its value is to do with facilitating communications, perhaps, and advice of that nature, rather than anything else. It is too intrinsic to the trust itself to be of help. You need more transparency. Part of what I have said is about being more welcoming to families and their involvement in what is going on, and the more people you have-the force of numbers- occasionally overcomes the vindictive nurse, one would hope. In so far as they exist-and we know they exist; they did at Stafford-it is, I am afraid, the duty of those around them to root that out. I cannot see any other answer to that.

Q77 Dr Wollaston: It is not just vulnerable people who find it difficult to raise concerns. Even quite powerful individuals feel totally powerless in a hospital setting. We heard a case recently of somebody having to phone the police to get somebody to give them some water on a ward. Do you think there should be another mechanism within hospitals for people in that situation to be able to raise concerns?

Robert Francis: One of the things I have said in the report is that there should be multiple gateways through which to make the complaint, even if it ends up back in the trust. I have suggested, in more general terms, that commissioners need to have a higher profile so that people understand who they are and that they are somewhere that could be approached for that.

One other thing, which does not quite relate perhaps to the question but is in the broader context in terms of deterring behaviour, is that the part of my recommendation about fundamental standards and how they are regulated would require the Care Quality Commission to pay attention more to individual cases than it has done hitherto. You will have seen my identification of a regulatory gap between the Health Safety Executive and the Care Quality Commission. If the offence is serious harm to a patient for breach of a fundamental standard, it involves looking at an individual case and that may bring them in more. What we are getting to is that another source would be to complain to the CQC.

You need to get a complaint outside the hospital, but people are going to be afraid because they are still in hospital and that nurse is still there. The only reality I can see is that that has to be dealt with within the hospital.

Q78 Chair: It is quite striking that several times in the last two and a half hours you have referred to the role of the commissioners. They should have an important role in identifying failure of the kind that we saw at Mid Staffs, but in your report you say, "Throughout the period under review, the purchaser/commissioning arm of the system was subjected to constant reorganisation, usually taking place well before it had been possible to put fully into practice and embed the aspirations of the previous changes." In other words, this was there in theory but constantly changing in practice and virtually powerless.

Robert Francis: Yes.

Chair: Is that a fair conclusion to draw?

Robert Francis: Yes.

Q79 Chair: It is not a problem that has gone away, I suspect.

Robert Francis: I believe that, when reforms of this nature are made, they are made usually, one would hope, for good reason. But it seems to me you have to follow through the logic of what it is saying. If you have commissioning, whether it is by a primary care trust, a GP commissioning group or the Secretary of State-

Q80 Chair: They were called "health authorities" when they were first introduced, and it is 25 years ago now.

Robert Francis: I remember them. You need to equip them to undertake the job properly. Commissioning of a contract for building a very complicated building involves quantity surveyors, who go and look to see if the work has actually been done, and there are penalties involved if it is not done. If you do it for a complicated building site, I do not see why you cannot do it for a complicated service to human beings and ensure that the same thing has happened. I believe commissioners should have that responsibility. It was not really understood like that, it seems to me, under the primary care trust regime. Their job was much more limited and it was part of the reliance on other people having the responsibility when it came to looking at quality and safety matters. That has to change, and I believe that there is the capacity in the theory of commissioning under the present arrangements for that to happen, but it does need resourcing and it does need support.

Q81 Valerie Vaz: Can I go back to the complaints part? I don’t know if you had a chance to read our report in 2011.

Robert Francis: I quoted it in mine.

Valerie Vaz: It is good that you did that, but I don’t think the Government or the CQC have even looked at it. In recommendation 1 you have said that we are quite an important body to look at things. I suppose we are, to a certain extent, because the chair and the chief executive of the CQC both resigned before they were due to come and appear here, so we do have the fear factor as well.

I am very interested-partly as a lawyer-in complaints and litigation, and I don’t know if you are aware that the litigation bill is now reaching £1 billion. I am wondering whether this local resolution is a matter of resources. If there is no legal aid for initial advice, they cannot do what you suggest-to decide which are the good claims, which are the bad claims, and which ones to take forward. We have heard evidence of people being in the system with their complaints for seven years sometimes.

You mentioned local resolution, and I agree with you that PALS has its place but does not help when the patient on the ward wants that blanket or drink of water. I am wondering if the legal system can play a part, maybe with different preaction protocols or more resources at legal aid level, at local level, where people can see the difference between a concern, a proper complaint and proper negligence.

