Department of Health and Social Care confirms Secretary of State has binned Kark’s mechanism to disbar unfit NHS managers, and reveals this was NHS England’s suggestion

Dr Minh Alexander retired consultant psychiatrist 11 July 2023

Steve Barclay Secretary of State waffled before Health and Social Care Committee on 20 June 2023, in response to questions about the failure of the government’s Freedom To Speak Up project to protect NHS whistleblowers, after eight long and miserable years.

In consequence, I asked him some questions under FOI:

Secretary of State who commissioned report on recycled NHS managers wonders if bad NHS managers are recycled

This is his Department’s response, in unusually quick time:

Department of Health and Social Care FOI response 10 July 2023 on implementation of the Kark Review on Fit and Proper Persons in the NHS

In brief, the Department says it has accepted the following four recommendations from the Kark review on Fit and Proper Persons in the NHS, but hasn’t a clue when they will be implemented, because it’s been palmed off onto NHS England:

“With regard to recommendations 1 to 4, DHSC does not hold the information you have requested. However, you may wish to contact NHS England, which may be able to provide an update on the timetable for recommendations 1 to 4.”

“Recommendation One

All directors (executive, non-executive and interim) should meet specified standards of competence to sit on the board of any health providing organisation. Where necessary, training should be available.

Recommendation Two

That a central database of directors should be created holding relevant information about qualifications and history.

Recommendation Three

The creation of a mandatory reference requirement for each Director

Recommendation Four

The FPPT [Fit and Proper Person Test] should be extended to all Commissioners and other appropriate Arms-Length Bodies (including NHSI and NHSE).“

Disbarment has been dumped

Importantly, it is also confirmed that Barclay has ditched Kark’s fifth recommendation, for a mechanism to disbar NHS managers for serious misconduct:

“The power to disbar directors for serious misconduct”

This is blamed on NHS England:

“The Government agrees with NHS England that effective safeguards are currently in place by ensuring an exit fit and proper person test is completed when directors leave employment and that any conduct issues which arise after their employment remain on the national register. These safeguards, together with a robust referencing process, will prevent unsuitable leaders being re-employed in the NHS and also act as a deterrent to misconduct itself.”

So, “an exit Fit and Proper test” has been secretly mooted but kept hidden even after publication of the NHS Workforce plan on 3 July 2023.

It sounds like a ludicrous fig leaf, that everyone knows is a ludicrous fig leaf.

Interestingly, NHS England previously blamed ministers for disbarment being dumped, telling me there was no “ministerial support” for this Kark recommendation.

How they all twist and turn.

It is worth remembering that Kark’s review reserved disbarment for matters such as criminal convictions leading to a custodial sentence, victimisation of whistleblowers or knowingly allowing the victimisation of whistleblowers, “Causing, facilitating, colluding in, or requiring any staff member to fail to comply with the duty of candour including by means of a settlement or confidentiality agreement” and “Falsification, concealment or suppression of records, data or other information which is required to be provided to any other person or organisation”.

And the disbarment mechanism also fell short of full regulation. The latter is rightly expected of hundreds of thousands of NHS staff who are responsible for patients’ lives. But so are NHS managers, who have been dodging regulation since it was recommended by the Bristol heart public inquiry over twenty years ago.

And what of the fact that Barclay told the Independent in the 2018 that he was determined to stamp out abuse of NHS staff by bullying managers when he launched the Kark review:

“Now Stephen Barclay, a health minister, has told The Independent he wants the “fit and proper” person test for NHS directors – introduced in 2014 – to be widened to require action on harassment and discrimination.

Mr Barclay said: “That one in four NHS staff have experienced bullying, harassment or abuse – and that more than twice as many BAME [black, Asian and minority ethnic] staff have suffered discrimination from their manager or colleagues than white staff – is deeply alarming and should be a call to arms for urgent action across the NHS.

“I am determined to put an end to this, which is why the NHS is already working to close the equality gaps and tackle bullying.”

