Oral evidence: NHS waiting times for elective care in England, HC 1002Wednesday 12 February 2014
Oral evidence, 12 February 2014.
Witnesses
Dr David Bennett, Chief Executive, Monitor, Dale Bywater, Delivery and Development Director, NHS Trust Development Authority, Sir David Nicholson, Chief Executive, NHS England, and Una O'Brien, Permanent Secretary, Department of Health, gave evidence.
Chair
On the whole, a good news story, in that waiting times are coming down, but we will focus on the issue of data, as you would expect. Una, public trust in the NHS is crucial, and when the NAO published its Report, it got quite a lot of coverage across the media about whether the data were accurate. I just wondered what action you will take to restore people’s confidence in the information you give out on waiting lists?
Una O'Brien
Thank you for that question and your acknowledgement of the enormous improvement in the reduction of waiting times. We may touch on that later. As for your question, we agree that there needs to be a concerted effort to improve the accuracy and quality of information. We have a number of defences that we look at in turn to decide where best to improve them. I look at this from four perspectives. The first one relates to the discovery of errors and inaccuracies that are only visible after the event, through audit and data matching—I think you heard something about this from previous witnesses— because of the complex situation in a number of places, where we are marrying electronic and manual systems. The second is where there is a systematic breakdown in a particular specialty or in an organisation, where large numbers of people are not following the pathway because of some lack of management grip, which becomes visible very quickly. Thirdly, there are issues, thankfully rare, of blatant fraud—one was brought to light recently, and we were very grateful—which is utterly unacceptable. Fourthly, we must decide what to do when fraudulent information is knowingly transferred to another organisation. To my knowledge, that happens extremely rarely, but Robert Francis has highlighted to us the fact that there needs to be very tough sanction against that, and we are acting on that recommendation. If you take that as the core analysis, the question that I have asked myself, and which we have debated as we consider the Report, is where we need to strengthen the defences. The Report acknowledges that the first port of call is the trust itself, and the evidence from the previous witnesses has borne out the fact that it is essential that the governance and rigour of challenge in systems exists within the organisation, and that there is proper assurance at the level of the organisation. Secondly, it is important that the regulators, Monitor and TDA, are able in their different ways to assure the good governance of those organisations. I am sure that they will echo that. It is not just about the current data, but all the other data, so we need generic, high-quality governance and audit of data collection. That is the second line of defence. In relation to this data set, which has its own history, there is a role for the commissioner, and there are many references to that in the Report. Fundamentally, what was done prior to the reforms by the Department is now the responsibility of NHS England, in terms of the validation of the data at an aggregate level, using data mining and data comparison techniques, to see errors that are not visible. For example, that may reveal where there are too many clock pauses between zero and three weeks when there should not be any. Those techniques mean it is possible to spot patterns in data, go back to trusts, challenge them and make changes, and we do that. That is the other key line of defence. Following the Report, what should we strengthen? First, we need to ask ourselves whether there is more we can do on the governance statement that trusts must produce to make transparent the requirement on them in terms of the audit of data. I do not think that that is strong enough or good enough at the moment. For other reasons, as well as this Report, we are tightening up on the governance statement requirement for the ’13-’14 accounts. That is the first point: we do need more transparency in the approach trusts are using on data audit. I am sure that Dale Bywater, who is here on behalf of David Flory from the NHS Trust Development Authority, and David Bennett will talk about what they can do respectively from the TDA and Monitor. The next question is: are we making the best of the data mining and comparison techniques? They have improved, and I have to give credit where it is due. NHS England have taken that system on. The final question is an interesting one—I will make this point and then stop. Of course, we had the Audit Commission up to 2010, and they undertook spot checks on this. You would look at that and say, “Well, we haven’t quite got that at the moment.” The Audit Commission is now gone, and I think that for the near to medium term, I should be looking at what role the NHS and Social Care Information Centre could play as a centre of expertise and a validator and spot-checker on the accuracy of data, over and above the defences I have described to you.
Chair
Okay. I let you give that long answer—I am particularly grateful for the last one. I was going to ask you about the Audit Commission, because it seemed to me that, when it was doing it, at least someone was looking at that. We need to keep that going. If we go back to governance, which was your first issue, and you look at page 27 of the Report, what is worrying is that in the data submitted in the census done by the NAO, 119 out of the 158 were signed off by the chief executive or the deputy—what were they signing off? It also says that 160 out of 211 were signed off by CCGs, to the extent that they had a role to play. More than half do not bother to have internal or external audits, and you have said that they are important. Then, on page 28, paragraph 2.31 says that even where trust have controls, the data is wrong. It is all very well having theoretical frameworks and governance statements, but if the information is inaccurate and these guys are just signing it off, we have a problem. This is probably the point at which I turn to the other three witnesses, because I do not think that the statements in themselves, even if toughened up, will be enough if your senior staff do not have systems in place to ensure their accuracy and if there is no audit in more than half the trusts and CCGs. Do you want to start on that, Dale?
Dale Bywater
Sure. We completely recognise the need to tighten up and enhance the audit process for both internal audit and assurance around external audit. That is something that we are doing.
Chair
Will you insist on it?
Dale Bywater
We will. We have an accountability framework. We oversee all the NHS trusts and we are accountable for all the aspects of delivery within NHS trusts—non-FTs. We transact that through an accountability framework that lays out expectations and requirements, and we have formal monthly returns from organisations, some of which is self-certification against governance standards and so on. We will require all organisations to do an internal audit within 12 months as a minimum and also look, within a period of up to 3 years, for an external audit—
Chair
And it will cover this issue.
Dale Bywater
It will cover this issue in that sense. Further to the point from the witnesses earlier, the risk is that we get into the real nuances of audit—we need to do that and tighten that—but that, in a sense, is just one part of the challenge. The point around rules that seem quite complex is that you can make the rules even more complex and make them cover every eventuality, but they will be very long. You can simplify them and leave even more room for interpretation. As the Report says, the rules have quite good support, and for aspects of them you will see scores of around 90%. The key point here is around the human behaviour of this and the way in which the interpretation happens, and how people understand over time. So there is a big role here, as well as us saying, “You must do an internal audit and an external audit.” We will intervene when we spot problems at all sorts of levels—from our own validation or from external bodies. We will make sure we get staff to understand the rules and the spirit behind them—the fact that there is a patient in the midst of this.
Chair
And what happens if a chief exec signs it off, and it is wrong?
Dale Bywater
We will hold them to account.
Chair
And how will you know?
Dale Bywater
First, we will ask, “On what basis have you assured yourself, as a board?” So our first line of assessment will be, “On what basis have you confirmed that you are sure?” We will test that against the internal audit opinion and the other audits and reviews. We will also use the intensive support team, which is a really good resource for going into organisations on the educational development bit, as well as for spotting and responding to problems. We will use a range of means for testing it, as we do with other aspects of quality, safety and financial governance.
Chair
I will go to David Bennett, then David Nicholson.
Dr Bennett
The purpose of the governance statement is to focus the board of the trust on being clear that it has done what it should have done. Everything that is signed off in the governance statement should be subject to an agreement by the internal auditor, and there should be an external audit of that statement as well. In so far as there are still incorrect data getting through the system, it is obviously not working completely. There are two things that we should do, which are broadly consistent with what Dale is saying. First, we need to be clearer about what we expect from an internal audit of the data. There is also a case for looking at the reintroduction of the sort of external audit that the Audit Commission used to do. Having an independent overview of whether all this is working is helpful.
Chair
And what do you do if a chief executive signs it off and it is not true, or is inaccurate?
