Care Quality Commission: Morecambe Bay Hospitals

Earl Howe Excerpts

Thursday 20th June 2013 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, with the leave of the House, I shall now repeat a Statement made in another place yesterday by my right honourable friend the Secretary of State for Health on Morecambe Bay Hospitals. The Statement is as follows.

“I wish to make a Statement about today’s independent report into the CQC’s regulatory oversight of University Hospitals, Morecambe Bay. What happened at Morecambe Bay Hospital is, above all, a terrible personal tragedy for all of the families involved. Before saying anything else, I want to apologise on behalf of the Government and the NHS for all the appalling suffering they have endured and, in that context, I know that the whole House will wish to extend our condolences to every one of them.

Joshua Titcombe’s tragic death was one of 12 serious untoward incidents, including five in the maternity department. His family and others have had to work tirelessly to expose the truth—and I want to pay tribute to them for that—but the fact is that they should not have had to go to such lengths. As we saw with Mid Staffs, a culture in the NHS had been allowed to develop in which defensiveness and secrecy were put ahead of patient safety and care. Today I want to explain to the House what the Government are doing to root out that culture and ensure that that kind of cover-up never happens again.

The independent report was commissioned by the new chief executive of the CQC, and the new team running the organisation has made it clear that there was a completely unacceptable attempt to cover up the deficiencies at the CQC. The report lists what went wrong. Unclear regulatory processes, reports commissioned and then deleted, lack of sharing of key information and communication problems throughout the organisation. Most of the facts are not in dispute. All of them are unacceptable. They have compounded the grief of the Titcombe family and many others.

The role of the regulator is to be a champion for patients, to expose poor care and to ensure that steps are taken to root it out. It must do this without fear or favour. It is clear that at Morecambe Bay the CQC failed in that fundamental duty. We now have a new leadership at the CQC and we should recognise its role in turning things around. David Behan was appointed chief executive in July 2012. One of his very first acts was to commission the report that we are now debating. David Prior was appointed the new chairman in January this year. He has rightly insisted that this report be published as soon as possible. Those two outstanding individuals have never shrunk from addressing head on the failings of the organisation they inherited and are wholly committed to turning the CQC into the fearless independent regulator the House would like to see. While I do not underestimate the challenge, I have every confidence in their ability to undertake it. David Prior will now report back to me on what further actions the CQC will take in response to the report, including internal disciplinary procedures and any other appropriate sanctions on individuals.

Working with the CQC and following the Francis report into the tragedy at Mid Staffs, the Government are putting in place far-reaching measures to put patient care and patient safety at the heart of how the NHS is regulated. The CQC is appointing three new chief inspectors—of hospitals, social care and general practice. This will provide an authoritative, independent voice on the quality of care in all the providers that the CQC regulates. The commission has already announced the appointment of Professor Sir Mike Richards as the new Chief Inspector of Hospitals and on Monday the CQC launched a consultation, “A New Start”, which outlines its new much tougher regulatory approach. This includes putting in place more specialist inspection teams with clinical expertise. It will include Ofsted-style performance ratings so that every member of the public can know how well their local hospital is doing, just as they do for their local school.

The Government will also amend the CQC registration requirements so that they include an emphasis on fundamental standards—the basic levels below which care must never fall, such as making sure patients are properly fed, washed and treated with dignity and respect. Failure to adhere to these will result in serious consequences for providers, including, potentially, criminal prosecution. The revised registration requirements will also include a new statutory duty of candour on providers that will require them to tell patients and regulators where there are failings in care—a failure that was identified clearly in today’s report.

Finally, we are putting in place, through the Care Bill, a new robust single failure regime for NHS hospitals. This will provide a more effective mechanism to address persistent failings in the quality of care, including the automatic suspension of trust boards when failings are not addressed promptly.

The events at Morecambe Bay, Mid Staffs and many other hospitals should never have been covered up, but they should never have happened in the first place, either. To prevent such tragedies we need to transform the approach to patient safety in our NHS. The Prime Minister has therefore asked Professor Don Berwick, President Obama’s former health adviser and one of the world’s foremost experts on patient safety, to advise us on how to create the right safety culture in the NHS. He and his committee will report later this summer.

