Health Committee
Oral evidence: 2014 accountability hearing with the Care Quality Commission, HC 765
Tuesday 16 December 2014
Ordered by the House of Commons to be published on 16 December 2014.
Members present: Dr Sarah Wollaston (Chair), Andrew George, Charlotte Leslie, Andrew Percy, Mr Virendra Sharma, David Tredinnick
Questions 1 - 93
Witnesses: David Prior, Chairman, and David Behan CBE, Chief Executive, Care Quality Commission, gave evidence.
Q1 Chair: Good afternoon and thank you very much for coming. For those following this at home, would you mind introducing yourselves and explaining your role, starting with you, Mr Prior?
David Prior: I am David Prior, the chairman of the CQC.
David Behan: I am David Behan, the chief executive of the Care Quality Commission.
Q2 Chair: Thank you very much for coming. Could I start, Mr Prior, by asking you this? A year into your post you commented that the CQC was not fit for purpose. I wonder now whether you would say that it is fit for purpose and that it is value for money. Would you like to set out how you feel things have progressed since then?
David Prior: I think we have come a long way, but we have not got to where we want to be—that is how I would summarise it. There are a number of things that we have done that have made us very different. We have changed the entire top team in the CQC. We have changed the organisation and we have changed our governance structure. On looking outwards, we now have an intelligence‑driven, risk‑driven inspection regime, which has made a huge difference, assessing the risk of acute hospitals and GP practices from information—from data. We will see being able to do that as a growing strength within the CQC as data become more available to us and more predictive. There is a huge amount going on in health analytics at the moment that will make us more effective as time goes on. I think we—
Q3 Chair: Mr Prior, do you mind if I stop you there because you are quite softly spoken and it is difficult to hear you? Can we turn the volume up slightly? No, okay.
David Prior: If I speak into this a bit more—
Chair: The problem might be that the microphone is not angled towards you. I think that is the problem.
David Prior: I will move my chair. We will be much more of an intelligent, informatics‑driven organisation going into the future, and we will get better at that as we do more of it.
Secondly, moving from generic inspection to expert inspection—and particularly experts supported by teams of specialists—has made inspections, first, more insightful but, almost more importantly, more credible with the people who we are inspecting. If you have a midwife and a consultant obstetrician going into a maternity unit or an A and E consultant going into an A and E department, it makes the inspection seem more real. It is more real, but it seems more real to the people you are inspecting. That has made a big difference.
Transparency has to be the future—putting more intelligent information out into the public domain. I am sure that we will talk about the GP data we put out in detail, but, in principle, putting data out on acute hospitals and on GPs has to be the right way to go.
Finally, the focus that we now have on whether a hospital, for example, is well led—the culture within the hospital—is very important. I was re‑reading some of the Francis report into Mid Staffs earlier this week, and in the past I do not think our inspections got anywhere close to being able to assess the culture of an organisation. That has made a huge difference. In summary, we have come a long way. We still have some way to go, but we are a very different organisation from the one that we were over a year ago.
Q4 Chair: Would you describe the CQC as being fit for purpose now and value for money?
David Prior: Yes, it is fit for purpose. We are doing a lot of work on value for money. Again, it is too early to say, Sarah, to be honest with you. We have only just started doing the GP inspections—we have only been doing them since October, only starting the adult social care from October—so we will be able to answer that question more fully in a year’s time.
Chair: Thank you. We will return to some of the other points later on, but I will hand over to Virendra.
Mr Sharma: Mr Prior, in response to the recommendations from the Francis report, the CQC has been, in the words of the Department of Health’s written evidence, “substantially reformed”. Can you explain the changes that you have made—
Chair: Virendra, I am so sorry, but I am afraid there is a Division in the House. Rather than cutting you off halfway through a reply, would you mind if we return to this? We will suspend briefly.
Sitting suspended for a Division in the House.
On resuming—
Chair: I am very sorry, Virendra, but do you mind starting at the beginning of the question again?
Q5 Mr Sharma: In response to the recommendations in the Francis report on the Mid Staffordshire NHS Foundation Trust inquiry, the CQC has been, in the words of the Department of Health’s written evidence, “substantially reformed”. That is the statement made by the Department. Can you explain the changes that you have made to your regulatory model and methodology? I have a bad throat, so I hope that was as clear.
David Prior: No, that is fine. The words were “substantially reformed”, and we would not disagree with that—it has been substantially reformed. The board is completely new. There is only one person still on the board who was there before, and that is Kay Sheldon. The senior executive team, with the exception of David, has been completely changed. There is Mike Richards on acute care, Paul Bate, who does intelligence, Steve Field, who does GPs, and Andrea Sutcliffe, who does adult social care. So the board and the senior management team are completely changed. One of the critical differences between the past and now is that we have gone from having inspectors who are generic, who would inspect a care home one day, a hospital the next and a GP surgery the next, to having specialist inspectors. That has made our reports—our inspections—much better. Those would be the big changes to our methodology. David, do you want to add to that?
David Behan: Critically, we set out a three‑year strategy of how we would change the way that we inspect and regulate health and care services. We began by piloting those changes. Since April last year and October this year, we have changed dramatically the way we inspect acute hospitals, adult social care and primary medical services. From October of this year, we are inspecting and rating all acute hospitals, all adult social care and all primary medical services. At the heart of the changes we ask five questions: are services safe; are they effective; are they caring; are they responsive; and are they well led?
We have consulted on and now published our key lines of inquiry. These are the questions that we ask when we inspect to assess how those five questions can be answered. From April next year, we will introduce changes to how we inspect dentists and independent health care ambulances. We are currently trialling those changes to how we inspect those services. As David said earlier, we have done an awful lot to change our methodologies and we still have an awful lot to do.
We have undertaken more than 100 inspections of acute hospitals, mental health hospitals and community health care services, using those new methodologies, and we are rolling out more than 100 of the new inspections in relation to primary medical services and a similar number in relation to adult social care. So we are radically reviewing the changes.
The regulatory framework within which we operate changes from April next year, with the exception of the duty of candour and the fit and proper person test, which changed from 27 November. Our new methodologies are out but, largely, we are working under the old regulations. From April next year, we will have more of our new methodologies out and we will be working fully within the new regulations.
The Care Act 2014, which you and your colleagues have debated and passed, provides the legal framework within which we operate. Together with the changes that David identified to the way that we are organised at a senior level, at our board and executive level, we have dramatically changed our methodologies. The staff in CQC should be congratulated on the way that they have responded to those changes and introduced these new methodologies.
Q6 Chair: Thank you. Do you want to respond to the statement by the head of internal audit that was quite critical? Basically, the head of your internal audit said: “The transformation programme inevitably brings its own risks to governance, not only in its execution but also to existing controls and governance arrangements as people change and roles are revised. The frameworks for governance, risk management and control have again been updated so as to remain appropriate given the significant volume and pace of change in CQC. However, progress in implementing those frameworks has further slipped and the need remains to fully embed these across the organisation.” Do you want to respond to the head of your internal audit’s criticism that the programme has slipped?
