After Francis: making a difference - Health Committee Contents

Conclusions and recommendations

The Francis Report and its significance

1.  The importance of Robert Francis' report lies not only in its meticulous analysis of the system, identifying areas where misplaced assumptions, perverse incentives and the pursuit of natural human instincts inhibited the ability of the system to deliver high quality care, but also in its description of a culture where the most shocking and obvious deficiencies in care were apparently allowed to persist unchecked, with consequences for patients and relatives which were completely unacceptable. It is vital that the pervasiveness of this culture in many parts of the health and care system is recognised. (Paragraph 4)

2.  Robert Francis has described a healthcare system established for the public benefit and funded from public funds which now risks an undermining of public confidence in its guarantees of safety and quality. (Paragraph 5)

3.  The Committee is in no doubt as to the importance of the failures at Mid Staffs. It is vital to the interests of patients that the lessons from these failures are learned and acted upon, so that all patients can have confidence in the quality of care in the NHS. Without in any way detracting from the importance of this process, the Committee also believes that it is important to recognise that the experience of those patients at Mid Staffs who experienced poor care is not the day-to-day experience of millions of NHS patients treated each year by caring, experienced and committed staff. The purpose of highlighting the key lessons of the Francis Inquiry is not to undermine the NHS but to improve it. (Paragraph 6)

The Committee's inquiry

4.  The Committee recommends that the Government should provide a response to the Committee's report in good time for it to be taken into account in the Second Reading debate in the Commons on the Care Bill [Lords]. (Paragraph 13)

Parliamentary oversight of professional regulation

5.  The Committee agrees with Robert Francis' recommendation for its role in monitoring implementation of his recommendations. The Committee therefore proposes to enhance its scrutiny of regulation of healthcare professionals by taking public evidence each year from the Professional Standards Authority for Health and Social Care (the PSA, formerly the Council for Healthcare Regulatory Excellence) on the regulatory environment and the performance of each professional regulator, based on the PSA's own annual report. (Paragraph 14)

6.  The Committee plans to draw on the views expressed by the PSA in its reports and in these sessions in preparing for its regular accountability hearings with the General Medical Council and the Nursing and Midwifery Council. It will also examine the case for inviting other professional regulators under the PSA's remit to appear before it from time to time, in the light of the views expressed about their performance by the PSA. (Paragraph 15)

7.  The Francis Report demonstrated that failure of professional responsibility was a key factor which contributed to failures of care at the Mid Staffordshire NHS Trust. The Committee has also consistently emphasised the importance of an open and accountable professional culture in its own reports during this Parliament. It welcomes Robert Francis' recommendation that there should be enhanced parliamentary oversight of the quality of professional regulation, and it intends to develop its relationship with the PSA to make this oversight as effective as possible. (Paragraph 16)

Open culture and professional responsibility

8.  The Committee believes that Trusts and other care providers have a fundamental duty to establish an environment where concerns about patient safety and care quality raised by clinicians or managers are addressed openly and directly. (Paragraph 18)

9.  The Committee agrees with Robert Francis that the key requirement is for a culture change within the NHS which values openness and transparency in all care delivery—not just when things go wrong. The duty of candour does not simply arise in cases of service failure; the requirement for an open culture which encourages challenge is fundamental to the delivery of high quality care. (Paragraph 21)

The existing duty and practice of candour in the NHS

10.  The principles now set out in the NHS standard contract with regard to candour with patients are sound, but experience in Mid Staffs and elsewhere makes it clear that such principles have in the past been too often honoured in the breach rather than in the observance. Whatever additional safeguards may be introduced, the Committee regards the enforcement of these principles on all providers of NHS services as a fundamental part of the role of NHS commissioners. Failure to apply to these principles in practice should be seen as a failure of enforcement by commissioners as well as a failure of performance by service providers. (Paragraph 29)

11.  Furthermore, the Committee believes that in the requirement for openness and transparency is too narrowly drawn in the NHS Standard Contract. The requirement for candour about mistakes should, in truth, be seen as part of a much wider commitment an open and accountable service. Challenge and debate about outcomes should occur at all levels of quality achievement and in all contexts of care, not just at the bottom. Indeed the Committee believes that if high quality service providers were to set the pace for openness and transparency by making properly anonymised information available on a dramatically improved basis, they would increase the pressure on less good providers to demonstrate that they were matching their standards to the best. Verbal commitments to high quality standards are virtually meaningless if no effective steps are taken to monitor performance. (Paragraph 30)