In addition, later this year we will start to publish surgeon-level outcomes data for a wide range of surgical specialties. Most of all, we need a culture where, from the top to the bottom of NHS organisations, everyone is focused on reducing the chances of harming a patient in the course of their care, and a culture of openness and transparency to ensure that, when tragedies do occur, they are dealt with honestly so that any lessons can be learnt. Our thousands of dedicated doctors, nurses and healthcare assistants want nothing more than to be allowed to make this happen. We must not let them down or the families who suffered in Morecambe Bay”.

My Lords, that concludes the Statement.

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[Earl Howe]

My Lords, I am grateful to the noble Lord, Lord Hunt, for his measured comments, and I am the first to agree with him that the report we now have is very deeply worrying. It sets out conclusions about the CQC’s leadership and operation during the period in question that are very shocking. What happened was totally unacceptable.

The CQC today is a different organisation and I was glad to hear that the noble Lord recognised that. Its board and management team have been completely overhauled. A new chief executive and chair are in post. A powerful new Chief Inspector of Hospitals has been appointed, an appointment that has been welcomed widely. The new leadership, as the Statement said, commissioned and published this report to make sure that the events of the past are exposed and that lessons can be learnt from them.

I am very pleased that the CQC will now be overseeing the production of a report within the next two months to provide assurance that any cover-up has been fully exposed and stopped and that the mistakes made by the CQC in regard to Morecambe Bay hospitals are being put right. That will ensure that the organisation’s structures and procedures are such that these shocking events cannot be repeated.

The noble Lord referred to what I agree with him is the troubling issue of the anonymisation of names in this report. Our clear understanding from the CQC was that its legal advice was that the report had to be anonymised prior to publication to comply with data protection legislation. We asked the CQC to consider this further and to provide advice on whether it was possible to release the names. Yesterday, it gave a commitment to do just that. It has now done so and my understanding is that it will later today publish the names of certain individuals currently anonymised in the Grant Thornton report.

The noble Lord asked whether the Department of Health had seen the report prepared by the CQC, which was then withheld. We have extensively asked officials throughout the department. There is no evidence to suggest that anyone in the department knew that the CQC had commissioned a report into its handling of Morecambe Bay and subsequently withheld it, still less that anyone actually saw it.

The noble Lord raised the issue of the whistleblower, Kay Sheldon. Her concerns about the CQC’s capability were considered alongside a range of other evidence as part of the DoH performance and capability review that was carried out between October 2011 and February 2012. The issues she subsequently raised have been considered along with other information as part of the department’s ongoing oversight of the regulator. The appointment of David Prior as chair of the CQC in January and David Behan as chief executive last July, combined with a strengthened board and the CQC’s new strategy, puts the organisation in a good position for the future.

When Kay Sheldon approached the department she was asked to raise the issues with the CQC board, and DoH officials also raised the issues with the CQC team in line with our normal approach to operational issues. The noble Lord asked whether we will release the minutes of the meeting with Kay Sheldon and the Secretary of State. I am happy to take that request away and I will let the noble Lord know whether that will be possible.

The noble Lord rightly raised the issue of culture in the NHS. The overriding message from the document that we published, Patients First and Foremost, which arose out of Mid Staffs, is that the culture of the NHS governs the quality of everything it does. We are clear that radical transparency, excellence in leadership, clarity of accountability and consequences for failure are together necessary if we are to maintain in the NHS the focus on quality and safety and for concerns to be identified quickly and acted upon.

Transforming culture is a complex challenge that will be different in each organisation. We believe that a combination of the steps that we have set out, such as ratings, which we will debate during the course of the Care Bill, a Chief Inspector of Hospitals and a failure regime that puts quality on a par with financial failure will contribute to making a real difference to the experience of patients. I look forward to the debate on ratings because I know that the noble Lord has concerns about the idea.

