The judge delivered no justice

The judge delivered no justice; Mr Francis called for criminal sanctions, but Sir Robert only urges people to behave better.

 Minh Alexander, former consultant psychiatrist

 

The Francis report on NHS whistleblowing was important to whistleblowers from all sectors, but proved to be a huge disappointment. I focus here on one of its most serious flaws: failure to deliver accountability.

 Robert Francis has decades of experience of healthcare failures and cover ups, and the untold grief that these cause. His experience includes medical negligence cases both as a barrister and as a judge, inquiries into high profile homicides by mental health patients, representing John Roylance former Chief Executive during the Inquiry into the Bristol heart scandal, acting for the GMC in the case of Richard Neale gynaecologist, working on the organs scandal at Alderhey Children’s hospital, chairing the two Mid Staffordshire inquiries and most recently, the Freedom to Speak Up Review.

 Surely all these years of experience must have crystallised key issues of justice and accountability for deliberate wrongdoing, such as recklessness and cover up. Accountability is a basic tenet of just culture. [1] The latter requires that recklessness and deliberate wrongdoing, as opposed to simple human error, are held to account.

 One would think therefore, that an examination of the severe mistreatment of NHS whistleblowers and the ruthless cover up of thousands of safety concerns, would give serious attention to strengthening the means of holding wrong doers to account. This is particularly so in the light of comments that Francis made in the two years since the publication of his report of the public inquiry into the Mid Staffordshire scandal.

 Firstly, in his Mid-Staffordshire report Francis recommended that cover ups of risk and harm to patients should be criminalised:

 “Every provider trust must be under an obligation to tell the truth to any patient who has or may have been harmed by their care. It is not in my view sufficient to support this need by a contractual duty in commissioning arrangements. It requires a duty to patients, recognised in statute, to be truthful to them. It requires staff to be obliged by statute to make their employers aware of incidents in which harm has or may have been caused to patients so they can take the necessary action. The deliberate obstruction of the performance of these duties and the deliberate deception of patients in this regard should be criminal offences”. [2]

 On a number of subsequent occasions, Francis repeated his recommendations that whistleblowers should be protected from reprisal and suppression, by the introduction of criminal sanctions against perpetrators:

 “Speaking to Nursing Times, Mr Francis said: “I have called for a statutory duty of candour that trusts tell the truth to regulators and that there should be criminal sanctions if there’s willful obstruction of anyone performing their duties and informing their trusts about concerns to patients.

 “That is about as rigorous protection of whistleblowers as you can imagine, and that’s what I intended,” he said”. [3]

 In May 2013, Francis commented that not holding individuals to account for serious care failures, and any failure to apply appropriate criminal sanctions, would be very damaging to public confidence:

 He said: “Unless we have a criminal offence we will not be reflecting adequately the gravity of the terrible things it seems are capable of being done in our hospital wards.

 “If we don’t reflect somehow the fact the public rightly think some things are terrible and there should be real accountability for them, then I believe the public confidence in the NHS will evaporate” [4]

 There were critics of Francis’ own failure to hold individuals to account over MidStaffordshire. In this prophetic passage Private Eye noted that “…the judge delivered no justice”:

 Knighthood for a whitewash?

 One wonders what version of his report Robert Francis was reading at the press conference on 6 February. He looked like a man held hostage. The interminable delay in publication to allow for rewrites had reportedly been because those he was minded to criticise had launched vigorous legal defences. In the end he opted for a ridiculous “no scapegoats, blame the system” approach. This was endlessly debated after the Bristol Inquiry report in 2001, when a culture of “fair blame” was proposed. Ill thought-out, untested, rushed and brutally-enforced reforms undoubtedly contribute to NHS disasters, but individuals also have to be held accountable for their actions. Patients and staff trust a system that is just. But the judge delivered no justice”.  [5]

 Francis nevertheless continued to maintain that corrupt NHS leaders who suppressed safety issues and victimised whistleblowers should be dealt with decisively. In his oral evidence of 11 February 2014 to the Health Committee, as part of the committee’s inquiry into Complaints and Raising Concerns [6], Francis made these comments about accountability: [7]

 “In so far as whistleblowers are concerned, I am afraid my answer is very blunt about that. We now have unanimity among those who are leaders of the Government and everywhere else that suppressing whistleblowers is absolutely wrong. It seems to me that any chief executive, any board, that is found to be guilty of that should be sacked. I put that absolutely bluntly. There can be no excuse any longer. If you want culture change, if a step or two like that could be taken—and it is far from me to comment, but it may be there are some opportunities out there—then I would suggest that that ought to be done”.

 In response to a question from the committee chair, Francis confirmed that it was his view that such leaders should be held to account, pour encourager les autres. Francis at the same hearing again expressed the view that enforcing accountability for misconduct was key to culture change:

 “To take your example, a trust which is led by a chief executive who personally welcomes and celebrates a whistleblower or, hopefully, before even that, the raising of concerns, and at the same time comes down like a ton of bricks on anyone who has been seen to try and prevent that, will change the culture pretty rapidly, I think, in their institution”.

