Health Committee - Minutes of EvidenceHC 657

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Oral Evidence

Taken before the Health Committee

on Tuesday 19 March 2013

Members present:

Mr Stephen Dorrell (Chair)

Rosie Cooper

Andrew George

Barbara Keeley

Andrew Percy

Mr Virendra Sharma

David Tredinnick

Valerie Vaz

Dr Sarah Wollaston

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Examination of Witnesses

Witnesses: Gary Walker, former Chief Executive of the United Lincolnshire Hospitals NHS Trust, and David Bowles, former Chair of the United Lincolnshire Hospitals NHS Trust, gave evidence.

Q323 Chair: Good morning. Thank you for coming to join us this morning, both Mr Walker and Mr Bowles. You are extremely welcome.

I would like, if I may, to say a few words by way of introduction to this session, because it is very important to be clear as to the scope of our interest. The session takes place in the context of our review of the Francis inquiry and its implications for the future of the NHS-in particular, the recommendations that Francis makes about the need for a culture change in the health service to make the service more open and to ensure that those with concerns about the safety and quality of care being delivered within the system feel able, empowered and encouraged to raise concerns where appropriate. It is that aspect of the story of what happened in Lincoln that is of prime interest to us.

We clearly are going to refer to events that happened in Lincoln, but we have no power and do not have the means to make findings of fact. We simply want to hear your evidence from your point of view about the extent to which there was a healthy culture in Lincolnshire and your relationships with the rest of the health service, and, to the extent that there was not a healthy culture, what lessons that has to teach us about steps we need to take to encourage a more healthy culture in future. That is the scope of our interest. If I may put it simply, we are not an employment tribunal and we do not intend to be drawn into debates about what happened in terms of determinations of fact. It is issues of policy that are of concern to us.

Against the background of the correspondence between the Committee and Mr Walker in particular, and to a lesser extent Mr Bowles as well, I want to give you the assurance that this hearing is governed by parliamentary privilege. It is a parliamentary Committee, and therefore anything that is said here is fully privileged in the legal sense. It is also, of course, public. This is a public forum. As to evidence presented to a Select Committee, our invariable practice has been to publish it because we think it is inconceivable, frankly, that evidence presented to and, in particular, evidence referred to in a public session should be regarded as in any sense private. So it is privileged, but it is public. We need to be clear that those are the ground rules on which the hearing proceeds. Do you want to react in any way to anything that I have said so far?

Gary Walker: No.

David Bowles: That has been very helpful; thank you.

Q324 Chair: Starting with Mr Walker, can you talk the Committee through your view of your experience as chief executive in Lincoln? What were the instances that you would wish to draw to the Committee’s attention that illustrate the failure of culture that you clearly believe existed in Lincoln?

Gary Walker: Thank you. I am sure we will get into more detail, but I will give a brief overview of it. I went to Lincolnshire in 2006 largely because it was a failing organisation that was in a turnaround situation. It had a very bad Healthcare Commission report at the time. That report spoke of a culture of fear, that waiting lists had been fiddled, there were problems in the organisation and it was in extensive debt, overspending by about £1.2 million a month. For the first two years, a new board was put in, with me, David Bowles as chairman, and, essentially, an entirely new executive and nonexecutive team over the next six months after I arrived.

Then we set about turning the organisation round, paying off pretty much all of the debts within the first two years and achieving fiveyear break-evens from the finance point of view. We also achieved consistent yearonyear performance improvement in Healthcare Commission ratings at the time. We halved waiting times and nearly halved hospitalacquired infection levels to some of the lowest in the country.

All of that was going quite well. Then, in 2008, the decision was taken to extend my contract again for two more years. Because I was a turnaround chief exec, those contracts tend to be more fixed term or flexible contracts rather than permanent. The health authority approved my extension of contract for another two years in the middle of 2008. We were also asking at that stage for provisions of things such as what we call a capacity review, because the contract that we had with the PCT was over-performing.

As to events that perhaps started around then-and I will give you the first example-we went on something called red alert. Red alert is a normal procedure that all hospitals in the country go on when they are full up. Triggers like ambulances waiting outside would set you on to red alert. The response from the health system would be that GPs and other hospitals would take a plan that they have, which might be calling in more staff or putting on more resources, and ambulances might be diverted to other hospitals-that sort of thing. I got a phone call from the health authority saying, "You are on red alert. It has caused us"-

Q325 Chair: That is from the health authority.

Gary Walker: From the health authority.

Q326 Chair: From whom?

Gary Walker: That was from a person called Dale Bywater.

Q327 Chair: When you say the health authority, do you mean the PCT or the SHA?

Gary Walker: Yes. I mean the East Midlands Strategic Health Authority. It is a long name, so, if I say "health authority" from now on, it is that. I had a phone call from him saying that, by going on red alert, I had embarrassed the health authority in the eyes of Ben Bradshaw, who was then Minister of Health, that this caused a significant problem, Barbara Hakin had been informed and that I would get into some kind of trouble as a result of this. I could not understand that response because, quite frankly, it is a normal thing. In evidence to the employment tribunal that we will not go over, Dale Bywater and Barbara Hakin conflict on what was said at that point, where I think Barbara Hakin said red alerts are normal and Dale Bywater said red alerts were an inconvenience. That was essentially the situation.

Immediately after that, I got a phone call from Barbara Hakin saying, "We are about to approve £11 million-worth of funding for your trust and that is going to be very difficult while you are on red alert. I am about to go to my board this morning and ask for approval, but you are on red alert. So how can I do that?" I do not personally see the link between £11 million-worth of largely capital funding to build facilities and being on red alert. I think the two are completely separate. One is about operationally running a hospital safely and the other is about longer-term plans. That would be the first problem.

Then, towards the end of 2008, other events were occurring where we as a trust were saying, "We are very concerned that the organisation is going to miss the targets because the hospital is getting very full of patients. We are over-performing in all the lines of the contract by 10%, and it is probably going to be quite difficult to achieve the targets." We informed the health authority of this in December 2008, and there was no real response at that stage.

The response did not come until the new year, with the health authority then saying, "You really need to hit the targets. You need to hit the targets." We were saying, "There is nothing happening here in this system. We are continuing to see more and more patients, and we are going to have to start cancelling patients in order to run safe hospitals." Over the next few weeks we cancelled 700 or more operations-it may have been over 1,000 in that quarter-but most of those happened in the January or February time.

Then I was asked to see Barbara Hakin. I met Barbara in February 2009. Essentially, as you have seen from my statement, certain threats were made to me in the sense of, "If you do not deliver the targets, then I will not be able to protect you." I would need to refer to my statement about exactly what the words were because it is quite some time back, but, in essence, there was clearly a lot of pressure to deliver the targets and this was going to reflect on me as an individual if we did not deliver the targets. But, of course, at the same time I was asking for a capacity review, asking for help, and this sort of situation escalated as we went through this.

As the hospitals became more and more full, more and more threats were made. I will give you one example of that, which I think is quite important, from around February 2009. This was actually a period when I was not at the trust on this particular day-18 February. Barbara Hakin spoke to the director of operations at the trust. The reason I am bringing it up now is that Barbara has agreed in her witness statement that this is a true account. In the note of that meeting that Barbara Hakin has seen, she is reported to have said to my director of operations, "If you can’t manage an A and E"-which is referring to hitting the target-"you can’t run a hospital." In the context of the culture of the NHS, where you cannot speak out without fear of actions being taken toward you, you certainly cannot fail to hit the targets without threats being made to you. This was interpreted as a threat, and Barbara Hakin has agreed in her evidence that was about to go in front of a public hearing that that was true. I find that to be pretty black and white evidence of a threat-the similar sort of threats that were being made to me. I am conscious you want to interrupt there, but there are many more as the months go on.

Q328 Chair: What I am trying to do is interrupt you to summarise the story so far, as being that you were introduced into a turnaround situation, and until the summer of 2008, you felt all the relationships were open and healthy.

Gary Walker: I had not had much contact with the health authority. They tend not to speak to you. I had started in October 2006, and probably for the first few Mondays for maybe a period of three or four months, perhaps once a month, I would have a telephone call with Barbara Hakin. But, after that, I may have seen the health authority staff three or four times in a year.

Q329 Chair: This was through to June 2008.

Gary Walker: Yes.

Q330 Chair: Until that time, there was relatively little contact.

Gary Walker: Yes. I was going to chief exec meetings probably, as I say, four to maybe five times a year.

Q331 Chair: It was from that point that you began to feel yourself subject to threats, first around the £11 million and then later around the-

Gary Walker: To be honest, the £11 million and the red alert situation I put down as a oneoff. I did not believe at the time that that was a threat. I only believe that now in hindsight looking at what happened over December 2008 through to July 2009.

Q332 Valerie Vaz: I have two tiny questions, to take you back to the beginning. Did you apply for a post that was advertised or were you asked to apply?

Gary Walker: I was asked to apply.

Q333 Valerie Vaz: Who asked you to apply?

Gary Walker: Barbara Hakin asked me to apply.

Q334 Dr Wollaston: I have a very quick clarification. Did Barbara Hakin approve the £11 million funding? Was the capital funding approved?

Gary Walker: It was approved. It was a strange approval in the sense that half of it was given in cash and the other half was given in a kind of accounting entry that no one really understands, but, yes, eventually it did get approved, and it was actually the PCT in fact that was asked to find most of that.

Q335 Dr Wollaston: Sorry-you did not understand what the accounting arrangement was.

Gary Walker: [Interruption] It was partly the rent money. Half of it was to do with-well, we were arguing it. It is a complex situation. Back in the 2006 period, there were a lot of strange accounting practices going on around resource accounting and budgeting. The trust, before we got there, had borrowed lots of money and had overspent. We are going to get sidetracked into financial accounts and what they used to call double-

Q336 Dr Wollaston: Did you understand it? Was it clear to you and did you query it?

Gary Walker: I was quite happy with eventually how it was settled. But, in terms of the health authority’s approval for it, the health authority paid about £6 million and the primary care trust had to pay £5 million. But, again, it was a technical accounting move-there wasn’t really cash behind it. It looked as though £11 million had come in, but it was in fact £6 million.

David Bowles: Can I clarify this particular point, Chairman? I do not want to get into the technical detail, but, for whatever reason, the way the accounting system was running is that deficits were effectively doubled for a while because of strange quirks in the accounting system. The Government realised it and decided to put it right. They issued a press release saying, "These are the trusts that are affected. We are going to adjust their accounts by these amounts." ULHT should have been on that schedule and should have received directly from the Government compensation of circa £11 million. We were not on that schedule. When I raised it with my director of finance, I was told we were not on that schedule because, "This trust is not to receive a cash adjustment as the SHA did not wish to identify any trusts in the East Midlands as being financially challenged."

