Mid Staffordshire: A true test for accountability

A guest post from Roger Kline, Visiting Fellow at Middlesex University and a co-director of Patients First, a whistleblowers network. He blogs at www.publicworld.org

The Mid Staffordshire NHS Foundation Trust public inquiry report could be a watershed moment for the NHS.

Unlike the first (2010) Inquiry Report which specifically examined the care failings at the Trust, this second inquiry looks at the NHS as a whole and its governance and regulatory systems.

Very few people emerge with credit. The one group who do emerge as the champions of good care are the local relatives group, Cure the NHS led by Julie Bailey whose book From Ward to Whitehall gives graphic details of the disgraceful shambles at the Trust.

It is estimated that because of substandard care, between 400 and 1,200 more patients died at Stafford hospital between 2005 and 2009 than would have normally been expected. This is the fifth inquiry into the failings at Mid Staffordshire NHS foundation trust that led to these deaths.

For example as early as 2001, Dr Peter Daggett repeatedly raised concerns about care in the hospital, but he told the public inquiry he was “met with a wall of silence”. In August 2006 he told managers of his fears over nursing shortages in Emergency Assessment Unit writing that “It is self-evident there are not enough nurses and those few that are available are run ragged”. Almost a thousand incident forms were completed by staff but the first Inquiry Report says no one appeared to act on them

The Public Inquiry report goes to the heart of issues that Michael Preston Shoot and myself explored a year ago in Professional Accountability in Social Care and Health: Challenging unacceptable practice and its management.

A tidal wave of apologies, “learning lessons” and spin doctoring has greeted the report. What difference will his recommendations make? After all similar horrors, albeit on a smaller scale, were exposed by the Bristol Royal Infirmary Inquiry a decade ago, and though some things have improved, others self evidently have not.

So how do his 290 recommendations stack up against the challenge?

1. The proposed duty of candour goes much further than Ministers want and by placing a statutory duty on employers to ensure staff blow the whistle make may a real difference. It will require staff to admit mistakes which have caused “death or serious injury” to their employer as soon as possible. All healthcare providers should also be required by law to inform the patient or relatives of the mistake and provide information to them There is a separate duty of candour to be imposed on NHS directors to be “truthful” with information they give to healthcare regulators.

2. A beefed up inspection regime led by the CQC including a new power for the Care Quality Commission to police this duty of candour and prosecute organisations and individuals who break the rules. The CQC is under new leadership has yet to demonstrate in its own governance and ways of working that it is radically improved. The jury is certainly out on whether the CQC will do such a job effectively.

3. Gagging laws against whistleblowers that prevent disclosure of care safety are banned. One might ask how they were ever allowed in the first place. It is unclear how and why the new post of chief inspector of hospitals will make any difference.

4. Health Care assistants are to be regulated. At present the vet who checks you cat is better regulated than the person who looks after your mum in hospital.

5. Despite the withering criticism of the shortcomings of Mid Staffordshire and his insistence that it was not unique, seeking full scale regulation of general managers though their contracts will now include new ethical codes and there will be a “negative register” for the utterly unfit.

6. The issue of mandatory minimum staffing levels is fudged. Exhortation that relies on local setting without mandatory minima is unlikely to work at a time of massive funding pressures.  The demands by the NMC and RCN for full regulation of healthcare assistants have been dropped in favour of a negative register. This is a seriously flawed decision in my view.

7. There is no recommendation of a corporate manslaughter charge against the previous Mid Staffordshire Board despite several hundred avoidable deaths having occurred on their watch. Let’s see if the local relatives lodge the judicial review that has been mooted.

It remains to be seen what Ministers will do to further protect whistleblowers. The new duty of candour will assist but unless the Public Interest disclosure Act can be changed from one that provides compensation to one that really protect whistleblowers and deters victimisation, raising concerns will remain risky.

Finally, Robert Francis remit was given ahead of the £20 billions cuts in NHS funding and before the Health and Social Care Act was anywhere near the statute book. Both appear to be precise examples of the funding pressure and structural upheaval that Robert Francis’ First report warned again.

In our book, Michael Preston Shoot and I sought to emphasise the moral and contractual duty of staff to raise concerns. This report should make it easier to do so. Whether it does so decisively enough, only time and the experience of patients and staff, will tell.

Roger Kline is Visiting Fellow at Middlesex University and a co-director of Patients First, a whistleblowers network. He blogs at www.publicworld.org

His book, Professional Accountability in Social Care and Health: Challenging unacceptable practice and its management, is published by SAGE. More information can be found here.