Accountability of commissioners

12.  The Committee continues to believe that commissioners should be under an obligation to collect and publish full information about outcomes achieved for their communities, including a full account of failures to deliver acceptable standards of care. By failing to apply a duty of candour explicitly to commissioners, NHS England is losing an important opportunity to promote a more open and accountable culture throughout the NHS. (Paragraph 32)

The NHS Constitution

13.  The Committee believes that the new formulation in the NHS Constitution explaining the duty of candour substantially understates the importance of a more open culture in the NHS. Commissioners and providers should be under a duty of openness about the full range of outcomes achieved, not just about examples of patient harm. More open accountability for outcomes achieved would be an important spur to improvements in the quality of care delivered across the full range of health and care facilities. It must be driven from NHS England, but it must permeate every aspect of care provision. It is the role of commissioners to ensure that the providers of NHS care provide timely, accurate and complete information to both individual patients and commissioners. (Paragraph 35)

The case for a statutory duty

14.  The Committee believes that a defensive and sometimes over-legalistic culture which attaches a higher priority to avoiding liability than improving outcomes represents a pervasive phenomenon which is not confined to the healthcare system. While legal accountability is important, it is even more important that legal advice based on such defensive considerations is not allowed to impede the proper relationship between clinical professional and patient, based on sound principles of professional responsibility. (Paragraph 44)

15.  Similarly, defensive and over-legalistic considerations of the best interests of Trusts should not be allowed to override the duty to be open and transparent with patients and relatives about adverse incidents, and to provide to them full explanations of the factors which led to such incidents. It is particularly important that NHS bodies provide full and candid explanations to relatives bereaved as a result of an adverse incident. (Paragraph 45)

The Committee's view on a statutory duty of candour

16.  The Committee is mindful that NHS history is littered with examples of well-intentioned changes which have been superimposed on existing arrangements without sufficient attention being paid to the way in which it is proposed that the new arrangements will interact with existing processes. It is striking, for example, that the clauses in the Care Bill [Lords] which are intended to establish a criminal offence of providing false and misleading information—in effect criminalising a breach of the proposed statutory duty of candour—have specified neither the types of provider, nor the types of information to which the offence will apply, leaving both to be specified later in regulations. (Paragraph 59)

17.  The Committee remains to be persuaded of the case for the introduction of a statutory duty in addition to existing contractual duties and professional obligations. It is not clear that the proposed duty, the terms of which remain to be defined in secondary legislation, will constitute an effective means of achieving the fundamental culture change which is required within the NHS. (Paragraph 60)

18.  The Committee continues to believe that it is mistake to think of the requirement for a more open culture specifically in the context of failures of care. The culture change which is required within the NHS requires greater openness across the full range of its activities—including examples of care that do not match current best practice, as well as overt failure. (Paragraph 61)

19.  The Berwick Review recommends the commissioning of research into how best to support the proactive disclosure of serious incidents and the process of engaging with patients in relation to less serious incidents. While further research into these matters is necessary, and is likely in the medium term to make a positive contribution to candid dialogue between providers and patients, it should not delay the implementation of measures designed to entrench a culture of openness and candour across the full range of NHS activities. (Paragraph 62)

The Francis Report and whistleblowers

20.  Robert Francis has recommended a change in the culture whereby it is easier, and more palatable, to raise a genuine concern than it is not to do so. The Committee agrees with this approach, although it recognises that there can be serious consequences for individuals who do raise their concerns. The management of each provider of NHS care has an unequivocal obligation to establish a culture in the organisation within which issues of genuine concern can be raised freely. Disciplinary procedures, professional standards hearings and employment tribunals are not appropriate forums for constructive airings of honestly-held concerns about patient safety and care quality. (Paragraph 69)

21.  The Committee agrees with Robert Francis that providers of health and care, as well as their regulators, should be required to be open and transparent. Non-disparagement or 'gagging' clauses which inhibit free discussion of issues of care quality and patient safety are unlawful. No NHS body should be party to such an agreement or should seek to enforce an agreement in a way which inhibits free discussion of such issues. (Paragraph 76)

