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Health Professionals: Regulation

Volume 559: debated on Monday 4 March 2013

Motion made, and Question proposed, That this House do now adjourn.—(Greg Hands.)

In the wake of the Francis report and the news that 14 more trusts are under investigation due to unnecessary deaths, it is clear that our current system of health care regulation has failed. More importantly, it means that the NHS has failed its patients, and that the Care Quality Commission is clearly not fit for purpose. I have seen documents that suggest that 25 hospitals with abnormally high mortality rates were highlighted to the then Secretary of State, the right hon. Member for Leigh (Andy Burnham) in March 2010. Seven of the 14 trusts now under investigation were on that list. He referred them at the time to the CQC, which confirmed it had:

“no current concerns about these trusts which would require intervention.”

Some of them, however, have had significantly high mortality rates for more than a decade. Sir David Nicholson tried to paint Mid Staffordshire as a singular case. Minutes of meetings imply that the concerns of patients’ families were dismissed as simply lobbying. Perhaps more worryingly, it appears there has been not just incompetence, but a culture of cover-up in the NHS.

Let me give just one example. Professor Sir Brian Jarman, a world-respected authority on mortality data, has raised with me allegations of trusts fixing their mortality figures. In essence, trusts relabelled deaths as palliative care after the definition was widened in 2007. Hospitals’ standard mortality rates would fall, as palliative care deaths were considered normal and not down to poor care. Experts suggest that a figure of approximately 4% of deaths should be classified in this way, yet at the Medway NHS Foundation Trust, one of the trusts now under investigation, it jumped to 37%, which suggests that in one month hospitals had been transformed into hospices.

The paper reclassification improved hospitals’ mortality score by approximately a third, yet nothing had actually changed on the wards. In other words, they were fiddling the figures and, as a result, were masking poor care. The same tactic was used by Mid Staffordshire to obscure what was really going on, and the number of deaths classified even now as palliative care across England is still higher than expected, and higher than in comparable international countries. That needs to be looked at urgently. Until that happens, we cannot be confident that the 14 trusts currently under investigation—seven of which, we were told in 2010, were not a concern—are all that we need to worry about.

Perhaps more distressing is that management consultants profited from masking the real causes of those deaths. The CHKS advisory group visited hospitals to advise not on how to reduce mortality and save lives, but on how to make the figures look more normal.

My hon. Friend is a respected member of the Public Accounts Committee, and I am sure he knows from his work on the Committee that target-driven culture, in whatever Government Department, can often lead to anomalies and inefficiencies. Is it not extremely worrying that the way the targets were framed in the case he highlights led not only to inefficiencies, but to actual loss of life? Would he suggest that this is not just a matter for the individual hospitals he has named, but for the entire target-driven process, which needs to be re-examined by the Government and the Minister?

My hon. Friend is absolutely right. The deaths, in part, came from a target culture. The targets were not set with that intention, but that was the consequence.

We have to ask about the people responsible for fiddling the figures to meet those targets. Between 2007 and 2009, the chairman of the advisory board at CHKS was Niall Dickson—not a doctor, but a journalist—and he is now the chief executive of the General Medical Council. Has the Minister reviewed the role of CHKS in advising hospitals on how to reinterpret death rates, and is someone involved in such an organisation the right person to be regulating doctors today?

Not surprisingly, following the Francis report, there has been a flurry of activity to explain what new systems will be put in place, but as an ex-regulator I know that such changes, while introduced in good faith, are likely to be flawed. If we are to ensure patient safety, we need a culture change. The ultimate regulator is a well-informed patient. The ultimate inspectors are whistleblowers on the ground. We need quality transparent data for patients to be able to make real, informed choices about where to be treated and how to hold the NHS to account. It is remarkable that a report last week found that two thirds of doctors and nurses at some hospitals would not recommend their own hospital to their family and friends. What does that say about the regulation of those hospitals? It is common knowledge among NHS insiders that certain doctors are good and certain doctors and surgeons should be avoided. Why should patients be kept in the dark about that sort of information?

Those involved in projects such as the Dr Foster unit at Imperial are world leaders in providing health information, and the decision to publish heart surgery outcomes was welcome, but the status quo does not go far enough. Data are available privately showing outcomes broken down by hospital, department, ward and even individual doctor. I urge the Minister to start to make those data public. They have never been published. Those in the profession know what they contain; it is time we trusted the public with the truth. Of course, they need to be presented in a meaningful way, but there is a duty to explain them, not hide them. We have seen with heart surgery what a positive impact such transparency can have.

I ask the Minister to reflect on the following point. We now have the safest heart surgery in Europe, partly because we have data transparency, but that is down to consultant anaesthetist Steve Bolsin, who exposed high death rates for child heart surgery. That information, which was published in Private Eye, led to a public inquiry. The publication of those figures has clearly driven up standards, yet the impetus for change was not the Department of Health or the Royal College of Surgeons, but a whistleblower who was prepared to speak up—incidentally, is it not revealing that he no longer works for the NHS?

