Managers pay out £15 million to buy silence, using settlement contracts to gag those whom they have unlawfully victimised. Sounds familiar? This isn’t about News International. In this one, the managers concerned were senior NHS executives, those being gagged were doctors who blew the whistle on lethal defects in hospital practice, and the money came from the tax-payer, authorised by the Treasury.
Obviously, the press must concern themselves with the misdeed of their colleagues, and with the entanglement between the crimes and expansion plans of Murdoch's empire, and political and policing failures. But the scandal that is rocking (and seriously damaging) the NHS is in some ways worse. It doesn't only lead to disgraceful harassment of bereaved families. It actually contributes to the deaths of their loved ones.
At least 25,000 people die avoidably following defective clinical care in the UK each year. No healthcare system, however improved, can prevent all of these tragedies. But many — perhaps half — are the result of dangerous, systematic and recurrent failures, of which some 400+ excess deaths at Mid Staffs are merely the most blatant recent example.
An ugly dilemma awaits doctors who try to bring disasters like these to the attention of their managers, and if necessary, the public. The General Medical Council — which can bar them from practising if they do not comply with the duties of a doctor — requires them to speak out. Equally, NHS managers and ministers are unenthusiastic about receiving information that could damage their reputations, bonuses, employment or chances of re-election. They frequently respond with legal actions, payoffs and sackings. Unwelcome medical messengers are (metaphorically) shot or paid off, and bad news and patients are (literally) buried.
The doctor who encounters recurrent risks to patients is caught both ways. If they hush these up, doctors are in violation of their ethical duties and liable to be struck off the GMC. If they speak out they risk all the wrath, demonisation and legal costs that malignant managerialism can throw at them (all at public expense). Many brave doctors, nurses and managers have had their careers destroyed this way in recent years; even more have been cowed into silence.
Last year, the Bureau of Investigative Journalism used Freedom of Information requests to extract from NHS hospitals the fact that at least 64 former employees had been compelled to sign financial settlement contracts before leaving; in 55 the financial settlement had been accompanied by gagging clauses.
When he was Health Secretary, Alan Johnson was quite clear: gagging NHS whistleblowers is unlawful. He told Parliament: “ . . . the Public Interest Disclosure Act 1998 gives clear legal safeguards to NHS staff who disclose protected information in the public interest. The penalties for those who punish staff for using that law are severe.” (But no one thought to ask how many such penalties had been imposed. The probable answer is zero.)
In Private Eye’s current edition (issue 1292) and on their own website, Dr Phil Hammond and Andrew Bousfield reveal how substantial these pay-offs have become: they amount to something like £15 million over the past three years. To this figure must be added the legal costs, which are probably greater, and the not inconsiderable sums for replacement staff during “gardening leave” and negotiations. So we are probably talking about up to £40 million of the public's (not Murdoch's) money illegally spent to prevent managerial and ministerial embarrassment.
The coalition agreement promises: “. . . we will require hospitals to be open about mistakes and always tell patients if something has gone wrong.” Last year, because of my experiences (see competing interests below) and only following forceful representations, I was invited to participate in the Department of Health working group established to give effect to this promise. Patient safety groups, malpractice insurers, the Academy of Medical Royal Colleges and the GMC took part in these meetings. None of the last three groups were supportive of any form of enforcement. They claimed that the existing powers of the Care Quality Commission (which distinguished itself by its failure to detect the mass die-off at Mid-Staffs) were already sufficient. Nor were they or the Department willing to even consider problems which will inevitably arise if, with privatisation and outsourcing, reputational risks to “shareholder value” compete for priority with patient care, further incentivising cover-ups.
And the civil servant in charge of the debate told me that he could not tell me what advice he would be providing to his bosses. This was openness as defined by Yes Minister: we can't tell you what we have decided do about candour — it's a secret.
It is a perversion of risk management when the standard and reflexive response of authority is to protect the reputations of those responsible by covering up. The result is that the risk (to the public) IS the management.
The only antidote is enforcement that ensures that cover-ups themselves are expensive and dangerous for those who may attempt them. This is as true in health, social care, policing, or foreign wars as it is in Wapping. So all power to the journalists who tenaciously and bravely dug out the phone hacking scandal. But please can we now have equally effective investigations and acres of newsprint about the many other scandalous ways in which malignant managerialism is harmfully deployed against the public at our expense.
Frank Arnold is a doctor. He was resuscitated from a cardiac arrest and suffers from a permanent disability following a negligent surgical misadventure after keyhole surgery. The hospital where this happened did everything in its power to evade and deny responsibility. He estimates that 25 people die avoidably each year in the UK of the very errors that nearly killed him.
Dr Frank Arnold helped to found and was clinical lead for the Medical Justice Network.