Dear Dr Hammond and Mr Bousfield

 

Thank you for your emails of 2 and 6 December.

 

As you know your request for a review of our decision to close your complaint about Dr Hakin has been passed to the Rule 12 team for consideration.

 

I should explain that we have the power to review investigation decisions under Rule 12 of the General Medical Council (Fitness to Practise) Rules. This empowers the Registrar, or an Assistant Registrar through delegated authority, to review all or part of certain specified decisions.

 

There are two alternative grounds for a review. Firstly if the Registrar has reason to believe that the original decision “may be materially flawed (for any reason) wholly or partly”. Secondly if he has reason to believe that there is new information which may have led, wholly or partly, to a different decision.

 

That said, even if the Registrar has reason to believe that a decision taken may be materially flawed and/or that there is new information which may have led to a different decision, a review can only be undertaken if the Registrar is also of the view that a review is necessary for the protection of the public; necessary for the prevention of injustice to the practitioner; or otherwise necessary in the public interest.

 

We will consider all the information that you have provided us to date to determine if there are grounds for us to formally review the decision. I should advise you that this process takes some time but please be assured that we will write to you as soon as a decision has been reached.

 

Yours sincerely

 

Hard Truths about the NHS

 

‘Hard Truths’, the government’s response to the Mid-Staffordshire scandal contains three fundamental omissions. It doesn’t legally require NHS staff to tell the truth. It doesn’t set out legally enforceable safe staffing levels for the NHS. And it doesn’t tell you what to do if you turn up on a ward or care home to find your mother caked in faeces and at serious risk of harm.

 

A legal duty of candour for staff is essential to protect whistleblowers and to give them the courage to speak up knowing they are immediately legally protected and immune to gagging threats (rather than trying to prove they have been victimised for speaking out under the ineffectual Public Interest Disclosure Act). It would also, under Robert Francis’ recommendations, have been a crime for any NHS employee (including managers) to obstruct or suppress whistleblowers and to cover up harm. Instead, the government has decided that NHS institutions must give a corporate view of the truth about harm, doubtless after closing ranks and consulting their lawyers, which is pretty much what happens at the moment. The government also places unwarranted faith in the regulators (NMC, GMC and CQC) to police the NHS, pick up harm early and protect patients. Their track record thus far has been lamentable.

 

Francis did not himself recommend legally enforced safe staffing levels in the NHS, but he later regretted this omission as the evidence mounts that harm in the NHS occurs when staffing levels fall below a critical level (Eyes passim). Different wards will clearly have different demands at different times, but NICE needs to present the best evidence on what safe staffing levels are in a given situation, and the NHS should be legally obliged to enforce these. Instead, staffing levels will be published on a website somewhere, to enable the demented and frail elderly to shop around for the safest care, and the CQC to spot trouble.

 

Many of the Francis recommendations, and the government’s response to them, are identical to those that followed the Bristol heart scandal. The only difference is that the Kennedy inquiry in 2001 was followed by the most unprecedented increase in NHS funding ever, and Labour fluffed this golden opportunity to rebuild the NHS around quality and safety. The NHS is now facing the biggest financial slowdown in its history and the largest increase in demand. What hope is there of making it safe without spending every available penny on properly staffing and training the frontline (rather than bankrolling the most unnecessary, destabilising and divisive set of ‘reforms’ ever? And NHS England is losing a further £0.9 billion to social care.

 

The government will introduce a new law of wilful neglect, so relatives can spend years in court after their loved one’s death trying to prove it. At present, well over 90% of medical negligence cases find in favour of the clinician so this route seems unlikely to provide anything more than a gravy train for lawyers. As for what to do if you think the poor care your relative is getting is currently endangering a life, the government is silent. The name of a responsible clinician (doctor and/or nurse) should soon be above the bed of every inpatient, so that would be a good place to start. If the staff can’t or won’t put things right, you could phone the CQC hotline (03000 61 61 61) or take a photo and march down to the chief executive’s office.

 

You could also tweet the photo, and e mail it with your concerns to the trust board, the CQC, Monitor, the GMC, the NMC, your MP, your GP, the CCG, NHS England, local Healthwatch, PALS, the Health and Safety Executive, Jeremy Hunt, Andy Burnham and local and national media. If you want to try to complain by phone, you have a choice between the NHS Complaints Advocacy Helpline 0300 330 5454, NHS England Complaints Helpine 0300 311 2233 and the Ombudsman complaints helpline 0345 015 4033. All are weekday working hours only. And there are huge backlogs.

 

This sounds extreme until you remember Mid Staffs. An old man forced to stay on a commode for 55 minutes wearing only a pyjama top; a woman whose legs were “red raw” because of the effect of her uncleaned faeces; piles of soiled sheets and vomit bowls left at the end of beds, a woman arrived at 10am to find her 96-yearold mother-in-law “completely naked… and covered with faeces… It was in her hair, her nails, her hands and on all the cot sides… it was literally everywhere and it was dried.” Another woman who found her mother with faeces under her nails asked for them to be cut, but was told that it was “not in the nurses’ remit to cut patients’ nails”. If this happens again, dial 999 and insist your loved one is moved to a place of safety. Such negligent care is, in the end, a medical emergency and a safe-guarding issue.

 

BELOW IS THE GUIDANCE FROM THE CQC ABOUT WHAT TO DO IN THESE CIRCUMSTANCES

CQC’s advice on what to do if someone is at risk of harm in care setting

If possible, raise your concern with provider staff and/or local and more senior managers, through face to face contact and then formal procedures as needed in the circumstances.  Providers have internal procedures by which service users/patients, their families friends and carers, the public and staff can raise concerns.

 

If your concern relates to a particularly urgent situation involving immediate avoidable harm and/or abuse, and for whatever reason it is not appropriate to approach staff at the provider for help (or you have done so but still feel someone is at serious risk), then contact the relevant emergency service(s).

 

If you are concerned about abuse or alleged abuse but it is not appropriate to call in the emergency services or contact the provider or its staff, raise your concerns with the relevant local authority safeguarding team, for adults or children as relevant.

 

If there are reasons why a person feels unable to take the actions above, they can contact CQC by telephone (03000 61 61 61), listen to the opening message, and select the appropriate service (option 2) to immediately be put through to our safety escalation team.  They can also email us at Enquiries@cqc.org.uk , contact us via our online form or write to us at CQC National Customer Service Centre, Citygate, Gallowgate, Newcastle upon Tyne NE1 4PA. Please note however that our telephone opening hours are Monday to Friday between 8.30 am and 5.30 pm.

 

Some of the reasons that people contact CQC are because they:

• are a patient, carer, friend or member of the public who wants to share concerns anonymously
• are an employee, volunteer or contractor to the provider and want to act as a ‘whistleblower’ under the Public Interest Disclosure Act

 

In general, please contact CQC with any information about a health or care service that you want to share (good or bad) – this information can then be used to inform the judgements CQC make about providers.

 

Do CQC produce simple guidance for patients/carers to follow in such circumstances (often at nights and weekends).

Our website has a section for members of the public, accessed via a clickable tab. There is information about our telephone number, email address and an on-line form for people who want to express a concern. The public can also find our telephone number on posters and leaflets left in NHS services, in Trust Literature and via directory enquiries.  The website also has links to a ‘share your experience’ form, for people to use to pass on any information about a regulated service that they want to share with us (good or bad). Our safety escalation team can support and advise people who have urgent concerns about a service. Anyone contacting CQC via our National number (03000 61 61 61) outside of normal operating hours are advised to contact the Police or Local Social Services Duty Team if they suspect someone is at immediate risk of harm.

 

CQC phone-line operating hours for registering concerns

Opening hours are Monday to Friday between 8.30 am and 5.30 pm.

 

Should the police or emergency services be informed to take a patient who is dehydrated/starved/soiled/infected to a place of safety?

People should use the provider’s internal procedures rather than call the emergency services if at all possible in urgent situations. Calling the emergency services is an extreme measure and should only be considered if this is in the best interests of the patient and would not cause further harm. However if internal processes fail or cannot be used for some reason then they may wish to use the emergency services as a last resort.

 

 

Paul Bate

Executive Director of Strategy & Intelligence

Care Quality Commission

Finsbury Tower

103-105 Bunhill Row

London EC1Y 8TG

 

This evidence has also been submitted to the Registrar of the GMC requesting that the decision not to hold a public hearing into the behaviour of Dr Hakin be reconsidered. This application for a review of the case examiners’ decision is being dealt with by  Mr John Barnard at the GMC.

 

Submission to HSC for GMC Annual Review December 10 from Dr Phil Hammond and Andrew Bousfield

Bully for Hakin

Bullying is the cancer at the heart of the NHS. It stops staff, patients and relatives from raising concerns about their care, it destroys many that do and it allows political directives to be enforced on the frontline even when they’re unsafe or untrue, just to keep Downing Street happy. The only time politicians see the light is when they’re forced to in response to a disastrous public inquiry. On 6 February, David Cameron said of the Francis Report into Mid Staffordshire hospital; ‘You can identify in the report three fundamental problems with the culture of our National Health Service. First, a focus on finance and figures at the expense of patient care. He says that explicitly. This was underpinned by a pre-occupation with a narrow set of top-down targets pursued to the exclusion of patient safety or listening to what patients, relatives – and indeed many staff – were saying.’

