In his introduction to the report Robert Francis QC makes the point that the failure at Mid Staffordshire was “primarily caused by a serious failure on the part of a provider Trust Board.  It did not listen sufficiently to its patients and staff or ensure the correction of deficiencies brought to the Trust’s attention. Above all, it failed to tackle an insidious negative culture involving a tolerance of poor standards and a disengagement from managerial and leadership responsibilities.”

The buck stops with the Board, and some of the wide-ranging recommendations set out in the report will have a direct impact on Board composition, conduct and performance.

The key messages are:

  • You need the right calibre of people at Board level, with a fit and proper test proposed (as indeed foreshadowed by Monitor’s licence conditions), and a common code of conduct and ethics.  Serious non-compliance with this code would be a ground for removal and potentially being barred from holding future office.  Greater powers of intervention for regulators in such cases are called for.  However, as the report notes, in the context of non-executives at the Trust, there is a mismatch between the responsibility and time commitment required at even a small NHS Trust, and the rewards and potential penalties being imposed. 
  • Openness and honesty regarding quality is emphasised both in relation to the Board’s responsibility for signing off quality reports which are to be explicit about an organisation’s compliance with core and enhanced standards of care, and the methods used to produce that information.  Criminal sanctions where a wilfully or recklessly false statement is made are proposed.  This links to the duty of candour addressed in our section on clinical governance.
  • Openness and honesty is also picked up in the proposal for an obligation of utmost good faith on a Trust when applying to become a Foundation Trust, and an obligation to publish anonymised statements of outcomes for all complaints relating to clinical care, with these being shared on a real-time basis with commissioners. 
  • It is proposed that directors of healthcare organisations should be placed under a statutory duty to be truthful in responding to regulators or commissioners where there is a statutory obligation to provide information.  This is perhaps quite limited.
  • Cultural issues are rightly identified as important and these will generally flow from the top of the organisation – there are some specific recommendations relating to recruitment and supporting the role of the nursing director, and to introducing contractual requirements to seek and record the advice of the nursing director on nursing changes affecting quality of care and patient safety.

Much of this is perhaps already part of the way in which good Boards operate, but the impact of the report will be to turn much of what is currently good practice into obligations.  It remains to be seen though whether the increased emphasis on obligations and criminal offences will have the desired effect of improving the culture of the NHS.  There will of course also be additional costs in ensuring compliance with the requirements.

There is however a further problem.  The report acknowledges that the NHS has to operate within available resources, but does not address the potential problems that this can cause either at provider level or more widely.  Clearly, as the report articulates, if a service does not meet fundamental standards it should not be provided.  But where does that leave the patient if the result is a denial of a service?  More seriously if the Board prudentially takes the view that a particular service is not capable of being provided at the acceptable levels for the tariff price this will need to feed into negotiations around price variation, and potentially passes the financial issue back to the commissioners.


Seminar: The Mid Staffordshire Public Inquiry - essential lessons for the health and social care sector

In the coming weeks Bevan Brittan is hosting a series of seminars across its offices to consider the implications of the Inquiry more fully. Following these we will issue more detailed briefings on what the Inquiry's conclusions mean for different players in the system. The scheduled dates for these seminars are as follows:

Bristol: 20 February 2013 Birmingham: 26 February 2013 London: 1 March 2013

Please click on the above dates and locations to view further details and to register for the seminars.


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