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New Clause 12 — De-authorisation of NHS foundation trusts

Part of New Member – in the House of Commons at 5:45 pm on 12th October 2009.

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Photo of Bill Cash Bill Cash Conservative, Stone 5:45 pm, 12th October 2009

I am extremely grateful for that intervention and I hear what the right hon. Gentleman says with great interest. I had heard of that, but great ingenuity is being used by certain trusts-not just Mid Staffordshire but other trusts of which I am aware-that are using their lawyers and their medical establishment effectively to bypass and shut out consultants-in some cases, as many as 20-odd. I am concerned about that. It is no good having good intentions in an Act if the provisions can be bypassed in the way that they are being bypassed at the moment. I would have thought that it was Monitor's job, and that of the Secretary of State, to deal with that. Will the Minister please take note and get rid of these gagging orders, ensuring that there is no way that the gagging clauses can be used to bypass whistleblowers?

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Dee Speers
Posted on 13 Oct 2009 12:42 pm (Report this annotation)

Spot on Mr Cash,
Thank you for observation on how consultants are being shut out by certain trusts and there has also been a BMA 'Consultants Group' Report led by Dr J Fielden on this very subject.

Complaints – perception v reality

3,500 deaths in mental health hospitals in the last decade. Suicide indicators have already been withdrawn from PCTs and are to be withdrawn nationally from 2010/11 thus leaving England with no National Suicide Prevention Strategy. But under current DH guidance HSG(94)27 suicide clusters (access criteria #3 for investigation) can possibly be indicators of significant system failure. This guidance was underlined by NHS CEO David Nicholson in a letter to all SHA CEOs dated 4th July 2007. So it appears the CEO of the NHS is underlining Health Service Guidelines whilst the access criteria is the subject of many complaints and one is also being withdrawn.

But there is a dangerous precedent being set in the mismanagement of SUI “'SUI's occur everywhere but do not get reviewed as they should, in my informed and unfortunately, experienced opinion. Fortunately the CQC has recently agreed with one of its reports However, real improvements now have to be implemented in order to change the terrible statistics - and this is something that the public sector has historically found difficult to achieve. Victoria Climbie and Baby P spring to mind. When reports say "it must never happen again" they mean "It must never happen until the next time, when once more we will conclude that "it must never happen again". The only difference is that cases such as VC and Baby P get noticed. Cases such as Rich's, where people are let down by the system are so common they go mostly unreported. However, they are just as much a case of lives being lost and due to the terrible numbers need similar, urgent and radical attention.

It also seems these HSG intention are open to SHA interpretation, this rendering them open to misinterpretation too.

To quote Nigel Edwards, policy director at the NHS Confederation which represents over 95 per cent of NHS organisations: There were 350 million treatments performed by the NHS last year and out of all this activity just under 9,000 complaints were made, 2,700 of which were upheld by the Healthcare Commission"

What everyone seems to be missing is what does an upheld HC complaint actually consist of...we were informed it meant closure! Whats the point of all the expense, all the frustration, and no apparent learning outcome it seems!

350 million treatments performed by NHS last year.
But possibly millions of dissatisfied customers or complaints that don't get pursued formally.
135,000 complaints locally, with few satisfied complainants at the end of the formal local process (an estimated 90% of those still dissatisfied giving up at this stage).
9000 complaints escalated to the HC, which failed to be taken forward by the PHSO, when the HC closed its public remit, without public consultation.

Our four year unresolved complaint into the death of my son detained by WLMHT under Section 2 “for his own safety” has resulted now in:
Two investigation Reports into management issues at WLMHT:
Report # 1 was into patient safety at WLMHT (into a trust which received a HC excellent rating just six months prior to this investigation being launched…..what had fundamentally changed?)
Report # 2 was into an incident at Broadmoor Hospital in 2004 (if Secretary had ‘line of sight’ then why wasn’t an investigation commissioned earlier than 2008/9?)
As ‘secure services’ WLMHT were not be offered Foundation Trusts status (although as all Board meeting documentation will support, that they had originally been promised this!) When this was withdrawn by DH there appeared to be a decision to award Foundation Trust equivalent (FTe) to all three secure services so that they “did not lose out on FT Freedoms”….and this decision as I understand was not debated in the House under the same democratic process as Foundation Trust status was.

At WLMHT the CEO has left [just prior to the first report being published]and has another public job with the SHA NHS London who then published the Broadmoor Report into yet more management failures at WLMHT…..a conflict of interest I would argue?
The Nursing Director had been promoted by the ex-CEO to have management of Broadmoor but he too has now stood down at WLMHT and I believe has another public job at Berkshire mental health service.

Something has to be done Mr Cash, this level of accountability from our public services is dire! Its not just Mid-Staffordshire sadly!

