Scrutiny in the Spotlight 28 November 2013 Accountability through - - PowerPoint PPT Presentation

Scrutiny in the Spotlight – 28 November 2013 Accountability through listening – lessons learned from Mid Staffordshire

Peter Watkin Jones Partner, Eversheds LLP Solicitor to the Mid Staffordshire NHS Foundation Trust Public Inquiry

A watershed moment

• The Francis Reports – Putting the Patient first
• The Berwick Report – A learning culture
• The Clwyd & Hart Report
• The Cavendish Report
• Secretary of State for Health: “We need to hear the

patient, seeing everything from their perspective, not the system‟s interests”

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• The Keogh report:
• Not confined to Stafford
• No one operates in geographical, professional
• r academic
• Government response to Francis: “While the remit
• f the Francis Inquiry was explicitly limited to the

NHS, the Inquiry‟s recommendations resonate across the health and care system as a whole”

• “Poor care can occur anywhere across the health

and social care system”

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Extract from Trust investigation report

The vulnerable patient in need of protection

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Extract from Trust investigation report

The public not speaking up

• Some of them were so stroppy that you felt that if you did

complain, that they could be spiteful to my Mum or they could ignore her a bit more.

• There would have been a lot of little incidents that just

made you feel uncomfortable and made us feel that we didn’t want to approach the staff. I did feel intimidated a lot

• f the time just by certain ones.
• I think he felt as though he didn’t want to be a nuisance.

Because of their attitude in the beginning when he first mentioned about the epidural, he felt as though it was a waste of time of saying that he was in pain.

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The staff voice not heard

There was not enough staff to deal with the type

• f patient that you needed to deal with, to

provide everything that a patient would need. You were just skimming the surface and that is not how I was trained.

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A nurse

The staff voice not heard

If you are in that environment for long enough, what happens is you either become immune to the sound of pain or you walk away. You cannot feel people’s pain, you cannot continue to want to do the best you possibly can when the system says no to you.

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A doctor who started in A&E in October 2007

The staff voice not heard

• “We have got to go on doing our job because we

have patients who need operations; we will have to mend and make do. Which is the Stafford way”.

• Keogh – “organisations trapped in mediocrity”.
• Disengagement – “not my problem to solve”

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Why was the professional voice silent?

• Fiona Donaldson-Myles Study 2005 – Nurses felt reporting was

worthwhile if the institution had subsequently taken action to prevent recurrence.

• Collegiality - feel of betrayal
• role reversal; “you would also stick up for me”
• The employer not welcoming bad news and preferring it to be kept

quiet

• McGovern and Fisher 2010 – The 3 D‟s

– Denial; not an exact science – Discounting; outside control – Distancing; mistakes inevitable

• Bystander apathy - diffusion of responsibility means it‟s someone else‟s

business

• Government: “A keen sense of personal responsibility is an important

factor in a professional‟s daily self-management and therefore to the continuing safety of patients”

• “Safeguarding is everybody‟s business”

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A negative non- listening culture?

PRESSURE Targets FT status Jobs bullying

REACTION Fear Low morale Isolation Disengagement No openness

BEHAVIOUR Uncaring Unwelcoming Tolerance HABITUATION Denial External assessments 13

Those who could/ should have picked up the signs of the need to protect the public Local “regulation”

• GPs
• National Leaders

– Department of Health – Commissioners

• Quality regulators

– Healthcare Commission/ Care Quality Commission – Monitor – Health & Safety Executive

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Those who could/ should have picked up the signs of the need to protect the public Local “regulation”

• The Government response to the Health Committee‟s 3rd

report – “After Francis: making a difference” “Traditionally, the response of the Government and of the central organisations of the NHS to failure in care has been to acknowledge the individual failing and then emphasise the very large number of positive experiences and excellent outcomes that people experience every day in the NHS”

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Professional Regulators missing the signs

