Ministers should take action to prevent managers guilty of serious misconduct from “rattling around the system”, the leading barrister who oversaw a recent review of the NHS’ fit and proper person test has told HSJ.
Tom Kark QC said the government must adopt all of the key recommendations from his report published last month if it was to find a way of “stopping the revolving doors” that allowed failed managers to move from one organisation to another.
Mr Kark, who was lead counsel to the Mid Staffordshire Public Inquiry, added all of his recommendations were interlinked and should not be implemented in isolation.
He stressed a number of previous inquiries and reports had called for similar change, saying: “There is a lack of action… You can’t keep commissioning reports which say the same thing. Enough people have said what we’ve said, in the past, for action to be recognised as necessary”.
Mr Kark added: “I don’t think there is any other way of stopping the revolving doors in the NHS where directors who have misbehaved, and there are, I’m sure, very few of them; there’s currently no way of stopping them going from one trust to another trust. And there have been examples where precisely that has happened.
“If you go back to Sir Ian Kennedy’s report, or Lord Rose’s report, or Sir Robert Francis’ report, they’ve all said similar things in slightly different ways. You’ve got to have some competencies and a way of taking people off the road.”
Following his report, the government immediately accepted two recommendations – to create a central database of board level managers and to adopt new competency standards.
But the government deferred other recommendations, including the use of mandatory references and the creation of a new Health Directors Standards Council with the power to bar managers guilty of misconduct, to be considered by NHS Improvement chair Baroness Dido Harding.
Speaking to HSJ, Mr Kark said: “The five central recommendations all formed for us part of a picture puzzle that fitted together. They are interlinked and we very much hope eventually all five recommendations are put into effect.”
He said he was surprised the government did not adopt the mandatory reference idea, which would require a full and honest disclosure about a director to be supplied to the next employer.
He said: “Good information from the employing trust is absolutely critical… If you didn’t give a proper full reference and if there’s a problem you know about, all you’re doing is kicking the can down the road and that’s not fair to the next trust or to the service.”
He stressed his recommendations did not amount to the creation of a full professional regulator, as NHS managers did not constitute a profession. He said the proposed body would only deal with those accused of misconduct.
Mr Kark added he had “backed off” from the idea of a full regulator similar to the General Medical Council, because it could have a “chilling effect” on the numbers of people willing to do the job.
He also denied his recommendations would make management harder, arguing: “The first four recommendations are all about improving management and actually making the job easier and not harder.”
He said having defined competencies and clear expectations would help good managers resist pressure, adding: “As a barrister, I am regulated. If a client asked me to do something that I know I’m not meant to do, it’s much easier for me to turn around to the client and say I’m just not allowed to do that.”
He said he believed his proposals around reckless mismanagement would allow action to be taken against managers at failing trusts.
He added: “I think that if we found another Mid Staffs situation, where it must’ve been known to the board in terms of what is happening to the patients in that hospital as a result of them hugely cutting nurse numbers, by way of example, I would have thought that it would be possible to prove that that amounted to reckless mismanagement that resulted in compromising patient safety.”
Mr Kark stressed the importance of any new rules applying across the board to national bodies and clinical commissioning groups, adding: “I think it’s really important that the public see that there’s the same standard across the whole of the NHS in all of its nooks and crannies.”
He said his proposal to place the HDSC within NHS Improvement was “pragmatic” but that it would need to be “demonstrably independent”.