Because it is far from clear that Francis has come up with the right prescription to prevent as far as possible (and it will never be possible to prevent entirely) any repetition of the scandalous lack of care in Mid-Staffs.
Rather the risk is that Francis will produce a whole lot more bureaucracy, an army of inspectors whose existence will offer false comfort, the creation of unmanageable organisations in a revamped Care Quality Commission and revamped NICE, a culture more of fear and caution than one of openness and innovation, a reluctance among lay people to take on the role of non-executive directors on boards in the face of new criminal sanctions, and a health system that ossifies.
It is crystal clear that Mid-Staffs, as Francis rightly says, was a huge cultural failure married to a distinct failure of regulation. It is far from clear, however, that the answer to failed regulation is more regulation – and there is a lot of that in the Francis report – or that more regulation and inspection can effectively drive culture.
Let’s start with the obviously good bits in Francis. A legal duty of candour to be placed on individuals and organisations, plus publication of more information. Good. So too is the idea that senior managers and directors who palpably fail can be declared to be not a “fit and proper person” to work in health care – a test similar to that applicable to company directors and people in the financial services industry.
But after that, politicians should think long and hard before endorsing many of the other recommendations. Francis recommends that Monitor, the regulator that oversees foundation trusts, should be merged with the Care Quality Commission, the standards inspectorate. The fact is, however, is that there will always be a trade-off – a balance to be struck – between finances and quality. With two organisations, that trade off is potentially visible. Within one it risks being invisible. Indeed, before the existence of an NHS inspectorate and Monitor, it was a trade off that effectively took place secretly within the department of health and the NHS executive. At times, over the years, that allowed NHS standards of care to slip towards one of the service’s many perennial crises.
Furthermore, CQC with its responsibilities for health and social care inspection, and the activities of the Mental Health Act Commission, is already a body whose many roles and remits stretch so far that it is questionable whether it is manageable. Placing yet more duties on it may finally sink it. And there is a similar risk to Nice, whose remit has already grown like topsy in recent years, if it is to take on defining standards of care and compliance measures.
More on-the-ground inspection. This is an argument coming full circle, not least because the awkward truth is that we still don’t really know how to inspect hospitals. The original NHS inspectorate, the Commission for Healthcare Improvement (CHI), relied heavily on “boots on the ground.” In practice, finding high quality inspectors able to grapple with the huge complexity of modern health care led to bitter internal criticism of the standards of the inspectors themselves. The NHS wants its best people treating patients, not spending days and weeks out on inspection teams.
Furthermore, hospitals are hugely complex places. They are not schools. They can have good wards and departments and specialisms – where specialists are needed genuinely to judge how good they are – and bad ones. Even in Mid-Staffs, not everything was awful. There is a limit to how much can be picked up by an on the ground visit of a few days or a week by a limited, mixed team of individuals who do not cover the whole gamut of care.
CHI’s successor, the Healthcare Commission relied much more on data analysis to identify problems – and it was, late in the day, data analysis which partly brought Mid-Staffs to a head. On its own data analysis is clearly not enough. But finding the right mix of analysis and inspection has so far proved elusive. And the crucial truth is that the quality of care is, essentially, the responsibility of the professionals and leaders on the ground, and a strengthened army of inspectors is unlikely to be the right answer to that.
Indeed, passing an inspection can lead to problems not being addressed; it can remove responsibility from where it lies. Taking complaints seriously, GPs listening to the feedback from their patients and acting on it, staff working in a culture that cares and is open – which is where the duty of candour and publication of more information could be really helpful – are likely to be far more effective than more inspection.
Francis recommends that health care assistants should be regulated. But the existing regulation of doctors and nurses did not halt Mid-Staffs. Existing regulation needs to work better – which again is where the duty of candour could help. Monitor and the CQC have already learnt from Mid-Staffs that the two sides of this part of the regulatory system – finance and standards – do need to talk to each other. And if health care assistants become regulated the suspicion is the health system will find another way of using unqualified staff. Supervision of their standards should lie with the already regulated professionals.
Francis stops just short of recommending regulation of managers, though he leaves it on the table as an option. The qualities needed to be a good manager are not subject to the same sort of assessment that can be applied to the skills needed to be a doctor or nurse. Insist on regulation or accreditation of NHS managers and the service will become closed off to outside entrants from the private sector or other parts of the public sector. The NHS will risk becoming a more closed culture, not a more open one.
New criminal sanctions on board members may prove a deterrent to getting good people to do what is already a thankless job. Being declared not “a fit and proper person” sounds like sanction enough. And any attempt to define detailed national standards for staffing that have to be complied with – which the report seems to imply - risks ossifying innovation in the way care is delivered. And so on.
Amid the fevered reaction to Francis, and the overwhelming sense that “something must be done”, ministers need to think long and hard about what that something should be. Francis should be the start of a debate, not the automatically endorsed solution.