I thank my hon. Friend for his powerful and informative speech. Does he agree that what matters is not only ensuring that data are transparent for patient groups, but the quality of assessments, where we have seen a failure? Hospitals with obviously high mortality rates were deemed acceptable by assessors even before the fiddling of figures. Is that not partly because people not qualified to know the ins and outs of what goes on in, say, the operating theatre are going round, ticking the boxes and saying, “That’s all fine”, when in fact it is not? With the expert eye of another experienced clinician in the same field doing the assessment, very different outcomes would arise. It is because they have that knowledge and expertise that organisations such as the Royal College of Surgeons have been commissioned to carry out reviews.

My hon. Friend is right. A lot of the people at the Care Quality Commission doing the clinical assessments are not clinically trained, and, even when they have a clinical qualification, it often does not relate to what they are looking at—for example, we might have doctors looking at baby units. Her point applies to coding as well: as seen in media reports last week, the people reinterpreting the coding are often not clinically trained.

Whistleblowers have a unique vantage point on what is happening with patient safety, but for too long we have hypocritically lauded their contribution publicly while silencing or gagging them in practice. The Commission for Health Improvement found problems at Mid Staffordshire back in 2002, a peer review of critically ill children by the strategic health authority criticised Mid Staffordshire in 2003 and 2006, and whistleblowers at Mid Staffordshire raised concerns as far back as 2005, yet the warning signs were not acted on. Many members of staff simply chose to close ranks. There appeared to be a bullying culture which discouraged people from coming forward, and those who did were threatened. One nurse at Mid Staffordshire summed up the position by saying:

“The fear factor kept me from speaking out”.

This is not an isolated case. It is almost beyond parody, but the Care Quality Commission, the body to which whistleblowers might turn, itself used gagging clauses. It disgracefully smeared Kay Sheldon, a member of its board. When she had the courage to speak out, it was suggested that she had mental health problems. That is the culture. As my hon. Friend the Member for Bristol North West (Charlotte Leslie) pointed out during Prime Minister’s Question Time last Wednesday, three reports commissioned to mark the 60th anniversary of the NHS in 2008 which identified problems appear to have been buried. One of those reports, to Ara Darzi, referred to a “shame and blame” culture, and said that fear was pervading the NHS and at least certain elements of the Department of Health. Why were those reports buried?

Figures I obtained after a two-year battle in Whitehall showed that £15 million of taxpayers’ money had been spent over three years to gag whistleblowers. Why are we spending £5 million a year to silence those who are brave enough to speak out? We hide behind the guidance which says that the Public Interest Disclosure Act 1998 protects them, but, as we have seen in the Gary Walker case, trust lawyers threaten and intimidate whistleblowers although they know about that protection. I welcome the Secretary of State’s recent letter, but I must point out that gagging clauses have no place in the NHS today.

I thank the hon. Gentleman for bringing this important matter to the House’s attention. Does he agree that, at a time when mortality levels in the NHS are the highest they have been for years, the restoration of public confidence in the service is imperative? What steps does he think the Government should take to ensure that it is restored, and people no longer feel that it is dangerous to go to hospitals in our constituencies?

The answer is to tell the truth. Constituents come to my surgery—I am sure that that the hon. Gentleman has the same experience—and talk about going to visit a husband of many years and finding him naked from the waist down, or taking soup in to feed patients. They know the issues. Let us be candid. There are many wonderful things about our NHS, but let us not hide the failures and concerns. Let us not have a culture of cover-ups that silences the whistleblowers.

An official NHS circular from 1998 states:

“It is not contrary to the Department of Health’s policy for confidentiality clauses to be contained in severance agreements.”

Will the Minister ensure that that is scrapped? The letter from the Secretary of State does not force trusts to take such action, and I think it is high time that we made the position on gagging clauses clear and beyond doubt.

Regulatory failure across hospitals nationally shows the need for greater data transparency, so that we can see the true patient outcomes and protect staff who speak out. That will secure a higher-quality and safer NHS for patients across the board. We need to move the health service out of its cover-up culture and into the light, and to ensure that individuals are held to account. The Prime Minister has said that sunlight is the best disinfectant, and that applies on our hospital wards. It is best for us to have well-informed patients and staff who are able to voice their concerns. It is clear from what happened at Mid Staffordshire, at the 14 hospitals that are under investigation, and at the 25 that were drawn to the attention of the Secretary of State that concerns about those hospitals—along with the many other concerns that are being expressed around the country—have not been acted on so far. I hope the Minister will be able to reassure us that he will now speed up such action.

