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Out in the open

HC report takes no prisoners as it exposes appalling standards of care in Kent

HC report takes no prisoners as it exposes appalling standards of care in Kent

The accountability of NHS Boards was tested to the limit in October at the Maidstone and Tunbridge Wells NHS Hospitals Trust. The Trust received a report from the Healthcare Commission (HC) following outbreaks of C. difficile which allegedly led to the deaths of 90, or possibly more patients.

The Commission report makes grim reading. It describes wards where beds were packed closely together, allowing infection to spread all too easily. It talks of a culture where overstretched nurses left ill elderly patients to defaecate in their own beds and lie in soiled linen for hours.

It highlighted confusion over hand-washing policies, inappropriate use of antibiotics and a Board focused more on financial targets than patient safety and the actual state of the hospital wards.

When the Trust finally received the HC report, CEO Rose Gibbs left immediately by mutual agreement. This means that she and her Board agreed that she could depart with a confidential compromise agreement, allowing her a once-off cash payment and an agreed reference in exchange for her speedy departure.

This gave the impression that the CEO - as accountable officer for the quality of patient care - left quickly, allowing the Trust to move on and improve its game. This plan subsequently backfired, raising many questions for the whole NHS as to how accountability really works.

In England and Wales, NHS Boards are bound by a statutory duty of quality under the NHS Act of 1999. This duty requires them to implement robust clinical governance frameworks to ensure service quality and ongoing improvement, and it is regulated by the HC.

The Board and, ultimately, the CEO are totally responsible for these matters in all NHS settings. It can be argued therefore that the Trust in Kent did the right thing in allowing its CEO to go quickly. However, the problems that unfolded subsequently call into question how the NHS actually manages such cases.

The report from the HC was written by a team of investigators who are highly competent and credible, and recorded a catalogue of appalling standards - it was not a routine Commission document.

The HC was clear that people probably died as a result of hospital acquired C. difficile. The media, local MPs and patients' relatives were therefore shocked to learn that the CEO had departed with a substantial pay off. They expected Rose Gibbs, in effect, to be sacked.

Shortly after the departure of the CEO, the Secretary of State for Health, Alan Johnson made an extraordinary intervention, instructing the Board to withhold any payment to the CEO pending legal advice. In normal circumstances an agreement between an NHS Board and a senior employee is a legal matter between the two parties and it would be highly improper for a minister to intervene. In this case the Secretary of State was sending a signal of his displeasure at the events in this Trust, probably knowing that in effect he could do little to prevent a legally binding agreement between the CEO and her employers. How is this state of affairs allowed to happen in the NHS?

Upper echelons
The NHS is governed by part-time chairs and non-executive directors, who in turn appoint the CEO and full-time executive directors, who run the Trust on a daily basis. At the top of the NHS, a CEO or executive director has a contract of employment like any other employee. The contract implies responsibilities and rights, the rights being protection against unfair treatment and the application of employment law in managing disputes between employer and employee.

NHS managers are also bound by a code of conduct, which spells out the rights and responsibilities of Boards and senior staff, including the right to fair and equitable treatment. Yet too often at the top of NHS Boards part-time chairs seem to forget that CEOs and directors have any clear rights and should enjoy exactly the same application of policies and procedures as a basic grade staff nurse or porter. This is where things unravel badly, with costly consequences for the tax payer.

When a Board in the NHS thinks it faces a crisis it is tempting for the chair to take quick action and to be seen doing so. Subsequently, a CEO or senior manager is taken behind closed doors and told to leave or face dire consequences, thus ignoring all normal best practice in employment law. No sane employer would treat a front-line nurse in such a manner.

If serious issues of conduct arise, most NHS staff are suspended on full pay and a rigorous investigation into allegations follows. There is a presumption of innocence until guilt can be proven. If a case was found after investigation the employee would be told the exact nature of the allegations and be able to explain themselves through the disciplinary procedure.

If found guilty of gross misconduct the employee would face dismissal, with or without payment of any notice period. The employee would also have the right of appeal against the decision to the Board of the Trust. When it comes to CEOs and directors, these basic rules are too often ignored, leading to complicated legal arguments and massive payouts under confidential compromise agreements. The situation at the Kent hospitals is just one example of hundreds of cases that go wrong in the upper echelons of the NHS, yet it is in some ways different.

In many cases of disputes at Board level there are rarely clear black and white arguments to be explored and settled. What constitutes good or bad performance can be messy and sometimes a compromise agreement, allowing the individual and the organisation to move on in an amicable fashion, is a reasonable solution which I have witnessed on many occasions.

In the Kent hospitals however, issues seemed far clearer. The Board was faced with an atrocious report about poor standards of care, which also suggested that the Board itself was not sufficiently aware of the nature and extent of C. difficile infection levels. This was no routine Commission report: it was dynamite and the chair and non executives should have recognised that.

In such circumstances a wiser Board should have suspended the CEO without prejudice and applied normal policies and procedures. If a substantial case against the employee could have been proven then dismissal without a pay off would have been defendable and more acceptable to patients, their families, politicians and tax payers. This approach was ignored and in a subsequent debate in Parliament the Secretary of State announced the resignation of the Board chair about a week after the departure of the CEO.

This sorry state of affairs is further compounded by the fact that the HC report has been handed to the Health and Safety Executive and Kent Police to see if any prosecutions might be appropriate. This has the potential to see either senior NHS managers, or indeed the whole Board hauled before the courts facing criminal charges. In addition, it is probable that the relatives of some who died may pursue legal action against the Trust.

The Kent hospitals saga is highly unusual and is not representative of the true state of NHS care or standards, but it does raise key questions about the governance of the health service as a whole. When people are screened and appointed as chairs and non-executive directors, what training are they given about their roles, their stewardship of public money and the place of employment law in managing their affairs? I suspect that the answers to these questions are far from clear.

In a service spending nearly £100bn of tax payers' money, employing around 1.3 million staff, there is an urgent need to review the training and development needs of these part-time NHS governors. In addition, all NHS Boards should be instructed by ministers that NHS CEOs and directors should be subject to fair and equitable employment policies in line with good practice unless there is a compelling case to do otherwise. This would make accountability clear to all concerned and save the tax payer and the NHS many millions of pounds.

Out of this very negative story there are some positive outcomes. Despite the long HC inquiry the public can be assured that independent inspection in the NHS is alive and well and pulls no punches where standards are found to be failing patients.

Public scrutiny of this story is obviously painful for individuals, but it does show that those who run the NHS will be called to account very transparently when things go badly wrong. This case will also sharpen the minds of all NHS Boards to remember that a focus on patient safety must always be at the top of the agenda, whatever other pressures are at work. These tragic events have highlighted key issues for the whole NHS, which the public should welcome.

The Author
Ray Rowden is an associate with the Healthcare Commission but writes in a personal capacity

25th November 2007

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