Agenda item: 5
Paper No: CM/06/13/04
SUMMARY:
This paper provides an update on the actions that CQC has and will be taking following the completion and publication of Grant Thornton’s Project Ambrose report into CQC’s registration and oversight of University Hospitals of Morecambe Bay NHS Foundation
Trust. The report raised significant questions about the way CQC regulates, the way it works with others and the culture of leadership within the organisation. This paper provides updates on the following areas:
-
Responding to observations made within Grant Thornton’s report
- Action to b e taken following CQC’s appearance at the Health Select
Committee on 3 July 2013
- Potential action against former or current staff following publication of the report
- An update on police action following publication of the Grant Thornton report
- Details of an on-going challenge in relation to the independence of decision making between CQC and PHSO.
RECOMMENDED ACTION:
The Board is asked to COMMENT on the action being taken following publication of the
Grant Thornton report.
Executive Decision/
Board for information
Executive and Board decision
Executive and Board shared decision
Executive and Board discussion/Board decision
The Executive Team has made a decision and the
Board has been informed
The Board has been consulted in order for the
Executive Team to make a decision
This is a shared decision between the Executive
Team and Board
This is for when it is clear that it is a specific Board decision (under statutory and legal requirements) ie. signing off the annual accounts
* Check box as required
LEAD DIRECTOR:
AUTHOR:
DIRECTORATE
DATE:
SUPPORTING
PAPERS:
David Behan
Alun Jones
Chief Executive’s Office
25 July 2013
Appendix 1 - Analysis of issues raised in Grant Thornton
Report
Appendix 2
– CQC response to the Health Select Committee
GOVERNANCE
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Agenda item: 5
Paper No: CM/06/13/04
AUDIT TRAIL:
LINK TO STRATEGIC
OBJECTIVES AND
BUSINESS PLAN
FINANCIAL IMPACT:
RISK IMPACT:
REPUTATION IMPACT:
LEGAL IMPLICATIONS:
HEALTHWATCH IMPACT:
EQUALITY IMPACT
ASSESSMENT:
This paper is provided as an update on activities following the publication of the Grant Thornton report.
There is a clear interdependency between the report and the implementation of CQC’s strategy, with the Grant Thornton report offering an insight into previous weaknesses that can and should be corrected.
In the main, any financial impact relates to the effective implementation of CQC’s strategy, thus being dealt with under mainstream CQC programmes of work. However, there will be a financial impact of any future Inquiry.
Failure to act on issues raised in relation to the Grant
Thornton report will impact on CQC’s future effectiveness the confidence which the public has in it.
CQC aims to operate in an open and transparent way.
Failure to act on the Grant Thornton report will impact on
CQC’s reputation but more importantly will be a missed opportunity to learn from past failings and improve the way it regulate.
There is still the possibility of legal action being taken against CQC. The possibility of an Inquiry also raises the question of legal costs.
No specific impact
Covered under any strategy implementation workstreams
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Agenda item: 5
Paper No: CM/06/13/04
1. Background
1.1 On 19 th June 2013 CQC published Grant Thornton ’s independent report into
CQC’s registration and oversight of University Hospitals of Morecambe Bay NHS
Foundation Trust (UHMB). The report was commissioned to investigate complaints made by a CQC Board member and Mr James Titcombe, whose son
Joshua died shortly after being born at Furness Hospital in 2008. The report raised significant questions about the way CQC regulates, how it works with others and the culture of leadership within the organisation.
1.2 Following publication of the report, CQC was placed under scrutiny, resulting in it being invited to account for itself at a Health Select Committee hearing on 3 July
2013.
1.3 Independent of Grant Thornton’s review, there has been on-going wider scrutiny of the actions of UHMB and those charged with oversight of trust. This has taken the form of a police investigation into deaths at the trust and a decision by ministers that there will be an independent inquiry which will sit in public.
2. Executive Summary
2.1 Grant Thornton ’s work and the attention directed towards wider and historic failures at UHMB raise a number of significant issues that CQC has an opportunity to learn from and address as it seeks to implement its strategy.
2.2 The Board is asked to note and comment on activities summarised in this report which seek to respond to issues raised within Grant Thornton’s report. These activities include potential action against current or former staff and follow-up actions resulting from CQC’s appearance at the Health Select Committee.
2.3 The Board is asked to note the position with regard to police action and an inquiry to be held in public.
2.4 Finally, the Board is asked to note the details of an on-going challenge in relation to the independence of decision making by CQC and PHSO in relation to the death of Joshua Titcombe.
