The Mother of All Gags?

The most keenly awaited NHS employment tribunal in years has ended in secrecy, making a mockery of the government’s commitments to transparency, accountability, patient safety and the protection of whistleblowers. Gary Walker, the former chief executive of the United Lincoln Hospitals Trust (ULHT), lost his job in February 2010 after blowing the whistle on how government targets were harming patient care.  The trust claims he was sacked for saying ‘fuck’ nine times over 2 years¹.

The tribunal was important because Walker had blown the whistle both to his SHA chief executive, Barbara Hakin – now the DoH’s Director of Commissioning – and the NHS chief executive David Nicholson. The allegation that the two most senior managers in the NHS may have played a role in the destruction of Walker’s career whilst failing to address patient harm should have been dissected under oath but the NHS legal machine ensured the claim was ‘settled’ on the eve of the tribunal.

Walker is now not able to speak about the case. Ever.  Neither can any of his many witnesses who were prepared to testify about serious cases of patient harm, fiddling of figures, the bullying behaviour of the strategic health authority and a whitewash external review that only looked for bullying ‘in writing.’ Neither will any witnesses confirm or deny the existence of any gagging clause. All those who were due to testify against the trust, the SHA, the DoH, Nicholson and Hakin – and substantiate allegations of ‘third world care’ and avoidable patient harm  –  have been so effectively silenced at public cost that they are too scared to say how or why.

So MD put five specific questions to the trust. 1.What was the precise claim that Mr Walker made against the trust? 2.What was the amount of the settlement and the precise terms? 3.Did anyone have to sign a compromise agreement (‘gagging clause’) as a result of the settlement? 4.How much in total has the trust spent in legal and other fees in preparing for and settling this claim? 5.What direction did the trust receive from the DoH settling this claim and enforcing any compromise agreements?

The trust’s response? “The parties reached an amicable resolution of the differences between them and agreed not to comment further.” MD asked the same questions of the DoH and for clarification of Nicholson’s written assertion that ‘there is no evidence whatsoever of bullying or harassment of the trust by the SHA’. The DoH said: “This is a matter between the trust and the individual”.  As for patients, specific allegations made by trust staff will not now be properly scrutinised. Walker missed targets to save patients, but after he was sacked, a woman allegedly suffered severe complications when a consultant was pulled out of the theatre to operate on another patient who was going to breach the 18 week target, and an otherwise healthy patient who died following a radical prostatectomy after extra cases were added to an operating list to hit targets.

In February 2011, the Care Quality Commission failed ULHT on 12 of 16 essential quality and safety standards. Two  statutory warning notices were issued and student nurses were removed from training posts. The CQC has just declared that ULHT poses “a current risk to patients of being exposed to poor care”¹. It has taken the trust “considerable time to investigate, respond to and resolve” serious incidents and “learning from these has been minimal”. In an NHS culture where even a chief executive can’t safely blow the whistle without having his career destroyed, it’s hardly surprising that no-one at Mid Staffs spoke up. The NHS needs to learn to value and support whistleblowers, and the NHS must stop using public money to suppress information in the public interest. The Public Accounts Committee (PAC) made precisely this point this year, and yet the NHS appears to have responded by issuing the mother of all gags, so powerful that no-one may acknowledge its existence. PAC must now investigate how much public money has been spent silencing Walker and his colleagues, protecting Nicholson and Hakin and covering up another scandal. And who signed the cheque? It’s inconceivable the health secretary, Andrew Lansley, wouldn’t be aware of a cover up on this scale, even if he doesn’t wish to be held accountable for it.

MD

¹ Shoot the Messenger, Eye 1292                      

 2 www.cqc.org.uk

Passing the Buck

Andrew Lansley’s vision of an NHS Commissioning Board, independent of the Secretary of State, sounds superficially convincing. The constant political meddling of his predecessors as they tried to micromanage the NHS from the centre was generally counter-productive. But in divorcing himself from the Board, Lansley must not divorce himself from accountability for the state of the NHS and the effect his Health and Social Care Bill has on it.

Lansley admitted on BBC1’s Question Time that ‘all government Bills are incomprehensible’. We simply have to trust in him that it will do what he claims it will. Lansley is publically certain that the NHS will improve with free market competition, that clinical commissioning groups headed by GPs will have the expertise and resources to deliver the toughest multi-billion pound challenge the NHS has ever known and that European competition law won’t stand in their way.

But no reforms can flourish without winning over the staff and patients, who are culturally very resistant to the idea of health as a commodity and need to see evidence that Lansley’s approach will work. There are no randomised controlled trials of health reforms but no reason why NICE shouldn’t provide independent analysis on which strategies are most likely to work and give value for money. The NHS is desperately short of cash and having to make £20 billion savings. Before Lansley throws all his cards up in the air and spends another small fortune on structural reorganisation, redundancy and rehiring, NICE should tell us if this represents a good use of resources.

Experts are at least voicing their concerns. Stanford University Professor Donald Light  has studied the NHS and other European health care systems for 25 years: ‘The reforms simply will not work. They rely on inexperienced clinical commissioners who lack any expertise or experience in contracting for millions of pounds of specialty care, even though they understand the clinical issues better than most managers. As has happened in every reform since 1990, the commissioners will be kept poorer, paid less, and under-equipped compared to the executive teams of hospitals.  Inequities are likely to sharply increase as are dislocations in service. Competition is about losing: only a few win a competition and everyone else loses. Why take the NHS down that road?’