The noble Lord referred specifically to the duty of candour. In our response to the Francis report we said that we would introduce a new statutory duty of candour on providers. We agree that it is essential that providers of health and social care must be open in their dealings with patients and service users. We intend to introduce an explicit duty of candour on providers as a CQC registration requirement. That will require providers to ensure that staff and clinicians are open with patients and service users where there are failings in care.

As with all requirements for registration with the CQC, our intention is that the duty of candour will be set in secondary and not primary legislation. I am sure that my right honourable friend the Secretary of State would not mind me saying that he made a slip of the tongue yesterday. He meant to say that a statutory duty of candour will be put in place. However, I emphasise that the duty will have the same legal power in secondary legislation as it would in primary legislation.

The noble Lord made a number of powerful points on false and misleading information. The Care Bill will make it a criminal offence for care providers to give false or misleading information where information is required by a legal obligation. We will specify through regulations the type of information within scope of the offence. However, a failure to provide information would be a breach of the relevant legal requirement to provide it and would be subject to appropriate action.

In determining the scope of the false or misleading information offence, our current focus is on information supplied by providers who are closest to patient care, in which inaccurate statements can allow poor and dangerous care to continue. We need to give further consideration to the events highlighted in the Grant Thornton report and to reflect on whether a false or misleading information offence should apply to other health bodies such as regulators.

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[Baroness Northover]

I remind noble Lords that brief questions are allowed. As the Companion states, this is not the occasion for an immediate debate. I note that many noble Lords want to speak, so the briefer the better, please.

[Earl Howe]

My Lords, I recall the noble Lord, Lord Patel of Bradford, making those points very powerfully some years ago when we debated the Bill that created the CQC. He makes an extremely important point. I think that we can take it from the statements of David Prior yesterday that the decision taken in 2009 to take a generalist approach to inspection was a mistake. The CQC’s inspectors are in one sense specialist inspectors who are trained and supported to carry out their role, which they do to the best of their ability. However, requiring inspectors to have oversight of a wide range of service types from slimming clinics to acute hospitals, and indeed mental health establishments, has spread expertise too thinly.

We are clear that we must now work with the CQC to create a much more specialist approach to inspection, including on mental health. I think that the three new chief inspectors we are appointing will help to do that. It is not the whole answer, because they need to be supported by clinical expertise and by the people who are experts by virtue of their experience in care services. However, I will take away the noble Lord’s idea of a chief inspector of mental health. I must be honest with him that we have not discussed this, but I am sure that we now should.

[Lord Mackay of Clashfern]

My Lords, I wonder if my noble friend would take account of the suggestion of the noble Lord, Lord Hunt of Kings Heath, that legal advice can sometimes prevent people from doing the right thing. I was very sorry to hear that. I think that good legal advice should in fact produce the result of people doing the right thing. The second point I want to make relates to the claims against the health service for negligence. These have been quite substantial over the years. Could the CQC look at that area and examine the grass-roots standard of care given to patients?

[Earl Howe]

My Lords, the deputy Information Commissioner is quoted as saying that confidentiality and data protection issues should not stand in the way of disclosure where disclosure is clearly in the public interest. I completely agree with that. That is why our instant reaction yesterday, when we were told by the CQC that legal advice had said that the names of the individuals had to be kept confidential, was to challenge that. I am pleased that that decision is to be reversed and the names will be released.

On my noble and learned friend’s second point, most certainly yes: the CQC should take a view about matters relating to negligence. However, I would add that apart from the CQC, we now have the new Healthwatch bodies, part of whose function will be to make sure they provide good soft intelligence on what is happening in NHS and social providers in their local areas. The Healthwatch bodies can then act as the eyes and ears of the CQC, which, with the best will in the world, cannot be everywhere at once. In terms of the future—this is clearly a longer-term agenda—I hope we will have a system that is better equipped to pick up this kind of incident should it ever occur again.

[Lord Blair of Boughton]

My Lords, I welcome the idea of a statutory duty of candour and all the other means of regulation being discussed, but what appears to have happened here—and obviously it is just an allegation—is a simple case of malfeasance in public office. One of the things that seem to have happened over scandals such as Stafford, or even LIBOR, is that the ordinary criminal law of the United Kingdom has not been considered. I assume that the CQC is a public body. It is certainly paid for by public funds, and therefore its officials are subject to the common law.