Dr Bennett
First, we understand what has gone wrong.
Chair
How do you discover it?
Dr Bennett
How do we discover that there is a problem? That is part of the issue, which is why a degree of external audit of the sort that the Audit Commission used to do is useful. There are other ways of discovering it. A good example is what happened at Colchester hospital. It came to light as a result of a whistleblower that the data were not being recorded properly. There are many investigations going on to discover exactly what happened there. In one of them, we are asking the question, “How come the audit process didn’t internally identify that the data were not being reported properly?”
Chair
What is the answer, or is it too early to say?
Dr Bennett
We don’t have the answer yet. We would always do that if something such as that came to light.
Chair
It strikes me that Colchester was awful, but it was pretty extreme. It is welcome that you are talking about an external audit; that is a move in the right direction. People have got to take it seriously in the system, and I can’t quite get where your lever is to ensure that people take it seriously in the system.
Dr Bennett
If you discover that you have got a chief executive who has presided over a system that is either seriously flawed or, worse, subject to actual fraud, there have to be serious consequences for the chief executive, including them leaving.
Chair
I am going to come back to you in a minute, but let me just give David Nicholson a chance. Some 160 out of 211 of the data sets were signed off by CCGs. If you look at the NAO sample, four out of seven of the NAO case studies were CCGs. Common sense suggests that CCGs were signing it off when it was wrong.
Sir David Nicholson
I take everything that everybody else has said on this. Fundamentally, CCGs do not need to reinvent the arrangements that people have got in individual hospitals. We are not asking them to be responsible for the detail of that. CCGs set out their expectations about standards in the contractual arrangements with the individual trusts. With the support of NHS England, they also do analyses and comparisons of trends, in which we spot lots of issues as we go along. Una gave an example of a trust that had a particularly large number of pauses within three weeks. When we find those issues, we investigate and challenge the CCG and the trust. We also have an intensive support team, which we can send in to individual organisations, as we have done, to help them get it right. In the vast majority of cases it is simply a misinterpretation of a rule. It could be a movement of staff in the organisation; it could be a new service being set up. That intensive support team helps people get things right.
Chair
So what do you take from the fact that four out of seven of the NAO case studies were ones where the CCG had signed off? Keith is telling me that I am reading this right. In four out of the seven, the CCG had signed it off with inaccuracies. Four out of seven. I understand, again, your general point, but under your control, in this tiny little sample of seven CCGs, four had inaccurately submitted data.
Sir David Nicholson
Yes. We have been back to them and talked to them about it.
Chair
Is one of them Leeds, which is awful? In figure 6, Leeds was only 12 out of 95. That is about 13%. Only 13% were accurate.
Keith Hawkswell
And Leeds was signed off by the CCG.
Sir David Nicholson
They were not signing off the detailed way in which those data were collected. They were signing off what they thought they were getting.
Chair
Have you checked elsewhere, David? By chance the NAO chooses seven—goodness knows how—and lands on four CCGs getting it wrong. That is a lot.
Chris Heaton-Harris
What is the point of the signing process, if they are just being presented with a piece of paper that they just sign?
Sir David Nicholson
They are signing off the data on the number of patients, whether they are achieving their targets and whether that concurs with their experience of what is happening in that organisation. They are not signing off the detailed data capture of those organisations. They are absolutely not doing that. They are dependent on the individual trusts to ensure that, not themselves.
Amyas Morse
First, on CCGs, the rules are clear. They are supposed to check and sign off the data for their commissioned patients. They are supposed to check it, not just sign off. Can I just mention a couple of things? I thought we had excellent testimony. In some ways, we had confirmed what we found in our work. First, there is inconsistent understanding. We are not suggesting that is deliberate, but there is inconsistent understanding of how to apply the rules practically in each hospital, and that drives inconsistency into the information. Secondly, listen to what we were hearing about what it takes to reconcile the data. You have a system that covers only part of it. Then you have paper systems. If you remember, there is another system over there that tells you something. No one is going to achieve a high level of accuracy with this quality of information. There has to be a determination. However many phalanxes of auditors you may have, if you are not determined to lift up the quality of the information systems, I cannot see how it is ever going to work. To be honest, it is just not feasible. It is not the fault of the people on the ground; it is the quality of the information they have to work with.
Chair
Who is that question to? Who is responsible?
Chris Heaton-Harris
They all are a bit.
Chair
I think it is to Una. It is like the guidance—36, 66, 100 pages. You are asking an impossible task. Do you design it?
Una O'Brien
I am clear about that. Let us remember that we are still in the first year of a new system, and actually we are doing okay. We have got a lot of things to improve on.
Chair
2008—
Una O'Brien
Let me just explain this. Let us take them in turn. I absolutely accept that the guidance could be and needs to be simplified. We accept that and we will do that. In fact, I think there is new, fresh guidance planned from NHS England in 2014. Secondly, without a shadow of a doubt I will take the point about local access policies. I was disturbed to hear the data on that and I think you did a good job, Keith, in digging that out. We welcome knowing about that and we need to do something, because people need to understand how this works. This is a partnership with the patient. Patients need to understand how they can influence the system and how they can participate in it. Thirdly, my goodness, we have had so many conversations about IT. It is fundamentally important that in the next period of time we are able to make some transformational changes in our health care system. One of them has got to be to go digital. It is necessary and it is fundamental to what patients want and the good running of the system. Getting there will not be easy.
Chair
We are laughing because we are waiting for Richard to explode.
Una O'Brien
I know that Richard has been here before. This is not a hearing about IT systems, but it is where we need to go. We are making an important step this year on this particular point in replacing choose and book with the NHS e-referral system, which will have some features that will be an improvement on what we have had. For example, there will be features whereby the patient can participate more in changing their appointment if it is inconvenient or if a problem arises. There will be opportunities for others apart from GPs to start the pathway, for example physiotherapists and opticians. It is going to take the best of choose and book. We are aiming for 100% electronic referrals within the next five years—sooner than that if we can make it. That will cut out a lot of these errors. We want to not have the paper letters, and we want the referral back-up material from the GP to be done electronically. This is a major project within NHS England to deliver this change and David can say more about it, but I do think in relation to the movement of patients who are on these pathways that this system will help. It will have things like mobile apps, so the patients themselves can interact and know where they are on the pathway. It is a challenge to deliver something like this, but all the approvals have been given for the spending and the procurement is currently under way.
Meg Hillier
Can I ask a quick question about choose and book? We are hearing that there are big variations in how many GPs use it. What power do you have, and have you thought about just directing GPs to use it? The other thing about texting for appointment reminders—we heard that the Homerton had a success at the beginning of that—is that again, it is variable. Only 55 trusts do it. I know that you don’t run every hospital—
Una O'Brien
I try.
Meg Hillier
That is about them saving money. That is a GP decision that is costing the taxpayer.
Una O'Brien
I am not as close to the complexity of why some GPs use that and some don’t. I believe there are elements of that which are a system issue. Part of it is whether there is availability of slots on Choose and Book, and the delivery of how that works varies from one locality to another. You need everybody to participate in that, to make the slots available so that people can use it. If the local providers are not fully participating in it, it is impossible for us—
Mr Bacon
Sorry, can you translate that into English for the complete avoidance of doubt? What you are saying is: it is not a system issue, it is the behaviour of the consultants in the hospitals not putting their slots up in the system for people to see. Yes?
Una O'Brien
Yes, correct. What I mean is, it is part of behaviour in the organisational systems, not a technical issue to do with how the computer system runs.
Meg Hillier
So delays in setting up clinics, that sort of thing.