‘The Dutch and German health care systems are being much more careful to establish rules of fairness in competition, and have set up elaborate, careful and worried watchdogs. Even with all that, competition has not produced any clear benefits. The NHS proposals are, by comparison, loose-cannon competition.’ UK health economist Professor Alan Maynard concurs that ‘competitive commissioning requires very high levels of complex regulation to design, implement and performance manage the system.’ Based on an on an international study of commissioning, Professor Chris Ham from the King’s Fund concluded ‘there is little substantive evidence that any commissioning approach has had a significant strategic impact on secondary care services.’ Lansley knows the NHS is running more hospitals than it can afford. But instead of making the case for hospital closures bravely and openly, he is hoping GP commissioners will do the dirty work for him. Clare Gerada, chair of the Royal College of GPs, is adamant this should not happen. ‘Big decisions –like whether to close hospitals – should be the responsibility of governments, not GPs. It’s the government’s job to decide how much we invest in healthcare – and what services the NHS should provide. ’

The Nuffield Trust is researching how the NHS can learn from other countries in times of austerity. A key conclusion is that  ‘it requires skilful political leadership and honesty with the public about the need for cuts.’ Instead, Lansley has devolved his responsibilities to GP commissioners who will be starved of the expertise and resources to do the job properly and a Commissioning Board run by a former communist party civil servant who doesn’t believe the reforms will work but can’t go public about his concerns. Lansley needs to take over the reins, be honest about hospital closures and start speaking the language of compassion, not commodity. He also needs a chairman of the Board with a deep and expert knowledge of the NHS. Step forward Professor Malcolm Grant, novice health commissioner, who’ll do the £60k job part time while continuing as £378k Vice Chancellor of UCL. As Chairman Mal puts it: ‘I have to say that the Bill is completely unintelligible.’

For more thoughts of Chairman Mal, go to http://www.healthpolicyinsight.com/?q=node/1268

The Nicholson Challenge Part 2

The Health and Social Care Bill may just about stagger through the Lords but its ability to improve the NHS is crucially dependent on the support of NHS staff, and it just isn’t there. The vast majority of managers, consultants, GPs, nurses and other clinical staff are either against much of it, don’t think it’s doable with the current level of resources or are just ignoring it because another health secretary with a different set of reforms will be along soon. 

Supporting the Bill are ten percent of GPs, who have already made impressive improvements in the care of the elderly, mentally ill and patients with chronic diseases by treating them closer to home.  Clearly what Lansley needs is an NHS chief executive who believes in the reforms and can win over the hearts and minds of the rightly sceptical and ‘reformed-out’ staff. Unfortunately for Lansley, that chief executive is David Nicholson.

Nicholson is a civil servant and supposedly limited by what he can say in public. He is also the most astute ‘politician’ in the Department of Health. As Lansley was trying to reassure the public and staff that the reforms were evolutionary and not the big top down reorganisation the Tories had promised not to inflict, Nicholson was merrily touring conferences telling everyone the reforms were ‘so big you could see them from space’ and only evolutionary in the sense that GPs will be going ‘from fish to bloke in two years.’ And Nicholson is right. The statutory, legal and bureaucratic implications of forcing GPs to take over commissioning responsibility as well as providing services are huge. And 40% of clinical commissioning groups have said they’re not ready to put their head in that particular noose.

Nicholson was angered by Lansley’s downplaying of the achievements of NHS managers under Labour and his crass decision to announce mass redundancies at Strategic Health Authorities (SHAs) and Primary Care Trusts just as Nicholson was trying to get the same managers on board to make £20 billion efficiency savings – the so-called Nicholson challenge. Senior Tories Stephen Dorrell and Oliver Letwin believe Nicholson is the only person who can deliver the savings and he strolled into the job of chief executive of the new NHS National Commissioning Board (NCB) with no apparent competition and well before the legislation has gone through.

Nicholson’s ability to bring a service in ‘on budget’ is admirable but he has overseen a top down enforcement culture in the NHS that failed to spot the horrors of Mid Staffs and is very unsupportive of NHS whistleblowers (Eyes passim). The over-controlling former communist party member just doesn’t trust GPs to do commissioning properly. And the NHS reforms are dead in the water without the belief of its chief executive that they will work.

In desperation, Lansley asked Blair’s favourite health secretary Alan Milburn – about the only politician who could match Nicholson in a cage fight – to be chair of the NCB. Milburn declined – ‘why the bloody hell would I want to do that?’ – and the NCB seems destined to comprise of cronies from the DH and SHAs. Nicholson even appears to have the ear of Clare Gerada, reform sceptic and chair of the Royal College of GPs. Gerada told the Health Service Journal: ‘Once we go to EU competition law and have any qualified provider, once we lift the cap on Foundation Trusts earning private income and lift GP practice boundaries, there is only one way forward: American-style health management organizations restricting access and an insurance model.’

When Gerada was asked if Nicholson supported her anti-Health Bill campaign she said: ‘I have a lot of people ringing me up in confidence, very senior people in high places who are anxious about the Health and Social Care Bill but can’t say it in public because they are frightened for their own jobs.’ Nicholson has no reason to be frightened – his job is far more secure than Lansley’s – and most NHS staff agree with his scepticism about the likely success of the reform programme. He could resign, but he sees himself as the not-so-secret saviour of the NHS. Whatever happens in the Lords, Nicholson will survive. But he needs to stop being so controlling and allow the one bit of the reforms that make sense – treating patients closer to home – to flourish.

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