Health Professionals: Regulation

Steve Barclay Excerpts

Monday 4th March 2013 Commons Chamber

[Stephen Barclay (North East Cambridgeshire) (Con)]

In the wake of the Francis report and the news that 14 more trusts are under investigation due to unnecessary deaths, it is clear that our current system of health care regulation has failed. More importantly, it means that the NHS has failed its patients, and that the Care Quality Commission is clearly not fit for purpose. I have seen documents that suggest that 25 hospitals with abnormally high mortality rates were highlighted to the then Secretary of State, the right hon. Member for Leigh (Andy Burnham) in March 2010. Seven of the 14 trusts now under investigation were on that list. He referred them at the time to the CQC, which confirmed it had:

“no current concerns about these trusts which would require intervention.”

Some of them, however, have had significantly high mortality rates for more than a decade. Sir David Nicholson tried to paint Mid Staffordshire as a singular case. Minutes of meetings imply that the concerns of patients’ families were dismissed as simply lobbying. Perhaps more worryingly, it appears there has been not just incompetence, but a culture of cover-up in the NHS.

Let me give just one example. Professor Sir Brian Jarman, a world-respected authority on mortality data, has raised with me allegations of trusts fixing their mortality figures. In essence, trusts relabelled deaths as palliative care after the definition was widened in 2007. Hospitals’ standard mortality rates would fall, as palliative care deaths were considered normal and not down to poor care. Experts suggest that a figure of approximately 4% of deaths should be classified in this way, yet at the Medway NHS Foundation Trust, one of the trusts now under investigation, it jumped to 37%, which suggests that in one month hospitals had been transformed into hospices.

The paper reclassification improved hospitals’ mortality score by approximately a third, yet nothing had actually changed on the wards. In other words, they were fiddling the figures and, as a result, were masking poor care. The same tactic was used by Mid Staffordshire to obscure what was really going on, and the number of deaths classified even now as palliative care across England is still higher than expected, and higher than in comparable international countries. That needs to be looked at urgently. Until that happens, we cannot be confident that the 14 trusts currently under investigation—seven of which, we were told in 2010, were not a concern—are all that we need to worry about.

Perhaps more distressing is that management consultants profited from masking the real causes of those deaths. The CHKS advisory group visited hospitals to advise not on how to reduce mortality and save lives, but on how to make the figures look more normal.

[James Wharton (Stockton South) (Con)]

My hon. Friend is a respected member of the Public Accounts Committee, and I am sure he knows from his work on the Committee that target-driven culture, in whatever Government Department, can often lead to anomalies and inefficiencies. Is it not extremely worrying that the way the targets were framed in the case he highlights led not only to inefficiencies, but to actual loss of life? Would he suggest that this is not just a matter for the individual hospitals he has named, but for the entire target-driven process, which needs to be re-examined by the Government and the Minister?

[Stephen Barclay]

My hon. Friend is absolutely right. The deaths, in part, came from a target culture. The targets were not set with that intention, but that was the consequence.

We have to ask about the people responsible for fiddling the figures to meet those targets. Between 2007 and 2009, the chairman of the advisory board at CHKS was Niall Dickson—not a doctor, but a journalist—and he is now the chief executive of the General Medical Council. Has the Minister reviewed the role of CHKS in advising hospitals on how to reinterpret death rates, and is someone involved in such an organisation the right person to be regulating doctors today?

Not surprisingly, following the Francis report, there has been a flurry of activity to explain what new systems will be put in place, but as an ex-regulator I know that such changes, while introduced in good faith, are likely to be flawed. If we are to ensure patient safety, we need a culture change. The ultimate regulator is a well-informed patient. The ultimate inspectors are whistleblowers on the ground. We need quality transparent data for patients to be able to make real, informed choices about where to be treated and how to hold the NHS to account. It is remarkable that a report last week found that two thirds of doctors and nurses at some hospitals would not recommend their own hospital to their family and friends. What does that say about the regulation of those hospitals? It is common knowledge among NHS insiders that certain doctors are good and certain doctors and surgeons should be avoided. Why should patients be kept in the dark about that sort of information?

Those involved in projects such as the Dr Foster unit at Imperial are world leaders in providing health information, and the decision to publish heart surgery outcomes was welcome, but the status quo does not go far enough. Data are available privately showing outcomes broken down by hospital, department, ward and even individual doctor. I urge the Minister to start to make those data public. They have never been published. Those in the profession know what they contain; it is time we trusted the public with the truth. Of course, they need to be presented in a meaningful way, but there is a duty to explain them, not hide them. We have seen with heart surgery what a positive impact such transparency can have.

