Category Archives: Regulation

  1. Response to the concerns we have expressed on the Mental Capacity (Amendment) Bill. As my colleague stated (6 and 7), we cannot take our eyes off the ball on this. The Chair of the Relatives and Residents is an SHA member and some of you may have heard her speak at meetings/conferences our organisation either ran or was part of:

 

  1. I reproduce here the Noble Baroness Thornton’s Speech on the above resolution:-

 

  1. VOLUME 7904 – COLUMN 596 “My Lords, I feel sorry for the Minister that after so much agreement we are now criticising the Bill. However, the reason we have reached a happier state than the one we started off in in July is due to the work of a great many people, including the Minister and the Bill team.

I have put my name to several amendments in this group—I support my noble friend Lord Hunt and the noble Baroness, Lady Tyler, in what they have said—and I shall speak to Amendments 143A and 147A.

In a way, the amendments are part of what should have happened before the Bill reached us; that is exactly right. It is important to note that a coalition of organisations is concerned about what is and is not in the Bill and how it will be implemented. For the record, we have discussed the Bill with at least 44 organisations in the very short time we have had to consider it. They include Mind, the Alzheimer’s Society, Liberty, Learning Disability England, Disability Rights UK, the Relatives & Residents Association, the Care Provider Alliance, VODG—the voluntary sector’s disability group—and many others. We must pay credit to both them and the noble Lords who have worked so hard on this for the fact that we have to come to a point where the Bill has significantly changed and been improved.

Echoing what my noble friend said, the amendments ask that the revised codes of practice for the Mental Capacity Act take account of Schedule 1 to the Bill and, prior to the provisions in the Act coming into force, that the code be revised by statutory instrument using the “made affirmative” procedure. Amendment 143A states:

“Before any provisions of this Act other than those which come into force on its passing come into force … the Secretary of State must publish a report detailing which of the provisions of the Act will be consulted on, by whom and by when … publish his or her consideration of the conclusions of the Independent Review of the Mental Health Act … conduct further consultation with vulnerable people, families, charities, providers … publish an equality impact assessment on the impact of the provisions of this Act”.

I would like the Minister to say that the Government have done the equality impact assessment but I have missed it somehow. However, it seems that the Government are duty-bound to consider the impact on people with protected characteristics under the Equality Act. An equality impact assessment is the established way of the Government showing that they have considered the impact on vulnerable groups. That Act begs that this process should have been gone through in preparation for the Bill. I hope that a full equality impact assessment will be conducted and made available to the Commons when it considers the Bill.”

  1. The Following is part of the Response of the Noble Lord, Lord O’Shaughnessy, The Parliamentary Under-Secretary of State, Department of Health and Social Care, relating specifically to Amendment 143A standing in the name of the Noble Baroness Thornton previously circulated.

 

  1. VOLUME 794 – COLUMN 599. “Amendments 143A and 147A, tabled by the noble Baroness, Lady Thornton, would require the Government, before the new system could come into force, to conduct public consultation on the Act with vulnerable people and other stakeholders and publish a report on its findings, as well as to publish their response to the Mental Health Act review and an equality impact assessment. I hope that I have dealt with the issue of public consultation, as well as consultation on the code and, equally, on the Mental Health Act review. The noble Baroness is quite right to bring the equality impact assessment to the House’s attention. It was prepared prior to introduction and required amendment following input from the Welsh Government. It will now need to be amended further to reflect the changes made in the Bill. I can commit to publishing the equality impact assessment before the Bill makes it to the Commons so that there will be ample time for consideration before it is debated there.”
  2. Following the Noble Lords response Amendment 143A was not moved, but not withdrawn as other motions had been.

 

  1. I respectfully suggest that we and our counterparts/cosignatories cannot not take our eye off the ball. It is my experience that information can be changed or lost in the plethora of legalise wording of legislation.

 

 

 

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SHA Wales

 

‘LEGISLATION WATCH WALES’ – October 2018

Health and Social Care Briefing

Acts

Additional Learning Needs and Education Tribunal (Wales) Act 2018

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=16496

The Act makes provision for a new statutory framework for supporting children and young people with additional learning needs. This is to replace existing legislation surrounding special educational needs and the assessment of children and young people with learning difficulties and / or disabilities in post-16 education and training.

The Act also continues the existence of the Special Educational Needs Tribunal for Wales and provides for children, their parents and young people to appeal to it against decisions made in relation to their or their child’s additional learning needs, but renames it the Education Tribunal for Wales

The Bill was introduced on 12 December 2016. Royal Assent was given on 24 January 2018.

Abolition of the Right to Buy and Associated Rights (Wales) Act

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=17260

According to the Explanatory Memorandum accompanying the Act, the purpose and intended effect of the Act is to end all variations of the Right to Buy and the Right to Acquire.

The key purposes of the Act are to:

  • abolish the right of eligible secure tenants to buy their home at a discount under Part 5 of the Housing Act 1985 (Right to Buy);
  • abolish the preserved right of eligible former secure tenants to buy their home at a discount under section 171A of the Housing Act 1985 (Preserved Right to Buy);
  • abolish the right of eligible assured or secure tenants of a registered social landlord or private registered provider to acquire their home at a discount under section 16 of the Housing Act 1996 (Right to Acquire);
  • encourage social landlords to build or acquire new homes for rent, the Right to Buy, Preserved Right to Buy and Right to Acquire will not be exercisable by tenants who move into new social housing stock more than two months after the Bill receives Royal Assent, subject to certain exceptions;
  • provide for at least one year after the Bill receives Royal Assent before the abolition of the Right to Buy, Preserved Right to Buy and Right to Acquire for existing social housing stock comes into force.

Further detail about the Act can be found in its accompanying Explanatory Memorandum.

The Bill was introduced on 13 March 2017. Royal Assent was given on 24 January 2018.

Public Health (Minimum Price for Alcohol) Wales Act

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=20029

The Act provides for a minimum price for the sale and supply of alcohol in Wales by certain persons and makes it an offence for alcohol to be sold or supplied below that price.

The Act includes provision for:

  • the formula for calculating the applicable minimum price for alcohol by multiplying the percentage strength of the alcohol, its volume and the minimum unit price (MUP);
  • powers for Welsh Ministers to make subordinate legislation to specify the MUP;
  • the establishment of a local authority-led enforcement regime with powers to bring prosecutions;
  • powers of entry for authorised officers of a local authority, an offence of obstructing an authorised officer and the power to issue fixed penalty notices (FPNs)

The Act proposes the MUP would be specified in regulations. However, for the purpose of assessing impacts and the associated costs and benefits, the Explanatory Memorandum uses a 50p MUP as an example.

The Public Health (Minimum Price for Alcohol) (Wales) Act became law in Wales on the 9th of August 2018.

Regulation of Registered Social Landlords (Wales) Act

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=19962

The purpose of the Act is to amend or remove those powers which are deemed by the Office for National Statistics (“ONS”) to demonstrate central and local government control over Registered Social Landlords (RSLs).

These changes will enable the ONS to consider reclassifying RSLs as private sector organisations for the purpose of national accounts and other ONS economic statistics.

Further detail about the Act can be found in its accompanying Explanatory Memorandum.

The Regulation of Registered Social Landlords (Wales) Act 2018 became law in Wales on the 13th of June 2018.

Law Derived from the European Union (Wales) Act 2018

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=21280

A Government Emergency Bill, introduced by Mark Drakeford AM, Cabinet Secretary for Finance. An Emergency Bill is a Government Bill that needs to be enacted more quickly than the Assembly’s usual four stage legislative process allows. A definition of an Emergency Bill is not provided in the Government of Wales Act 2006 (“the 2006 Act”) or in the Assembly’s Standing Orders however Standing Order 26.95 states that:

“If it appears to a member of the government that an Emergency Bill is required, he or she may by motion propose that a government Bill, to be introduced in the Assembly, be treated as a government Emergency Bill.”

As with all Assembly Bills, Emergency Bills must relate to one or more of the 21 Subjects contained in Schedule 7 to the 2006 Act in order for it to be within the scope of the Assembly’s legislative powers.

The Act is intended to preserve EU law covering subjects devolved to Wales on withdrawal of the UK from the EU. Further, it will enable the Welsh Ministers to ensure that legislation covering these subjects works effectively after the UK leaves the EU and the European Communities Act 1972 is repealed by the European Union (Withdrawal) Bill.

The Act enables the Welsh Ministers to legislate to maintain regulatory alignment with the EU in order to facilitate continued access to the EU market for Welsh Businesses. It also creates a default position in law whereby the consent of the Welsh Ministers will be required before any changes are made by UK Ministers to devolved legislation within the scope of EU law.

Further detail about the Bill can be found in its accompanying Explanatory Memorandum.

The Law Derived from the European Union (Wales) Act 2018 became law in Wales on 6 June 2018.

Legislation in Progress – current Bills

Public Services Ombudsman (Wales) Bill

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=20012

This is a Committee Bill, introduced by Simon Thomas AM, Chair of the Finance Committee. The Business Committee has remitted the Bill to the Equality, Local Government and Communities Committee. The Bill includes provision which set out the new powers for the Ombudsman to:

  • accept oral complaints
  • undertake own initiative investigations
  • investigate private medical treatment including nursing care in a public/private health pathway
  • undertake a role in relation to complaints handling standards and procedures

 

Further detail about the Bill can be found in its accompanying Explanatory Memorandum. The Bill is currently at stage 2.

Autism (Wales) Bill

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=19233

An Assembly Member Bill, introduced by Paul Davies AM was successful in a legislative ballot in March 2017, and given leave to proceed with his Bill by the Assembly in June 2017.

The Business Committee has remitted the Bill to the Health, Social Care and Sport Committee.

The overall purpose of the Bill is to ensure the needs of children and adults with Autism Spectrum Disorder in Wales are met, and to protect and promote their rights.  The Bill delivers this purpose by seeking to:

  • Introduce a strategy for meeting the needs of children and adults in Wales with ASD conditions which will:
    • Promote best practice in diagnosing ASD, and assessing and planning for meeting care needs;
    • Ensure a clear and consistent pathway to diagnosis of ASD in local areas;
    • Ensure that local authorities and NHS bodies take necessary action so that children and adults with ASD receive the timely diagnosis and support they need across a range of services;
    • Strengthen support for families and carers and ensure their wishes, and those of people with ASD, are taken into account;
    • Promote research, innovation and improvement in ASD Services;
    • Establish practices to enable the collection of reliable and relevant data on the numbers and needs of children and adults with ASD, so that the Welsh Ministers, and local and NHS bodies can plan accordingly;
    • Ensure key staff working with people with ASD are provided with appropriate ASD training; and
    • Regularly review the strategy and guidance to ensure progress.
  • Require the Welsh Ministers to issue guidance to the relevant bodies on implementing the strategy.
  • Require the Welsh Ministers to collect suitable data to facilitate the implementation of the Bill.
  • Require the Welsh Ministers to undertake a campaign to raise awareness and understanding of ASD.