• General Medical Council – 17 references
• Nursing and Midwifery Council – 3 references
• Professor Weir-Hughes – “The culture of

isolation overrode the professional responsibility to report”

• Royal College of Surgeons – “dangerous”;

“dysfunctional”

• Universities/ deaneries

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A non-listening board

An absence of clinical governance - staff

• No systematic appraisal of staff
• No culture of self analysis
• Isolation and no peer review

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A non-listening board

Complaints and information

• Risk register outdated
• Lack of knowledge of untoward incidents
• No effective learning from complaints
• Action plans – a reliance on assurance
• Patient and staff surveys not listened to
• Whistleblowing failures

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A non-listening executive

• Lack of experience
• Great self confidence
• No effective clinical or professional voice on the

board

• Disengagement of medical staff from

management

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A non-listening board

• Tolerance of poor practice – “The Stafford Way”
• An unwillingness to refuse to perform the

impossible or dangerous

• Finding excuses for mortality statistics – “Boards

use data simply for reassurance rather than the uncomfortable pursuit of improvement” (Keogh)

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Non inquisitive non executives

• Not holding executive to account
• Wrongly categorising issues of risk to patients as

“operational concerns of no strategic significance” – a “false distinction”

• Reliance on assurances which were not checked
• r challenged
• Closed culture
• An acceptance that having systems was of itself

sufficient

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An isolated focus on finance

• Focus on financial issues and targets
• No insight into import of decisions on patient

care

• Policies based on an assumption that strong

finances would equate to good quality care

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Recommendations

Categories 1-5 – all to achieve culture change

• 1. Openness, transparency and candour
• 2. Fundamental standards
• 3. Accurate, useful and relevant information
• 4. Compassionate, caring, committed nursing
• 5. Strong patient centred healthcare leadership

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The Government response – some major headlines

• 281 recommendations adopted in whole or in

part

• Organisational recommendations re merger of

functions not adopted

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Category 1 Openness, transparency & candour

• Openness: enabling concerns and complaints to

be raised freely and fearlessly, and questions to be answered fully and truthfully

• Candour: informing patients where they have or

may have been avoidably harmed by healthcare service whether or not asked

• Transparency: making accurate and useful

information about performance and outcomes available to staff, patients, public and regulators

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Openness

• Welcome complaints and concerns
• Gagging clauses to be banned
• Independent investigation of serious cases
• Engaging complainants, staff
• Real consideration by Trust Board
• Information shared with commissioners,

regulators, and public

• Swift and effective action and remedies

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Transparency

• Honesty about information for public
• Obligatory balance of information in quality

accounts about failures as well as successes

• Independent audit of quality accounts
• Criminal offence of reckless or wilful false

statements by Boards re compliance with fundamental standards

• Criminal offence to give regulators misleading

information deliberately

• CQC to police these obligations

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Candour

• Statutory obligation

– Individual professionals under a duty to inform the organisation – healthcare provider organisation under a duty to inform patient, whether or not asked (174)

• Statutory sanction

– Wilful obstruction of these duties should be a criminal offence – Deliberate deception of patients in performing duty should be a criminal offence

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Category 1 Openness, transparency and candour – Government response

• Statutory duty of candour to report mistakes that

caused death or serious injury; possibly moderate harm (Dalton and Williams Consultation) from 2014

• n every provider registered with CQC
• Candour on care failings a pre-requisite to CQC

registration

• The CQC can prosecute providers in breach of the

fundamental standards

• Individual director can then be prosecuted if offence

committed with their consent, connivance or through neglect

• Contractual duty of candour – NHS Constitution

(2013)

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Openness, transparency and candour – Government response

• Separate Criminal Offence (CPS) for providers to

supply false or misleading information in complying with a legal obligation

• “Controlling mind” applies again
• Separate Criminal Offence where organisations
• r individuals are guilty of wilful or reckless

neglect or mistreatment or patients

• Trust should reimburse NHSLA compensation in

whole/ part if not been open

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Professional duty of candour - Government response

