Tom Kark QC: Stop the revolving door for failed NHS managers

This article was originally published in the Health Service Journal on 12th June 1019.

The Health Service Journal published excerpts from an interview with Don Berwick in which he was reported to have warned that too much surveillance of NHS managers could be “quite toxic”. He said that the NHS placed “too much emphasis on accountability, supervision and metrics and not enough on relationship development”.

When I conducted my review of the FPPT with Jane Russell (barrister) we were acutely conscious of the problems and unintended consequences which overregulation can bring, not the least of which is that it could easily make the job of running an NHS trust less attractive than it already is, thus making the pool of applicants for top jobs even shallower.

A second serious problem is the danger that by overregulating senior executives the responsibility of the board to appoint appropriate people to the right posts is abrogated to the regulator’s registration and accreditation scheme.

Thus, we sought to steer a difficult path between overregulating and leaving the test exactly as it is. Almost all to whom we spoke agreed that was not an option since the test does not work as Sir Robert Francis QC expected it to and he has acknowledged that fact.

Above all, he expected a test to be inserted which allowed for the removal of executives who were proved to have committed serious misconduct or were responsible for serious management failures. He wanted to stop the revolving door of the NHS whereby senior staff, whatever their previous failures, keep popping up somewhere else in the system retaining a high salaried job.

The recommendations

The central recommendations were to us obvious ones.

The first was to identify some metrics, some basic skills or “core competencies” which senior executives should have in order to undertake the various board roles. How else do you assess whether, according to the current test in Regulation 5, the individual has the qualifications and skills needed. How can anyone identify what training or further experience is needed unless you identify what core skills are required? How do you increase diversity on the boards of the NHS when there are no criteria or identified competencies which people can aim for and strive to acquire? The NHS village of directors needs to open its doors to new talent and that is less likely to happen unless a light is shone to show the path to what a qualified director looks like. We recognised that what matters even more than technical qualifications are the personal qualities and skills of each individual, their ability to build relationships and trust, and the individual ability to inspire others, but we found that the lack of identified basic competencies does not leave the door wider open to talent, indeed such a lack of identified required skills was likely to nudge it closed.

The second recommendation was in relation to information. How difficult is it to set up a database recoding the names, qualifications and a certain amount of background information about each director? How can it be that such information is not already held? How do you keep track of an individual’s disciplinary record unless you keep a record? There are fewer than 4,000 trust board directors including NEDs. The armed forces retain records on each individual, so does the civil service, why can’t the NHS? Make that database accessible to future employers as well as the Care Quality Commission, retain it in one secure place. Building up the knowledge base in relation to each director and include in it any upheld grievances or findings of misconduct. Without that each trust employing a new director has to rely on the CV provide by the individual and any references which may be wholly vanilla in content.

The third recommendation was intended to feed into the second. Design a mandatory reference form for director posts and require that references are full and honest and signed off by a board director. The FCA have successfully introduced such references into financial regulation, why can’t the NHS? This week’s news is all about MPs having another go at non-disclosure agreements. But until they get banned, (and I suspect that will never happen because there are circumstances where such an agreement may be justified), the introduction of a mandatory reference which has to include disciplinary issues and complaints draws much of the poison out of an NDA. It would allow the employer to tell the employee, ”I can agree a compromise with you, I can even include a form of NDA, but I am mandatorily required to complete a full reference which goes on your record, I cannot avoid it”. The employee must have the right to challenge that reference and for any challenge to be noted, but the reference must be full and honest.

The fourth central recommendation was to extend the test to the non service providers in the NHS – to the commissioners and other ALBs. Those parts of the NHS where so often in the past the revolving door has led errant or poorly performing directors.

The fifth recommendation was to set up a regulator, the Health Directors Standards Council, to deal purely with serious misconduct issues. This is not intended as a regulator of performance. This is intended only to deal with serious matters such as serious dishonesty, deliberate victimisation or harassment. Reckless mismanagement which endangers patients is included in that list, but all other performance issues would be left to be dealt with by the employing trust. This is the Teaching Regulation Agency model, leave performance in the hands of the employer, the regulator only gets involved when it becomes necessary to consider disqualifying an individual from the role. Unless the NHS allows for such a sanction the revolving door will continue revolving even for those very few directors proved to have committed serious misconduct, someone needs to put a foot in that door and stop it.

Contact our experts for further advice

View profile for Tom Kark QCTom Kark QC