After Francis: making a difference - Health Committee Contents


In this report the Committee gives its view on the principal recommendations of the report of the public inquiry into the Mid Staffordshire NHS Foundation Trust undertaken by Robert Francis QC. The Committee will be keeping the Government's response to the full set of recommendations made by Robert Francis under review as part of its ongoing programme of scrutiny.

The Francis report is important because it describes a culture in one part of the healthcare system where shocking and obvious deficiencies in care could persist unchecked, with completely unacceptable consequences for patients and relatives. As a consequence, a healthcare system established for public benefit and funded from public funds risks the undermining of its guarantees of safety and quality. It is vital that the pervasiveness of this culture in many parts of the health and care system is recognised and addressed: but it must also be recognised that the experiences of poor care at Mid Staffs are not the experiences of millions of patients treated each year by caring, experienced and committed NHS staff.

Robert Francis recommended that the Committee should, through its programme of regular accountability hearings and otherwise, monitor the implementation of his recommendations and the development of cultural change in the NHS. The Committee agrees, and plans to work with the Professional Standards Authority for Health and Social Care to enhance its oversight of the quality of regulation of the healthcare professions.

Legislation proposed by the Government in response to certain of Robert Francis's recommendations is contained in Part 2 of the Care Bill [Lords]. The Committee recommends that the Government respond to its report in good time for the response to be discussed at that Bill's Second Reading in the Commons.

Open culture and professional responsibility

Trusts and other care providers have a fundamental duty to establish and maintain an environment where the concerns about patient safety and care quality raised by clinicians or managers can be discussed openly and directly. The Committee recognises the unambiguous professional duty on healthcare professionals to raise concerns about the safety and quality of care delivered to patients: managers should also be expected to raise any concerns they have about the safety and quality of care openly and without risk of detriment.

The Committee considers that measures designed to strengthen a culture of candour in the NHS should require openness about the full range of outcomes achieved, not just about where things go wrong. More open accountability for outcomes achieved would spur improvements to the quality of care delivered across the full range of health and care facilities. An open culture which encourages challenge is fundamental to the delivery of high quality care.

The duty of candour on providers now written into the NHS standard contract appears to be based on sound principles, but experience shows that such principles have in the past been too often honoured in the breach rather than the observance. Commissioners of NHS services have a fundamental role in ensuring that providers observe the duty of candour and the principles which underlie it. If a provider fails to be candid with its patients and the commissioner which funds it, this should be regarded as a failure of enforcement by the commissioner as well as a failure of performance by the provider. High quality providers can set the pace for openness and transparency by improving their disclosure of anonymised data on outcomes. Verbal commitments to higher standards are meaningless if no effective steps are taken to monitor performance.

The NHS Commissioning Board (now NHS England) has not applied a duty of candour explicitly to commissioners, a recommendation of the Committee's 2011 report on Complaints and Litigation. The Committee considers this to be a significant opportunity missed to promote a more open and accountable culture throughout the NHS: such a duty is vital to build public confidence in the commissioning system. Similarly, the revision of the NHS Constitution to reflect the new contractual duty of candour misses the opportunity to indicate that commissioners have a responsibility to ensure that providers of NHS care give timely, accurate and complete information to individual patients and to commissioners in all circumstances.

Defensive considerations driven by an over-legalistic culture in providers should not be allowed to impede the proper relationship between clinical professional and patient, nor should they impede the duty on Trusts to provide full and candid explanations to relatives bereaved as the result of an adverse incident.

Robert Francis argued for a statutory duty of candour owed by providers to patients. The review of patient safety in England led by Professor Don Berwick also supported a statutory duty of candour on this model, but entered reservations about its scope, since a requirement for automatic reporting of 'every error or near miss' could lead to substantial bureaucratic overheads which could detract from patient care. Berwick has recommended the commissioning of research into the proactive disclosure of serious incidents and engaging with patients about them. The Committee considers that undertaking this necessary activity should not delay the implementation of measures designed to entrench openness and candour across the NHS.

Robert Francis also argued for a statutory duty on healthcare workers to report beliefs or suspicions about serious incidents to employers. The Berwick Review did not support this recommendation, since the requirement was considered to be covered adequately by professional codes of conduct and guidance.

The Committee is not persuaded that a statutory duty defined in secondary legislation, operating in addition to existing contractual duties and professional obligations, will necessarily be effective in achieving cultural change at the scale the NHS requires, and is concerned that insufficient attention may have been given to how these proposed new arrangements will interact with existing processes.

Raising concerns and resolving disputes

Robert Francis has recommended a change in NHS culture to achieve a situation where it is easier and more palatable to raise a genuine concern about care standards or patient safety than not. The Committee agrees with this approach, though it recognises that individuals who do raise concerns may face serious consequences as a result. The management of each NHS provider has a duty to establish a culture where issues of genuine concern can be raised freely. The Committee considers that disciplinary procedures, professional standards hearings and employment tribunals are not appropriate forums for honestly-held concerns about patient safety and care quality to be discussed.

