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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