Further detail about the Bill can be found in its accompanying Explanatory Memorandum.

The Bill is currently at stage 1 (consideration of the general principles of the Bill and the agreement of the Assembly to those principles).

Childcare Funding (Wales) Bill

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=21394

A Welsh Government Bill, introduced by Huw Irranca-Davies AM, Minister for Children, Older People and Social Care. The Business Committee has remitted the Bill to the Children, Young People and Education Committee.

The Childcare Funding (Wales) Bill (“the Bill”) gives the Welsh Ministers the power to provide funding for childcare for qualifying children of working parents and to make regulations about the arrangements for administering and operating such funding.

The Bill is intended to facilitate the delivery of a key commitment in the Welsh Labour manifesto ‘Together for Wales 2016’. This is to provide 30 hours per week of government funded early education and childcare to the working parents of three and four year olds in Wales for up to 48 weeks per year (this is referred to in the Explanatory Memorandum accompanying the Bill as ‘the Offer’).

All eligible 3 and 4-year-old children (from the term after their third birthday) are entitled to a minimum of 10 hours early education per week during term time over 39 weeks of the year. The Offer builds on this universal entitlement and provides up to a total of 30 hours early education and care per week over 48 weeks of the year for the 3 and 4 year olds of working parents.

The Bill relates to the childcare element of the Offer and is therefore concerned with the funding that will be provided in respect of the eligible children of working parents.

Further detail about the Bill can be found in its accompanying Explanatory Memorandum.

The Bill is currently at stage 1 (consideration of the general principles of the Bill and the agreement of the Assembly to those principles).

Renting Homes (Fees etc…) Wales Bill

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=22120

A Welsh Government Bill, introduced by Rebecca Evans AM, Minister for Housing and Regeneration. The Business Committee has remitted the Bill to the Equality, Local Government and Communities Committee.

The Bill includes provision for:

  • prohibiting certain payments made in connection with the granting, renewal or continuance of standard occupation contracts;
  • the treatment of holding deposits.

Further detail about the Bill can be found in its accompanying Explanatory Memorandum.

The Bill is currently at stage 1 (consideration of the general principles of the Bill and the agreement of the Assembly to those principles).

Future and possible Bills (of interest)

Assembly members have voted to introduce a Welsh Parliament and Elections Bill due to be brought forward in early 2019. The Bill will be designed to change the name of the Assembly to Senedd Cymru/Welsh Parliament; lower the voting age for Assembly elections to 16; amend the law relating to disqualification from being an Assembly Member and make other changes to the Assembly’s electoral and internal arrangements.

http://www.assembly.wales/en/newhome/pages/newsitem.aspx?itemid=1910&assembly=5

In the statement on forthcoming legislation 2018/19, the First Minister highlighted:

  • A Bill to remove the defence of reasonable punishment
  • A Bill to improve accessibility of Welsh Law and how it is interpreted
  • A Local Government Bill (lowering the age for elections and a range of other proposals – not ‘wholescale merger’)
  • A Bill to establish an Duty of Quality for the NHS and a Duty of Candour for Health and Social Care, introduce and establish a new independent body to represent the citizen’s voice in health and social care services and will require LHBs to appoint a Vice Chair
  • Ban the use of wild animals in travelling circuses

Updated October 2018

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Following the Judicial Review in London in July, NHS England quietly launched its promised public consultation on the Integrated Care Provider (ICP) Contracts on 4 August. The consultation closes on 26 October.  If the appeal granted at the other Judicial Review called for by 999 Call for the NHS in Leeds is successful, this ICP contract may yet be unlawful, but it is nonetheless essential that we respond to the feedback.

The ICP consultation document is a daunting read for most of the public. However, Health Campaigns Together (HCT) has provided expert answers to all 12 points in the public feedback document. 

HCT’s aim in providing these answers is to prevent flawed plans being adopted. They are seeking to prevent long-term contracts being signed that will undermine our NHS. This is in order to preserve any hopes of achieving a genuine integration of health and social care as public services, publicly provided free at point of use – and publicly accountable.

 

A reminder on what’s happened so far: There have been two judicial reviews on the Accountable Care Organisations and these Integrated Care Provider (ACO/ICP) contracts. And the courts found in favour of the NHS. But one of the campaign groups, 999 Call for the NHS, has now been granted permission to appeal. 

This is some very good news. But it also means NHS England is consulting on an ACO/ICP contract that may be unlawful. 

NHS England knew full well that an appeal was a possibility. Although fully aware of this, on Friday 3rd August – the day Parliament and the Courts went on holiday – NHS England started a public consultation on the ACO/ICP contract. The consultation says that the Judicial Reviews had ruled in their favour. This consultation runs until 26 Oct.

 

We all know that this ICP consultation needs to be combatted and stopped. But in the meantime, here’s all the information you need to fill in the consultation feedback.

As stated, the judge in the London NHS Judicial Review said that the ACOs (now ICPs) should not be enacted until a lawfully conducted consultation was held, and any eventual ICP contract would have to be lawfully entered into.

Since then, NHS England have moved swiftly and stealthily into gear, and you will find their monstrous ICP ‘consultation’ document at this link.

And here is Health Campaigns Together on the subject at this link.

As you see, the consultation document includes 12 points for feedback and Health Campaigns together has provided suggested responses to these points – very good responses too, I think. You’ll find them at this link.

When you’re ready here is the direct link for public feedback to the document, just copy and paste from the Health Campaigns Together link above.

As stated, there is a move afoot to get the consultation suspended until after the appeal granted to the 999 for the NHS has been concluded, but it’s very important to counter what will definitely be lots of responses from the allies of NHS England. Otherwise they will be able to hail the result as a democratic mandate.

Health Campaigns Together say that it is OK to copy and paste HCT’s responses into the feedback boxes on the questionnaire, although if possible, it would be good if respondents could add a few tweaks of their own.

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Update 2/5/17: If you are concerned about GP records, see this post


In matters of health and care, your relationship with your doctor is based on a very human spirit of confidentiality. Not the cold law of data protection.

Any large, formal system is bound to breach the Hippocratic Oath; “First, do no harm”. Data doesn’t care. In a purely digital world, a thing either is or it isn’t – with no nuance. Smaller systems, talking to each other, offer more discretion for the humanity of your situation. It is  why fax machines still work better than e-mail for the NHS.

Patients routinely find themselves in one of the following three real-world scenarios. Human situations get ignored by the database designers’ visions, forgetting the real world::

  • When a doctor cannot tell their patient the full story without causing distress – such as when at test returns a  likely false positive result.
  • When a doctor cannot tell another doctor something – such as where  they’ve been asked not to by their patient.
  • When institutions cannot tell doctors relevant details – e.g. in situations where there is “too much data, but no clear information”.

When you are between diagnosis and treatment, which (if any) of these three apply may change hour-to-hour. Human choices are a reality, usually ignored by by those who want to copy records across a lifetime.

medConfidential defends the confidentiality you desire for your medical records.

Why is Confidentiality more than Data Protection?

“Data Protection” was a 1980s response to the advent of new computers and the copying of data. Transparency was the balance intended to ensure that processing is “fair”. When copying was limited to “faster photocopiers”, organisational boundaries were maintained, and confidentiality questions rarely engaged.

Modern communications has created the capacity to copy medical records at a scale that shatters confidentiality.

Confidentiality, and trustworthiness, is based on patients’ expectations of boundaries. And so, as data subjects, any processing that breaches duties of confidence cannot be considered Fair – so cannot be lawful.

medConfidential defends the confidentiality you desire for your medical records.

If you do have concerns, it is still safest to opt out now to exclude your data. You can always opt in later. For more information on what you can do, please visit our How to opt out page.

We also take donations.

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Their quest to ‘inspect’ quality into care homes is futile.  Turning them into a proper regulator makes much more sense.
The CQC should have total powers over the sector.  Clear accountability and someone to nail if it goes wrong.
I can think of a dozen new powers:
  1. Develop and publish an annual, independent, strategic assessment of the sector, with recommendations for government on the realistic cost of care and funding levels.
  2. Provide national model-contracts for care home providers, so the public know what to expect and where they stand.
  3. New powers to decline any home registration that does not have a CQC recommended safe staffing and skill-mix.
  4. End the difference between care homes and nursing homes.
  5. Develop accredited training for the care-home sector workforce.
  6. Publish clearer ‘Which’ style reports on care homes, making it easier for families to chose through an improved, user friendly website and help line.
  7. Publish ‘advisories’ on the viability of care home operators and prepare contingency plans for failure.
  8. Create a centre of excellence making it easy to find and share best practice.
  9. Provide an easy to navigate complaints and dispute resolution service.
  10. Create an identifiable, accessible local presence, that includes elected members, to improve public confidence in the CQC and democratic accountability.
  11. New powers to prevent differential charging between the LA and private sector clients.
  12. Powers to require care-home providers to post a performance bond to guard against the cost of failure.
Focussing these functions, in one place, makes one organisation accountable for the care home market, its conduct and it gives the CQC something useful to do…
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When considering the mandatory reporting of patient abuse in the UK, it may help to consult the American system, as the  dilemmas and legal considerations are similar in both jurisdictions. A caveat to this is that although there is an office of Adult Protective Services (“APS”) in all 50 states, each state’s legislation may differ. In Colorado, on and after July 1, 2014, for instance, a very comprehensive list is given of those who have a mandatory duty to report serious harm or injuries. Indiana: An individual who believes or has reason to believe that another individual is an endangered adult shall make a report under this chapter. Ind. Code Ann. §12-10-3-9(a) (West 2013). Texas: A person having cause to believe that an elderly or disabled person is in the state of abuse, neglect, or exploitation. Tex. Hum. Res. Code Ann. § 48.051(b) (West 2013). Utah: A person who has reason to believe that a vulnerable adult has been the subject of abuse, neglect, or exploitation. Utah Code Ann. § 62A-3-305(1) (West 2013). Some states specify where an initial complaint is to be lodged. Delaware: Any person having reasonable cause to believe that an adult person is impaired or incapacitated as defined in § 3902 of this title and is in need of protective services as defined in § 3904 of this title shall report such information to the Department of Health and Social Services. Del. Code. Ann. tit.31, §3910(a) (West 2013). North Carolina: Any person having reasonable cause to believe that a disabled adult is in need of protective services shall report such information to the director. N.C. Gen. Stat. § 108A-102(a) (West 2013). APS are not necessarily a state run service, North Carolina defining them as: services provided by the State or other government or private organizations or individuals which are necessary to protect the disabled adult from abuse, neglect, or exploitation. They shall consist of evaluation of the need for service and mobilization of essential services on behalf of the disabled adult. N.C. Gen. Stat §108A-101(n) (West 2013). Much might depend on what is deemed reasonable.