Providers of health and care services, and their regulators, should be open and transparent. Any 'gagging' clause in an agreement with such an organisation which has the effect of inhibiting the free discussion of issues of patient safety and care quality is unlawful, and no NHS body should seek to enforce any such agreement in a way which inhibits the free discussion of such issues.

The Committee makes no finding of fact in the case of Mr Gary Walker, former chief executive of United Lincolnshire Hospitals NHS Trust, who alleged that he had been forced to compromise patient safety to achieve hospital access targets. The Committee was nevertheless concerned that the Trust and its legal representatives showed insensitivity and a lack of discretion in seeking to restrain Mr Walker from giving a radio interview in which he planned to discuss his concerns.

The Committee has been pleased to receive an assurance from the incoming Chair of the Care Quality Commission that its standard compromise agreement with employees makes it explicit that such agreements do not prevent the raising of legitimate concerns though protected disclosures. The Committee recommends that the CQC write to each individual with which it has an existing compromise agreement to state unambiguously that the terms of such agreements will not be enforced on individuals seeking to raise concerns in the public interest through protected disclosures.

As many as 50 special severance payments made to former NHS staff may have escaped Department of Health and Treasury scrutiny, as they were agreed through a process of judicial mediation which had hitherto been deemed not to require the approval of the Chancellor or the Secretary of State for Health. While the Committee welcomes the closure of this loophole, it considers it unacceptable that in several cases hitherto the payment of public money in settlement of claims against NHS bodies has been made outside normal approval procedures intended to safeguard public money.

Establishing a culture which is comfortable with challenge

Responsibility for establishing a truly open managerial and professional culture which would make the role of the whistleblower redundant lies with each Trust Board. Commissioners also have a responsibility to ensure that providers to operate an open culture: without this culture it is impossible for commissioners to discharge their obligations. The CQC also has a role in working with commissioners to set challenging benchmarks for cultural norms for providers.

The Committee welcomes the CQC's new proposed approach to inspecting provider leadership, governance and culture, areas which the CQC believes "make the difference between success and failure". The CQC should, as part of its inspection regime, satisfy itself that the provider inspected has arrangements to protect and facilitate the position of any member of staff who wishes to raise concerns about the quality of patient care.

Fundamental standards of healthcare and patient safety

The Committee agrees with Robert Francis that clear and unambiguous fundamental standards of care should be established in such a way that patients, relatives, clinical and auxiliary staff and managers can immediately recognise unacceptable care and take appropriate action to remedy a breach. Any breach should be treated seriously and investigated thoroughly, but regulatory consequences should be proportionate and focus on analysis and remedy of the circumstances which have led to the breach.

Where breaches of these standards risk harm to patients, or lead to death or serious injury, the Committee considers that the breach should be treated as a criminal matter. The Committee notes the recommendation of the Berwick Review that an offence of wilful neglect or mistreatment, applicable to organisations and to individuals, should be introduced, but recommends that the Government examine how such behaviour could be prosecuted under existing offences.

The Committee is concerned by the evidence of serious failures in care for dying patients brought to light not only in Robert Francis' inquiries but also in the recent Neuberger Review of the Liverpool Care Pathway. However, the advances in quality end of life care made under the pathway approach should not be lost. The CQC should establish specific standards for end of life care to ensure that dying patients receive all the care they need to minimise any suffering.

The Committee is concerned that leadership on patient safety policy now resides with NHS England, which commissions the outsourcing of the National Reporting and Learning System (NRLS) database of patient safety incidents previously maintained by the National Patient Safety Agency. The impression given is that the overall significance of patient safety policy has been downgraded and that the effectiveness of the function has been compromised. The Committee repeats its recommendation that monitoring of patient safety practice and data should be a core responsibility of the CQC, not NHS England, and recommends that the scope of NRLS definitions of patient safety incidents be extended to cover private healthcare and taxpayer-funded social care.

Feedback and complaints

Robert Francis recognised that proper complaint handling was vital if NHS organisations were to ensure that services were to change for the better. The Government awaits the outcome of the review of complaint handling in the NHS being undertaken by Rt Hon Ann Clwyd MP and Professor Tricia Hart. The Committee takes very seriously the warning by Robert Francis that patients in a vulnerable position in hospital may not complain about poor care for fear of adverse consequences, and considers that providers should be alert to this possibility.

Staffing ratios and patient care

Robert Francis considered that evidence-based tools were required to ensure that hospital management could ensure that on any given day a provider had an adequate number of staff to treat the patient load. While he did not endorse fixed staff-to-patient ratios, he recommended that Trust boards should have a means of knowing whether each ward was adequately staffed: this would be one means of ensuring that fundamental standards were observed.