[Earl Howe]

My Lords, clearly it is a matter for the police to investigate criminal offences and for the Crown Prosecution Service to consider whether the test for prosecuting individuals has been met in this case. It is too early to reach a conclusion about whether this case highlights a gap in the law but if it does, I can assure the noble Lord that we will pursue it. We keep the criminal law under review. It is too early for me to say—I am not a lawyer—whether he is right, but I am sure that his comments will resonate strongly with the House.

[The Lord Bishop of Liverpool]

My Lords, chaplains occupy a unique position in hospitals in relation not just to patients but to staff. Will the Department of Health keep under review the role of the chaplain in relation to both patients and staff, especially when a culture of carelessness and intimidation emerges?

[Earl Howe]

The right reverend Prelate makes an extremely important point. The Government have been very supportive of the concept of hospital chaplains, who play an enormously important role in supporting not just patients but staff. I am concerned because I have heard anecdotally that in some hospitals there are moves to dispense with hospital chaplains. I am in touch with one of his right reverend colleagues about this. Once again, we have a mechanism—if I may call them a mechanism—that could be deployed to good effect in this context.

[Baroness Pitkeathley]

The Government’s support for the current leadership and the newly launched New Start consultation will be welcome to all those of us who know the current people. Can the Minister assure the House that the Government will stand firm in this support when the tabloid press starts calling, as it surely will, for more heads to roll? Will he further assure the House that he believes that the last thing that the CQC needs is more change at the top?

[Earl Howe]

I agree fully with everything that the noble Baroness has said. We have in the CQC the right team to take it forward. They are very clear that there needs to be a complete refresh of the senior team where doubts emerge about the individuals concerned. We are already seeing a complete refresh of the board. I share her worry about the tabloid press and calls for heads to roll. Nevertheless, it is appropriate, in the particular context of Morecambe Bay, for there to be a close look at the role of certain individuals: exactly what they did, what they knew, when they knew it and whether what they did was either wrong morally or against the law.

[Baroness Emerton]

My Lords, I wish to refer to the introduction of a new, robust, single-failure regime for NHS hospitals. This will provide a more effective mechanism to address persistent failings in the quality of care, including the automatic suspension of trusts. As a nurse, I was trained to look at prevention rather than cure. Ought we to be looking at, and including in this, the preparation of trust boards, as well as the staff, looking across the consensus of the trust rather than concentrating on targets? It is often mentioned in reports that they do not look at the quality. We need to see a much more cohesive trust report.

[Earl Howe]

My Lords, this is one of the reasons why the previous Government introduced quality accounts, which are becoming more and more sophisticated and which focus the minds of a board on quality of care. It is easy to give the impression that we want to introduce a punitive culture into the NHS: we do not. However, there should be sanctions in the background to back up any serious failings of care. That is broadly what Robert Francis was driving at in talking about fundamental standards below which no care provider should fall. The CQC will be consulting on those standards later in the year, but I take the noble Baroness’s point about trust boards. It remains within the powers and competence of Monitor to suspend trust boards, either in whole or in part, where concerns arise over the governance of an organisation. That is a drastic power to invoke and they can take measures which fall short of it where appropriate.

[Lord Hamilton of Epsom]

My Lords, am I alone in being surprised that it should be necessary to have legislative change to secure a duty of candour? Does this mean that, in the absence of this change, the CQC has the right to tell lies?

My other question is on the inspection regime. I understand that a generic system used to work in the past, whereby somebody whose expertise was in dentistry was sent off to inspect an A&E department. Who was responsible for the decision to run the inspection regime in that way?

[Earl Howe]

My Lords, there has never been a right to tell lies, either professionally or in statute. My noble friend is right that we should be shocked that it is necessary to put in legislation that there has to be a statutory duty of candour. Candour has been part and parcel of the ethical framework for professionals in the health and care sector for many years. It is a sad reflection on those involved in the events at Mid Staffs and Morecombe Bay that we should be thinking in these terms at all, but we must, because unless we do we lay ourselves open to matters being brushed under the carpet, as they have been in these cases.