The very clear implication of that is that the financial distress in ULHT was being deliberately concealed from the centre to make the strategic health authority look good. It would be fair to say that I did not react terribly well to this news, because this was my trust that was about to lose £11 million-worth of compensation that every other trust in the country was going to get, and the reason we were going to lose it was because the SHA did not wish to identify any trusts in the East Midlands as being financially challenged. I raise it because it is a sign of that culture that you were talking about, Chair, of not owning up to problems, not being open and transparent. It is this financial adjustment that Mr Walker was referring to that they were threatening to withhold.

Q337 Dr Wollaston: But you did receive the money, albeit in a sort of odd vehicle, which was only understandable to those who manage trusts but wouldn’t be able to-

David Bowles: Yes. My concern is that East Midlands somehow somewhere probably lost out on some money. How they found the money within East Midlands, I do not know, but I suspect the East Midlands as a whole probably lost out and we got recompensed-but probably at other people’s expense.

Q338 Chair: I take the point that it may be that this was not fully accountable in public through the SHA, but, in terms of the culture in Lincoln, I think you said that you did not really see the debate around the £11 million as particularly threatening to your position as chief executive or, culturally, at the time-

Gary Walker: At the time, that is right.

Q339 Chair: You did not find it a particularly threatening experience.

Gary Walker: No; I would not say I did not find it threatening. I recall at the time, because of notes kept from that period, that I was amazed that anybody would do that, but I assumed it was just a kind of blip; it was perhaps Barbara Hakin on a bad day or something. I could not understand why anybody would ever put that kind of sentence together.

Q340 Chair: The reason I dwell on this-and then I am coming to my colleagues who want to come in-is to observe that you were running a major hospital and these are very large sums of public money that are involved. One of the questions here is where effective engaged management-management that will not always agree and will sometimes have some difficult conversations-falls over from being engaged management dealing with difficult issues into something that is threatening.

Gary Walker: Yes.

Q341 Chair: As I am hearing it, you are not making the case that that was your experience, certainly not until the end of 2008. My further question is as to how that developed in the early part of 2009.

Gary Walker: Indeed. I would not say "threatened" was the right word at that stage. I thought it was inappropriate and unprofessional, but I did not think it was anything that was going to lead to personal attacks, which is what then followed.

Q342 Chair: But then, as you moved into 2009, you were dealing with some operational pressures where you were putting the hospital on red alert, it was not welcome news, and there was a debate between you and the health authority as to what was the proper response to the demand pressure that you were experiencing.

Gary Walker: Yes. If I can pick up from the February period, there was going to be a meeting with the Department of Health, because obviously the Department of Health were quite concerned if we were not going to deliver the targets and wanted to know why we weren’t. We prepared a presentation-or, in fact, I prepared the presentation-for the health system, for the primary care trust and for the health authority. Immediately before going on a teleconference with the Department of Health, I was asked to remove any reference to the fact that I had asked for a capacity review for the past six months.

The importance of capacity reviews is very simple. The second you ask for one you should get one, and they are triggered at anything over 5% over the contract-a significant performance over the contract. So, in our terms, if I give you a financial value for that, that would be in the sort of order of £10 million to £15 million of care that is over the contract. So I can give you a financial value to it. We had been asking for this for six months because we could see the pressures coming and we were trying to avert them.

There are two things that happen as a result of calling for a capacity review. The first one is that your performance of targets is suspended and you have to report that up the line to the Department of Health. You do not have to report hitting what at that time was the 18week target, which, as you know, was a very important target at that point. The second thing is that the whole system has to come together to solve the problem. It is not the case that one organisation has to fix it. So a capacity review is very important.

Q343 Chair: When did you first ask for a capacity review?

Gary Walker: It was either May or June 2008.

Q344 Chair: You were asked to take it out of a presentation in 2009.

Gary Walker: It was in February 2009, but obviously this had been going on in various meetings and conversations with others for many months. The response from the health authority was, "This is your problem. You need to meet the demand." The phrase we will come to talk about is, "You need to meet the targets whatever the demand." That was a phrase that Barbara Hakin-and we will go on to it-has said and has put in writing as well. In the context of what I will explain for the hospitals later on in that year, it is a very dangerous thing to be trying to push through targets when hospitals are dangerously over-full.

If I can pick up on February, realising that we were not going to get a capacity review and I am getting told, "You must meet the targets whatever the demand," and there was going to be no joint planning at all, we put plans in place to open up an extra 100 beds. This is quite important because we as a trust could not afford to build these beds, because it was going to cost £7 million or £8 million. In the end, it cost £8 million. But we thought in February 2009 that it was going to cost about £7 million. We needed an extra 100 beds and we said, "When those are built, we will be able to deliver the targets. That is how much more capacity we as an organisation need."

The reason we needed that was because of the over-performance in the contract. The reason there was an over-performance in the contract was not only was there year-on-year increase in demand, but the primary care trusts had tried to buy less year on year because it was their plan to move care into the community. The plans, if you like, were in accordance with the planning regime at the time, which was more about care in the community, but the reality was that none of that happened; it just did not work. That is called demand management. That is what the phrase is.

Q345 Chair: It is not unfamiliar in the health service, is it? There is a cash limit in the health service and choices have to be made about the use of resources. So I can understand, if you were applying for a capacity review, that that brought everyone to the table to have the discussion about how you were going to address the issue. What was your response when they said, "Please do not raise it."?

Gary Walker: At that time-it was done immediately before the presentation to the Department of Health-there was just a lot of uncomfortable silence.

Q346 Chair: But you said it had been under debate for six months.

Gary Walker: Yes. I was obviously not wanting to upset the system at that particular time because-

Q347 Chair: If you knew you were going to be doing a presentation to the Department of Health and it had been under review-

Gary Walker: Well, I had put it in the presentation.

Q348 Chair: And you had been feeling that you were getting close to needing a capacity review for six months, why did you allow yourself to get to within minutes of a presentation without having rolled the pitch-established that you needed a capacity review?

Gary Walker: Actually at that time I did not want to upset the health authority, but, in hindsight, it was not the right thing to do.

[Interruption] That is a reasonable point. The capacity reviews that we were asking for in the summer were on specific areas of the contract. By the time it got to the new year, to 2009, we were now talking about the entire contract, so we were talking about the £300 million-worth of services.

Q349 Chair: I am sorry to pursue the point, but it does seem to be pretty fundamental to your case, because, as we are going to go on to explore, your case was that there was a choice between patient safety and meeting the target, and that choice was necessitated because there was inadequate capacity; yet you tell us that in the summer of 2008 you were already becoming concerned about lack of capacity. Six months later, you wanted to put the case for a capacity review into a presentation to the Department of Health and withdrew it at a few moments’ notice.

Gary Walker: Yes.

Q350 Chair: That is the case that-

Gary Walker: That was at the demand of a senior officer at the health authority. The reason for not pursuing it at that particular time is that I was under the impression that we were in it together, as it were, and we were going to work it out, and, for some reason, they did not want to talk about that to the Department of Health. In hindsight, I agree with you; I would have done that. But then what kind of a situation would we be in if there were three people sitting in on a teleconference arguing over a capacity issue that the health authority did not want?

Q351 Chair: I am seeking to draw the issue out, Mr Walker, not to act as prosecutor. I can understand you might tactically have concluded, "Okay, we will not front this up to the Department today," but, if I had done that, then I would have been on the phone the following day to the health authority saying, "I went your way yesterday. Now we are going to talk about this capacity review."

Gary Walker: The irony of it is that, in the presentation, it was in fact the gentleman on the other line from the Department of Health who asked for a review in the end. That review was, in fact, never carried out by the health authority. The irony is that, although we took it out, it was in fact requested by the DH.

Q352 Dr Wollaston: Why did you not at that point say, "Yes, I agree it is necessary."? If the Department of Health had said to you, "Do you need a capacity review?" did you say, "No, actually, everything is all right," or what was your response when they suggested it to you?

Gary Walker: I think it is important to understand the working relationships of the NHS. If you upset a strategic health authority, particularly the one I was working in, there would be repercussions for you. So you do not upset them. You work in that environment as best you can. I admit that I was unhappy about it, and certainly later on you will see I did raise this as being something I was unhappy to be forced to remove.

Q353 Dr Wollaston: But you were offered the chance. The Department of Health said to you, "We will offer you a capacity review," and you said, "No, we do not need one."

Gary Walker: No, I agreed. On the teleconference, I agreed that one was needed.

Q354 Dr Wollaston: You did; I am sorry. But that did not happen.

Gary Walker: No; that never happened.

Q355 Andrew George: I want to go back to why we have invited you both here, which is the Francis review and the culture within the NHS. This is not an opportunity to reair a tribunal; it is an opportunity to look at this in the context of what is going on in the NHS in the years leading up to this and, indeed, afterwards. The problem I have is that, from all that you have described, it sounds as if Lincolnshire was operating as an island. You were just talking about a culture that existed within the East Midlands Strategic Health Authority. So can I ask you this question?

I assume that you talked to your peers about the difficulties that you were experiencing. Presumably, you then spoke to your peers in Nottinghamshire, Derbyshire, Leicestershire and elsewhere to say, "Have you experienced the same problems of this unreasonableness?" If you are making the point that this is not simply a personality clash between you and Barbara Hakin, or something else going on, or that Lincolnshire was not being uniquely picked on, which is the purpose of what we are trying to get to, there must have been a culture going on. To what extent were you picking up the fact that there was a pattern that was in fact being repeated elsewhere?

Gary Walker: I did at the time talk to my peers-other chief executives-and I would say that many of them, but not all, would concur with my view that the view from the health authority is they were only ever interested if you are going to suggest that there is a problem anywhere and they are very heavy-handed about how that problem is resolved. So threats are made and people are told, "Well, you realise the consequences if this or that does not get done." This is not proper management. This is just sheer bullying.

Q356 Andrew George: Was your case unique because you were prepared to stand up to them? Is that the reason?

Gary Walker: It was in fact the stance I took with them. At the time, we were just discussing, I am trying to cooperate and work with them. But, as time goes on, I can see that more risks are coming up in the trust and nothing is going to change with their approach. So I have to stand up to them.

David Bowles: Might I clarify a point about Mr Walker’s appointment that I think also relates to your point? When I was appointed as chairman, there was a different regime leading the East Midlands Strategic Health Authority, a different chief executive and regional chairman. My board described to me events in meetings with senior officials at the East Midlands Strategic Health Authority that I found absolutely shocking-thumping the table, berating, the trust being forced to do work for which it was not paid in accordance with the tariffs, so that the deficit in Lincolnshire ended with the trust. They described to me incidents and events that I found outrageous.

I appointed Mr Walker because, in interview, he showed the integrity and backbone to stand up to that sort of intimidation and bullying. Unfortunately, we got into financial and performance difficulties because of over-performance of the contract, but he did what I appointed him to do, which was to act properly throughout, to try to prevent patients coming to risk, to not ram patients through over-full hospitals and stand up to the SHA. There are times when we perhaps duck and dive on those relationships because he has tried to maintain those relationships with the East Midlands Strategic Health Authority, but, at times, as Mr Walker has said, he did not want to have a row with senior people of the East Midlands Strategic Health Authority just before a Department of Health presentation.