Una O'Brien
No, just not making that knowledge available to the GPs to be able to effect the bookings or having a range of options on there for them to have enough to do it.
Mr Bacon
Looking at the NAO’s January 2005 Report on patient choice at the point of GP referral—a Report about choose and book from just over eight years ago—it said: “The Department”—that is you—“needs urgently to address the low level of GP support for their plans” and said it should “Press on urgently”. I shall have to turn my phone upside down at this point, I’m afraid, and coax it; by the way, if you get the chance, don’t buy a Samsung. The Report said that the Department should: “Press on urgently with its plans for informing GPs about the implementation of choice at referral”; “Monitor the views of GPs”; and “Consider whether further action is needed to secure the required level of GP support, once GPs are fully informed”. That Report also surveyed GP opinion, and it was very clear that the more GPs knew about it, the more opposed they were. The GPs who knew a lot were the ones who were most opposed. Basically it was a pants system that did not work. Consultants did not want to waste time sticking information up on a system that they knew the GPs would not use, because it was so clunky and pants, and basically did not work, and you are rowing back from that. Now you are going to replace it. What are you going to do to ensure that the replacement for choose and book doesn’t have these problems?
Una O'Brien
There is an excellent team working on this and of course it does not want to replicate problems, but quite a number of the problems referred to there, which is from quite a long time ago, were subsequently ironed out and we achieved a higher degree of participation. We were monitoring the participation, but the policy on monitoring was changed in 2010.
Mr Bacon
Hang on. Monitoring participation is one thing; if GPs loved it, they would just use it anyway. You would not have to monitor. They would all be biting your hand off for the chance to use it because it was so good, but we just heard from the two chief executives earlier that GPs still were not using it as much as they should. When asked why, I think by Meg, they said, “Well, that’s the GPs’ choice.” They would choose to do it if it was great, wouldn’t they?
Sir David Nicholson
First of all, half all referrals go through choose and book, so that is quite a lot. Millions of referrals have gone through choose and book, so while there are problems with it, some GPs absolutely love it.
Mr Bacon
And did it improve?
Sir David Nicholson
All the time.
Una O'Brien
It did.
Sir David Nicholson
One of the options we looked at and started was giving GPs financial incentives to use it. That didn’t work.
Mr Bacon
I do remember. It was the craziest thing: why don’t you take this pants system that doesn’t work and we’ll pay you some money for using it?
Sir David Nicholson
Obviously some people absolutely loved it and some people absolutely hated it. We got up to 50% of the population, but we concluded that the payments were not incentivising people. Some people just did not like it and did not want to use it, and that is why we have gone through this process of developing the e-referrals system, which has had massive discussion among GPs, and we are still working on all that.
Chair
I was going to ask a question of the NAO. Are you monitoring the implementation of this new IT—of the whole ruddy lot?
Keith Hawkswell
Yes.
Chair
And you are going to report to us.
Mr Bacon
What is the timetable for e-referrals?
Sir David Nicholson
I will give you a note on that. The objective we have set ourselves is that everyone is using it by 2017. The question we have to ask, and to get as wide a support for it as we can, is what incentive or penalty system do we need to put in place to ensure that it works? The thing we have heard today is absolutely true: patients are put at a disadvantage if you don’t use a system like that, so that will be something that NHS England or the Department—
Meg Hillier
It is not just patients; it is taxpayers. While GPs are having their moment about this—MPs hate change but we have all had to adjust—isn’t it time that GPs were just told?
Sir David Nicholson
But of all our clinicians across the NHS, GPs are the most technically advanced. They have more digital systems than almost anybody. It is not that they are frightened of this; they just don’t like the way the system works and affects their patients. They think they want a different way to do it. We have been unable to persuade them of our case. However, I think we are getting to the point, with what we have understood from the implementation of e-referrals, where we want to get a system where we can make it mandatory as we go forward.
Mr Bacon
Did you make a conscious decision that, despite the fact that there had been incremental improvements to choose and book and the fact that more and more people were using it—you got to a 50% level, which is very significant compared with how it was—it was not worth continuing to make incremental improvements until everyone started to say, “You know what, actually it is really working quite well”? Did you consciously decide that you were going to dump it and have something new?
Sir David Nicholson
No, we have continued the team working, trying to encourage utilisation across the country.
Mr Bacon
So what is different? It is a new name, but does e-referrals use some of the underlying architecture from choose and book?
Sir David Nicholson
I don’t know enough about the underlying architecture to talk about it. All I know is that there has been a lot of engagement with general practitioners and trials with general practitioners.
Chair
Out of interest, David, can you say what is the different objective, instead of just saying it is a new IT system? What is e-referrals going to do? What is your business demand of it that isn’t in the current system? What is so different?
Sir David Nicholson
The major difference is that anyone can refer to anyone. At the moment, for example, referrals can go only to named consultants or groups of consultants in a speciality.
Chair
Choose and book only goes to a group of consultants.
Sir David Nicholson
Or individuals. It can go to individual consultants. E-referrals allow any GP to refer—and in some circumstances allow self-referral, if that is required—to any NHS clinician. They can refer to physiotherapy, to diagnostics—to a whole series of things.
Chair
Is that different from what you can do on choose and book?
Keith Hawkswell
Oh, yes. You can book appointment slots through your GP.
Chair
You said in our pre-meeting that you can go home and self-refer.
Keith Hawkswell
Yes, but the GP gives you a reference number that you can use to access choose and book.
Una O'Brien
If I may, I can give you some examples. At the end of the pathway there is always an issue about information coming back to the GP. This is a system that will allow clinical outcome information or treatment plans to be automatically uploaded into a GP system, so it will allow greater integration. The second feature is that it will give patients more choice of when their follow-up appointments will be, because choose and book is only the first appointment. The third feature is that it will allow the ability to link appointments in a care pathway to ensure that all of them take place in a predetermined order. The fourth feature, as I mentioned earlier, is that it allows for much greater interactivity with modern mobile technology, thereby empowering patients to have more control. One objective has got to be to reduce the number of DNAs and allow clinics to run really smoothly. It is trying to take the best of choose and book, but apply it in a more modern context, given what we have learned about how people interact with the system.
Chair
Okay. Let’s move off the IT, if everybody’s happy with that. Can we look at how you’re doing? Everybody has accepted that you are doing well, although the November figures showed a year-on-year downturn. The October figures, which were the basis for the NAO Report, were better than the November figures, which I can read out. In November, the number of patients on the waiting list was 2,590,000. Do you want me to read them out?
Una O'Brien
I know them.
Chair
You know them. There is a deterioration in the figures all the way through. Can you talk us through that?
Una O'Brien
In the overall scheme of things, if I compare it with 2007, when we had 4 million people on the waiting list, while it is higher than it was as a total number, it is still within an acceptable band that can be managed. There will be more statistics published tomorrow. I cannot comment on them in detail, because they are official statistics, but I do not expect them to show any further deterioration. That shows that these figures can sometimes be down to seasonal pressures as much as anything else.
Chair
Have you done work around the November figures to understand the change?
Una O'Brien
Yes, we have.
Chair
What does it show?
Una O'Brien
Well, the fundamental thing that is happening, and I think this is equally revealed in the build-up of pressure on the emergency side, is that there is an overall quantum increase in the number of people being referred for treatment. That is something that is a combination of morbidity in the population and an ageing population.
Chair
But that would have shown in the October figures as well.