Robert Francis: All I can properly say, on the basis of this report, as opposed to putting some other hat on as a former chairman of the Professional Negligence Bar Association-which is not why I am here-is that there is no doubt that, looking at the experience of at least one family that I have mentioned already today in another context, the litigation system is profoundly unsatisfactory. This case was where a son died and they got an inquest where, as far as they were concerned, the full story was not told. They were not told the full story, and a settlement of what seems to most of us quite a small sum of money was provided. They received a letter of apology. They then see in the press, of course, that the letter of apology was in one sense offensive; they see in the press that, contrary to their current understanding, the trust is saying, "Well, we have settled this very generously, but there were of course points we could have taken in defence of this claim." So they were not even accepting liability, despite their own consultant telling them it was indefensible. There is something hugely unsatisfactory about that as a process and the more that can be done to ensure early settlement the better.

I hope that my recommendations about the duty of candour will be brought into effect. I appreciate that one reason that there is reluctance relates to what effect that has in relation to potential compensation claims, and I have some quite robust things to say about that, if you want me to. One is that if wrong has been done to a patient-if a public service has actually harmed somebody and injured them-then they deserve compensation. They deserve first to be told that that has happened and they deserve for that wrong to be put right. There are all sorts of ways in which that might be done. An apology might be enough, a promise that "We will put things right" might be enough, and compensation might be necessary or it might not be. But we have to be honest about that. If we are not honest about it, the litigation bill will get bigger and bigger, because people will go on these days until they receive justice and satisfaction, and many would say, "Quite rightly so." If you want to put me and my colleagues out of business, settle all these things at the earliest possible time.

Just as importantly, if the health service is to learn lessons from mistakes that are made, they need to put them right at the earliest possible stage. It is no use trying to draw lessons from an obstetric disaster eight years down the line after it has been settled for millions of pounds in court. That is no system. I have not emphasised much about litigation in my report because it is not a solution, I am afraid, to very much.

Q82 Rosie Cooper: Might I, very finally, wrap up part of my thinking about complaints? While we have been discussing complaints, the CQC has been mentioned a number of times as the regulator. There is a difficulty in that the CQC does not investigate complaints, and it is very clear that it does not. If something is referred to it, it will inspect and perhaps have a particular eye to the nature of that, but it will not go back and indicate to the complainant that it has investigated that area. It will formally appear in a later report. I have suggested that that be sent to everybody. But the CQC does not investigate, and that often leaves people feeling that, locally, it has not been resolved; the CQC has been there and it will not investigate that particular complaint.

Do you think there is a problem with people understanding the nature of it, each time we say "CQC’s involvement", that they actually understand what it is prepared to do and its level of involvement? I know you have suggested that MPs look at trends. I do that and I get shouted at by my local hospital for just that. It is really important, but everyone is confused. In the end, I referred my hospital to the CQC because I just wanted it stopped and sorted out. But I think there is a real problem in understanding there.

Robert Francis: I understand that entirely. My recommendations would lead to it, at least in serious cases-that is, where death or serious harm is caused by a breach of the standards-as it is the prosecuting authority under that theoretical notion, having to investigate individual cases. The challenge, obviously, is that, if the Care Quality Commission was asked to investigate or have some role in all complaints, we would be back to where the Healthcare Commission was when it had imposed unwillingly on it the secondtier system of complaints, which everyone agrees, including them, did not work.

The only way complaints can be sorted out is at local level, in general terms, but there is a role for something else in very serious cases. Other than that, I would have thought it has to be a local resolution. There does need to be clarity of responsibilities so that the public understand where they go to for different things. That is certainly lacking at the moment. Because the system is so complicated, I have spent three years now looking at more organisations than I would care to which are involved in decisions-and I am sure you have-and it is still sometimes difficult to get my head round who it is who does what.

Q83 Barbara Keeley: On NHS leadership, the question is what are the other lessons about leadership for NHS directors and managers? You have talked about the disempowerment of clinicians in favour of managers, the impact that had and the need for managers to be trained in ethics to enable them to act based on core values. Just now you talked about complaint structures and trust boards and chief executives being aware of those and being more visible in that process. But are there other lessons about leadership that you want to touch on that you have not already covered today?

