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December 2018
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The Mid Staffordshire NHS Foundation Trust Report: A prescription for change?

Robert Francis QC’s inquiry into the appalling failures in care at the Mid Staffordshire NHS Foundation Trust follows in the footsteps of some forty previous inquiries into the NHS in the last four decades – a point which he made in his opening address to the Inquiry. He also noted that his inquiry was investigating many of the same areas which the Bristol Royal Infirmary Inquiry considered in detail some ten years earlier. He was clearly conscious of the danger of his inquiry not translating into real change within the healthcare system.

Mr Francis conducted an initial independent inquiry to consider the causes of the failings within the Trust and provide immediate recommendations relating to its management. The reasons which he has identified for the failings at the Trust were not new. Previous inquiries have concluded that breakdowns in NHS care, as were experienced in Stafford, were the product of organisational change, weak leadership, poor culture, and inadequate systems and processes. He was subsequently charged with the more significant challenge of conducting a full public inquiry into the role of the commissioning, regulatory and supervisory bodies within the broader NHS framework in the failings at Stafford to identify why these failings were not identified and remedied sooner. Given the implication that the system was not sufficiently robust to identify similar failings elsewhere in the country, it was clearly appropriate that Mr Francis undertake this second inquiry under the Inquiries Act 2005 providing him with both powers to seek and receive evidence and requiring the examination of the evidence to take place in the full gaze of the public and press.

The inquiry process itself meets one of the inquiry’s primary objectives – to introduce transparency and encourage accountability. The individuals and bodies called to account for their actions are forced to consider the lessons to be learnt from their experience. However, it falls to the Chairman to draw together all the evidence to come up with a coherent set of recommendations. Mr Francis faced particular challenges in this inquiry in that having considered the evidence concerning the events of 2005 – 2009, by the time his report was published in February 2013, the NHS had been subject to major structural reform further to the Health and Social Care Reform Act 2012 and the Government had already introduced various relevant measures ahead of his report. Despite this, he has formulated 290 separate recommendations which the Government has confirmed it will consider over the next month before it issues its formal response.

From this point, the chairman of an inquiry has limited ability to follow up upon his recommendations. The obligations under the Inquiries Act 2005 simply stop at the point that a report is published. The Act imposes no obligations upon the Government to implement the recommendations or even respond to the report. This issue has been addressed by previous inquiry chairman. In particular, following his inquiry into child protection measures following the Soham murders, Lord Bichard committed to undertaking a follow up report six months after his initial report reviewing the extent to which the recommendations had been implemented. However, such an approach requires the further report to be accommodated in order to meet the terms of reference. He also persuaded the Government to report regularly to the House on progress with the recommendations.

Mr Francis has taken a slightly different approach. His first two recommendations relate to accountability for the implementation of the remaining 288 recommendations. He has recommended that each and every relevant healthcare organisation consider the recommendations, decide how to apply them to their work and announce as soon as possible which recommendations it will follow. This is to be followed by these organisations issuing annual reports concerning progress with these actions. He has also challenged the Parliamentary Health Select Committee to take oversight of the decisions and actions announced by those organisations which are accountable to Parliament. It will be a matter for the Committee, rather than Government, whether it will fulfil this function.

Both mechanisms introduce accountability for recommendations relating to the activities of specific bodies. However, there are other recommendations relating to the structure of the NHS, such as the re-shaping of the respective roles of Care Quality Commission (CQC) and Monitor, which can only be implemented by a change in law. Ultimately, therefore, the impact of Mr Francis’ recommendations will depend on political will and public pressure. Given the wide public interest in the NHS providing safe care to patients, it is hoped that Mr Francis’ report will not be shelved and forgotten.

E: ecarter@kingsleynapley.co.uk
www.kingsleynapley.co.uk

T: 020 7814 1255

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