“Lights. Camera. Action!” – Re Motion Picture Capital and standing for minority shareholders to bring unfair prejudice petitions
As the Rt Hon Jeremy Hunt MP says in his foreword, 'the report of the Mid Staffordshire NHS Foundation Trust Public Inquiry makes for horrifying reading'. Never have truer words been spoken. The Government Response (the Response) seeks to put this horror behind us and, in a constructive manner largely devoid of ministerial doublespeak, re-enshrine what Robert Frances QC rightly called the health and social care system's most essential duty - to protect patients.
The Response is heartening in that, with impressive candour, it makes clear that the health and care system in its entirety needs to listen, reflect and act to tackle the key challenges of culture and behaviour that the report highlights. The Government Response has at its core a five point plan which it is hoped will 'revolutionise' the care people receive. These points are:
Under the aegis of these laudatory goals the response goes on to explain and elucidate clear policies and procedures that will be put in place to see that these broad principles are achieved and that the shocking events of Mid Staffordshire are never allowed to happen again.
Perhaps the most depressing element to come out of the Mid Staffordshire NHS Foundation Trust Public Inquiry (the Inquiry) was the realisation that many of the failings identified were preventable. The Response seeks to address this by instituting a new system of oversight from top to bottom. At the top a Chief Inspector of Hospitals (the Chief Inspector) will be appointed by the Care Quality Commission (CQC) to, in the words of the Response, 'shine a powerful light on the culture of hospitals' and 'drive change through fundamental standards'. He will be supported in this by a new national ratings system which, it is said, will 'put the experience of patients at the centre of what the NHS does and the way in which its success is judged' and local commissioners whose task it will be to work with hospitals to identify and tackle poor care.
As a matter of policy the Response recognises that paperwork, box ticking and other administrative burdens deprive clinicians and managers of the time needed to deliver an excellent service, and the Response makes a commitment to reduce these burdens by at least one third. To ensure this occurs a single national hub - the Health and Social Care Information Centre - is to be duty-bound to seek to reduce the information burden on the service year on year.
Additionally, Professor Don Berwick will be working with the NHS Commissioning Board over the coming months to ensure that a robust safety culture and zero tolerance of avoidable harm becomes the touchstone of the NHS.
Detecting Problems Quickly
In addition to his role in seeking to prevent problems the Chief Inspector is also to be charged with making an assessment of every NHS hospitals’ performance in an effort to detect potential problems. He will be supported in this by expert inspectors, as opposed to the former use of generalist inspectors. It is hoped he will act as the 'nation's whistleblower' and that he will name providers where care is poor without fear or favour from politicians, institutional vested interests or loyalty to the system. His loyalty is to be to patients first and only.
Following the Chief Inspector's assessment, hospitals are be given clear ratings to assist in declaring and upholding the required standards of care provision. It is suggested that, in the interests of transparency, this rating could be as simple as 'outstanding', 'good', 'requiring improvement' or 'poor'; and that it will not be limited to an aggregated rating, but rather give a full picture of the service provided with individual ratings given on a departmental, specialty care group and condition- specific basis in addition to an overall rating.
Further to this, the CQC will, with the support of local Quality Surveillance Groups, work to ensure there are effective arrangements in place to identify rapidly those hospitals where there is a risk or reality of poor patient care. In doing so the CQC is to adopt a 'comply or explain' approach, whereby when good practice is identified following inspections, other hospitals which do not follow that practice will be expected to introduce it or explain their non-compliance. This review of best practice will also extend to complaints procedures, to ensure that issues, when raised, are heard, addressed and seen as vital information for improvement as opposed to managerial annoyances.
To support the inspections and assessments mentioned in the foregoing, the Response also raises the possibility of legal sanctions at a corporate level, where organisations massage figures or conceal the truth; and the imposition of a statutory duty of candour on providers to inform people if they believe that treatment has caused death or serious injury. Additionally, the Response serves to ban clauses intended to prevent public interest disclosures on issues such as patient safety and death rates.
Finally, it is worth noting that in line with the Response's acceptance that the whole health and social care system needs to heed the Mid Staffordshire NHS Foundation Trust Public Inquiry, an analogous position to the Chief Inspector, the Chief Inspector of Social Care, will be introduced to promote excellent care in care homes and local care services in due course.
Taking Action Promptly
To assist in allowing prompt action to be taken the CQC, working with National Institute for Health and Care Excellence (NICE), commissioners, professionals, patients and the public will draw up simpler fundamental standards intended to make explicit the basic standards below which care should never fall.
Where the Chief Inspector identifies poor care, the Response envisages a time limited failure regime. At the first stage, the Chief Inspector will require the hospital board to work with its commissioners to improve within a fixed time. At the second stage, if the hospital is unable to resolve its own problems, the CQC will call in Monitor or the NHS Trust Development Authority to take action. Finally, if the problems have not been resolved, the Chief Inspector will initiate a failure regime in which the Board could be suspended or the hospital put into administration.
In furtherance of the Chief Inspector's investigations, the CQC, the NHS Commissioning Board, Monitor and the NHS Trust Development Authority will be required to agree the data and methodology to be used for assessing hospitals. Providers will also be expected to publish annual Quality Accounts to demonstrate how well they are meeting these expectations.
Ensuring Robust Accountability
It is of course right to say that many of the failings identified in the Inquiry were caused or made worse by a lack of meaningful accountability. The Response makes clear that, where the Chief Inspector identifies criminally negligent practice, the CQC will refer the matter to the Health and Safety Executive to consider whether criminal prosecutions of providers or individuals are necessary.
Additionally, the General Medical Council (GMC), Nursing and Midwifery Council (NMC) and other regulators are to have what is called their 'outdated legislative framework' overhauled. It is envisaged this will be replaced with a single Act which will enable faster and more proactive action on individual professional failings.
Further, where managers have let down patients and the service through gross misconduct it will be possible to place them on a national barring list and prevent them from moving to new jobs in the NHS.
Overall, it is hoped the Response as a whole will resolve confusion as to roles and responsibilities and make clear who is responsible for failures.
Ensuring Staff are Trained and Motivated
In furtherance of a trained and motivated healthcare workforce, it is proposed that every student who seeks NHS funding for a nursing degree will have to first serve as a healthcare assistant for a year to promote frontline expertise. Further, healthcare assistants are to be regulated by a code of conduct and subject to minimum training, with a barring system for any who by virtue of their conduct prove unsuitable for the role.
Additionally, the NHS Leadership Academy is to initiate a programme of encouraging clinical professionals and those outside the NHS to take up managerial positions, with an elite fast-track programme for outsiders and MBA-style programmes for existing clinicians.
Moreover, to improve life-long care skills the NMC is to follow the GMC in introducing a programme of revalidation to ensure its members are up to date and fit to practise.
Finally, the Department of Health, Ministers and Civil Servants are to have, over the next four years, 'sustained and meaningful experience’ with frontline healthcare provision to help the Department reconnect with the patients it serves.
In conclusion, the Response is encouraging and it is hoped that, to quote Robert Francis QC, it will serve to, 'put patients where they are entitled to be - the first and foremost consideration of the system and everyone who works in it'.
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