Q357 Andrew George: You had spoken to your peers-the chairs of other trusts-and they were experiencing the same pattern of behaviour.

David Bowles: Yes. The quote that is used is, "If you are not on the radar, you are okay." The minute you are on the radar, you have problems. What I experienced and what other people tell me is not what I would regard as a managerial response. It is not a case of, "We are here to help. Let us actually understand the problem." If you understand the problem, you have a chance of sorting it. It is more around, "How can we cover up the problem? How can we sack people? How can we just move this on-fix it?"-fix people, not fix the problem. That is a deeprooted culture, I am afraid. If you read the Mid Staffordshire report, it talks about things like bullying, targetdriven priorities, denial, and it goes on and says that this was not only in Mid Staffordshire, but they collected evidence that said it existed elsewhere. I can assure you it existed in this part of the health economy.

Q358 David Tredinnick: For absolute clarity, what you are saying, as I understand it, is that the problems that you faced in terms of your relationship with the Department and the strategic health authority were in fact replicated right the way across the country and that you are not a unique situation: you are one of many. You could probably, I imagine, if we asked you, name others that you felt were in a similar situation.

David Bowles: To be clear, if you do not have performance problems, if you have no difficulty meeting targets, you would probably think the relationships are fine because you are having no great contact with them; you are just left alone to get on with it. It is when you start having problems. Discussions with others-I get in contact with quite a lot of people who phone me up about whistleblowing, which is one of the areas I am very active in-and the telephone calls I get from up and down the country paint a similar sort of pattern. There are, allegedly, some areas of the country where the strategic health authorities are rather more enlightened, where the chief executives perhaps have a different management style, but there is this deeply ingrained culture of making things look good, rather than things actually being good.

Q359 David Tredinnick: My question was specifically about what was going on at that time. I want to know whether you felt your situation was unusual or whether it was occurring across the country. Essentially, you are talking about the culture of threats and bullying-that is what I am talking about-from the Department: Barbara Hakin, I suppose.

David Bowles: Yes. If you read the 2009 NHS Confederation report, it talks about a climate of fear, intimidation and bullying. The 2008 reports talk about the public humiliation of CEOs as being the main improvement tool. That speaks for itself, doesn’t it?

Q360 Rosie Cooper: Mr Walker, you indicate that your primary concern was patient safety at the trust. It is accepted that the trust had experience of a dramatic rise in admissions to A and E during the winter of 2008, so I want to turn more to the clinician side of it. What discussions did you have with clinicians about the impact of that increased demand on patient safety issues? More precisely, did your medical staff committee discuss it? What was risk management doing? It is about the structures of the hospital: how did the problems that were created at that time feed into the committees that were set up directly to discuss those issues?

Gary Walker: There are two ways-formal and informal. The formal structures are around the board reports. Each one of those reports has performance figures and those sorts of things. It also has a quality report, so there are some contextual points put in there, not just data. Data is one thing, but events that are actually happening-incidents that are reported, those sorts of things-may come to the board. They would often be dealt with at subcommittees, like governance committees and things like that. Within those formal structures there are things like risk, risk management and all that. But there are also informal structures in terms of how I would be informed. I operated an opendoor policy-

Q361 Rosie Cooper: Forgive me, but you are not answering the question I asked you. Your concerns were raised about patient safety. Therefore, I asked how you engaged with and got the opinion of the clinicians, be it informally, if you like, but also formally. The medical staff committee-surely, risk management-would have been very worried if patients were at risk.

Gary Walker: Indeed. I thought I was answering that.

Q362 Rosie Cooper: So let’s deal with patient safety and clinicians, not all around it, please.

Gary Walker: Okay. I was about to come on to say that I do go and see clinicians and I was in part of those meetings. I would go down into the theatres and other places, and people would stop me, as well as all the formal reporting systems around risk management meetings and so on. They would deal with them, in terms of formal risk management, by looking at incident reports, looking at concerns that were raised by people. Medical staff in committees tend to talk about medical staffing, not necessarily risk management.

Q363 Rosie Cooper: Forgive me. You are talking to somebody who has chaired a hospital, so don’t start to mix all the issues up. I understand what risk management does and I also understand what a medical staff committee does. But let me tell you, while it may start off talking just about how it does relate to that, the truth is that is the forum at which all the consultants-or most of the consultants who are available to attend-are sat round a table and, if there were patient safety issues, they would be talking about it. So what happened in your hospital? Did you talk about it?

Gary Walker: We would talk about all those things all the time. But you wouldn’t talk about-

Q364 Rosie Cooper: So it is in the minutes.

Gary Walker: I think you would find, if you looked at the minutes for all those meetings, you would quite happily find them. I had clinical directors running the various departments. We restructured to put doctors in charge, so managers were reporting to doctors in the trust, and it would be those clinical directors that would manage clinical incidents in their particular part of the organisation. They would come together into an executive team and tell me if there were any issues. The answer to, "Were they raising issues at the time?" is yes, they were.

Q365 Valerie Vaz: What sort of issues? Was it high mortality rates?

Gary Walker: I have detailed them in my-

Q366 Valerie Vaz: Can you detail them now? What was causing you concern? Was it the high mortality rates? Were patients waiting on trolleys? What exactly was it? I cannot get a handle on this.

Gary Walker: Certainly. There is a range of ways to look at problems, and I am trying to answer both questions. There are daytoday issues-those are incidents that are happening because of the way things are happening today-and there are longerterm issues like HSMR and mortality rates. In terms of HSMR, back in 2008, we were concerned that we had a high mortality rate; we had an alert, but we did not know for certain. With regard to that response, because we could not get any reasonable information from the systems, Dr Foster or anything that would tell us the answer, we decided to do what no other trust had done at that point, which was to look at every single death in that hospital over the course of a year by looking at case notes and getting those reviewed by doctors and other clinicians who had not been involved. That would be how we approached things like mortality.

In terms of operational and daytoday concerns, people were coming to me and saying things. I give you a good example in there. I went down into the medical assessment unit, which is an area where emergency patients are taken, and there were trolleys lined up side by side that were so close together that you could not get between them. I asked whether they were in storage and was told that, no, they are in active use. I said, "That is not right." If you had had experience of the Maidstone situation, where trolleys were put together, there was a huge crossinfection risk by doing that. The nurses came up to me and said, "We know it is wrong, but we were told to do it." I said, "Who told you to do it?" It was a manager that I later dismissed, who then tried to produce evidence against me to get me dismissed.

These sorts of things were going on. The staff knew that there were problems, but they were too frightened to talk about it because everybody was obsessed with this culture in the NHS-not driven by me-that, if you do not deliver targets, that is it; you are finished. Actually, if you put patients at risk is the reason why you should be dismissed, not because of targets-

Q367 Valerie Vaz: Were they frightened to talk to you?

Gary Walker: No. The staff talked to me.

Q368 Valerie Vaz: Who were they frightened to talk to then?

Gary Walker: They were frightened to talk, in this particular case, to their manager. To give you examples of things that were going on, we would have clinicians raising concerns with me. There are other ways that clinicians raised concerns-things like trauma lists. Often, that would be very difficult. Trauma patients would come in and there would be too many trauma patients to treat. We all know-I do not know if the Committee does-in the health service that, if you do not operate on a fractured neck of femur in 72 hours, that is going to be a very bad outcome for that patient. There were various issues with trauma lists that were raised to me quite often, not necessarily through this period but increasingly over the next few months-March, April and May-as things went on. That is a result of having over-full hospitals. There is nowhere to put the patient postoperatively, and it is dangerous to leave them and so on. I could go on-

Q369 Chair: You are describing, Mr Walker, a hospital that is full and working under pressure. The question is, coming back to Andrew’s question around culture, what was it in the culture that prevented you taking the steps necessary as the man responsible in Lincoln for addressing the situation you describe?

Gary Walker: What I am describing is a period of heating up, if you like, of things getting worse and worse.

Chair: Absolutely, I understand that.

Gary Walker: We are only at the warm stage at the moment.

Q370 Chair: But you, as manager, should have identified that this was a problem that was developing. What were you doing about it?

Gary Walker: What I was doing was managing a hospital as safely as I could, which is, when I took the decision to cancel 700 operations, that was trying to manage the emergency side of the trust safely.

Q371 Rosie Cooper: Can we go back to what the clinicians were doing? If it was all unsafe, what were the clinicians doing about it?

Gary Walker: I am not saying it was unsafe then. The point I am making throughout the entire presentation here is that, in order to run a safe hospital, these things had to be done and I was doing x and y. What I was getting was pressure from outside saying that they wanted the targets delivered and, "We don’t care about that. We don’t care about the demand issues or your requests for a capacity review earlier in the year."

Q372 Chair: With respect, you have told us they offered you a capacity review.

Gary Walker: No; the Department of Health did.

Q373 Chair: Indeed, the system offered you a capacity review.

Gary Walker: No; that is not the system.

David Bowles: Chairman, can I clarify that particular point? We are probably getting into quite a lot of detail here. The point is that the trust, as described to me by clinicians, was at that tipping point. People were concerned that, if we continued putting pressure on the system, we would tip over from being a hospital that was just about coping. Unfortunately, there were an increasing number of slightly dodgy things, and I had had complaints about people having early discharges, for example, and then having to be readmitted and substandard care, but hopefully not actually killing people. We were at that tipping point.

Mr Walker and the management team were saying, "We are going to cancel operations. We know that means we will not hit our targets. We are going to do this and we are going to do that to keep us on the right side of that tipping point." That is where we were here. Very early on in 2008, we had asked for a capacity review around only one or two specialties that were overheating. By the time we got to the turn of the year, we asked for a capacity review across the whole of the contract. I asked for it. The Department of Health-

Q374 Chair: When did you ask for it, Mr Bowles?

David Bowles: I asked for it, I think, in February 2008.

Q375 Chair: Was that 2008 or 2009?

David Bowles: I am sorry; it was 2009. I asked for it again in April 2009. I raised it with the regional chairman on numerous occasions. He completely refused to engage even in the conversation. I even had to send him an email with the links showing what a capacity review was, and he refused to allow it and engage in a debate. I had a bizarre conversation with him where I said, "I am only prepared to meet these targets once we have our 100 new beds," and he said, "That is completely unacceptable. You have to meet your targets regardless of demand." From my personal objectives, he tried to strike out the caveats that I had put in, which said, "We will meet the targets when we have the 100 beds." I raised with the PCT chairman the capacity review. His comment was, "Everybody else is coping. Everybody else in the country is meeting them." Not everybody else in the country was meeting their targets, but his way of performance-managing the trust was to say, "Everybody else is coping." I am sorry, but I was in our situation rooms where staff were desperate for the next bed for an emergency patient and I was being told, "Treat your nonurgent patients." I found that absolutely scandalous.

Q376 Rosie Cooper: How many of your clinicians went on the record at that time?

