Light over Troubled Waters

 

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“Immortality concept and persisting and surviving through a crisis as a broken lighthouse in the sea with the beacon of light continuing to shine as a metaphor for everlasting life.” ©Lightwise

 

Is “Broken Lighthouse” a metaphor for Southern Health and did we start to see just a tiny glimmer of light shining through its troubled waters and ever-darkening smokescreen at the AGM on 6 September? 

Let’s start with positive comments from those present [is this a first?].

Dr Mayura Deshpande was like a breath of fresh air at Southern Health at the AGM. Excellent presentation, warm and able to talk normally with empathy…. She is one for the future at Southern Health – hopefully.

I thought Julie Dawes came across as someone who is grounded and she apologised and said that she wanted the Trust to move forwards in a positive way. I think she is open and wants to engage with us going forwards. She is much better than the last Chief Executive!!!” [From bereaved parent].”

Dear Julie [Dawes]

“It was common ground amongst those of us (i.e. parents, families and others), who have been working together in the last three months, that your attitude towards us is refreshingly different.

I can safely say that, in future, when we criticise the Trust, we see you as the solution not the problem. We were also impressed by Dr Mayura Deshpande and believe she could contribute significantly to improvements in the Trust’s adult mental health and learning disability divisions too. You both made is feel welcome, rather than treating us as ‘the enemy'”. [From campaigner].

Dear Mayura [Dr Desphande]

“Thank you very much indeed for the time you spent with us (bereaved families and others) after the meeting. We believe that you could make a positive and significant contribution to the much-needed improvements in adult services too…. Thanks again for your empathy.” [From campaigner].

It is interesting to note also Dr Deshpande is Chair of the Professional Practice and Ethics Committee at the Royal College of Psychiatrists and Chair of Southern Health’s Clinical Ethics Committee.

And writing following an earlier public meeting.

“[Julie Dawes] told me she had held a very sobering conversation with the board and we should see changes in behaviour at the next meeting. I was encouraged. This is the first call we have ever taken from SHFT senior management and is a refreshing change. I think she is really trying and should be given time to prove herself and to deliver.” [From bereaved parent].

Conversely, reverting to the meeting on 6 September 2016 and comments received about the conduct of certain other Southern Health Directors:   

 “So appalled at tonight’s meeting that I missed my turn off tonight and drove to Farnham.” [From campaigner].

“What a farce!” [Bereaved family member].

So there’s a small ray of sunshine but will the current Chairman allow Julie and Mayura to do anything meaningful under his reign?

For anyone who missed the BBC’s excellent documentary ‘Broken Trust’ on 7 September 2016, it is available for 28 days (from broadcast date) on  I-player here →. Comments on the programme and more on the AGM to follow when time allows.

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The Sharon Shoesmith Excuse

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The dismissal of Sharon Shoesmith by Haringey Council on 1 December 2008 following the death of Baby P on 3 August 2007 led to one of the biggest child-protection controversies of recent years. She subsequently won substantial damages.

One does not have to predict the use of ‘The Sharon Shoesmith Defence’ [excuse] for the scandalous largesse towards Katrina Percy. Tim Smart is using it already.

On 1 June 2016, he attended a meeting with My Life My Choice, a self-advocacy organisation for people with learning difficulties, where this exchange took place:

  • Jackie: “Could you please explain why Katrina Percy is still the Chief Executive of Southern Health?”
  • Tim:  “Well there’s a straightforward answer to that question. It’s because nobody has fired her and she hasn’t resigned.” [Patronising?]
  • Shaun: “Why not?”
  • Tim:   “Sharon Shoesmith was dismissed from her job at Haringey Council by Ed Balls after the Baby P scandal. She was then awarded almost £3 million in damages.” Read more →

As Sara Ryan suggested … “Just mention Shoesmith when anyone asks a dodgy Q“.

We understand that, at a meeting of ‘Friends of Lymington Hospital‘ last week Smart was asked about the Percy settlement – and trotted out the Shoesmith excuse.

So let’s expose this myth now.

DAMAGES

It’s simply untrue that Shoesmith received £3 million in damages. The BBC reported that Haringey Council’s Accounts suggest her compensation was calculated along the following lines: £377,266 for salary, fees and allowances, £217,266 in compensation for loss of office and £84,819 in pension contributions, i.e. £679,351 in total. The council revealed it had spent £196,000 on legal costs fighting Shoesmith’s appeal. Read more→

THE BLAME GAME

The serious case review found failings in the way multiple agencies handled the case. Haringey Council, the Metropolitan Police and Great Ormond Street Hospital (“GOSH”) all got it wrong. But it was Shoesmith and Haringey’s social workers that became the main focus of the media frenzy that followed. 