Generally, those with a mandatory duty of reporting serious harm or injury are given variations the following legal advice. The Wisconsin Caregiver Law  (WI Caregiver Law Ch. DHS 13), defines serious harm or injury as:

  • ‘An act or repeated acts by a caregiver or nonclient resident, including but not limited to restraint, isolation or confinement, that, when contrary to the entity’s policies and procedures, not a part of the client’s treatment plan and done intentionally to cause harm, does any of the following:
  • Causes or could be reasonably expected to cause pain or injury to a client or the death of a client, and the act does not constitute self–defence as defined in s. 939.48, Stats.
  • Substantially disregards a client’s rights under ch. 50 or 51, Stats., or a caregiver’s duties and obligations to a client.
  • Causes or could reasonably expected to cause mental or emotional damage to a client, including harm to the client’s psychological or intellectual functioning that is exhibited by anxiety, depression, withdrawal, regression, outward aggressive behavior, agitation, or a fear of harm or death, or a combination of these behaviors. This subdivision does not apply to permissible restraint, isolation, or confinement implemented by order of a court or as permitted by statute.
  • An act or acts of sexual intercourse or sexual contact under s. 940.225, Stats., by a caregiver and involving a client.
  • The forcible administration of medication or the performance of psychosurgery, electroconvulsive therapy or experimental research on a client with the knowledge that no lawful authority exists for the administration or performance.
  • A course of conduct or repeated acts by a caregiver which serve no legitimate purpose and which, when done with intent to harass, intimidate, humiliate, threaten or frighten a client, causes or could be reasonably expected to cause the client to be harassed, intimidated, humiliated, threatened or frightened.
  • Abuse does not include an act or acts of mere inefficiency, unsatisfactory conduct or failure in good performance as the result of inability, incapacity, inadvertency, or ordinary negligence in isolated instances, or good faith errors in judgment or discretion.

Nursing homes must immediately report all incidents of alleged mistreatment, abuse and neglect of residents, misappropriation of resident property and injuries of unknown source to the DQA. (Division of Quality Assurance). CMS defines “immediately” to be as soon as possible but not to exceed 24 hours after discovery of the incident. Failure to provide the information to DQA within 24 hours of discovering an incident may result in a citation under federal or state codes.

In addition to federal and state reporting requirements, providers should notify local law enforcement authorities (immediately) of any situation where there is a potential criminal offence.

One (Oregon) county’s District Attorney gives a simplified list of offences which should result in  immediate notification to the police:

Abuse may include:

  • Physical harm or injury.
  • Failure to provide basic care. (Would less UK care homes provide poor care if their owners were liable to prosecution and serious consequence, i.e. prison?).
  • Financial exploitation, theft or misuse of money or property.
  • Verbal/emotional abuse, threat, cursing, or blaming.
  • Confinement or Isolating from family & friends.
  • Wrongful restraint.
  • Unwanted sexual touching.
  • Withholding medicine.
  • Over medicating.

Advice which is common to most American states:

  • If the abused is in a Skilled Nursing facility, call the Department of Health Services (DHS), Licensing and Certification Program for your county. Submit a complaint, which can be done anonymously. The DHS is charged with giving complaints of serious harm and abuse the highest priority. An example of a timeframe for  an investigation is  30 days to complete an investigation unless extenuating circumstances require an extension. The investigation must begin within 24 hours. The DHS are the parent body of the APS.
  • If the abused is in a Residential Care Facility for the Elderly (RCFE), contact your county’s Community Care Licensing Division. Like the DHS, the CCLD will conduct an investigation.
  • The following persons are mandatorially required to immediately report abuse and suspected abuse to the Division or law enforcement agency: physicians, licensed practical nurse or registered nurse,  nursing facility employee or any individual who contracts to provide services,  licensed social worker; physical, speech or occupational therapist; and family member of a resident or guardian or legal counsel for a resident. The local law enforcement agency shall be called first when the suspected abuse is believed to be a crime (for example: rape, murder, assault, burglary, kidnapping, theft of controlled substances). The local law enforcement agency shall be called if the offices of the Division or designee are closed and there are no arrangements for after hours investigation.
  • Contact your local Ombudsman’s Office – the patient advocate for the facilities. The involvement of the Ombudsman’s office in America is seen as a subsidiary, and not a primary course of action, when reporting suspected serious abuse. They tend to become involved if investigations by DHS and CCLD are the subject of unsatisfactory (to the complainant) outcomes. The UK Ombudsman will not investigate a complaint if it has proof, or infers that, the complaint is to take a legal course. That is, they do not involve themselves in a legal process which may result in a business interest being fined. They steer people toward complaining about failures in the UK healthcare system, and away from complaining about the system.

Despite clearly defined guidelines, the New York State Elder Abuse Prevalence Study (2011), found that for every case known to programs and agencies, 24 were unknown. This is because although the American Nurses Association (ANA) Code of Ethics for Nurses stipulates that nurses must act for the public benefit, whistleblowing about abuses in the nursing workplace can harm employment prospects. Also, given the severity of punishments in America, to both organisations and individuals involved in proven abuse, it may be that whilst the American system is like a shark with sharp teeth, because of this, fewer people are willing to throw a colleague or employer its way. The obvious solution to this problem is the mandatory instillation of  cameras in all areas of all healthcare facilities. This meets with obvious opposition from care providers in the social care market, although the use of cameras is becoming more acceptable to regulators. Guidance for people who install hidden cameras to check on standards of their own or a relative’s care has been approved by the UK’s Care Quality Commission (CQC). The guidance is expected to be published in the new year. A BBC report (November 19, 2014), states: The care regulator says it neither encourages nor discourages camera use. It added that it does look at footage which is brought to its attention. Information is also being published for care providers on what they need to take into account if they are thinking of installing hidden or visible cameras in their homes … That hidden camera showed Yvonne calling for a nurse 321 times when she needed the toilet. It was over an hour before anyone came to check on her. Once the home was presented with that evidence change happened. “The information we will publish for providers makes clear the issues we expect them to take into account – for example, consulting with people using the services and staff – if they are considering installing hidden or public cameras”.  Nadra Ahmed, chairman of the National Care Association, which represents care providers, said it was “quite sad” that covert surveillance was being discussed and it was “really disappointing” that the CQC had “pursued this course”. Of course, most employers would find mandatory cameras “really disappointing” – the would be able to record staff shortages. The point is, surely, change needs to happen. Healthcare businesses in America are also against the use of cameras in their facilities, disguising their real worry by claiming concern about the ethical issues surrounding the use of surveillance cameras.

Whistleblowers should be aware that not meeting best practice guidelines does not  constitute abuse. In June, 2014, the New Jersey Supreme Court found against a nurse who claimed he was fired for reporting allegedly improper patient care to government agencies. He had claimed that his dismissal was in violation of the Conscientious Employee Protection Act (CEPA), designed to protect whistle-blowers. He had also claimed that his professional code of ethics for nurses was the basis of his reporting his employer. The judges, by a majority verdict, found that  justices found that this code “does not govern” (his former employer’s) patient care”. Thus, nursing guidelines of best practice are not binding on an employer.

In another case (Lark v. Montgomery Hospice),a nurse complained to her supervisor about the mishandling of narcotics. The nurse was fired, she then filed a complaint against the employer for wrongful dismissal, alleging that the employer violated Maryland’s Health Care Worker Whistleblower Protection Act. The court found that the employer’s failure to correct the procedures for narcotics (employ best practice) was not covered by law, and the law only required the employee to file an internal complaint.

It is clear that what a healthcare professional deems best practice is not binding on an employer, who is only required to operate within the law. Best practice and law are seperate entities.

The advice to anyone involved in healthcare, who is considering reporting an incident to external authorities, is to ask themselves: How serious is the problem? Is your nursing license in legal jeopardy if you do not report? Was a law violated? Have you exhausted your employer’s procedures for reporting problem? In most cases, you meet the advocacy duty with a routine report, and have no duty to go outside this chain of authority. If a problem is not resolved, some American states employ a ‘practice specialist’, to whom you can relay a scenario in a hypothetical manner. The ‘practice specialist’ is a service provided by available the National Council of State Boards of Nursing.

In the UK, whilst such as the Royal College of Nursing (RCN), offer guidelines of good practice, the Nursing and Midwifery Council (NMC), do not give ‘practice specialist’ advice. There seems to be a reluctance to commit to any position which may be legally challenged. Understandably so, yet the question arises – which is as pertinent to the UK as it is to America –  why are best practice guidelines not legally applicable to healthcare providers? Why are healthcare providers allowed more leeway than proprietors of abattoirs?

The RCN  do offer a  whistleblowing hotline: ‘This is an additional service for RCN members who have urgent concerns over clinical and staff safety in the workplace. It is important that health care professionals raise concerns directly with their employer. Registered nurses have a duty under the NMC to report concerns where patient care may be affected’.

The Whistleblowing Helpline also ‘offers a free-phone service for employees, and organisations working within the NHS and social care sector’. They give: ‘Free, confidential advice to NHS and Social Care staff that witness wrongdoing and are unsure whether or how to raise their concern … and also give: ‘Advice and support to managers or those responsible for matters of policy development and best practice within the health and social care market’. It is noticeable that staff who may raise a ‘concern’ might work under a manager who is given advice on how to deal with the ‘concern’, and that such ‘concerns’ exist within the social care market –  a creation of free-market capitalism, which, ironically, may have given rise to the ‘concern’ (in its use of low staffing levels, etc.).

My impression is, in both cases, whistleblowers are advised to keep their concerns in-house, which, indeed, may be stipulated in their contract. The UK experience is more akin to containing a fire than putting it out. There seems to be little written about some forms of abuse being prosecutable under The Human Rights Act or British law, and, therefore, reportable to the police. This is not a stricture which the social care market wishes to be subjected to.

The American experience is that those who whistleblow are strongly advised to seek legal opinion before they act, and contacting media outlets without full redaction of patient’s details is likely to be detrimental to their case.

It is vital to keep a full record of time, place, person, and witnesses (if any), when making a complaint. Lack of detail will be picked open in court. It is noticeable that hospitals and other nursing facilities are not required by law to keep a back-up of their medical records on an external computer. Many cases of complaint, both in America and the UK are hindered by claims that records have gone missing. Should not the loss of medical records attract a very hefty fine? – perhaps to an amount of 30% of the cost of an award which may have been granted if records had not been ‘lost’.

There are non-profit organisations in America that assist whistleblowers and those furthering their case. ‘The Whistleblower Support Center and Archive is (an) organization that was founded to provide support to whistleblowers. The center’s Web site provides helpful information, including the 10 steps for effective whistleblowing … A major focus of the effort here to support whistleblowers is the International Whistleblower Archive, an extensive online search engine that provides thousands of articles related to whistleblowing. Attorneys, journalists, whistleblowers, and others can tag almost any aspect of the process and then gain access to a vast array of online resources. Former whistleblowers are available to provide peer-support to future whistleblowers’.

A general sense arising from court cases in America is that ‘justice’ favours business interests. The UK follows this lead. It is the lead of the social care market, which may as well read cattle market.

