Wake up in Wakefield

Last week, MD chaired a clinical commissioning meeting in Wakefield where Dr James Kingsland gave a blunt summary of the NHS reforms: ‘It’s simply about making clinical staff financially as well as clinically accountable.  Every clinician has to question every decision he or she makes to ensure it’s the best use of NHS resources. We have to make £20 billion in efficiency savings. There is no plan B.’

Kingsland is a senior GP partner and the ‘national clinical commissioning network lead’ at the Department of Health. He’s in a consortium covering 7 GP practices and 40,000 patients, and told of his frustration that one of his patients had gone straight to hospital with cellulitis, where he was admitted for nine days on intravenous antibiotics at a cost of £5000. The infection could have been treated equally effectively – and far more pleasantly – at home with tablets. ‘There are 8,300 GP practices in England and if we all stopped someone like that going to hospital every week, that’s £2.5 billion saved.’

It’s a fair point but you don’t need a Health and Social Care Bill of bewildering complexity just to ensure patients don’t go to, or stay in, hospital unless they absolutely have to. Labour tried to promote Healthcare Closer to Home but hospitals – particularly those with unserviceable PFI debts – were so desperate for business that they sucked as many patients in as possible and GPs didn’t put up much of a fight. Now GPs are being forced to limit referrals and it’s having an effect. Hospital admission and referral rates are down, hospitals are no longer paid for patients who are readmitted within 30 days for the same problem, and savings are being made. On the downside, by Andrew Lansley’s admission, 60 hospitals run by 22 PFI funded trusts are now in the brink of financial collapse.

This was always going to happen given the recession and flat-line funding (Eyes passim). In the past Labour threw money at indebted hospitals but it’s rich of Lansley to finger PFI given its Tory roots. The income of hospitals is set to take a further hammering when ‘any qualified providers’ (AQPs) enter the market offering, say, dermatology and ENT outpatient services at the same cost as the NHS but in nicer buildings with easier parking and real coffee. Hospitals that relied on block contracts to survive will be fighting for every single patient.

The task of coming up with a tariff for every single episode of care in the NHS so it can be put out to tender is down to the economic regulator Monitor. Whether it has the expertise to strip down psychiatry into component parts in any meaningful way remains to be seen, but tariffs don’t work when they fail to differentiate between patients, some of whom require far more complex and expensive detoxification or hip surgery than others. And if the coding is done on the cheap by those with no clinical experience, bills and outcome measures become littered with errors.

The best bit of the health reforms is encouraging clinical staff to get involved in figuring out better ways of treating patients. Clinical staff should also be ensuring that diseases and treatments are accurately coded to save money and lives. The Mid Staffs inquiry has heard allegations of managers flipping diagnoses to avoid scrutiny of poor mortality rates, and the regulators failing to spot this. The NHS needs peer review spot poor care, but a Care Quality Commission spreadsheet of all job adverts for the last year reveals none require any medical or nursing qualification. The posts of “Deputy Director of Operations”, “Registration Assessor” and “Senior Analyst” all say in the qualifications column ‘none required’ (see www.medicalharm.org )

Lansley is paving the way for hospital closures and will try to pass the buck onto PFI, Labour, the financial crisis, clinical commissioning or even patients choosing not to go there. But health secretaries are always held accountable for the state of the NHS on their watch. Lansley needs to make friends with NHS managers and get clinicians involved not just in commissioning, but regulating and inspecting to make sure the services they buy aren’t all done at high risk ‘on the cheap’, and actually improve the lives of patients.

 Howe’s that?

 You’ve got to admire Lord Howe’s balls. With the Health and Social Care Bill facing its final Common’s reading amid Labour claims that it’s a Trojan horse for privatization, up pops health minister Howe to say the overhaul of the NHS in England presents “huge opportunities” to the private sector, and that it doesn’t matter “one jot” who provides care to NHS patients as long as it’s high quality and free at the point of delivery.

Cameron, Clegg and Lansley are only continuing the Blair project – endorsed by Gordon Brown and successive Labour governments – of introducing markets into the NHS. But where Labour tried to hide its intentions with irritating euphemisms – modernisation, choice, empowerment, diversity, plurality, contestability – the coalition is utterly shameless.

Labour did make improvements to the NHS but very little was down to their market experiment. They increased NHS funding from £35 billion to £110 billion and got results. Waiting times, infant mortality and deaths from cancer, heart disease and hospital acquired infections all went down, and life expectancy rose (especially for the rich). Much of this was down to better living standards and the development of collaborative quality standards for the treatment of common diseases supported by proper funding. And the ban on public smoking helped.