• Common responsibility across the professions to be candid

when mistakes occur

• Will be a duty to report near misses that could have led to

death/ serious injury/ actual harm

• Promptness in reporting is professional mitigation
• Duty appears to be to report to patients; default position is

to inform providers too

• New guidance required by professional regulators
• Is no duty of candour to tell patients of every error or near

miss

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Category 2 Fundamental standards

• What the public see as absolutely

essential

• What the professions accept can be

achieved

• Enshrined in regulation by Government

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Fundamental standards; Examples

• Prescribed medication given
• Food and water to sustain life and well being

supplied and any needed help given

• Patients and equipment kept clean
• Assistance where required provided to go to the

lavatory

• Consent for treatment obtained

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Fundamental standards Sanctions

• Isolated incidents: no tolerance: investigate

reasons and correct

• Persistent failure – stop/ close the service
• Death or serious harm caused by breach -

criminal liability for individuals and organisations unless not reasonably practicable to comply

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Category 2 Fundamental standards – Government response

• CQC to create fundamental standards
• Generalist inspection has run its course
• Inspection to involve experts and the public
• A failure regime allowing CQC to close a service or

ward without notice

• Staffing levels and fitness of directors will form part
• f inspection selection criteria
• NICE to report by summer 2014
• Boards to publish actual and planned staffing for each

shift monthly and review every 6 months

• Details of skill mix

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Category 3 ACCURATE USEFUL RELEVANT INFORMATION

• Individual and collective responsibility to devise

performance measures

• Patient, public, commissioners and regulators

should have access to effective comparative performance information for all clinical activity

• Improve core information systems

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LOOK „EM UP!

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Category 3 Accurate useful and relevant information – Government response

• CQC and NHS England with others to make patient safety

data accessible

• Health & Social Care Information Centre to be the focal point
• Information on staffing, pressure sores, falls and other key

indicators

• Quarterly publication of never events
• Name of consultant and nurse responsible for care above bed
• Clinical outcomes by consultant being published in 10

specialities

• Data on friends and family test to be published (mental health

setting - December 2014)

• Quarterly reports on complaints data and lessons learned
• Spring 2015 – every patient can see their records online, and

book appointment

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Category 4 COMPASSIONATE CARING COMMITTED NURSING

• Aptitude assessment on entry
• Hands on experience a prescribed requirement
• Named nurse [ and doctor] responsible for each

patient

• Code of conduct and common training standards for

healthcare workers

• Registration requirement for healthcare workers plus

power to disqualify/ share info re concerns

• Reward good practice; recognise special status of

providing care for the elderly

• Keogh – avoid over reliance on unregistered support

staff and temporary staff

• Publish staffing levels at least every 6 months

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Category 4 Compassionate Nursing – Government response

• Care Certificate (2 levels) – Camilla Cavendish
• Pilots of 1 year pre degree experience
• Develop appraisal and development programmes
• Develop older person‟s nurse post graduate

training qualification

• Staffing levels/ skill mix

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Category 5 Patient Centred Leadership

• Cultural “buy in”
• Common code of ethics, standards and conduct

for all senior managers and NHS leaders

• Liable for disqualification unless fit and proper

person

• Leadership staff college – accreditation scheme
• Mentoring

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Category 5 Patient Centred Leadership – Government response

• Providers to refer staff to Disclosure and Barring

Service if has harmed, or poses a risk of harm

• Fit and proper person test to also act as barring

scheme for board level by CQC

• Applies to public, private and voluntary sectors
• Appraisals; performance management; provider

ratings linked to performance

• Fast track leadership programme; a drive to attract

clinicians

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Conclusion

• Secretary of State: “We need to face up to the

hard truths”

• “The public must be told the reality of NHS

performance….without political or system interference”

• Statement of common purpose

“We will listen”

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