Una O'Brien
I think you will see that it is showing very slightly in the overall numbers, but the other reality that needs to be held on to is that, given this pressure, others might have expected waiting times to go out and, in aggregate, they are not going out. We are still in a position where 50% of people are not only being referred, but are being seen by the consultant, getting their diagnostics and getting their treatment started within nine weeks. That is a tribute to the hundreds of thousands of people up and down the country who make that happen every day. I would not like to suggest for a single moment that we are complacent, because the numerical pressure is there. We are always investigating the causes and modelling what the future would look like, if those different pressures on the system were to continue.
Chair
There is one other thing about the figures. In the Report, page 16, paragraph 1.15, talks about those trusts that have breached. Everything is average figures, means and all that sort of stuff. There were 58 trusts that breached the 18-week standard for admitted patients, 11 that breached the non-admitted patients standard, and 36 that breached the waiting for treatment standard. Are those the same trusts that have financial difficulties? Is there a pattern there that helps us to understand better what is happening?
Una O'Brien
If I may, I shall ask Dale and David to comment in detail, but I want to emphasise that we are tracking very closely the numbers of trusts that are breaching those priority treatment times and, through Monitor and the TDA, we are working to understand the causes.
Chair
Are they linked to financial difficulties?
Una O'Brien
We are not finding any immutable pattern between those. There are areas that have financial problems that do not have these pressures, and there are areas that have these pressures that have financial problems as well. They do not all assemble around a single set of problems. That is the complexity of what we are dealing with. Perhaps I could ask TDA and Monitor to comment in more detail.
Dale Bywater
I guess, in fact, that there is almost an incentive to treat lots of patients who are on your waiting list, if you are a provider, because you get paid for them—you get paid a tariff. So there is almost a financial incentive. I do not think there is necessarily a direct link; it is more a link around operational grip and pressures more generally in the hospital. Those organisations that encounter backlogs—where they have, for whatever reason, not been able to treat patients in the manner required—have to address that. A backlog is those patients who have gone beyond 18 weeks. They need to be treated in turn; that is the driving force. On the size of the waiting list, one key thing we look at is that size is really important, but so is not creating the incentive actually to let waiting times drift out. There is what we call a tail on the waiting list, so you cannot just focus on the patients who are with you now and are below 18 weeks, in order to keep hitting the target, and just ignore the ones who have already breached and will affect your figures. That does not happen, and it has not happened. The way we test that is the third measure of the national measures—the incomplete pathway—which asks whether at least 92% of the patients on the waiting list have been waiting for less than 18 weeks? That measure has also stood up. That is just one macro, but it is none the less a really important measure—a metric—to understand, so that the result, with a bigger waiting list, is not longer waiting times.
Dr Bennett
The foundation trusts’ experience is the same. There is not a systematic correlation between poor performance on waiting times and financial performance. You will get some trusts where the underlying problem is poor operational management, and it can then manifest itself with problems on both fronts, but it is not a systematic correlation.
Chair
When you look at operations cancelled, again the figure across the system is good: 1%. Is that focused on particular hospitals—is there any sort of correlation—or is it across the system?
Una O'Brien
I do not think we see any significant correlation at national level, but it is important to understand that often an operation is cancelled because of pressure on intensive care. There are a number of operations where the surgeon will not commence the operation unless he or she knows that the intensive care bed will be there, so it can be very local circumstances that have led to a planned arrangement suddenly having to be changed—it can be that micro. My colleagues might know more detail about that, but that is something I have observed in the past.
Chair
Do you want to say anything on the 1% cancellation—whether there is a pattern either in the foundation trusts, or the non-foundation trusts?
Dr Bennett
The early pattern that we see, which relates to Una’s point, is that sometimes the problem can be pressure on emergency care. If you have a sudden surge of demand for emergency care, for whatever reason, the only way to deal with it is to postpone some of the elective care.
Chair
Do you see a pattern?
Dr Bennett
You do see that pattern, but it is driven by all sorts of reasons why emergency care sometimes has spikes. It might be a problem at a neighbouring trust, for example.
Meg Hillier
Paragraph 3.14 on page 31 highlights the issue that we heard from the chief execs earlier. The trusts bear the risk of the financial penalties for hospitals, but actually it is not all in their control; that last exchange has sort of demonstrated that. Have you given any thought to incentivising other bits of the business? Earlier we had a discussion about GPs to ensure that they are not slowing things down. It seems to me that hospitals take the brunt, even if it is not their fault.
Dale Bywater
I can definitely account for what happens in the providers, probably more so than might be appropriate. I think, in a sense, even where there are financial penalties applying—rightly so—from commissioners to trusts, that can sometimes lead to problems still to be solved. Taking money out of the trust or the system does not necessarily get the patient treated. That often results in a discussion on how you are now going to recover the position and on what basis we can use the penalties as one way to support that. It has to be you backing your plan and backing someone you have confidence in. I don’t want to get into the domain around—I have a view, but it is probably more of a view rather than fact. Do you want to—
Dr Bennett
The rest of the system.
Sir David Nicholson
You are absolutely right. You talk about emergency care, and the issue we have at the moment about the cap on emergency income that people can get on the one hand, and then there is no such cap for electives. We are looking at how the incentive system works for emergencies to enable us to be much more open and transparent about the way we do that. On the commissioning side, the major incentive is that every year, the CCGs are allocated a quality premium based on their performance. Their performance in relation to delivering the constitutional requirements of their local population, which the waiting time is one significant part of, is part of that. They cannot get their quality premium unless they deliver their constitutional responsibilities. That quality premium can be, at its maximum, £5 per head of population, so it is a significant incentive.
Chair
You have never implemented it, though, have you? You have never fined them for it.
Sir David Nicholson
No, this is to commissioners. We have never paid it before, because it never existed. This is the first year—
Chair
But there has been no fining or penalties.
Sir David Nicholson
But this is for commissioners, and it is a quality premium. Secondly, the standard contract gives commissioners the ability to fine people for not delivering on their waiting time targets. I think—is it about half?
Keith Hawkswell
Some 48% weren’t fined for breaching the commitment.
Sir David Nicholson
There is an argument that they should be fined irrespective of what the local circumstances are, but we judged that, given particularly what Dale was saying, in some circumstances, just taking money off them would not solve the problem. In fact, it might make it a lot worse. So in some circumstances, people have the flexibility not to make those fines if they come to an arrangement locally.
Chair
You could say that of anything, couldn’t you? You could say that anywhere through the system, so we will never have a penalty regime.
Sir David Nicholson
Yes, but half of them are, so they are used in the system. We think that, at the moment, giving people the local flexibility not to do it if they don’t want to is the best thing. In the future, other people might take a different view, but that is certainly where we are at the moment.
Chair
Do you want to say something on that, Keith?
Keith Hawkswell
Just a couple of things. I understand that, in the future, the standard contract is changing, but at the moment, the fines are mandatory. It is also worth point out that the quality premium in 2014-15 across all clinical commissioning groups is £270 million. That is a lot of money, but is quite a small proportion of the total funding for CCGs and trusts.
Sir David Nicholson
If you want to give us another £250 million, I’ll make it £500 million. Where do you begin? There is no quality premium at the moment. There is no incentive on commissioners in the past to deliver this. This is a new system of providing incentives to commissioners, and I think we should let it work.
