Improved transparency and openness
As Mr Francis QC points out in the report, much has been said about whistleblowing during the Inquiry, and much has been written about it since the Inquiry concluded. It is clear from the report that, while Mid Staffordshire had in place a whistleblowing policy and procedure, it faced serious difficulties in the implementation of that policy.
The report highlights that theoretical protection is available for staff who raise concerns, via the Public Information Disclosure Act 1998; but this is likely to offer little reassurance to staff who fear reprisals from their colleagues or managers if they raise concerns.
The report recommends that reporting of incidents of concern relevant to patient safety needs to be not only encouraged but insisted upon (Recommendation 12). Staff should be entitled to receive feedback in relation to any report they make, including information about any action taken or reasons for not acting.
There is a strong emphasis on encouraging a culture of openness, in which employees feel genuinely confident about making disclosures regarding concerns at work. The message is not to implement more paper policies or new legislation, but to work on creating an environment of transparency. The report also recommends that the NHS Constitution should be revised to reflect the changes recommended with regard to a duty of openness, transparency and candour.
That said, as widely anticipated, the report recommends a strengthening of the reporting of malpractice at work, by introducing a new statutory ‘Duty of Candour’, under which staff will be required to inform their employer of any harm that has come to a patient through lack of care or treatment. It is proposed that a failure to comply with that duty should be a criminal offence.
The report recommends that non-disparagement clauses should be prohibited in the policies and contracts of all healthcare organisations, regulators and commissioners insofar as they seek or appear to limit bona fide disclosure in relation to public interest issues of patient safety and care.
It remains to be seen the extent to which this recommendation will be adopted by the Government, however it would be prudent for all those involved in HR functions in healthcare organisations to review their contracts of employment, settlement agreements, policies and guidance to ensure that, where relevant, they are consistent with these principles.
A key theme that emerged during the Inquiry is improvement of standards of nursing care, and, more to the point, the need for an increased focus on the caring aspect of the nursing role.
The report calls for improved support for compassionate, caring and committed nursing, with the ability to provide proper care being part of an ‘entrance requirement’ for the profession. It has also been recommended that the ability to provide hands-on care should become a key part of nurses’ training, and that nurses should be given a stronger voice, with a better appraisal system and strong nursing leadership at ward level.
As widely anticipated, the report calls for the regulation and registration of Healthcare Support Workers (HSWs). It is also recommended that there should be common training standards for HSWs and a Code of Conduct.
It is thought that this will be generally welcomed, and will assist with preventing ‘rogue employees’ from moving between healthcare organisations undetected. It is also recommended that there should be a new category of nurse, referred to as a Registered Older Person Nurse.
It was widely anticipated that the report would have something to say about staff appraisal and performance management. Indeed, the report recommends that the measures formulated by the National Institute for Health and Clinical Excellence should include measures not only of clinical outcomes, but of the suitability and competence of staff, and the culture of organisations. This should include nursing staff on wards as well as clinical staff. These tools should be created after appropriate input from specialties, professional organisations, and patient and public representatives, and consideration of the benefits and value for money of possible staff:patient ratios (Recommendation 23).
A review of employment disciplinary procedures may be necessary to make it clear that, as the report confirms, an employer is entitled to proceed with disciplinary proceedings even if there are pending Nursing and Midwifery Council (NMC) proceedings in parallel. It is suggested that the NMC considers a concept of employment liaison officers, similar to that of the General Medical Council (GMC), to provide support to directors of nursing. If this is impractical, a support network of senior nurse leaders will have to be engaged in filling this gap (Recommendations 231 and 232).
The report also states (Recommendation 229) that it is “highly desirable” that the NMC should introduce a system of revalidation similar to that of the GMC, as a means of reinforcing the status and competence of registered nurses, as well as providing additional protection to the public.
The report focuses heavily on the culture of management and strategic oversight of service at Board level. The report states that management must have the sensitivity to be able to prevent deficiencies in meeting fundamental safety and quality standards turning into systemic failure. This, the report states, can only come with a change in culture, which in turn requires a new attitude to patients; an attitude that prioritises their safety and the identification and achievement of fundamental standards of care. That said, the report finds that this need not detract from the other obligations of a performance manager with regard to finance, and strategic responses to the health needs of communities – but the emphasis appears to be that ‘balancing the books’ should not be given priority over patient safety. Mr Francis QC says,
“Put very simply, if information indicating a concern for patient safety and quality comes into the possession of a strategic organisation, it needs to intervene, and keep intervening until the issue is resolved. This does not mean that the leader of a regional office is obliged personally to take over the management of every patient complaint, but it does mean that such leaders should not presume that others are performing their tasks properly. The whole point of performance management and oversight is to address the cases where the expected system is not working correctly or effectively.”
In order to help prevent concerns about disengaged management and/or an over-emphasis on financial management, the Report recommends that an NHS Leadership College should be established. This would ensure common training for senior NHS staff. A Common Code of Ethics and Conduct for Senior Managers is also recommended, with serious breaches of the Code resulting in managers becoming ineligible for the role (Recommendations 82-86 and 139-141).
Any differences of judgement as to immediate safety concerns between a performance manager and a regulator should be discussed between them and resolved “where possible” (Recommendation 141); however, it is not clear how this is intended to work in practice.
Our separate article on leadership and corporate governance sets out further information on this topic.
A key theme throughout the Inquiry has been the difficulties faced by provider organisations to ensure adequate staff training. Accordingly, the report recommends that where concerns are identified about training by healthcare providers, the relevant training regulator should be informed (Recommendation 151). Furthermore, the Secretary of State should by statutory instrument specify all medical education and training regulators as relevant bodies for the purpose of a statutory duty to cooperate. Information sharing between the deanery, commissioners, the GMC, the CQC and Monitor with regard to patient safety issues must be reviewed to ensure that each organisation is made aware of matters of concern relevant to their responsibilities (Recommendation 152).
It is recommended that the CQC and Monitor should develop practices and procedures with training regulators and bodies responsible for the commissioning and oversight of medical training to coordinate their oversight of healthcare organisations which provide regulated training (Recommendation 155). Linking in to the focus on the importance of whistleblowing, it is recommended that proactive steps need to be taken to encourage openness on the part of trainees and to protect them from any adverse consequences in relation to raising concerns (Recommendation 160).
Staffing levels and skills mix
As we have highlighted in our previous articles on the Inquiry, Mid Staffordshire was facing very challenging financial demands, which it attempted to meet to a significant extent by economies in staffing. The report recommends that the NHSLA should introduce requirements with regard to the observance of guidance to be produced in relation to staffing levels. Further, provider organisations should be required to have regard to evidence-based guidance where this exists and to demonstrate that effective risk assessments take place when changes to the numbers or skills of staff are under consideration. The report also recommends that NICE guidance should include evidence-based tools for establishing what each service is likely to require as a minimum in terms of staff numbers and skill mix.
Seminar: The Mid Staffordshire Public Inquiry - essential lessons for the health and social care sector
In the coming weeks Bevan Brittan 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 scheduled dates for these seminars are as follows:
Bristol: 20 February 2013Birmingham: 26 February 2013 London: 1 March 2013Please click on the above dates and locations to view further details and to register for the seminars.