Robert Francis QC’s report into the Mid Staffordshire NHS Foundation Trust Public Inquiry ('the Inquiry') is due to be issued to the Secretary of State in January 2013.  The features of good governance which will emerge from the Inquiry are likely to provide valuable learning beyond the NHS and across the entire health and social care sector.

Whilst the Inquiry's detailed findings and recommendations are awaited, an examination of the evidence identifies a range of themes to which the sector should have regard in anticipation of the final report and beyond.  Following our initial overview piece in anticipation of the report, this is the first of two articles looking at some of the workforce and employment law themes arising in the Inquiry. 

Staff engagement

A broad theme which has run throughout the evidence considered by the Inquiry is that of staff engagement. This is difficult to define but it can be summarised as a reciprocal sense of commitment between employer and employee, beyond the basic contractual framework.  The Inquiry explored issues of lack of staff engagement throughout the workforce - from agency staff, to direct employees, through to leadership and management.

Why is this issue relevant? Staff disengagement may present major difficulties for employers, as an alienated workforce may engender further problems, such as lack of motivation to effect change, problems with recruitment and retention of staff, and performance issues – all of which will have a knock-on effect on the quality of care for patients.

In the evidence presented to the Inquiry, reorganisations and restructurings appeared to be particular flashpoints for feelings of staff disengagement and alienation to arise.  In future, therefore, it may be that, following a reorganisation, employers will need to take more care to ensure that, even if the mechanics of an organisational change have completed smoothly, proper attention is given to the ‘cultural fit’ between merged teams.  Employers will need to ensure that they have put in place and monitored initiatives and support mechanisms to assist the teams in the new structure as well as working well to provide the ‘nuts and bolts’ of a service.

In terms of practical planning in anticipation of the recommendations from the Inquiry, NHS organisations may wish to refer to the NHS Employers’ publication, Staff Engagement in the NHS. This document highlights the importance of staff engagement to all aspects of the successful running of organisations, and notes that staff engagement is particularly important in the NHS. The wider importance of staff engagement has also been recognised by the Government, which in 2011 sponsored an Employee Engagement Task Force (in relation to both the public and private sector) under the chairmanship of David MacLeod. This is due to report towards the end of 2012.

Proposed changes to the NHS Constitution (announced in November 2012) include, among other proposals, measures aimed at strengthening staff engagement.   Announcing the proposals, the Chair of NHS Future Forums, Professor Steve Field, said that he thought it was very likely that the culture of NHS organisations and supporting staff to raise to concerns would be a key feature of the Inquiry’s report.  The consultation on the proposed changes to the Constitution notes that patient care is improved when staff feel valued, supported and empowered. To that end, it is proposed that the NHS Constitution should be amended to enhance what staff can expect from the NHS; to strengthen their responsibilities and the commitments made to them.

Many of the headline employment issues identified by the Mid-Staffordshire Inquiry link to the need for increased levels of staff engagement, such as:

  • recruitment and staffing levels
  • standards, training and regulation
  • protection for, and encouragement of, whistleblowers
  • prevention of bullying and harassment
  • successful performance management. 

When planning workforce matters in anticipation of the outcome of the Inquiry, Directors and HR Managers would be well advised to bear in mind these issues, which are covered in more detail below – and in the second part of this article, which will be published next month.

Recruitment and staffing levels

Evidence submitted to the Inquiry showed that there is a clear correlation between adequate levels of qualified staff and mortality. 

It was suggested, in the course of the Inquiry, that staffing levels need to be routinely monitored by providers, commissioners and regulators to ensure that qualified staff ratios are within recommended benchmarks.

A further issue considered by the Inquiry was the extent to which the Trust prioritised a solution to a shortfall in the availability of funding for qualified staff.   A challenge for Trusts following the publication of the Francis Report may be to ensure that such funding is given priority, albeit within the severe financial constraints under which all Trusts are operating.

A tempting solution to the problem of staffing levels is often to draft in temporary agency or bank staff to meet any shortfall alongside (or instead of) fully qualified, directly employed staff.  Given the criticisms put before the Inquiry in relation to the use of such workers (see ‘Standards, regulation and training’ below) this potential solution may require careful management. 

Furthermore, whilst a flexible workforce may solve practical staffing issues in the short term, the evidence presented to the Inquiry suggested that this may add to the likelihood of a disengaged, alienated workforce.  For example, agency workers may be working ad hoc shifts on a temporary basis via a third party, and these factors may contribute to a feeling of alienation from the host organisation; as compared to permanent, directly employed members of staff working regular shifts with the prospect of career progression.  This lack of engagement may, in turn, lead to problems with maintaining quality of care, as outlined above.

Standards, regulation and training

A common thread that ran through the evidence presented was lack of regulation, training and professional standards at various levels of seniority throughout the workforce.

At Board level, it was noted during the Inquiry that there was a lack of training, support or consistent standards for Board members.  Induction training and mentoring for Board members was suggested as a possible solution.  The criticisms put before the Inquiry may also bring to the fore the new voluntary  Standards for Members of NHS Boards and Clinical Commissioning Group Governing Bodies, which was published by the Professional Standards Authority on 7 November 2012.  The Standard sets out a framework for the personal behaviours, technical competence and business competence expected of members of boards and governing bodies in NHS organisations.

At staff level, it was noted during the Inquiry that the use of Healthcare Support Workers (HSW) presented some challenges in maintaining standards because of their lack of regulation, and possible failures in their training and supervision. The lack of regulation point raised concerns because:

  • patients have no regulatory body to whom they may address complaints (and complaints are mistakenly sent to the Nursing and Midwifery Council, who have no jurisdiction over HSWs); and
  • it is possible for underperforming / unsuitable HSWs to move between employers, without the employers being aware of any potential problems.

The Nursing and Midwifery Council has commenced a project to develop its approach to the regulation of HSWs, and this has received support from both the Royal College of Nursing and Unison.

Next steps

Bevan Brittan’s Employment team has a wealth of experience in advising healthcare organisations. If you require any advice or assistance with any of the issues highlighted in this article, please contact Jodie Sinclair  or Julian Hoskins.

Once the report is issued all colleagues will need to reflect on what its findings and recommendations mean for them.  To help consideration of this, Bevan Brittan is hosting a series of seminars in February and March 2013 to consider the implications following its anticipated publication. The scheduled dates for these seminars are:

Bristol: 20 February 2013
Birmingham: 26 February 2013
London: 1 March 2013

If you would like to register interest in attending any of these events please email events@bevanbrittan.com.

Furthermore, as part of our strategic work with our clients and the wider health market, we recently held a  Workforce Forum for HR Directors on ‘Influencing Organisation Culture: workforce lessons learning from the Mid Staffordshire NHS Foundation Trust Inquiry”, looking at some of the findings of the first Mid-Staffordshire inquiry. The Forum featured keynote speakers Dame Christine Beasley, until recently Chief Nursing Officer for England, and Tanith Dodge, Director of HR for Marks & Spencer, and provided an opportunity for discussion of perspectives from both the public and private sectors. This event was oversubscribed but we will be holding a similar event in April 2013.