Dr Bennett
Just a couple of things. On this issue of looking at the rest of the system and its contribution, I think it is true that we shine a very bright spotlight on the acute sector; we measure quite a lot of what it does quite precisely. We do not shine such an intense spotlight everywhere else in the system. Things like the quality premium are valuable in incentivising nevertheless, so people focus on what is going on in the rest of the system. On the issue of penalties, I absolutely agree with David that sometimes you are likely to make matters worse, not better, if you take money off a trust. That is not to say that is the only penalty and therefore they escape. If you have a repeat offender, so to speak—someone who is consistently struggling to hit their targets—then either we, for foundation trusts, or the TDA, for non-foundation trusts, will step in, and they will receive attention that will not be terribly welcome. They will be keen to get rid of us by sorting their problems out. They do not get off free, just because they are not fined.
Keith Hawkswell
I would not wish to contradict that, but we did say that when trusts were not fined, 46 of them had no conditions attached to not being fined, so there was no direction about how that money was going to be used within the trust.
Dale Bywater
As a provider, you fail this target and may suffer financial consequence for it, but what you definitely suffer is a lot more on the accountability side, which is where we come in, in different guises. There is an absolute holding to account on this. There is no doubt that has all sorts of levels around escalation levels, the way we interface and the level of scrutiny; we may call in external reviews and we may call in auditors. There is a whole raft of armoury. I would not want you to think that trusts are sitting there and not taking this seriously. They see the importance. RTT is up there with the real top operational standards and priorities.
Chair
Can I talk a little bit about taking it seriously? Are there some unintended consequences that arise? Look at page 20 of the Report: for the acute trusts, it is better to refer back to the GP if the patient does not respond to a letter—presumably a letter—from you. I can think of endless times in my constituency when they have come in with three or four letters that they have not responded to and they then say, “I am not getting the treatment I need,” but pushing it back to the GP means that the clock starts again, so an unintended consequence might be that the patient does not get the treatment they want. I was quite shocked to see, at the bottom of that page, that 2% of trusts allow you only one cancellation before they refer you back to the GP. I know it is a tiny number, but that seems to me to be unreasonable and ought to be stopped by you guys. The other thing to say about the target is something that happens elsewhere. Somewhere else in the report, you say that most treatments take place within the last week—there is a concentration at the end. With the exception of the first two weeks when most urgent and most straightforward cases are dealt with, a patient is more likely to have the operation or whatever in the final week, so the target drives to the end, rather than doing it as and when. Those are three examples of what I would call unintended consequences, which I wondered whether you wanted to comment on.
Una O'Brien
I would like to reinforce a point I made earlier about simplification and visibility—two very important next steps we need to take. One feature of all of this, looking both at the data from the NAO and also at our own survey data on public and patient understanding of the NHS constitution, is that it is too low. Not enough people engaged in the system have any idea that they have choice or how the time is being counted. If you are in pain, the time you are waiting, in your mind, is from the time you are in pain. This is an administrative method of evaluating the efficiency and effectiveness of NHS performance. Trying to bring this closer to the patient, help patents and the public to understand what they are entitled to, what they can demand and what the consequences are if you are casual with your appointments need to be sorted. Finally, we must make it a lot easier for patients to interact with the system, because we know that they are much more likely to adhere to appointments that they have chosen. That is why the e-referral system matters. I am sure that others will add to my observations.
Chair
I hear that, and it is good, but my point is really about unintended consequences.
Dr Bennett
In part this is about the difficulty of designing any target system that does not have unintended consequences or worse still, create an opportunity for gaming. You are often trading off simplicity against the risk of unintended consequences, but we are seeing some of the consequences of trying to introduce more detail to avoid unintended consequences which then leads to problems about people not understanding it or not applying it consistently. It is a fundamental problem in any targeting system to get the balance right between something that largely works and does not create too many unintended consequences or opportunities to play games with it.
Mr Bacon
May I ask Una O’Brien a follow-up to what she said about the public’s understanding of the NHS constitution being too low? It calls to mind some sort of vision of NHS bureaucrats berating members of the public for not having done their homework, and it even reminds me of the comment by Bertolt Brecht about the people having failed, and that the obvious answer was to dissolve them and elect a new one. If you are to get the higher understanding of the NHS constitution that you say is required, the people having so far failed to grasp the point, are you going to do it by avoiding at all costs the use of the phrase “NHS constitution”?
Una O'Brien
Maybe given what you have said, we should listen to what is behind your question. Of course, I am using the constitution as shorthand for what it represents, because it is a very significant stage in the history of the NHS. It sets out within a legal framework, backed by all three political parties, what patients are entitled to expect from the NHS. It has been a fundamental feature in the mandate to NHS England, which now has a particular responsibility to gain that understanding, and it has some plans to do so. I agree with you that getting people to say whether they know about a document is meaningless. What we need is patients who are paying for the system to understand absolutely that they are entitled to receive treatment within a certain period of time, and to be an informed user of the system, so that they can use their power to make sure that it works.
Mr Bacon
You mean to be more demanding customers as it were.
Una O'Brien
Absolutely.
Mr Bacon
It would be very easy to spend a bit of money on adverts on television saying, “These are your rights. You are entitled to the following, and by the way, if you make an appointment that you have chosen and don’t turn up, here’s what will happen to you: we’ll send you a nice big fine.” You could do that, but if you did, demand would probably go shooting through the roof as people arrived at A and E, saying, “I know my rights.” That is what would probably happen unless you were very careful. How are you going to do this?
Una O'Brien
That is for Sir David, but the health care system is there to provide health and care for people. We are not trying to avoid that. We need people who have seen the adverts, because we are saying, “Come forward when you have a problem.” One of the biggest problems that we have got is that people are presenting too late. A cancer diagnosed in A and E is a disaster. We actually need people, especially men, to go to the doctor when they have a problem and to get it diagnosed.
Mr Bacon
When you mentioned that example, I wasn’t specifically thinking about the men point, but when we looked at the cancer strategy, there was an eightfold variation in the propensity of GPs to refer to cancer specialists. That was some years ago, so what is it like now? Has there been an improvement?
Una O'Brien
I haven’t got the data in front of me, but it is still an issue, and it is currently on our agenda to see what we can do to get diagnosis earlier. It is something very much on the mind of NHS England.
Chair
We are slightly off the topic, so I am going to bring back Austin.
Austin Mitchell
I was a bit worried by the snakes and ladders game of going from the head of the snake and falling down again. I see from paragraph 2.7 that “Forty-eight per cent of trusts refer patients back to their GP if the patient has not responded to a contact from the trust to make an appointment.” That seems a high proportion and pretty brutal treatment. You go down to the bottom of the ladder again and start all over, but it pretties up the trust’s performance figures, doesn’t it? Do we know how many cases that refers to, and why the trusts are so brutal?
Dale Bywater
I don’t know the overall number. The rules say that in doing that the trust has to demonstrate that it has made every effort to make the patient aware of the appointment and the patient commitment. That is quite a high number. There are variable practices and the Report refers to that. I would say that we need to differentiate between vulnerable patients—whether elderly or children—in the way these patients are treated in quite discerning ways in terms of standards. That is the point around local interpretation, which can happen here. We have to ensure that we take the positive of that rather than just look at the negative. So I don’t have the number but I would say that the point is that the trust has to demonstrate that it has taken every step to make a patient aware and that the patient has, in effect, declined the offer.
Austin Mitchell
Do they keep figures on how many people fall out in that fashion?
Dale Bywater
I don’t have the figure to hand.
Austin Mitchell
A further question on cancellation, which I know is infuriating. According to paragraph 17d, 1.6 million first out-patient appointments were not kept. Other patients could have used those, and that is a substantial cost to the NHS. Are people warned? I get people coming to complain that they were pushed back down the ladder and had to start all over again. Are people warned of the dire consequences if they do not keep the first appointment?
Chair
In 2% of cases they are not—and that is not on.