 Last year, when hundreds of whistleblowers waited expectantly for Francis’ (by now Sir Robert) repeatedly delayed report on NHS whistleblowing, his above comments were all in our minds.

 Shockingly, when Francis’ report [8] was finally published on 11 February 2015, a major U turn was evident. Criminal sanctions were not amongst his recommendations. Matters of corporate manslaughter and misconduct in public office were not mentioned, despite Francis’ acknowledgment that whistleblower suppression is a serious patient safety issue, constitutes serious misconduct, and is currently a substantial and serious matter in the NHS.

 It was also despite the fact that his senior researcher on the Freedom to SpeaK Up review Professor David Lewis, Employment Law and whistleblowing expert, supports criminal sanctions for whistleblowing reprisal. David Lewis in fact went on to make several public statements about the fact that Francis had not gone far enough, and that criminal sanctions should have been recommended.

 Francis glossed over the fact he himself had previously favoured criminal sanctions. There was a note of derision in his report about the fact that some contributors had “even” suggested criminal sanctions for reprisal. In fact, those who recommended criminal sanctions were amongst the most experienced campaigners and journalists, including the charity Compassion in Care [8] and Private Eye journalist Andrew Bousefield.  [10]

 Instead of strengthening accountability for reprisal, Francis gave inordinate focus in his report to how whistleblowers behave. He recommended that staff needed training to be tactful, he regurgitated employers’ propaganda about how whistleblowers may be “fixated” and “chronically embittered” and he repeatedly stated that staff should be held to account for the manner in which they raise concerns.

 On accountability for managers, Francis painted an utterly incorrect and distorted picture of just culture, implying that accountability and just culture are incompatible:

 “7.5.5 A number of the contributors suggested that if people were seen to be held to account this would send a powerful and positive message to other staff.

 7.5.6 However, there is another side to this which must be considered. Managers are just as vulnerable as other staff to the effects of the culture in which they work, and the pressures which are imposed on them. As stressed by some employers and their representatives a ‘just’ culture is equally as necessary for managers and leaders as it is for staff raising concerns. The consequence of an uneven approach could be a worsening blame culture for staff and a loss of talented managers from the NHS”.

 Francis further reduced the chances of corrupt leaders being held to account by refusing to support managerial regulation. He argued that CQC Regulation 5, Fit and Proper Person, [11] should be allowed to bed in. Everybody knew that FPPR was a weak instrument. Subsequently, CQC have spectacularly failed to apply it. CQC has refused to use FPPR against numerous managers complicit in serious whistleblower reprisal, even in cases such as that of Dr Kevin Beatt, who was fully vindicated by a damming Employment Tribunal judgment.

 Francis also airbrushed over the ultimate source of NHS bullying: politicians and the DH. He spared many blushes by recommending that past cases remain shut, denying hundreds of whistleblowers the chance of justice, and letting managers off the hook. His stated reason for this, as the man who waded through many thousands of pages of evidence at MidStaffordshire? It would be too complicated to look at old cases. This was despite the fact that he had noted in his report that many contributors’ cases were very recent. As Private Eye noted two years ago, the judge delivered no justice.

 Establishment resistance to transparency and accountability are not unique to the NHS. Commentators have noted a general rise in impunity for the powerful. [12] It is self-evident that this must change if lives are to be saved.

 

[1] What does just culture have to do with patient safety? A conversation with David Marx. Medscape 11 January 2010.

[2] Press release by Robert Francis upon publication of the MidStaffordshire Public Inquiry 6 February 2013

[3] Francis calls for new protection for whistleblowers, Shaun Lintern, Nursing Times 11 February 2013

[4] Francis presses government on criminal sanctions. Shaun Lintern Local Government Chronicle 17 May 2013

[5] Return to the killing fields. A chronicle of deaths foretold. Phil Hammond, Private Eye 17 March 2013

[6] House of Commons Health Committee Complaints and Raising Concerns Fourth Report of Session 2014–15, 21 January 2015

[7] Health Committee Oral evidence: Complaints and Raising Concerns, HC 1080 Tuesday 11 February 2014

[8] Freedom to Speak Up Review Report, by Sir Robert Francis QC, 11 February 2015

[9] Breaking the Silence, Compassion in Care

[10] Submission to Freedom to Speak Up review by Andrew Bousefield, 10 September 2014

[11] CQC Regulation 5: Fit and proper persons: directors and Regulation 20: Duty of candour Guidance for NHS bodies November 2014 and March 2014

[12] Institutionalised corruption in Neo-liberal Britain. David Whyte and Tom Mills, New Left Project 13 April 2015

 

 

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