Who holds the Duty of Care?
Jan 4 2024
HXA v Surrey County Council and YXA v Wolverhampton County Council Read More
It would be easy for local authorities to dismiss the findings and recommendations of the Mid Staffordshire report as an NHS problem. But the failure to resolve allegations of abuse in local authority children’s homes for more than 30 years, the recent Banstead care death and Robert Francis QC’s direct criticisms of local authority scrutiny of health services demonstrate that this is also very much a local authority problem.
This article is part of our series of reports on the implications of the Francis Report. For further information please see our Key Points Briefing.
The issues for local authorities can be split between:
Robert Francis QC finds that the local authority scrutiny of health functions simply failed to identify or to address the issues at Mid Staffordshire. The key features which he identified include:
Robert Francis QC particularly recommends that complaints and incidents should be reviewed on a regular basis by the hospital’s governors and reported to the local authority scrutiny committees.
It would be fair to add the frequency of new legislation re-structuring the arrangements for the external scrutiny and supervision of the NHS, creating (and frequently abolishing) Patients’ Forums, LINks, Health Scrutiny Committees and Health and Wellbeing Boards, without a clear map of the respective responsibilities of each body, and the reluctance of the hospital to open itself to external visitors and scrutiny.
Against that background, it is unsurprising that Robert Francis QC found that the public and the hospital’s staff lacked confidence in the ability of external organisations to effectively regulate and manage health services. The system failed to detect and act upon the deficiencies of the hospital in a timely and effective manner. There is a genuine public concern that the present system of regulation cannot ensure that no such situations re-occur. So he concludes that there is a need for an independent examination of the operation of each commissioning, supervising and regulatory body, including Health OSCs, with respect to their monitoring function and capacity to identify hospitals failing to provide safe care.
Local authorities are not just scrutineers of NHS services. They are also major commissioners and providers of adult and child care services in their own right. And there are structural reasons why they might be even more prone than the NHS to the failings revealed at Mid Staffordshire:
In conclusion, local authorities have unique powers to scrutinise NHS functions, to call for information and explanations, to question proposed plans, and to invite senior managers to attend and provide evidence. However unwelcome their attentions may be, they do have a responsibility to exercise these powers “positively and proactively”, and that includes recognising that the function goes beyond the occasional attention of well-intentioned but lay members, to include demanding the information and providing the professional resource and competence to be able to do the job effectively.
In the coming weeks Bevan Brittan LLP is hosting a series of seminars across its offices to consider the implications of the Inquiry more fully. Following these we will issue more detailed briefings on what the Inquiry's conclusions mean for different players in the system.
The first round of our seminars in Bristol, Birmingham and London are now fully booked however we have added an extra seminar date in London and a few places are still available - please click on the link below for further information and to register your interest for this event: