Unaccountable accountants

More bad news is on its way for NHS chief David ‘no accountability’ Nicholson.  The report of the joint health overview and scrutiny committee (JHOSC) for six south west London councils into financial mismanagement at Croydon Primary Care Trust is imminent.  It will show how the buck is passed when financial disasters happen, and question what ‘grip’ Nicholson really has on the money.

When is an accountant not an accountant?  When he is not qualified.  This fact escaped Croydon’s director of finance Stephen O’Brien and chief executive Caroline Taylor (Eyes Passim) when they appointed former nightclub owner Mark Phillips as interim deputy finance director.  Under lax supervision and failure of both Deloitte and the Audit Commission, Phillips was able to report a £5 million surplus in the 2010/11 accounts when there was at least a £22m deficit.  Ernst and Young were called in by NHS London when Croydon insiders, including director of public health Dr Peter Brambleby, and managers from surrounding PCTs, raised concerns.

Ernst and Young’s inquiry cost the NHS £1m and went into considerable detail.  A summary with recommendations was published by NHS London and discussed at its board, but when JHOSC asked for authorship and for someone to come and explain it to them, both NHS London and Ernst and Young declined, each claiming it was the other’s report. In Nicholson’s NHS, no one has to be personally accountable. It’s always the system’s fault. The version of Ernst and Young’s report discussed at NHS London’s Board concluded that no-one was personally responsible for any failing, no-one gained personally, and no patient services were adversely affected.

Given that the last of these was not even in the terms of reference for Ernst & Young, and they had no epidemiologist or clinician on their team to test it, Brambleby asserted that none of these statements could be true and blew the whistle to then Secretary of State, Andrew Lansley, and Chief Medical Officer Dame Sally Davies.  He observed a systematic culture of dishonesty and bullying in the NHS, and cited personal experience from other posts (Eyes passim).  He also retracted the relevant chapters of his last two annual reports on the grounds that he could no longer trust the finance data on which they depended. This is unprecedented.  Lansley and Davies simply asked the SHA for its opinion and wrote back to state the matter investigated and closed. Whistle-blowers are not heeded in the NHS.

In Croydon, the accountable officers were particularly hard to call to account. The JHOSC was frustrated by non-appearances from Phillips, O’Brien and Taylor, as well as no-shows from PCT chair Toni Letts, PCT audit committee chair David Fitze, and NHS London’s director of finance Paul Baumann.  So where were they? Taylor had been promoted to run the North Central PCT cluster and O’Brien secured a post with a Trust in Essex.  Phillips was taken on by Baumann to be NHS London’s interim financial controller, before moving on to join Taylor. Baumann was promoted to Nicholson’s NHS Commissioning Board. The only serving NHS officer to appear before JHOSC was the SW London cluster chief executive, Ann Radmore, but she brought a lawyer along and refused the JHOSC access to any Croydon finance staff who had served under Phillips.  She has been promoted to run London’s Ambulance Service.

Croydon is one of London’s largest boroughs in terms of population and NHS budget.  The PCT scored above average in most performance indicators.  It had been entrusted with hosting the budget of London’s specialist services.  No-one took notice when former audit committee chair John Power (a former parachute regiment colonel with public and private finance experience) was pressured out for asking awkward questions.  Alarm bells failed to ring when Professional Executive Committee chair, Dr Ravi Sondhi, absconded with money borrowed without authorisation from the out-of-hours service (and is now suspended by the GMC).  If PCTs like Croydon can fail to report truthfully up the line, what assurance is there that Nicholson has any grip? The JHOSC report will make uncomfortable reading for the local population and for Nicholson, who recently mislead the Public Accounts Committee over the Gary Walker case (Eyes passim). Walker raised safety concerns as a whistleblower in a letter to Nicholson, Nicholson told PAC he didn’t. When the letter was shown to the press, Nicholson retracted. His next appearance before PAC should be revealing. But Nicholson can always claim he knew nothing about Croydon. It’s always the system’s fault.

Unaccountable accountants

More bad news is on its way for NHS chief David ‘no accountability’ Nicholson.  The report of the joint health overview and scrutiny committee (JHOSC) for six south west London councils into financial mismanagement at Croydon Primary Care Trust is imminent.  It will show how the buck is passed when financial disasters happen, and question what ‘grip’ Nicholson really has on the money.

When is an accountant not an accountant?  When he is not qualified.  This fact escaped Croydon’s director of finance Stephen O’Brien and chief executive Caroline Taylor (Eyes Passim) when they appointed former nightclub owner Mark Phillips as interim deputy finance director.  Under lax supervision and failure of both Deloitte and the Audit Commission, Phillips was able to report a £5 million surplus in the 2010/11 accounts when there was at least a £22m deficit.  Ernst and Young were called in by NHS London when Croydon insiders, including director of public health Dr Peter Brambleby, and managers from surrounding PCTs, raised concerns.

Ernst and Young’s inquiry cost the NHS £1m and went into considerable detail.  A summary with recommendations was published by NHS London and discussed at its board, but when JHOSC asked for authorship and for someone to come and explain it to them, both NHS London and Ernst and Young declined, each claiming it was the other’s report. In Nicholson’s NHS, no one has to be personally accountable. It’s always the system’s fault. The version of Ernst and Young’s report discussed at NHS London’s Board concluded that no-one was personally responsible for any failing, no-one gained personally, and no patient services were adversely affected.

Given that the last of these was not even in the terms of reference for Ernst & Young, and they had no epidemiologist or clinician on their team to test it, Brambleby asserted that none of these statements could be true and blew the whistle to then Secretary of State, Andrew Lansley, and Chief Medical Officer Dame Sally Davies.  He observed a systematic culture of dishonesty and bullying in the NHS, and cited personal experience from other posts (Eyes passim).  He also retracted the relevant chapters of his last two annual reports on the grounds that he could no longer trust the finance data on which they depended. This is unprecedented.  Lansley and Davies simply asked the SHA for its opinion and wrote back to state the matter investigated and closed. Whistle-blowers are not heeded in the NHS.

In Croydon, the accountable officers were particularly hard to call to account. The JHOSC was frustrated by non-appearances from Phillips, O’Brien and Taylor, as well as no-shows from PCT chair Toni Letts, PCT audit committee chair David Fitze, and NHS London’s director of finance Paul Baumann.  So where were they? Taylor had been promoted to run the North Central PCT cluster and O’Brien secured a post with a Trust in Essex.  Phillips was taken on by Baumann to be NHS London’s interim financial controller, before moving on to join Taylor. Baumann was promoted to Nicholson’s NHS Commissioning Board. The only serving NHS officer to appear before JHOSC was the SW London cluster chief executive, Ann Radmore, but she brought a lawyer along and refused the JHOSC access to any Croydon finance staff who had served under Phillips.  She has been promoted to run London’s Ambulance Service.

Croydon is one of London’s largest boroughs in terms of population and NHS budget.  The PCT scored above average in most performance indicators.  It had been entrusted with hosting the budget of London’s specialist services.  No-one took notice when former audit committee chair John Power (a former parachute regiment colonel with public and private finance experience) was pressured out for asking awkward questions.  Alarm bells failed to ring when Professional Executive Committee chair, Dr Ravi Sondhi, absconded with money borrowed without authorisation from the out-of-hours service (and is now suspended by the GMC).  If PCTs like Croydon can fail to report truthfully up the line, what assurance is there that Nicholson has any grip? The JHOSC report will make uncomfortable reading for the local population and for Nicholson, who recently mislead the Public Accounts Committee over the Gary Walker case (Eyes passim). Walker raised safety concerns as a whistleblower in a letter to Nicholson, Nicholson told PAC he didn’t. When the letter was shown to the press, Nicholson retracted. His next appearance before PAC should be revealing. But Nicholson can always claim he knew nothing about Croydon. It’s always the system’s fault.

The dead Samaritans

ON 5 March, NHS chief executive Sir David “no accountability” Nicholson told the Commons health select committee that he always takes the concerns of NHS whistleblowers seriously and has always acted appropriately to investigate them when brought to his attention. Strange then that he should promote Dame Barbara Hakin to be his interim deputy when she is the subject of an ongoing GMC investigation triggered by the Eye (see Shoot the Messenger, Eye 1292) to ascertain whether she acted appropriately on the whistleblowing concerns of former Lincoln hospitals chief executive Gary Walker.

Walker raised concerns that enforced targets for routine care were harming emergency admissions to both Hakin and Nicholson, and was later sacked. Walker is due to reveal all to the health select committee on 19 March; but in appointing Hakin, Nicholson is putting two fingers up to whistleblowers everywhere in the NHS, safe in the knowledge that the GMC moves at the speed of a glacier, usually bottles important cases and that Hakin can simply remove her name from the medical register at any time to avoid accountability.

Nicholson claims he did not know that Walker had been gagged until recently, despite a whole Eye column being devoted to it in September 2012 (Hint – It was titled ‘The Mother of All Gags’). He also claims that he did not know about the high death rates at Mid Staffordshire prior to the Healthcare Commission report in 2009, even though they had been significantly high from 2001-02 to 2007-08, and published in the Torygraph. The Department of Health is either wilfully blind or wilfully incompetent.

As no one in the DH was apparently aware of these problems or indeed able to read, here is a pretty picture. It shows how trusts can disguise high death rates by recoding those that die as palliative care (code Z51.5). They are then ‘expected to die’ and disappear from the published death rates.

The graph clearly shows, even to Nicholson’s untrained eye, that while the rest of the NHS adjusted their palliative care recoding modestly (dark blue line, David), the hospitals in his former parish of West Midlands – Mid Staffs (red), Walsall (green) and George Elliot (light blue with circles David), all dramatically increased their palliative care coding. Was there a genuine, massive increase in the admission of terminally ill patients? Was this a correction of previous massive coding errors?  Or where they trying to hide poor care and high death rates? I think we should be told

Daily Mail journalists do at least read the Eye and have done a very proficient job of repackaging all our whistleblowing stories (Gary Walker, Raj Mattu and last week Ed Jesudason). The Mail rejoiced with the headline “Victory for NHS Whistleblowers” as Jeremy Hunt announced an end to gagging clauses.  Fine work from the Mail, and a campaign started long ago by the Eye, but Hunt’s stunt has been done before. In 1999 a Health Service Circular prohibited gagging clauses in compromise agreements.  The circular cited “employees too scared to speak up” and “powers that be… doing nothing about it”.  Fast forward to early 2012 and Nicholson wrote to all hospitals referring to a “small number of instances” where confidentiality clauses had been used. Will Hunt persuade local NHS managers desperate to avoid scandal to uphold the law? Lawyers will find easy ways around this, and no mention has been made of whether those already gagged are now free to speak up without getting the kind of unpleasant legal threat dished out to Walker.

Denial is a strategy beloved by Nicholson and his underlings. On 8 March 2013, Alder Hey told the Eye that it had “never issued a ‘gagging clause'”. Unfortunately the Trust may have forgotten that it has provided a compromise agreement to the Eye under freedom of information legislation, and the Trust confirmed that one corresponds to Mr Marco Pozzi a senior paediatric cardiac surgeon who gave evidence to the Bristol Inquiry.  The Eye had received information that a sum of £156,000 was paid for the silence of Mr Pozzi from a source (not Mr Pozzi) within the trust.  That agreement contains the following clause, “[Mr Marco Pozzi] shall not at any time, whether directly or indirectly, make, publish or otherwise communicate any adverse, disparaging or derogatory statements or announcements… [this agreement] prohibits all communications with Press, TV, radio and in any other media.” That looks suspiciously like a gagging order.

Alder Hey has also provided the Eye with mass redundancy agreements as part of disclosure to the Information Tribunal, which similarly contain an identical gagging clause (drafted by the same firm of solicitors).  One has been applied to Dr Alan Phillips, the trust psychologist who wrote the highly critical report into stress in the theatres department (see below).

The Eye has been unsuccessful in getting Alder Hey to investigate allegations by its former paediatric surgeon Ed Jesudason that surgeons were carrying out procedures on vulnerable children that were unnecessary and experimental, without any research approval and without informed consent or proper audit.

The Eye asked specifically for data about stomach surgery called fundoplacation with pyloroplasty and vagotomy carried out by surgeon Mr Matt Jones.  The data should be easily accessible through the Payment By Results system, together with morbidity, complications and outcome data. No response as yet.

After much effort, the Eye did get hold of the Phillips report, a victory acknowledged even by the Mail. In November 2010, Dr Alan Phillips the trust’s psychologist, studied the culture in the operating theatres and found “extremely high levels of sickness absence” and “staff reporting ‘coercion’, ‘bullying’, ‘emotional blackmail’ from NHS managers, Dr Phillips concluded: “As well as concerns expressed for patient safety, the human cost, as observed in the participants’ levels of distress, the quality of their work/life balance; the impact on their families and the quality of work is incalculable, as is the potential reputational cost to the trust, if changes to the existing status quo are not seriously considered.”

The full report was kept a dirty trust secret until the Eye won at the Information Tribunal.  Even theatre staff had been denied their own report, and the trust had prepared a doctored two page summary removing any criticism of NHS managers.  Dr Phillips had refused to sign the doctored version and left the trust under retirement and yes…  a gagging clause.  These factors might have influenced the Information Judge.

Whistleblower Ed Jesudason refused to take a gag but lost his case in the High Court after admitting passing information to the Eye. The Public Interest Disclosure Act is supposed to protect whistleblowers who share serious concerns with the media in good faith, but clearly not in the court of Justice Haddon-Cave. On December 17 2012, he entered Manchester High Court  and waved a copy of the Eye – concerned that some of the material appearing before the trial would prejudice him.  This showed the pisspoor attitude of the judiciary to the press and necessary exposure when other agencies have done nothing, been misled or at worse covered-up.  Jesudason resigned, with costs against him that have forced him to sell his house. His marriage has ended and he is struggling to find work as a surgeon. But at least he is not gagged.

The Times Thunderer Column, Friday March 15th 2013

Time to celebrate whistleblowing

The announcement by health secretary Jeremy Hunt that gagging of whistleblowers is to be outlawed caused more wry smiles than celebrations in the NHS. Such gagging clauses were made illegal by the Public Interest Disclosure Act (PIDA) in 1998, and very specifically in a Department of Health directive a year later. Assorted health secretaries have reminded the NHS that silencing legitimate safety concerns is illegal, but local managers desperate to avoid scandal have kept using them, in agreements drawn up by aggressive, NHS-funded lawyers. Yet no-one has ever been prosecuted for gagging whistleblowers. So why should Hunt succeed?

I applaud him for trying, but time is not on his side. On April 1^st, he will be completely powerless to act as control of the NHS is handed to Sir David Nicholson’s ‘independent’ Commissioning Board. Hunt’s plan needs a strengthening of legislation to succeed, but would still only apply to gags that are accompanied by payments signed off by the treasury. Locally agreed gags will remain hidden from view.

Of course, whistleblowers are under no obligation to accept a gag, or a silencing payment, but in over twenty years of supporting them, those who take that route have already lost their jobs and future employment prospects, and the toll on their health and personal life has been huge. Some need the money simply to live and avoid eviction. The NHS has developed countless ways of punishing whistleblowers. Cutting secretarial help, teaching and research budgets, blocking appointments and “briefing against” informally. Whistleblowers are said to have “attitude problems”, be obsessed with historic issues and not prepared to move on. Notes are trawled to find an error the whistleblower has made and this is used as the official reason for action against him or her. Allegations of mental illness are common and may be self-fulfilling as a whistleblower buckles under the stress.

The trust may refuse to disclose documents the whistleblower needs to support the case, and they breach the data protection and freedom of information acts with impunity. Reprisals are taken against supportive colleagues, and the whistleblower may be threatened. Dr Peter Brambleby, ex-director of public health for Norwich PCT, was told he might “end up in the woods like David Kelly”. Whistleblowers who are brave enough to keep going usually end up at an employment tribunal and, even if they win and refuse a gag payment, they don’t get their costs paid and may end up £200,000 or more out of pocket.

Going to the press is the best chance for whistleblowers to get their concerns taken seriously, but it is career suicide to do so openly, as employment law trumps the scant protection of PIDA. Whistleblowers may be threatened by trust lawyers with libel suits if concerns that could affect the corporate reputation of a trust are to go public. The Department of Health is hopeless, refusing to intervene in ‘a local employment matter.’ And the regulators do not respond rapidly enough, if at all. Indeed, the General Medical Council is more likely to investigate vexatious complaints against a whistleblower than the concerns he has raised.

Trusts may be forced to arrange their own ‘independent’ investigations by, say, a Royal College or a small company run by former NHS managers, but they usually control the terms of any inquiry and how much of its findings are made public, often in redacted form if at all. Jeremy Hunt’s announcement is a small step in the right direction, but there is a long way to go to make the NHS safe for whistleblowers at patients.

