NHS ‘must shift to open culture’

A group of MPs appointed by the House of Commons to examine the policy and expenditure of the Department of Health, the Health Committee has published a response to the findings of the Francis Report which warns that “the future of the NHS rests on a wholesale shift to an open culture.” The report1 states that Trusts and other care providers have a fundamental duty to establish and maintain an environment where the concerns about patient safety and care quality raised by clinicians or managers can be discussed openly and directly. In the report, the Committee recognises the unambiguous professional duty on healthcare professionals to raise concerns about the safety and quality of care delivered to patients, stating that managers should also be expected to raise any concerns they have about the safety and quality of care openly and without risk of detriment. Commenting on the publication, Rt Hon Stephen Dorrell MP, chair of the Committee, said: “The NHS needs to be an organisation in which an open dialogue about care quality is part of the natural culture of the organisation, not a duty which only arises in cases of service failure. “Robert Francis made 290 recommendations in his report, but in truth they boil down to just one – that the culture of ‘doing the system’s business’ is pervasive in parts of the NHS and has to change.” He added that this cultural change will require “a system where it is easier to raise a genuine concern about care standards or patient safety than it is not to do so,” and pointed out that many who raise their concerns in the NHS, at present, risk serious consequences for their employment and professional status. “Disciplinary procedures, professional conduct hearings and employment tribunals are not the proper place for honestly-held concerns about patient safety and care quality to be aired constructively,” he continued. “The NHS standard contract imposes a duty of candour on all NHS providers. This is an essential principle, but it is not adequately understood or applied. It should mean that all providers create a culture which is routinely open both with their patients and their commissioners. The same principle should apply to commissioners so that they are routinely open and accountable to local communities. The Health Committee recommended this approach in 2011, and we repeat this recommendation in this report.” He added that the Committee believes that a prime role of the CQC should be to encourage the development of this culture within care providers, and of NHS England to develop the same culture within commissioners. It is also important to ensure that any new statutory duty of candour is consistent with these broader obligations to patients, commissioners and the wider community. The report provides a wide ranging review of the Francis recommendations, outlining its conclusions on a number of areas relating to patient safety and raising concerns.

Raising concerns and resolving disputes

The Committee was particularly critical of ‘severance payments’ which, in the past, have been used to ‘gag’ individuals from openly discussing concerns. The report states that “any ‘gagging’ clause in an agreement, which has the effect of inhibiting the free discussion of issues of patient safety and care quality, is unlawful and no NHS body should seek to enforce any such agreement in a way which inhibits the free discussion of such issues.” The Committee made ‘no finding of fact’ in the case of Mr Gary Walker, former chief executive of United Lincolnshire Hospitals NHS Trust, who alleged that he had been forced to compromise patient safety to achieve hospital access targets. However, the Committee expressed concern that the Trust and its legal representatives showed “insensitivity and a lack of discretion in seeking to restrain Mr Walker from giving a radio interview in which he planned to discuss his concerns.” The Committee added that it had received an assurance from the incoming Chair of the Care Quality Commission that its standard compromise agreement with employees makes it explicit that such agreements do not prevent the raising of legitimate concerns though protected disclosures. The Committee has also recommended that the CQC write to each individual with which it has an existing compromise agreement to state unambiguously that the terms of such agreements will not be enforced on individuals seeking to raise concerns in the public interest through protected disclosures. The report points out that as many as 50 special severance payments made to former NHS staff may have escaped Department of Health and Treasury scrutiny, as they were agreed through a process of judicial mediation which had been deemed not to require the approval of the Chancellor or the Secretary of State for Health. While the Committee welcomed the closure of this loophole, it concluded that it is unacceptable that, in several cases, the payment of public money in settlement of claims against NHS bodies had been made outside normal approval procedures intended to safeguard public money.