These were precisely the reasons that MD and Eye journalist Andrew Bousfield referred Dame Barbara Hakin, now deputy chief executive of NHS England, to the General Medical Council. We alleged that she oversaw a ‘hit your targets or else’ policy when she was chief executive of the former East Midlands Strategic Health Authority, despite concerns raised by Gary Walker, then chief executive of United Lincolnshire NHS Trust, that this – combined with an unprecedented rise in demand – was putting patients at risk of harm. Indeed, it is alleged that one died and another had an avoidable amputation. Walker also raised his concerns in detail to NHS chief executive Sir David Nicholson and asked to be protected as an NHS whistleblower. He was subsequently sacked for ‘swearing’, gagged from voicing his concerns to anyone and £500,000 of public money was spent getting rid of him. Surely somebody has to be accountable for all this?

It’s certainly not Hakin, at least not according to the GMC who, just 15 months after we referred her, have decided that anything that she may have said or done does not bring into question her fitness to practice, nor the safety of patients, and she can carry on as usual. The GMC found “some support” for the core allegation, that Hakin told Walker the four hour accident and emergency and 18 week waiting time targets must be met despite his concerns that to do so could compromise patient safety. In March 2009 Hakin sent an e mail to all East Midlands chief executives stating ‘I need to make it very clear that I expect you personally to ensure that your organisations deliver 100% for the next three weeks…. We cannot afford even one day when one single organisation falters.’ Whether this constitutes bullying is beside the point. The Francis inquiry found such an approach is very unsafe and puts patients at risk. And Walker was telling her precisely that.

The GMC accepted Hakin’s argument that ‘effective and suitable chief executives ensure patient safety whilst meeting targets and that she did not bully or harass Mr Walker… Safety and targets are inextricably linked and the complaint is based on a false dichotomy between the two.” The targets themselves make some sense – no one wants to wait more than 4 hours in casualty or 18 weeks for an operation – but healthcare is very complex and dangerous, especially when there is overcrowding, and even Sir David Nicholson has recognized the dangers of ‘hitting the target and missing the point.’ A ‘100% insistence’ is particularly dangerous, and creates a climate of fear. Francis found at Mid Staffs that the fear of breached targets created bullying in A&E, and an “emergency assessment” room where “breached patients” were stuffed and suffered. How can the GMC be so misinformed?

MD asked the GMC who their independent experts were (they’re not saying) and to forward Hakin’s evidence (not allowed, even though passages in the judgement are strongly disputed by Walker). MD has asked Hakin for her evidence (no reply yet). MD has asked the GMC what their definition of bullying is (yet to be provided) and whether they considered the evidence of Francis on the dangers of enforced targets (they hadn’t). They also hadn’t considered evidence from the urgent investigation of ULHT by Sir Bruce Keogh triggered by consistently high mortality rates after Walker was sacked. In June 2013, ULHT was rated red for MRSA infections and clinical negligence payments. It had 12 ‘never events’ (severe harm to patients that should never occur) since 2009. 8 out of 13 mortality indicators were ‘outside the expected range’ with severe concerns about emergency care. There were serious concerns about fluid balance monitoring, delayed treatment, poor documentation, palliative care, failure to spot deteriorating patients, risks of falls and patients not being properly reviewed after operations. On a ‘patients with cancer’ survey, 22 of 58 responses were ranked in the bottom 20% in the NHS whilst only 2 were in the top 20%. ‘The main negative focus relates to overall care and care and treatment for inpatients’.

There is much else besides to show not just a hospital now in crisis, but a crisis predicted by Walker. Patients have suffered severe harm and deaths at ULHT that would have been avoided with proper standards of care. The GMC’s response? “The GMC (whilst aware of the recent publication of the Keogh Review) is unclear what, if anything, could be added at this late stage in the investigation”. The GMC also rejected key parts of Walker’s evidence. Findings of an Employment Tribunal Judge determined Walker had made protected disclosures regarding patient safety to Hakin. The Parliamentary Health Select Committee also found the NHS was wrong to attempt to sue Walker for raising ‘genuine patient safety concerns’. The GMC claim that they were restricted by a gagging order and confidentiality clause in examining the matter. Yet the GMC has powerful legal privileges that extend to obtaining this information. In any case, the gagging order was waived by the NHS and Secretary of State for Health in March 2013.

