Has the Supreme Court opened the gates to costs being awarded against regulators?
Governments have long relied on public inquiries to scrutinise the causes of systemic failings affecting the public. Following revelations of sub-standard care at Mid Staffordshire NHS Foundation Trust, a public inquiry was almost inevitable.
Robert Francis QC spent more than a year taking evidence on the causes of the failings, hearing from 250 witnesses and receiving more than a million pages of documentation. He spent a further year writing his report, published last month, with 290 recommendations concerning almost every aspect of the NHS. With the cost of his investigation approaching £13m, it is only reasonable to ask whether such inquiries are worthwhile.
The strength of a public inquiry is the spotlight it shines on matters of significant public interest that some would prefer hidden or forgotten. The weakness is the lack of a mechanism to ensure recommendations arising from it are implemented - or at least seriously considered. Obligations under the Inquiries Act 2005 simply stop at the point a report is published.
Francis is clearly alive to this. In opening the inquiry he noted there had been no fewer than 40 private and public inquiries into hospitals, trusts and doctors in the UK in the past four decades. He highlighted the Bristol Royal Infirmary Inquiry report and the remarkable resemblance of the issues it looked at to those he was being asked to consider. He is clearly determined that the same issues will not have to be looked at by yet another inquiry. In delivering his report, Francis said this represented only the start of a process. To back this up, his first two recommendations relate to accountability for the implementation of the remaining 288.
He has recommended that every relevant healthcare organisation should consider the recommendations, decide how to apply them to their work and announce which they will follow. He has challenged the Parliamentary health select committee to oversee the decisions and actions announced by those organisations that are accountable to Parliament. It will be up to the committee, rather than Government, whether it fulfils this function. However, given its scrutiny of many of the organisations criticised in the report, such as the Care Quality Commission and the General Medical Council, it seems likely to accept this responsibility.
Prime Minister David Cameron has promised that the Government will respond to the recommendations within a month.
Meanwhile, the political focus has moved to forcing individuals to take personal responsibility for the scandal.
Given the pace of change in the NHS, the Government may find it difficult to simply slot the suggested changes into its policy plans. However, having called on organisations to account for their responses to the recommendations and by recruiting the assistance of the select committee, Francis has cleverly incorporated a mechanism to ensure the Government finds it equally difficult to sidestep his recommendations.
This article was first published in The Lawyer on 11 March 2013. This article has been reproduced with permission from the copyright owner and must not be further reproduced without permission of the copyright owner or the Copyright Licensing Agency.
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