Mazars and the Parliamentary Urgent Question

This morning, the Secretary of State for Health Jeremy Hunt responded to an urgent question from his shadow opposite Heidi Alexander on the leaking of the Mazars Report into unexpected deaths between 2011 and 2014 under the care of Southern Health Mental Health Trust.

I don't want to discuss the substance of the report here as it is ably being discussed elsewhere. Rather I wanted to focus on the 30 minutes in the House of Commons.

Because of the current unpublished status of the report, even with Parliamentary privilege, MPs were rightfully careful of their language. Yet the manner of Jeremy Hunt's statement should leave no doubt as to the status held of it by the Government and NHS England. 

Jeremy Hunt's Statement

The whole House will be profoundly shocked by this morning’s allegations of a failure by Southern Health NHS Foundation Trust to investigate over 1,000 unexpected deaths. Following the tragic death of 18-year-old Connor Sparrowhawk at Southern’s short-term assessment and treatment unit in Oxfordshire in July 2013, NHS England commissioned a report from audit providers Mazars on unexpected deaths between April 2011 and March 2015.

The draft report, submitted to NHS England in September, found a lack of leadership, focus and sufficient time spent in the trust on carefully reporting and investigating unexpected deaths of mental health and learning disability service users. Of 1,454 deaths reported, only 272 were investigated as critical incidents, and only 195 of those were reported as serious incidents requiring investigation. The report found that there had been no effective, systematic management and oversight of the reporting of deaths and the investigations that follow.

Prior to publication, or indeed showing the report to me, NHS England rightly asked the trust for its comments. It accepted failures in its reporting and investigations into unexpected deaths, but challenged the methodology, in particular pointing out that a number of the deaths were of out-patients for whom it was not the primary care provider. However, NHS England has assured me this morning that the report will be published before Christmas, and it is our intention to accept the vast majority, if not all, of the recommendations it makes.

Our hearts go out to the families of those affected. More than anything, they want to know that the NHS learns from tragedies such as what happened to Connor Sparrowhawk, and that is something we patently fail to do on too many occasions at the moment. Nor should we pretend that this is a result of the wrong culture at just one NHS trust. There is an urgent need to improve the investigation of, and learning from, the estimated 200 avoidable deaths we have every week across the system.

I will give the House more details about the report and recommendations when I have had a chance to read the final version and understand its recommendations, but I can tell the House about three important steps that will help to create the change in culture that we need. First, it is totally and utterly unacceptable that, according to the leaked report, only 1% of the unexpected deaths of patients with learning disabilities were investigated, so from next June, we will publish independently assured, Ofsted-style ratings of the quality of care offered to people with learning disabilities for all 209 clinical commissioning group areas. That will ensure that we shine a spotlight on the variations in care, allowing rapid action to be taken when standards fall short.

Secondly, NHS England has commissioned the University of Bristol to do an independent study of the mortality rates of people with learning disabilities in NHS care. This is a very important moment at which to step back and consider the way in which we look after that particular highly vulnerable group.

Thirdly, I have previously given the House a commitment to publishing the number of avoidable deaths, broken down by NHS trust, next year. Professor Sir Bruce Keogh has worked hard to develop a methodology to do this. He will write to medical directors at all trusts in the next week explaining how it works, and asking them to supply estimated figures that can be published in the spring. Central to that will be establishing a no-blame reporting culture across the NHS, with people being rewarded, not penalised, for speaking openly and transparently about mistakes.

Finally, I pay tribute to Connor’s mother, Sarah Ryan, who has campaigned tirelessly to get to the bottom of these issues. Her determination to make sure the right lessons are learned from Connor’s unexpected and wholly preventable, tragic death is an inspiration to us all. Today, I would like to offer her and all other families affected by similar tragedies a heartfelt apology on behalf of the Government and the NHS.

No-one reading that should take credibly the claims in the HSJ article this morning which ran with the counter claims of a tame academic appointed by Southern Health and having a partial extract of the report shown to them. Still its another example of the desparate lengths the Trust are prepared to go that is in the public arena. NHS England take note.

This was a shocked chamber that listened to and responded to Hunt's statement. There were two questions that reoccurred that need highlighting. 

The first question was when did the Secretary of State know about the concerns over Southern Health. The answer was early 2014. The issue about repeating this question is that there has been a delegation of power from the Department of Health to NHS England through the 2012 reforms. The Secretary of State cannot be hands on as previous secretaries of state were. 

