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Francis: good in parts, but be careful what you wish for

Roger Kline and Brendan Martin, 6 February 2013

The Francis Report into up to 1,200 unnecessary deaths in the Mid Staffs NHS trust was published today. It has been widely welcomed, and in respect of many of its recommendations, rightly so. But there are others that could have unforeseen consequences that could undermine health care in Britain, and some omissions that represent missed opportunities and are hard to reconcile with the report’s intentions.

First the good news. There is plenty, and here are three key items.

A “duty of candour” will oblige every healthcare organisation and their staff (and contractors) to be honest and open with patients and the public. This will involve amending the NHS constitution to embed a duty of openness, transparency and candour, and require all organisations to review their contracts of employment, policies and guidance to ensure they expressly include these principles. This must be good news, not least because it will provide professionals and staff with the right to assert their duty of care over any management instruction to the contrary.

Gagging clauses should be banned “insofar as they seek, or appear, to limit bona fide disclosure in relation to public interest issues of patient safety and care”. This must be right in a public service, and, again, it means that professionals and other staff will have responsibilities that are matched with rights to exercise them.

Only registered people should care for patients -- so healthcare support workers must be regulated. Excellent. This will raise the status of health care assistants, and potentially of social care workers too. Why should the vet who checks your cat be regulated more rigorously than the person who looks after your mum in hospital?

But what about the potential for unintended consequences? We’ll highlight three areas of concern there too.

Firstly, it should be a criminal offence to cause death or harm to a patient. The report recommends more powers to suspend or prosecute boards in the case of a system failure, and individual professionals when they are responsible.

Protecting patients from cruelty is, of course, essential, but as drafted this must run the risk of holding the infantry to account for the systemic failings of the generals

And there is another more fundamental problem. Throughout the inquiry, Francis stressed -- and rightly so -- that the NHS has a cultural problem. The danger is that this recommendation will encourage individuals to cover their own backs and blame others, at the expense of sharing information and concerns. This could impede the building of collective knowledge that is essential if there is to be a culture of mutual support and challenge.

Moreover, the recommended obligation to report incidents of concern, while appropriate from the point of view of the duty of candour, could combine with the threat of prosecution to encourage staff to go from failing to reports concerns to producing a tidal wave of incident forms. At present staff can be fearful of reporting incidents for fear of being blamed, dubbed a trouble maker or bullied for it. This is a deep-seated problem, and undoubtedly contributed to the Mid Staffs scandal. But without deep changes in leadership culture empowering staff and enabling them to tackle problems (not just report them) the Francis recommendation could lead to defensive practice and failure to address the issues concerned. And it is unclear from the 290 recommendations where the step change in culture will come from.

Secondly, a service incapable of meeting fundamental standards should not be permitted to continue. This runs the risk of being used to justifying closing or privatising a service since the roots of failure (as is often the case) may be primarily lack of funding. Certainly the NHS cannot do everything we might want it to do, but we could lose a lot to gain a little if under-resourced, fragmented and in some cases privately run providers are able to use a regulatory requirement such as this to justify closing services.

Thirdly, the Care Quality Commission should develop a specialist cadre of inspectors thoroughly trained in the principles of hospital care. That sounds good, but it is worth pausing to consider why this is recommendation Prime Minister David Cameron latched on to in particular, announcing he would legislate for it even before Francis had reported. He argues that the Ofsted regime has raised standards in schools, but that is a moot point. What we do know about Ofsted inspections is that schools have learnt how to game them, and that they have tended to ‘teach to the test’ and tick the regulatory boxes rather than encourage more responsibility among education professionals. Top-down performance management was one of the problems that caused the Mid Staffs scandal and it is hard to see how more of it will contribute to preventing a repetition. Moreover, the jury is still out on whether the CQC is fit for purpose on its existing powers never mind new ones.

These areas of concern are heightened by the omissions in the report, and again let’s mention three.

Firstly, where are the recommendations on bullying? The inquiry showed that a central problem in Mid Staffs was that the top down management culture was enforced by deeming whistleblowers to be trouble makers and bullying people who raised genuine concerns. Yes, it is also possible for staff who are challenged over poor care to claim they are being bullied, and this too has sometimes been a problem. But let’s not throw out the baby with the bathwater. There is a major bullying problem in the NHS and it needs to be addressed.

Secondly, in his first inquiry report Francis warned that structural reforms will not tackle the problems seen in Mid Staffs and could even make them worse. Surely the Health and Social Care Act could do precisely that, by fragmenting the service, encouraging competition instead of cooperation and placing obstacles in the way of information sharing and collective learning? While it is understandable that Francis might not want to stir political controversy in ways that might blunt his key messages it does need saying that the coalition’s reforms are a serious step in the wrong direction.

And last, but by no means least, how is the NHS supposed to make the cultural transformation that is required, to put safety and care above all, to promote staff wellbeing and raise the status of health care assistants, and all the rest -- and still absorb cuts of £20 billion over the next five years? Productivity improvements are all very well, but austerity is another matter. We can have a good NHS or a cheap NHS, but we cannot have both.

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