Archive for the ‘NHS’ Category

Taking Complaints Seriously

In 2013, Care, NHS on February 7, 2013 at 10:11 am

The Francis Report carries a powerful chapter explaining how NHS complaints procedures developed over the past decade, and in some ways have moved backwards. It makes a series of recommendations for improvement, including the need for independent advocacy and arms-length investigations and the transparency of complaints data to commissioners and local authority scrutiny committees. These system reform should not detract from the crucial observations about failures in governance. Even without changes the NHS could, and should, have done better.

The Report quotes the Chair of the Trust as denying that complaints were her personal business – ‘A complaint that’s investigated properly and resolved is then put to bed and doesn’t need to come to the attention of the hierarchy in the organisation, actually’ (para 3.22). The Board appeared to receive statistical reports but not to have examined the substance of the complaints. Robert Francis points out that ‘such an approach completely ignored the value of complaints in informing the Board of what was going wrong, and what, if anything, was being done to put it right’ (para 3.33).

Patterns of complaints are an important barometer of difficulties, especially when patterns are monitored (which wards come up frequently, the substance of the complaint – all too often staff attitudes – and changes over time) and are correlated with other measures of stress (staff sickness, data from staff surveys showing lack of confidence in leadership or the quality of care). Plenty of other data sources exist to help organisations assess how safe they are, including the National Reporting and Learning System which generates organisational reports on the rate of reporting incidents. Staff surveys report on the perception of how likely they are to make reports. There is plenty of data to support organisations in picking up problems early if they are prepared to look for it. Many of these data are available to commissioners and the public – you can look up your local organisations’ profiles through the link.

These data enable problems to be identified, but do not tell you how your organisation responds. Boards should satisfy themselves that the responses are appropriate and expect reports to detail not just whether complaints were upheld but also what has changed as a result. Further, Board members are wise to see a sample of complaints responses if they wish to understand the culture of their organisation. I have seen resistance to giving a straight answer, defensive protection of staff, and an institutional reluctance to say sorry – all displayed in draft letters that needed correction before being sent. You learn a lot from seeing your organisation through the eyes of those it has failed to serve well. There is no substitute for meeting and listening to them.

Jonathan Montgomery reflects on his experience of serving on NHS Boards for two decades in the light of the Mid-Staffs Report.


Francis Report – a catalogue of shame

In 2013, Care, NHS on February 6, 2013 at 2:40 pm

The Report of the Inquiry into the Mid-Staffordshire Scandal was published today. In his statement, Robert Francis QC said ‘This is a story of appalling and unnecessary suffering of hundreds of people. They were failed by a system which ignored the warning signs and put corporate self interest and cost control ahead of patients and their safety. I have today made 290 recommendations designed to change this culture and make sure that patients come first.’

The scale of the failures in Patient Care had been exposed by the earlier Inquiry, the focus here is how it could be that the failures went unnoticed, unchallenged and unaddressed for so long. The Report makes it clear that there was a major failure of governance from the Trust board, whose members have already been removed from office. However, the problems are deeply rooted in a cultural malaise in which the quality of care for patients ceased to be the primary focus of the organisation. Too many people, not just managers and professionals, tolerated unacceptable standards of care. The systems designed to give voice to patient perspectives failed. Performance management lost sight of patient care in a focus on financial control and high level targets. Regulatory oversight was both fragmented and unco-ordinated.

This is a crisis of values and requires sober reflection, acceptance of responsibility and concerted action to create a common purpose around high quality patient care. As the Report says, a ‘culture of caring requires a displacement of a culture of fear with a culture of openness, honesty and transparency’ Para 1.180.

Robert Francis will be in Southampton on 4 March to reflect on the Report and its significance at the inaugural Hickman & Rose/Centre for Law, Ethics and Globalisation lecture. We look forward to exploring it with him.

NHS Rationing: Introducing a new blog

In 2012, NHS on October 8, 2012 at 6:45 am

No, not a new blog by us, but a site devised & maintained by David Lock QC, a barrister at No 5 Chambers, who specialises in Health Care Law. David’s aim is to ‘seek to explain the reality of NHS Rationing and Post Code Prescribing within the NHS’. Just to be clear, the site is ‘independent of the NHS or any firm of solicitors’.

Initial posts include a guide to Individual Funding Requests, possible legal issues raised by post-code variations in the provision of IVF:  ‘IVF postcode lottery’ and of course David’s welcome post. There is a section dedicated to relevant case studies,  on how to challenge treatment decisions, and how to get the best use of the site.

We wish David the very best on his entry into the blogosphere!

Clinical Negligence and the NHS

In 2011, NHS on November 15, 2011 at 1:45 pm

In June 2011 the Health Select Committee published a report on Complaints and Litigation in the NHS. It supported the continuation of fault-based compensation, concluding that that ‘the existing clinical negligence framework based on qualifying liability in tort offers patients the best opportunity possible for establishing the facts of their case, apportioning responsibility for errors, and being appropriately compensated’ (Para 157). However, it was very critical of claims management firms, which it thought pushed people into litigation rather than using complaints procedures and unduly contributed to the rising costs of clinical negligence (Para 172). The Government’s response to the report indicates that the Ministry of Justice is working closely with the NHS Litigation Authority (NHSLA) and the Association of Personal Injury Lawyers (APIL) to agree a scheme that will enable a speedier resolution of lower value clinical negligence cases and aims to reduce costs (Para 147). It also notes that the Jackson reforms of civil litigation, being implemented through the Legal Aid, Sentencing and Punishment of Offenders Bill, will have a significant effect in this area (Para 19). The Ministry of Justice is now consulting on the regulation of claims management firms.