Robert Francis: I did talk about leaders exemplifying the reality of the culture. Trusts take their culture, I think, largely from chief executives, or the leaders in that sense, and should do so when it is a good leader. We are never going to get that if leaders of trusts stay in office for, on average, less than or around two years. There may be something to be said for them not staying, generally speaking, for decades, although some very successful ones do, but there is no stability here.

It is the most challenging job I can imagine, running a complex organisation with huge numbers of activities, large sums of money involved and pressure from all directions, and we do undervalue, I think, the skills required to undertake that role. So I emphasise the need for training for it-not specific qualifications because there is value in leaders coming from all over the place, as it were. We need to encourage the more clinically qualified, people from healthcare professions, to get involved in this, and that is one reason-but only one reason-for spreading some form of regulation to managers in general so that they are all on a level playing field. At the moment, I believe there is a bit of a deterrent involved in asking clinical leaders to step up to the plate so far as management is concerned, because in the boardroom they are the ones who can get called up in front of their own regulator. The guy on the other side of the table who happens to be the chief executive is not. There is no reason why there should be the sort of limit there seems to be on the number of doctors or nurses you can have on a board, and there should be more people encouraged to take on the role of nonexecutive director, for instance. They bring huge experience and should be encouraged to do so.

So we need a more ethical background, people who are role models to be executives and leaders, and we need much more clinical engagement in these posts. If you put all that together, it may be-I would hope-that you get the culture that we need, putting the patient first.

Q84 Barbara Keeley: I have a final point about culture. There was this culture of promoting positive information while discounting other less favourable news, and that is a key thing. If it is possible to summarise, what would you say was the remedy for that?

Robert Francis: The discounting?

Barbara Keeley: Yes.

Robert Francis: It comes in various forms. The striking one is taking comfort from-and I am making up the figures-a staff survey that says "60% of your staff would recommend their relatives to go there" as being an improvement on the 55% it was last year. As I said before, if you are leading a trust, what you need to be interested in is the 20% or the 10% who say things are going wrong, burrow down into that and find out what is going wrong, talk about it to people and be open about that. Your aspiration on most of these tests should be 100% positive, not less than that. So that is the first point.

The second point is to require balance in the information that is put out. That can be done prescriptively. I think there is a development happening in relation to that in terms of quality accounts, which are a vehicle through which we can require these organisations to be honest about what is actually happening rather than burying-if they put it in at all-the bad news in appendix 5 alongside the pension details of the directors, figuratively.

Chair: Several colleagues have promised a final question. I don’t know whether anyone else has one.

Robert Francis: Barristers do it all the time.

Chair: I know Sarah has one she wants to ask as a final question.

Q85 Dr Wollaston: You made 290 recommendations. I am keen to give you an opportunity to reiterate to the Government what they should prioritise. What is going to give us the greatest effect? What should they focus on?

Robert Francis: I have made 290 recommendations because they come as a package. Within that package various things require development, but I am not going to say that one is more important than the other. What are important are the principles underlying those and the five areas that are contained within that.

The first is about producing fundamental standards for which there is zero tolerance of noncompliance, backed up by rigorous actions.

The second area is that we must promote openness, transparency and candour. That is a package. It is about candour to patients, but it is also about honesty with the public, commissioners and regulators.

We need to strengthen nursing. It is absolutely vital to strengthen nursing and the values that that can bring. I have recommendations about that.

We need to strengthen leadership, and I have said something about that.

Finally, something about which perhaps we have said less today but which is as important as the rest-if not more important-is making more usable, comparable practical information available as quickly as possible about the performance of organisations so that, whether it is commissioners, members of the public or parliamentarians, dare I say it, we can all make an assessment and a judgment about the service that is being provided. As I say, my ideal would be to be able to click on a website and find out what the infection rates are in ward 11, or, if I am going in for heart surgery, I can burrow down, as I am beginning to be able to, into a website and find out what the mortality rate is for the surgeon or-more realistically in the NHS-the surgical team I am going to. I should be entitled to know that. We need information that provides that in real time, but, picking up one of the questions, that does require significant advances in information technology to be available within the system.

I am sorry I have not completely answered your question, but my recommendations come as a package, and there are as many as that because I have tried to combine directions of travel in some of them with some more practical recommendations. If you break it down, I must have looked at about 20 different types of organisation and activity. So, if you spread those recommendations out among them all, it is not very many.

Chair: With that consoling thought, we say thank you very much for coming this morning. We shall certainly be following it up. Thank you very much.

Prepared 17th September 2013