Shoesmith claims it was the greater status of GOSH and the Metropolitan Police that enabled them to wield more power and influence to avoid blame and head off publicity of their own errors. She may well be right: indeed, the General Medical Council took disciplinary action against two doctors.

THE WHISTLEBLOWER

Moreover, Dr Kim Holt, a consultant paediatrician, who worked in a clinic run by GOSH at St Ann’s Hospital in Haringey, had written an open letter to the management of GOSH, warning that staff shortages and poor record-keeping would lead to a tragedy [Where have we heard that before?] Kim then spent four years on ‘special leave’ from 2007 to 2011 until eventually the hospital management apologised and reinstated her. Kim said:

“They tried to push me out simply because I told the truth. It was all about protecting the name and reputation of the Great Ormond Street brand.”

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She claimed Peter could have been saved if managers had listened to fears raised by senior doctors.

In 2011 Kim founded Patients First, which works to protect whistle-blowers in the NHS  and in 2013 was voted among the most inspirational women in healthcare.

 

And it was in 2011 too that The Whittington Hospital NHS Trust took over responsibility for the child community services team in Haringey, where Dr Holt is now Designated doctor for Children in care and the medical advisor to Haringey regards children being adopted and fostered.

The NHS Chief Executive – The Terminator

The NHS of course does it differently for their Chief Executives. The CEO of GOSH, Dr Jane Collins unloaded the perceived problem onto another Trust [where have we heard that before?] and held on to her post until 31 August 2012 on remuneration in excess of £180,000 per annum. Meanwhile:

  • In 2010, forty consultants at GOSH (yes, that’s right, FORTY) had called for her to resign.
  • In 2011, Dr Collins survived calls for her resignation from Home Office Minister, Lynne Featherstone after the BBC revealed she withheld information critical of the hospital from the official inquiry into the tragedy. [Where have we heard that before?]
  • In 2011, ‘The Evening Standard’ reported that Dr Collins escaped a GMC investigation over the Baby P scandal by removing herself from the medical register.

Dr Collins finally resigned in 2012 when Marie Currie appointed her as Chief Executive of the charity. Her reason:

I thought I needed a change.”

In Marie Currie’s Annual Accounts 2014-15,  she received a ‘not-quite-so-fat-cat’ salary of £166,650 per annum.

THE STORY SO FAR

Whilst Shoesmith was dismissed instantly and unlawfully, the NHS does it differently.

The whistle-blower is put on ‘special leave’ for four years whilst the CEO of GOSH hangs on; unloads the perceived problem onto another Trust; and holds on to her post until 31 August 2012 on annual remuneration in excess of £180,000 until she finds another job.

Read more on the GOSH, Collins/ Kim Holt scandal here→

THE LEGAL ARGUMENT

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The legal argument starts in the Cayman Islands – any excuse to use a tropical beach image –  in McLaughlin v Governor of the Cayman Islands [2007] UKPC 50.

 

 

On 31 December 1998, the Governor purportedly dismissed Dr McLoughlin, a well-qualified scientist in the Cayman Islands Government Service. It was common ground that the dismissal or purported dismissal was in breach of natural justice and relevant statutory regulation and therefore unlawful. There was a series of appeals to The Court of Appeal and The Grand Court of the Cayman Islands before The Privy Council put matters straight on 23 July 2007.

Lord Bingham agreed that the expression “void” was apt … the change of language did not alter the legal result. Whether void or unlawful, the decision to dismiss and the dismissal were without legal effect and there was no analogy with wrongful dismissal where dismissal may be unlawful but still effective. Lord Bingham added:

“It is a settled principle of law that if a public authority purports to dismiss the holder of a public office in excess of its powers, or in breach of natural justice, or unlawfully (categories which overlap), the dismissal is, as between the public authority and the office-holder, null, void and without legal effect, at any rate once a court of competent jurisdiction so declares or orders.

The office holder remains in office, entitled to the remuneration attaching to such office, so long as he remains ready, willing and able to render the service required of him, until his tenure of office is lawfully brought to an end by resignation or lawful dismissal.”

In short, if it is declared that an employee’s purported dismissal was ineffective in law to end his tenure in office, he is entitled to recover arrears of salary and payment of pension contributions until he resigns or his tenure of office lawfully comes to an end.

Sharon Shoesmith

A key reason why Shoesmith was in such a strong legal position was due to the sheer trigger happy conduct of Ed Balls, who effectively removed her from her role at Haringey without warning, flouting the most basic legal procedures. The first she heard of her sacking was on seeing TV coverage of Mr Balls’s press conference! Balls [up] also ignored the fact that Shoesmith was by no means solely responsible for the death of baby Peter, which illustrates an unwillingness to learn the facts.

Unsurprisingly, Shoesmith complained about the lack of procedures used in removing her from office. Haringey subsequently summarily terminated her from her contract of employment with them because Mr Balls had removed her from her office. The Council accorded Shoesmith no proper or adequate procedure to allow her to put forward her case, which goes against the most basic tenets of natural justice, however extreme the circumstances of the case employers are dealing with.

