Capsticks Report and NHS Whistleblowing

Rosie Cooper Excerpts

Wednesday 13th July 2016 Westminster Hall

[Rosie Cooper (West Lancashire) (Lab)]

I beg to move,

That this House has considered whistleblowing in the NHS and the Capsticks report into Liverpool Community Health NHS Trust.

It is a pleasure to serve under your chairmanship today, Mrs Main. On 22 March 2016, the “Quality, safety and management assurance review at Liverpool Community Health NHS Trust” report by Capsticks solicitors was publicly released, following a serious and substantial investigation and examination of the litany of failures, misuse of power, intimidation of staff and patient harm that was allowed to go unchecked and unchallenged at Liverpool Community Health in the four years to April 2014. Some 43 individuals gave evidence to the review over 24 weeks, and almost 900 documents, spanning more than 19,000 pages, were reviewed.

The findings are clear: from 2010 to 2014, the trust’s pursuit of foundation status was its sole priority. The review compares LCH to Mid Staffs on the basis of the brutal tunnel vision that led to an unsafe drive for savings at all costs, compromised the quality of patient care, fostered bullying and harassment of staff on an industrial scale, and made possible the culture of concealment and denial at board level. The report’s findings are even more damning, given that all this took place after Mid Staffs and the publication of the initial Francis report. It demonstrates that, in pockets of the NHS, the events at Mid Staffordshire have changed little if anything at all. It prompts the question, to what extent is this happening in other trusts up and down the country?

The report paints a stark and harrowing picture of far-reaching failure, driven from the very top of the organisations where individuals have escaped the consequences of their actions to date. Sadly, the same cannot be said for the patients and staff of the organisation, which abjectly failed them.

I do not intend to go through the Capsticks report in great detail, as it is publicly available for people to read. Instead, I want to add background detail and put a human face to the words it contains. I want to talk about my experience of what can only be described as the very worst of the national health service.

I got involved in LCH simply because my father was admitted to ward 2A—a GP-led community ward at the Royal Liverpool hospital, run by LCH. The quality of my dad’s care was not great, and despite meeting managers and eventually a doctor, I remained unhappy with the care and remarked that I would speak to the Care Quality Commission. I was very surprised that staff members encouraged me to do so. It was the bravery of the ward staff, who spoke out about the horrific situation at LCH, that led to three years’ work to expose the true situation. And we are not there yet. No whistleblower has come to harm in this investigation, because I took the heat.

Once staff felt able to confide in me, many other people from across the various services with equally horrendous experiences of patient care, mismanagement and staff mistreatment spoke out, too. The Capsticks report enabled their voices to be heard, but it was limited because it was a governance review, not a clinical review. I am seeking investigations by a range of regulatory and professional bodies—including NHS Improvement, the Care Quality Commission, the General Medical Council, the Nursing and Midwifery Council, the Royal College of Nursing, the Health and Care Professions Council, the Chartered Institute of Personnel and Development, the Chartered Institute of Public Finance and Accountancy, and the Health and Safety Executive—into the failures at LCH as an organisation and by individuals.

However, one fundamental question remains unanswered. We still do not know the full extent of the harm caused by LCH. Justice demands a public inquiry, or at least an inquiry in public. We cannot try to hide what went on. A refusal to undertake a clinical assessment of the harm would be an admission that Mid Staffs and the Francis inquiry have changed absolutely nothing, and that the lives lost unnecessarily and prematurely in the care of the NHS had no value. Is that really the state of our NHS in 2016?

Despite the information that I have presented, detailing the extent of failures at LCH, there remains a determination among some members of the NHS senior management to minimise the LCH revelations. They are of the view that the Capsticks report should not have been commissioned, and that the dismantling of the organisation will bring scrutiny of the entire system’s failures to an end. It will not. I promised those who put their trust in me that I would not let that happen. I will keep at this until we have the whole truth and those who are responsible are held to account. The Minister might reflect on why those in senior positions who knew something did not believe that the duty of candour applied to them, and why there seemed to be no consequences.