Compromise agreements at the Care Quality Commission

22.  The Committee welcomes the assurance from the Chair of the Care Quality Commission that its standard compromise agreement now includes a clause making it clear to employees that such agreements do not prevent them from raising legitimate concerns through protected disclosures. The Committee recommends that the CQC should write to each employee or former employee with which it has an existing compromise agreement to confirm that any non-disparagement terms of such agreements will not be enforced in cases where such persons wish to raise concerns which they believe to be in the public interest. (Paragraph 79)

Compromise agreements and severance payments

23.  It is unacceptable that in several cases the payment of public money in settlement of claims against NHS bodies has not been subject to normal approval procedures by the Department of Health and the Treasury. The Committee welcomes the fact that Departmental and Treasury approval will be required before such payments are made in future. (Paragraph 84)

The case of Gary Walker

24.  The Committee is concerned by the insensitivity and lack of discretion shown by United Lincolnshire Hospitals Trust and its legal representatives in seeking to restrain Gary Walker from discussing legitimate patient safety concerns. If this reaction is an indication of the prevailing culture in Trusts confronting those who seek genuinely to raise patient safety issues, then that culture must change. (Paragraph 89)

The role of the CQC in establishing a culture comfortable with challenge

25.  The Committee recommends that the CQC should, in all its inspections of providers, satisfy itself that arrangements are in place to facilitate and protect the position of any member of staff who wishes to raise concerns about the quality of care provided to patients. As part of this process, the CQC should satisfy itself that proper safeguards are in place for whistleblowers who may provide an additional safeguard for patient interests. (Paragraph 96)

Fundamental standards of healthcare

26.  The Committee agrees in principle with the proposal to establish a set of clear and unambiguous fundamental standards in such a way that patients, their relatives, clinical and auxiliary staff and NHS managers can immediately recognise unacceptable care and take appropriate action. (Paragraph 109)

27.  The Committee believes that once it has been established that a breach of a fundamental standard has occurred, it is axiomatic that it is treated seriously, reported accordingly and investigated thoroughly. Regulatory consequences—including unannounced CQC inspections—may follow from breaches, but it is important that any regulatory action should be proportionate to the breach that has occurred, and that it concentrates on analysis and remedy of the circumstances which have led to the breach. (Paragraph 112)

28.  The Committee expects to examine the CQC's progress in developing the full range of standards identified in paragraph 104 of this report in the course of its regular programme of accountability hearings. (Paragraph 113)

Criminally negligent practice

29.  The Committee agrees that serious breaches of fundamental standards which risk harming patients, or which are directly responsible for the death or serious injury of patients, should be treated as criminal matters. (Paragraph 116)

30.  The Committee notes the recommendation of the Berwick Review that an offence of wilful or reckless neglect or mistreatment, applicable both to organisations and individuals, should be introduced. It considers that the proposal should be examined to determine whether egregious acts or omissions on the part of individuals or providers that cause death or serious injury to patients can be prosecuted as offences under existing criminal statutes. (Paragraph 117)

Standards on care at the end of life

31.  The evidence of poor care at end of life in the NHS which has emerged from the Mid Staffs inquiries, the review of the Liverpool Care Pathway and other press and broadcast media coverage is deeply disturbing. The Committee recommends that the National Institute for Health and Care Excellence should establish specific standards for end of life care designed to ensure that dying patients receive all the care they require to minimise their suffering. (Paragraph 125)

The National Patient Safety Agency

32.  The Committee has recommended before that prime responsibility for monitoring of patient safety practice and data should be a core responsibility of the CQC It repeats this recommendation in this report in order to re-establish the principle that this responsibility should be demonstrably at arm's length from both the Department and from NHS England. The Committee further notes that the definitions of patient safety incidents used by the National Reporting and Learning System focus only on incidents in taxpayer-funded healthcare. The definitions should be amended to cover patient safety incidents in private healthcare and taxpayer-funded social care services, both of which fall within the CQC's responsibility. (Paragraph 133)

Feedback and complaints

33.  The Committee agrees with Robert Francis that proper complaints handling is vital if organisations are to ensure that services are change for the better. (Paragraph 138)