Having been exploring the NHS Complaints system for over four years now, we have had our complaint upheld, closed prematurely, reviewed(at least six times!) re-reviewed (at least three times and its now the subject of a PHSO re-review…having been refused for an investigation. the re-review “which will take 20 weeks”. Wi=ll take us outside of the legal time limit for judicial review should we choose this route! But the SHA have now promised a full investigation “like you should have been offered over four years ago” which sort of makes the PHSO service look pretty ineffective ….and very expensive.

Having seen the Commons Debate information on Clause 12 ‘De-Authorisation of NHS Foundation Trusts’ I can now share with you information I have brought to parliaments attention before. I believe that there has effectively been De-regulation of the public sector. This happened at the same time as the de-regulation of the financial sector but no-one has really noticed because people have been busy putting out the financial fires and trying to put the financial regulation back. I believe in the push towards the general election The Tories shouldn't miss a trick in highlighting the problem in regulating public sector performance and averting a similar crisis in my view. Sadly, the consequences to both individuals and the nation will be similarly huge.

I strongly believe we need:

a) an end to self-assessment in favour of random and targetted inspections once more. The dangers of self-regulation was demonstrated by a 40% jump in "good" and "excellent" ratings for mental health trusts last year for example. There were no substantial increases in investment or innovation to justify such a leap in performance. Instead, more Trust's simply caught onto the limitations of the self-assessment process. Primary Care Trusts didn't fare as well in comparison because their measures are more specific and thus there is more chance (although still small) that they would be rumbled.

b) regulators with teeth and with a capability and desire for challenge - one's that don't simply endorse what they are told for an easy life. Misleadingly endorsing a poor value service as "good" or "excellent" is worse than not doing anything at all. In terms of capability, far too few regulators, particularly in the realms of the public sector, can force a body to comply. Also, too many regulators are remote and don't properly access independent local opinion in order to validate their findings.

b) having no regulators at all, so that people know where they stand and are enabled to challenge public bodies' wayward decisions via e.g. judicial review. Taxpayers money is thus also saved on ineffective regulation; this money being wasted on ineffective regulation at present.

c) LGO and PHSO are currently ineffective as heads of the current complaints system. Part of the problem is that these services overwhelmingly recruit ex-public sector employees (mostly from the same discipline of the complaints that they are charged to deal with) and the Ombudsmen employees often therefore have a much less than reasonable and objective view as a result of "normal" happenings in their past experience. Between 12 and 18 months wait time to deal with a case is common.

LGO it seems upholds maladministration with injustice in only 2% of cases with an average settlement of a couple of hundred pounds if you look at the annual audit letters to local authorities.

Although Ann Abraham (PHSO) talks a good game at Select Committee's and on the internet there is much hard evidence to suggest that the extended PHSO service from April 1st 2009has been significantly worse than the Healthcare Commission's recent record on health complaints for example (and the HC were still not brilliant after four and a half years as I know to my cost!) The reason that the PHSO will be likely to struggle in the new complaints system is that many complaints like my son’s do not fit the PHSO's "summons to virtue" strategy. Ann Abraham thus finds it hard to deal with any complaint where there is clear evidence of :
- corruption;
- deliberately unethical and dangerous practices being embarked upon for political purposes/ personal gain/self-advancement/personally motivated malice against the patient etc. ;
- conspiracy to cover up, which may involve forging and/or withholding documents etc.

So again, if the LGO and PHSO can't shape up and stop protecting the public bodies indulging in poor service and dragging complaints out, they should be abolished. People would then have the immediate opportunity to go for judicial review in the event of local resolution failing to deliver. Taxpayers money would again be saved on an ineffectual service.

If the PHSO and LGO are to remain however, they need to have the power to force compliance with their recommendations. There is hard evidence to suggest that both Ombudsmen have reacted badly to the public embarrassment of Trafford Council's non-compliance (LGO) and the Government dragging their feet over Equitable Life (PHSO) by a tendency to not uphold cases if at all possible (so that making recommendations does not apply), or in the event of an "upheld" case that they can't avoid upholding, negotiating "acceptable" recommendations quietly in advance with public body successfully complained against. This tactic is of course, totally in contradiction with the PHSO's published 'Principles of Redress'. This tactic also lessens the chance that they will have to follow up non-implemented recommendations if the weary complainant has the energy to raise things again.

There is also hard evidence available from a test case that the combined health and social care complaints system due from April 1st 2009 will not work.

This is a member of the public’s overview on where we are with this and the experience has been borne out of grief, frustration and overwhelming bewilderment at the bureaucratic incompetence of it all. Maybe if we had enforcement we would find better staff to run this?

Kind Regards and thank you for your tenacity.

Yours sincerely

Dee Speers