The Capsticks report paints a stark picture of far-reaching failure that emanated from the top of the organisation, where the pursuit of foundation trust status had consequences for patients and staff at LCH, and financial considerations rode roughshod over the quality of care. A combination of driving down recurring costs and minimising expenditure on front-line services meant that the trust could create the impression of a healthy financial organisation, enabling it to become an FT. All its key performance indicators were financial. No one seemed to notice that all reference to quality disappeared.

Efficiency savings are usually 2% to 4% a year in the NHS. At LCH, there were several services for which the initial cost improvement programme proposed a 50% planned reduction in the overall budget within a single financial year. Those ludicrous budget cuts were described by the interim chief executive as “erratic”—“dangerous” is the word I would use. Those cuts could be driven through because there was a lack of a clear, transparent and robust quality impact assessment process to support the cost improvement programme. The situation was compounded by the executive team’s deception of the trust’s board in the implementation of the cost improvement programme.

The Capsticks report shows no evidence that the board had any discussions about the impact of the CIP on staff and their ability to deliver safe and effective healthcare to patients. Between 2011 and 2014, more than £20 million was stripped out of front-line services. In the district nursing service, there was an underspend of £2.8 million, which meant that some areas were left to run at 50% of safe staffing levels. Stressed nurses worked unpaid long after their shift had finished to ensure that patients received essential treatment and medication. Working alone without alarms, they had to go into houses where there were drugs and guns, having been told by their managers, “That’s your job.”

In 2014, the deluded former chief executive wrote to me that the trust had reduced grade 3 pressure sores by more than 30%, and benchmarked against best practice. The reality was that the number of patients with avoidable, agonising pressure sores, which reach right down to the bone, rose sixfold as nurses frantically scuttled round the city trying to catch up. Staff were put in harm’s way. One nurse was held hostage at knifepoint by the relative of a patient she was visiting, and was seriously sexually assaulted. The attacker was given a custodial sentence.

Clinical governance between 2010 and early 2012 was the responsibility of the director of finance. He had never previously worked in the NHS and had no clinical experience, yet he was responsible for reporting serious untoward incidents to the board. I have been told that even the person in charge of nurse prescribing had no clinical background: he was a fitness instructor.

The incident initially reported to the director of finance was relayed to the chief exec, the human resources director, the medical director, and the director of operations and chief nurse. The executive nurse promised a “root cause analysis”. This never happened; nor was there a proper investigation, which was a breach of trust policy. No one seemed to notice. The director of finance stated as part of the Salmon process that the director of operations and executive nurse, and the health and safety reporting system

“both downplayed the seriousness of the incident.”

The minutes of the board meeting on 23 September 2014, at which the report of the interim chief executive and interim nursing director was presented, state that “CG”—Craig Gradden, the medical director—

“confirmed that it had been reported in the ‘Weekly Meeting of Harm’, but had not been reported to the Board, as it had been risk rated too low”.

So sexual assault of a nurse was risk-rated too low to be reported to the board—it was rated lower than a stolen personal computer or the parking problems at Burlington House.

Questioning the credibility of the medical director, he Capsticks report states:

“We also do not as a review team accept the comments made to us that the serious nature of the incident was not known at the time. Our reading of the Datix entry on this incident clearly indicates the nature and seriousness of the incident.”

The chief executive, Bernie Cuthel, told Capsticks that she was not aware of the severity of the incident, but she managed to send the nurse a handwritten note.

The incident was not reported to the Health and Safety Executive either, presumably because the trust knew that it would be found wanting, as it had no proper lone-worker policy and staff did not have any alarms. Why did staff have no alarms? Because they cost too much money. The trust even charged the nurse who was assaulted for access to the internal investigation records. How the LCH executive directors reacted to that incident demonstrated the utter inhumanity of those shameless individuals. Only under the new leadership has the incident been properly investigated.