I ask the Minister to reflect on the following point. We now have the safest heart surgery in Europe, partly because we have data transparency, but that is down to consultant anaesthetist Steve Bolsin, who exposed high death rates for child heart surgery. That information, which was published in Private Eye, led to a public inquiry. The publication of those figures has clearly driven up standards, yet the impetus for change was not the Department of Health or the Royal College of Surgeons, but a whistleblower who was prepared to speak up—incidentally, is it not revealing that he no longer works for the NHS?

[Charlotte Leslie (Bristol North West) (Con)]

I thank my hon. Friend for his powerful and informative speech. Does he agree that what matters is not only ensuring that data are transparent for patient groups, but the quality of assessments, where we have seen a failure? Hospitals with obviously high mortality rates were deemed acceptable by assessors even before the fiddling of figures. Is that not partly because people not qualified to know the ins and outs of what goes on in, say, the operating theatre are going round, ticking the boxes and saying, “That’s all fine”, when in fact it is not? With the expert eye of another experienced clinician in the same field doing the assessment, very different outcomes would arise. It is because they have that knowledge and expertise that organisations such as the Royal College of Surgeons have been commissioned to carry out reviews.

[Stephen Barclay]

My hon. Friend is right. A lot of the people at the Care Quality Commission doing the clinical assessments are not clinically trained, and, even when they have a clinical qualification, it often does not relate to what they are looking at—for example, we might have doctors looking at baby units. Her point applies to coding as well: as seen in media reports last week, the people reinterpreting the coding are often not clinically trained.

Whistleblowers have a unique vantage point on what is happening with patient safety, but for too long we have hypocritically lauded their contribution publicly while silencing or gagging them in practice. The Commission for Health Improvement found problems at Mid Staffordshire back in 2002, a peer review of critically ill children by the strategic health authority criticised Mid Staffordshire in 2003 and 2006, and whistleblowers at Mid Staffordshire raised concerns as far back as 2005, yet the warning signs were not acted on. Many members of staff simply chose to close ranks. There appeared to be a bullying culture which discouraged people from coming forward, and those who did were threatened. One nurse at Mid Staffordshire summed up the position by saying:

“The fear factor kept me from speaking out”.

This is not an isolated case. It is almost beyond parody, but the Care Quality Commission, the body to which whistleblowers might turn, itself used gagging clauses. It disgracefully smeared Kay Sheldon, a member of its board. When she had the courage to speak out, it was suggested that she had mental health problems. That is the culture. As my hon. Friend the Member for Bristol North West (Charlotte Leslie) pointed out during Prime Minister’s Question Time last Wednesday, three reports commissioned to mark the 60th anniversary of the NHS in 2008 which identified problems appear to have been buried. One of those reports, to Ara Darzi, referred to a “shame and blame” culture, and said that fear was pervading the NHS and at least certain elements of the Department of Health. Why were those reports buried?

Figures I obtained after a two-year battle in Whitehall showed that £15 million of taxpayers’ money had been spent over three years to gag whistleblowers. Why are we spending £5 million a year to silence those who are brave enough to speak out? We hide behind the guidance which says that the Public Interest Disclosure Act 1998 protects them, but, as we have seen in the Gary Walker case, trust lawyers threaten and intimidate whistleblowers although they know about that protection. I welcome the Secretary of State’s recent letter, but I must point out that gagging clauses have no place in the NHS today.

[Jim Shannon (Strangford) (DUP)]

I thank the hon. Gentleman for bringing this important matter to the House’s attention. Does he agree that, at a time when mortality levels in the NHS are the highest they have been for years, the restoration of public confidence in the service is imperative? What steps does he think the Government should take to ensure that it is restored, and people no longer feel that it is dangerous to go to hospitals in our constituencies?

[Stephen Barclay]

The answer is to tell the truth. Constituents come to my surgery—I am sure that that the hon. Gentleman has the same experience—and talk about going to visit a husband of many years and finding him naked from the waist down, or taking soup in to feed patients. They know the issues. Let us be candid. There are many wonderful things about our NHS, but let us not hide the failures and concerns. Let us not have a culture of cover-ups that silences the whistleblowers.

An official NHS circular from 1998 states:

“It is not contrary to the Department of Health’s policy for confidentiality clauses to be contained in severance agreements.”

Will the Minister ensure that that is scrapped? The letter from the Secretary of State does not force trusts to take such action, and I think it is high time that we made the position on gagging clauses clear and beyond doubt.

Regulatory failure across hospitals nationally shows the need for greater data transparency, so that we can see the true patient outcomes and protect staff who speak out. That will secure a higher-quality and safer NHS for patients across the board. We need to move the health service out of its cover-up culture and into the light, and to ensure that individuals are held to account. The Prime Minister has said that sunlight is the best disinfectant, and that applies on our hospital wards. It is best for us to have well-informed patients and staff who are able to voice their concerns. It is clear from what happened at Mid Staffordshire, at the 14 hospitals that are under investigation, and at the 25 that were drawn to the attention of the Secretary of State that concerns about those hospitals—along with the many other concerns that are being expressed around the country—have not been acted on so far. I hope the Minister will be able to reassure us that he will now speed up such action.