As a result of repeated marketisation reforms, the NHS banner contains numerous separate legal entities. The ability to act has to be lawful and consistent. It is, in my opinion, this space that has allowed Southern Health to make 300 challenges which will have been legally argued as required. Here its worth noting Jeremy Hunt's response to Andrew Turner:

The commitment I have from NHS England is that it will be published before Christmas. I am confident that, whenever it is published, it will generate huge media interest, rightly so and partly thanks to the shadow Health Secretary’s urgent question. When the draft report was sent to the trust, it came back with 300 individual items of concern, and it was right for NHS England, in the interests of accuracy and justice, to consider fully all those concerns. It has given me an assurance, however, that, whether or not it can reach an agreement with the trust about its contents, the report will be published before Christmas.

An agreement with the Trust. Yet also note what Hunt said to Heidi Alexander that [w]e will not allow any further arguments about methodologies to stand in the way of the report being published before Christmas. I would suggest that any goodwill within Whitehall towards Southern Health has been burnt up.

The second question was around families not having access to legal aid to challenge NHS bodies. This placed Jeremy Hunt in a difficult position because it isn't his turf but that of the Lord Chancellor Michael Gove and the members asking the question knew that. Hence the line that with a properly accountable NHS with full family involvement that there wouldn't need to be litigation. A sentiment that I would like to see fulfilled as it would be an extraordinary achievement. Until that perfect world, the Ministry of Justice needs to be lobbied in order that the scales of justice are balanced. 

This 30 minutes merely sets the context for future events. Once the report is published then a full debate will follow. This is where the House of Commons can give direction to the Secretary of State and that then empowers NHS England. Publication shifts power balances and serious reports require serious actions.

I would want to see Southern Health broken up, the earth salted and its ashes scattered to the winds. Its board and senior management were too remote and separate from the actual practice of care. Its size and empire (property) building are emblematic of an unfit culture. I believe, based on experience, in rooting management in the community so that values are shared and mutually understood. This sector of the NHS appears aloof and outside of those processes. When the debate occurs, I hope consideration is made on that point.

Black Swans, Pink Flamingos and Southern Health NHSFT

Sometimes a concept serendipitously appears that helps shape my thoughts and today I came across Dr Frank Hoffman's Black Swans and Pink Flamingos article which does exactly that. Hoffman uses the concepts in relation to defence planning but they have wider utility. Since the inquest verdict into the death of Connor Sparrowhawk on Friday, I've been reflecting on its meaning.

The Black Swan concept has been popularised by the writings of Nassim Nicholas Taleb who used it in relation to financial events. As Hoffman describes “[a] black swan is an event or situation which is unpredictable and for which the consequences could not be measured”. You cannot plan for black swans but only cope with their aftermath.

A Black Swan event is exactly what two of my closest friends experienced when their youngest child contracted and died of neuroblastoma. The thing about neuroblastoma is that it is a childhood cancer which has no known genetic or environmental markers. It is a random cruelty that visit children under the age of ten.

It still pains me to remember their hurt, grief, dignity and bravery when their child died. The funeral is still fresh in the memory. That no-one witnessing that cruelty would be anything but heart-broken by it. It was a profound event for me and has been one of my motivations for my involvement with #JusticeforLB and #LBBill. The unconscionable behaviour that Southern Health NHSFT display towards Connor's family has been untempered by any empathy or sense of responsibility.

That sense of outrage remains after the considered, comprehensive and damning jury verdict. A verdict which fits Hoffman's Pink Flamingo concept. To quote Hoffman:

Thinking historically about the future means dealing openly with those things we want to avoid or are in denial about. These are what I call our pink flamingoes. A pink flamingo is a predictable event that is ignored due to cognitive biases of a senior leader or a group of leaders trapped by powerful institutional forces. These are the cases which are “known knowns,” often brightly lit, but remaining studiously ignored by policymakers.

Having read the timeline for @LBInquest (as tweeted over the fortnight by the phenomenal George Julian) and then the written verdict of the jury, I find Hoffman's concept resonates powerfully. The jury found that Connor's epilepsy was a known known, brightly lit by his family, and was studiously ignored.

Here 'policymakers' refers to both the clinical practice team at STATT and the corporate structures within Southern Health. Many of the criticisms of the jury should have been picked up by due diligence in Southern Health's takeover of Ridgeway which previously operated STATT. I thoroughly recommend Chris Hatton's blog Diligence My Arse for those wanting a more detailed analysis.

The take home point for the corporates in Southern Health NHSFT is that the jury has pointed accountability at you. Mouthing platitudes to the media and sacking a low level grunt doesn't absolve you of your responsibilities. However there is some useful advice in Frank Hoffman's article which you might reflect upon especially this: “[a] crash in the real world is not subject to “no fault” rules; there truly are consequences to complacency and to faulty strategy”.