We should start be celebrating whistleblowers. Steve Bolsin, the heroic anaesthetist who exposed the Bristol heart scandal, should be flown back from Australia and given an award. Dr Kim Holt, the brave Baby Peter whistleblower who refused to take a gag, should be on the NHS Commissioning Board. And spare a though for Professor Ed Jesudason, a brilliant paediatric surgeon recently forced out of the NHS for raising concerns at Alder Hey hospital. Whistleblowers don’t want sympathy, they want a better NHS for patients and an end to bullying. And they want their jobs back.

Nicholson Stays, Jesudason goes

David Nicholson should resign as chief executive of the NHS over the Mid Staffordshire scandal, but he won’t. Charlotte Leslie, the North Bristol Tory MP, has proposed an early day motion calling for him to go, with cross part support, but he won’t budge. The scandal happened under Labour’s watch, but the government owe Nicholson for keeping a handle on the money during Andrew Lansley’s disastrous health bill, and the next few years could be far worse. The market regulator, Monitor, has recommended Mid Staffs goes into administration, 25 more acute hospitals are on the verge of bankruptcy and up to a quarter of Clinical Commissioning Groups may not be financially viable when they ‘go live’ on April 1. The combination of a bust trust and a broke CCG in the same area could quickly lead to another Mid Staffs. Can Nicholson ‘keep a grip’ on it before the election?

Just as problematic for the government is that the vast majority of NHS staff are not ‘engaged’ in its reform program, and many actively oppose it. Section 75 of the Health Act is supposed to explain how procurement should work, saying commissioning groups must “treat providers equally and in a non-discriminatory way, including by not treating a provider, or type of provider, more favourably than any other provider, in particular on the basis of ownership”. In English, this could reduce the NHS to a franchise which licenses private interests to dominate the NHS. Monitor could in theory stop this, but it is run by market fundamentalists, so don’t hold your breath.

Nicholson, a former Communist Party member, is the most powerful person in the NHS and is seen by some on the left as the best chance of stopping the fragmentation of services from market driven reforms. But if he was true to his roots, he would have resigned over Lansley’s bill and publically explained why it is so bad for the NHS. This might even have killed it off. But despite briefing against it initially, he decided to help out the government, force through the reforms on a deeply resistant workforce and walk into the top job on the NHS Commissioning Board (NHSCB) unopposed.

The fact that the NHS CB has given unanimous public backing to Nicholson demonstrates how unaccountable and lacking in insight this unelected uber-quango is. Continuous political interference in the NHS has done it untold damage over the years, but the pretence of setting up an ‘independent’ board appointed by politicians to ‘depoliticize’ the NHS and serve patients is simply deception. Local doctors, nurses and managers need to be held to account at Mid Staffs, as do the regulators, commissioners and Royal Colleges that failed patients. But the overall responsibility for a catastrophic system failure that went on for so long and resulted in nearly 1200 deaths that were clearly flagged up by published death rates rests squarely with Labour and the Department of Health. Nicholson going will clearly not, alone, make the NHS safer for patients. But his staying will simply embed the same culture and politically-driven enforcement that allowed the disaster to go on for so long before action was taken.

Nicholson has now told the Public Accounts Committee three times that the NHS does not have a problem with whistleblowing. It would be hard to be more wrong, as readers of Shoot the Messenger (Eyes passim) will attest. Many of the Eye’s stories have belatedly become headline news across the media, but spare a thought for Professor Ed Jesudason, a brilliant paediatric surgeon and researcher who has never had a patient complaint against him, who blew the whistle on his colleagues at Alder Hey hospital (Eyes  passim), refused to take a gag and has now resigned with his NHS career in tatters.

Jesudason raised concerns about many issues. Fellow surgeons were doing procedures on vulnerable children that were unnecessary and experimental, without any research approval or informed consent. Senior surgeons were complaining of severe stress and burnout due to workload and this was accompanied by eyesight and other health concerns. Children were at risk because major errors went unreported and even those that were discussed went uncirculated as minutes. The senior surgeons and Clinical Director showed no urgency to have better scrutiny so errors repeated themselves. There was a culture of widespread and severe bullying by stressed senior surgeons. And then two colleagues fabricated a suicide claim against a whistleblowing colleague, leading to his suspension. As Jesudason puts it: ‘This was a point where it was clear we were dealing not with misfeasance but clear malfeasance.’ So why did he lose his case in the High Court? Read Eye next.