Examination of Witness

Health and Care Bill – in a Public Bill Committee at 3:15 pm on 9th September 2021.

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Sir Robert Francis QC gave evidence.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak 4:00 pm, 9th September 2021

Welcome, Sir Robert. Could I ask you to introduce yourself for the record, please?

Sir Robert Francis:

I am Sir Robert Francis. I am chair of Healthwatch England.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Thank you very much. We have until 4.30 pm for this session. I call Mary Robinson.

Photo of Mary Robinson Mary Robinson Conservative, Cheadle

Q Welcome and thank you for coming along, Sir Robert. I am Mary Robinson, MP for Cheadle and, with another hat on, the chair of the all-party parliamentary group for whistleblowing, so I obviously know about the reports you have conducted into these issues and about the Freedom to Speak Up review in particular. How will the Bill’s provisions on the HSSIB further the ability of people in the NHS to come forward and speak up in a safe space?

Sir Robert Francis:

That rather depends on what arrangements are made in the new system. I have seen no guidance issued yet as to how this should work, and I am not surprised at that, because until you know precisely what the structures are and what the accountability and information flows are, it is quite difficult to do that. But I would agree that it is vital in the ICB and the ICP world that sufficient provisions are made for people who have concerns—whether they be staff, patients or the public—to make those concerns known safely to those responsible for doing something about them. In terms of this new world, that means that the ICB and, I suspect, the ICP need to have people who are directly responsible for that. Unless that happens, whistleblowers are going to find themselves in an even more parlous and uncertain place than they are at the moment.

Photo of Mary Robinson Mary Robinson Conservative, Cheadle

Q Could you expand on that? Why would they be in a more uncertain place?

Sir Robert Francis:

Unless there is certainty on guidance, policies and guardians, of which I am a great supporter, people do not know where to go. Clearly, where things are going right in terms of an open culture, there are many people whom others will go to as a matter of ordinary business. But if we are talking about places where, unfortunately, that is not the case—I think they do exist—people do not know who to go to for help. They need to know that they have protection to go to places to provide information of concern, and they need to know that they are going to get support. If there is no guidance and no clear framework, none of that will happen, and secrets will remain at provider level, when they should be sent elsewhere. Existing mechanisms, such as going to the CQC and your local Freedom to Speak Up guardian in your trust, will still exist—I see no reason why those should not—but I suspect there will be areas and subjects where that will not necessarily be the answer to the question the individual wishes to pose.

Photo of Jo Gideon Jo Gideon Conservative, Stoke-on-Trent Central

Q Thank you, Mr McCabe. How do you think the public voice should be represented across the integrated care system at board and partnership level?

Sir Robert Francis:

Healthwatch England welcomes the requirement for Healthwatch and representatives of the public to be “involved”—that is the word—in the strategy, but we would like to see that enhanced, as I am sure many people would, and we just heard that expressed very articulately. In order for these new reforms to work, it is absolutely essential that the public whom the system serves are able to engage with it and participate in the design of the services that they are going to receive. In order to do that, in our view, they need a visible presence on the ICB board and the ICB partnership. Although that can of course be done by local discretion and local arrangement, we think it would be a powerful boost to the importance given to the people’s voice if there was a representative on the ICB—not as a voting member but, in NHS England’s parlance, as a “participant”. It would be a requirement that one of the participants be such a representative, and you will not be surprised to know that we would advocate that person being a representative of Healthwatch.

That can be done through a coalition of local healthwatches—in many places there will be more than one—so that they have a presence on the board and are able to raise things. It is not just a question of the ICS deciding what to ask people about; they need to have a flow of intelligence coming in about what people are actually concerned about, and those two things are often different. It should be someone who is able to question what is happening in a constructive way.

Of course, part of that is done by local government representatives, and this is not a substitute for local democracy, but we consider that Healthwatch has a local and national ability to reach out to groups who do not often get considered, for instance, and that is particularly relevant if you are seeking to tackle health inequalities. Through the relationships that a good local healthwatch has with groups who feel—rightly or wrongly—that they have often been ignored, the questions that they pose can be put and the answers given back to them. That is a two-way process; you need someone who is independent from the system but in the room, and they also need to be able to transmit into the room information from patient services and the public, and transmit information back. They are part of the mechanism for explaining to the world at large this extremely complicated new concept—namely, a system of which the public has no understanding at all at the moment. A lot of professionals do not either.