--- Later in debate ---

[Dr Poulter]

Indeed, and thank you, Mr Speaker. I will, of course, do my best to take as many interventions as possible, but my hon. Friend the Member for New Forest East (Dr Lewis) will be aware that I have been generous so far and that the time allotted to Adjournment debates means that it is difficult to give as full an answer as possible to interventions. For that reason, it is useful to have some notice that an hon. Member intends to intervene.

My right hon. Friend the Prime Minister made the point clearly, as did Robert Francis in his report, that it was not for the Francis report to highlight individuals or blame them for what happened; the report was about ensuring that there was a clear acknowledgement that there had been systemic failure, which I talked about earlier. It was a failure of professionalism on the front line; a failure of the trust’s board; a failure of regulation and the regulators; and a failure of management at the trust. When systemic failure occurs, it is right that we put in place systemic solutions, and that is what my right hon. Friend the Secretary of State will do later this month.

My hon. Friend the Member for North East Cambridgeshire made the key point that a real culture change was required, and that that is about having transparency and openness in the NHS. He is right to highlight those points. If we want transparency and openness, we need to look at some of the steps that have already been taken. We know that the Public Interest Disclosure Act 1998, which in theory gives protection to whistleblowers and people who want to speak out, has not been effective. Legislative approaches have not been enough to ensure that people feel free to speak out. Legislation has so far not been effective in creating that culture of openness and transparency that we all believe is necessary.

However, we have seen two things in the past six months that will make a real difference, the first of which is the contractual duty of candour, which will be introduced in the NHS for hospital trusts. It will mean that there is support for openness and transparency as part of the NHS contract. The second is the strengthening of the NHS constitution, which brings direct support to the cause of whistleblowers. Those things will be further strengthened in our further response later in the month to what happened at Mid Staffordshire.

[Stephen Barclay]

I very much welcome the Minister’s assurance that there will now be changes for whistleblowers. I repeatedly raised my concerns with Sir David Nicholson in the Public Accounts Committee, so why did he continually tell me that there was no problem with the guidance or the legislation, and that adequate protection was in place for whistleblowers? The Minister is now accepting the need for change, but why did the chief executives tell me that there was no problem?

[Dr Poulter]

I say to my hon. Friend that the Department of Health has, like everyone who works for it, made it clear that gagging clauses are not and have never been acceptable in the NHS. There is a distinction to make between confidentiality clauses, which might be part of any financial settlement with anyone who works in either the commercial sector or the public sector, and a gagging clause. It is the duty of any front-line professional, according to and as part of their registration with the General Medical Council or the Nursing and Midwifery Council, to speak out when there are issues of concern. That is a part of good professionalism. That is what being a good professional is about. It is about someone saying that they recognise that there has been unacceptably poor care in a hospital or a care setting and that they have a duty, because they are a registered doctor or nurse, to speak out to highlight where problems have occurred. The point is that at Mid Staffordshire there was clearly a failure of that professionalism not only on the front line but at every level. Gagging clauses have never been considered by the Department of Health, certainly under the current Government, to be an acceptable part of the NHS. That was made very clear in a recent letter written by my right hon. Friend the Secretary of State to NHS hospitals and chief executives.

Health Transition Risk Register

Steve Barclay Excerpts

Thursday 10th May 2012 Commons Chamber

[Mr Lansley]

I am afraid that the right hon. Gentleman knows perfectly well that I took the decision to veto the publication of the risk register, in justification of the Government’s view that it should not be disclosed, in December 2010. I am now making it very clear that I have put all the risk areas covered in the risk register in the public domain in the document that sets them out. The issue is not about the publication of the risk register now; it is about whether it was right to refuse its publication in December 2010. He knows perfectly well that that is the question and that is the judgment we made.

[Stephen Barclay (North East Cambridgeshire) (Con)]

If the position of Labour Members is that the ministerial veto should apply only to Cabinet discussions, is it not odd that the legislation they passed does not contain that description? Is it not the case that the right hon. Member for Blackburn (Mr Straw) spoke for the reality of government rather than the opportunism of opposition?