3. Responding to Grant Thornton’s report
3.1
Grant Thornton’s report raises a number of significant issues about the way CQC operates and the culture and leadership. Appendix 1 provides a full analysis of key issues documented within the report and remedial actions that are being taken, or could be taken. In summary form, the topic areas and actions can be summarised as follows:
Approach to Inspection
3.2 Grant Thornton makes number of observations about the way in which CQC has undertaken inspections in the past. They point to a lack of clinically experienced staff, a lack of experience specific to the service being inspected, insufficient guidance and wide ranging risks to patient care being missed.
3.3 We are currently consulting on the way we should inspect services. From August
2013 CQC aims to carry out a mixture of announced and unannounced inspections of hospitals, with bigger inspection teams led by the Chief Inspector of
Hospitals. The teams will also include a senior NHS clinician or executive, professional and clinical staff, Experts by Experience patients, carers and other experts. Certain departments or wards such as accident and emergency,
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Agenda item: 5
Paper No: CM/06/13/04 maternity and paediatrics will always be looked at during these inspections. The
Chief Inspector of Hospitals has recently announced the first wave of inspections to be undertaken using the new approach.
Approach to risk assessment
3.4 Our strategy for 2013-2016 outlines our plans to change the way we inspect and risk assess services, and how we will introduce ratings for trusts. As we make these changes, we will take account of weaknesses rai sed in Grant Thornton’s report, ensuring that surveillance methodologies are used to target inspections.
Further potential actions should include:
•
Limiting the use of self-assessment in any new regulatory methods
• Use of validation where assurances are given by third parties
• Adopting a lower threshold of suspicion
•
Reviewing how information relating to Serious Untoward Incidents (SUIs) is used
• Ensuring that there is a common internal view on regulatory risk at trusts (only one list)
•
Ensuring that the right information is available at the point of regulatory decision making
• A robust approach to registration.
Duty of candour
3.5 The Grant Thornton report indicates a number of ‘missed opportunities’ including the failure of the trust to provide a copy of the ‘Fielding report’ into maternity services at UHMB. CQC does now oblige providers to disclose critical information following registration. The government is considering legislation to enforce a duty of candour, but regulations are not yet drafted. Further work may be required to ensure that CQC’s requirements of providers are clear to them and that action will be taken by CQC in instances where information is suppressed.
Failure regime
3.6 The Grant Thornton report echoes the findings of the Deloitte report from 2013, which called for improvements in how decisions were made and documented as well as greater clarity around how different powers are used e.g. section 48 investigations
3.7 The planned introduction of a
‘failure regime’ will offer a clearer roadmap for escalation of concerns about a trust, including clarity on accountabilities for CQC,
Monitor and the NHS Trust Development Authority.
Governance – Corporate
3.8 The report points to a number of weaknesses in governance arrangements leadership culture and handling of concerns raised.
3.9 Action: New Board members and Executive Directors have been appointed and the Board, Executive and Leadership teams are leading on a number of initiatives to develop the culture of the organisation, focusing on openness, transparency and learning. One example is recent work to support a zero tolerance to bullying and harassment.
3.10 An independent governance committee has also been formed to provide assurance to the Board that CQC has an approach to decision making and
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Agenda item: 5
Paper No: CM/06/13/04 governance that supports the promotion of a transparent, open and accessible culture. In the light of the Grant Thornton review, and in the context of organisational changes underway, further consideration will be given to the effectiveness of internal governance structures.
Governance – Operational
3.11 Regulatory decision making: CQC is currently making significant changes to the way in which it inspects and risk assesses NHS Trusts. As part of these changes,
CQC will clarify governance arrangements and guidance for staff so that there is clarity on where and how regulatory decisions are taken and the mechanisms for ensuring the quality of those decisions.
3.12 Systems and processes: As a result of the Grant Thornton review and the need to improve operational systems and processes, CQC will undertake an audit of the efficiency and effectiveness of records and documents management policy and practice.
High performing organisation
3.13 The Grant Thornton report highlights a number of specific and detailed issues which CQC would wish to tackle as it strives to become a high performing organisation. Full details of these issues can be seen in Appendix 1. Of particular note are Grant Thornton’s observations around training and guidance for operational staff.
3.14 One of the key priorities listed in CQC
’s 2013/14 business plan is to build a high performing organisation. Amongst other initiatives, CQC is developing a training academy, implementing programmes to ensure that leaders are equipped to lead the workforce and improving the systems, tools and processes that enable staff to work more effectively and efficiently.
Setting and achieving performance targets
3.15 The report demonstrates how timeliness of action can directly impact on the effectiveness of regulation. In implementing its new strategy, CQC is considering the impact that delayed action may have on the effectiveness of regulation and is setting improved Key Performance Indicators.