David Behan: Part of the review that we have been undertaking, Chair, is not only to our methodologies—our priority has been to change our methodologies, and we make no apology for that—but, over the past financial year, 2014‑15, we have also been reviewing our systems and processes. We have overhauled our internal audit arrangements and we are now part of the Department of Health’s internal audit arrangement. We take our audit services from the Department of Health and we have been using PricewaterhouseCoopers as the external contributor to that internal audit service to undertake our internal audits. I was disappointed, as the accounting officer, with that internal audit report for the year 2013‑14 and we have been working hard at improving the systems and processes. We have undertaken a root‑and‑branch review of our systems and we have a new chair of our audit and governance committee within the CQC, Paul Rew, who is a new addition, and he is providing non‑executive director leadership of the way that we scrutinise our own internal systems and processes. So it was accurate at the time for last year and I think we have made progress. I expect to be able to demonstrate that in this year’s annual report.
Q7 Chair: So next time you come before this Committee, or its successor Committee, you are confident that that will be different—that they will be happy with the way you are dealing with the time frames.
David Behan: Again, Chair, I am confident we will have made progress on that. As I say, I was disappointed with those findings, but our priority has been to change the way we were organised and change our methodologies. Next year we will have more robust systems and processes in place.
David Prior: Can I add to that? The priority for the first year was to put an inspection regime in that was credible. It was because we had Mid Staffs hanging there, and Robert Francis made it clear that it was a systemic problem not just in Mid Staffs but in other hospitals as well. We had to get that external regulatory aspect of our business right first and we now have to make sure that the internal side works as well. So, yes, ask us in a year’s time.
Q8 Chair: You felt it was a question of priorities.
David Prior: Yes.
Q9 David Tredinnick: Your annual report for 2013‑14 shows a huge increase in net expenditure. It is up by a quarter from £75 million to £93 million. Can you give the Committee some insights into why it is so large, please?
David Behan: Certainly. Our budget for this year is £224 million. That comprises of a grant in aid from the Department of Health of £80 million and fees from those that we regulate—care homes, acute health care trusts and so on—of the balance of £104 million. That represents an increase of £40 million in our grant in aid from the previous year. In 2013‑14, our grant in aid was £80 million. In this year—2014‑15—it is £120 million. Quite simply, that money is to ensure that we have the ability to pay sufficient staff to undertake the delivery of those new methodologies. We have a more robust approach to inspection. Our inspection teams spend longer inspecting and go into more detail and depth in those inspections. For that we required more staff to carry out those responsibilities, so that additional grant from the Department of Health pays for those additional staff we have taken on to discharge our responsibilities.
Q10 David Tredinnick: How many additional staff have you taken on, please? Can you give us some idea of the spread from top to lower down the structure?
David Behan: Yes. I can do this in two parts. We began the year with about 850 inspectors out of an establishment of 950; that is how many we should have had. We are looking to have over 1,450 inspectors to carry out our responsibility. That is what that additional money was made available to us for. That is what that money is being used for. We have not spent all that money because we have not been able to recruit to the level that we set out in our plans, but that money was designed to introduce more inspectors to allow us to deliver our new methodology.
Q11 David Tredinnick: Do you mean that there just are not the people out there, or that you are not capable of finding them?
David Behan: I do believe we are capable of finding them. We have tried a number of different approaches to recruitment. We have tried recruiting through a mass recruitment exercise and now we are undertaking much more bespoke recruitment exercises, recruiting locally, but also looking flexibly at different models of recruitment. In hospitals and mental health, we are currently recruiting by using secondments from service as an approach, and that is producing a pipeline of interested candidates who are coming forward, and then we are selecting. But we have set a very high bar for inspectors. One of the criticisms we have had historically is about the quality of staff. We deliberately set a high bar to make sure we are recruiting people who have the skills to do the job we are asking them to undertake.
Q12 David Tredinnick: But is it not a fact that the salaries you are offering are slightly above average? The salaries that you are offering are, if not average, slightly above average for the grades for which you are recruiting. They are well‑paid jobs, are they not?
David Behan: Indeed, they are well‑paid jobs by any stretch of the imagination.
Q13 David Tredinnick: And yet you can’t seem to attract people to them.
David Behan: We can attract people, and—
David Tredinnick: I am sorry to press you on this.
David Behan: We can attract people, and we are attracting people, but not at the rate and pace that we anticipated we would do. In terms of comparative grades, our inspector grades are paid around what nurses and those managing care homes would be paid. We are not paying some of the higher grades for inspectors, and it is a job with an awful lot of responsibility and exposure in how people can be expected to justify the assessments and judgments that they make.
Q14 David Tredinnick: Without putting words into your mouth—the favoured words that you like to hear—which I am about to, are you trying to recruit in a way that would be described as value for money by trying not to pay the top whack?
David Behan: I do believe we are attempting to do that. There has been a debate about senior salaries and we will—
Q15 David Tredinnick: You are not immediately recruiting the most expensive people then. Is that what you are saying?
David Behan: No, we are not, and we have not increased our salary scales for inspectors over the past three years. They have been subject to the public sector pay award and we have not increased those. We are not competing with band 8 posts for nurses in hospitals. Our salaries will equate, as I say, probably with band 7 nurses and people who are paid home manager salaries for care homes. That is the degree of experience we need. We are also attempting to offer a good experience of employment, with people being trained and supported to do the job we are asking them to do, but I do not believe we are paying inflationary salaries to recruit people.
Q16 David Tredinnick: I did not say they were inflationary. I am just curious about how you were pitching your recruitment notices, which clearly have not been as successful as you had hoped.
David Prior: Recruitment is incredibly difficult now across the whole NHS. There is a shortage of nurses—we know that—and a shortage of residential care home managers. It is a very tough market. One of the reasons why there is a shortage, perversely or paradoxically, is because we are insisting on higher staffing levels in hospital wards, and they are the kinds of people that we need. If you had some chief executives from hospitals here now, I am sure that your line of questioning would be, “Why are you taking on so many agency nurses?” It is very hard to get them. They are scouring the world to find nurses, so it is difficult.
Q17 David Tredinnick: In your written evidence, you explain that you are in the process of developing a fees scheme that will be more reflective of the actual cost of regulation—this runs on from what I have just been saying to you—and thereby reducing reliance on Government funding. Will any increase in the CQC’s income also reflect efficiencies on the CQC’s part, rather than there being a sole reliance on additional charges to providers, which could well be passed on to the people who use their services?
David Behan: Yes, indeed. We know what the financial environment is in public services and we know that we need to be efficient and effective in the way that we take our responsibilities forward. We are mindful of the need to be efficient. We have developed a number of new methodologies over this past 12 months, as I answered to one of the previous questions. As our staff become more confident in operating those new systems, we will become more efficient. You were asking David earlier about how we know we are going to be more efficient. We have contracted with Frontier Economics to help us develop a framework where we can measure value for money and impact, and that then informs the way that we operate. After each of our inspections, we ask those that we have inspected to feed back to us using a standardised questionnaire. That is the type of intelligence that we are using to ensure that we are clear about the impact we are having and clear about our ability to deliver value for money, but we are acutely conscious that we will need to demonstrate that to you and to the National Audit Office, as well as to the Public Accounts Committee, as we go forward.
Q18 David Tredinnick: Chair, with your indulgence, I have one last question. Do you think this new regime has identified any shocking situations that perhaps have lain undiscovered for a while?
