Candle in the Wind

two candles with dark background

Dr Bill Kirkup CBE, whose evidence to the Pascoe Investigation into Southern Health NHS Foundation Trust was reported here, was followed by two more equally authoritatve and credible independent witnesses, Dr Josephine Ocloo and Keith Conradi.

josephine-ocloo

Dr Jospehine Ocloo

Senior Researcher & Health Foundation Improvement Science Fellow at King’s College, London, Dr Ocloo became involved in patient safety after her daughter died following a medical failure. 

This gives her a high profile role as a patient representative and patient safety researcher. She completed a PhD in 2008 on medical harm from the viewpoint of those directly affected by safety incidents. She emphasised the, “Awful grief” experienced by bereaved families, subsequent betrayal by the NHS, causing, “Further grief.” She described this as,

The dark side of the NHS” [adding]

“This will keep happening until it the NHS is fatally wounded.”

Will the Panel identify the irony in Dr Ocloo’s comments? The families’ original withdrawal statement and their refusal to re-engage, demonstrate that the Pascoe Investigation is yet another act of betrayal – this time by NHSEngland/Improvement. Read more here→

house sinking with a downward arrow on background, verticalDr Ocloo used the analogy, ‘You can’t build anything on sand.’ The foundations must be right.

We summarise some of her insightful views, as noted:

  • The Duty of Candour will not work without remedying the root cause – a closed culture with no transparency.
  • Defensiveness and unwillingness to ‘own up’ prevents openness and transparency too.
  • There is no commitment in the NHS to Article 2 (The Right to Life); families are seen as the problem. Trusts need to own up and settle.
  • There is no commitment to openness and transparency – starting with the leadership.
  • There needs to be the right balance between accountability and learning – this is essential in a democratic society.
  • Trusts are large corporate bodies with many opportunities and resources to cover up their failings.
  • The architecture of governors, non-execututive directors (“NEDs”) and Executive Directors is driving the problem. NEDs often lack true independence; governors have little influence and are unable to challenge effectively.
  • Patient/public engagement has been mooted since 1970. It doesn’t work; it excludes the most vulnerable, including Mental Health and Learning Disability patients.
  • Complaints are not investigated independently: the PHSO is ineffectual. Families are let down by everyone; excluded from investigations; and treated, “Brutally.” 
  • Recent and old cases are remarkably similar.
  • There should be statutory complaints regulations with investigators completely and truly independent of the Trust, including laypeople from outside the NHS.
  • There needs to be a cultural shift in Regulatory bodies. All are perceived by the public as ineffective – endless criticisms of them are not addressed.
  • Laypeople are not involved sufficiently in all areas the NHS, including investigations. 
  • Service users, families and carers have no-one to turn to for robust assistance. 
  • Has heard of a ‘cultural shift’ but there is no genuine contrition. Culture can only be judged by service users/families – their perception is key. 
  • Harmed patients are not considered important but trusts cannot learn without them. Some families are prepared to ‘cross the barrier’. 
  • In 2016, circa. 80 bereaved family members attended a meeting about a proposed Learning Disabilities Mortality Review (LeDeR) Programme¹. There is no evidence of any recommendations being implemented; 5 years later, “LeDer has stalled.”
  • In 2017, the Care Quality Commission said there was no organisation running complaints systems properly: doesn’t think there’s been much progress since. 
  • Even she [a patient representative and patient safety researcher] struggles to be involved at a senior level.
  • Ideally investigators of serious incidents should be completely independent of Trusts and the NHS. This should include natural deaths to check nothing is being covered up.
  • Families should have access to legal advice to overcome an imbalance of power. One side has legal and medical experts; grieving families have nothing. 
  • Patient safety issues are not opened out from the Trust. Healthwatch might give public input but have no remit to hold Trusts to account.
  • There may be salvation in Integrated Care Systems if there is family and patient representation.
  • There should be diversity of investigators², including lay voices, and a medical expert.
  • The “Just Culture” currently is geared to staff interests rather than patients/families.
  • It is not a psychologically safe system – ‘the Trust is always right‘. Staff who speak up are gaslighted and treated brutally. 
  • Children, adolescents, and elderly often get missed out. This is little support during investigations – independent advocacy does not work.

Dr Ocloo feels the most fundamental issue is that investigators must tell families: why an incident has occurred; if it was preventable and; who is accountable. She recommended  Trusts should look at the commercial world to learn about investigations. We know many isues at Southern Health remain unresolved – the bereaved families’ issues for example.

She recommended a ‘Truth Commission‘, provided that both parties are willing to engage in good faith – as in the South AfricanTruth and Reconciliation Commission.’

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Keith Conradi 

Chief Inspector of the Air Accident Investigations Branch (“AAIB”) (2010 – 2016), Keith has been a professional pilot for 40 years. He is current Chief Investigator of the Healthcare Safety Investigation Branch (“HSIB”).