It is also worth remembering that Barclay recently wondered out loud at Committee on 20 June 2023:

“What accountability is there for senior managers when wrong doing is established? Are they just rotated through the system? Or are people held to account?”

Really Mr B!!!!

UPDATE 23 AUGUST 2023

The Telegraph yesterday asserted that the ministerial fashion for dumping disbarrment originated with Matt Hancock:

RELATED ITEMS

NHS England’s “exit Fit and Proper Person test”

I have written to the Chief Workforce Officer at NHS England to ask for details of the “exit Fit and Proper Person test” mentioned in the Department’s FOI response:

BY EMAIL

Dr Navina Evans

Chief Workforce Officer

NHS England 

11 July 2023

Dear Dr Evans,

I have received information from the Secretary of State’s office  confirming previous reports that recommendation 5 of the Kark review for a disbarring mechanism has been dropped.

“The Government agrees with NHS England that effective safeguards are currently in place by ensuring an exit fit and proper person test is completed when directors leave employment and that any conduct issues which arise after their employment remain on the national register. These safeguards, together with a robust referencing process, will prevent unsuitable leaders being re-employed in the NHS and also act as a deterrent to misconduct itself.”

I would be grateful if in your reply to my enquiry of 4 July 2023 you could additionally include the details of the “exit Fit and Proper Person test” that is envisaged by NHS England, and by whom it will be applied. 

If no such exit test has yet been devised, please indicate the timescale within which the test will be developed and ready for use.

Would the exit test will be applied by a local employer with possible vested interest, as opposed to an independent central body, as disbarring mechanism would be?

I must say I cannot see how for example, University Hospitals Birmingham NHS Foundation Trust would have applied an exit test reliably to David Rosser, its former CEO who was criticised by the Employment Tribunal for his behaviour towards a whistleblower. He also received a warning from the General Medical Council. The trust board has still not published a flawed FPPR investigation review on David Rosser, conducted by a subordinate trust employee which it claimed cleared him. The trust board also misled the public in a bizarre fiction, claiming that Rosser stepped down as CEO and moved to a regional role, when he remained a trust employee as revealed by an FOI request. As the trust board continues to deny that its FPPR investigation found cause for concern, if left in control of an exit FPP test, I imagine it would allow him to recirculate in the NHS.

Many thanks and best wishes,

Minh 

Dr Minh Alexander

NHS whistleblower and retired consultant psychiatrist

Cc Tom Kark KC

     Health and Social Care Committee

     Secretary of State for Health and Social Care

Is the Patient Safety Commissioner a Prescribed Person under PIDA?

The UK whistleblowing law since 1998 is the not only useless but also harmful Public Interest Disclosure Act (PIDA).

Under this law, there are a number of designated bodies and individuals to whom whistleblowers may make so-called “protected disclosures”.

This too is a useless system as the Prescribed Persons sometimes are clueless about their responsibilities, and are legally obliged to do little more than to log the concerns received and to publish a superficial annual report about the numbers of concerns. No one is legally obliged to protect the whistleblower or act upon their concerns.

Barclay implied to Committee on 20 June 2023 that the Patient Safety Commissioner  (for Medicines and Devices only) might be a Prescribed Person for whistleblowers’ disclosures. She is not currently listed as one. I asked him if the Department intended to give her this legal status. It did not reply.

The Patient Safety Commissioner was of course the second and particularly objectionable NHS National Freedom To Speak Up Guardian who expended most of her and her Office’s energies on PR, self-promotion and supporting an establishment narrative. Not to mention instances of failure to apologise and learn when her Office actually harmed whistleblowers:

The National Guardian’s Office finally apologises for a breach of whistleblower confidentiality but fails to demonstrate sufficient learning

Sorry is the hardest word: CQC, Paula Vasco-Knight and Regulation 5 Fit and Proper Persons

NHS musical chairs: Darren Grayson, the Good Governance Institute & University Hospitals Sussex NHS Foundation Trust

Mr Tristan Reuser’s whistleblowing case: Scandalous employer and regulatory behaviour on FPPR