Labour’s market-based PFI system for building new hospitals has proved disastrously poor value for money to the point that many hospitals are no longer financially viable. The NHS IT system is another hideously expensive market failure and the competition Labour forced on the NHS in terms of walk-in centres, polyclinics and independent sector treatment centres has been hugely wasteful. On the plus side, the satisfaction scores of NHS patients treated in private hospitals under Labour were enviably high. Most patients are delighted to ‘go private’ on the NHS provided the comfy MRSA-free surroundings are matched by a competent surgeon.  A significant percentage of NHS work has always been done by the private sector, particularly in psychiatry, and private hospitals will continue to take the overspill when NHS trusts are full. But private hospitals will only flourish in the NHS if large trusts are allowed to go bankrupt, and no government has yet been brave enough to let this happen.

Where the private sector still stand to make a killing in the NHS is providing all the management support guff that inevitably accompanies a massively chaotic reform programme with huge statutory changes. Last year, Peter Martin, the chief executive of Tribal Group plc, ‘a leading provider of commissioning services to the NHS’, read Andrew Lansley’s 2010 white paper read and spotted an “improved flow of service delivery opportunities” that would bring “major changes in structure of UK health markets”. He set out five growth priorities: commissioning for GP consortia, clinical support services, patient management services, informatics outsourcing and hospital management services.

Now the government has helpfully got rid of many of the best NHS managers by announcing the abolition of PCTs and SHAs, the private sector is primed to step in. GPs and other clinical staff may form themselves into consortia but they haven’t got a clue how to go about becoming statutory bodies or how to restrict and ration care on a corporate level when their professional duty as doctors, outlined by the GMC, is to make the individual patient their first concern.

Clare Gerada, chair of the Royal College of GPs, has advised GPs to resolve this conflict of interest by ‘seeking legal advice’ (not cheap). As Dr Gerada put it: ‘GPs must not be involved in rationing decisions except in an advisory capacity at a very high level.’ But the whole point of the reforms is to pass the buck for rationing in difficult times from politicians onto front-line doctors while allowing the private sector to provide ‘management support.’ In the US, the cost of administering market-based healthcare – making and monitoring contracts, billing, contesting, auditing, legal advice and disputes, fraud, corporate salaries and dividends etc etc – takes up 20% of the budget. That’s where the private sector will make its money from the Health Bill.  

MD

Victory for John Watkinson

Who will be held accountable for the persecution of NHS whistleblower John Watkinson and the waste of £2 million?  (Eyes passim ad nausea )  Watkinson, the former Chief Executive of Royal Cornwall Hospitals NHS Trust (RCHT), was suspended in September 2008 and sacked in April 2009.  In March 2010, an Employment Tribunal (ET) presided over by a High Court judge concluded he was ‘got rid of’ because he blew the whistle on law-breaking by NHS organisations in the south west. This month, an Employment Appeal Tribunal (EAT) threw out the hospital’s appeal.

Watkinson raised concerns when NHS South West, led by Sir Ian Carruthers, decided to move key cancer services out of Cornwall without legally required public consultation. Although Watkinson was dismissed by RCHT, the tribunal heard that NHS South West was behind the move to get rid of Watkinson and that RCHT’s board had come under ‘clear and strong pressure from the SHA’. The tribunal repeatedly sought the attendance of Sir Ian Carruthers to give evidence, but despite his office being less than 100 metres from where the tribunal was held, he did not appear. The Tribunal said evidence presented by the trust’s witnesses was ‘unsatisfactory’ and the non-attendance of Carruthers a matter for ‘adverse comment’. The Employment Appeal Tribunal (EAT), in its conclusion, confirmed this finding: “We cannot leave this case without echoing the views of the Employment Tribunal first that ‘in many respects, we have found the evidence put forward by the respondent to be unsatisfactory’ and second that the failure of the respondent to call several important witnesses (including Carruthers) ‘is a matter of adverse comment’

As Watkinson put it: “The Public Interest Disclosure Act (PIDA) is supposed to safeguard the interests of whistle-blowers who come forward to expose wrong-doing. But the reality is that whistle-blowers are persecuted not protected. The odds are stacked against them. The NHS uses the vast resources of the public purse and all the levers of power they can wield to grind down whistle-blowers. You have to be ready to be vilified, professionally isolated, lose your job, career and reputation, as well as meeting huge legal bills if you stand up for what is right.’