David Bowles: You have a culture here; I will explain it to you.

Q377 Rosie Cooper: You don’t need to.

David Bowles: The people who complained to me were the director of finance, the chief nursing officer, the director of performance, Mr Walker and our contract manager, who had all either received or witnessed-

Q378 Rosie Cooper: There is only one clinician in that list.

David Bowles: bullying and harassment.

Q379 Chair: By whom?

David Bowles: By staff of the SHA. When this review that we may get into in due course comes up-the Goodwin review-I am not confident that a single one of those people would have been prepared to say to Mr Goodwin what they said to me because, if you raise those concerns, your career will come to an end. That is the deeprooted culture that we are dealing with here.

Q380 Rosie Cooper: You are accusing Neil Goodwin now of being a bully.

David Bowles: No. I am just saying that, if people do not have confidence in the confidentiality of the processes they are going through and believe that Mr Goodwin will report what was said-they do not think that what they say to him will be confidential-they are not going to say it.

Q381 Rosie Cooper: I did have more questions to ask, but we are going into very great detail and you have known your appearance here was going to take place for a number of weeks. Why did we only get a substantial amount of paperwork yesterday, not giving the Committee time to analyse and look at it in great detail? Why submit it yesterday morning?

Gary Walker: I wanted to submit to you what was relevant. I had not been in the country since I had the invite. I was invited to come here-but was not available-the week before last, I think it was. I had only just got back in the country. This is only 10% of the documents that were available for the employment tribunal. I have taken out all of the employment tribunal issues and tried to distil those that are relevant to here. That took me time because I am on my own to do it; I do not have a team of people to do it. There are 3,000 documents that I have distilled down to about 100 of those.

Q382 Rosie Cooper: Would it not have been better for you to ask for a later date, so you could give us a chance to look at the information you have submitted?

Gary Walker: I didn’t think that that was-I thought the Committee was quite clear that they wanted me here. I am happy to adjourn if you want and come back again.

Q383 Chair: We would probably prefer to pursue it now that we are here.

David Bowles: Could I explain, Chairman, that in my case I was out of the country? I received the email when I was out of the country asking for me to be here. I only got back and effectively had to work on this over the weekend and got it to you Sunday night. I apologise for that, but I literally was not back in the UK till Friday.

Q384 Mr Sharma: Let me say that it might be that the Chair will ask you to come back after a few weeks again to clarify many other things.

NHS East Midlands contends that it raised trust performance and governance issues with you in November 2008. Is it correct that they raised it with you?

David Bowles: I could comment on that. If you look to the period up to 2008, my own personal appraisals were things like, "Well above average; impressive performance; capability to be outstanding." Those were my actual reviews. Mr Walker’s contract was renewed in July 2008, and it would be fair to say that Barbara Hakin would have been very disappointed if Mr Walker had left at that stage. She was really quite concerned that his contract should be renewed. What happened between then and Mr Walker being suspended and sacked and me being forced out is that our impressive performance becomes one of, "I am terribly sorry, but we demand a capacity review. We are going to put patients first. We are going to put safety first," and them saying, "Meet targets regardless of demand." What they subsequently did was launch reviews and investigations and so on to undermine people, to try and force you out. To this day, it is a great regret. If they had put that management time and effort into analysing Lincolnshire’s health economy, what was wrong with it and helping to improve it, we might have a better NHS. Instead, they acted in a way that is characterised in the Mid Staffordshire report as having a lack of candour and being target-driven, bullying and undermining. It is a great regret that they have produced that report today, which even says, "Mr Walker is not a whistleblower."

Gary Walker: May I answer? The answer is no, not in those terms. Performance was not raised with me like that at all. As you will see over the next few months, lots of letters were written by Barbara Hakin that were not accurate accounts of the meetings. As a result of getting those letters, I had a choice either to write back to Barbara and correct her strange account, which I knew would then exacerbate the friction between the trust and the health authority because they were already being difficult towards me, or to speak to the board, essentially, of the trust, which I did, and I kept them informed from the very beginning that things were being said to me that were completely different from what was being recorded in these letters. Later on in the year, you will see that I wrote back to Barbara Hakin explaining that she had misinformed and essentially written stuff down that was not true.

The short answer is no, it was not raised as performance issues in any way like that. The only thing that I think was given to me from November 2008 was a typewritten note. I think it was a file note or something like that that Barbara Hakin had written following a meeting in November, and it was many months later that I had even seen that note. But it certainly was not something that was raised like that at the time-not at all.

Q385 Andrew Percy: Apologies for being a little late, Chairman. On this point, I was interested in your submission that you talk about the threat that was made to you in January 2008 after you declared a red alert, in which you go on to say that you were warned that Barbara Hakin considered there would be serious implications for you and that this had compromised the strategic health authority in the eyes of the Minister, Ben Bradshaw. Later on in that year, we see from November that we have had the statement, which of course has just been raised with you. Do you think the change in the attitude of the strategic health authority towards you personally, and indeed to the trust, is as a result of what happened in January 2008 and that this undermined the strategic health authority?

Gary Walker: No. As I said earlier, I think that was more of an aberration-a oneoff; I don’t know exactly. It was improper to be threatening me with red alert versus £11 million, but it is not uncommon in the health service to have those sorts of things said. I was not particularly concerned. I thought it was a threat, but I was not necessarily personally concerned at that time. The breakdown of relationships essentially came as a result of resisting the health authority’s pressure to remove me, which was driven by the fact that I was saying, "Hospitals are going to be unsafe if we carry on like this. I want things like mortality reviews. I want external support. If we cannot have a capacity review where we all work together, then I need some other solution to it."

Of course, my solution was, "We will build more beds then." Bear in mind that, at that time, the NHS was looking to reduce its size of acute facilities, not increase it; so to talk of building more beds, we were at odds with the entire trend of the whole NHS. In the end, just after I was forced out in July, the money was approved by the health authority and 100 beds were built. That is certainly an admission that there was a problem that required more capacity. During this process, I was being forced down a route to deliver the targets regardless of that demand. I think the reason for that is because targets were more important, particularly at that time. That is where I think the conflict came between the trust and the health authority, and that is when the relationship changed over the targets, not the year before.

Q386 Andrew Percy: This threat of removing funding you said is or was normal at the time. Is this the only example you had, or were there other examples in which you were threatened that you would suffer financially as a trust if you continued to-

Gary Walker: Not from the strategic health authority, no.

Q387 Andrew Percy: But from elsewhere-from the Department directly.

Gary Walker: I have spent 20 years in the health service and behaviours like that do exist.

Q388 Barbara Keeley: Before I come on to other questions, you talked about the excess demand, the increase in demand, 100 additional beds needed per week and the level of occupancy. This is a straightforward question. Where was that demand coming from? What were the issues in your local community or population that were causing that huge demand that maybe other hospitals were or were not experiencing?

Gary Walker: The irony is that we were asking a year before for a capacity review and we could have found out the answer to that question.

Q389 Barbara Keeley: You must have discussed it.

Gary Walker: As an acute hospital, most of your money, time and people are spent on running the hospital, not examining the system around it. The system around it is the responsibility of the primary care trust, and that was our first port of call. "Can you manage the demand?" because that is their statutory duty; but they were not interested in engaging. They were actually quite silent throughout most of the process, not responding to calls for any sort of joint working. We tried several times to get them to sign a document that said they were interested in joint working. We even quoted the NHS Act at them in the end and said, "There is a duty on you to work together, not just to have this buyersupplier-type approach." They would not. They were not interested-not interested at all.

Q390 Barbara Keeley: As to the capacity review that you were asking for-I am not sure-who would have carried that out? Who would you have expected to carry that out?

Gary Walker: It would have been a third party.

Q391 Barbara Keeley: Did you follow up on the Department of Health offer? When you talked about the teleconference and the presentation, I think you said, "Ironically, they had offered a review."

Gary Walker: Yes. I would have loved to have done so if I had stayed in my job.

Q392 Chair: You were there another year.

Gary Walker: No, I wasn’t. I was actually only there for another couple of months and then I was asked to stay at home.

Q393 Barbara Keeley: They did not come through with any letter or followup or anything on that offer.

Gary Walker: No.

Q394 Barbara Keeley: It was just a verbal offer.

Gary Walker: Yes. I think his name was Nick Chapman.

Q395 Barbara Keeley: You might not have things to add because my colleague Andrew Percy has just asked a similar question, but Mr Bowles has characterised the approach that he associated with the trust and has talked about issues from before when he was appointed. It is largely about being on the radar-presumably, from when you went on red alert, you were on the radar-and, if you had not had performance issues, your relationships might have stayed okay. Did that relationship wax and wane? Did it improve at any point, or throughout this period you are talking about was it that things just degraded?

Gary Walker: I would not say I had much of a relationship with Barbara Hakin prior to that. It was very professional and we did not talk that much. There was not a lot going on. There were a few things that I was asked to do region-wide, which was things like chairing the critical care network and things like that, but, other than that there was not really any contact more than a few phone calls. It was only when we started to suggest that we may miss the targets that the interest started. Then, of course, because nothing changed around demand, we then said, "We are definitely going to miss the targets," and that is when it became very personal.

Q396 Barbara Keeley: We have touched on issues of bullying and harassment. Can you tell us when and with whom you raised concerns about bullying and harassment? I think I made a note that you first felt in January or February 2009 that there were threats to two of the staff in conversations. Then, if you move us through, because that is a big part of what you are saying, I think it is quite important to understand where you felt that was coming in, who was affected and who you talked about it with.

Gary Walker: Any time that I considered it to be a formal threat of bullying and harassment I mentioned it to the board. You will not have seen it, I guess, but at annex F to my statement there is a list of 16 protected disclosures, which gives you an idea of the number of times that I had raised concerns about some improper practice that was qualified under the whistleblowing Act. It does not necessarily cover all of the issues of bullying, but these are the more extreme ones, if you like, where patients may have come to harm or a code of conduct was broken. It starts in January 2008-obviously, there were times there-and then it picks up again in February, where we have got to in the timeline. Then, from February onwards, there are 14 more occasions where all of those were reported to the board and then eventually reported to-well, some of my disclosures to the health authority are technically whistleblowing disclosures. Then, of course, I wrote to David Nicholson and told him all about it.

Q397 Barbara Keeley: That was in July 2009.

Gary Walker: That is right. It is very well documented through minutes of remuneration committees and other things.

David Bowles: This was a particularly difficult issue. As far as the remuneration committee was concerned, we were caught in that we had had a number of complaints from staff. We had passed a resolution at a board meeting in January 2009 that made it clear to the executive team that, if they experienced bullying, they would be protected by the trust. That is formally recorded in the trust board minutes. That was about as far as we could go, because none of those who complained to me were prepared to allow me to raise the issue directly with the strategic health authority and to make the specific allegations about named individuals in the strategic health authority. The basis for that was quite clear-that their careers would come to an end the minute I made the formal complaint on their behalf.