Una O'Brien
It ought to be very clear. We have already touched on this today. It is the clarity of communication to the patient around the local policies. We have taken that point from the work that Keith revealed through the NAO Report.
Austin Mitchell
Sometimes they tried to cancel it and it was not heeded. With cancellation arrangements, the number of cancellations allowed by trusts where patients are referred back to their GP and the clock restarted ranges from one to three. Why can’t they have a uniform standard on this?
Una O'Brien
The rules overall are national and there is one set of rules. That is one of the very small number of areas where there is flexibility for trusts to have a local policy. It has to do with the capacity that they have to cope with handling re-appointments and trying to get people to adhere to coming to the appointment that they have agreed to. We do accept the points that have been raised by the Report and we will certainly take that away and look at whether we have allowed too much flexibility around that. It is clearly disturbing where people do not know the consequences.
Chair
We are coming to an end. I was going to ask you one more question and then Stephen Barclay has a question. I am trying to be non-partisan but what is interesting here is that outcome targets, if I can call them that, appear to have had an impact on behaviour in hospitals around getting people treated more quickly. Are you therefore thinking of using a similar mechanism, Una, for example with the poorer outcomes associated with weekend care or the excessive reliance on agency staff? Those are two that particularly impact on the lack of quality in my own health economy.
Una O'Brien
I would need to reflect on that. I think there are big advantages and big disadvantages in these approaches in terms of how you get adherence to best practice. Before I would really want to comment in detail on the appropriateness of targets in either of those cases, I would want to understand the unintended consequences.
Jackie Doyle-Price
I share the Chair’s experience. Once my local trust started tackling the numbers of temporary staff, the performance improved. We have had discussions about outcome-based targets before but, where you are measuring the quality of inputs, numeric measures are perhaps more useful than the outcomes.
Una O'Brien
Yes, they have their place and their time. Often, if you have a particular drive—this was a huge national initiative and everybody knew that the only way we were going to deal with people waiting two years for a first consultant appointment, which is where we started, and get to where we are today was through this sort of approach with a lot of national drive. We want our NHS organisations to be transparent in their performance and for them not to need people nationally to come and dip in to tell them what to do.
Chair
The only thing I would say to you on the agency staff, if we can take that one, is that every time I look in relation to my hospital—Jackie clearly sees the same—you see poor performance at A and E, and then you look at the use of agency staff, both for nursing and consultants. Then you look at financial problems in the trust and the use of agency staff. Those come up with such a correlation. Rather than giving me yet another chief executive and chair—that would be about the 20th since I have been the MP—that might be a better way of changing the behaviour of the people who work at the trust.
Una O'Brien
It is fair to say that if you look at something like the A and E four-hour target, it has had the biggest effect in terms of the way the whole hospital is organised—almost more than what actually happens in the emergency room—because you can only meet that target if you are looking at the flow through the whole organisation. I think I understand the point that you are making: if you just take one of these iconic things and use it as the means to drive change, it can be very effective. But these are complex organisations and, when you are pulling out individual things, you can distort the interconnectedness of other things that happen.
Fiona Mactaggart
But isn’t that absolutely one of the reasons why permanent staff, in a complex, interrelated organisation, instead of doing just the things in a box in front of them that agency staff have to do, can have some investment in the whole system? Those of us who have problems caused at least in part by agency and temporary staff can see the difference in the quality of care that our constituents get from people whose futures are invested in that institution as opposed to those on a temporary blip.
Una O'Brien
Let me be clear: I was answering in relation to the use of targets. On the use of agency staff, I completely agree that it is preferable by far to have an organisation staffed by people who are committed to the organisation and who are part of it. The reasons why we have growth in some places in agency staff are often quite complex. I know that there are trusts—Dale knows some of the organisations to which you are referring—who would very much like to have permanent staff and are going to great efforts to get those people. In the meantime, they are not prepared to compromise patient safety by leaving posts completely unfilled. We definitely share that ambition to minimise the use of temporary staff. I think it is an important point and Dale may wish to comment.
Dale Bywater
There is currently no national standard as such for agency or temporary staff or seven-day working, but it is a big issue for all of us. For us, in our interaction with organisations, an alarm bell rings when we see high rates of agency staff. The point is: “That is very well, Dale, but what is the action and response?” We are getting into this, but the reality is, as Una said, that very rarely do organisations purposely want to have agency staff. This is often a symptom of some other problem, be that the local labour market or the perception of the trust and its reputation. There is a whole range of things that we need to do to resolve that, because that is not a place that anybody wants to be. No organisation wants to have a high rate of agency staff. Something that has come out of the mortality data and on the back of urgent care is that we are now moving increasingly towards having more seven-day working in the service. We must make sure that other parts of the service, such as social services, can match the hospitals’ ability to work seven days a week, because we are waiting for patients to be discharged on a Saturday afternoon.
Chair
Just get your act together, and we can deal with the other ones.
Dale Bywater
Precisely.
Jackie Doyle-Price
It is the use of numeric measures—targets versus indicators. I guess that we are talking about the data as an indicator of something else. Again, it comes back to the quality of the data and the measures in place. The magic ingredient in all this is the quality of leadership in our hospitals. All these things will inform where the deficiencies are. That is where we have to get to if we are going to have the step change in performance that we all want to see.
Una O'Brien
I completely agree.
Jackie Doyle-Price
So really we should be looking at building a package of measures that will inform a view of the leadership.
Una O'Brien
That is very much what is behind what we are aiming to do with the new inspection regime. I know that a lot is changing in that organisation, but the appointment of the three chief inspectors is a game-changer, as is the approach to the rating of hospitals. Work is being done by those three leaders to really understand what the essential features of a good-performing organisation are, so we can assess that and organisations can know what their rating is. We are determined to get there. Equally, we have to do more to build a cadre of great leaders. These are very difficult jobs to do; we all know that. We all know people who do this work, and we know good people and people who are struggling with it. Our common purpose is to bring on a new generation of people.
Chair
I have to say that my own hospital is back in special measures again. It is about to get rid of the next chair and it is getting rid of the next chief executive. I have asked, “How are we finding a new one?” The same person who sat in the London regional health authority is now the person who is charged with finding somebody, having failed to do that goodness knows how many times before. We on the ground are cynical about whether all that re-jigging of deckchairs on the Titanic is going to achieve a real change.
Jackie Doyle-Price
Following on from that, Colchester is the most notorious example in this Report. There were issues with leadership in that hospital for a long time, and they were never addressed. We need to have a set of transparent measures that everyone agrees are indicators of good leadership.
Una O'Brien
Yes.
Q97Stephen Barclay
We have heard about the inaccuracies in the data. Can I raise an issue from our last hearing? Can you clarify whether the NHS stopped paying the chief execs of all SHAs when those bodies were abolished in March 2013?
Una O'Brien
I haven’t come prepared to answer that specific question, but I can certainly send you the factually accurate information.
Q98Stephen Barclay
I have already tabled a parliamentary question, so I would have thought that you were on notice about it. The Department suggested that it did not know, which seemed a remarkable position for the accounting officer to take. I wrote a week ago to NHS England about this straightforward matter, and it has still not answered. Sir David, do you know whether the NHS stopped paying the chief execs of SHAs when they were legally abolished?
Sir David Nicholson
I haven’t looked into that particular issue in any detail. I have not come prepared to answer it, but I will answer your letter very quickly.
Stephen Barclay
Were they not your direct reports?
Sir David Nicholson
Before the end of March 2013?
Stephen Barclay
Yes.
Sir David Nicholson
Yes, they were.