The Secretary of State has argued that evidence-based guidance on minimum staffing levels, which providers would be expected to respect, should be developed. The Committee believes that this approach will only win public confidence if providers also make a clear commitment to open and public accountability for their staffing records. Ensuring adequate staffing levels cannot be done through periodic inspection or twice-yearly reporting of staffing data, as the Government proposes. Commissioners should require all their providers to collect information on staffing at ward level on a daily basis and make it available immediately for publication in a standard format which will allow ready monitoring and comparison against benchmarks. The Committee commends the approach to staffing management and data publication taken by the Salford Royal NHS Foundation Trust.

Training and status of nurses

The Committee has noted the scepticism about the Government's proposal that every student seeking NHS funding for a nursing degree should be required to serve for up to a year as a healthcare assistant as part of a nurse training programme. The Committee is concerned that the maximum period proposed may be too long and may deter potential recruits: for this reason it recommends that the proposal should be fully piloted and carefully evaluated to determine the optimum maximum length of time for such placements. It is important that other lifetime experiences of potential trainees, including lived experience and voluntary work, are taken into account under this approach.

The Government rejected the proposal by Robert Francis for the establishment of a new category of nurse—the registered older person's nurse—to recognise the acquisition of specific skills in caring for the elderly. While the Government is concerned that introducing such a designation might risk putting older persons' nursing in a silo, the Committee considers that encouraging nurses to develop specialist skills required to care for the elderly is necessary and welcome. It recommends that the acquisition of skills in older persons' nursing should be recognised and certified, and that nurses should hold the status of registered older person's nurse in tandem with other registrations.

Training and regulation of healthcare assistants

The Committee has in the past supported the development of a registration process for healthcare assistants to be undertaken by the Nursing and Midwifery Council once its performance of its current core functions has demonstrably improved. Robert Francis also recommended the establishment of a registration and regulatory regime for healthcare assistants, together with a code of conduct and national training standards to apply to them. While training standards and a code of conduct for healthcare assistants have been introduced, and the Professional Standards Authority is to oversee proposals for voluntary registration, the Government has ruled out proposals for compulsory registration and instead proposes to operate a vetting and barring scheme to prevent unsuitable persons from working as healthcare assistants. The Committee recognises the valuable role played by healthcare assistants and endorses proposals to encourage and support them in continuing professional development. It does not believe that the current unregistered status of healthcare assistants should continue, though it recognises that the performance of the NMC should improve before it is asked to take on additional responsibilities for registration.

Future regulation

The Government rejected the proposal of Robert Francis to establish one regulator to examine the performance of providers in terms of both quality and finance, functions undertaken by the CQC and by Monitor respectively. Instead, it has proposed a 'single failure regime' whereby the CQC, Monitor and the NHS Trust Development Authority will work with each other and with commissioners to regulate care quality and financial performance in Trusts.

The Committee is sceptical that the proposed failure regime, which is complex, can effectively address and remedy issues of care quality and financial performance in providers without considerable oversight. The Committee does not recommend any further major institutional change in the relationship between Monitor and the CQC, and proposes to examine the effectiveness of future regulatory arrangements through its programme of accountability hearings.

The Committee is concerned that much of the detail of the operation of the single failure regime will be implemented through secondary legislation, and recommends that before presentation to Parliament a draft of the relevant instruments should be published for scrutiny and comment.

The CQC has proposed that in future the frequency of hospital inspections should be risk-adjusted according to the hospital's rating, with 'outstanding' hospitals inspected once every three to five years and inadequate hospitals inspected as and when needed. The Committee considers that these proposals should be applied based on evidence and experience, and is not convinced that there is sufficient evidence or experience of the proposed process. The Committee therefore recommends the introduction of effective monitoring arrangements which can trigger an immediate inspection in cases where standards are alleged to be falling.

The Committee looks forward to examining the CQC on developments in hospital inspection at its next accountability hearing later in 2013. The Committee will wish to be assured that the inspectorate function is sufficiently well funded and resourced to meet the objectives set for it. The Chief Inspector is expected to be a champion for openness and transparency across the NHS, and the Committee expects him to inspect and report on the culture encountered in providers.

Death certification

The Committee is disappointed to learn that reforms to death certification which were recommended in 2003 as a result of the Smith Inquiry into the activities of Harold Shipman, and enacted in 2009, have not yet been brought into force. The Health and Social Care Act 2012 has passed responsibility for the new medical examiner system to local authorities, and it is understood that there have been difficulties in agreeing the charging regime to be put in place to fund the system. The Committee regrets that the implementation of the new system has been delayed until October 2014 and urges the Government to ensure that the timetable for this necessary reform does not slip further.

Robert Francis made a number of recommendations for the reform of the system of death certification, including the imposition of a duty of candour which providers should owe to coroners about the circumstances in which hospital patients have died, and a requirement that a consultant in charge of the treatment of a patient who dies in hospital should be personally responsible for certifying the cause of death. The Committee recommends that the Government give early effect to these measures, particularly those which do not rely on the implementation of the new independent medical examiner system.

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© Parliamentary copyright 2013
Prepared 18 September 2013