The two volumes of evidence to the Select Committee contain a considerable amount of information on concerns about this area of law and practice. The previous parliamentary report by the Constitutional Affairs Select Committee on the (non)existence of a compensation culture is also relevant. The publication of the industry review of the NHSLA is still awaited, as is the implementation of the NHS Redress Act 2006 despite the initial policy announcements from the Department of Health. It does seem clear from the Annual Report of the NHSLA for 2011 that there is a significant increase in both the number of clinical negligence claims received by the NHS and also the money paid out in compensation and legal expenses.

New Chair for NHS Commissioning Board

In News, NHS on October 17, 2011 at 9:42 am

Former Southampton law lecturer, Malcolm Grant, has been announced as  the preferred candidate to Chair the NHS Commissioning Board and will appear before the Health Select Committee this morning prior to his appointment being confirmed.

The Commissioning Board will be at the centre of the NHS, and Malcolm’s appointment is a crucial one. The Commissioning Board will establish the strategy for the NHS under the reforms to be introduced by the Health and Social Care Bill currently before Parliament and oversee its operation. We already know that Sir David Nicholson will be the first chief executive of the Board, ultimately to be known by the modest name of NHS England. That provides continuity with the current system. The Chair needs to respect the learning of the past, but also be bold in shaping a better future.

It is easy to see why Malcolm was an attractive candidate. He has an impressive record of delivery in public facing organisations with a global reputation, having built University College London (of which he is currently Provost) into a strong global brand. He is used to working in a knowledge based economy with some of the leading practitioners in the world, something the NHS aspires to (and sometimes, but sadly not always, achieves). He is familiar with the political dynamics of policy making in the public sector, having chaired the Local Government  Commission for England for five years. He is no stranger to public concern, having chaired the Independent Steering Board for the  Public Debate on Genetically Modified Foods. He can work with business and has a Prime Ministerial appointment as British Business Ambassador to show for it. All in all, well qualified for the role.

We look forward to seeing how he tackles his new NHS position.

Jonathan Montgomery declares interests as both chair of NHS Hampshire and also a former colleague of Malcolm’s when he was at Southampton’s Law School. The views expressed are, of course, his own.

This time last month: Tom Condliff & his gastric band request

In 2011, NHS, Testing project on September 12, 2011 at 8:57 am

On 15 August 2011, the BBC reported that Tom Condliff’s renewed request for a ‘gastric band’ had been granted by North Staffs PCT. Mr Condliff had previously requested this surgery, but the PCT in question had turned down his request as his BMI (body mass index) fell below the required threshold set out in the relevant policy – his was reported to be 43, whereas the policy in question required a minimum BMI of 50 before this operation would be routinely provided (among other conditions, including the clinicians indicating it was necessary, and the consent of the patient in question).

Part of the PCT’s policy excluded consideration of social factors, meaning that non-medical/non-clinical matters could not be used in consideration of the ‘exceptionality’ of a given case. The PCT refused his ‘individual funding request’ (IFR), which Mr Condliff had made based on the ‘exceptional’ circumstances of his case; and thereafter he sought judicial review of the PCT’s decision.

His application – based on arguments around the applicability of Article 8 of the Human Rights Act 1998 (right to respect for private and family life), together with section 6 of the same Act (whereby it is unlawful for a public authority to act in a way which is incompatible with a Convention right) – failed in both the High Court on April 7, 2011, and in the Court of Appeal on July 27, 2011. 

He submitted a new IFR in August 2011, and it was reported (by the BBC, above) that he was informed soon after that the request and additional medical evidence brought him within the exceptional category as per the PCT’s policy.

Other links:

Guardian: http://www.guardian.co.uk/society/2011/jul/31/tom-condliff-gastric-band-appeal?INTCMP=SRCH

Telegraph: http://www.telegraph.co.uk/health/healthnews/8703065/NHS-funds-weight-surgery-for-obese-man-despite-court-loss.html

Mills and Reeve (the N Staffs PCT’s solicitors) briefing on CA decision (27/07/11): http://www.mills-reeve.com/files/Publication/34b1ea56-ce83-4b47-a714-b7e2255cecd9/Preview/PublicationAttachment/a56af14a-d151-488f-96d9-bb64ab85d749/R_(Condliff)vNorth_Staffordshire_PCT_26_July%20_2011.pdf

Looking back 10 years: NHS reform!

In 2001, NHS on September 5, 2011 at 8:35 am

Originally announced in July 2001 (foreword by Nigel Crisp), in the Shifting the Balance of Power Within the NHS: Securing Delivery paper, the Department of Health’s NHS Plan was ‘about improvements for patients and the public’, by – among other things – developing the Primary Care Trusts (PCTs), the creation of  ‘fewer, larger and more strategic health authorities’ and ‘re-focusing the Dept. of Health ‘on doing only those things that only it can do.’

Come September 2001 the Dept. of Health issued consultation documents on ‘Modernising the NHS’ through restructuring, including our ‘local’ consultation on Modernising the NHS: Shifting the Balance of Power in the South East, on the proposals for a new Health Authority for Hampshire and the Isle of Wight.


NB in the interests of transparency, we should probably declare at this juncture that Jonathan Montgomery is the current Chair of Hampshire Primary Care Trust.