I congratulate my hon. Friend the Member for North East Cambridgeshire (Stephen Barclay) on securing the debate. He made a number of serious allegations, but he was absolutely right to say that it is completely unacceptable to manipulate any patient information deliberately in order to falsify reports of a trust’s performance, and there will be serious consequences for any part of the NHS that is found to be doing so. He was right to say that if we are to have an open and accountable NHS in which patients and the public know how hospitals are doing, the hospitals must be open and honest about their performance.

My hon. Friend was also right to say that we want the NHS to have the lowest mortality rates in Europe. Sir Bruce Keogh, the NHS medical director, is currently leading an investigation into hospitals with higher mortality rates to understand why they are higher and whether they have all the support they need to improve. To pick up on the point that my hon. Friend the Member for Bristol North West (Charlotte Leslie) raised in her intervention, that will involve senior clinicians with background expertise going into those hospitals to ensure that proper scrutiny is brought to bear.

I will, very briefly, although my hon. Friend did not notify me previously that she intended to intervene.

I thank the Minister for his courtesy and apologise for not notifying him in advance. Does he have any indication of where our current mortality data lie in relation to comparable countries and, if not, will he speak with Sir Brian Jarman of the Dr Foster website, because I believe that he has some rather depressing news on that front and it is probably time to start speaking the truth about that as well?

I thank my hon. Friend for her intervention. We have made it clear, both in opposition and in government, and indeed in the health care mandate, that we do not find it acceptable that Britain, compared with some other European countries, is not doing well when it comes to survival rates for a number of diseases, including some types of cancer and some respiratory diseases. We all know that the NHS must achieve more in that regard. It is not necessarily an isolated issue that applies to one particular trust. That is why we made it a priority in the NHS mandate set by my right hon. Friend the Secretary of State for Health at the end of last year, but the priority should be clinical outcomes, and a key priority is improving mortality for a number of diseases, particularly those that are attributable to patients with long-term conditions.

I thought that it might be worth discussing in more detail a few of the points my hon. Friend the Member for North East Cambridgeshire raised. He talked in particular about the Francis report. For everybody who cares about the NHS and works in it, as I still do, the day the Francis report was published was a humbling one. There was failure at every level: a systemic failure, a failure of regulation, a failure of front-line professionalism, a failure of management and a failure of the trust board. There are systemic problems with the NHS that we need to focus on and address. That is what my right hon. Friend the Secretary of State will outline when we give our further response to the Francis report later this month.

My hon. Friend the Member for North East Cambridgeshire was also right to highlight that there has been too much covering up in the past and not enough transparency. If we are to put right some of the systemic failings highlighted in the Francis report, we need to be grown up enough to acknowledge that sometimes the NHS does not come up to standard and the care that we would expect to be delivered to patients is not always good enough. If we care about our NHS, and if we want an NHS we can continue to be proud of and that will continue to be the envy of the world, we must acknowledge when things go wrong and ensure that we face up to the problems in an open and transparent way. We must ensure, as many hospitals with a more transparent culture do, that good audit and proper incident reporting are in place for when things go wrong. We must ensure that, rather than having recriminations and closed doors, bad things are learned from, and that where things have gone wrong and patients have not been treated properly, hospitals and the whole the NHS make more active efforts to deal with problems and failures of care.

I thank the Minister for his courtesy in giving way. It might be helpful, Mr Speaker, if you would give us guidance on whether pre-notification is still required. What the Minister says is all well and good but why is it, after so many people died in such an unacceptable way, that nobody seems to have carried the can or taken responsibility?

Order. I thought, in the circumstances, that I would let the debate flow, but for clarification I ought to say that there is a requirement that a Member who wishes to make a speech in someone else’s Adjournment debate secures agreement in advance, but there is no such requirement—this point is widely misunderstood—in respect of an intervention. It is purely for the Minister to decide whether to take an intervention. No impropriety has been committed by the hon. Member for Bristol North West (Charlotte Leslie); her virtue is unassailed.

Indeed, and thank you, Mr Speaker. I will, of course, do my best to take as many interventions as possible, but my hon. Friend the Member for New Forest East (Dr Lewis) will be aware that I have been generous so far and that the time allotted to Adjournment debates means that it is difficult to give as full an answer as possible to interventions. For that reason, it is useful to have some notice that an hon. Member intends to intervene.

My right hon. Friend the Prime Minister made the point clearly, as did Robert Francis in his report, that it was not for the Francis report to highlight individuals or blame them for what happened; the report was about ensuring that there was a clear acknowledgement that there had been systemic failure, which I talked about earlier. It was a failure of professionalism on the front line; a failure of the trust’s board; a failure of regulation and the regulators; and a failure of management at the trust. When systemic failure occurs, it is right that we put in place systemic solutions, and that is what my right hon. Friend the Secretary of State will do later this month.