Whatever motivated Mr Balls to take the decision he did, he failed crucially to afford Sharon Shoesmith the opportunity to respond to the case against her. That was fundamental and unforgiveable.

Therefore, as in McLoughlin, Shoesmith was entitled to recover arrears of salary and pension contributions until she resigned or her tenure of office lawfully came to an end.

Given these ramifications, it somewhat perplexed two of the Court of Appeal Judges why Haringey Council did not protect its position by serving a contractual notice terminating Ms Shoesmith’s contract of employment. They could have done so “without prejudice” to their contention that it was entitled to dismiss her summarily. It did not do so. 

Katrina Percy 

Nobody in a position of authority has suggested Southern Health should have dismissed Percy summarily. The proper course of action was to act in a manner consistent with employment law:

  • Suspend her on full pay on publication of the Mazars Review. It appears that this is acceptable for whistle-blowers such as Dr Kim Holt but not for failed NHS leaders.
  • To prevent a Court subsequently finding her dismissal ‘void’, serve a contractual notice terminating her contract of employment, “without prejudice” to the outcome of the disciplinary process.
  • Commission a full investigation into her conduct.
  • Hold a disciplinary hearing, giving her the chance to defend herself.
  • Throughout, act in a manner consistent with employment law to ensure that a Court could not find her entitled to recover arrears of salary and payment of pension contributions until she resigned or her tenure of office lawfully came to an end.

However, even if Jeremy Hunt had been so reckless as to ‘do a Balls up’; the Trust had not served a ‘without prejudice’ contractual notice; and Percy had issued legal proceedings, it is impossible to imagine her receiving more than Shoesmith’s award.

Surely Mr Smart, Southern Health’s friends solicitors, Capsticks would have done better than that anyway.

Afterthought:

At the time of the Shoesmith settlement, it was said of Mr Balls-up: 

“It is not great to know that someone does not care too much if he saddles the tax payer with more than £600k of damages to an employee.”

It is not great to know either that another fully paid-up member of the Labour Party (Tim Smart) does not care if he saddles the taxpayer with an ongoing remuneration package of over £240,000 per annum for a “Bad Manager.”

It the long run, Percy’s dismissal (even if messed up as seriously as Shoesmith’s) would have cost taxpayers only the equivalent of four years’ remuneration. Now the NHS is potentially stuck with those annual payments for much longer.

Katrina Percy – “Bad at her job”

Katrina Percy’s Farewell even made the ‘Editorial Comments’ column of ‘The Daily Telegraph’ yesterday, with perhaps the most apt headline and comment.

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In addressing the problems the Health Secretary, Jeremy Hunt is facing, the editorial concludes that the best hope of narrowing the gap between resources and demand is to manage the NHS more efficiently. It went on to say:

“The need for efficiency means it is, in turn, vital that the NHS has the best-possible managers, executives who can squeeze the maximum amount of high-quality care from every pound spent. This grim situation is in the context for the case of Katrina Percy….

Ms Percy was bad at her job [bold added]. Under her management, the trust failed to protect patients from harm according to the Care Quality Commission. It failed to investigate hundreds of patient deaths and there are questions about millions of pounds it paid to consultancy firms run by previous associates of Ms Percy, who admits her position had become “untenable”. Yet she retains her £240,000 pay package and a job as an ‘advisor’.

Such excess is sadly not unique…. To Mr Hunt’s heavy in-tray must be the added task of tackling a scandalous culture of impunity and largesse among health service executives.” 

This was in addition to the Telegraph’s news story. Read here →

Call for Public Accounts Committee Investigation:

Sir Nicholas Soames MP, speaking to ‘The Daily Mail’ called on the Public Accounts Committee, which oversees spending of taxpayers’ money, to investigate the deal. Describing it as ‘Absolutely disgusting” and evidence of an NHS ‘merry-go-round’, he went on to say:

“It seems extraordinary that this astonishing person believes that she can stay on and laugh in the face of the public by being paid this sum. There has been a failure of competence and leadership in the first place and also over the use of public money. It is about as bad as you could get.

‘It’s what makes people rightly furious. And I agree with them – it is disgusting behaviour.’

John Pugh MP, a long-standing member of the Public Accounts Committee, speaking to ‘The Daily Mail’:

‘I’d love to believe that this is just an isolated instance but it’s a clear pattern in the higher reaches of the NHS. With the health service desperately struggling for cash, such criminal waste of money has got to be questioned and stopped.’

Rob Greig, former Department of Health director for learning disabilities told the BBC:

‘Any reputable job evaluation process would not conclude that those two jobs merited the same salary.’