There are other failures right across the organisation, where finance was given priority over the quality of care. At one point, the trust’s in-patient services had 33 vacancies and an 11% staff sickness rate. How were they expected to maintain high standards of care? One nurse told me that she was left with one healthcare assistant to look after 18 ill patients, and when a senior manager arrived, his only comment was about the noticeboard.

Poor, ill and often elderly patients were expected to run around the city trying to get appointments to see district nurses. GPs gave me many examples, including that of one lady who, after a hysterectomy, needed an infected wound dressed. She was forced to go daily to different treatment centres in different parts of the city by taxi, because she was not fit to catch a bus; it cost her more than her income for the week. In another case, a patient was left waiting for four months for a health assessment, leaving their lung cancer undiagnosed and eventually inoperable. The equipment service was in disarray: I have seen photographs of wheelchairs for the use of patients stored in a gents toilet.

In prison healthcare services, which the trust ran before 2015, the abject failure of oversight by the board was shocking—shocking in the extreme. The service, including meds management, still requires thorough investigation. Basic health checks for new prisoners to assess their risk of suicide were not carried out, with tragic consequences. The prisons ombudsman was ignored, and the coroner now recognises organisational failure.

Staff, as well as patients, paid the price. Where there was resistance to the planned cost improvements and their consequences, the human resources function was used not to support staff but to enforce, leading to a culture of bullying and harassment. The community dental service faced a cut of £2.7 million, or 49% of its overall budget—a reduction of 50 whole-time equivalent staff. When the clinical directors tried to point out the risks to patient care, they were suspended on concocted grounds and faced disciplinary action in an effort to silence them. There are many more examples.

My first awareness of the bullying culture at LCH was in the intermediate care bed-based unit where my father was admitted. I was told by whistleblowers that nurses in the service who spoke out were bullied, and that three senior members of staff were on suspension without even having been given reasons for their suspension, although that later changed, after challenge, to redeployment in a non-clinical role for no given reason. These matters remained unresolved for more than a year, until the new team arrived. People had been moved out of the way.

Driving home one night after a day of managerial mayhem, one nurse with a family and decades of service to the NHS in a role she loved, pulled her car to the side of the road and seriously contemplated suicide. Another nurse, in the prison service, received foul racist texts from his senior manager. He was appalled and told her so. Little did he realise that that would be the end of his NHS career. He was suspended for more than a year, then sacked and reported to the Nursing and Midwifery Council, although eventually cleared. The manager was not even disciplined.

Management failings went unchallenged. In one particularly shocking case, a whistleblower has alleged that a prisoner with dementia was placed in a tumble dryer at HMP Liverpool for the amusement of prison and health staff. It is alleged that when he tried to get out, it was a nurse who pushed him back in.

The report’s description of scoping meetings is illuminating:

“people…described the culture and atmosphere as being designed to find personal fault and that the presence of a representative from Human Resources at these meetings, which in our view is most unusual, further exacerbated that feeling.”

Staff knew it was dangerous to speak up.

Staff availing themselves of occupational health psychological services were limited to six weeks’ support, but so great was the threat of harm to them, that some were still receiving help for more than a year. The number and severity of these cases was drawn to the attention of LCH executives by the trust providing the services, because they were outside the provider contract and required extra resource. Even that did not make a difference.

The report offers us an insight into the scale of the HR problems that existed: 332 known employee relations cases, including eight cases of bullying and harassment, 111 disciplinary cases, 26 grievances, one whistleblowing, 20 capability cases and 166 sickness sanctions—all that in a small community trust. The view of the interim chief executive offers some insight into those figures:

“When coming across grievances that were in the system, some of them were two or three years out and not resolved. I came across individual members of staff who had been on suspension for up to nine or ten months and the full time officers couldn’t even tell me why they were suspended.”

The mechanisms to protect staff, such as JNCC—joint negotiation and consultative committee—meetings, did not function effectively; they actually gave false assurance. The meetings were attended by the board chair and considered bullying cases regularly, but nothing changed because managers were used to enforce the directives of the executives, and for people who did not do as they were told, there were consequences. Even the ACAS report talked of employees being “fitted up”.