In this case, the devastation inflicted on a family.

The jury agreed that multiple 'very serious failings' occurred under the watch of Southern Health NHSFT leading to a preventable death. Fault occur at all levels. It wasn't an unpredictable event.

To be honest, I'm still struggling with that. I can't imagine how Sara, Rich and their family can reconcile those facts. Life can be randomly cruel, it really doesn't need so-called caring organisations to inflict further cruelties. Yet Southern Health actions, especially post July 4^th 2013, have done exactly that.

As the media reports have given Katrina Percy the last word, I shall direct my final comments to her: kindly shut up, take some responsibility and resign.

A clash of ambitions

Today (Tuesday 3rd March) has been an interesting day for the contrast between my morning spent in London discussing the 2nd draft of the Laughing Boy Bill (LBBill), a movement to see enacted in law changes that will improve the lives of people with learning difficulties and/or autism, and this afternoon/evening spent following the debate to set the 2015-16 budget for Birmingham City Council (BCC) where the Labour administration is having to enact £85m of cuts for the next financial year alone.

Now I have considerable sympathy for the position that Sir Albert Bore et al find themselves in. This is unprecedented in terms of scale. Yet some of this has been self-inflicted by successive administrations to favour the city centre development over citywide responsibilities. So in my area of interest, adult social care, Birmingham City Council is underspending comparatively with other metropolitan areas by 2.5% of budget or £39million in cash terms. That is an outlier that is significant by any stretch of the imagination.

It cannot be said with confidence that the budget that will be set today will meet the statutory requirements on the city as the 2014 Care Act comes into effect from April. Its an difficult juxaposition where Whitehall expectations are increased while the grants for BCC are decreased. If the consultation, budget or any service provision were tested legally, BCC would probably have more difficulties than the contingency fund would allow.

Against this, the 2nd draft of the LBBill sits as a statement of intent. In particular, clause 4.4 of the 2nd draft which asserts duties above financial resources. As a principle, this is absolutely right. In practise, if this culture of austerity for local authorities continues, it will inflict more pain on the functioning of any authority. It makes me uncomfortable because I know that 2015-16 isn't the worst point for Birmingham City Council. 2016-17 and 2017-18 will be harder still as the cuts drive deeper. Its against this background that I and others hope that Sir Albert, John Cotton etc will start working with us and others interested parties from May 8th to help the city mitigate the worse aspects of 2016-17 onwards and close that gap with comparable cities. Its a hard road ahead.

Against that, the 2014 Care Act does reduce the ability of local authorities to use financial considerations as a basis for setting who qualifies as having statutory needs. The imposition of national standards does challenge the 1997 Gloucestershire Judgement that local authorities have used to tighten qualification of substantial or critical needs. So clause 4.4 can be said to work with the 2014 Care Act. This will be tested in court soon I suspect.

So the optimism I felt this morning at Monckton Chambers with the diverse and knowledgeable individuals and organisations around the table, both in person and the disembodied voices on speakerphone, has been tempered by the ugly reality that is occurring in Birmingham's Council House.

Yet the ambitions of LBBill has to happen. We cannot compromise on the principle that underpins LBBill that is everyone has the right to live their lives however messy that may be. That it may make local government's life more messy is something we'll have to live with.

Evaluating Simon Stevens Dowry

After over a year's wait for a blog, two come along inside a week...

After Tuesday's blog describing the discombobulation of NHS England's Simon Stevens when asked  to consider the concept of fairness, I have found myself continuing to think about the dowry proposal made prior to that moment. It needs to be unpacked as a concept because I think it tells us a lot about the thinking that is happening and thinking that is not happening currently.

If we look at the exchange as transcribed here:


Q63 Austin Mitchell: I just want to pursue the financial imperative. The targets were overambitious for financial reasons: the fact that the money did not follow the patient created local resistance to having the patients. Paragraph 2.24 says, “Meeting the needs of people in the community, who NHS England previously funded in hospital, is a material cost to local commissioners. This can affect their ability to provide appropriate and sustainable care packages. Hospitals subsequently experience significant delays in discharging patients while complex negotiations continue”. This must mean that you can speed up the process through a fairer, better financial arrangement with the CCGs and local providers.

Simon Stevens: What makes this complex is that you have two sets of things going on there. One is that there are a group of people who have been in institutional care for a very long time. When you talk about moving them, as we will be when we are closing some of these facilities, you need to take the old mental health model—we talk about dowries and funding endowments that move with people, and those might be partly with the local authority and partly with the local CCG. If you look at the fact that a fifth of people in in-patient settings have been there for more than five years, those are the sort of folks for whom you are talking about dowries. But for people who have been in an in-patient setting funded by specialist care for three or six months, that is not so much about their ongoing support for ever; that is a moment in time when they are getting something. Distinguishing between those two categories is what we have to do. Some of this will have to be dowry-type arrangements; some will just have to be about a recognition that, actually, this is the CCG’s or the local authority’s funding responsibility, and they will have to step up to the plate.