[Mr Lansley]

I am grateful to my hon. Friend. I am sorry that the right hon. Member for Blackburn is not here; I told him that I would quote from his evidence to the Justice Committee. I will therefore not attempt further to interpret what his view might be. I think that what he said to the Justice Committee was consistent with the view that those implementing the FOI Act should bear it in mind that there was an exemption for the formulation and development of policy, as my hon. Friend implies. There was not an exemption for Cabinet collective discussion; there was an exemption for the formulation and development of policy. In each case, we have to weigh the public interest very carefully. Clearly, there will be many circumstances in which the public interest in disclosure outweighs the necessity for there to be a safe space for private discussions about issues of risk. In this case, in December 2010 my colleagues and I were clear that it would have been wholly wrong, and disruptive and damaging, to the policy development process for the document to be published at that time.

Oral Answers to Questions

Steve Barclay Excerpts

Tuesday 27th March 2012 Commons Chamber

[Mr Lansley]

I am grateful to my hon. Friend. We have recently made it clear that where there is unsustainable PFI debt—as is the case for seven PFI contracts—we stand ready to support those trusts in meeting some of those costs, which we inherited from the last Government. Beyond that, working with the Treasury, we have undertaken a pilot project that has demonstrated how 5%, on average, can be taken out of the cost of PFI contracts through the better management of them. I hope that will be applied across the country. I welcome, as I know my hon. Friend does, the way in which Northumbria Healthcare, with its local authorities, is looking at resolving its PFI debts, and if that represents value for money, I am sure that others across the country will benefit from the experience.

[Stephen Barclay (North East Cambridgeshire) (Con)]

9. What steps his Department is taking to develop more effective performance management of GPs.

[The Minister of State, Department of Health (Mr Simon Burns)]

As set out in the Health and Social Care Bill, performance management of general practice will become the responsibility of the new NHS Commissioning Board from April 2013. This will enable, for the first time, a single, consistent approach to be developed for the assessment and management of general practice.

[Stephen Barclay]

As with any profession, the performance of GPs varies widely. As more power is devolved to GPs, does my right hon. Friend recognise the importance of independent performance management of GPs, in order to identify outliers and improve patient care?

[Mr Burns]

I am extremely grateful to my hon. Friend, given his past association as a constituency MP with this subject, because of the problems in his constituency. I believe that we have a strong system of general practice in this country, but I am afraid that more can be done to address variations in aspects of the quality of provision by some general practitioners. As I have said, the NHS Commissioning Board will adopt a single, consistent approach, allowing an overview of performance, which is not currently possible, and ensuring that interventions occur at an early stage. I think that will go a considerable way towards helping with the problems that have been experienced.

Contaminated Blood

Steve Barclay Excerpts

Monday 10th January 2011 Commons Chamber

[Mr Lansley]

My hon. Friend will know from the response that my hon. Friend the Under-Secretary gave to October’s Back-Bench debate that we intended to place a note in the Library. We have done so. She has had further occasions to discuss these arrangements with colleagues in the House. The discussions between my officials and officials in the Republic of Ireland have confirmed that a figure of about £750,000 is not inappropriate as an estimate of the level of compensation per individual paid in the Republic of Ireland. That would support the view that we took in the House that the cost of providing compensation, if one were to do so, on the scale required in the Republic of Ireland would be in excess of £3 billion. As I said to the hon. Member for Hammersmith (Mr Slaughter), it is not on the basis of cost alone that we have reached that view; it is on the basis that the circumstances in the Republic of Ireland are unique and do not apply in this country. Therefore, we have assessed the case for support on the basis of the circumstances here and on an ex gratia basis, not on the basis of liability and consequent compensation.

[Stephen Barclay (North East Cambridgeshire) (Con)]

I also thank the Minister for the welcome measures announced in the statement and for the progress that has been made after so long. May I return to the average figure of £750,000, because there is a concern that that figure could be confusing the average and the mean? If we take a figure between 500 and a million and say that it is the average, it does not provide an average figure. Such an approach is akin to saying that the price of a car ranges from £10,000 to £1 million and therefore the average price of a car is £500,000. In relation to the discussions that the Minister has had with officials in Ireland, will he confirm that the total paid in Ireland—the total payment in terms of Irish settlements on this matter—is less than £1 billion?

[Mr Lansley]

As I have said in response to previous questions, I pay tribute to the work that my hon. Friends have done in support of their constituents and others. It is not simply a question of trying to calculate what the level of compensation is in Ireland; that is not the issue. We are not making a comparison with Ireland; we are making a judgment. In this case, we have especially done so in relation to hepatitis C, on the basis of the report of the clinical expert group, to try to assess the level of harm and the consequences that have flowed from the transfusions that took place, albeit that in this country the NHS acted on the basis of its best efforts to provide the best possible care for patients. The Republic of Ireland is a unique, and quite distinct, case in that because of mistakes made, a finding of liability was arrived at which leads to compensation. In our case, we are not in that position. We are in the position of recognising the harm and distress that has occurred and, through an ex gratia scheme, providing support to those who have been harmed and their families.