David Prior: Yes. Just to finish off on your last question, we can make efficiencies; there is absolutely no doubt that we can make efficiencies. If you take, for example, a typical hospital inspection, it might have 70 people on the inspection team. Going forwards, we will almost certainly bring that number down. The critical thing will be the extent to which we can rely upon data rather than physical inspection. If we can rely more on data and the interpretation of data to identify a risk, that will reduce the inspection cost. There is a huge focus on that in the CQC. Your second part was—
David Tredinnick: Because you have a more rigorous regime, have you uncovered anything that perhaps the old regime might have missed—through the rigorous nature—and I did actually ask whether you have come across any shocking situations?
David Prior: I think there are 12 acute hospitals in special measures at the moment where we have uncovered issues of serious concern. Would we have found them under the old regime? I don’t know, but probably not.
David Tredinnick: Thank you.
Q19 Mr Sharma: The new regulations and fundamental standards will come into force in April 2015. When will the CQC issue guidance on the new rules to care providers?
David Behan: We have issued handbooks now for the current regulations and our current methodology, and we will issue revised guidance with the new regulations during the spring of this year. They will be available for providers from April next year. We will effectively update the guidance that we have already issued.
Q20 Mr Sharma: But it will be before April.
David Behan: It will be before April, yes.
Q21 Andrew George: On that issue, having looked through the list, I notice that your standards are matters that are open to interpretation. For example, you have, “care and treatment must be appropriate and reflect service users’ needs and preferences”; “service users must be treated with dignity and respect”; “care and treatment must only be provided with consent”, and so on. They are all very much unarguable objectives, but all open to interpretation as to how and when that particular threshold is reached. Only one of them is quantifiable and actually measurable: “sufficient numbers of suitably qualified, competent, skilled and experienced staff must be deployed”. That is something which you can measure; you can ask and then relate that number to the number of patients or clients for whom that particular service is providing. With standards like that, how can you undertake any proper remote evaluation if you are engaged in intelligent monitoring and so on? How can you properly make any kind of assessment? Surely it must be open to very variable interpretation, is it not?
David Behan: The new fundamental standards have been published. You and colleagues in the House have had the opportunity to shape and influence those.
Andrew George: Yes.
David Behan: They are what we will work within. Sat underneath the fundamental standards are our provider handbooks, which explain to providers how we will carry forward our inspections, and our methodology has what we call key lines of inquiry. These are the questions we ask when we are on site and inspecting acute hospitals or care homes. That is where we need to look for the detail. In our provider handbooks we describe what “good” looks like in those documents, and then people have the opportunity to measure where they are against those standards. That is effectively what our inspectors are doing when they inspect. They are looking at the regulation through the prism of those key lines of inquiry and arriving at an assessment, a judgment, of how well that service meets that. Data intelligence is used, not just the intelligent monitoring but also the data packs that are produced before each inspection of a hospital or a care home, so that the performance of a service is informing those key lines of inquiry. In some hospitals, there may be concerns about maternity care but no concerns around surgery. If that is flagged through the data, that will influence how the inspection team pursue those key lines of inquiry when they are on site carrying out the inspection. Similarly, if there is an issue around, say, the management of medicines in a care home, that will be flagged and inform the key line of inquiry. It is a combination of the data and the key lines of inquiry that allow us to pursue the detail in an inspection.
Q22 Andrew George: But one follows the other, does it not? If you do not have sufficient numbers of staff, it is going to be very difficult to achieve many of the other output measurements in terms of appropriate treatment, dignity and respect, that consent is achieved and so on. Having enough qualified staff surely should be the bedrock of any initial assessment, should it not, in terms of the inputs into the organisations? Presumably that is absolutely fundamental, is it not?
David Behan: Indeed, and one of the regulations is about staffing levels. If you look at particularly the inspections that Sir Mike Richards has done in relation to acute hospitals, many of the issues that we flag back to services are in relation to the adequacy of staffing, and trusts are taking action to increase the levels of staffing to ensure that that link that you are making, Andrew, between the numbers of staff on duty and the ability to treat people with dignity and respect, is being made—that there are enough staff to treat people with dignity and respect.
Q23 Andrew George: I have not seen then. If you publish the guidance in each of those areas of standard, in relation to staffing levels—and that includes, under Sir Mike Richards, the inspection of acute hospitals—I am not aware that there is any suggestion as to what is the fundamental standard; in other words, the standard below which, for example, registered nurse staffing levels should never fall in acute hospitals, or registered nurses in nursing homes with an acuity level of x should never fall if there was a patient ratio of y. Are those kinds of figures published in your guidance or do you not provide any kind of number? Do you quantify what those fundamental standards should be?
David Prior: We need to assure ourselves that the hospital has a dependency or an acuity tool to assess what is the right staffing level on a particular ward, depending upon the acuity there. We need to assure ourselves that they have been through that so that they know whether it should be 8:1, 9:1 or whatever the ratio should be of nurses to patients. Good practice now is that they would put up on the ward what the right staffing is for that ward on that day and what the actual staffing is. That is the kind of thing we are looking for when we do an inspection.
Q24 Andrew George: You would be impressed by a transparency on staffing levels and staff‑to‑patient ratios. That would reassure you.
David Prior: Yes, but it is, first, transparency and, secondly, not a blanket 8:1 or whatever, but that they have done an assessment of the needs of the patients on that ward and say, as a result of that assessment, that the ratio should be 8:1, or whatever the figure is. It is not just a figure that you can extrapolate across all wards. It depends upon the patients in the ward.
Q25 Andrew George: NICE were reviewing this issue some while ago, and I know they have not come to a conclusion on that. I do not know whether you have conversations with them about what safe staffing looks like.
David Prior: They have come up with a broad guidance of 8:1 on a normal ward, but it is not mandatory—it is a rule of thumb. The important thing is that the ward sister or the charge nurse has made an assessment of what it should be, given the patient mix on that particular ward.
Q26 Andrew George: All right. It is just that in your submission—and, indeed, that is supported by the Department of Health—under your intelligent monitoring, the first of the areas of questioning is staffing and numbers, and that seems to me to be a very good starting point. It is just that under your fundamental standards it is lost in among other evaluations of outputs. I was not quite sure how that sat and was weighted when you were looking at all the fundamental standards across the board.
David Behan: Staffing has been a prominent issue in all of our inspections, particularly in hospitals and adult social care. As David said, it is not setting an absolute number that needs to be on a ward or in a particular service. The requirement is that there are sufficient staff. In a modern hospital with a modern layout, the requirements may be different from a very old‑fashioned Victorian institution and, therefore, judgments need to be made to ensure that there are sufficient and adequate staff on duty to meet the needs of the patients who are being cared for or the residents in care homes. A prominent part of our assessment in hospitals and care homes is, “Are there sufficient staff on duty? Does this service, this hospital or this care home have a system for assessing that they have enough qualified and appropriately trained staff available to meet the needs of those individuals that they are providing care for?” That is a fundamental component of all of our inspections.
Where we find that there are insufficient staff we will say so. We will do this in a variety of different ways. We will look at the data, we will observe and we will speak to staff in staff focus groups and ask them whether they feel they have sufficient staff available. In hospitals, we will probably ask the director of nursing and the director of HR how they recruit and retain and how they make people available. We do not use one source of intelligence to arrive at that assessment; we will use a variety of different techniques—from the data, to the observation and to questioning—to arrive at that judgment.