Photo of Edward Timpson Edward Timpson Conservative, Eddisbury

Q Sir Robert, a shift away from competition towards collaboration and integration is very much at the heart of the Bill. We heard earlier that competition is not just about the constant tendering for services but also has the element of patient choice. From the evidence you have gathered from your local healthwatches and more generally across the country, where do you think patient choice needs to sit within these reforms? I am particularly interested in children and young people from the ages of nought to 25, because we are talking about all our health system’s service users.

Sir Robert Francis:

Clearly, patient choice and view include information about people’s experience of the service they have had, where they think the gaps are, and their needs. The less you have a competitive exercise with different organisations coming in and saying, “We can provide this better than X or Y,” the more you need to know what people think about what you are proposing, or indeed the more you need to know to inspire creative thought about how you meet the needs that people are telling you they have.

Our view is that while we actually welcome the removal of the requirement for tendering and all the bureaucracy that, quite often in our healthwatches’ experience, interferes with and delays getting solutions to things, that should not mean that we do not have a concentrated effort to involve patient services and the public in the design of what they are being provided with. In effect, that would include how you commission the service that they are going to be provided with. You then need a constant flow of information and dialogue about whether that is working. Frankly, I do not see a great deal of clarity in the Bill about how performance will be monitored after having commissioned services and worked out your strategy and so on.

Photo of Edward Timpson Edward Timpson Conservative, Eddisbury

Q Is my point about children and young people one that you look at and factor in?

Sir Robert Francis:

Definitely, and it would be quite wrong to think that children and young people cannot be fully involved and consulted in the design of the services that are required for their benefit. Many local healthwatches have been very good at doing just that.

Photo of James Davies James Davies Conservative, Vale of Clwyd

Q My point is also about patient choice. I work as a GP in England and know that many patients enjoy being able to access secondary and tertiary care throughout England, if they wish to do so—something that my constituents in Wales do not generally have the opportunity to do. Are you satisfied that the Bill protects that opportunity to its maximum?

Sir Robert Francis:

I do not think it prevents it, but the extent to which it allows for it will depend, as I understand it, on the strategic decisions being made locally within the system. The answer is that I am not quite sure.

Photo of Karin Smyth Karin Smyth Labour, Bristol South

Q May I take you back to the ideal person or Healthwatch person on the ICB? In my early days in management, in the 1990s, the community health council secretary and chair—I realise the situation was varied across the country—were important people locally. They had access culturally, and any changes to the system were expected to work with them. They had much access, regardless of their position on bodies. In my view, what has come since healthwatches were abolished—I will not say by who—has never really replicated that cultural relationship. You might wish to comment on that. Were you saying that having a person on the ICB would help with this situation, or is there another way in which we can embed a culture that recognises the importance of some sort of patient voice outwith the system?

Sir Robert Francis:

First, there is no ideal person to do the job. I think that past iterations of what is now Healthwatch may have been slightly too full of people who were more interested in constitutional matters than the actual provision of health services. That was the impression I formed during the Stafford inquiry, but I think that is not true of Healthwatch. The presence of a Healthwatch person—by the way, this requires a new level of Healthwatch collaboration and function, but that is not difficult to provide in the Bill—will not produce, in itself, the culture that you talk of. The health service is still an organisation that, in the jargon, is top-down and is delivering things to people, rather than getting their ideas and responding to them. But the presence of the Healthwatch person, or some independent person, is at least a symbol of the need to have such a culture and to develop it. It will be someone whose principal task may be to question whether that culture is being led and developed.

If you have that person, you can back it up if you need to—in regulatory terms—with whatever form of systemic review the Care Quality Commission is tasked with doing. Its reports could certainly be a very valuable tool in relation to this, but you need a channel of communication between the ICB, if that is to be the centre of all this, and the wider world within its constituency. Unless there is someone whose independent role is to oversee whether that is happening, I am not sure it will. All organisations currently in the NHS have directors of engagement and communication. I suspect that, with the best will in the world, most of them see it as their job to defend the organisation. This is not about defending an organisation; it is about welcoming constructive comment from the public and responding to the needs that people communicate to them.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health and Social Care), Shadow SNP Spokesperson (Europe)

Q I want to look at the Health Services Safety Investigations Body, which is discussed in part 4 of the Bill. Obviously, you have been involved in the past with whistleblowers, Mid Staffs and so forth. We have talked a lot in recent years about learning, not blaming. What is your view on that part of the Bill? How do we protect what is given within the safe space, paralleling Air Accidents Investigation Branch, but give the public the confidence through Healthwatch that this is not stopping any other investigation happening now, and that taking that approach can get under the bonnet of real issues that have led to tragedy?