The GMC’s decision is puzzling but unsurprising. No-one at the top of the NHS is ever accountable for anything. They are only ever carrying out the orders of politicians as interpreted by civil servants. If you try to tell them it’s putting patients at risk, you’re told to hit the targets or else. Walker has ample evidence to back up his claims and his and Hakin’s evidence need to be tested fairly in public. In MD’s view, the process of the GMC investigation was manifestly unfair and proceedurally unsound (no equal and full disclosure of the evidence, relevant evidence not considered fairly or rejected, and a breach of the GMC’s duty to protect the public). ULHT is now one of the most dangerous trusts in the country and has had 9 CEOs in 11 years. Could the two be related? Don’t ask the GMC. Last week, police were called into Colchester General hospital, another on the Keogh special measures list, following allegations that staff were bullied into falsifying cancer care records to meet targets. Move on. Nothing to worry about here. They were only following orders. Over two years ago, MD reported the medical director of Great Ormond Street Hospital to the GMC for failing to act on the concerns of Baby Peter whistleblower Dr Kim Holt. They are apparently still investigating, hampered by the lack of an independent expert. David Prior, chair of the CQC, recently berated doctors for not blowing the whistle in the NHS but, having done it for 21 years and seen the cast of brilliant, brave people destroyed in the process – blackballed, smeared and gagged by the NHS and not protected by the law or regulators – it’s hard to see why anyone would be mad enough to do it.

Simon Says Yes

And so Simon Stevens, the global president of an American private healthcare firm, is to be chief executive of NHS England. Stevens is currently President of UnitedHealth’s Global Health division. The American Association for Justice – an international coalition of attorneys and law professors promoting a fair and effective justice system – ranked UnitedHealth as the eighth worst insurance company in the US. ‘Plagued by accusations that its greed has endangered patients. Physicians report that reimbursement rates are so low and delayed by the company that patient health is compromised. Money that should have been spent on medical treatment for policyholders has instead gone to the company’s former CEO, who faced criminal and civil charges for backdating stock options’1 One of Steven’s many challenges will be to prove the NHS is not going to be carved up for corporate profit. He has to be trusted to act in the best interests of patients.

UnitedHealth UK could certainly do with a boost. It recorded a £8.2m loss and a 27 per cent fall in turnover in 2012 – its eleventh loss-making year in a row. UnitedHealth Group is set to wind up its loss-making UK arm and ‘shift staff into another subsidiary with a more pan-European focus’. The Heath and Social Care Act certainly gives the private sector more opportunity to bid for NHS contracts, and with their corporate muscle they stand a good chance of winning them. But as UnitedHealth and others have found, there’s precious little profit in the NHS at the moment. Stevens knows this, and has voluntarily taken a 10% cut in the NHS CEO salary to £189,900.

Stevens also knows the NHS well. He was a Labour councillor, spent nine years working in the NHS and in 1997 became Frank Dobson’s and then Alan Milburn’s chief advisor, before becoming Blair’s health policy director. Stevens was one of the authors of Labour’s NHS Plan, which was accompanied by a huge increase in NHS funding. There were some notable improvements – huge falls in waiting times for treatment, improved performance by A&E units, better outcomes for patients with cancer and heart disease – but there were also huge missed opportunities. Productivity hardly budged for all the extra money, scandals passed unnoticed, the promised IT system that would link up the entire NHS and give patients control over their records never materialised, and vital reorganisations of specialist care into fewer, safer, better-resourced centres didn’t happen.

MD met Stevens when he was Dobson’s adviser to discuss the Bristol heart scandal. The fact that child heart surgery still hasn’t been safely reorganized 16 years on is deeply troubling, and the NHS is only now starting to publish outcomes and patient experiences to prove which services do more good than harm and to guide patients where to go (should they wish to travel).

Stevens’ biggest challenge will be to end the culture of bullying, blame and fear in the NHS. This will not be easy in the run in to an election, with Hunt already accused of tweet-libel by Burnham and Burnham threatening to sue. This week, Professor Steven Bolsin was finally honoured by the Royal College of Anaesthetists for his courageous whistleblowing in Bristol over 20 years ago. Meanwhile, the tribunal of whistleblower Dr Raj Mattu v University Hospitals of Coventry & Warwickshre NHS Trust (Eyes passim), looks set to become the most protracted, divisive and expensive in NHS history. Whistleblowing Alder Hey surgeon Ed Jesudason (Eyes passim ) has sent his evidence to the Public Accounts Committee and the CQC, and whistleblowing Walsall paediatrician David Drew (Eyes passim ) is publishing a truly shocking book to get his story out.

These doctors are not mad, just brave people who tried to speak the truth to power about patient safety and had their NHS careers destroyed. The Nursing Times has started a brilliant Speak Out Safely campaign to support frontline whistleblowers but less than 50 Trusts and CCGs have signed up to it. Stevens knows that the chief executive of NHS England has surprisingly little power to influence care on the ground. But he must try to ensure those of the front line – patients, carers and staff – feel safe to speak up, stop harm and finally make the NHS transparent about its failures, as well as its successes.

1 http://www.justice.org/cps/rde/xbcr/justice/AAJ_Report_TenWorstInsuranceCompanies_FINAL.pdf