Q27 Andrew George: Yes. This is not a question but a passing comment. Often you find those at the nurse-manager level may not necessarily have the same view as the front‑line nurses as to whether the wards are adequately staffed.
David Behan: Quite so.
Q28 Andrew George: Can I move you on, however, taking further the comment you made at the start, Mr Prior, regarding the work being intelligence-led? You commissioned the King’s Fund and the Manchester Business School to undertake an evaluation of your hospital inspection model, and to evaluate the effectiveness of your approach both there and also in mental health. Presumably you have had some outcomes from that work. Has that been helpful to the CQC in driving forward its future inspection model?
David Prior: Yes. That work was done early on in our acute inspections to try and help us assess whether the inspection methodology we were using was the right one or whether we could make it better. We learned a great deal from their report. What I was referring to—and David was earlier on—was that, in terms of studying what value we are getting out of these inspections, that is the next phase. We have just done 100 inspections, but before long we will have a much better view as to whether we are getting real value for that. In terms of structuring the inspection, the work that was done by the King’s Fund was very helpful.
Q29 Andrew George: In respect of intelligent monitoring, can you tell us how the new intelligent monitoring model has changed the way you carry out inspections? Presumably some of those inspectors who are undertaking the work are the same and very well qualified and experienced inspectors who were working for the CQC two or three years ago. What feedback do they give you in relation to how things have changed under the intelligent monitoring model? Presumably you ask them for their advice and comments as to whether it is more effective.
David Behan: There are a number of ways that this works. What is the purpose of intelligent monitoring? A question we were set after Sir Robert Francis published his report into Mid Staffordshire was: could we predict—i.e. anticipate—another Mid Staffs, and, if we could predict it, could we prevent it happening? The intelligent monitoring tool was developed initially by looking at acute hospitals. Of the work that we undertook, our view was that there was a collection of quantitative and qualitative data that could be used to flag if there was a risk that the service might not meet safety and quality standards. It was not definitive. We could not use this data to arrive at a judgment about a service, but it would operate almost like a smoke alarm—which is a phrase that we used—to flag that there was risk. That data for acute hospitals included things like mortality rates and hospital re‑admission after 30 days on the quantitative side.
On the qualitative side, going back to the question you asked David earlier about the evaluation and some of the work the King’s Fund did about how well led services were—questions from staff surveys and junior doctor surveys about how satisfied they were in relation to their role in the hospital—there is a correlation between staff satisfaction and the quality of care delivered. The correlation works. Nurses who are engaged and satisfied are likely to deliver high‑quality care. The opposite correlation works as well. By combining these quantitative and qualitative indicators in our intelligent monitoring tool for acute health care, we were able to identify those services that were at higher risk of being concerns around quality and safety.
We then used that data—that information—to target inspections. That was to target what we inspected, what was the focus—if there was a problem flagging in A and E, we would look at A and E—but also to flag when we inspected. If there was a risk, if there was a concern, that would mean we would inspect sooner rather than later.
We have now rolled out three iterations of our intelligent monitoring data for acute hospitals, and in November this year, for general practice and for mental health services, we published that dataset for intelligent monitoring for those services. It is our intention to develop a similar tool in relation to adult social care, but there is less data available in adult social care and therefore it will take us longer to develop that approach, but that is the approach we have taken to intelligent monitoring.
Before each inspection of an acute hospital there will be a data pack published. We will produce that. We will use some of the data from intelligent monitoring and also some of the data that is provided by the acute trust. It is that data that our inspectors will use. In answer to your question, our inspectors are getting used to using that data and beginning to use it to target their questions on our inspections, but it does provide us with a good source of intelligence prior to turning up on site. It makes the point that David was highlighting earlier—this balance between turning up and looking that inspectors do, and the data being used in combination. It is that combination of intelligence and data, along with turning up and inspecting, that drives our judgment.
Q30 Andrew George: I have one final question, if I may, Chair. You have mentioned that one of the key indicators to suggest that a location might be given a higher priority for inspection is staff satisfaction surveys. Have you undertaken any work to see whether there is any correlation between staff satisfaction responses and staffing levels?
David Behan: Not directly. It is something that we look at, and what we have said in our State of Care report is that there is large variation between hospital trusts in this respect. In one of the inspections that we carried out, in the staff survey that was conducted I think over 70% of staff in that particular institution would not recommend that particular service as a place that they would want a friend or a relative treated in. It is no surprise, therefore, that we were concerned about the quality of care that was being offered in that particular establishment. People are not keen to work in places that have poor reputations, so I think there is a relationship between—
Q31 Andrew George: My question was: have you related those poor ratings with staffing levels? In other words, have you found if there is—there may not be—a correlation between poor ratings in terms of the recommendation of staff to send a family member there and their own satisfaction at work, and inadequate staffing levels in those hospitals? That may indeed be an indicator. I do not know whether there has been any such correlation, but I would have thought that might be something that the CQC might be on top of.
David Prior: The King’s Fund, with someone called Michael West, has done a lot of work correlating staff engagement satisfaction with a whole range of outcomes. There is a direct link between staff engagement and financial performance on patient satisfaction. On pretty much every measure of a hospital there is a direct correlation, but I have not seen any work done actually on staffing levels. That is something that maybe we could look at.
Andrew George: Thank you.
Q32 Chair: Could I return to the issue of intelligent monitoring for GP practices, used as a marker, I know, to determine how urgently you are going to carry out an inspection? Would it be fair to say that the way that has been handled has led to a confusing and potentially misleading picture for patients? Can you set out what has led to having to change so many of the criteria you have used, having to issue corrections and write to hundreds of practices to apologise? It has not been a happy episode, has it, it is fair to say? Would you agree?
David Behan: No, indeed. It was a disappointment and is something that we are concerned about and concerned to put right. We will do that. If I may share the time line with you in relation to this—
Q33 Chair: Yes, I think it is worth setting out how it came about. It is quite a major error, and many practices have written to say that it has had serious implications for them and huge reputational damage, which is very hard to undo.
David Behan: Indeed, which is why it is a profound issue and very disappointing. Let me try and set out exactly what you have asked, Chair, and set out the time line. We began developing the tool in January this year. The first stages of the process were that we worked with a partner, KPMG, and between January and March, they developed a prototype scoping an ideal intelligent monitoring approach for each sector. We had engagement with key stakeholders to test the content and the approach. That included members of the general practitioner community. We looked at a variety of scenarios, we looked at good and poor practice from the past, and we set about determining a set of indicators—quantitative and qualitative indicators, as I was answering to Andrew’s question earlier. We met key stakeholders—the BMA, the Royal College of General Practitioners, the GMC and NHS England—to discuss that approach, and we looked at the indicators and had discussions about data.
At the beginning of April this year, we established within the CQC an intelligent monitoring team. These were the changes that we were asked about at the beginning—the complete restructuring of the organisation—to make sure that we were organised to deliver the changes that we have just been talking about. That team picked up the ongoing development from KPMG from April this year. Through May we worked on developing that dataset, and in June and July we tested those indicators in over 7,000 locations. In August we led on the development of the GP score card, which was part of the My NHS website. We continued during September with engagements to develop intelligent monitoring and we worked towards publishing this data on 17 November. That was the process we went through to develop the methodology and the approach. I do think we consulted with key stakeholders and we engaged with people generally. I will come back to that, if I may, Chair.