Sir Robert Francis:

What I am about to say in answer to your question is my personal view. Healthwatch England, for reasons you will understand, does not have a view on that—apart from welcoming the existence of this body and the fact it has a statutory function. I confess to some concern about the safe place provisions, and I said this in part to a parliamentary Committee before. On the one hand, I fully endorse the need to protect people who come forward to give information—sometimes potentially damaging to themselves—so we can learn the relevant lessons of safety. Therefore, I absolutely support the idea that anything said in these circumstances cannot of itself be used to prosecute or discipline them, or indeed be used in civil proceedings.

On that point, as a lawyer, I would be very hesitant on the advice I would give to someone on the basis of the Bill as it stands, because there is no certainty that what goes into the safe space stays there. It is all a matter of discretion, albeit a High Court judge’s discretion or sometimes a coroner’s discretion. That would have to be worked out. It is probably difficult to reinforce more, but if it could be it should be.

However, I think that is different from denying bereaved families and victims of an incident, if they are still alive, knowledge of what has been said to the investigation board. At the very minimum, I would like to see there be discretion to share that information with families. I can see there may be circumstances in which that is not possible, and I can see that it might be necessary for there to be quite stringent conditions around what they personally can do with the information they are given. What worries me about the position at the moment is that it starts from a presumption of dividing the staff from the patient from the families, and you get straight into, I presume, an adversarial situation. That is not necessary the case, and if we work the system and the learning culture properly, everyone will be trying to contribute to learning rather than blaming each other. You are not going to get that if you are denying one half of the incident the information that the other half has.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health and Social Care), Shadow SNP Spokesperson (Europe)

Q When we took evidence from Keith Conradi, he said that obviously the learning from the safe space is in the reports, so there is discussion. Obviously there is no naming of people. Are you talking about the family or the patient having access to the raw data?

Sir Robert Francis:

Yes, or something closer to it. After all, it is rather artificial. The family will often know the people involved in the treatment of their loved one. Where there is already likely to have been a breakdown of trust and confidence, this would be perpetuated and possibly increased if they are not given access to information that it is possible to share responsibly with them. I can see circumstances in which that would not be the case—that is why it would have to be discretionary—but I think many concerns of people I know who would have possibly been settled if only they had seen something more than they get in the report.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health and Social Care), Shadow SNP Spokesperson (Europe)

Q HSSIB does not remove the duty of candour or the need for a local trust or hospital to investigate. It should not remove the need for significant adverse event inquiries and discussion—the families not having been involved as an external on those. Often the family simply want to know what happened and that it will not happen again. However, we often talk about failures as system failure and that can be down to personality. It is not necessarily the case that staff are giving evidence that conflicts with the patient, but often it is quite sensitive things about poor personal relationships within a hospital or team that have had an impact, or a lack of something.

Sir Robert Francis:

Often, if I may say so, things that patients and their relatives have seen for themselves. If I were a relative of someone who died in hospital and I was being told, “This is due to a systematic fault. It was not down to the nurse or the doctor,” I would want to know a bit more about that. I would want, if I could, to talk to those individuals so that they could perhaps learn a little more from the impact of all this on people. I am not saying that it should happen in all circumstances, but in order for the family to have a true understanding of it. It does not necessarily mean they need to know the names in that sort of case that you mentioned, but I do not think it should be automatically assumed that they will be excluded from that information.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I know it is fascinating, but we had better go to Mr Norris.

Photo of Alex Norris Alex Norris Shadow Minister (Health and Social Care)

Q Thank you, Chair, and good afternoon, Sir Robert.

We have spoken quite a bit in these proceedings about the relationship between the integrated care board and the integrated care partnership, the fact that the board has to pay “due regard” to the integrated partnership’s plan, and what that due regard means. You talked about that in your written evidence, and you suggested mechanisms for resolving the situation—or at least making account for a situation where the board sets aside the ICP’s plan. Could you talk a little more about that?

Sir Robert Francis:

The first requirement is that there needs to be clarity about what happens in those circumstances, which I am not sure we see in the current legislation or in the guidance that NHS England has produced, which I briefly read. Our suggestion is that there should be a provision inserted into the Bill that, if there is a disagreement, and the board decides to do something that is contrary to the views put forward by the partnership, it should then be obliged to set out their reasons for that. In other words, there should be transparency, which enables accountability, if it is necessary, to be more easily handled.