I recommend:

  • Install surveillance cameras in all areas of all healthcare facilities.
  • Institute draconian punishments for those found committing abuse, whether workers, managers, or business owners.
  • Make it mandatory for all healthcare workers to report serious abuse, failure to do so to result in prosecution.
  • Make losing medical records a criminal offence.
  • Make the use of best practice guidlines mandatory.
  • All serious cases of serious abuse to be immediately reported to the police as crimes.
  • All complaints to be submitted to a regional authority charged with conducting a vigorous, impartial inquiry.
  • The regional authority to be responsible for all healthcare and social servives, whether private or public.
  • All complaints to receive a regional authority response within 30 days.
  • Abolish the Healthcare Ombudsman.
  • Abolish the CQC.
  • Establish a regional authority inspectorate unit, with a 24 hotline, and a remit to investigate complaints within 48 hours.
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As the Health Service Ombudsman moves forward on its new ‘Service Charter’ would it be foolish to think that a new set of promises is all we need to deliver justice and remedy?  Unless there is a major culture change within regulatory bodies, socially accepted injustice will continue as before.

If you have ever made a complaint you will recognise this scenario.  Aware that something has gone wrong and being a good citizen you take the time to alert the authorities.  It makes no difference if this is the NHS, PHSO, ICO or any other acronym you care to think of, they all work the same way.

The conversation you have with the customer service desk is likely to be the most positive part of the experience.  They will listen to your story, ask to see your evidence and give you details of what to do next.  From here it is all downhill.  The person who assesses your evidence will find any reason to close down your case;  out of time, not in our remit, no case to answer.  All bodies will have acted ‘reasonably’ in the eyes of this particular individual.  The supervisor who deals with your review request will confirm this prognosis, no matter how illogical and so will the CEO, the legal team or the chairman of the board.  Each in turn will agree; there is no case to answer.

If you were to meet any of these people in the street, if you were to fall in front of them and require their help, every one of them would pick you up, call for an ambulance and show genuine concern for your welfare.  They are not bad people.  Yet each in turn delivered an injustice and looked away from the truth.

How do good people do bad things?

 In 1960 Lee Harper wrote ‘To kill a mockingbird’ and everything you need to know about socially approved injustice is contained within that book.  Tom, the black labourer is accused of raping a white woman and is given a ‘fair’ trial by jury.  As the story unfolds it become obvious to everyone in the courtroom that her father beat her up when he found her flirting with a coloured man and in all probability her father had been sexually abusing her for years.

The punch to her eye was delivered by a left-handed blow.  Tom’s left arm hangs limp by his side, powerless due to an accident with a threshing machine.  Her father signs a paper with his left hand in full view of the court room.  As the evidence mounts there can be only one conclusion; Tom is innocent and the father guilty.  So the jury go out and the jury come back and each and every one of them finds Tom guilty as charged, because the cost of not doing so was too great.  They had to protect themselves from the reality that a white man could rape and assault his own daughter.  Everyone knew that a black man was no better than a beast.  To accept that Tom committed the crime was the only option.

The weakest are always sacrificed.  

 Our regulatory bodies find themselves in this same moral dilemma.  Like a house of cards they all lean upon each other, ICO backs up PHSO who defends the NHS.  In order to handle your complaint with any honesty they would have to report that people within these organisations blatantly lie, breach policy, withhold data and destroy records.  The price is just too high.  So they rubber stamp the garbled whitewash, agree that everyone has acted reasonably and go home to their families.

phsothefacts.com

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On 7th October the PHSO Pressure Group attended a stakeholders meeting held at the Cabinet Office to discuss complaint handling and the role of the Ombudsman. We were invited by the Rt. Hon. Oliver Letwin and present at that meeting was Robert Gordon CB and his team.  Mr. Gordon has had a distinguished career in the Scottish Office where, among other things, he helped to set up the devolved Scottish Parliament.

Mr. Gordon has been charged with researching the current Ombudsman landscape and reporting back to the Cabinet Office with suggestions for reform.  We were delighted to be able to speak directly to him and his colleagues.  This was a valuable opportunity to discuss the service user’s experience and share a little of our ‘gold-dust’. Our initial concern was that the inquiry process would deliver nothing more than a re-branded version of a fundamentally flawed process.  It will take more than a common portal and shiny new logo to restore public confidence in the Ombudsman.  There is sufficient evidence in the public domain (Mid. Staffs, Morecambe Bay, Morrish family)  to demonstrate that this service is not fit for purpose and requires fundamental reform.

Once the Cabinet Office conclude their inquiry, with the help of Mr. Gordon, they will be drafting new legislation.  The original legislation has been in place for 47 years and quite possibly has never served the public in all that time; it is therefore vital that we use this opportunity to create an Ombudsman service which meets the needs and expectations of the public in the 21st Century. At the core of this legislation there must be measures to provide effective accountability for users of this service.  The total discretion enjoyed by the Ombudsman to date has no place in a modern democracy.  We are aware that the Ombudsman must be the final arbitrator, but allowing this body to exclusively handle all complaints about its own service creates an Alice in Wonderland scenario where the omnipotent Queen of Hearts simply makes up the rules as she goes along.  If you need proof, look no further than this year’s annual report where the Ombudsman states that from upwards of 27,000 complaints handled they only had to review their decisions 0.2% of the time.  Any organisation which believes that it has a 99.8% accuracy rate needs a reality check.

Mr. Gordon’s suggestion for robust accountability was to set up a monitoring board of ‘independent’ members who would scrutinise the Ombudsman’s performance against key indicators.  It is not too difficult to see the obvious flaws in this plan.  Firstly who are these ‘independent’ people and who appoints them?  There seems to be a cartel of like-minded people who are willing to sit upon each other’s boards and do little more than maintain the status quo.  PHSO currently have a Unitary Board, chaired by the Ombudsman herself and stuffed full of PHSO employees,    plus an Audit Committee led by Sir Jon Shortridge KCB and it is questionable whether either of these committees do any more than rubber stamp the decisions put before them.  The suggestion was made by the PHSO Pressure Group that board members for any panel which is designed to hold the Ombudsman to account should be drawn from recognised campaign groups and charities such as the Patients Association, AvMA and the PHSO Pressure Group itself, to include fierce critics such as James Titcombe and Julie Bailey.

 If you really want to know how an organisation delivers then ask those who have received.  

Hopefully, this possibility will be investigated by Mr. Gordon and his team.  Other suggestions for accountability included giving the Public Administration Select Committee (PASC) the powers it needs to hold the Ombudsman to account for poor service delivery.  Currently PASC cannot pursue any individual complaint nor can it ask questions of the Ombudsman relating to individual complaints.  To say that the Ombudsman is accountable to parliament for service delivery is unrealistic given that PASC is so severely handicapped.

 The truth is that the Ombudsman is accountable to no-one but herself and we all know of the corrupting influence of ‘absolute power’.  

The use of the word ‘corruption’ makes politicians feel uncomfortable and Mr. Letwin shifted in his seat as he pursued this subject, questioning why this would be the case.  It is our belief that both PHSO and LGO are morally corrupt in that they have total disregard for the plight of individuals as they manipulate the evidence to find spurious reasons to close cases down.  Complainants, who have been denied evidence in drawn out complaint processes where public bodies have ultimately lied and covered up the facts, then find themselves duped once again by the shiny rhetoric on Ombudsman’s websites promising impartiality and remedy.  In 2013-14 only 11% of all formal complaints were upheld by PHSO to some degree following an investigation.

The Ombudsman’s office has never been staffed in a way that shows real commitment to honestly resolving cases.

A quick comparison with the Netherlands reveals that their Ombudsman service employs 70% of staff to carry out investigations and the vast majority are trained lawyers, whereas PHSO currently have only 30% of staff as investigators and none of them have either legal or clinical training.  The front-line staff at PHSO are being asked to take on 10x more cases this year to comply Dame Julie Mellor’s plan to ‘give more impact for more people’ by increasing the number of investigations.  The drive to improve ‘quantity’ has further impacted on the key issue of ‘quality’ with investigators required to take on up to 15 cases simultaneously.  Although PHSO have promised to address an investigation methodology which has been accepted by Mick Martin, Managing Director as ‘not fit for purpose’ this organisation moves at the pace of a three-toed sloth on sleeping tablets.

Only Churchill expects so few to do so much and the staffing levels and skill mix required for proper investigation must be urgently reviewed.  Currently PHSO have no option but to close down a large percentage of cases in order to prevent complete system breakdown. The Pressure Group put forward the idea of dividing the Ombudsman service into a designated Health Service Ombudsman for England in line with devolution.  This could then be staffed by experts in clinical care.  NHS England recently reported that complaints topped 3,000 per week  and Dame Julie Mellor has been promoting Ombudsman services across the media to encourage more people to come forward.  There can only be disappointment ahead as newcomers join a backlog of over 1,000 cases currently waiting in the system. PHSO cannot be trusted to put their own house in order.  Senior management appear to be caught in a torpor of indecision. Mr. Gordon must do more than consult with the usual suspects in order to carry out his review and the Pressure Group suggest that he would benefit greatly from discussing matters with representatives from the PSU staff union among others.

We are convinced that Mr. Letwin is set on reforming the Ombudsman landscape and in order to achieve this aim we urge him to discuss the way forward not with those who caused the problems but with those who have suffered from them.  The public. 

You can see the full summary presented by the PHSO Pressure Group to Mr. Letwin and Mr. Gordon.

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So much has been written and broadcast about terrible standards of care in some NHS hospitals in recent years, most notably but by no means only at Mid Staffordshire, that it would be easy to gain the impression that it might be safer to be treated in a private hospital. The profit-making concerns who run private healthcare have probably benefitted significantly from recent NHS scandals.

However, as our experience at Action against Medical Accidents (AvMA) and the report from the Centre for Health and the Public Interest (CHPI) points out, whilst there is no denying the urgent need for improvements to the promotion and regulation of patient safety in the NHS, there is little or no compelling evidence that the private sector is any better.

In fact I would argue that a combination of a false sense of security based on the assumption that if it is private and paid for it must be better, together with the gaps in the regulatory system and patients’ rights in the private sector, create an unnecessarily risky environment. It is also a credible argument to say that where there have been the worst problems with safety in the NHS some have at least in part been a consequence of imposed competition and fragmentation through part privatisation. Take the problems with GP out-of-hours services for example.

There has at least been progress with the regulation of private healthcare in England now coming under the same regulator as for the NHS – the Care Quality Commission (CQC). In theory, a private hospital has to demonstrate that it meets the fundamental standards required by the CQC just as much as the NHS. However, a deeper look at the system reveals an uneven playing field.