The inspections themselves have not been generic: it is the skills on the part of the inspectors that were considered to be adequate as those individuals were deployed generically. That decision was taken very early on when the CQC first came into being in 2009. We now think, as does the CQC, that that was wrong and that skills should be altogether more specialist.

[Lord Clark of Windermere]

As someone who lives in the catchment area of Barrow-in-Furness hospital, I have followed the story very closely. Does the Minister agree that, while we are discussing the cover-up by the CQC today, it in turn was investigating shortcomings by what was presumably the previous management of Morecambe Bay hospitals? Did he see the very pointed quote yesterday in the other place by the MP for Barrow-in-Furness, John Woodcock, who has done so much in this? He quoted the report as saying that there could be a “broader and ongoing cover-up”. Can he give the House an assurance that any investigation will not stop at the CQC but will look at the main cause of the disturbance and Mr Titcombe’s complaint initially?

[Earl Howe]

My Lords, I can give that assurance. In part, we have the answers in the Grant Thornton report commissioned by the CQC on the actions that the CQC took or did not take. As I said in answer to the question asked by the noble Lord, Lord Hunt, it is reassuring that the chief executive of the CQC has undertaken to produce for the department within the next two months a report to provide assurance that any cover-up has been fully exposed and that we will learn fully not only the facts but the lessons that we can draw from them.

[Baroness Wall of New Barnet]

I thank the noble Earl for repeating the Statement. It has caused quite a stir. My worry is two-fold. First, we had a big reaction to what happened at Mid Staffs, and now we have this. I would want us to be very careful not to become desensitised by some of these things—I do not mean in this House, but elsewhere.

I will pick up on the comments of the noble Baroness, Lady Emerton, and agree with her totally. As chairman of Barnet and Chase Farm Hospitals NHS Trust, I find it bewildering that, never mind any cover-up at the CQC, the board was not aware of those tragic deaths of mothers and babies. Certainly, in my trust that would absolutely be reported, both through the quality and safety committee that deals with what are called SUIs, or serious untoward incidents, and from the board itself. It would be helpful, as has been suggested, that the inquiry goes a bit further than just the CQC.

[Earl Howe]

I am grateful to the noble Baroness. In fact, the trust has taken significant action in response to the concerns raised by the CQC and Monitor. In addition to responding specifically to the three warning notices issued by the CQC, there have been significant leadership changes at the trust. Sir David Henshaw was appointed as interim chair and Eric Morton as interim chief executive. The trust appointed four new non-executive directors and a new chief operating officer and recruited a new obstetric consultant and additional midwives. There have been other appointments as well. It has established a programme management office, as requested by Monitor, to oversee the implementation of programmes of work to bring about lasting improvements across the trust—and it has recruited a number of posts to the programme office to take that work forward. So I am encouraged that it is taking the position as seriously as it should in the circumstances and that, again, there is a refreshed team at the top of that organisation.

[Baroness Cumberlege]

Very often, when we have these inquiries, they are initiated not so much by the people who work within the trusts but by members of the public who feel very concerned about the quality of care being given within a hospital or service. Very often, those people who bring up these concerns, who are dubbed colloquially as whistleblowers, get very victimised by other people within the population but also within the hospital. Is there any support or help that we can give those people who bring to the attention of the NHS some of the problems that exist?

[Earl Howe]

My noble friend raises a key issue, which successive Governments have wrestled with. We all know how life works. Whistleblowers are treated badly because their message is often very uncomfortable. That is why local Healthwatch could potentially be a very important part of the puzzle here, by ensuring that people have a place to go to that they can trust and that can raise concerns without necessarily naming the person who has initiated those concerns.

More and more, we need to encourage providers of care to take ownership of their performance. They have to be candid with themselves and accept criticism where it is laid. Boards of directors have to look systematically and regularly at the complaints made against them—whether rightly or wrongly—to make sure that they are as open as possible with themselves. Only by instilling a culture of that kind can we move forward.

[Lord Campbell-Savours]

My Lords—