Stephen Barclay
So you don’t know whether your direct reports continued to get paid beyond March 2013?
Sir David Nicholson
Sorry, let me make that clear. They were employed by their individual strategic health authorities. In that sense, I did not directly line-manage them. Their organisations were accountable to me. I wasn’t their direct line manager. I didn’t do their appraisals.
Stephen Barclay
These are the people you are working with. These are the people you know personally. You may even socialise with one or two. You don’t know whether any of them continue to get paid by the NHS after their legal entities were abolished?
Sir David Nicholson
I—
Stephen Barclay
You don’t know.
Sir David Nicholson
Before I answered that question I would want to be absolutely sure that I was being factually accurate. I would want to look at the data and the information myself. I would never want to mislead or do anything of that nature.
Stephen Barclay
Perish the thought.
Sir David Nicholson
It would be much safer for me in those circumstances.
Stephen Barclay
Given that caveat, what do you think is the position?
Sir David Nicholson
It is a hypothetical question. I could not answer that.
Stephen Barclay
You may recall that I raised a series of questions at our July hearing about my concerns with Mike Farrar, who was the chief executive of the NHS Confederation and the boss of the North-West Strategic Health Authority, which failed to intervene in the Morecambe Bay baby deaths. He worked with Tony Hallsall who failed to pass on the Dame Pauline Fielding report to the regulator. The Grant Thornton report was very critical of him. Mysteriously, Hallsall’s secondment to the NHS Confederation for 18 months was agreed three weeks after the draft PWC report, which was very critical, went to Morecambe hospital where the secondment was agreed by the chairman of Morecambe, who was Farrah’s former chairman when he was the strategic health authority boss. There is a conflict of interest. I raised that case with you. Could you confirm that Farah’s employment contract did not sit with NHS England after March 2013?
Sir David Nicholson
I couldn’t comment on all the dates that you have described because I would need to be equipped to do that. When the SHA was abolished my recollection is that his contract of employment was transferred over to NHS England.
Stephen Barclay
Indeed. In fact, you wrote to me to say that it was novated to NHS England.
Sir David Nicholson
Yes.
Stephen Barclay
Could you clarify what “novated” means?
Sir David Nicholson
Transferred over to.
Stephen Barclay
So the employment contract for Mike Farrar after March 2013 sat with your organisation?
Sir David Nicholson
Yes.
Stephen Barclay
So in essence you were his employer?
Sir David Nicholson
Yes. His employing body.
Stephen Barclay
And he continued working until September 2013?
Sir David Nicholson
He was working as the chief executive of the NHS Confederation—
Stephen Barclay
On a contract with you.
Sir David Nicholson
And they paid him. They paid us for his—
Stephen Barclay
And the contribution to his very generous pension scheme—where was the money for that coming from?
Sir David Nicholson
It was coming from the NHS Confederation.
Stephen Barclay
And that is funded entirely by NHS bodies; not a single public donation goes to that organisation.
Sir David Nicholson
I don’t know exactly how they are funded.
Stephen Barclay
Right. Ms O’Brien, do you accept that the information given to Parliament and the National Audit Office at our last hearing on pay-offs was incorrect?
Una O'Brien
If there is an inaccuracy in the information that we were given we would always put it right. We have had a degree of correspondence since that hearing and tried very hard to give you the best and most accurate information that I have.
Stephen Barclay
So is that yes or no? Was incorrect information given to the National Audit Office on pay-offs for their last hearing?
Una O'Brien
I can only repeat what I just said. I always endeavour to give honest and accurate information. If I have omitted—
Stephen Barclay
I was not saying you personally. I am not questioning your personal integrity.
Una O'Brien
Well, I take it personally.
Stephen Barclay
To be clear, that is not what I am questioning. I am saying: was the information given to the National Audit Office incorrect?
Una O'Brien
If there is an inaccuracy in it then I would accept that there was an inaccuracy but I would need to know what it is.
Stephen Barclay
You seem surprised. It was carried following a parliamentary question of mine as the front-page lead story on The Times just a few weeks ago. Some of the pay-offs were incorrect by up to £200,000.
Una O'Brien
As soon as that information came to light we wrote to you and put that information on the public record.
Stephen Barclay
You did in a subsequent parliamentary answer to me. The problem with that is our hearing and the NAO report were based on the previous data, which was incorrect.
Una O'Brien
As I say, new information came to light and I have made it available and published it as soon as we became aware of it. I would never knowingly produce misleading information.
Stephen Barclay
I am not accusing you of knowingly doing so; I am just saying it was incorrect. I would have thought we could get to a yes on that.
Una O'Brien
As I said, as soon as the information was found to be incomplete, we made it publicly available.
Stephen Barclay
It was only found to be incomplete because of my parliamentary questions, I think. As the accounting officer responsible for value for money, why do you feel it is value for money for Mr Cooper, the deputy chief executive of Yorkshire and the Humber SHA, to be paid off between £370,00 and £375,000 in redundancy and pretty much immediately start work as director of finance for South London Healthcare NHS Trust?
Una O'Brien
I am not going to comment on the individual case, but I will comment on the general point. I think there need to be changes and there will be changes. The first thing is that the rules as they exist allow people to return to work without repaying anything after four weeks. We have already said that that needs to change and is going to change. I want to say that people are not wilfully seeking redundancy; they are being made redundant as a result of the organisational changes.
Stephen Barclay
But Ms O’Brien, this point was raised by the Health Select Committee ahead of the reorganisation. It was a well-known concern.
Chair
Let her finish her answer.
Una O'Brien
I do need to finish the answer. The change that we are going to make is that if a person is made redundant—and this is not one organisation, it is hundreds—and gets a job elsewhere in the NHS and they have received a redundancy payment greater than 12 months’ salary, if they return to work within 12 months they must pay off any excess. If a person, for example, was made redundant, they were only entitled to a three-month redundancy pay and they got a job at nine months or 12 months, clearly they wouldn’t have anything to pay back.
Chair
When is that being implemented?
Una O'Brien
We are implementing it in stages, so we are currently looking at Agenda for Change. We are also in negotiations to see how far we can get in implementing aspects of it with the arm’s length bodies. The third group we will come to will be the trusts, because it needs to change across the board.
Stephen Barclay
That is the jam for the future and it is welcome. My question was, were concerns not raised by Stephen Dorrell’s Committee ahead of the reorganisation about this precise issue?
Una O'Brien
Effectively, by the time the reorganisation was announced in 2010, I’m afraid that it was too late to change the 2006 rules for that cohort of people, because they had effectively been announced as redundant. I decided therefore—and I have talked about this in this Committee before—that we must work across the system, because we looked at the cost of the redundancy bill overall in the impact assessment and said it was too big. We spent two and a half years doing it, in order to avoid as many redundancies as possible. Our goal was to bring that impact assessment down—
Stephen Barclay
It is a separate issue.
Una O'Brien
No, it is the same issue as far as value for money is concerned, for me, because it really mattered that we spent as little as possible on redundancy and where people could be found suitable alternative employment, they were found it.
Stephen Barclay
The point I am raising is a different one. It is the systemic covering up of embarrassing data. We have seen it with special severance payments and the gagging of whistleblowers, where the data given to the Committee was initially incorrect and the problem disguised. We then saw it with judicial mediation, where Sir David told us it was a one-off, that there was just one case. We then discovered—
Sir David Nicholson
Sorry, no; I said that I had only come across one case in my career.