As the CHPI report points out, the same requirements to report incidents do not apply to private providers as they do to the NHS, which in itself makes it hard to monitor how safe or otherwise private services are. Information about clinical negligence claims against private providers are not publicly available, as they are in the NHS. The CQC has, to meet ministerial and public expectations, prioritised inspecting and monitoring the NHS. Bizarrely, as recently as this year the Government passed the Care Act, which exempted providers of privately funded care from the new criminal offence for providing false or misleading information to the regulators. As if this could only happen in a publicly run service.

Patients themselves have fewer rights in the private sector. Whilst there is a general requirement to operate a complaints procedure, unlike the NHS complaints procedure, those used by private providers afford no statutory rights to the complainant and there is no recourse to the Health Service Ombudsman in the case of private care. There is no statutory requirement to provide for independent advice and support with complaints which is the case with the NHS. Consequently it is much harder to hold a private provider to account. Even taking legal action for clinical negligence against a private provider is more problematic than with the NHS, where everything is overseen by the NHS Litigation Authority. A claimant against a private provider can be faced with complications over whether it is the hospital or the individual surgeon or sub-contractor who is liable.

AvMA’s experience confirms many of the CHPI report’s conclusions. In our experience the chief risks in the private sector have been where there are insufficient facilities and consultant cover to cope with emergencies; insufficient continuity of care or after care; and the lack of a critical mass of experienced doctors in situ as well as the aforementioned gaps in regulation.

All too often, in addition to the patient who is harmed through no fault of their own, it is the NHS which ends up picking up the pieces (and the tab) when things go wrong in private healthcare. It is time to shine just as bright a light of scrutiny and regulation in the private sector as we have begun to in the NHS.

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A recent report  quoted Attorney General Eric T. Schneiderman: “Nursing home residents are among our state’s most vulnerable citizens, and the perpetual neglect in this case is shameful”, whose comment pertained to 8 nurses and 9 certified nursing assistants who were sacked following a New York state investigation that showed neglect of duty and making false records.

The investigation used hidden cameras to show that a highly dependent 56-year-old male resident, who suffered from Huntington’s chorea, was not routinely given pain medication, liquids, and incontinence care at Highpointe on Michigan Health Care Facility, with charts and nursing notes routinely claiming he had.

The 17 accused appeared at Buffalo City Court, facing various charges of wilful violation of health law, endangering the welfare of an incompetent or physically disabled person, and falsifying business records. Endangering this patient is a charge which is a felony and carries a maximum prison term of four years.

Schneiderman commented: “The charges filed send the message that my office will not tolerate anyone being neglected by those responsible for his or her care. We will use every tool in our arsenal, including hidden cameras, to ensure that nursing home residents receive the care they need and the respect they deserve.”  This follows the New York authorities arresting 22 people in 2010 after hidden cameras revealed maltreatment of patients in two facilities.

The use of hidden cameras to record instances of poor nursing care has been a constant theme in the American press. Jan Hoffman  reported a hidden camera catching a nursing assistant stuffing latex gloves into the mouth of a ninety six year old patient, as another taunted her and tapped her on the head. Once thrown on a bed, one of the nursing assistants assaulted her with heavy-handed chest compressions. Their treatment was accompanied by laughter.

Jeremy Pelzer reported that in Ohio new legislation would enable nursing home patients the right to install hidden cameras in their rooms. Cameras can be installed by relatives, the only requirement being consent. States such as Ohio and New York are single consent jurisdictions, so if a patient or their legal representative consents to the use of a camera, no other consent is needed. A prosecutor can install a hidden camera without a court order or subpoena. The nursing home or hospital need not be told about the surveillance camera. Other States are expected to follow this trend.

The laws in other States may vary. Many nursing homes have installed cameras in common areas and hallways, but they cannot install them in the patients’ rooms. In the case of patients with enough mental faculty to make an informed decision, courts may act to prosecute a relative for invasion of privacy if they install a camera unbeknown to the patient. Nursing facilities in some States may instigate legal proceeding against those installing cameras clandestinely.  They may use ant-surveillance detectors. They may ask patient to leave a nursing facility if cameras are discovered. Patients or their representatives on admission to a nursing facility may be asked to sign an agreement not to use a surveillance camera.

The power of business interest to block the use of cameras in nursing homes is evidenced by the vote in the Senate Medical Affairs Committee concerning the right of families to install cameras in South Carolina’s nursing homes. The committee was evenly divided, with a 7-7 vote, meaning that it will not progress. Adcox  quoted the sponsor of the bill, Sen. Paul Thurmond, “This is really about empowering an individual who’s in a nursing home. The older generation is fraught with neglect and abuse.” They also quoted committee member Sen. Brad Hutto, who commented on the opposition of the nursing home industry to the bill: “They are concerned this is a ploy to catch them doing bad things to patients. That’s not what this is about. This is empowering families to take care of loved ones.” He added, “Generally, people with cameras on them behave better.”

Abuse recorded by hidden cameras is not confined to the elderly: A Canadian report commented on the case of a teenage girl who was bound and hooded, and was forcibly injected by nursing staff with an antipsychotic drug, despite the fact that she appeared calm. This girl had entered the world of prison nursing at the age of 14 for throwing crab apples at a postman. She subsequently killed herself. The footage of the injection was the subject of court action by the Canadian government, which sought to block it. The same report states: ‘In Canada, mandatory video surveillance in prisons is designed to protect both inmates and staff.  However, elderly citizens in Canadian hospitals and nursing homes have no such protection. Instead, unlike the U.S., Canadian governments and courts vigorously prohibit video surveillance inside the hospital and nursing home rooms of elderly people’. The report claims that criminal charges and convictions have ‘increased substantially’ in States like New York since they licensed the use of hidden cameras.

The situation in Canada was also commented on in a CTV report  which highlighted the case of a hidden camera in a Toronto nursing facility recording an elderly resident being roughly manhandled as her incontinence pad was changed, having a soiled wipe shoved into her face; an employee wiping his nose on her bed sheets; employees having sex in her room as she lay in bed. Four employees were sacked, but did not face any legal charge.

Abuse of patients has been caught on hidden cameras in the UK. David Brindle reported, ‘Inspectors have been called in to private hospitals that care for people with learning disabilities after exposure of a regime of shocking abuse by staff at a unit run by one of Britain’s leading care companies’. Another report gave details of footage of an Alzheimer’s patient being repeatedly beaten in a care home, which was later screened on TV. Helen Nugent reported an 89-year-old woman who was suffering from dementia being dragged across her bedroom floor, as she scream in pain, and was then threatened with violence.

Such abuse is the UK is not as isolated as some reassuringly make out. As in America, there has been a constant flow of reports of abuse, which begs the question, how much more abuse would be discovered by using hidden cameras? Exactly what lies under the ‘tip of the iceberg’?

The continuous reporting of abuse in American care facilities led to the passing of the Elder Justice Act (EJA) in 2010, which established  mandatory reporting requirements for those suspecting abuse in long-term care facilities (EJA, Funding for training and certification, 42 USC, sec. 1397, 2010). All employees are required to report reasonable suspicion of abuse to the Secretary of Health and Human Services and law enforcement agencies. Failure to report can result in harsh financial penalties of up to $300,000.

The need for a debate on the use of hidden cameras in nursing homes was made by the Care Quality Commission (CQC) in its document A Fresh Start for the Regulation and Inspection of Adult Social Care (2013), which states: “We would … like to have an open conversation with people about the use of mystery shoppers and hidden cameras, and whether they would contribute to promoting a culture of safety and quality.” This produced a similar reaction from the care home industry as it had in America, with claims of patients’ privacy and staff moral being under threat. These claims are seen as a ‘red herring’ by some in America, with the care home industry more  “concerned this is a ploy to catch them doing bad things to patients” ( Adcox 2014), i.e. employing too few and inadequately trained staff.

The issue of patients’ privacy is addressed in certain American State legislation (Ohio etc.) by linking it to consent to use hidden cameras, by the patient or their representative. If the patient has requested the use of a hidden camera, or one that is marked by a notice on their door, then all that can be objected to is their choice to do so. If a relative makes this choice, what can be questioned is their right to make a choice based on a knowledge of the patient and their likely wishes. What cannot be objected to is a person’s right to make an informed choice, even though that choice may be anathema to others. That is, people should have the same right in most instances to not have a camera in their room as others do to have one. The qualification in most instances seems an important one where abuse is suspected but can only be proved by a hidden camera. In this instance, should authorities have the duty to override the wishes of a patient’s relative?

To the charge that cameras, whether hidden or otherwise, lower staff morale, should it not be asked, which staff? If nursing staff do their job, and do it with a caring manner, what have they to fear? Your every step along the High Street or shopping mall is recorded, which will trigger a response if you mug someone. Your right to privacy is being infringed, yes, but the general right of people to be protected from mugging is enhanced. Would some staff, too intimidated to report abuse, welcome the use of cameras that would instantly stop that abuse? Would some staff welcome cameras that showed the good care they gave?

Ethical issues surrounding the use of cameras in nursing facilities have previously been debated, the BBC reporting: ‘The use of hidden cameras in hospitals to spot child abuse by parents is legal and ethical, says a report. The technique was used most controversially at North Staffordshire Hospital where researchers suggested some cot deaths were the result of child abuse. A specialist advisory committee in paediatrics was set up as a result and raised reservations and objections concerning the procedure, which is only used when abuse is suspected. But another study, published in the Archives of Disease in Childhood, the journal of the Royal College of Paediatrics and Child Health (RCPaed), says hidden cameras, monitored by nurses or other health staff, should continue “in the absence of any viable alternative”. The research, conducted by Dr Neela Shabde, one of the doctors on the advisory committee, and Professor Alan Craft, a vice president of the RCPaed, says medical staff have a legal duty under the Children Act 1989 to intervene to protect the best interests of the child.

If it was deemed that hidden cameras had a role in protecting a child from an abusive parent under the Children Act of 1989, then why do they not have a similar role today in protecting such as the elderly from an abusive or neglectful nurse or nursing assistant?

The whole issue is a contentious one. Who would review camera and audio footage? What guidelines would be issued that defined abusive or neglectful care? What rights would there be to appeal?

I suggest that the debate about the use of cameras should be extended to include NHS and private hospitals, local authority and private homes for the elderly, and those with learning disabilities. It should also be extended to all those who work in these facilities, nurses, nurse students, and assistants. The debate should not be between committee members, or be dominated by those with the loudest ‘voice’. It should be a debate in which opinions are sought, discussed, and form the basis of action. The following questionnaire is suggested as a means of initiating this process.