Keith made a stark comparison between aviation industry’s attitude to safety incidents and that of the NHS; it became clear when he became founding member of HSIB in 2016.

  • There is evidence that NHS investigations attempt to avoid liability. The AAIB assumes people come in to do a good job and do not to blame individuals for honest mistakes. 
  • There should be a culture balance between a learning culture and accountability. The latter usually is carried out by regulators. 
  • A single regulator Civil Aviation Authorityensures the whole aviation industry meets the highest safety standards. Accountability in the NHS is too complex and fragmented with too many regulators and no straight line of accountability.  
  • International Air Transport Association (“IATA”) is a powerful, unified and experienced voice supporting and promoting the interests of aviation worldwide, and setting overall standards for members. There is nothing similar in healthcare – even in UK.

Notwithstanding the importance of a single national regulator, Keith emphasised that a strong and accountable Board is essential in large Trusts. The most successful are where Board Directors show a keen interest in safety incidents and complaints.

During his time at the AAIB, Keith felt easyJet was the best performer. He credited the CEO, Dame Carolyn McCall, DBE for taking a personal interest in all safety incidents. 

Carolyn-McCallIt is no coincidence that under her leadership easyJet achieved record passenger numbers and record profits. 

In 2013, Flight Global gave Carolyn the Airline Business ‘Airline Strategy Award for Low Cost leadership’.

© foodforthought.barthel.eu

Who said Lean Management, cost-saving and safety are mutually exclusive terms?

Interestingly, just as the panel asked Dr Kirkup if his experience clouded his judgement of the NHS overall, a Panel member questioned the validity of comparing the aviation and healthcare sectors by claiming that healthcare is far more complicated. 

We beg to disagree – if there is a serious incident involving a Boeing 747, the aircraft (with six million parts), crew, airline, manufacturer, air traffic control, airport, cargo, check-in staff, ground handlers, meteorologists, engineers (and so on ad finitum) all are considered as possible causes. Investigating, for example, deaths by ligature, is simple in comparison.

We summarise some of Keith’s other views, as noted but in no particular order:  

  • Families want a true account of what happened and accountability; they don’t want repeated mistakes. A separate organisation should hold Trusts accountable. 
  • In investingating complaints, a current employee of a Trust cannot be independent. There are huge issues with perception, which are very difficult to overcome.
  • Leadership of the investigation is key – one can be a good leader without being a safety expert. The leader does not have to be from the healthcare sector. 
  • Local investigators need better training. At HSIB, new investigators do 3-weeks’ intensive classroom training before shadowing an experienced investigator. Then, they are allocated to a team but remain accompanied until judged sufficiently competent.
  • Family engagement essentail: every time. It is key to keep them in picture and prvide key information. They know more about the culture of organisation and provide invaluable and insight on improvement. 
  • Families should always get opportunity at face-to-face meetings to comment on draft reports. If they disagree, both views must put both into the report.
  • On Duty of Candour, it is sad there has to be a legal obligation in the NHS: 

  “Honesty and family involvement are essential as human nature.”

  • Overall Compliance with the Duty of Candour is the responsibility of the Board, which should take immediate action on breaches.
  • The HSIB has been a slight improvement in culture but only where it has carried out investigationes. There is talk about a just culture – but only relating to staff safety.
  • An accountable Board is better for local complaints. A health and safety expert should sit on the Board; the CEO should sit on the Trust’s Quality & Saftey Committee; and there should not be so many on the Committee that it dilutes responsibility.
  • The Board should check very early that action plans have been implemented. This cannot be effective if complaints are not taken up to Board level. [Southern Health has just divisionalised complaints, shifting responsibility farther away from the Board.]

Keith described the HSIB’ limitations as a, “Small agency” on a non-statutory basis, with funding of £4.5m and 45 employees. The HSIB is placed in NHSE/I but they have no say in what the HSIB does except, for example in planning, resources, and personnel services. NHSE/I can allocate additional resources for special projects. 

We would that, if NHSE/I allocates HSIB’s funding, they have significant control over what HSIB can achieve. We believe HSIB should be put on an independent statutory basis and allocated significantly increased funding. Keith would not be averse to increasing the HSIB’s role, perhaps with a regional team and a register of trained, accredited independent investigators for Trusts to choose from. CRASH says, “Bring it on!”  

We make no apology for this post being lengthy and staid – the evidence of Dr Kirkup, Dr Ocloo and Keith Conradi is key. It is for the Panel to determine how closely Southern Health meets their requirements and thereby demonstrate its true independence.

In memory of all Southern Health’s patients, whose lives have been lost. We can only hope.

