New Clause 12 — De-authorisation of NHS foundation trusts

Part of New Member – in the House of Commons at 5:00 pm on 12th October 2009.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 5:00 pm, 12th October 2009

In addition to addressing Government new clause 12 and speaking to their amendments, I shall address new clause 11, which was tabled by my hon. Friend Mike Penning and I.

Before I address the substantive points, I want to place on record how disappointed I am that the Government have seen fit to make this serious group of changes to the Bill at this very late stage. They are introducing three new areas to what is already a portmanteau Bill. There is little reason why the measures could not have been introduced in Committee. I am sure that the whole House, particularly Back Benchers, will be disappointed that the debates that they wished to have are being squeezed by the Government's last-minute legislating.

Government new clause 12 introduces five new sections to the four clause part of the National Health Service Act 2006 that deals with failing NHS foundation trusts, as we have just heard. The new sections give Monitor the power to give the Secretary of State a notice recommending de-authorisation on the following grounds:

"the health and safety of patients...the quality of the provision by the trust of goods and services...the financial position of the trust" and

"the way it is being run".

The measures give the Secretary of State the power to de-authorise within five working days of such a notice being received, and the power to recommend to Monitor that it give a notice recommending de-authorisation. If Monitor does not give such a notice, the Secretary of State will have the power to ask it to provide a written report as to why not. The other measures are consequential amendments.

The reason for the changes, as was made clear in the Secretary of State's letter to the shadow Secretary of State, my hon. Friend Mr. Lansley, is the Government's somewhat less-than-adequate response to the tragic events at Mid Staffordshire. Indeed, that response was, in part, the result of the absence of a transparent failure regime, which was promised in 2003 but is still not forthcoming.

As it happens, as shadow Minister for the Potteries as well as a shadow Health Minister-Stafford is of key interest to all people in Staffordshire, and above all to everyone in Stafford-I have been closely involved with events since the damning report into the hospital, as have my hon. Friend and the Leader of the Opposition. We must remember that at the heart of the issue is the avoidable deaths of up to 1,200 people. Each of those deaths leaves family and friends with a heavy burden of grief, which is only intensified by the serious questions that need answering. Furthermore, the deaths can only be indicative that many hundreds more patients did not receive the treatment that they deserved and that they rightly expect in our NHS. Before going any further, therefore, we must take a moment to remember all those who have suffered and those who continue to suffer because of the failings at the Mid Staffordshire trust.

Although that need not be a party political matter, sadly there is a choice. The Government are unwilling to have the bright glare of a full public inquiry shine on that appalling scandal, and I pay tribute to my hon. Friends the Members for Stone (Mr. Cash) and for South Staffordshire (Sir Patrick Cormack) and to our party's candidate for Stafford, Jeremy Lefroy, who have campaigned hard for a public inquiry. The Conservatives supported such an inquiry and continue to do so, but the Labour party, including Mr. Kidney, who is now a Minister, opposed it. Jeremy Lefroy has worked hard, along with Cure the NHS, a coalition of deeply concerned people, to call the Government and local bodies to account.

Under existing legislation, the Secretary of State can by order transfer the property and liabilities of the trust back to himself, among other bodies, so there is already a process of de-authorisation. The Secretary of State's hubris lies in one sentence of his letter on the amendments, which states:

"Whilst we have a rigorous system of authorisation, we have no corresponding process to de-authorise."

Could this set of late amendments be a cloak to cover the embarrassment of the Secretary of State and Ministers? Is it, at best, window dressing or, at worst, an attempt to shut the stable door after the horse has bolted? To decide whether the new clause has any merit, we have to examine not only the effect, but the motives that lie behind it.

The simple fact is that the problems at Mid Staffordshire were not the result of a failure by Monitor or, in fairness, by the Secretary of State in his informal oversight of the trust. They were almost entirely due to existing problems in the trust that were ignored during the so-called "rigorous system of authorisation" and the flawed policies of the Government that put targets and bureaucracy before professionals and patient care. The Minister may have quoted the findings of the Colin-Thomé and Alberti reports, but, as has been shown in this Chamber and elsewhere, those reports are both flawed. Neither is independent of a civil service that has seen the chief executive of the Shropshire and Staffordshire strategic health authority become the chief executive of the NHS.

The subsequent chief executive of the West Midlands SHA, Cynthia Bower, has become the chief executive of the Care Quality Commission. She raised mortality rates only once in her routine briefings to the board, and only in relation to the Healthcare Commission's announcement of its intention to investigate Mid Staffordshire in March 2008. On that occasion, she stated that

"there appeared to be nothing to indicate that anything out of the ordinary was taking place on mortality".

Board minutes show that performance is consistently measured in terms of meeting Government targets on waiting times and finance, and that the chief executive officer's briefings invariably focused on the latest strategy from the Department of Health. Neither report interrogates the Government's target culture, explains why the National Patient Safety Agency failed to alert anyone at any level about the high mortality rates or addresses the impact of the cull of the independent-and thus trusted-community health councils in favour of the in-house NHS patient and public involvement forums. Nor do they scrutinise, beyond the warmest and most meaningless words, the ability of local involvement networks, or LINks, to combat such problems in future. We pressed that point, to no avail, in Committee.

Neither do the reports explore the fear culture that silenced nurses at the trust, which was almost the most unfathomable aspect of the episode for anyone who understands nurses. Neither report looked at the impact on the trust of trying to comply with the European working time directive nor examined the role that practice-based commissioning, a flagship Government policy, played in divorcing GPs from the secondary care that their patients were receiving.

Most worryingly, neither report explained why the trust got through the so-called rigorous authorisation process. The House will know that the Secretary of State alone can authorise a foundation trust. He takes advice from the applications committee, but he is not obliged to follow its advice. However, the Secretary of State's predecessor has not apologised for the decision in this case, or explained where the process went wrong.

There are other, potentially suspect, motives. The response to the consultation states that

"some concerns were raised about the use of a public confidence test when the Secretary of State is deciding whether to request interventions. Monitor does not believe the test is appropriate, feeling it risks dragging the Secretary of State into any situation with media interest. Others are concerned that this could risk intervention being based on media perception rather than evidence."

This is not the first time that we have seen the Government make public relations the prime motive for policy. Within this Bill, the regulatory impact assessment on trust special administrators lists in its summary that the first key non-monetised benefit is "maintaining public confidence", and suggests that a public perception that nothing was being done could be damaging to the organisation. The first considered monetised cost is, tellingly, "public perception/media handling".

Why is the new clause flawed?

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