Answer yes or no:

  • Hidden cameras should be used in care facilities.
  • Patients in care facilities are abused and there should be camera to catch the offenders.
  • No one should get paid to abuse our older citizens who deserve respect for their contributions to society.
  • Serious physical abusers should be fired and reported to the police.
  • Hidden cameras should not be allowed in care facilities.
  • Elderly patients are humans that have rights to privacy.
  • It is morally wrong to constantly watch the elderly in care facilities without their prior consent or their knowledge.
  • Neglectful or disrespectful abusers should be suspended and reported to the Nursing and Midwifery Council.
  • Do people with cameras on them behave better?
  • Would cameras show low levels of staffing hindering care?
  • Should patients have the right to install hidden cameras in their rooms?
  • Should relatives have the right to install hidden cameras in rooms?
  • Should relatives have the right to install cameras if a notice of this is displayed on the door?
  • Should care facility managers have the right to install hidden cameras in rooms?
  • Should all people have to declare in the National Census if they would like cameras in their care facility rooms?
  • Should cameras be installed in common areas in care facilities, such as hallways and nursing stations?
  • Should it be compulsory for nursing staff to report abuse or suspected abuse?
  • Should there be severe penalties for those who do not?
  • Have you witnessed nursing staff not giving care, but writing in notes that they had?
  • Do you think this is a common practice?
  • If a camera is installed, should it have an audio capability?
  • Should cameras be mandatory in all areas of care facilities?
  • Should cameras be mandatory in all areas of care facilities, allowing patients or their relatives to opt out?
  • Would nursing staff who did their job, and in a caring manner, have anything to fear from cameras?
  • Would cameras show nursing staff to be hard working and caring?
  • Would cameras protect ‘good’ staff from more dominant ‘bad’ ones?
  • Would cameras increase the public’s confidence in nursing
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The court case involving bullying at Oakfoss House Residential Care Home in Pontefract and subsequent prison sentence for a senior carer in 2012 has led to a new campaign calling for compulsory CCTV to be installed in all residential care homes.

Dr Richard Taylor, co-leader of the NHA, has cautioned against such a move. In a statement he said,
“It is always shocking to uncover such terrible actions by those we trust to care for our loved ones. We understand why CCTV is being called for, but we believe such an action could ultimately lead to the opposite effect that the family is trying to achieve.
We always want the best care for our families. In care homes this centres on well trained staff with good staffing ratios, just as it does in the health service. We want to see not just people’s physical needs attended to promptly but also attention paid to their general wellbeing.

In cases such as Pontefract this is clearly not the situation, nor is it the first case of bullying or abuse in a care home. We need to understand the pressures and weaknesses in the system that allow abuse to go unchallenged and devise robust mechanisms for complaints to be easily reported and rectified.

We are calling for the establishment of independent commissioners based locally to deal with complaints or suspicion of poor treatment in NHS or care homes in a timely and transparent fashion.”

The NHA says the CCTV campaign must also be seen in the context of today’s report by the Public Accounts Committee into health and social care which raises concern over the level of funding cuts in this sector. Local Authorities are paying lower fees to providers of care in a cost cutting exercise and this is having a serious effect in low pay and poor working conditions of nearly a quarter of a million social care workers. Safeguarding referrals for elderly and disabled people have risen by 13% in the 2 years since 2011.

Dr Taylor added, “With such severe cuts in social care provision we must call into question the wisdom of attempting to deal with this problem by putting cameras in place to catch the perpetrators. We fear that introducing surveillance in an already pressurised environment would promote an atmosphere of distrust. Surely we need to promote good practice and foster a culture of trust and openness. That is to say to prevent the abuse happening in the first place. With reductions in staffing levels is there not also the serious risk that surveillance of patients at a distance via the CCTV might take the place of a nurse or care worker at the bedside?

Better staffing levels and improved training, combined with better access to a more responsive complaints procedure, would lead to greater peace of mind for families and happier and healthier lives for those who live in care homes. Surely that should be the desired outcome, not a system based on the permanent policing of staff.

First published by the National Health Action Party

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1. The April 2013 NHS reorganisation was big, even by the standards of the English NHS. NHS England Chief Executive David Nicholson famously said that the Cameron government reforms demanded “such a big change management, you could probably see it from space.”

2. As with previous NHS reorganisations big and small, the ideas were familiar: the idea that commissioning by GPs would improve care and efficiency; the idea that the central government, in the shape of the Department of Health, was too big and dictatorial; the idea that intermediate territorial levels of management such as Strategic Health Authorities were bureaucratic and superfluous; the idea that provider competition produces improved quality and efficiency; the idea that management expertise rather than politics improves health services; and the idea that it would be possible to invent, for all time, a structure for the NHS that would be immune to politics. These were all present in the 1988 reforms of the Thatcher government that implemented the internal market in the NHS, if not her 1983 introduction of general management into a system previously run by professionals. These ideas have shaped both government departments and the careers of everybody involved in managing the NHS for over thirty years.

3. One of the less visible components of the 2012 reorganization was the comprehensive reorganisation of the central policymaking apparatus in the NHS. The basic change was to spin off key parts of the old DH into new agencies, notably Public Health England (PHE) – an executive agency –and NHS England (NHSE), an executive non-departmental public body, one of the more tightly controlled kinds of quango in UK government. Along with the more independent regulators, the Care Quality Commission (responsible for quality) and Monitor (responsible for overall market regulation, including setting the national tariff with NHS England), these four organizations now share the governance of the new NHS in England.

4. Following on from our previous articles on this subject, as well as earlier work by Patricia Day and Rudolf Klein, we examine, in this report, the organization of the DH and the centre of the NHS world. It might seem bureaucratic and distant from the real business of health care, but the Department of Health is the only true tool of ministers, and the nodal point where the political system interacts with health. In addition, we look at the people who have been chosen to occupy this world. Organisation charts reflect the burden of work and preoccupations in organisations as well as personal power and politics and personnel decisions are, as any politician or manager knows, crucial to the success or failure of an initiative. One of the most important decisions that can be made is who shall have responsibility for an area or initiative.

5. What we find is an unstable world, where the tensions between policy, politics and management of the NHS in England are likely to mean further reorganisation in the future, but with a “thin” central Department of Health less able to steer the system than before. The separation of policy and management that the new DH and NHS England attempt is one that has never been achieved before, despite concerted efforts from secretaries of state dating back to Kenneth Clarke.

6. In addition to the limited role and capacities of the DH, which history has shown to be unstable, the empowerment of quangos and regulators such as Monitor, NHSE, and the Care Quality Commission creates potential for incoherence, duplication, and turf wars at the centre.

7. Also, what is presented by Ministers as the de-centralisation of power away from the Department in effect amounts to a form of centralisation, partly through the powers of patronage and appointment which the Secretary of State has over key positions in a variety of organizations including Monitor and NHS England. In fact, we find that in most cases, the responsibility for the areas now covered by NHS England and Public Health England has gone to the people who worked in the same areas for the DH, so there is more continuity in these areas than change.

8. Monitor is the most notable case of this centralization unto an incoherent centre. Under the 2012 reforms, it is granted a market regulator role within the new NHS – enforcing competition law, setting prices for care and in effect determining the entry criteria to the new NHS market by issuing licenses to NHS and non-NHS providers. It is closer in function to the type of market regulator which might be found in the utility sector or a competition authority, and as such if it is to have the confidence of market entrants requires a level of formal autonomy from ministers which is distinctly new to the NHS. And, in undertaking this new role, it draws its top team from management consultancies and the private sector. This different set of cultures is also likely to create further tensions within the 4 central organizations about which values to give priority to when organising the delivery of NHS care. But perhaps playing the role of an outsider within the system is perhaps what current and also previous new-Labour ministers intended.

9. This report looks in the first instance at previous attempts to separate off policy and management within the NHS and situates the creation of NHS England and the new structure within this challenging history. It goes on to look at the size and make-up of the various organisations in the new NHS, including the backgrounds of the key personnel. It concludes with some observations about where next for the governance of the NHS given the tensions and instabilities identified. History suggests that the structure is unstable, and that governments will not be able to avoid blame or resist taking credit for actions taken by more distant organizations.

 Separating policy and management within the NHS and back again – a recurring theme from Thatcher to Lansley

10. The creation of NHS England and Public Health England should not be seen as a radical departure from what went before but as yet another attempt to distance the management of the NHS from the Department of Health and political interference from Ministers, a policy which itself has a 30 year history.

11. Under the new system NHS England is responsible for planning and overseeing commissioning, including the proportion of commissioning that was designated as specialist in order to preserve its coherence after the reforms (e.g. cancer care and cardiac care). Planning care networks on a large scale, coping with organizations that fall into difficulty, commissioning England-wide projects, and taking blame when things go wrong (as with the implementation of the 111 telephone advice service) – these are all tasks that the DH used to take on. In theory, NHS England will do much of what the Department of Health did, and in theory will be less affected by party political or public pressures.

12. Public Health England’s role is much reconfigured because public health is much reconfigured, but it will carry out the England-wide public health activity that was also once the remit of the DH and the old Health Protection Agency.

13. In 1983, the Thatcher government commissioned a businessman, Sir Roy Griffiths, to review the organization of the NHS. The NHS had been run since 1974 on a system called “consensus management”, which meant senior clinicians essentially ran its day-to-day operations – prima facie evidence of inefficiency and what we would now call “provider capture” in the eyes of Thatcher and her delegate. Griffiths responded with a thirty-page letter recommending the creation of a management corps that would replace professional self-management with businesslike, strategic, managerial competence. The government implemented his recommendations, creating an NHS Management Board to focus on management, rather than policy, issues. More dramatically, it infused general management into every level of the NHS, and created a Management Executive to centralize managerial functions and skills.

14. Kenneth Clarke, when Health Secretary, moved the Management Executive to Leeds, helping to make the point that arms-length managerial expertise was different from, and fulfilled a different role than, policymaking. DH organizational charts from those years portrayed a rather thin organization, with communications, social care, finance, and the Chief Medical Officer keeping the Permanent Secretary company in London while everybody else to do with the NHS sat on the Management Executive side.

15. The problem was that elected politicians, and voters, were very interested in the management and policies of the NHS, and neither the distance between London and Leeds nor the paper shield of a Management Board prevented political involvement in NHS decision making. Simple indicators such as the number of meetings between the Chief Executive of the NHS and the Secretary of State showed the problem; politicians who were largely accountable for the NHS wanted to talk to the person whom they had appointed to run it. Anecdotally, it was clear that people with ambition and power worked out ways to be based, or at least to squat, in London offices. The result was silly: an underemployed Permanent Secretary based in the Department was caught between ministers and the Chief Executive, with power in London and people in Leeds (or on the train in-between).

16. The formal end of the Management Executive came about during Alan Milburn’s term as Secretary of State. In 2000, Milburn combined the Chief Executive and Permanent Secretary roles into one (occupied by Nigel Crisp) and his ‘Shifting the Balance of Power’ reforms formally merged the Management Executive back into the Department of Health. Milburn’s perfectly sensible argument was that he did not see the Permanent Secretary as having a job to do; everything that interested him about the NHS reform agenda involved the Chief Executive and the Management Executive. So the experiment in arms-length management formally ended, having ended informally some time before.