On a superficial reading, the response made by Simon Stevens could be read as though some thought had occurred before sitting in front of the Select Committee. However there are some jarring inconsistencies of thought occurring that are troubling if we are to take the rhetoric seriously.


The first point of contention comes with the notion of the dowry itself. What exactly will NHS England be funding with this dowry? If the care plans are accurately assessed then the needs of the individual receiving the care package have to be statutorily met. So will any such dowries be providing additional non-statutory needs or is this an implicit admission that the funding streams of CCGs/LAs are not sufficient to provide statutory needs? Is this about the needs of the service user or the needs of service funders?

Then there is the usage of years institutionalised to determine whether the individual requires a dowry as oppose to those expected to be pick-up by CCG/LA spending. How exactly will NHS England determine the qualification for this dowry? Will it focus on enablement? A problem with this is that there doesn't appear to be any evidence for that particular cohort being any more requiring of deinstitutionalisation than those who are there for six months or three years. This isn't person-centred policy based on needs but rather an arbitrary qualification of time that seems to have been plucked out of the air. I can't help but think of Mark Neary's excellent blog and that one of the consequences of his son Steven having spent a year in an ATU has been the need to permission-seek for actions such as going to the toilet as a result of his previous institutionisation.

These questions are particularly important in terms of the concept pursued by the members of the Select Committee of "the money following the patient" (NB for the Select Committee - they are people who aren't ill just because they have LD/ASD). In this context, the dowry concept seems less about facilitating this concept as blocking it. My cynicism would suggest that Simon and his colleagues should be viewing this issue as an efficiency opportunity for NHS England. That isn't a bad motivator in itself as it is more likely to see some change forced through. But for that motivator to work, the incentive needs to be that NHS England retains a sizeable proportion of the spending or in other words ensuring the money doesn't follow the individual. The dowry concept with its years incarcerated qualifier would allow NHS England to retain 80% of its spending. But as I said, I'm cynical.

Indeed with the challenge that Simon Stevens has set NHS England of finding £20bn of efficiency savings and our current cohort of politicians indulging in magical thinking as to bringing together two underfunded services (Health and Social Care) and expecting them to find that their deficit funding disappears, its no wonder that throwing a bone such as dowries occurs.

So I have questions for the Select Committee - what exactly are you attempting to achieve by this notion of "the money following the patient"? What exactly are you funding with it and for what purpose? What does fairness look like to you in this context?

Perhaps I'm being unreasonable to the Public Accounts Committee here but there doesn't appear to be much awareness of how the funding creates action or resistence. Simon Stevens is clearly telling the Select Committee in the answer quoted above that he needs to retain a significant proportion or there isn't the incentive to create change. Hence the discombobulation when Austin Mitchell followed up with the "so you think the funding is fair?" question. Fairness to the individual was the last thing on Simon's mind.

Yet I think Simon has a reasonable argument here given the financial pressures NHS England are under and that if keeping a significant proportion of the spend to allocate elsewhere sees the majority of ATUs shut down then that is a compromise worth making.

What I would advise Margaret Hodge and her colleagues on the PAC is to focus on a more holistic approach to achieving the goals of reducing institutionalisation. Abandon the money following the individual approach and instead split the money being spent on this cohort in three ways: a transitional fund to help CCGs/LAs budgets when any individual moves into the community (this can be graduated for need); developing more community-based specialist mental health services; allowing NHS England to redistribute the remaining savings. The precise proportionality can be debated but lets create incentives to move people into the community and support them when they are there.

The statutory responsibilities on CCGs and LAs to provide care and support  need to be funded properly in themselves. This is where the direction of travel re merging health and social care provision needs to be discussed with honesty rather than magical thinking. Just grabbing part of NHS England's budget as Margaret Hodge suggested to Simon Stevens is also counter-productive as it creates resistence and most likely perverse outcomes. The environment of health and social care post May 7th will be a very contested space regardless of what sort of government emerges.

The need for more thinking about what outcomes you want to achieve and less glib statements that sound good is necessary more than ever. Trouble is I think it will be a long long time before it happens. Perhaps that why this song is in my head this morning.

Simon Stevens Failure is not an Option

Another in a very occasional series of blogs.