And as per our earlier post today, perhaps the most poignant comment of all is by a reader, Andy Mann of Dorset in ‘The Daily Mail’:

“They need to investigate the person that gave her this job!

Here’s a clue:

 Tim Smart

Tim Smart – Interim Chairman with a record of failure as Chief Executive of King’s College Hospital NHS Foundation Trust, which led to Monitor taking regulatory action. Remuneration – £255,000+ (King’s Annual Reports & Accounts 2014-15). Read more here →

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Jim Mackey, Chief Executive of Monitor/NHS Improvement, who rarely (if ever) responds to mere complainants. Remuneration in  previous role at CEO of Northumbria Healthcare NHS Foundation Trust – £255,000+ (Northumbria Healthcare’s Annual Reports & Accounts 2014-15).

 

No doubt we will hear the ‘Sharon Shoesmith’ defence soon.

Katrina Percy’s Farewell

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And she blames the media! 

“I have reflected on the effect the ongoing personal media attention has had on staff and patients and have come to the conclusion that this has made my role untenable.”

Read more →

 

 

Forget the four-year failure in leadership and governance; only 272 of 722 deaths over four years dealt with properly; evidence of dishonesty (arguably corruption); questions on financial probity in the use of public money; many bereaved families and other complainants still awaiting justice … and so on ad nauseam.

Of course, it’s the media stupid!

And the ultimate insult to patients, bereaved families and staff? She resigns from the Board but Southern Health finds her a new role on the same salary and pension of over £230,000 in 2015/16.

Nice work if you can get it. Some choice observations:

Michael Buchanan, BBC:

“But even while acknowledging that her position was untenable, the chair of the trust has agreed to pay Ms Percy the same salary in her new post, about £190,000. That raises serious questions about Tim Smart’s judgement – no one I’ve spoken to, inside or outside the trust, can understand that decision.

At almost every turn over the past year or so, when Southern Health have had an opportunity to do the right thing, they have invariably chosen a different course. Even with Katrina Percy’s resignation, that appears to be a continuing issue.”

Dr Sara Ryan speaking to ‘The Oxford Mail‘:

“This whole sorry episode has shone an important light on peculiar workings at senior NHS levels around regulation, accountability and enforcement. It also demonstrates that candour and transparency remain woefully lacking in 2016.”

Andrew Smith MP (Oxford East) speaking to ‘The Oxford Mail‘:

“Her departure was long overdue and that she should have quit the Trust completely. I am very concerned that her comments, and those of the Trust, blame this on media attention rather than acceptance of her ultimate responsibility for the abject and fatal failings of Southern Health.”  

Norman Lamb MP (Lib Dem health spokesman) speaking to ‘The Oxford Mail‘:

“Under her watch, patients and families were fatally let down by a rotten culture where the unexplained deaths of more than a thousand vulnerable people with learning disabilities, autism and other mental health conditions were not properly investigated.

There was a failure to learn lessons despite repeated warnings, and this recklessness ultimately cost lives. But rather than taking responsibility and doing the honourable thing by stepping down, Katrina Percy continued to put her own interests before the public interest.

Reports that she will move into another well-paid job advising GPs on strategy are deeply concerning, and will aggravate the sense of injustice felt by the families of those who lost their lives.”

Dr Sara Ryan speaking to ‘The Daily Echo:

 “It is outrageous and scandalous. This is public money and this is our taxpayers’ money she is receiving. A sideways move is nonsense. She should have gone a long time ago.”

Harry Dymond, Chairman Southampton Healthwatch, speaking to ‘The Daily Echo‘ described her new position as “Unnecessary spending” and added:

“I have concerns that people in the NHS can be given a role when in the private sector they would have been dismissed. Regardless of rights and wrongs she had overall control of the trust and she should have acted quicker to step down. Southern Health has a lot of fences to mend and they have to mend them very quickly.

It looks as though if it hadn’t been for the media attention she would have carried on regardless. I am also astonished that the medical director remains in place, given the history of poor patient care, negligence and uninvestigated deaths at the Trust.” 

Cllr Andy Moore (Hampshire County Council, Eastleigh) speaking to ‘The Daily Echo‘.

“If you’ve failed you should take a cut in salary. Can the NHS afford to pay the same money and still protect the services they provide?” “It needs restructuring from the top to the bottom.”

Geoff Hill, Campaigner speaking to ‘The Portsmouth News.

“Ms Percy stepping down will not improve the trust. I do not think a change in the chief executive role will change the trust. Other people also need to step down for there to be any difference. For Ms Percy to blame the media is ridiculous. If you have failed in leadership and governance and there are uninvestigated deaths, then you should be in the spotlight.”

And perhaps the most poignant of all a comment by ‘Scotlander’ in ‘The Oxford Mail:

“She could be a poster girl for NHS incompetence, waste and indifference to public opinion.”