Registration
3.16 The Grant Thornton report raises a number of issues in relation to the approach taken to transition registration of NHS providers in 2010. Many of these issues were specific to the period in question. Nevertheless, in line with CQC’s strategy for 2013 to 2016, action is being taken to strength registration. Registration will be a more rigorous test to deliver safe, effective, compassionate and high-quality care. Registration will be legally binding and we will make sure that named directors and managers commit to meeting the standards and are tested on their ability to do so.
Strategic partnerships
3.17 The report suggests that relationships with some external stakeholders were dysfunctional with, for example PHSO concerns not being logged or followed up in a systematic way.
3.18 CQC has developed a memorandum of understanding (MoU) with the
Ombudsman which outlines the principles of how the organisations will work together. A key principle is the need to make ‘our own independent decisions’ and acknowledge each other’s statutory responsibilities as well as sharing information.
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Agenda item: 5
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3.19
CQC’s business plan for 2013/14 details its commitment to working better with other regulators and partners to improve the quality and safety of care. This will see the further development of Information Sharing Agreements and MoUs as well as structured meetings with a range of partners to ensure that information is shared between relevant organisations. A list of current information sharing agreements and MoUs can be found in Appendix 2. Further details of on-going partnership development work, including formal partnership arrangements with bodies such as NHS England will be presented to the Board in a strategic partners update paper on 31 July.
4. Activities following CQC’s appearance at the Health Select Committee
4.1 Following the publication of the Grant Thornton review, David Prior and David
Behan appeared at a hearing of the Health Select Committee on 3 July 2013.
CQC committed to provide a further written response to a number of questions which required further consideration or investigation. This response has been shared with CQC’s Board and is also attached at Appendix 2.
4.2 CQC’s response to the Health Select Committee confirms that it has committed to write to the Secretary of State in August outlining its response to the Grant
Thornton report, including any actions it is planning to take
5. Potential action against current or former staff
5.1 Following the publication of the report, CQC has committed to review the evidence used by Grant Thornton to produce their report, including transcripts of the interviews, for the purpose of considering whether action should be taken against any current or former employees. Hempsons Solicitors, who specialise in employment law, have been instructed by CQC to assist and advise on process.
Further updates will be provided to the Board.
6. Police action
6.1 Cumbria Police force is continuing to investigate the death of Joshua Titcombe and have considered the evidence within the Grant Thornton report in relation to this. On 18 July they confirmed that there are no on-going specific investigations into CQC as a result of the report.
6.2 It is understood that following a referral, the Metropolitan Police may be considering whether there is a case to answer in relation to misconduct / misfeasance in public office. As such, a charge of this nature would be aimed at an individual rather than an organisation and communication on this matter would not in the first instance be directed at CQC. CQC has however written to the
Metropolitan Police and offered to assist should they wish to pursue any such matters.
7. Independent Inquiry
7.1 Ministers have agreed to support a transparent and independent Inquiry, which will be held in public and which investigates the failings in maternity and neonatal services at UHMB. Dr Bill Kirkup has agreed to Chair the Inquiry and terms of reference are currently in the process of being discussed and drafted.
7.2 CQC understands that early draft versions of the Inquiry terms of reference indicate a relatively narrow focus on safe provision of maternity and neonatal services rather than regulatory decision making. Further information on the emerging terms of reference will be shared with the Board as it becomes available and/or any specific decisions need to be taken by the Board.
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8. Continuing concerns about the independence of decision making by CQC and
PHSO
8.1 Following publicat ion of the Grant Thornton’s report on 19th June 2013, Mr James
Titcombe contacted David Behan to voice concerns about the conclusions reached by Grant Thornton. His concerns were articulated in a number of emails, asking the key question “Did CQC and the PHSO act independently and properly in relation to the issues raised by Joshua's death”.
8.2 This continuing complaint will be considered by the Governance Committee on
30 th July and there will be an update at the Board meeting on 31 st July.
9. Conclusions and next steps
9.1 The Board is asked to note and comment on activities summarised in this report which seek to respond to issues raised within Grant Thornton’s report.
9.2 The Board is asked to note the position with regard to police action and an inquiry to be held in public.
9.3 Finally, the Board is asked to note the details of an on-going challenge in relation to the independence of decision making by CQC and PHSO in relation to the death of Joshua Titcombe.