I make this comment because I was absolutely shocked that that was the response. In fact, the debates among the nonexecutive directors on the remuneration committee were, "Are we dealing with the Mafia?" That was the nature and tone of the conversations of the nonexecutive directors on the remuneration committee. We wrote to Mr Walker and advised him that, when he met officers of the strategic health authority, he should have a colleague with him to witness and take minutes of what actually happened, and, finally, we advised Mr Walker that he should bypass the strategic health authority and raise complaints directly with David Nicholson. To this day, I feel I let everybody down.

Q398 Chair: As to this pattern of behaviour that you say the trust board discussed in January 2009, did you raise that at the time with the chairman of the SHA?

David Bowles: The very clear steer that I got from those people who had raised the issues with me was that they absolutely did not want it raised with the strategic health authority. I sought advice as well from our head of HR on what we should do as a good employer and so offered counselling and support. All of those sorts of things we tried to do.

Q399 Chair: With respect, Mr Bowles, you do not have to identify any employee. If you have a concern about a pattern of behaviour within the SHA, that surely is an issue of public concern that goes way beyond the concerns of an individual employee about their employment.

David Bowles: If you raise those concerns, for those concerns to be identified and addressed correctly and accurately, you have to identify who was the recipient of the bullying behaviour and who was the perpetrator.

Q400 Chair: You have to open a discussion, don’t you? Of course, if you are going to root it out, then you have to deal with instances, but is the answer to the question, "Did you raise it with the chairman of the SHA?" no?

David Bowles: I certainly raised my concerns about the general tenor, tone and the pressure on targets. I raised that on many occasions.

Q401 Chair: I am asking a specific question. You are making a very serious allegation that the relationships between individual senior employees of the trust and their counterparts in the SHA were such as to make it impossible for them to do their jobs because of their concern about their future employment in the NHS.

David Bowles: I raised it in very general terms about pressure. I raised it with David Nicholson directly. Again, I took the choice that-

Q402 Mr Sharma: Was it passing remarks or a serious discussion?

David Bowles: The problem is that I, too, experienced it. What is the point in going to John Brigstocke to complain when he absolutely lost it with me? "Lost it" is the way I would describe it when I said absolutely bluntly, "I am not prepared to give you a guarantee that we will meet targets until the 100 beds are built." I formally raised concerns about John Brigstocke’s behaviour towards me with David Nicholson. So I was the recipient of that conduct and behaviour as well. I was prepared to do that on my behalf-I am prepared to go public and to write to David Nicholson and identify myself as a recipient of bullying behaviour-but I am not prepared to do it in such a way that it would destroy people’s careers. If you look at Gary now, Gary blew the whistle, applied for 50 or 60 jobs and has not got even one interview. That is the culture you are dealing with here.

Q403 Chair: What I am hearing is that Mr Walker has made the case that there was a capacity issue that was growing from the summer of 2008, but right through to his departure in the summer of 2009-a year later-no capacity review took place. That is in my mind a serious strategic failure by a senior manager, and you, as the chairman, are describing a culture that makes it impossible for the senior structure of the Lincolnshire trust to relate to the strategic health authority. Apart from generally raising it, it was not an issue. Yours is not an NHS career and there is no career on the line in your case. It seems to me that you owed it to your position as chairman of the trust to take more seriously the concern you are now expressing to the Committee about the culture that made the job impossible to do.

Gary Walker: Do you mind if I say something? You are possibly missing the aspect of the culture that is so severe. The people involved-the directors who worked for me-raised concerns, but equally said, "If we speak out about these concerns, that is it; we don’t have a career. We all have lives and mortgages and so on." Things changed later as we go through the timeline, but at that stage people were saying, "This is outrageous behaviour, but if we stand up now we are just going to get shot like everybody else does."

Q404 Chair: All right. I am repeating what I am hearing.

David Bowles: I agree with you, Chairman, that I found it very uncomfortable to be in that position-very uncomfortable indeed-and, to this day, I question whether I handled it properly. My real fear is that, if I had handled it in the way that I would have preferred to have done, we would have more people unemployed like Mr Walker.

Q405 Chair: We need to reserve time to discuss the compromise agreement that I know Sarah wants to come on to. Can we complete the discussion of the timeline to the point where you were-

Gary Walker: Indeed. I will deal with that in the next few minutes. You have had a quick read of the briefing. I am at about paragraph 49, moving on to March 2009. There is an example there of emails that came through from Barbara Hakin and the chairman, a joint email, and I give you the quote: "The consequences of not meeting this national target"-in reference to A and E-"in the East Midlands overall could be considerable." What consequences? We are going back to the context now. What consequences are there? Why is an email coming through to say there will be consequences for not achieving the target? I am not really sure how anybody can interpret that other than the way that I have described in my note.

In April 2009, things are now obviously getting very difficult. I have had a director, who himself is a clinician, say to me that something is going to go very wrong in this organisation. He was my director of performance. He is obviously looking at the data at the time. The data at that time was that the hospitals were 100% full-I mean, on average, 100% full. There is no time between patients in and out of beds. People are on trolleys and that kind of thing. This is a dangerous place to be.

Q406 Chair: But there is still no capacity review.

Gary Walker: We had gone beyond a capacity review, in my opinion, at this point. This was now into crisis management.

Q407 Chair: That is understood. You have to manage the crisis, but you also have to address the cause of the crisis.

Gary Walker: Indeed. It is not within my gift to organise a capacity review for a health system. I am a provider of services in the system. I had asked for it.

Q408 Rosie Cooper: You would not have lost your job for pursuing that. The argument you are using is, "If I do x, y and z, our careers are threatened," but actually getting a capacity review is a neutral thing, is it not? They have offered it, you want it-

David Bowles: I am sorry, Chair, but, if I may interrupt, I raised the capacity review directly with the chairman of the PCT and the chairman of the strategic health authority on numerous occasions. There was an absolute flat refusal. My belief is that the reason they refused it was that, if they agreed to a capacity review, it would be an acknowledgment that their plan to divert capacity away from the acute sector into other areas had abysmally failed, and they would have required, as Gary Walker said earlier, to go up the line to the Department of Health and say, "ULHT is temporarily relieved from having to meet the 18week target, while we carry out a capacity review and replan services in Lincolnshire." I believe the reason they were not prepared to carry out a capacity review was because that would have looked very bad up the line. This is an organisation that had already-

Q409 Chair: But from the top of the line, Mr Walker just told us, they offered it.

David Bowles: Yes; it may have been offered by the Department, or suggested by the Department, and that is all very well and good; but under the contract, it has to be commissioned by the PCT or the SHA, and they refused. It is just part of the coverup, I am afraid. So our tactic was a bid for 100 beds, and that was sitting on the SHA’s table.

Andrew Percy: We see this now as Members of Parliament, don’t we? We have huge problems in my local hospital that is on purple alert, and whenever we try to raise the issue about bed numbers, we are told repeatedly, "There is not an issue with bed numbers. It is all about trying to divert people into their own home for care," and all the rest of it. You are not able to question properly. I get the impression that it is, "The general direction of travel is that we need to lose more beds from our hospitals, and anybody who questions that is against modern healthcare or doesn’t know what they are talking about." We have a huge campaign in my own constituency at the moment around beds, and what we come up against the whole time is a brick wall of, "How dare you raise and question the number of beds in our hospitals? It is not acceptable. That is not the direction of travel." So I get this entirely because we are seeing it in my part of Lincolnshire right now.

Chair: Except that in this case, in the discussion with the Department of Health, the review was offered.

Andrew Percy: But it has got to be deliverable. Who is going to deliver it?

Q410 Barbara Keeley: We have just been told that the PCT would have to have carried it out, but the PCT was not willing to do so. Did they at any point document-or was it just verbal-the refusals to carry out a capacity review?

David Bowles: It was verbal but it was also quite explicit in the correspondence I received. The correspondence I received said things like, "We should fine you because you are not meeting the targets." I am sorry, but they could not fine us because we were over-performing the contract. It said things like, "A look back at history shows that there is nothing unusual going on here. Everybody else is coping. Meet your targets." The capacity review has to be triggered by the PCT in recognition of, "There is a problem." They frankly refused to accept there was a problem.

Q411 Rosie Cooper: Can I try this one more time? Bearing in mind where you have ended up, just go back to the capacity review. It has been offered to you by the Department of Health. You suggest it has to be commissioned by the PCT. Did you ever go back to the Department of Health and say, "The PCT has not commissioned it. We are desperate"? All of this has gone on; all the clinicians and the whole hospital is in disarray because you fear for patient safety. Did you go back to the Department of Health and say, "Where is it?"

David Bowles: I went back to David Nicholson personally in July 2009.

Q412 Rosie Cooper: Was David Nicholson in the Department of Health? What was the timeline there?

David Bowles: Yes. He was chief executive of the Department of Health, yes.

Gary Walker: Throughout this period.

David Bowles: Throughout this period.

Q413 Rosie Cooper: You went to him personally.

David Bowles: I wrote to him personally on it.

Q414 Rosie Cooper: What response did you get?

David Bowles: "The Goodwin review", which never even looked at capacity review.

Gary Walker: Or safety.

David Bowles: Or safety. I wrote to David Nicholson in July 2009, raising my concerns that they had repeatedly refused to conduct a capacity review.

Q415 Chair: But this was at the end of the process in terms of your own tenure as chairman and Mr Walker’s effective tenure as chief executive.

David Bowles: Yes.

Q416 Chair: The period when this crisis was developing, as you have told us, was from 12 months before that.

David Bowles: I think, with respect, Chairman, you have to understand that, during the February to March 2009 period, the PCT’s line was, "Yes, we know you are running a bit hot, but it is winter pressures; it is winter pressures; it is winter pressures." Then, come April, we had our record number of emergency admissions. In June, we had another record number of emergency admissions, and in July we had another record of emergency admissions. At that point you say, "No, this is not winter pressures. This is something fundamentally out of kilter." So you go from, "There is half an argument here about a capacity review because it might be a blip." If you look at the performance data across the NHS as a whole, you will see that in January and February 2009 there was a peak in demand. The PCT was arguing, "No, this is just rather extreme winter pressures." Their contract from April 2009 onwards was over-performing from April 2009. When I sat down with John Brigstocke and said, "This is not winter pressures. We have had record emergency admissions in June 2009," he was still not interested.

Q417 Chair: We have probably done that subject to death. Are there other points in the evolution of the timeline in the spring and summer of 2009?

Gary Walker: There are a few. I will go from April 2009 to July, because that was the last time I was there. I will move through that quite quickly. So now we are in April 2009. I meet Barbara Hakin after asking her for various things, talking to her about patient safety concerns that have been expressed to me, asking for external help in carrying out work around mortality. She was not really interested in talking to me about that at all. She met me in a hotel reception and said that, if I did not go, my career would be "in tatters". She went on and asked me to make up a story to tell my chairman that I would be leaving because it was my decision to go, and later on she did try and find me another job somewhere. Bearing in mind what I have just said about the environment, there was no other performance issue other than we had said, "We can’t hit the targets because of the demand." There was no performance management in that sense at all, and no analysis has ever been undertaken as to why demand was so high.