There were cliques, and someone whose face fitted would be invited to join the Friday night Prosecco club, also known as the “Montrose mafia”. When someone was suspended or fired or resigned from the stress of it all, a member of the clique would be moved into the position, without proper process, in order to deliver “the programme”, which also meant overlooking the shortcomings of the executives, which were many. I was always astounded that everyone knew that Helen Lockett did her LCH on-call duty from Bristol. She was not even in Liverpool. Safe? I don’t think so. As one staff member interviewed by the Capsticks team said:

“In fact it’s probably the most un-healthy organisation I’ve ever worked in by some distance at that time. Just because those key individuals…forgot what we were actually…here to do.”

On 5 February 2014, I asked the Prime Minister to forensically examine the history of HR practice, disciplinary action and subsequent payoffs. He said he would happily do so, I believe in good faith, because he thought the CQC could do that, which it turns out it cannot. I ask the Minister, when the HR department is used as a weapon to enforce the rule of a trust, rather than the law of the land, who is policing it?

A vast amount of taxpayers’ money is wasted on paying for lawyers and subsequent compensation for victims as careers and lives are destroyed. The Department of Health and professional bodies such as CIPD surely should act. The evidence of a pervasive culture of bullying and harassment at LCH reinforces Capsticks’ opinion that the executive team were “out of their depth.”

We might think that an executive team that slashed £20 million from front-line services, causing patient and staff harm, would guard every penny. We would be wrong. They spent more than £350,000 on drumming up support for their application for foundation trust status. They spent more than £1 million on a programme management office of external consultants to tell them how to save money. At the trust’s annual meeting in 2013, the same year the board slashed £7 million from front-line services, its leadership team still managed to find enough money to hire jugglers, unicyclists, stilt-walkers and a life-sized elephant to greet guests—I am not kidding. In the same period, the chief executive’s pay increased by nearly a third, from £95,000 to around £130,000 a year.

In 2014, when the CQC at long last began to expose the extent of the leadership failures at LCH, the trust board’s first reaction was to spend £11,000 on a crisis communications consultant. In January 2014, as I pressed hard and still harder for answers and immediate changes for staff and patients, board members spent almost £1,000 on legal advice in an attempt to browbeat me and prevent parliamentary and public scrutiny of the goings-on at LCH.

I mentioned that the executives downgraded the risk rating of the serious sexual assault of a nurse. That was not a one-off: there were other instances in which they were willing to hide failure. The Capsticks report says:

“when risks were escalated upwards, they were either ignored or watered down by those in more senior positions to make them look less significant than they were, without any clear rationale for doing so.”

That included the suppression of a report into district nursing services because its findings were so catastrophic and told the truth. Having requested documents under freedom of information, I have evidence that the nursing director and clinical director signed off the CIP plan that states that they believed those plans to be clinically safe. All the evidence says that those plans were not safe at all.

In hiding their failures, the executives regularly deceived the non-exec directors, as the Capsticks report highlights:

“There were repeated failures by the Executive Directors to be open and transparent with the wider Board, which is ultimately responsible for the care and welfare of its staff. This included not sharing with the Board details of a serious assault carried out on a health care professional and not sharing with the Board the results of a survey of staff views and opinions undertaken by the Staff Side which amongst other things highlighted that 96% of respondents believed bullying was a moderate or worse problem at the Trust.”

The trust chair was present at staff side meetings.

The non-exec directors on the board are also culpable for their failings. The fact that the board was deceived by executive directors should not detract from the catalogue of errors that the non-executives made in fulfilling their duties. Instead of providing the most basic challenge and oversight, the chair of the trust and her fellow non-executive directors were in denial. They were more concerned with protecting their reputation than with protecting patient safety and staff welfare. The chair was reported on many occasions, usually in response to me, as saying:

“The board has complete confidence in the chief executive and her team.”