Name: David Behan
Title:
Date
Chief Executive
22 July 2013
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Appendix 1- Analysis of issues raised in Grant Thornton Report
Topic
Approach to inspection
Approach to risk assessment
Report
Page
Issue articulated in Grant Thornton Report
HSC questions requiring follow-up
Action to be taken
8 Lack of clinically experienced staff
From August 2013 CQC will carry out a mixture of announced and unannounced inspections of hospitals. The inspection teams will be bigger and will be led by the Chief
Inspector of Hospitals. The teams will also include a senior
Q95, Q99, Q101-
Q106
NHS clinician or executive, professional and clinical staff,
Experts by Experience patients, carers and other experts.
Certain departments or wards such as accident and emergency, maternity and paediatrics will always be looked at during these inspections.
First wave of inspections announced
Wide-ranging risks to patient care, identified in Fielding report,
135 were missed by CQC – suggesting “engagement” with the Trust and SHA was flawed and ineffective
152
Inexperienced inspectors lacking maternity experience and lack of confidence in own ability
Q65-72
Q85-86
Two issues to address - spotting issues and understanding consequences of decisions. Experts will be used and they
Q95, Q99, Q101-
106 will receive training to assist them. Also relates to thoroughness
12
Conflicting information around whether a follow-up inspection is mandatory following the date of a compliance warning notice being reached – enforcement policy insufficiently detailed
New methods are being developed and guidance will be revised
8 Over-reliance on self-assessment (registration)
8
Over-reliance on third party assurance e.g. SUIs had no clinical commonalities (SHA)
126
Lack of validation of information received from the trust or assurances from the SHA
126 SHA declarations accepted at face value
263
CQC allowed a Trust with ‘an apparently delinquent culture to divert regulatory scrutiny from poor standards of care’
264
Failure to follow up key information that might have identified risk
Q76-77
Q76-77
Q76-77
290 Reliance on ‘old’ data for registration and compliance decisions
48
Trust not highlighted on mortality outliers analysis at time of decision not to investigate
Weaknesses in management information systems – failure to
8 capture within CQC all known and available information about the Trust and required follow-ups resulting in downgrading of risk
11 Sharing of SUIs with CQC – relied on SHA encouragement
124
Regional risk panel views not consistent with views of regional director
141 Appropriate degree of professional scepticism not shown
146
Question of whether CQC should downgrade risk ratings on the basis that a provider is carrying out its own review – e.g. Fielding
New approach to inspection, risk assessment and rating of trusts will take account of these weaknesses. This will include use of strategic partnerships to ensure that information sharing is effective and surveillance methodologies being used to target inspections
Key points to address:
Use of self-assessment
- Validation where assurances are given by third parties
- Adopting a lower threshold of suspicion as suggested in
Francis report
- Review of how SUIs are received interpretted and acted on
- Ensuring there is one internal view on risk (one list)
- The right information being available at the point of regulatory decision making (including registration)
- Robust approach to registration
290
Septicaemia mortality alert in December 2009 apparently ignored
Mortality alert – CQC contacted Trust in Jan 2010 to say alert was
103 being assessed. No evidence to indicate any action or follow up taken at the time or during registration
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Agenda item: 5
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Topic
Duty of Candour
Failure regime
Governance - Corporate
Report
Page
Issue articulated in Grant Thornton Report
HSC questions requiring follow-up
Action to be taken
7 Obligation to disclose critical information following registration Q64, Q67, Q84
Updated registration paperwork does oblige disclosure.
Regulations relating to duty of candour are not yet drafted and further work in this area is required.
7 Lack of prescribed procedures – investigations
51
Door closed referral to investigation - regional staff member perplexed by investigation procedures
162 Lack of coherent plan for dealing with the trust
183
CQC less assertive role than perhaps would have been appropriate in the circumstances (left SHA to ‘hold the ring’)
Why was an investigation launched in this case and at this time –
185 repeat of Deloitte findings – clarity around decisions made and where
189 Investigation – what is the trigger or escalation route
198
Process for developing Terms of Reference for an investigation are unclear, including where they should be signed off
The Deloitte report from early 2013 details a number of weaknesses. Failure regime will offer a clearer roadmap for escalation of concerns about a trust, including clarity on accountabilites for CQC, Monitor and TDA
6
Poor Governance in relation to dealing with issues of operational weakness (+whistleblowing)
Q12, Q95-98
13 Failure of REC to discuss UHMB and role of REC (RRC) in general Q12
18 Dysfunctional relationship between Board and Exec Q52
Board ineffectiveness:
222 and - Members requesting information and not receiving a response
224 - Board agendas and minutes (failure to discuss UHMB)
(includes whistleblowing)
Q12
New Board members and Executive Directors have been appointed.