17. After the departure of Crisp in 2006, the division between the Chief Executive and Permanent Secretary was reinstated by Secretary of State Patricia Hewitt. The old problem immediately appeared: the DH had a set of interesting and important activities (research and development, social care, public health and legislation are all consequential) but most of what interested politicians lay in the purview of the Chief Executive. Andrew Lansley, by recreating the old Management Executive, solved that problem by leaving the DH as a smaller department and the NHS in the hands of a very large NHS management body (NHS England).

18. As Table 1 shows the total headcount numbers in each of the new agencies which fall under the Department of Health reveal it to be a “very thin rim” around the NHS – a phrase used by a former Labour Secretary of State – with just 7% of the total staffing for ensuring health and social care delivery falling directly under its control. Table 2 also shows that Public Health England and NHS England have between them over 4 times more Grade 6 and 7 level civil servants than the Department of Health, and 6 times more members of the Senior Civil Service at their disposal. In addition, as the Department of Health has experienced a 14%
headcount reduction since 2010 it is difficult not to draw the conclusion that its capacity to direct the system has been “hollowed out”.

Table 1: Department of Health and its agencies – Staffing Full Time equivalents September 2013

Department of Health and its agencies staffing

Table 2: Distribution of Civil Service Grades within the 4 organisational components of the new NHS – September 2013

Civil Service grades Dept of Health

19. The broad conclusion to be drawn from all of this is probably the one that Christopher Ham, Patricia Day and Rudolf Klein all drew long ago: separating policy and management is impossible in health services. Policy objectives, such as greater private sector provision or improved cancer care, manifest themselves in concrete decisions about how to organize services. If politicians are to claim credit for the NHS, or at least escape blame, they will want to make policy. The response under Blair and Cameron has been to experiment with rigid legal structures, taking away the Secretary of State’s direct levers with regard to, for example, Foundation Trusts, and instead entrust them to regulators. But that merely re-states the question: can regulators, or the giant new NHS England, avoid political attention from the people who appointed them and could abolish the organization by the end of the Parliament?

20. Indeed, as Box 1 shows the first real winter crisis of the new system is starting to reveal how difficult is for Ministers to stay out of the day to day running of the system.

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Box 1: The new system and the winter crisis – can Ministers really step out of the operational detail?

Concerns about the capacity of NHS providers to deal with a harsh winter in 2013/2014 is now seen as the main political challenge for the health service in England, with the Prime Minister and Number 10 ‘taking control’ of the situation.

This is also being perceived as the first real test of the new accountability arrangements – thus far, the politicians seem unwilling to let the service get on and deal with the issues themselves as had been intended. The Chief Executives of the regulators (CQC, Monitor and the NHS Trust Development Authority) have been summoned to Downing Street, whilst the pressure on NHS England is also being ramped up.

According to the Health Service Journal one local area director within NHS England ‘complained that the regularity and detail of returns required on winter plans and A&E performance by the organisation’s headquarters was more intense than ever before’. He said ‘it was a result of the government demanding regular and detailed reports from NHS England nationally, even though ‘it’s an approach that’s completely at odds with the spirit of the [government’s] reforms’, which were intended to separate day to day management of the service from politicians.’

As a further sign of political micro-management, the Health Secretary was recently reported to have personally phoned the Chief Executives of the 5 hospital trusts which had failed to meet the Accident and Emergency waiting times, seeking an explanation.

Thus the success or failure of the NHS to cope with the first winter of the new reforms could well determine the stability of the separation between DH and NHS England in the future.

(Sources: Ben Clover, ‘Regulator chiefs summoned to Number 10 over winter pressures’, Health Service Journal 30 October 2013; Ben Clover, Sophie Barnes ‘Hunt demands explanations from A&E underperformers’ HSJ 22 November 2013)

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Liberating the NHS? Do the reforms truly mean de-centralisation of power within the new structures?

“Of course the content of a White Paper is the opposite of the title”- DH civil servant, October 2011.

21. With the April 1 2013 implementation of the ideas in the 2010 White Paper Equity and Excellence: Liberating the NHS the Cameron government substantially advanced another long-standing trend in the English NHS. In every reform since 1979, power has shifted from appointed territorial boards, such as regions, to regulators and agencies controlled from the centre. It can look like decentralization: setting the “front line” free to deliver services and efficiency. But increasing the power of appointed regulators in London at the expense of the power of appointed boards in Yorkshire or the West Midlands often also means centralization. It tends to produce greater knowledge, legal power, and financial control at the centre and remove the buffers that regional boards once formed.

22. How are the boards appointed for the four key organizations, of Monitor, the CQC, NHS England and Public Health England? The answer is simple: they are appointed by the Secretary of State. Each board comprises a chair (appointed by the Secretary of State), non-executive directors appointed by the Secretary of State, and executive directors who are on the board ex officio. The board appoints the executive directors, including the Chief Executive. Non-executive directors outnumber the executive directors in order to guarantee political control- which is not the case with the largely ornamental boards of Whitehall departments, where the lines of authority run from ministers to civil servants rather than from the board to the department, and the non-executive directors are basically there to bring in outside perspectives.

Who sits in these new structures and what does this tell us about the new NHS structure?

23. The formal organization of the centre of the new NHS is, then, a classic structure that has never proved stable: a ‘thin’ Whitehall department as a rim around a very large NHS. But organization charts are never the entire story, even if they usually testify to the preoccupations and powers within a bureaucracy. People, especially people at the top, also matter. Governments make personnel decisions- and communicate preferences to their top officials- because they know that individuals, correctly chosen, have a big impact on the enthusiasm and efficacy of implementation.

24. We compiled a database for 2012 and 2013 of the top (director-level and above) DH officials with information about their education, gender, and career history (most of which can be found in editions of Dod’s). The data is posted online.

The People running the Department of Health before April 1 2013

25. The Department of Health in 2012 was quite unlike any other civil service department. If the Whitehall of Sir Humphrey – the archetypal civil servant from the BBC series Yes Minister – was run by Oxbridge males who had been in the civil service for life, then the DH wasn’t part of that Whitehall. The Treasury had 89% Oxbridge graduates; the DH had 8%. HMRC was ten percent female at the top; the DH was 40% female. Not even the Northern Ireland Civil Service, a formally separate body, stood out as much as the DH. This was no new development either; the DH was furthest of any department from the “Whitehall model”, or caricature, of a male, Oxbridge, lifetime civil service unit in 2007 and before. Only three people had experience in other Whitehall departments. By 2012 they all had roughly the same career trajectory: enter the DH from, usually, the NHS after a non-Oxbridge education, and then spend a long time in the department.

26. If the top echelons of the DH did not look much like the old mandarinate of Yes Minister, it is probably because so much of its hiring had come from outside the civil service- above all, from the NHS. Six of the top fifteen figures in the DH had more than seven years’ experience in the medical professions, and four had more than seven years’ experience in NHS management.

27. But compared to the turbulent department of 2005-2007, it is striking: the top staff of the DH were the survivors. In 2006 the department came under some pressure in the media for having too much turnover and too many openings at the top; in 2006 the mean time in post was 4.05 years. In 2012, the turnover appeared to have slowed. The mean time in post was 4.43, the median time in post 2 years. The Whitehall median reported in 2006 was 4.1 (mean 2.9). More interesting, though, is that they had a mean of 13.2 years in the DH, and a median time in the department of ten. Given the fluidity of some posts (e.g. Richard Douglas, long standing Finance director, added portfolios over time), the time in department is strikingly high. What this tells us is that the DH was not part of an integrated “Whitehall”. The “department of delivery” that Alan Milburn sought was created by hiring people from the NHS into a leadership cadre that, after the disruptions of around 2005, proved stable.

Table 3: Top Team by Time in Post

Time in Post Dept of Health

The people running the Department of Health after April 1 2013

28. In 2010 we commented that the Department was in the “eye of the storm”- in the temporary calm found inside a hurricane. Behind it lay the disruptions of the Blair governments. Ahead of it lay the disruptions of the Cameron government. The last relatively calm and clear weather ended on with the 2010 publication of the Liberating the NHS. As the reorganization passed into law and implementation, the storm hit the DH itself and left it scattered across a variety of executive agencies and non-departmental public bodies.

29. Who is left at the DH after the Lansley reforms? As noted above the DH is now smaller, having reduced the number of Directorates from 10 to 5 meaning there are now five Directors-General, a Chief Medical Officer (CMO), and a Permanent Secretary. The CMO, Permanent Secretary, and two Directors-General (for Public Health and Strategy and Finance) stayed in post; Richard Douglas’ government biography notes that he is the longest-serving finance director in Whitehall. The new Director-General for External Relations is a civil servant who moved from the Department for Work and Pensions, and the new Director-General for Social Care, Local Government and Care Partnerships entered in April 2013. He was previously Chief Executive of Croydon council.

30. The change in the size of the department might seem dramatic but compared to other Whitehall departments it is not; most of them have shrunk, and some for example, the Department for International Development also have half as many director-level positions as they did in 2007.

The people running the arms length bodies – NHS England, and Public Health England

31. The first, almost mathematical, implication of decentralization and a shift to multiple regulators is, of course, more executives. This means that the number of people in major decision-making roles outside of the Department of Health has increased since the 2012 reforms, even if a large number of other ‘quangos’ were eliminated in the reorganization – 170 in total.

32. NHS England is an Executive Non-Departmental Public Body, an agency outside the formal structure of Whitehall, not bound by the Civil Service Code, appointed through the statutory public appointments system with ministers taking final decisions, and with specific constitutions and functions set out in the laws that create them, or left to their boards to determine. The first thing done by Ministers when these agencies were created was to appoint many of the same people to the agencies to do many of the same things they had been doing at the DH (see Table 4). Public Health England is an Executive Agency more tightly bound to the secretary of state than NHS England, and therefore easier to direct.

Table 4: Changing jobs in 2013

Changing Jobs Dept of Health 2013

33. All the chief professional officers but the CMO moved to NHSE. In the civil service, each professional track has a chief officer somewhere. They are now in agencies, which is somewhat odd in terms of civil service theory (but of limited practical import); furthermore, the Chief Nursing Officers move into NHSE means that PHE has its own director of Nursing, as does the NHS Trust Development Authority.

34. The Chief Medical Officer is CMO not to the DH but to the government as a whole. This divided loyalty – to the UK as well as to the DH, and to public health as well as to clinical medicine – was part of the reason why there was pressure to create an NHS medical director to deal with clinical medicine and NHS issues (of which there are enough) without the public health interests of the CMO and with more interest in working with and for NHS management. The CMO, therefore, remains in the DH, but with a far less clear role – NHS doctors have their own manager, and Public Health England is a powerful Executive Agency containing most of the old Health Protection Authority, with its own agenda and a close relationship to the Secretary of State. It appears that the CMO might suffer the fate of the Surgeon General in the US, who was shifted to an advisory and public-facing role as administrative responsibilities moved away to managers. It is not clear how this arrangement will work out or whether it is advisable.