What is so concerning is the directors’ sheer lack of awareness—never mind acceptance—that they had failed. Capsticks says that its

“detailed review of the public minutes of Board meetings from 2011 until April 2014 do not show that Non-Executive Directors on the Board collectively and individually held the Executive Directors to account. Indeed our extensive review of these minutes shows little evidence of scrutiny and challenge.”

There was an over-reliance by the board on external consultancy reports for assurance on its performance—although ironically, the board ignored the finding of a 2012 report on governance by Deloitte that stated that

“there was an inconsistent level of challenge from Non-Executive Directors on quality”.

They heard only what they wanted to hear.

Paragraph 9.36 of the Capsticks report states:

“The Board and its Committees for their part failed to understand the impact of such a significant Cost Improvement Programme on the quality and staffing of front line services and did not provide the required level of proactive oversight, too willing in our view to accept Executive Director assurance of a process which was largely at variance with that set out in national guidance.”

In paragraph 13.36 of its report, Capsticks comments that

“the Board ignored one of key findings of the Francis Inquiry…which identified ‘an unhealthy and dangerous culture’ as a pervading cause of the failures at Mid Staffordshire NHS Foundation Trust.”

Had any of the opportunities been taken, the subsequent sequence of failures could have been broken. The board could have done something. It should have done something. It did not, and patients and staff came to harm. I do not believe that the non-execs accept to this day their responsibility for the damage that they caused in failing the patients and staff at LCH.

Perhaps equally concerning for the Minister is that the extensive regulatory framework that exists, in the expectation of stopping events such as Mid-Staffs and now LCH, fell down on the job. Nurses who contacted the NMC were simply referred to protocols—although the NMC is currently engaged in resolving some of these issues. This was not the RCN and the other unions’ finest hour. Most absent of all were the NHS Trust Development Authority, which is now called NHS Improvement, and Liverpool and South Sefton clinical commissioning groups.

The clinical commissioning groups in particular have a duty—I quote from NHS England’s rules—to

“make their own assessment of cost improvements and be satisfied that services are safe for patients with no reduction in quality.”

In the case of Liverpool clinical commissioning group, there is no evidence that LCH’s savings plans received even the most basic checks to ensure that they were safe and would not lead to patient and staff harm. For a clinical commissioning group that is responsible for almost £0.75 billion of NHS spending and the future reorganisation of health services in Liverpool, that dereliction of responsibility is deeply disturbing and must prompt the questions, “Is it up to the job?” and “Where else is its eye off the ball?”

The CQC’s previous assessments of the trust did not reveal the bullying or the seriousness of the situation, although after I contacted it, it did produce the first regulatory evidence that all was not well. It also protected the whistleblowers, for which I thank Ann Ford. The lack of any discernible action by the CQC four months after it received the Capsticks report is not good enough. The lack of accountability remains deeply troubling.

The Trust Development Authority in the end removed the chief executive, the executive nurse and the human resources director from their posts following a review by Sir Ian Carruthers. I was led to believe that because of the information that I had provided and the Carruthers review, those individuals had been sacked. That was untrue. The TDA also left the failing non-exec directors in place on the board, and that hindered the trust’s recovery. If the board was failing and the executives had to go, why leave half the board there to hinder the people brought in to make it better?

I am still astounded that I was told that the chief exec had been fired when the truth, elicited by freedom of information, says that she was given a reference and that Manchester mental health trust was asked to mentor her without being told about the full circumstances. Effectively, she had been moved from one job—because she was doing badly—to be mentored at Manchester mental health trust. Currently, she remains safely holed-up in a senior executive role at Betsi Cadwaladr University Health Board, still earning about £106,000. I am told by the Care Quality Commission that her flight across the borders within the United Kingdom prevents it from taking any action.

Gary Andrews, the former director of finance and a non-clinical clinical governance lead, has been given a senior managerial role in NHS England’s vanguard programme. Craig Gradden, LCH’s former medical director, is employed as a medical consultant in Sefton. Helen Lockett, Liverpool Community Health’s former director of nursing, who I was told had been sacked, got a £25,000 pay-off and a reference. Only the 18-month interim order issued by the NMC while she is under investigation stops her practising. Who referred her to the NMC? Was it the system? No, it was me.

