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:

  • ensuring that the local authority’s health scrutiny functions are as effective as possible in identifying and securing the rectification of care failings in the local NHS; and 
  • preventing similar care failings within its own adult and child care services.

Effective scrutiny of health services

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:

  • lack of understanding and grip on real local healthcare issues; 
  • Overview and Scrutiny Committee (OSC) “was a pleasant little talking shop”;
  • lack of openness from the hospital to the OSC – “Even as the Healthcare Commission were writing in September 2008 to say: you are a dangerous place, get your A&E sorted out; meanwhile, the management team is giving a slide show to the OSC saying: it is absolutely fine. The OSC went for lunch at the hospital, were shown round a little bit, asked no questions” (quote from witness from Cure the NHS); 
  • lack of real interrogation and an over-willingness to accept explanations; 
  • OSC agendas contain little evidence that the OSC took a particularly aggressive or proactive approach to their scrutiny of the local NHS; and 
  • the multiplicity of regulators, many of which are closely related to the Department of Health and are as concerned with the cost of care as the quality of care.

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.

Preventing care failings in local authority care services

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: 

  • whilst NHS funding has been ring-fenced and protected, local authorities have suffered and face unprecedented reductions in funding, of the order of 25 to 30%. Further, the budgets of the care services within local authorities face competition from all the other demands on local authority cash, for weekly refuse collections, repairing roads and funding maintained schools; 
  • every local authority covers such a wide range of functions that care services may be less visible than in a more focused hospital environment; 
  • the culture of outsourcing may introduce greater separation between the care providers and the service commissioners; 
  • the care providers in many cases are lower paid and less professional than in the NHS; 
  • many of the local authority care services are provided away from the commissioners, in a less regulated and a less visible environment than a hospital, in the client’s own home or in a secure establishment where impromptu inspection and "management by walking about" are understandably discouraged.

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.


Seminar: The Mid Staffordshire Public Inquiry - essential lessons for the health and social care sector

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: 

London: 14 March 2013.

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