Just to finish, during June and July, our technical people—the analysts—did lots of checks on the data: how we uploaded the data; z‑scores were run; data was checked and so on. The testing that we did in July did not flag any issues at that time. In the stakeholder discussions in August, the first indicator—the access indicator—was withdrawn. The question, “Can you get an appointment with your GP?” was originally asked in the negative: “Do you have a problem getting an appointment with your GP?” That was flipped around in August in the way that we developed this work, so it was asked as a positive question. The error that we made was that the data were not changed at that time. That is where this error came from in terms of the access. As I say, we then did the subsequent testing. We sent the data—
Q34 Chair: I am sorry, Mr Behan, could I stop you there? In other words, having changed the question, you did not match the change in the answer.
David Behan: That is right.
Q35 Chair: In other words, it was inversely—it was a complete flip. People who had good access ended up with a bad score and people with bad access ended up with a good score. Would that be a fair way to summarise it to the public?
David Behan: Yes. It was the wrong way round, yes. It had flipped.
Q36 Chair: So it was pretty serious.
David Behan: Yes. We sent that data as part of our first validation exercise to over 400 practices and it did not show in the way it was sent out to 400 practices. Now, remember this was 400 practices out of over 7,500. That was the validation work that we did, very similar to what we did with the acute, and people came back to us on that and flagged those changes. But we did not pick that up at that particular point in time. Around this time, there were four other indicators flagged to us by NHS England of the data that we took from them which also had problems within it. That is the essence of the problem that has occurred.
What did we do when this was flagged to us? We looked at what happened, identified what the problem was, put that right and apologised directly to those practices that were affected by this. There were 60 practices that came down to bands 1 and 2, and we apologised to them for the distress that was caused to them by being in those bands 1 and 2 as a result of this. As a consequence of the other changes, from the four other indicators that we got from NHS England, seven practices moved up into bands 1 and 2 and we also contacted those directly. Either an inspector or professional adviser contacted the 60 and the seven to apologise directly to those. Over 500 practices were affected overall by this and we have apologised. We have now put that right. As a consequence, we are doing a “lessons learned” exercise which will be conducted with the team that worked on this.
In addition, going back to the question you asked earlier about internal audit, we have asked our internal auditors, through PricewaterhouseCoopers, to carry out an audit, not just of the assurance systems we have in place for intelligent monitoring, but for all the data we publish in our reports. That information will go to our regulatory and governance committee and then be reported to our board in public session early in the new year when they have conducted that audit.
Q37 Chair: The confusing thing from the public point of view is whether there is a clear enough distinction for people about the practices that have just had this pre‑banding risk stratification and those that have actually been inspected. Also, did the benefits of publishing the bandings—the intelligent monitoring—outweigh some of those potential disadvantages? In other words, did you see significant improvement in practices that were lower down the ratings scheme in advance of the inspection? Was there a public benefit to this? Did the benefits outweigh the risks and can you set out what those benefits were?
David Behan: In terms of the communications around this, we were very clear that the GP intelligent monitoring was a way of identifying inspections that we would carry out and it was not definitive; it was not a judgment on those practices. Our learning from this came from the production of our acute intelligent monitoring. The debate on the acute intelligent monitoring was whether we were arriving at a judgment of those trusts. Our argument all along is that intelligent monitoring is not a judgment; it is to assess where risk takes place and then to use that assessment to inform the inspections that we take out. We were very clear in the way that we set out our communications in relation to what the purpose of intelligent monitoring was. The fact remains, though, Chair, that the questions that came in to our press team were, “Tell us what the worst 10 general practices are.”
Q38 Chair: You must have been aware that that would be how people would react to these ratings—that that would be one of the potential disadvantages. My question to you was whether the advantages outweighed the potential disadvantages of that approach—which is inevitable—and has this improved public safety or not?
David Behan: This goes right to the heart of the current debate about transparency. The worst position we could have been in, having captured this data—which is survey data that comes from general practices anyway, from members of the public who respond—and used it to inform our judgments, would have been not to have published it. This allows a conversation about risk and safety. It informs the way that we will inspect. Ultimately, I believe that this is the right thing to do—by being transparent. This is a new system.
It is very interesting that there was no media publicity on the third tranche of intelligent monitoring data we published in relation to acute hospitals. The week after we published our intelligent monitoring on general practice, we published our data in relation to mental health services to virtually no media interest whatsoever. It is right that we flag this data that we collect, that we publish it and it is transparent, and that we use that data to inform the way we inspect. We will do more analysis of this data. Only today I was looking at the detail of some of it with intelligence colleagues, and on things like dementia diagnosis it clearly shows that a significant number of general practices are actually doing the right thing in relation to dementia diagnostics.
Q39 Chair: In other words, do you think there is an improvement in clinical practice by publishing this in advance of inspections?
David Behan: We can only measure improvement when we have a baseline from which we can measure progress. What we can say—
Q40 Chair: I guess you can say, “What was it at the time you put them in a low banding?” and “What was it at the time of inspection?” In other words, can you justify it because it clinically benefits patients?
David Behan: Yes, I think we will be able to identify where improvement takes place.
Q41 Chair: Thank you. It would be useful to know that data in due course.
I have one final question before I pass on—and thank you to my colleagues for their patience—on the issue of medical records inspection. A number of people—Roy Lilley has published an article criticising it and Dr Gerada has submitted evidence to this Committee—have expressed concerns at the inspection of medical records by your inspectors in general practice. Particularly of concern is the issue that they are asking practice managers to log in on their codes for them to be able to see the whole of a patient record. A patient subsequently wanting to see who has accessed their records would have no notion that their entire medical record had been viewed by somebody else without their consent. Would you respond to that criticism?
David Behan: Yes. We have been careful to explain precisely what we do and what the legal context is of what we do. I published a letter on 22 October, and our general practice professional adviser Professor Sparrow also publishes on a regular basis in a sequence called “GP Mythbusters” the approach in relation to this. The 2008 Health and Social Care Act gives us the power, for the purpose of our functions, of accessing medical records. In doing that, we need to be mindful of our responsibilities under the data protection legislation, the Human Rights Act and the common-law duty of confidentiality. We do have a code of practice on confidentiality and all of our inspectors work within that code of practice on confidentiality. We are not looking at anybody’s medical records as a fishing expedition. We have to be very clear about privacy and confidentiality of records for individuals, and we set that out in our document. We have the same approach in relation to looking at medical records in acute hospitals, in mental health settings and in adult social care settings. I do not believe this issue has been raised before in that way, but we were able to set out the types of circumstances and situations where we would want to look at somebody’s medical record. You were asking earlier about patient care. Could we look at actions in the significant event analysis to improve patient care? As to care for people with learning disabilities, is there a plan and is that regularly reviewed?
Chair: Indeed.
David Behan: That is why we do that. We would not go and look at records for no purpose whatsoever, and we can look at records without looking at personal information that would identify the individual.