34.  The Committee recommends that NHS providers should promote a culture of openness to complaints and receptiveness to feedback throughout their organisations, and they should also develop channels which allow patients and their families to make observations about poor standards of care in the confidence that there will be no detriment to the patient and will be taken seriously by the organisation. Any staff who deliberately treat patients poorly as a consequence of complaints being made should be held to be in breach of a fundamental standard of NHS care, and liable for the consequences. (Paragraph 140)

Staffing ratios and patient care

35.  The Committee recommends that commissioners should, via the NHS standard contract, require all care providers to collect information on the deployment of registered nurses and other healthcare staff at ward level on a daily basis, and make it available immediately to commissioners for publication in a standard format which will enable ready monitoring, analysis and comparison by all stakeholders. This should include making the information available in individual health and care settings. (Paragraph 152)

36.  The Committee has not undertaken an in-depth review of safe staffing issues, but has been impressed by the approach of Salford Royal NHS Foundation Trust to the development of a staffing management tool. This appears to the Committee to be good practice, and the Committee recommends the adoption of this or similar systems across the NHS. (Paragraph 153)

Training and status of nurses

37.  The Committee recommends that any proposal to require those seeking NHS funding for a nursing degree to first serve a period as a healthcare assistant should be fully piloted and carefully evaluated before full implementation in order to establish evidence about the value of the proposal and to determine the optimum length of time for such placements. The Committee also believes that it is important that such a system takes account of other lifetime experiences of potential trainees, including lived experience and voluntary work. (Paragraph 159)

Nursing care for the elderly: the registered older person's nurse

38.  The Committee sees no reason why registered nurses should not concurrently hold the status of registered older people's nurse, and we recommend that those nurses and care assistants who have successfully completed training in the skills required to care for older people should have those skills formally recognised and certified. (Paragraph 162)

Training and regulation of healthcare assistants

39.  The Committee agrees that the issue of induction, training and performance management of healthcare assistants should be reviewed again in the light of the recommendations in of the Cavendish Review of training and support for healthcare assistants. (Paragraph 171)

40.  Healthcare assistants have an important and valued role, especially in caring for older people in their own homes and in formal care settings. The Committee believes that they should be encouraged and supported in undertaking continued professional development. The Committee does not believe the current unregulated status of healthcare assistants should endure, but it remains mindful of the need to ensure NMC performance improves before additional responsibilities are laid at its door. (Paragraph 172)

Regulating the system: the future of the CQC and Monitor

41.  The Committee does not support further major institutional change to the relationship between Monitor and the CQC. The Committee recommends that the two organisations continue to develop closer working arrangements to deal with cases of provider failure and shall seek evidence about the effectiveness of these arrangements from both organisations through its programme of annual accountability hearings with them. (Paragraph 179)

42.  The Committee recommends that the Government publish for comment, prior to its formal introduction to Parliament, a draft of the legislation under which it is proposed to alter the inspection regime of the Care Quality Commission and the functioning of the single failure regime for Trusts and Foundation Trusts. (Paragraph 180)

43.  The Committee welcomes the principle of ensuring that inspections are targeted and based on risk assessment, but believes that the CQC will need to continue to develop its thinking about the application of these principles based on evidence and experience. It has not been demonstrated to the Committee that proposals for the frequency of inspections have been based on such evidence. The Committee therefore recommends that these proposals should be supported by effective monitoring arrangements which will trigger an immediate inspection in cases where standards are alleged to be falling. (Paragraph 183)

Inspecting the system: a Chief Inspector of Hospitals

44.  The Committee notes that the Chief Inspector of Hospitals is an official of the Care Quality Commission, leading the hospital inspection function of that organisation: although new methods of hospital inspection may be introduced, the CQC retains overall responsibility for hospital inspection. The Committee hopes that the substance of the role and the way it is exercised by its first incumbent justifies the rhetoric with which it has been introduced. (Paragraph 188)

Death certification reform

45.  The Committee regrets the continued delay to implementation of the reform of death certification—a necessary reform to protect the public. The Committee notes the commitment of the Government to implementation of the new system in October 2014, and urges the Government to ensure that the timetable does not slip further. (Paragraph 198)

46.  The Committee recommends that the Government give early effect to the recommendations of Robert Francis in respect to coroners and death certification which do not depend on the introduction of the independent medical examiner system. (Paragraph 200)

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© Parliamentary copyright 2013
Prepared 18 September 2013