In Dame Barbara’s witness statement, which is again a document that would have been sworn into a court, she says, "The reference to ‘constructing a story’ was to protect Gary." I do not understand any of that. It is an acceptance that Dame Barbara was in fact asking me to lie to my chairman. It is also an acceptance that I needed some form of protection.

We have already covered the issues of me being told to deliver targets whatever demand. There is a document in the bundle that you will see eventually with Barbara Hakin’s handwritten note of that comment, which is a very common comment, "You must deliver the targets whatever demand." If you are running a hospital that is full up, and dangerously full up, and you are cancelling patients left right and centre, to just blindly go on and deliver targets is totally wrong because you are going to cause harm.

Then there are threatening letters going to the chairman now talking about me-this is in May-where the chairman is reminded that Barbara Hakin’s formal authority is limited to removing my accountable officer status. What that means is that the employer-the trust- would not be able to employ me if I did not have accountable officer status. If it is removed, I will be dismissed.

Q418 Chair: The reason you have done this is just-

Gary Walker: It is a threat. You want to talk about the culture. I am trying to tell you there is a culture of threats and intimidation. Again, there is no performance management, no other issues apart from the fact that I was telling them we could not deliver the targets. Bear in mind, let’s not forget, that, as soon as I am out of the way, 100 beds are built in recognition of the fact that there is not enough capacity, which is what I was saying all along.

Then there is a period in May where Barbara Hakin asked me to stay and then changed her mind the next week.

Then there is the Catherine Elcoat report that was commissioned around June 2009. The summary of that, if you refer to paragraph 66 of my statement, is quite clear. It gives you some of the numbers there. It says that care was good and there were no questions about the quality of care at that time. The reason it is good is because that is what we were trying to do. We were trying to keep the quality up, not necessarily, unfortunately, hitting the target. The report did say that the staff were very tired. I agree with that. That is the case when running hospitals where everybody is flat out; they are going to be very tired. Again, that has its own risks. This continued on for a while.

I will skip now to July 2009, where, because of the threats against me and the forcing out of the chairman the day before, I realised that because I had not agreed to go they were now going after the chairman, to put a new chairman in to remove me. That is a very common practice that has happened over the years in the NHS. So I wrote to David Nicholson, explaining everything that had gone on. I noticed that yesterday at the Public Accounts Committee he denied any of the following that I am about to say, but if you want to read the letter it is quite clear. I disclosed to him the threat to patient health and safety due to the fact that I was being forced to comply with targets; the threat to the health and safety of patients due to the SHA bullying of members of the ULHT staff; then that I was asked to leave my post, which is also bullying and intimidation; and that the various reviews that the health authority had carried out, which I am happy to talk about a bit more, were biased and flawed. I asked for protection as a whistleblower in that letter in the last paragraph, and, as I said, yesterday at the Public Accounts Committee, David Nicholson denied all of that.

Immediately after that various reviews were published. There was the Garland review, and I have never seen a final version of that. It was critical in one sense but accepted that there was a systemwide problem of capacity that needed to be resolved. So, again, it is system-wide. In fact, I wrote to Sir David three times, including Andy Burnham once as well, trying to get some reaction to protect me and deal with the things that were going on around forcing people to hit targets.

Then there was an inexplicable series of events involving the media where Barbara Hakin went on to various programmes and attacked me personally. That is, again, in the document. John Brigstocke-the chairman of the health authority-went on again and attacked me. He said things like "standards had been maintained"-and then went on to say-"by poor governance", which does not make any sense to me at all. But these were the sorts of things that were going on.

I am in the newspapers with comments such as, "Management of Lincolnshire’s hospitals has been criticised and the chief executive’s job is on the line." I do not need to go on about them because there is plenty in there for you to read, but there was no performance management of me, no normal process that you would have in these sorts of situations, the reason being that there were no performance issues; there was simply a board trying to do the right thing around patients, and that was not greeted well by Barbara Hakin.

There was now a discussion between Barbara Hakin and the new chairman, Paul Richardson, about whether my job was tenable. Again, what process had there been to determine that?

Goodwin is then appointed. Goodwin’s review was very interesting in the sense that I had reported health and safety issues that I had just described to David Nicholson, but David Nicholson set up an inquiry that did not look at patient safety issues and really did not look at a number of things. One of the things that that report did not look at was the SHA or Barbara Hakin’s attempts to remove me over several months. It decided that there was only a need to look at written evidence of bullying because verbal evidence was not of any weight. In my opinion, you would have to be fairly clumsy to be writing down bullying. Most bullying is done in the way that I have described and it has in fact been accepted by Barbara Hakin that she did in fact do so.

There was no mention of a capacity review in the Goodwin report-not once. We have just covered it at great length. There was no mention, for example, that Barbara Hakin was writing to me and copying it to all her staff, saying that I was going to leave even when I was not. David Nicholson went on to say that he was not going to check for factual accuracy of the Goodwin report because there was no need to. So the report was published without any checking. I have never come across that; when you write a report, there is always a checking phase, but not in this case. The various documents that I have referred to, such as Barbara Hakin’s handwritten note and her acceptance that she bullied staff and other things, were all released a few days after the Goodwin review was published, even though they had been under an FOI request for months.

I have made my conclusions there. As you can see, in my view, Goodwin is involved in other whistleblowing cases that have been proven in court and therefore I question his standing. The media did question his standing at the time because Neil Goodwin had previously worked for Barbara Hakin, whom he was now investigating, and the health authority was a client. He was also a health authority chief exec previously.

Of most concern to me after that, though, was that not only did Sir David say there was no evidence of bullying whatsoever, which is not true, and it is not actually what the full report says that there is no bullying whatsoever-the full report has only, I think, last week been released by the Department of Health, so it is available, or it is imminently going to be available, but I have included it in this bundle-but it says that there were differing accounts and that there clearly was evidence.

We asked for a number of people to be interviewed by Goodwin who had relevant knowledge-for example, the director of operations, who was threatened by Barbara Hakin, to whom Barbara Hakin accepts that she did say, "If you can’t manage an A and E, you can’t run a hospital"-but Goodwin refused to interview her. So people with relevant information were not included in the review. For those reasons, I think it is dangerous for the Department of Health to stand by that as being thorough in any way.

I have a concluding remark there just before we get on to the things around the compromise agreement, and I would like to mention the Care Quality Commission.

I will only mention one aspect of the employment tribunal. The reason it is relevant here is that I made a note of one of the hearings against me, and during that employment tribunal, I mentioned that the reason I was there, the reason the action was being taken against me, was because of whistleblowing and protected disclosures and everything to do with the health authority. I mentioned that six times during the four hours of the disciplinary panel. All references to whistleblowing and the health authority were removed from the minutes of that meeting. The reason why maybe people say that I am not a whistleblower is because, every time I say it, it is deleted from the record. This is just not a way to govern public services. The records of those hearings have been adjusted specifically.

Q419 Chair: You are saying this is the record of the employment tribunal.

Gary Walker: The record of the disciplinary panel, which was a verbatim transcript, had all references to my claim to be a whistleblower removed.

Q420 David Tredinnick: There is a sort of legal context of a whistleblower, I think I am right in saying. The NHS East Midlands just challenges your contention that you are a whistleblower because you raised concerns about patient care. They have told us that there has never been any finding that you have raised genuine concerns that would constitute your designation as a whistleblower. How do you respond to that assertion?

Gary Walker: I think they are trying to play a legal trick of saying you can only be a whistleblower in this country if there is a finding in a court. The general public would say that actually you can be a whistleblower and not have to go to court. I think the argument that they are putting forward-it has clearly been written by lawyers-is that a finding means a legal finding, and the only legal finding you can have is in court. I do not hold with that at all because that would mean there are really hardly any whistleblowers, and that is just not true.

David Bowles: The other point that is relevant, if I may, Chairman, is that you do a commercial analysis when you settle a dispute before the employment tribunal. If you do not believe anybody has the remotest chance of winning the whistleblowing claim, then your maximum level of damages is likely to be £50,000 or £60,000. Mr Walker’s settlement was substantially more than that, which means that, on a commercial basis, somebody somewhere thought that Mr Walker was going to win an uncapped claim, which would be that they thought in a tribunal he would win and get a finding that he was a whistleblower. I think those sorts of comments by the Department or by the East Midlands Strategic Health Authority are misleading and disingenuous.

Q421 Rosie Cooper: So how much was it settled for?

Gary Walker: The payment to me was £325,000, and that included £100,000 of legal fees that the NHS settled directly with my lawyers; so they paid my legal fees. I received £225,000, roughly. That included a payment for injury to feelings and all sorts of other compensatory payments. But the total was that amount.

Q422 Chair: The total in the compromise agreement that is blanked out in the copy was £225,000.

Gary Walker: Yes. I am happy to give you that. I was concerned that you may publish the compromise agreement, so I left that out, but I am happy for you to have one. That is what is behind that blanked-out bit, yes.

Q423 Valerie Vaz: Can I go back to my colleague David Tredinnick’s question and the Public Interest Disclosure Act-the PIDA? Did you have advice about whether the clauses in your agreement were covered by the Act?

Gary Walker: Do you mean advice in terms of my legal advice?

Q424 Valerie Vaz: Yes. You know they are void, don’t you? Anything in an agreement is void. Were you aware of the difference between whether the allegations you were making were protected or nonprotected?

Gary Walker: I had a meeting with the lawyers about the specific subject. They said, "In theory, yes, you are right, but that does not stop them from suing you."

Q425 Valerie Vaz: Okay; so you knew you were protected.

Gary Walker: No. In theory, you are-

Q426 Valerie Vaz: You can still be protected and someone can still sue you-

Gary Walker: In theory, you are protected, but the only way you can prove you are protected-

Q427 Valerie Vaz: because that is your defence, isn’t it?

Gary Walker: is after you have spent £100,000 going to court to defend yourself.

Q428 Valerie Vaz: That is not what I was asking. I was just wondering whether you knew, because the Act exists.

Gary Walker: I agree.

Q429 Valerie Vaz: We are trying to find out whether the Act is sufficient for whistleblowers.

Gary Walker: I am involved in a commission with Public Concern at Work that is looking at this for the next six months, because I think the intention of the Act is not quite being delivered in the real world. Yes, the Act is good in principle, but it is a very difficultly worded Act that is not very easy for people to use. To be honest, my view is that we should not be using it because, particularly in the health service, it should not really be needed. Concerns should be acted on and people should not have to go to court and use an Act.

Q430 Valerie Vaz: Was there any finding-I do not know because we got some of the papers quite late-in the employment tribunal? You had some prehearings, didn’t you?

Gary Walker: Yes, we had a prehearing.

Q431 Valerie Vaz: Was there a finding that you were covered by the Act?