Michelle Porteous, the HR director, was allowed to leave unchallenged and was seen to spend her last days at the shredding machine—no one stopped her. Although outside the remit of the NHS and its regulators, the former chair of the trust continues to work with the health service through her management of a charitable company called Health@Work, which sells health and safety advice, training in emotional intelligence, spotting signs and symptoms of poor mental health in staff members and techniques to manage stress. I will say no more.

The Prime Minister said he did not want failures recycled around the NHS, but here we have a regulator doing just that: not investigating, not disciplining and not taking the appropriate sanction, just recycling. Accountability and the interests of patients and NHS staff require action, so I ask the Minister whether the fit and proper person test, introduced to prevent NHS leaders responsible for serious mismanagement from assuming similar roles in the NHS, is fit for the job.

Before I come to my last point, it would be remiss of me not to mention the progress that has been made by LCH in the two years since April 2014. The trust has turned an important corner, through investment in safe staffing levels, a new approach that values clinical leadership, clear action to put quality and patient safety first and a new culture of openness and honesty. To have come so far in such a relatively short period of time is a credit to the frontline staff in LCH and the new leadership it has been given.

Most importantly, while the Capsticks review has shone a light into the dark recesses of the goings on at Liverpool Community Health in those four terrible years before the system acted, it does not, and cannot, document all the harm caused to patients. The Capsticks report finds that it is reasonable to conclude that between 2010 and 2014, patients received sub-optimal care. It is therefore a sad and undeniable fact that there will be people on Merseyside today who have lost loved ones, or seen them suffer, or suffered themselves, who do not know that their anguish was avoidable and caused by the failures of leadership at the trust.

In the interests of truth and justice, we cannot allow that to continue. I therefore look to the Minister for assurances that preferably a public inquiry, and at least an independent clinical review, into patient harm associated with the leadership failings at Liverpool Community Health NHS Trust between 2010 and 2014 will be conducted without further delay and that nothing is hidden. It must be made public. I am very aware that very senior people are really angry that this is coming out.

I also ask the Minister to include, as part of any review, an independent investigation into the adequacy of the actions taken at the same time by NHS Improvement—TDA as it was—NHS England, Liverpool CCG, South Sefton CCG, Southport and Formby CCG and their predecessor organisations to assess and address safety concerns at LCH. That needs to reflect the health system’s future challenges, where accountability and governance will not just affect one organisation but a whole region, area or system. It is only through that course of action that we can provide the assurances necessary to those harmed that that will never be allowed happen again.

In finishing, I ask the Minister—obviously not today—to look at the TDA assessment programme for the break-up of LCH because, for example, Bridgewater, a trust that does not have a CQC rating, is pitching for LCH business against other organisations that do have CQC ratings. That is patently unfair. Also, in the private sector we would not allow a business to poach former members of staff—it is almost insider trading—but that clearly is going on in this process. We must establish whether former members of staff declare their conflict of interest and whether we are protecting NHS organisations from that kind of insider trading.

I am sure that the Minister is aware of how deeply angry and upsetting this is, not just for me—having spent three years looking at it and working hard at it—but for each and every single member of staff who, right now, trusts him to deliver. They were too frightened to go to their execs and they were let down by the system. They were not sure that they could whistleblow in safety—that is why I did it. The system has let people down so badly. No one has been hurt because I did what I did in that way, but that is not right, either. People need to be able to speak freely on behalf of their organisations, their patients and their staff. This is not 21st century health politics.

--- Later in debate ---

[Rosie Cooper]

May I quickly thank the Minister for his genuine, honest approach? But hearts were dropping—I have been getting texts—during his response about the CQC and HR. All they can do is require improvement—that does not stop this and does not change it. The TDA was supposed to look after boards and it did not spot this failing board.