That would be the major thing we would require, but there also needs to be a better understanding, as far as the public is concerned, about the relationship between the two. I have heard what has been said today, and I must say that I am not clear that the partnership is a sub-committee of the board. That is because the Bill explicitly says that the creation of the partnership is a joint matter between the board—I think, or the NHS—and the local authority. It strikes me that that is not clear.

That is important because, if there is a disagreement, local people are entitled to know why. It would be good if they could also be persuaded that whatever is happening is actually the right thing for them, but they are certainly entitled to be part of the discussion. For that to happen, there need to be reasons given. Another thing that might send a shiver through some spines is that if there is an obligation to give reasons, it might be easier for those who object to the course being taken to challenge it.

Photo of Alex Norris Alex Norris Shadow Minister (Health and Social Care)

Q Do you envisage, when setting out those reasons for disagreement, that they would be publicly available?

Photo of Alex Norris Alex Norris Shadow Minister (Health and Social Care)

Q Thank you.

We will move on to something else that you said in your written evidence. On Tuesday, we had a very good conversation about data, but the whole thing was about quantitative data. In your written evidence, you talk about qualitative data, and it is very easy for us, as Members of Parliament, to conceive of the importance of that, as it is something that we routinely draw on. With your insight from leading Healthwatch, how can we develop systems that properly trap that, use that and prioritise that just as much as the quantitative data?

Sir Robert Francis:

Technically, these days, that is no problem at all. You will not expect me to explain that to you, but the qualitative data—comments from the friends and family test, or similar things—is easily mined these days. You can develop a view of the sentiment that comes through it, and you can then dig down more closely into specifics if you need to. That information is extremely valuable to Healthwatch in determining what people think about a particular subject or services, and we feel that there should be a recognition that that data, in that form, should be capable of being shared with a statutory body like Healthwatch, and possibly others.

We also think that—I am sure others might agree—while quantitative data is extremely important, it is informed by qualitative data. The personal impact—good or bad—of things that happen in the service are best described by the people who have received that service. If you just look at figures—I am afraid that this was a problem at Mid Staffs—you lose a great deal, and the trigger for change and improvement is lost.

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care)

Q I will try to be brief in the five minutes that we have left. Sir Robert, I have two questions: one with your Healthwatch hat on; and one in your personal capacity—and also as an eminent lawyer.

We sought with this Bill to be permissive rather than prescriptive; behaviours, and how things work on the ground, are often as, if not more, important than the framework. Notwithstanding your on-the-record comments about Healthwatch participation in ICB levels as a formal member, what else would you draw out as opportunities within the framework to build on patient participation and accountability to those who pay for, and use, the service? Are there other opportunities, that, with a small tweak either in guidance or in the Bill, we could seize more effectively?

Sir Robert Francis:

I suspect that there is something around reporting, particularly with the oversight of quality, inequalities and matters of that nature, which would be of assistance. I agree that flexibility of engagement is really important, and Healthwatch claims no monopoly over this. I see it taking place in guidance. If the emphasis is to change culture to one where the service is being responsive to people’s needs, as opposed to providing them with what the service thinks they need, there could be greater emphasis in the Bill on ensuring there is a strategic plan for engagement. There could be more emphasis on how the ICS is going to engage with local people and communities, and an actual requirement that it provides comprehensible information to the community about how people should be able to communicate with it. I know they sound like matters of detail, but if there is an obligation to make such things clear, it does not prevent flexibility, but it does oblige organisations to actually do it—and mean it. There will be lots of other ideas, I am sure.

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care)

Q That is useful, and builds on your written evidence. What do you think in a personal capacity? This builds on Dr Whitford’s questions and acknowledges Keith Conradi’s preference that the safe space be not qualified. If one accepts that it is qualified in respect of aspects of the judiciary—he acknowledged in those circumstances that he would accept that—would you consider that a High Court judge is probably the most appropriate person to make such a judgement on whether something should be taken out of the safe space and made available to a coroner?

Sir Robert Francis:

In relation to a decision of whether information should be capable of being used in legal proceedings, there is no better qualified person than a High Court judge—so, absolutely. My advocating that there should be some qualification in relation to the family does not mean, in any way, that I suggest they should then be able to use that for litigation or other purposes. Indeed, some of the conditions you might impose on them in order for them to get the information are that they do not do those sort of things. There will be areas where it can be said that it is too sensitive for that. Of course, there may need to be a balancing of people’s rights of privacy. It is really about ensuring that families feel that they are not being excluded or that something is being hidden from them. We need to build trust. I do not think that that decision needs to be taken by a High Court judge, because it is not about legal proceedings; it is about something really quite private.

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care)

That is extremely helpful, thank you very much.