Q42 Chair: So you do not look at personally identifiable information. Do you think it is right on that specific point that they log in using a practice manager’s code or that of a member of the nursing staff in a practice? Should not your inspectors have their own log‑in code so that anybody wanting to see who has accessed their records in future could clearly see they had been accessed by an inspector?
David Behan: There are different ways this can be done and we will review our code of practice. I am very happy that the Royal College of General Practitioners is involved in that review of our code of practice on confidentiality. As we review that, through conversation with professional colleagues, we can ensure that we are operating in a consistent way.
Q43 Chair: So you will address that point.
David Behan: We will address that point. Just to stay with this example of people with learning disabilities, the expectation or the requirement is that general practices will know the number of people that they have with learning disabilities.
Q44 Chair: I do not dispute that. That was not the point. My point was: should I be able to look at my medical records, for example, or you be able to look at your medical records, and see that your records have been seen by an inspector and to have them log in on their own codes? That is an important point.
David Behan: In order to assess whether people with learning disabilities are being well served by primary care, I do not think we need to look at a named individual’s record. The name of the individual—
Q45 Chair: That is not my point. I am saying that your inspectors are currently not logging in on their own codes. That is an important point. Do you not think that when they are accessing someone’s records, it should be clear that that person’s records have been accessed by an inspector?
David Behan: Yes.
Chair: Thank you. Virendra has a point briefly.
Q46 Mr Sharma: The question is on the introduction of a ratings system for care providers, and there are three points. Can you explain further how this new system will operate, how transparent the new process will be, and how the details of that ratings system will be reported to patients and carers?
David Prior: We have four ratings: outstanding, good, requires improvement and inadequate. In coming to those ratings, it is incredibly important that we are consistent throughout the country. We have a very detailed and rigorous quality assurance process to ensure we get consistency around the country. We give the providers a chance to raise factual accuracy issues with our report and we will discuss that with them. There is an appeals process built into the system. When we have given the ratings, they will have to be displayed in the care home, for example, and, as is the case with Ofsted, it will be for the provider to draw our report to the attention of the residents in their care home.
Q47 Mr Sharma: Are you saying that, when it is displayed in the care homes, the patients and the carers could pick it up from there, or you would be—
David Prior: The rating has to be publicly displayed in a care home.
Q48 Charlotte Leslie: I have a very quick question on appeals. In evidence previously presented to the Committee both the Foundation Trust Network and Care England call for the CQC to introduce an appeals process that allows providers to do more than just challenge what they think of as any factual inaccuracies in a report. What is the CQC’s response to this?
David Behan: It plays to Virendra’s question. There is a factual accuracy process that is there, and that continues and exists. For those inspections where we publish a rating, which is all of them from October, with more from April, there is an appeal against the rating. People have that opportunity to raise an appeal against that rating.
Q49 Charlotte Leslie: You are saying that, in many ways, what they are asking for already exists. An appeal against more than just a factual inaccuracy is already there, and so—
David Behan: Yes, it is. There is an appeal against the rating and that is one of the changes we have introduced as we have moved to all services being rated.
Q50 Andrew George: I want to move on to your responsibility for market oversight, especially in the social care sector. In order to fulfil that particular function—I know that you were struggling in the early days—I want to find out where you are in relation to having the skill set within the organisation. I know I am not qualified to ask the question, let alone assess the issue, but where are you in terms of having the skill set to be able to undertake the kind of financial inspections and oversight, in identifying the market intelligence necessary to assess where there might in future be the risk of a market failure? Where are you with that? Have you achieved the recruitment of the skills necessary and what do you still need to do?
David Behan: Our plans for this are well advanced. The board has considered this issue, considered the responsibilities that we will be given and how we take these forward. Our responsibilities are to assess the financial sustainability of providers for social care. Our goal is to operate as an early-warning scheme. We do not currently retain the skills that we need. We have agreed the structures that we need, the number of people who we need and the skill base that we need, and we are currently going through the process of clearances to get the recruitment of appropriate people in so that we have the skills to do exactly the job we have been set up to take forward. We are making progress with it, Andrew, is the straight answer.
Q51 Andrew George: Would you subcontract that kind of work to an accountancy practice or to some other body, or do you feel you need to have those various skills as employees of the organisation?
David Prior: We have thought about subcontracting the whole thing to an accounting firm, but they are all conflicted in one way or another with their clients. It would be difficult to do that. So we are going to recruit a small inner core of people and also have a panel of experts, if you like, so that if we felt that one big provider was getting into problems, we would be able to draw upon the panel for extra help to do it. To put it into context, there are probably around 40 or 50 providers that fall into the “too big to fail chaotically” bucket, if you like. That is the sort of scale of the project. We are not there to stop people from failing, it is important to say. We are not into the moral hazard world that the banks were in. We are there just to try and spot them so that if they do fail, we can do it in an organised way.
Q52 Andrew George: Could I explore this a little further in the home care sector rather than the residential care sector, which I assume is part of the area of inspection and risk of market failure that you are currently undertaking? In that sector it has become kind of notorious across particularly those parts of the sector that are largely funded from local authority resources as being characterised as a race to the bottom, quite frankly, in terms of achieving home care on less and less in terms of unit cost. In those circumstances, have you, as yet, made any sort of assessment of the wisdom of many local authorities seeking the creation of a market of fewer larger providers rather than the multiplicity that currently exists, for example?
David Behan: Our responsibilities for market oversight are directed at the 40 to 50 or 50 to 60 largest care providers. The majority of those large care providers are going to be care home providers rather than domiciliary care providers. Some of them will provide both domiciliary care and care homes. The focus of the market oversight responsibilities, Andrew, is more towards the residential care end than the domiciliary care end. In terms of market oversight of domiciliary care, I do not think that needs to be conducted at a national level. That is something that will be expected to be conducted at a local level by local authorities engaging with their providers of domiciliary care. If you remember, this came from Southern Cross, which was a national provider that affected many local authorities. The issue was that there was no one local authority with oversight of Southern Cross. It is more to capture those circumstances than it is to capture the individual domiciliary care providers, who will tend to be smaller in the way that they are organised.
Q53 Andrew George: I move on to the issue that we touched on before in relation to the shift from generic to specialist inspections, which has been broadly welcomed, but the issue has been the ability of the CQC to recruit inspectors. In fact, in evidence to us you have said that your processes are to ensure that the inspectors that you recruit are of high calibre, implying that that has not always been the case or may have been offensive to those who are no longer inspecting for you. In terms of where you are now, there is a recognition among those who have been looking at your work that the quality of data collection prior to inspection visits is not necessarily what it could be and that the size and calibre of inspectors—sometimes up to 100, is that right?—is inconsistent and the judgments are inconsistent as well? You still have to recruit, what, 150 inspectors—is that right?—and you are currently using temporary inspectors. Where are you with what still appears to be an unfulfilled, if you like, challenge of shifting across to this specialist inspection pool and your capacity to be able to fulfil the requirements?