35. In addition to these direct moves from the DH on April 1, we see recent DH alumni who had spent time in other areas of the NHS reappear in the quangos. Duncan Selbie was Director General of Programmes and Performance for the NHS and then the first Director General of Commissioning in the DH until leaving to spend five years as a hospital chief executive. He was appointed Chief Executive of Public Health England. Barbara Hakin was also a DH stalwart who worked in a Strategic Health Authority before moving to NHSE. It is unsurprising that Public Health England and NHS England have absorbed many of the people who worked in the DH; they absorbed many of the DH’s functions, whereas the CQC and Monitor had been largely staffed before the April 2013 reorganization. Below this level, many people who had worked in the DH and moved to Strategic Health Authorities after about 2005 reappeared in NHS England, particularly in the areas dedicated to trust and commissioning support (which was much of SHAs’ positive, as opposed to their fire-fighting, agenda).

The outsiders? Monitor as a challenger to the DH legacy.

36. While much of the DH seems to have moved to NHSE, the new structure has two other key organizations; Monitor and the CQC. These in effect act as regulators in the new market – one, Monitor, setting prices and issuing licenses to operate within the new NHS market, whilst also enforcing competition law – the other, the CQC, charged with guaranteeing a baseline of quality. Whilst the membership of the CQC board and top team has a similar lineage to those within the NHS England – including two new chief inspectors of primary care and hospitals recently moving from senior positions within NHS England – Monitor itself is an altogether different beast. Although a comparatively small organisation, its remit and powers have been substantially extended under the 2012 reforms, and it is starting to challenge the DH and NHS England in terms of driving the policy agenda. As Table 2 shows it is also more “top heavy” than the other three organizations discussed here. Over two thirds of its staff are at Civil Service Grade 6 and over. This ‘top heaviness’ might reflect a need for the specialist technical skills required for Monitor to fulfill its regulatory role, but it also show its potential capacity to exercise policy leadership within the system.

Table 5: Monitor Executive Directors, December 2013

Monitor Executive Directors NHS 2013
*Prime Ministers’ Office denotes various units within the PMO including the Prime Ministers’ Delivery Unit.

37. And, bearing in mind that appointments to Monitor’s board and its Chair and Chief Executive are made by the Secretary of State, it is clear that Monitor’s new team, who came into office in 2012, were not appointed to preserve the legacy of the DH. Corporate consultancy and auditing firms are the dominant background (rather than the NHS, government, or other regulators, as might be imagined); any previous government experience tends to be very close to the Prime Minister. Monitor is in many ways an institutionalization of consultancy firms.

38. Indeed the ‘schooling’ of its new team, compared to those within NHS England is likely to lead to different points of view on the values which should dominate in the delivery of NHS care, as recent disagreements on the role of competition policy in the NHS reveal (see Box 2).

39. Moreover, Monitor has surprised some with its ambition. Using its broad powers under the Health and Social Care Act ‘to make sure the whole sector works for patients’ benefit’, it commissioned a 350-slide management consultancy-style publication on options for addressing the growing shortfall in NHS funding or, as it puts it, ‘sharing with decision makers in the sector the evidence they need to take sound decisions.’ Published shortly before NHS England produced its own thought paper on the same subject, this perhaps suggests that Monitor, as the new entrant to the NHS ‘policy market’, is seeking to fill the gap left at the centre by Lansley’s creative destruction, or at least to challenge NHS England’s dominant position.

Box 2: Competition policy– a bone of contention between NHS England and Monitor?

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Under the Health and Social Care Act Monitor is given a specific duty to prevent any anti-competitive practices in the provision of health care services that are against the interest of patients. NHS England on the other hand must act to give patients a choice in their health care. Because of these joint responsibilities both organisations are working together to produce a joint framework document on competition and choice for commissioners and providers.

But do they both agree on the benefits of competition and the circumstances when it is in the best interests of patients? According to recent reports, some differences of opinion seem to be emerging. At a recent NHS England Board meeting it was reported by the NHS England Policy Director that there was a “paucity of evidence” around the benefits of competition for patients, leading to a delay in the publication of the joint document.

Further, it is not clear that NHS England and Monitor see eye to eye on the application of competition law to NHS mergers. NHS England CEO David Nicholson has stated publicly that the application of competition law – a power held by Monitor – was getting in the way of driving up the quality of care.

Again, this is perhaps not a view shared by Monitor who have recently issued joint guidance with the Competition Commission and the Office of Fair Trading on the role that competition law should play in benefiting patient’s interests.

(Sources: David Williams, ‘Competition guidance stalls amid lack of evidence of benefit to patients’ Health Service Journal 16 September 2013; Dave West ‘Competition rules hold back quality, says Nicholson’ Health Service Journal 25 September 2013)

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 Conclusion: Who runs the NHS in England and where next?

40. Organizationally, NHS England, PHE, Monitor and the CQC are the four key organisational structures of health policy, management and implementation, agencies and regulators accountable to the Secretary of State for personnel and policy with a thin Department of Health operating on the rim of this structure.

41. Following the 2012 reforms, the Department of Health itself is back to where it was in 1983: a ministerial office looking for a broader role. NHS England is in effect the successor to the DH and probably the NHS Management Executive. In terms of its broader role in the system, the DH seems to be reverting not to 1983 but to its pre-1948 version – focused on inducing local governments to do things in social care or public health in a predominantly market-based health system.

42. In personnel terms, the people who run the NHS are the same people who ran the DH under not just Cameron but also Brown (and in many cases even under Blair). The top cadre was remarkably undisturbed after 2012. The DH decanted most of its NHS expertise and responsibility into NHS England; with a few clear exceptions (e.g. David Behan, who left his job as head of social care in the DH for a position as Chief Executive of the CQC), people moved with their jobs to the NHSE.

43. Equally notable is how few people have moved from the top ranks of the DH to the CQC (one) or Monitor (zero). These organizations were already largely staffed before the 2013 reorganizations, so they did not have as many jobs to fill- and were staffed to behave differently from the DH. This is most notable in Monitor, which from its inception under Blair was focused on finance rather than care or management. Its DNA is more KPMG than DH. Its stability as an organisation – despite recent difficulties in appointing a chair – suggests that the Cameron government likes that as much as the Blair and Brown governments did.

44. The key question is whether the structure underpinned by these 4 organisations is stable. The DH, when not running the NHS, is a small entity, to the point where its cadre of senior civil servants amounts to just over 150. Its organization charts today look a good bit like its organization charts from 1988 or 2000: a few odd functions around a minister, balancing or failing to balance a large and complex organogram of NHS central management and a ministerial team that has not shrunk.

45. Yet such a “thin” department is unlikely to be sustainable in the longer term. The history of changes to the management of the NHS suggests that one of the key justifications for the introduction of the Lansley changes into the NHS- separating the NHS from the everyday politics of blame and partisanship – is flawed. It depends on the assumption that objections to events in the NHS will not be routed to a national politician who clearly has responsibility for health policy and who has a democratic opposition party to hold him or her to account, but rather to one of several poorly understood quangos.

46. In theory, this might lead to a great deal more political visibility for NHSE, Monitor, and the other agencies (somewhat in the manner that CQC is associated with failures in care quality), or a dissipation of public pressure into complex debates about responsibilities. In practice, it is far more likely that the Secretary of State for Health will keep the responsibility, at least for the short term, without the tools to do anything to solve any of the problems. Voters will continue to hold their elected representatives accountable for the health service. It is also hard to imagine that governments will cease to make promises to those voters about the NHS, and it would be surprising if the current structures satisfied politicians who want to make a difference in the NHS. And finally, there is a real risk of policy contradiction between different agencies, as we have detailed, and there is currently no authority that can definitively arbitrate.

47. Because of this, we contend that the question is not whether, but where, the new central co-ordination will grow.

48. Previously, the DH was the instrument ministers used to achieve some form of central co-ordination, taking the powers of the old Management Executive back into the Department as they tried to coordinate. Perhaps in the future they will leave an exiguous or ‘hollowed out’ DH, and focus on manipulating the people they have appointed to run the agencies. But the advantages of this are not entirely clear: instead of one clear central organizational focus, we would have ministers negotiating with a variety of ENDPBs that are less flexible and cut off from the political and media pressure which Ministers are required to endure.

49. Previous efforts to separate NHS management from policy have generally led to the re-integration of NHS management into the DH so that the Secretary of State can intervene and we foresee this happening again.

50. The outlier within this is Monitor. As more and more critical decisions within the new NHS are taken by Monitor on the tariffs paid to NHS providers, on competition policy and as well as on the standards of care provided by licensed operators, there is a possibility that the more contentious policy decisions and changes to provision will be driven by this non-majoritarian regulator with power accruing to it accordingly. As a new body, with a top team drawn from management consultancies and the private sector, the new power dynamic may instead be between Ministers and Monitor’s Chair and Chief Executive. Unchartered waters, indeed, for NHS governance.

 Broader lessons for Whitehall

51. The rest of Whitehall might also have an opportunity to learn from the experience of the DH. Discussions of civil service reform are still ongoing, with the government promoting a civil service reform plan and commissioning work on ways to increase ministerial control of the people around them. From the vantage point of the DH, where there is one top person who looks like a classical Whitehall civil servant, these discussions seem strangely off target. The DH continues to be the kind of department ministers want: offering specialist expertise in delivery from a cadre of longstanding managers and professionals. Every Secretary of State since, at least, 1983 has taken measures to those ends. But it is now a small department with an unclear role, flanked by giant quangos whose boards and chairs are appointed by ministers and which do most of the things that the public might expect a minister to do.

52. The Department of Health proved itself to be, indeed, a “Department of Delivery” (to use a term coined by Alan Milburn) in 2010-2013, delivering a reform that few policy analysts or implementers regarded as a good idea while attempting to carry out the “Nicholson challenge” of major savings on NHS activity- even if the activity itself showed the fatuity of dividing policy from management. The ideas came from elsewhere and the department delivered their implementation, concluding in its own partial self-liquidation into still more delivery-focused quangos whose coordination will be, essentially, done by the Secretary of State and his junior ministers. Few departments in Whitehall have made such a change so obediently. The DH is the future that politicians seek. If they do not like it, and the current organisation structure now in place remain unstable, then much of what we think about both the NHS and Whitehall is going to need some revision.

53. The Cameron government’s enormous reforms to the NHS have left observers incredulous for a number of reasons. Our study has focused on one: the historical implausibility of separating the management of the NHS from the financing and politics implicit in being a major part of government. Governments and DH officials have tried, for decades, to separate the NHS from the DH, in the service of greater or lesser autonomy, management, and market. The separation of NHSE from the DH is merely the latest, if probably the most determined effort to separate politics and the NHS. In each case, in the past, there has been an ultimate reversion of power to the DH. Eventually, though, it is governments and politicians, not civil servants or agency chiefs, who are held accountable for their health policies, and this ultimately ends up being reflected in how the overall system is configured.

By Scott L. Greer, Holly Jarman and Andrew Azorsky.  First published by the Centre For Health and the Public Interest (where you can find the sources and foot notes)

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