Equally concerning is the waste of public money. The NHS in the south west has spent more unfairly dismissing Watkinson and then trying to defend that dismissal than was over-claimed in the MPs expense’s scandal. And this at a time when the hospital trust is making massive cuts in spending on health care services.  The RCHT board should resign because for its failure to stand up to pressure from SHA to break the law. They also oversaw, and were complicit in, a suspension and dismissal process that was clearly unfair.

Carruthers should also resign.  The evidence and findings of the ET and EAT demonstrate that he knew of the legal obligation to consult but ignored it. He also oversaw the abuse of the employment process and the SHA and RCHT both failed to afford the protection due in law to a whistle-blower under PIDA. The findings of the Verita report which exonerated the SHA (Eye 1279) have also been contradicted by the findings of the ET and EAT.  Andrew Lansley, who ordered the investigation must now review its findings, and particularly the role of NHS chief executive David Nicholson in supporting his good friend Carruthers (who chaired a panel recommending Nicholson’s knighthood). Nicholson also failed to ensure the protection of Watkinson under PIDA and is ultimately accountable for the waste of £2 million. The Public Accounts Committee should investigate, but it probably won’t. The NHS, with such power in the hands of so few, is truly unaccountable. Indeed, Carruthers has just been promoted to SHA cluster chief for the whole of the south of England. Watkinson is unemployed.

MD

Medicine Balls:           Criminalising Herpes

Last week, Northampton traffic officer David Golding pleaded guilty to a charge of Grievous Bodily Harm and was sentenced to 14 months imprisonment because his ex-partner had been diagnosed with genital herpes. Mr Golding previously had genital herpes, but was unaware that he was currently infectious and there was no evidence that transmission was deliberate or malicious. His ‘crime’ was failing to disclose his previous history of infection to his partner, who claimed she would never have had sex with him had she known – even with a condom. Golding went down for “reckless transmission of an incurable sexually transmitted infection (STI)” and the Crown Prosecution Service (CPS) went back to the dark ages.

The law on deliberate transmission dates back to 1861. When HIV became prevalent, the Home Office consulted experts to draw up a ‘shopping list’ of STIs to distinguish potentially life threatening infections from those it would be ridiculous to criminalise. It was never implemented because of allegations of discrimination by the HIV lobby. However CPS guidelines were drawn up:  ”7. The courts have recognised that person-to-person transmission of a sexual infection that will have serious, perhaps life-threatening, consequences for the infected person’s health can amount to grievous bodily harm under the Offences against the Person Act 1861… Therefore, the transmission of that infection can constitute the offence of inflicting or causing grievous bodily harm, which when intentional can attract a sentence of life imprisonment.”

Genital herpes affects 1 in 10 (around 6 million people in the UK) and is usually so trivial people don’t know they have it. Outbreaks can occasionally be very unpleasant, but never life-threatening, tend to get less severe in time and effective treatments are available. It’s also impossible to prove who transmitted the virus to who and when. 70% of the population carry at least one of the HSV viruses by the age of 25, often without noticing symptoms. In the vast majority of cases, herpes is transmitted – either facially or genitally – under the radar without either partner being aware. In no way can infection be considered deliberate or serious.  It’s a cold sore gone south.

Of those who know they have herpes, some don’t tell their partners about a previous infection, partly because of the ridiculous stigma that this court ruling has entrenched.  As Nigel Scott from the Herpes Viruses Association put it: ‘It is the existence of a stigma that gives this charity its raison d’etre.  We spend most of our time trying to calm people down and re-educate them.  Some people talk of suicide when they are diagnosed and we know of at least two cases where this has occurred.  This is why many people find disclosure difficult.’

If the six million people in the UK with genital herpes set about prosecuting for deliberate transmission, the courts would do nothing else. Herpes can lie dormant for years, so you’d need to track down all previous sexual partners, including those with cold sores who went ‘down below’. Criminalising herpes is as ludicrous as sending people to jail for passing on head lice, glandular fever, flu, threadworm, warts and chicken pox. Mr Golding is extremely unfortunate to be infected with the triad of incompetent legal representation, an ignorant judge comparing HSV to HIV and then misinterpreting the CPS guidelines, and a medical ‘expert’ who called herpes ‘incurable’. In nearly all cases, there’s nothing to cure. We all carry all sorts of viruses for life, and most we don’t even know about. The stigma surrounding herpes can be traced to publicity surrounding the discovery of the anti-viral drug acyclovir by Wellcome in 1974, and its launch in 1982. Profits need publicity, and Time magazine duly obliged by describing herpes as ‘the new sexual leprosy’ (1980) and ‘the new Scarlet Letter’ (1982). In fact, the main complication of herpes is how much a person wants to let the infection get to him or her psychologically. And if you live in Northampton, being sent to prison.