David Prior: Recruitment is our biggest single issue as an organisation. The biggest risk to whether or not we are a success will be recruitment, in my view. David might have another view, but recruitment is hugely important for us. Just so that you get it into perspective, when you talked about data collection before, if you are going into a big acute hospital you are talking about a £1 billion business employing 15,000 to 20,000 people with multi‑specialties. They are hugely complex and difficult organisations to inspect; so when we do have 70 or 80 people on an inspection team, that is why. They are incredibly difficult to do. You do need to have very high‑calibre, high‑quality people on those inspection teams. It is no good, frankly, recruiting someone who has no experience of an acute hospital and saying, “Go and inspect an acute hospital.” That is why recruitment is proving difficult. If we compromise on that and go back to recruiting people who do not have any specific knowledge, the whole basis of an expert, usually clinically‑led inspection process has gone. That is why we are not prepared to compromise on our recruitment standards. If that delays us getting up to the full complement of inspectors, so be it.
Q54 Andrew George: If you are currently 150 inspectors light, what proportion of the total is that? In other words, how many inspectors do you have? I cannot quite see whether that is half of your complement or 10%. How many inspectors do you have?
David Behan: I agree absolutely with David.
Andrew George: I hope so.
David Behan: Thank you for the opportunity to say that. The biggest risk we have is not money. At the last accountability hearing this was David Tredinnick’s question about the money. The risk is not, “Have we got enough money?” The risk is, “Have we got enough staff to do the job we are invited to do?” Andrew, I think I said to the Chair’s question earlier, we need 1,400 inspectors—
Andrew George: In total.
David Behan: —in total by December next year to make sure that we can discharge the commitments that we have made in our business plan. We currently have just over 800 inspectors. We are actually looking to recruit 600 additional inspectors in two tranches—two waves—300 before April 2015 and a further 300 by December 2015. We have tried mass recruitment campaigns using a recruitment agency, Penna. We had a huge interest, but the conversion rate was low. We got 7,000 people interested in that and the conversion rate was about 150 people who have come through. We need analysts as much as we need inspectors, to go back to an earlier question, so this is not just about inspectors.
We have moved away from those mass recruitment campaigns and are now looking at a much more differentiated campaign, much more local advertising, looking at secondments, and now we have a pipeline of inspectors coming through on secondment from acute trusts and also from mental health trusts. They are adding significantly to the numbers that we have available to undertake those inspections. The key challenge, in all honesty, is whether we will be able to recruit inspectors to those numbers by April and December of next year as well. That is what we are embarking on. We are working hard to do that. It means that we have had to put some inspections back, and we have done that publicly at the board meeting and publicised it. It also means that our current staff are working very hard to deliver the inspection programme and we are supporting them to do that. But it is a challenge and there is no point in pretending this is not a challenge. The areas where we have the greatest gaps are in hospital inspections, acute health care and mental health. That is why the progress we are making in terms of secondments from the service coming in—secondments for a year—are helpful and have proved to be productive.
In addition to the recruitment, we have developed an academy. The academy is the capability we have within the CQC to ensure that staff are trained to do the job we are asking them to do. There have been three levels to the work the academy is doing. First, there is an induction programme for all new staff who start with the CQC. Their first day of employment begins with an induction programme. They are run every two weeks and we began them in the summer of this year, in July. I have managed to go to the first day of every one of them so far. The first one had four people on it; the last three have had 50 people on each one. That is a reflection of how we are building the recruitment.
As to the second area, those staff who are inspecting hospitals—acute health care—need to know what the regulation on the duty of candour and the fit and proper person test says because they will have to use that regulation from November this year. We have had to ensure that all those using the new regulation, which was turned on last month, are trained to do that and there are training programmes now available to go through that. All of our staff will need training in the new methodologies that they are using, and during the summer and the autumn they have gone through those courses. In addition, they are now going through courses in relation to the new regulations and how they apply, and they will be ready from April next year. Then for the brand new inspectors who are starting with us—there was a question about recruitment—there is a six‑week role‑specific induction where, having done the two‑day corporate induction, those new inspectors will go on a course, which will take six weeks, to go through our methodologies, the law and enforcement activity. Then they will be buddied up with a current inspector, will work alongside inspectors as part of their inspection responsibilities, and, after that period, will go out as new inspectors operating as members of inspection teams. That is the approach we have been taking. Previously, our staff and others have criticised the CQC for not equipping people to do the job we are asking them to do by training them. This is our offer, if you wish, to staff to ensure that they have the skills to do the job we are asking them to do.
Andrew George: Thank you.
Chair: Virendra wants to come in.
Q55 Mr Sharma: My question was on training, which you covered well. There are still many vacancies to recruit the staff. At this rate, when do you think you will be able to fill that gap or complete the jobs? Is there any target that you will recruit the people from other areas as well?
David Behan: The strategy we have set within the CQC is that we will endeavour to recruit additional staff over the next 12‑month period. We have set a target of 300 additional staff by April 2015, and a further 300 on top of that by December 2015. In that sense, yes, there are targets and that is how we have phased it through 2015.
Mr Sharma: Thank you.
Q56 Chair: Can I specifically pick up on the points you made about gaps in mental health as a specialist area of recruitment? I understand that investigating complaints about the Mental Health Act is the only area in which you investigate individual complaints. Is that right?
David Behan: Yes.
Q57 Chair: Do you feel that that is having consequences for that area of your work, and also there is the issue around inspections about safeguarding, for example, in children’s detention centres—I am sorry, secure facilities for children with mental health problems? Do you think there are specific areas where you are not able to carry out inspections in high‑risk areas?
David Behan: There are some areas where we are not carrying out as many inspections, independent health care being an example of how we are not doing this. At the minute Mike and the team are carrying out the inspections of acute and mental health care that we set out to carry forward. But coming to your question, Chair, we know that, as a Committee, you have looked at child and adolescent mental health, and you yourself have raised the issues of children with mental health problems being detained in police custody and not in appropriate children’s facilities. We looked at those issues historically and published reports on people in detention under section 136 and the inappropriateness of much of the provision for those individuals. But specifically on children’s mental health, as part of our new mental health inspections, we have trialled nine inspections that we have carried out specifically looking at child and adolescent mental health services where they are provided by a mental health trust as part of our inspections. Where we have published a report, we have commented on the strength or otherwise of child and adolescent mental health services.
In relation to the work we do in the children’s custodial establishment, our children’s inspection team will carry those out—it is not the mental health inspection team—and we will often do that in conjunction with the prisons inspectorate as a joint piece of work. So we have been carrying out inspections in relation to mental health through our mental health inspection teams. We have also been looking at children’s services as they are delivered through the custodial establishment, and we do that alongside the prisons inspectorate.
Q58 Chair: What about dealing with complaints from individuals about the way the Mental Health Act is operating in individual cases?
David Behan: We do carry out a number of complaints. You are probably aware, and members of the Committee are aware, that when the CQC was created it was not created by just bringing together the Healthcare Commission and CSCI. The Mental Health Act Commission responsibilities were brought into the CQC. Our deputy chief inspector is Paul Lelliott, himself a consultant psychiatrist by training and background, and Paul has been providing excellent leadership as we bring these functions together within the CQC. He now leads a team of staff who are looking at the inspection of mental health trusts, and, when we are inspecting mental health trusts, those people who were formerly known as Mental Health Act commissioners are also a part of their teams and they are discharging the responsibilities that we have as an organisation in relation to assessing the wellbeing and the care and treatment of those individuals who are compulsorily detained under the mental health legislation. So we are combining that responsibility we have to trusts and organisations alongside the responsibility we have in relation to people who are compulsorily detained under the mental health legislation. In addition—
Q59 Chair: My question, though, was do you have sufficient staff to be able to carry out those reviews where people are making a complaint under the Mental Health Act? You have talked about staff shortages in the area of mental health. Is that impacting that very important role of complaints handling?