Candle of Hope2

And it seems to me you lived your life
Like a candle in the wind
Never fading with the sunset
When the rain set in
And your footsteps will always fall here
Along England’s greenest hills
Your candle’s burned out long before
Your legend ever will.4

Footnotes:

¹ LeDer was the world’s first national review of deaths of people with learning disabilities. Commissioned after the findings of the ‘Confidential Inquiry into premature deaths of people with learning disabilities from 2010-2013’, the Mazars Report on deaths of learning disability and mental health patients under the care of Southern Health Trust re-emphasised the importance of the programme. Read more here→

² Diversity issues at Southern Health are not limited to the 9 protected characteristics. In practice, they engage only with compliant customers and reject those with the knowledge and management expertise to identify improvement opportunities and assist implementation.

³ Elton John, Bernie Taupin [1997] 

“The Dark Side of the NHS”

Socks Eyes

CRASH has experienced serious IT issues. Some suggested that we might have been ‘got at’ but we found no evidence of this. It necessitated a change to our email address

The Pascoe Investigation re-started dramatically on 6 April 2021. Nick Ralls¹, an NHS accredited hypnotherapist, whose son has been a service user of Southern Health NHS Foundation Trust and its predecessor body for over 20 years, alleged that his experience of, “Engagement” with the Trust’s Board had, “Got worse over time“. He could not see, “Any improvement” in the complaints process, adding:

“I don’t see a cultural change…. It seems to be more problematic as time goes on, the way the complaints are handled.”

A full report of Nick’s evidence is on the BBC website here→. Others share his view.

Next were two witnesses relatively supportive of Southern Health (unsurprisingly ‘NHS-lifers’). The Chair of Healthwatch Hampshire, Anne Smith, appeared ill-informed. Dr Vaughan Lewis, S.E. Regional Medical Director, NHS England, displayed little knowledge of Quality Improvement. He admitted lack of expertise in mental health and learning difficulties and that these subjects are normally addressed by staff 1/2 steps below him. Where is the parity of esteem – enshrined in law by the Health and Social Care Act 2012?

Bizarrly, we heard from retired Judges – His Honour Judge Neil Butter CBE (rtd. 2001) and His Honour Judge Keith Cutler CBE (rtd. 2021). The former asserted that retired judges should not chair serious incident investigations (“Judges do not do empathy“) whilst the latter said the opposite because judges have (“Empty brains“). In short, they cancelled eachother out – Judges would require ‘expert’ advisors too, thereby racking up costs. 

We then heard three truly independent, authoritative witnesses, whose evidence was extensive, compelling and very well-informed. 

Dr Bill Kirkup CBE

Bill_Kirkup

A fearless veteran of many investigations Dr Kirkup led inquiries into Morecambe Bay maternity services and Jimmy Savile’s involvement at Broadmoor. He was a Panel Member of the inquiry into the deaths at Gosport War Memorial Hospital.

 

Dr Kirkup asserted that Trusts need to address five issues in investigating incidents: 

  1. They should not adopt a defensive mindset or challenge findings made against it. 
  2. Effective leadership: especially when things go wrong. Public must trust the leaders.
  3. Breakdown in clinical relationships – between those with different clinical backgrounds. Once embedded, professional jealousy is hard to identify.
  4. Clinicians do not own up when things go wrong, especially if someone has died. They look for reasons to deny liability. There is a subculture of invincibility. 
  5. Disconnect between senior leadership and front-line workers, which lead to ineffective clinical governance.

In rating complaints handling, Dr Kirkup rated some Trusts as very good; 70% adequate; and 10% incomprehensibly bad. 10% do not learn from incidents. He referred to the ‘We can’t make a mistake’ culture still prevalent amongst doctors and believes that overcoming the, ‘Subculture of impossible expectations’ must begin with doctors’ training. However, the General Medical Council says it has no room on the syllabus.

When asked how the 10% could be identified and improved, he referred inter alia to the following requirements. 

50027334 - learn and lead business concept

Leadership

  • The Chief Executive Officer (“CEO”) and Directors must be closely engaged in patient safety issues and complaints.

 

  • Many spend too long looking at high level figures, which do not tell the whole story.
  • Many do not check learning such as by talking to people, including service users. 
  • Hierarchical systems and ineffective teamworking are a feature of poor leadership.
  • Boards often do not have the ability to recognise what’s go on – directors should go out talk and visit places. Bad ones shut themselves behind a key card!
  • Good leaders admit when they need professional help; others fool themselves and don’t tell anyone.
  • There must be accountability for change: without improvement, the leaders must go.
  • Current assessment of leadership by regulators is not working as well as it should.
Culture
 
  • Changing deep-seated attitudes and culture depends on leadership. 
  • Does it need a change of leadership to change culture? Very difficult to change culture unless the current leadership admits to the Trust’s errors.
  • A change in culture often needs a change in leadership. 
  • Only service users, carers and families can attest to changing culture.