Gary Walker: What the employment judge said was that he looked at various things like the correspondence between me and David Nicholson, and the correspondence between me and Barbara Hakin. He obviously could not look at the verbal things because a fully constituted tribunal is needed to do that. He said they were prima facie protected disclosures. There are three standards for protected disclosures. One is that it has to be a qualifying disclosure, so it must relate to something that is qualifying in the Act, which is fraud, breach of codes, patient safety, that kind of thing. That is a qualifying act. The next trigger is good faith, and that is something that can be found in a tribunal, but, as you know, the law is just about to change on that, so good faith will not be a requirement for a finding any more; it will be a requirement for costs. The third stage is, "Was it the principal cause of your dismissal? Was that the reason you were really dismissed?" Obviously, we did not get to that stage.

Q432 Valerie Vaz: But certainly you felt that what you were raising was information as opposed to allegations.

Gary Walker: No. I was quite specific that patients were going to come to harm if this continued. PIDA should not operate after people have come to harm. The principle of PIDA is to avoid things going wrong.

Q433 Valerie Vaz: I am just asking if you thought that what you were raising was information or allegations.

Gary Walker: It was a mixture of both, because it depends at which stage the disclosures are made. At one stage, it is saying things could happen, and then, eventually, it is saying things are probably happening; actually, no, they are at imminent risk. So it was an escalating process.

Q434 Valerie Vaz: One of the judges-I think it is Mrs Justice Slade-has made a kind of definition about the two, so information is protected and allegations aren’t protected.

Gary Walker: Yes, that’s right.

Q435 Valerie Vaz: You felt you had a mixture of both.

Gary Walker: It is going to be a mixture of the two, and that would have been the argument over the 16 protected disclosures in terms of legal position. But we are going down a very legalistic route and I am not a qualified lawyer, but-

Q436 Valerie Vaz: It is your case and sometimes you can get very good at understanding law.

Gary Walker: Unfortunately, yes, and during this process I did in fact do a law degree, but that still does not make me a lawyer. I would not say it was not necessarily a finding or a determination in a legal sense, but it was an opinion of a judge that they were protected disclosures, and, therefore, in my opinion, that does make you a whistleblower by a judicial process even though it is not a full finding of a tribunal.

Q437 Valerie Vaz: I have one last question. Why did you settle?

Gary Walker: Why did I settle? By the time I got to the tribunal-it was on the first day and the proceedings were stayed for a day, so that judicial mediation could go ahead-I owed £100,000 to the lawyers at that point, the mortgage was in arrears, and, quite frankly, the whole family had just had too much of it, and I had as well. I was exhausted. Fighting your own legal case for a lot of the time-although I had lawyers towards the end of it-was just exhausting.

Q438 Dr Wollaston: You have said that you do not wish us to publish the compromise agreement. Why is that?

Gary Walker: There isn’t a reason now because I have probably covered everything in it, but at the time of putting this together I was not quite sure. I am happy for it to be published.

Q439 Dr Wollaston: You are happy for that to be published. Thank you very much for clarifying it. Did you attempt to contest the gagging clause as it related to material that you believed should be in the public domain?

Gary Walker: In the sense that I had met with the lawyers and said to them, "Can I break the gag? Can I actually go out?" They said, again, "In theory, you can, but there is still a chance that they will sue you and try to say that you were not a whistleblower," despite the fact that-

Q440 Chair: Which clause do you regard as being a gagging clause in this agreement?

Gary Walker: If you have the agreement in front of you, it is section 6.

Q441 Chair: It is the clause that says, "You will not make any detrimental or derogatory statements…"

Gary Walker: No. That is, I think, what Robert Francis referred to as a nondisparagement agreement, and that is actually quite normal. The phrase I am talking about is under section 6, in 1.3, where it says: "You agree that the dispute between you and the Respondent,"-that would be my employer, the NHS trust in Lincolnshire-"the East Midlands SHA, the Department of Health and the Appointments Commission is hereby at an end and shall not repeat the allegations contained in your witness statements which were served on the Respondent during the proceedings."

It goes on to say, just for information there: "You agree to take reasonable steps by asking the other witnesses to abide by the same duties..." Essentially, it is asking me to gag the witnesses as well.

The allegations contained in my witness statement that are referred to here include what I have said to you, but obviously there is more detail in there if we had had more time to go through that. But it is very clear that I had made allegations principally only about Barbara Hakin and David Nicholson not treating me as a whistleblower correctly, not taking the appropriate response and forcing me out of the position on charges that witnesses have said were fabricated. There are a number of allegations in there, as well as all the issues that we have discussed around patient safety-the threats made to staff because they were not going to deliver the targets. Of course, since that time, harm has come to patients and we know that now, and I am happy to talk about the CQC involvement, unless you have any more questions on that.

David Bowles: Before we do that, Chairman, may I make a comment? I, too, was the recipient of a gagging letter. I find it absolutely extraordinary that this gagging clause seeks to gag witnesses in a tribunal as well. That really puzzled me because I had never ever heard of that sort of thing before. It is absolutely unprecedented. My daughter is an employment lawyer, and she has never come across that in her life. But I received three documents under a freedom of information and data subject access request, and I believe it was those three documents that they were particularly concerned about.

The first document is in my information pack at page 19. This is a report from the SHA’s own analysts, which expresses concerns that Lincolnshire’s hospitals are over-full and are potentially, therefore, a danger to patients. That is on page 19. The SHA’s own analysts are raising alarms that these hospitals are potentially dangerous-medical outliers, hospitalacquired infection may get out of control. You have to contrast that with page 21, where there is an email from Sir John Brigstocke, which basically says, "Meet your targets regardless of demand." There is no letout clause; it is basically denying a capacity review. There is Barbara Hakin’s handwritten note on page 22, which says, "Need to meet targets whatever demand."

I got those three documents through a data subject access request. As I say, I received them a few days after the Goodwin report was published. I don’t believe that is a coincidence, so Goodwin, I assume, did not have those documents. I can only presume that they tried to extend the gag to me to try and prevent those three documents getting into the public domain, because they are really quite damaging to Barbara Hakin. Her own staff are saying, "These hospitals are very full," and she is saying, "Meet targets whatever demand."

Q442 Andrew George: Can I query the extent to which, in your report, these things happened because, once again, bringing it back to the broader issue of the culture within the NHS, I can quite see that there is a dispute or even a clash of personalities that was developing over time as well? To what extent were the concerns about patient safety, which is surely the primary concern here, concerns about patient safety that you were wishing to express? This evidence came in after the dispute was already running its course. You were already well into the process. You were at the point of going into tribunal and giving evidence at that point. For example, in the days when you were raising concerns about patient safety, and there were the usual stories to the public from the SHA, "Oh, well, this is entirely down to exceptional winter pressures," were you repeating the same kind of reassurances, or were you saying, "This is a capacity issue, and we are not being given the resources necessary in order to be able to assure people of patient safety in the hospital."?

David Bowles: First of all, all of these documents are dated April 2009 or thereabouts, so they were right at the very heart of that debate with the strategic health authority.

Q443 Andrew George: When did you receive them?

David Bowles: I did not receive them until October 2009. These were internal documents within the SHA. The analysts in the SHA had said, "Lincolnshire’s hospitals are a bit full. This could be a bit tricky," and the two most senior people in the East Midlands Strategic Health Authority-the chairman and the chief exec-are both saying, "Meet your targets," when their own staff are saying, "These hospitals are dangerously over-full." Those documents came to me, and I am trying to reconcile why witnesses were gagged. I got those documents and I provided them to Mr Walker. But the issues of the capacity review and safety were ongoing from February 2009 onwards, and I think it really became an issue from April or May when you suddenly could prove it was not a winter pressure and it really became very serious. At that point, up till then, you were thinking, "This might be a blip. It might duck down and we will be back to running a bit hot but safe," and from that point on-April to May time-we suddenly realised that this was going to carry on.

Q444 Andrew George: Was there ever any attempt to contradict or challenge the instructions given by Sir John Brigstocke and Barbara Hakin?

David Bowles: Yes, and the way we did it-

Q445 Andrew George: Were any of those notes ever challenged by anybody? Were they saying, "Surely, this is not right. Patient safety is being compromised here."?

David Bowles: Yes. These were things that had been said to me. These are things that I had emailed back and I had private notes of. These are examples of what was actually going on within the SHA itself. These are documents that were only circulating in the SHA at the time. That is why I think it is particularly damning. They were not made available to Goodwin, as far as I can tell. But it does show the mindset that, on the one hand, you have the analysts saying, "These hospitals are full," and on the other, you have the two most senior people saying, "Meet your targets."

Q446 Rosie Cooper: Can I just carry on Andrew’s point and ask you a direct question? All this time when you were worried about patient safety-and we now know that from Mr Bowles’ evidence the strategic health authority were aware-will I find any comments in the press, letters to MPs or complaint letters signed off by you where you did not say you had concerns but you actually reflected the story that the strategic health authority are saying?

David Bowles: If I might answer that-

Q447 Rosie Cooper: But you were the chief executive and you would have signed the letters.

Gary Walker: There are a number of questions in there. Did I raise any of the issues that I am saying now in public? I would have obviously been in the media during that period of time talking about the safety of hospitals and other things.

Q448 Rosie Cooper: Did you lie then? That is the question. In those letters, did you-

Gary Walker: Did I what, sorry?

Q449 Rosie Cooper: "Lie" maybe is too strong a word. Did you trot out another line? If there are any letters where you reflect-

Gary Walker: I do not actually think that a chief exec should spend too much time with MPs; that is the role of chairmen of trusts. Chief execs should spend most of their time-

Q450 Rosie Cooper: What about complaints letters? Let us not deflect it.

Gary Walker: You asked the question, "Did the MPs know?"

Q451 Rosie Cooper: Let us deal with the press and complaints letters. I am asking you the question, not the chairman. I want to know whether you reflected what you believed was going on in your hospital to any of those external organisations, and, I guess, yes, you would end up in the press. But, if you did not, what did you do? Did you actually reflect the situation that the strategic health authority was saying, or how did you handle it?

Gary Walker: All that information has been supplied to you and is in this document, and when you have time to read it I am sure you will see. For example, there is an email on 8 April 2009 that sets out quite a lot of issues. There is an email later in May that was on my agenda with Barbara Hakin, which sets out a lot of those issues.

Q452 Andrew George: But that is internal.

Gary Walker: It is internal. I should be blowing the whistle to the media then, should I? Is that your question?

Q453 Andrew George: No. It is just that the questions would have been raised. The point that I was raising and Rosie is taking up is that, if there were evident failings in the hospital, which I imagine that there would have been by now, by that point in time-

Gary Walker: The whole point about this is that I was trying to run a hospital that was not doing harm. By ignoring all the things that were going on, the pressure on my staff and the pressure on me to go and hit targets, I was trying to do my best to protect patients. I am not waiting until something has gone disastrously wrong to say, "Look, I was right. Look at all those patients who have come to harm."

