Accountability and Transparency in the NHS

Frank Dobson Excerpts

Thursday 14th March 2013 Commons Chamber

[Frank Dobson (Holborn and St Pancras) (Lab)]

I congratulate the hon. Member for Stafford (Jeremy Lefroy) on his thoughtful contribution to the debate. We all owe it to the people of Stafford and those round about, all of whom depend on Mid Staffs, to ask the Secretary of State to guarantee that nothing and no one is allowed to use the horrors that occurred as an excuse to close the hospital or to run it down. That would punish the local people, the potential patients, and the good staff at the hospital. I hope he is willing to make whatever organisational changes—extra cash, or new ways of financing parts of the health service—are necessary to make that guarantee to the people in that area.

I started off as Health Secretary fully in favour of transparency. My last job before I became an MP was working for the local government ombudsman. It was my view, and it remains my view, that the best way to deal with anything that has gone wrong is to stand up and say, “Sorry, I got it wrong.” However, there is a problem. We are asking people in the NHS to operate in two different worlds. If something goes wrong in the hospital, the GP’s surgery or the clinic, we say: confess straight away. That is one world—the official world. People then get in their car, drive out of the car park to go home and bump into another car. What happens? Their insurer says, “Whatever you do, don’t accept any responsibility.” We need to recognise the clash of different worlds that people live in.

When the excellent hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) introduced the Public Interest Disclosure Act 1998 to protect whistleblowers, I made sure that the Labour Government supported it, and that the provisions covered the national health service. There were those who did not want it to cover the NHS. I am delighted to say that I anticipated that some might want to have disappearance clauses in contracts—gagging clauses—and issued a circular that prohibited them. Any health body that has inserted such a clause is breaking the terms of the circular that was sent out in my name in 1999.

I also established the Commission for Health Improvement. It was intended to monitor and improve standards, and it was the first time in the history of the national health service that such a body had been set up. At that time, there was no machinery in the NHS for identifying good or bad practice, or for promoting good practice more widely and eliminating poor practice. I also required all health boards and chief executives to be responsible for the quality of treatment and care. No such obligation had been placed on them before, and that was a step in the right direction.

The hon. Member for Stafford rightly said that if transparency is to be based on experience and on data, those data have to be fair. We cannot have a situation in which someone who performs regular, straightforward surgery is compared favourably with someone who treats people in desperate circumstances and therefore has a greater chance of the operation or treatment going wrong. Everyone in the medical profession has got something wrong, and some have done so quite a few times.

If we are to have transparency in the provision of services to NHS patients that are paid for by public money, that transparency must apply not only to the NHS providers but to any other franchised provider of services. I know from experience that, when our lot were selling off a GP practice in my constituency, we were told that we could not find out the terms of the contract because it was commercially confidential. If we had been able to see the contract, we might have spotted that it enabled the contractor to leg it if things got difficult, which is what it duly did.

However keen Government Members might be on involving the private sector—I freely admit that I am not, but they are—they must ensure that patients and others are not denied information on the ground of commercial confidentiality. I strongly support the idea of making whistleblowing a duty, and that duty of candour must apply to any private sector provider. We cannot have them hiding away behind their private profit-making efforts. We must also ensure that, when anything goes wrong, the Secretary of State will answer to the House of Commons. We do not want anyone coming along and saying, “It wasn’t me, guv, it was the commissioning board wot got it wrong.” We must make it absolutely certain that our national health service is responsible to us here.

My final point is that I am sick to death of what is happening at the Whittington hospital. In order to qualify for trust status, it is being told to reduce the ratio of nurses to patients, yet it is already one of the five safest hospitals in the country.

--- Later in debate ---

[Steve Baker (Wycombe) (Con)]

My constituent Edward Maitland was a frail man who could not eat solid food following tongue surgery. He was admitted to Wycombe hospital from his warden-controlled accommodation suffering from dehydration, shortness of breath and weight loss, things from which he should have recovered. His son, a paramedic, clearly explained on his father’s admission that Mr Maitland could not eat solid food and he also provided liquids. About three weeks later Edward Maitland had died from aspiration pneumonia. At the post-mortem, Weetabix was found in his lungs.