An independent governance committee has been formed to provide assurance to the Board that CQC has an approach to decision making and governance that supports the promotion of a transparent, open and accessible culture
Consideration to be given to internal governance and whether RRC is fit for purpose
Governance - Operational
Lack of transparency around why certain decisions were made or
7 changed – undocumented inspections and decisions not to inspect
Q35
Current overhaul of inspection and risk assessment approaches needs to be articulated
Need to be able to articulate how quality, governance and risk management works within new approaches
7
Weaknesses in governance and procedures to assure quality accountability and proper management of CQC’s operations.
91 Meeting between CPHSO and CQC CEO not ‘memorialised’
165 No record of purpose, motivation or objectives of visits to trust
16
CQC decision making – original decision not to investigate – recorded rationale could have been clearer
Q31,Q74, Q116-
119
Notes to be required from meetings
Q35, Q71-73
13 Lack of clarity around why the decision to investigate was made Q35
17
Lack of records to show why action wasn’t taken (Follow-up after assurances given to PHSO)
Q35
9
No evidence of an improvement letter being issued – record keeping impacting on transparency
13
Is further inspection required if SUI occurs after a warning notice is issued?
31 Retention of historical emails older than a year
Q21-30 and 32-
34
Inspector training/professionalism
An audit of records and documents management policy and practice has been commissioned and this will include consideration of:
- whether records and documents policy is in line with besy practice and legal/professional requirements
- information held is complete, recorded, captured or placed into the formal records and documents system, and is not inappropriately deleted
- information is accessible to those that need it and in a
New methods are being developed and guidance will be revised
Policy of retention of back up tapes being reviewed and considered as part of audit detailed above
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Topic
Agenda item: 5
Paper No: CM/06/13/04
Report
Page
Issue articulated in Grant Thornton Report
HSC questions requiring follow-up
Action to be taken
250 Perception that an internal document might pose an 'FOI Risk' Q37-Q39
Need to ensure that the FOI Act is understood by staff and that transparency and openness are part of CQC’s culture
171
Lack of clarity between the intentions of the policy makers and the compliance team’s interpretation of the policies
CQC to develop as a high performing organisation, allowing successful implementation of policies through active engagement of all staff, communication and training, including the development of a training academy.
Approach needs to ensure that expertise is not seen as a proxy for thoroughness
High Performing
Organisation
Setting and achieving performance targets
8
Lack of clear procedures, guidelines and effective training for
CQC staff – registration
8
Continuity of oversight by the regional team in assessing risk and compliance
Business Continuity:
129
- Briefing of incoming Regional Director
- No individual in the region had continual oversight of the trusts and its history
Q99-116
232 Internal review report – the alleged order to delete
Q37-Q39
Q88-94
202
Slow publication of inspection reports not aiding transparency.
Inspection in Feb, publish in June
13 Warning notices issued slowly (6 weeks)
7 and 8
Lack of prescribed procedures – registration
Lack of resources, capacity and time to conduct pre-registration inspections
8
Registration not taking into account all of the available information both within CQC and known by other stakeholders
8
Lack of clarity over responsibilities of the regional team and central functions regarding registration approval
There is a risk associated with internal change and CQC will need to ensure that structured handovers take place during any transition.
Need to consider management culture when staff raise issues or draft reports, the contents of which may be contested.
Clear policies are needed and CQC will improve KPIs
Action is being taken to strength registration in 2013/14.
Registration will be a more rigorous test to deliver safe, effective, compassionate and high-quality care.
Registration will be legally binding and we will make sure that named directors and managers commit to meeting the standards and are tested on their ability to do so
Registration
Strategic Partnerships
127 Register now check later mentality
130
Transition registration – lack of training, resources and qualifications
Mortality alert and potential compliance conditions not
132 mentioned in Assessment Record used for registration assessment
Training issues documented in mid staffs evidence and improvements have been made
Qualifications – inspection regime is changing
Resources – CQC has requested and secured further resources as necessary
New approach to be articulated – need to demonstrate how surveillance methodology will be used to target inspections
7
69
Dysfunctional relationships with external stakeholders/partners - including information sharing
No evidence that PHSO’s concerns logged or followed up in a systematic way
Q84
Q70, Q72, Q74,
Q75, Q79-83,
Q116-121
CQC has developed a memorandum of understanding
(MoU) with the Ombudsman which outlines the principles of how the organisations will work together. A key principle is the need to make ‘our own independent decisions’ and acknowledge each other’s statutory responsibilities as well as sharing information. These are principles that CQC is also pursuing through the development of Information Sharing Agreements, MoUs and scheduled meetings with a range of other partners to ensure that information is shared between relevant organisations.
Audit of records and documents management policy and practice has been commissioned - as outlined above
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Agenda item: 5
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Appendix 2
– CQC Response to the Health Select Committee
Annex provided as separate electronic file
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