Duty of Candour

  • Just be open and honest – there should be no need for a legal duty.
  • There must be full, immediate disclosure of evidence – families and patients must be involved throughout to avoid loss of trust. Those who recognise most incidents often the safest. If the process is not inclusive things can be missed.
  • Subculture of impossible expectations and clinical denial – “We can not make a mistake culture” still prevalent.  
  • Needs a process and audits to ensure learning is implemented. 
  • Clinicians should have proper meetings with customers, not ‘edge of the bed’ talks; admit to their errors; and welcome customer involvement. 

Triangle of Care 6Customer Involvement 

Lack of communication with families stems from clinicians not accepting that things go wrong: the reach for reputational management starts at clinical level. They do not want to sit down with people and listen.

 

Complaints & Investigations

  • Response to complaints is not good, often dismissive/hostile. ‘Get rid of them a.s.a.p.’ – they are not linked to clinical governance and can become confrontational.
  • The gold standard is that complaining should be easy. He emphasised progress made in the commercial sector in this respect.  
  • People should not be looking at their own incidents – will not get best learning.
  • Independence of investigators must be proportional – they can be part of same Trust but not the same team. In more complex serious incidents, it is wholly wrong that Trust investigates itself; it must be wholly independent.
  • Investigations should not be led by clinicians – they are not objective. Bishop James Jones is a good example of an expert in leading investigations. Educational background is immaterial – they need to understand the process. 
  • Families should be involved throughout: meetings should be informal with  constructive dialogue, avoiding Trusts being told by lawyers not to answer questions.
  • When families require legal assistance, it should be provided.
  • There is no criteria for the commissioning of an independent inquiry – should include deaths or systemic failings. Dr Kirkup found a death where a simple check list was produced – 9 months later, it happened again.
  • Must involve relatives and/or customers in investigations. Investigators should be open with people, not treat them as witnesses. 

Medical Records

  • Medical records often show events as they were ‘thought to happen’; they are too ‘clinical.’ This needs to be remedied. 

48375735 - learning never ends message on the card shown by a man

Learning & Action Plans

  • Investigations should lead to firm action plans. There can be a good process, but learning is then ignored, especially in dysfunctional Trusts.

 

 
  • Needs a process to ensure that learning is implemented. For example, quality committees.
  • Customer involvement in improvement and repairing ‘damage’ is essential.
  • There should be an audit of action plan implementation. Directors are accountable, and Regulators should check. 
  • CCGs should be responsible for checking action plan implementation but this rarely happens. 

Mysteriously, a Panel Member asked Dr Kirkup if his experience clouded his judgement of the NHS overall. Why does a Panel (whose own independence has been questioned) challenge a truly independent witness?

Bill Gates Adage

Dr Kirkup was asked how to treat families, who are not happy with the outcome of an investigation, and how to support them long-term.

He emphasised that the first time is the best chance of getting it right, adding that this often doesn’t happen and the longer it goes on the worse it gets.

Families are best experts on their own case.

Read more by leading expert Anita Toth¹→

 

Dr Kirkup sees a role for mediators – not in investigations but in mending fences. However, both parties should be willing to engage in the process with an open mind. He emphasised that they should be run by an independent professional mediator – not a clinician. At Morecambe Bay, he thought it was successful in certain cases after the investigation.

Dr Kirkup believes that the role of Medical Examiner is vital – but they only should be involved as a ‘long-stop’ and should not be an employee of the Trust. 

The best compliments heard about Dr Kirkup’s evidence are expressions of regret that he was not Chair of this Panel. However, if the Panel assesses Southern Health’s leadership and service users’ evidence against Dr Kirkup’s observations, its report will be damming.

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Clearly, the current leadership at Southern Health NHS Foundation Trust has shown no wish to engage with its most unhappy customers – the bereaved families.

It refuses to use them as any source of learning.

Indeed, it has done exactly the opposite!

 

 

Dr Kirkup was followed by Dr Josephine Ocloo (Senior Researcher and Health Foundation Improvement Science Fellow at King’s College, London) and Keith Conradi (Chief Investigator at Healthcare Safety Investigations Branch).

Their evidence is so important that it warrants a separate report. For now, we must credit Jospehine for her description of historical cases as, “The dark side of the NHS.”

Footnote:

¹ “When you have a lot of unhappy customers demanding limited time and limited resources, the financial cost can be big—from hundreds to hundreds of thousands of dollars. The faster you can reduce the number of unhappy customers you have, the better it is for your business.” [Anita Toth, ‘Bill Gates Says Unhappy Customers Are Good for Your Business. Here’s why’, first published 22 October 2020 in ‘Entrepreneur Europe‘.]