Of course, the investigation was taken extremely seriously and the documentation is, up to a point, very professional. Under “root cause”, it states:

“The investigation found that there is no evidence to support robust communication between nursing and medical staff…No SBAR”—

situation, background, assessment and recommendations—

“documentation was used in EMC or in handover to Ward 6B this would have highlighted the patient’s nutritional needs.”

It proceeds to make some “recommendations”, but I want to highlight the “lessons learned”:

“To care for all patients with a holistic approach and the multi-disciplinary team must focus on all health concerns.

Better communications between all staff members, this should be ongoing and involve all the different professionals who may need to collaborate the care delivery plan. This collaboration and communication should involve the patient, family and the healthcare staff.”

Unfortunately, that is bread-and-butter, typical stuff—and managerial gibberish.

What I learned is that two words would have saved the life of Edward Maitland: “no solids”, written on the records at the end of his bed, on his wristband, and above his bed. The situation in his case is very simple. A man died who ought not to have died. He should not have died in these circumstances.

I have the hard task of saying, therefore, that I look to the courts, and the Francis report helps me. Recommendation 13 of the report, on fundamental standards, refers to:

“Fundamental standards of minimum quality and safety, where non-compliance should not be tolerated. Failures leading to death or serious harm should remain offences for which prosecutions can be brought against organisations.”

Elsewhere, the report discusses at some length—I do not have time to go into detail—a regulatory gap in relation to the Health and Safety Executive:

“It should be recognised that there are cases which are so serious that criminal sanction is required, even where the facts fall short of establishing a charge of individual or corporate manslaughter. The argument that the existence of a criminal sanction inhibits candour and cooperation is not persuasive. Such sanctions have not prevented improvements in other fields of activity.”

I took legal advice. I approached a retired circuit judge in my constituency, who in turn approached a firm of lawyers. I am most grateful for the guidance of Kate McMahon, of Edmonds Marshall McMahon, who has provided me with considerable free legal advice in relation to this case. The firm specialises in private criminal prosecutions. She has explained that, at least at the preliminary stage, there may be a corporate manslaughter case to answer, and liability for gross negligence manslaughter may well be attributable to one or more employees of the hospital.

I do not want people to be prosecuted unnecessarily, or to see taxpayers’ money wasted, but I do want accountability, and I believe that in the end the courts provide that crucial accountability. Edward Maitland’s son Gary now has this advice, and I have left it to him to decide whether to approach the police. I have briefed the police superintendent in Wycombe on the circumstances. I believe that the courts should be the ultimate way of sanctioning the NHS. Francis agrees, and I hope he will provide a policy in this area.

There should be more democratic control. I am delighted—

[Frank Dobson]

Does the hon. Gentleman not agree that one characteristic of involving lawyers is that there is a lot of money around, and it goes to them? Would it not be better spent trying to ensure that performance standards are enhanced, rather than employing lawyers to have a go at the people who got it wrong?

[Steve Baker]

Of course I would rather that the money was spent on standards and performance and not on prosecutions, because I would rather the problems did not occur. I do not wish to lecture the right hon. Gentleman, and I feel sure he did not quite mean it this way, but if we do not intend to apply the law of corporate and individual gross negligence manslaughter, let us repeal it, or amend it so that it does not apply to the NHS. I have to say to the right hon. Gentleman that it does apply to the NHS and that in certain cases, as Francis has said, things are so bad it should be applied.

I ask the Government to look at democratic control. I am delighted that the Secretary of State is reforming the Care Quality Commission, but how can we make sure that there is more direct accountability, perhaps to the health and well-being boards, and the overview and scrutiny committees? How can we give them the power to sanction or perhaps even, through due process, dismiss a board or a chief executive?

I think here of Paul Ryan, a man with vascular disease who had lost one leg already when he found himself sick. He had four days of GP visits and spent nine hours in accident and emergency on a Friday. He was then sent home, having had an MRI scan, after which he was expecting to lose his leg on the Monday. He was told to expect a phone call, but no phone call came. The Ryans eventually called 999 and were told that it was better to get a GP. The GP arrived and called an ambulance. It took two hours for that to arrive and Paul Ryan died in the ambulance with his wife on the way to hospital.