Yesterday (Monday 9th February 2015) in the Boothroyd Room of Portcullis House, the House of Commons' Public Accounts Committee chaired by Margaret Hodge met to receive evidence for their inquiry into Care for people with learning disabilities.

As noted on Twitter by Chris Hatton, there was a real disconnect between the mood of the Select Committee and those witnesses appearing in the second half of the hearing. 

Those witnesses were: Una O'Brien, Permanent Secretary, and Jon Rouse, Director General, Social Care, Local Government and Care Partnerships, Department of Health, and Simon Stevens, Chief Executive, and Jane Cummings, Chief Nursing Officer, NHS England.

There was a feisty attitude to the committee members questioning as to why the stated target to move approximately 3,000 Learning Disabled (LD) and/or Autistic Spectrum Disorder (ASD) people out of units following the outrage of Winterbourne View by June 2014 failed.

This was a target that had little bearing on the reality of how commissioning and supply works for LD/ASD people and although traction for the target wasn't helped by the 2012 health reforms, the cultural issues surrounding responsibility and accountability extend further back. It is therefore with a raised quizical eyebrow and copious amounts of salt that I took Simon Stevens commitment to "substantial transition" in the next eighteen months.

This isn't to disbelieve the sincerity of Simon when he states that they "cannot defend the indefensible" but rather that the siren voices of caveats and funding will lure his attempts onto the rocks.

The most significant exchange for me starts at 16:37:30 when Austin Mitchell, whose questioning style is generally languid, starts discussing the failure of the money to follow the LD/ASD individual and that there are disincentives in local authority funding to facilitate the transfer into the community.

This point re local authority funding is vitally important to grasp. To explain, lets use another NHS and local authority cooperation - the transfer of elderly people with care needs out of hospital and into community facilities. This is a constant dialogue between the NHS and LAs with peak demand for flow happening in the winter. To meet the peak demand requires a market response to provide the community spaces and support required and markets respond to funding signals. Yet the funding flow from NHS to LAs operates as if the market capacity responds to a 'just in time' signal. Such an approach is fine if you have automated assembly lines but less so when the largest resource is people. If you are not prepared to pay for excess capacity then time lags will occur and any additional monies thrown at the problem as Jeremy Hunt has done is asking people to retrofit capacity.

So funding flow is important and consistency of funding is important to developing the market capacity required to enable the stated ambitions of Simon Stevens here. Austin Mitchell touches on this when finishing his question by suggesting that the process of transfer could be speeded up by a "fairer" funding settlement.

Simon Stevens response to this is to separate those trapped in the system for a long time (more than five years) and suggests using the dowry model that facilitated the closing of mental institutions in the 1980s with those who been in the system for three to six months where the CCGs or LAs will have to pick up the tab. Note that those who been in the system for 1-4 years aren't being considered in this response.

Austin Mitchell then asks the killer question at 16:39:40: "so you think the funding is fair?"

To use cricketing metaphors, this was the equivalent of a medium paced mid-70s mph trundler bowling a 90+ mph throat-high bouncer that Mitchell Johnson would have been proud of. Watching Simon Stevens body language disintegrate faster than an English batsman facing Mitchell Johnson was quite amusing.

Simon then pulls himself together with the cop-out phrase "its an accident of history". Ladies and gentlemen - welcome to the bullshit zone.

I have to thank Austin Mitchell for asking the right question here as it exposed the thinking here as being limited to "Houston, we have a problem". I don't knock the acknowledgement as the journey has to start with this step but its clear that the stated aspirations as reported by David Brindle haven't remotely been thought through.

This is why two and a half years down the line, work around pooled budgets remains at the starting gate when discussed at the PAC yesterday. A fair settlement starts with what it means to live as a LD/ASD person in their community and to live life to the full. Not as Jane Cummings suggests "as normal as possible" but to live a messy life of their choosing. Any funding settlement needs to follow and facilitate those principles. Its why campaigns such as the LBBill are so important - these need to be legal rights. Those committee members agreeing with a rights-based approach should take note.

My lasting impression of yesterday was that any thinking around this was couched in terms of the conflict of funding streams between health and social care rather than cooperation. The contested space that is the Better Care Fund which is being used more to retain existing LA services than developing new cooperative working as the NHS resents the top-slicing occurring as they experience real terms cuts to their budget. Against this background, it felt as though costs were expected to be pushed from one part of the system to another. Any idea of "fairness" in funding was therefore a shocking concept.

The top-down instruction to get people out of ATUs isn't a bad thing but we need to pool our intelligence to design the mechanisms properly else we'll Heath Robinson the process and create problems down the line. So thinking of Apollo 13 again, this scene resonates somewhat...