Q454 Andrew George: No, but you were at 100% capacity. You are saying that the situation was still safe and there were no questions, you had no casework, no patients and no families coming back and saying, "Why was my father, mother or child treated in the way"-

Gary Walker: I cannot categorically say that that never happened.

Q455 Andrew George: What explanation can you give?

Gary Walker: I cannot say that that never happened because no hospital in the country could ever say that. But I do not know that there were any specifics that were coming out at that time.

Q456 Rosie Cooper: Did the press not notice you were 100% full? Did the press not notice that you had a problem?

Gary Walker: The media covered red alert quite often.

Q457 Rosie Cooper: What was your statement to them? What did it say?

Gary Walker: I don’t know. I would have to look for the exact words, but it would have been along the lines of-

Q458 Rosie Cooper: It is really important. It goes to the core of this.

Gary Walker: "We are trying to do everything as safely as possible."

Q459 Rosie Cooper: What did you, as chief exec, authorise your hospital to say in the face of a question from-we will go now with-the press? When they asked you a question, what did you say?

Gary Walker: It will be what I have always said, which is that the first priority is to manage safety. If you would like me to forward media clippings to you for that period that will say exactly that, I am more than happy to do so.

David Bowles: Can I perhaps try and bring this back and answer two questions? First of all, I can tell you what Mr Walker was saying internally. He was saying, "You do not risk patient safety. You do not make early discharges. You do not put beds where beds should not be." These are the things that I heard Mr Walker saying to his staff. What he was trying to do, in terms of that tipping point, was to keep it on the right side of safety. I had conversations with Mr Walker about one or two instances where allegations were made that patients had been discharged over-early to create capacity. They had been discharged early because of very dangerously ill patients coming in. So we were at that point-not a Mid Staffordshire point of 1,200 patients dying.

What is more tragic is what happened after Mr Walker left, when you will see the evidence from the clinical director that said, "After Mr Walker left, there was a fundamental shift from safety to giving a priority to targets and a series of letters from consultants alleging that patients came to harm as a result of that fundamental shift that occurred after Mr Walker." MPs were also briefed by me. Gillian Merron, who was a junior Health Minister, and Mark Simmonds, who was a Conservative health spokesman, were briefed by me.

Q460 Rosie Cooper: Okay. Can I ask you, Mr Bowles, what did you see going out publicly, not what you were talking to each other about? What was the message the public-be it the press, the MPs, complaints or patients-were getting from you?

Gary Walker: Chairman, I think I have answered that question several times. I am happy to supply the media cuttings from that period if it helps.

Q461 Chair: If there are some media cuttings, it would be helpful.

Gary Walker: May I say two more things on the compromise agreement, as we are running out of time and there are a couple of points I need to make? If you turn to page 9 of the compromise agreement, you will see that it is signed by the respondent, which is the trust, and on behalf of "its Associated Persons". There isn’t time here to go through that, but if you look at the definitions of the contract, "Associated Persons" includes the Department of Health, and they have been added in as a handwritten note on the day. So you will see that the Department of Health was a beneficiary to the gagging order, as was, technically, the entire NHS.

Q462 Valerie Vaz: Can I just ask above "For and on behalf of the Trust" whose is the signature?

Gary Walker: That is Paul Richardson, the chairman.

Valerie Vaz: Richardson. It looked like Nicholson for a minute.

Gary Walker: Of course, when you read the document a bit more fully, you will see that Paul Richardson was appointed in an unusual manner because he was appointed by Barbara Hakin.

Can I also ask you to look at appendix 2 quickly? Bearing in mind that I was allegedly sacked for gross misconduct, according to the strategic health authority’s briefing to you today, the reason that they are giving is that it was around my performance. Both of those issues are addressed in this agreed reference where it says that I "worked diligently", and it goes on to say that "Notwithstanding what has been reported in the media"-which is that I was sacked for swearing-"we have no hesitation in providing this positive reference." My comment on that is that it cannot be that both are true-that there is a reference there that is saying that I worked diligently and giving me a positive reference if I was also dismissed for those other items.

Could I quickly go on to ask you to read the Care Quality Commission letter that I sent? I have extracted it in my brief at paragraph 103. As you can see, there are details of patients coming to harm. The most significant one there that Mr Bowles has already mentioned is about the clinical director and the shift of safety to targets, but, in item "d" on that, the only help that the trust ever received during that period, despite what the health authority have claimed of sending in support teams and turnaround teams, is that a senior officer from the health authority did go to the trust. During his time at the trust, he advised that the coding of patients should be changed in order to report the delivery of the target; so that is a manipulation of the waiting list. The individual, a board member, objected to and complained about that. He has subsequently left the organisation and has a gag and a payoff in a similar manner to myself.

Q463 Rosie Cooper: Excuse me, but did you say a board member has had a pay-off?

Gary Walker: A board member has had a payoff.

Q464 Rosie Cooper: Is that a nonexec board member?

Gary Walker: No, an executive board member.

Q465 Barbara Keeley: You mentioned something about us having time to read this. I was reading this at midnight last night.

Gary Walker: I apologise for that.

Q466 Barbara Keeley: There were hundreds of pages and we had a debate that went on until after midnight last night. This is a very difficult week to have that amount of information and-I am sure I say this on behalf of all colleagues-I think we have done a valiant job to try to get through them.

Gary Walker: I do appreciate that; you have indeed.

Q467 Chair: We are now out of time? Can I ask you to reflect at the end of the session on anything you would like to draw out, not really around the dispute or the way it was handled in the employment tribunal and all that, which is really not, I think, our area of prime concern? What would you like to say to us are the two or three key things that need to be done to address the cultural failure that you have described?

David Bowles: That is a very important question. The difficulty, as I see it, is that we still have an organisation that is in denial. When the chief executive, David Nicholson, personally turns round and says, "Gary Walker is not a whistleblower," when you have that degree of denial within an organisation-he denies the 2008 reports are an accurate reflection of the culture of the NHS-I find that culture wholly inconsistent with safe care. I have included in the information pack-

Q468 Chair: If I can just interrupt you, the area of prime concern to the Committee is that we cannot, in the light of Francis, say the culture is fine. We know that the culture is not fine. The question is how we convert the fine words into culture change.

David Bowles: I do not think you convert the fine words into more sticks by saying, "We will prosecute people who manipulate mortality and waiting list data." Yes, it is wrong, but why have they done it? They have done it out of fear of job loss, looking bad. You have to go to why these people do things, and they do them because of the underlying culture of the organisation. That is what it said in the Mid Staffordshire report. The fear of losing jobs is why they provided sub-optimal care.

So you have to tackle that culture, but the culture is set by the organisation’s leaders. There is too much evidence emerging that this was not just Mid Staffordshire, and therefore you have to look at who sets the overarching culture. That is set by people like David Nicholson. I have to say that it is deeply ingrained, and I do not believe that you can change the culture of the NHS without changing its leaders. That is a very difficult question, I know, that has been going round and round. As to more regulation about gagging clauses, yes, it is helpful, but, frankly, if people are still scared about their career implications from speaking up, banning gagging clauses is not going to make any impact at all.

Q469 Chair: There is a great tendency to identify this culture with the personality of the current chief executive, but, as I said in the debate on this subject last week, I was Health Secretary nearly 20 years ago and it was often said at the time that there was a gagging culture-people were nervous about speaking out. I think it runs much deeper than the personality of a single individual, hence my question.

David Bowles: That is a sign of the deeprooted nature of the problem. I conducted a review at NHS Lothian and I refer to it here. I interviewed people who described to me issues and events that were, frankly, appalling, and they regarded it as normal. The culture of the NHS is so deeprooted that things that you and I would regard as appalling are just regarded as, "Well, aren’t all managers like that?" Unless or until you have major cultural change, with leaders at the top who are genuinely committed to that cultural change, then you are not going to deliver it.

David Nicholson has not intervened personally on one whistleblowing case. Did he try and find out what had happened to Mr Walker at any stage? It has been all over the press. The "Today" programme broadcast the details of a supergag nine months ago. Did David Nicholson personally go along and identify any individual in the NHS who has gagged a person and held them personally to account for doing so? There has been no personal leadership, no responsibility from the top. I have run large organisations as well, and you change them by demonstrating personal behaviours and conducts from the top of the organisation. I see very little sign of that happening, I am afraid, Chairman.

Q470 Chair: Mr Walker, is there anything you want to add?

Gary Walker: I totally agree with that. Gagging of whistleblowers has been going on for many years. In 1999, attempts were made to stop that, and 14 years later we are still getting more. We have found out in the last few weeks that there are 400 compromise agreements, most of which have gagging in them. We do not know how many whistleblowers are in there and we do not know what has been covered up. This use of public money to cover up individual failings is, I think, a major problem. I cannot see for a moment that anybody involved in a compromise deal such as the individual being paid off is actually benefiting because they tend not to work in the health service after that. Certainly, the patients are not benefiting if patient harm is being covered up. So somebody is benefiting by a gagging order and public money is being used for that gain.

On that basis, I think a very serious look needs to be taken at exactly what has been going on with those agreements. Yesterday, another 44 were announced. There are so many gagging orders out there; we just do not know how many there are. We also know that in the last couple of years the Department of Health has changed its own rules, even though the Treasury has not changed its rules, about approval. The Department of Health has changed its own rules and says that judicial mediation does not require Treasury approval. The Treasury thinks it does. So the Department of Health has acted to specifically hide the fact that it is paying off and gagging people, and that, I think, makes David Nicholson entirely culpable for those things. At the very least, what has he done in six years to improve whistleblowing in the NHS, because, as far as I can see, it is much worse now than it has ever been?

This is a deeprooted culture, and I am going to use the NHS East Midlands’ briefing to you. It says: "National standards are designed to improve patient safety and to enhance the patient experience as a whole. There is no contradiction between achieving these standards"-i.e. the targets-"and improving the safety and quality of care." If Mid Staffordshire did not prove that there was a contradiction between targets and quality, then nothing will prove anything more than that.

I think David Nicholson is accountable for a system. I do not particularly want somebody just to resign like they always do and get a payoff and walk away. I think the accountability for people at the top must apply in the same way as it would for me if I was chief executive. If people had made allegations that I had misled committees, had lied about things, had conducted bogus reviews from people who were known to conduct bogus reviews, and had used all that public money to gag people, then I would expect to be suspended and investigated until that was dealt with.

One last point I would say is that I have information given to me that was in the bundle that suggests that Dame Barbara was party to, or at least in some way involved in, ensuring that the payment was made to me. Remember, as we have heard, that it is a payment significantly more than an employment tribunal would have awarded on an unfair dismissal claim. If it is the case that Barbara Hakin is responsible for that payment, that makes it a very serious charge, potentially of misconduct, on the basis that you cannot use public money to silence matters of your own misconduct. Thank you.

Chair: I think, at that point, we should draw the meeting to a close. Thank you for your attendance. Thank you very much.

Prepared 17th September 2013