My hon. Friend the Member for North East Cambridgeshire made the key point that a real culture change was required, and that that is about having transparency and openness in the NHS. He is right to highlight those points. If we want transparency and openness, we need to look at some of the steps that have already been taken. We know that the Public Interest Disclosure Act 1998, which in theory gives protection to whistleblowers and people who want to speak out, has not been effective. Legislative approaches have not been enough to ensure that people feel free to speak out. Legislation has so far not been effective in creating that culture of openness and transparency that we all believe is necessary.

However, we have seen two things in the past six months that will make a real difference, the first of which is the contractual duty of candour, which will be introduced in the NHS for hospital trusts. It will mean that there is support for openness and transparency as part of the NHS contract. The second is the strengthening of the NHS constitution, which brings direct support to the cause of whistleblowers. Those things will be further strengthened in our further response later in the month to what happened at Mid Staffordshire.

I very much welcome the Minister’s assurance that there will now be changes for whistleblowers. I repeatedly raised my concerns with Sir David Nicholson in the Public Accounts Committee, so why did he continually tell me that there was no problem with the guidance or the legislation, and that adequate protection was in place for whistleblowers? The Minister is now accepting the need for change, but why did the chief executives tell me that there was no problem?

I say to my hon. Friend that the Department of Health has, like everyone who works for it, made it clear that gagging clauses are not and have never been acceptable in the NHS. There is a distinction to make between confidentiality clauses, which might be part of any financial settlement with anyone who works in either the commercial sector or the public sector, and a gagging clause. It is the duty of any front-line professional, according to and as part of their registration with the General Medical Council or the Nursing and Midwifery Council, to speak out when there are issues of concern. That is a part of good professionalism. That is what being a good professional is about. It is about someone saying that they recognise that there has been unacceptably poor care in a hospital or a care setting and that they have a duty, because they are a registered doctor or nurse, to speak out to highlight where problems have occurred. The point is that at Mid Staffordshire there was clearly a failure of that professionalism not only on the front line but at every level. Gagging clauses have never been considered by the Department of Health, certainly under the current Government, to be an acceptable part of the NHS. That was made very clear in a recent letter written by my right hon. Friend the Secretary of State to NHS hospitals and chief executives.

On the subject of gagging clauses, did the settlement that formed part of the severance payment of the former chief executive of Mid Staffs include a gagging clause? If the Minister cannot tell me that today, will he put it in writing?

I shall endeavour to write to my hon. Friend to clarify as I do not have the information immediately to hand. That does not detract from the fact, however, that a gagging clause in any form is unacceptable to this Government, should be unacceptable to everybody in this House and is unacceptable to every doctor and nurse who works in the NHS. We will continue to do all we can through the contractual duty of candour and through strengthening the NHS constitution to make it easier for NHS staff to feel that they can speak out openly and feel supported in doing so, so that we have an open and transparent NHS of which we can be proud.

My hon. Friend the Member for North East Cambridgeshire also raised a very important point about open and transparent data on surgical outcomes. It was Professor Sir Bruce Keogh, the current NHS medical director, who put together the purple book of cardiac surgery, which has made a huge difference through greater transparency of outcomes in that specialty. That was in reply to the findings of the Bristol heart surgery inquiry, and it is regrettable that we have not seen similar advances in openness and sharing of data in other specialities in the NHS. That is not necessarily because the data do not exist, because they often do. In some specialties, such as urogynaecology, national databases are being put together to consider the long-term data on certain operations, which, to some extent, will give data on individual surgeons.

In the NHS, we often have a plethora of data and a lot of audit information that is collected at a local level, and we must ensure that those data are used in a better way in future. A lot of work can be done to add transparency and to share audit data in different trusts so that they are openly comparable to build a national picture of certain types of care and how we can improve patient care. That was a good point that was well made, and I know that Sir Bruce Keogh is continuing and will continue to develop that work in his role on the NHS Commissioning Board. I had a very encouraging meeting recently with a number of senior surgeons who recognise the importance of such work in their specialties. I am sure that the NHS will continue to develop it at a greater pace in the future, not least because of what we have heard from the Mid Staffs inquiry.

In conclusion, throughout the debate the point has been made that we have legislation in place to protect whistleblowers, but it has not been effective—[Interruption.] My hon. Friend the Member for Bracknell (Dr Lee) says from a sedentary position that it does not work. He is absolutely right—it has not been effective and that is why we are considering the Mid Staffs inquiry and the issues of culture that have existed and that have failed and let down patients. We will have a robust response to those failings to put right what has gone wrong and to ensure as best we can that another Mid Staffs will never happen again in the NHS. I am sure that we will all support what our right hon. Friend the Secretary of State says in his further response later this month.

Question put and agreed to.

House adjourned.