Stephen Barclay
You thought it was a one-off. I think that is what the transcript will say. The point was that your deputy had actually used that vehicle, Sir David, and was aware of it, and 70 hospital trusts had used judicial mediation. When it was raised at the Committee, we had raised the issue of special severancing and the gagging of whistleblowers, where it was under-represented. We then raised the issue of judicial mediation, where your evidence to us, as the person leading the organisation, was that you were only aware of one case. We then discovered that 70 hospitals, including your deputy, had used it. We then come to redundancy payments where the figures are out by up to £200,000 and people are going from those sorts of generous payments straight into other jobs. We have the hearing today where, out of a sample of seven, four have incorrect data. So the concern I am raising with you, as the accounting officer, is how can you satisfy the Committee that you really know what’s going on?
Una O'Brien
On the data on redundancy, I am in absolutely no doubt whatever that all the information that was relevant at the time went into the 2012-13 accounts. It is true that that digital information came to light in a parliamentary question, but it would also have come to light for me through this year’s accounts, because those payments were made in 2013-14. I have an absolute commitment and a requirement through my director of finance that all the information on those redundancies—we do need to take this in turn—will be made transparent in the remuneration reports—any that were missed in the accounts that were due in this calendar year. Secondly, collectively for the whole of Government, you as a Committee have done an excellent job in shining a light on all these issues, across the whole piece, on payments that were not formally made transparent. Bringing to light the issue about judicial mediation, you have quite understandably then focused on what the Cabinet Office guidance needs to be for all of us to get that right. I refute the suggestion that we sit down and systematically cover up information—quite the opposite. I spend most of my time talking about how we are going to get it out there.
Stephen Barclay
To be clear, I am not accusing you personally of covering up. What I am saying is the organisation culturally is covering up. It either doesn’t know or it is disguising the data. I am not saying you personally are sat there in Richmond House doing it. I am not in any way questioning your personal integrity at all. What I am saying is, on issue after issue this Committee has looked at, the NAO has either been given incorrect data or the Committee has been given incorrect data. That must raise serious concerns for you as the one who is personally liable as accounting officer.
Una O'Brien
I would say again that I do take it personally. As an accounting officer, that is the nature of the role. We always endeavour, and it is our duty and responsibility, to provide full and honest information to the NAO. Our books are open. We have NAO people at all of our audit committee meetings and we will increase the transparency on these payments. I have undertaken to do that and I am sorry that you were not, I believe, here the last time that David and I were here and answered some questions about the steps we are taking to improve transparency. So it is not about systematically covering up data, far from it. It is about taking the steps to produce greater transparency on all of these matters.
Chair
Finally, Richard wants to ask you something about that.
Mr Bacon
One quick follow-up to Mr Barclay’s line of questioning about payoffs. The public opinion of the NHS, which is obviously a multi-faceted set of views, contains a great deal of love and affection and a great deal of anger. There are probably few things that cause more anger, other than the obvious betrayals such as Mid-Staffordshire, than what Mr Barclay was talking about. People being paid very large sums of money and walking shortly afterwards into other jobs; or going off and becoming “consultants” so they are not on the books and then walking into jobs because everyone in the top levels of the NHS knows everyone else. Because you thought the redundancy payment amount was too large, you said you were going to deal with it, but in phases. You were going to deal with Agenda for Change, then with arm’s length bodies, then with trusts. That sounds to me like providing lots of opportunities for more people to get in under the wire. I was yesterday with Mr Bywater and the new chief executive of the East of England ambulance trust—the very impressive person, I might say, who has been brought in to sort it out, Dr Marsh. I was very pleased by the way that he had the confidence to say in front of the Minister and Mr Bywater that meeting the national targets was not his top priority. Dealing with extremely long waits, where ambulance crews have watched people dying in their arms after being there for several hours, was his top priority. Only then would he worry about the eight-minute targets for many people for whom, frankly, the eight minutes wasn’t relevant. He had the strength and confidence to say that in front of these people, which is a very encouraging sign. There is a public discussion, and it has been in the press, that this chief executive’s predecessor is about to get half a million pounds, and the reason it is still up for discussion is because it is not yet cleared, because there is a possibility he might get redeployed and found another job.
Una O'Brien
Hopefully he will get another job.
Mr Bacon
Hopefully he will. But it seems to me that if your process of changing this is a phased one—you are dealing with the Agenda for Change, then the arm’s length bodies, then the trusts—there is much more chance that he and people like him will get, as it were, under the wire, under the ancien régime where these outrageous payments do happen. Then they turn up somewhere else in the multi-faceted NHS because there are lots of management jobs for which they are suitable. That is much more likely to happen if you do it in a phased approach. Why not do it all at once? That is what I do not understand.
Una O'Brien
To do that, I would need legislation, to put it bluntly. I do not want to underestimate the difficulty of doing this. These are legal entitlements that people have under the rules that exist. These are not payments that are outwith the rules. The Government have taken action legally to reduce the overall amount of redundancy payment, were a civil servant to be made redundant. There is now a cap on that—but there are different arrangements in relation to the NHS and as yet there is no proposal to legislate. We have to do that in the best way we can.
Mr Bacon
Are you saying therefore that this phased approach that you have described is going to happen absent legislation?
Una O'Brien
It is easier to do it for new people coming in without legislation. You can do it by negotiation but it is complicated. The only way, I believe, that you could introduce a cap, cleanly, on the redundancy payment for people who are currently in their jobs, is to legislate. Even that has some complex issues behind it that I would not want to underestimate. I do want to come back to this: if people are being made redundant, it is not against the law to carry on working in the industry that you know. What is unacceptable, and I completely take the point because I feel it myself, is when you have received—even though it is under the rules—a big payment; payments are too large, and you should not then also be being paid in a short period of time afterwards. This new rule about paying back—
Stephen Barclay
It’s not—
Chair
I’ve given you lots of leeway.
Stephen Barclay
You have, but the point is that of course it is a legal entitlement. No one is disputing that, but what I am saying is that the problem is where performance has failed, people have been criticised and they have moved to avoid accountability, and then they come back in the system. That is the point.
Una O'Brien
I agree. I feel it. I think David might comment on that as well.
Chair
I will let Justin ask his final question and then I think we are finished.
Justin Tomlinson
It is frustrating that every time we have these hearings we end up being deviated by questions over previous hearings. Miss O’Brien praised the work of the National Audit Office and MPs for highlighting issues, and finding that useful. It strikes me as strange that you are not being more proactive in utilising those MPs who are doing that research, or the National Audit Office which has clearly done lots of research and can identify issues. As you said, when Mr Barclay raised the parliamentary question, you would have eventually picked up on this because it was part of this year’s payment. Why are you not sitting down with those people in advance, being proactive and getting these things resolved? Then, when we have the NHS-related Public Accounts Committee hearings, we would not always have to look at things retrospectively. It seems obvious to me that you have people who can bring that information to you much quicker.
Una O'Brien
Absolutely, and I had thought when we came back last time, two or three weeks ago, that we did give you the information that you needed at that point.
Justin Tomlinson
So can I get a commitment that you will now start to work with those people who are interested, so we can try and pre-empt this?
Una O'Brien
I would be more than happy to do that.
Chair
David, very last point.
Sir David Nicholson
The point I was going to make is that I completely support what Una is doing on getting redundancy payments in the right kind of order, publicly acceptable and all the rest of it. The other point is: can we please stop reorganising the NHS?
Fiona Mactaggart
Hear, hear. Did someone say no top-down reorganisations?
Mr Bacon
That was what I was saying in the last election. Stone the crows.
Chair
Okay, thanks very much indeed. Oral evidence: Managing the prison estate, HC 1001 38