http://www.cps.gov.uk/legal/h_to_k/intentional_or_reckless_sexual_transmission_of_infection_guidance/

MD is a patron of the Herpes Viruses Association, 020 7607 9661, www.hva.org.uk, which offers excellent advice to patients and lawyers

What next for NHS Whistleblowers?

The Eye’s Special Report on NHS Whistleblowing  (Eye 1292) triggered an early day motion sponsored by Worthing West MP Peter Bottomley. ‘This House welcomes the Private Eye, Shoot the Messenger articles, on how NHS whistleblowers can be silenced and sacked; anticipates effective action by the Health Select Committee (HSC) and the NHS; and calls for an active central unit to which concerned clinicians can put areas and points that worry them, including details of inappropriate disciplinary action by health employers.’ http://www.parliament.uk/edm/2010-11/2031

The HSC has already considered whistleblowing in its Patient Safety report in June 2009, and found: ‘The NHS remains largely unsupportive of whistleblowing, with many staff fearful about the consequences of going outside official channels to bring unsafe care to light. We recommend that the DH bring forward proposals on how to improve this situation.’

Incoming health secretary Andrew Lansley’s proposal (currently shelved) was ‘to strengthen the NHS constitution’ to oblige staff to raise concerns and managers to act on them. But the constitution is legally toothless window-dressing. When the charity Action Against Medical Accidents asked the Department of Health (DH), under the Freedom of Information Act, for ‘information on any instance of action being taken with regard to an NHS body not “having due regard” to the NHS Constitution from its point of creation’ the reply was telling: ‘Officials responsible for this area of Departmental business are aware of no instance, recorded or otherwise, falling within the terms of your request.’

The Eye would like to see an end to all gagging clauses of any sort in the NHS and the protection of a clinician’s professional right to free speech, including the right to go external to the trust and raise concerns with an MP. Gagging is still widespread, so what will the DH do about it? Anne Milton, the Minister in charge of whistleblowing, gave a revealing interview to Radio 4 (July 7, The Report)

Milton ‘I would be very worried that any employer felt it was necessary to insert a gagging clause’ Simon Cox ‘Who’s policing that? Who says to trusts they shouldn’t be doing that?’ Milton ‘You’re stepping into the realms of employment law and I’m not an expert. There are laws in place but as I say I’m not the expert that you need to speak to….. I’m not absolutely sure what higher authority governs what rights an employee has.’

Back in 2009, the HSC recommended that: ‘All Government policy in respect of the NHS must be predicated on the principle that the first priority, always and without exception, is to ensure that patients do not suffer avoidable harm…. Managers and Boards in NHS bodies have a duty to heed whistleblowers and to afford them protection from victimisation for raising genuine matters of concern. Measures to encourage whistleblowing need to be accompanied by strong measures to protect whistleblowers from dismissal and blacklisting. We recommend that the DH bring forward proposals on how to improve this situation and that it give consideration to the model operated in New Zealand, where whistleblowers (and patients) can complain to an independent statutory body.’

None of the HSC’s recommendations were implemented, so this time it’s started by reminding NHS staff of their ethical duty to report poor care and to call on regulators to take action against doctors and nurses who remain silent. But the Eye special highlighted seven senior managers and consultants whose careers were ruined when they blew the whistle, while the concerns they raised were buried in gagging clauses and in secret reports never seen by the public. As MD argued at the Bristol Inquiry, the NHS cannot be trusted to regulate itself in secret. Peter Bottomley proposes a central NHS email address where whistleblowers can receive a date stamped acknowledgement of their concerns. This would make it impossible for an NHS employer to deny knowledge of a possible problem. MD would take it further. Copies of all clinical complaints from staff and the public, the response of the NHS and an indication of whether the complainant was satisfied should be published, with confidentiality protected. Before the NHS can do no harm it has to count the harm it causes and tell patients when they have been harmed by their care. Without absolute transparency, there can be no trust.

For more whistleblowers stories and campaigns, go to www.medicalharm.org