David Behan: At the minute the biggest challenge, Chair, is in relation to the staff we have available, and Paul has available to him, to carry out the inspections of mental health establishments.
Q60 Chair: In other words, are there people who are detained under the Mental Health Act making complaints who are not able to have those complaints handled by the CQC in a timely manner?
David Behan: To the best of my knowledge, there are no cases where people are making complaints that we are not picking up. We will pick them up either as a direct referral that comes in to us or to those people who were formerly known as Mental Health Act commissioners who are part of our inspection teams, and, alongside the service inspection, we will look at those individual cases. But if there is a particular issue raised that requires a visit under our Mental Health Act responsibilities to individuals, that will be arranged and we will do that alongside any inspection we might be taking, or—
Q61 Chair: Just to be clear, there are no delays as far as you are aware.
David Behan: As far as I am aware, there are no cases where, because of the unavailability of people who carry out our Mental Health Act responsibilities, we are not able to act on those.
Chair: Thank you.
Q62 Charlotte Leslie: I want to turn to whistleblowing and a report that came out recently from Healthwatch which I found was of concern. It did a survey of trusts—and only 123 trusts responded—to do with listening to what they called citizen whistleblowers, that is, patients’ families, contractors, people who are not either members of staff or directly patients. They found that, of all the trusts, some responded, but only 30 trusts investigated these citizen whistleblower cases. Of those trusts that did investigate and were able to provide data of how many complaints there were and any data about the details, they found those citizen whistleblower complaints were about 18%—almost a fifth—of the total. That calls into question, if, in a hospital, the citizen whistleblowers are about a fifth of the total and only 30 are measuring it, that you have perhaps around a fifth of all complaints that are not being registered and are not being formally responded to. Hospitals seem very unclear about whether it is their duty to respond to citizen whistleblowers. Some have said they were not and that they had not got a requirement to do so, when of course they do. Is this something the CQC is looking into, and, if not, can it?
David Behan: Gosh!
Charlotte Leslie: I am sorry to put you on the spot there.
David Behan: No. I hope I have got the question. At the beginning of this month, on 8 December, we published a report Complaints matter. This was a commitment that the CQC had been asked to discharge following the report by Ann Clwyd and Tricia Hart which followed the publication of Sir Robert Francis’s report. In that report we set out the processes we have had in place, Charlotte, in relation to how we have been working alongside complainants and whistleblowers. In developing our approach to complaints, we have worked with the Patients Association and trialled different ways of developing our approach to complaints. Now, as part of all our inspections, we explore how an organisation is dealing with complaints. In our acute hospital inspections we have a lead inspector for complaints. This is a development going back to how our model of inspection is maturing. When we first started doing these new inspections we did not have a lead inspector on complaints. Now we have an inspector as part of our team who focuses exclusively on complaints to make sure we have dedicated time.
In the report that we published in December we did identify the positive practice that we had found in NHS trusts, and there is some. People are acting in an appropriate way. But we also found that timeliness of investigations and people feeling that their complaints had not been taken seriously enough or been adequately addressed was a key issue. Within adult social care and primary medical services, the early analysis that we published was that many providers report that they receive few complaints. That suggests to us that more could be done to encourage an open culture where concerns are welcomed by providers. We did see a positive practice where complaints were being made, and, as with the NHS, the timeliness of investigations and people feeling that their concerns were not being taken seriously or being adequately addressed were flagged as key issues.
What would we say about that? What we were flagging was that an awful lot has been done to improve the way that complaints are being dealt with and handled, but there is still much more that can be done to ensure that full value is being given to the intelligence that can come from complainants raising their concerns about services.
David Prior: The ones we have seen are the tip of the iceberg. For most people, raising a formal complaint in the national health service is something they do not do. You just don’t do it; it is too difficult and the repercussions are too great for most people. When we do inspections, we always do a public meeting beforehand. Before the inspection starts, we have a public meeting. Any citizen, anyone who lives locally, can come to that meeting and raise issues with us. When we go to GPs for inspections, we always put out survey forms before we go there to get feedback from people. We try and capture all this information. We are trying to capture all the social media information that you can get around a hospital and a care home as well, but you are talking about a huge amount of data there. Again, the development of informatics will enable us to use that data intelligently.
Q63 Charlotte Leslie: In a sense, I asked about a very specific brand of whistleblower or complainant. We are quite familiar with those who are either patients or staff—and particularly staff—raising concerns. But the concept of a citizen whistleblower who may be a cleaner or someone who just comes in, or a relative who comes in to visit a patient, and this very specific route that Healthwatch identified—and the very idea that some of the hospitals did not know that they could take a complaint forward without the patient’s permission; some of the hospitals say, “We cannot do it without the patient’s consent,” which was not correct, and many say, “We just cannot take the complaint, full stop”—would suggest that there is a group of trusts who are not doing this well. Healthwatch has quantified it to a certain extent. Is that something you can be taking up? If around a fifth of all complaints are just going under the radar, in the CQC’s mission to make complaints central to its service for quality, that is surely something that should be looked at specifically.
David Prior: We could certainly take that up. If you were to go on one of our inspections now—complaints are an important part of our inspection—there is a lead inspector with responsibility for complaints. With the Patients Association, we have developed what is the “best practice” way for hospitals to treat complaints that we use as part of our key line of inquiry. So we are doing a lot more on complaints. I am sure we could do more. Healthwatch was involved in this as well.
Q64 Charlotte Leslie: One thing as well that is often interesting is that if you look, as proxies—I wonder to what extent you use this—at hospitals that have poor complaints systems, they often collide with those that pay a lot out in legal fees. Are you doing work on looking at hospitals that are paying out a lot in legal negligence fees and their complaints process; and, going back to the kind of fit and proper person test that we have discussed before, is there any merit in linking, in terms of performance, the performance of the chief executive, the manager of the trust, to how much the hospital is paying out in terms of legal negligence fees as a kind of proxy for whether complaints are being handled well and that safety is a good thing? It seems often in the managerial levels of the NHS that you have the salaries of the private sector, none of the risk and all the protection of the public sector.
David Prior: I am not sure I would tie it to that. In a way, the most important thing is to get good outcomes for patients. If you had to tie it to anything, I would tie it to that rather than just litigation costs. You can have one disaster in a neonatal unit and that is £5 million. It could be a very good neonatal unit and a disaster happens, so I am not sure you could tie it. I know what you are getting at and it is important, but I am not sure I would tie it to that.
David Behan: One of the links is going to be about the way the new duty of candour is going to operate. That responsibility, where something has happened, is to explain to the patient or the family in a very clear way. The duty of candour is about attempting to share openly and honestly where something has happened in the treatment of an individual at that very earliest stage. It is that link that may do more in relation to litigation and payments of litigation than, say, the fit and proper person test or linking performance. The ambition around the duty of candour is to create a more open culture where something has gone wrong. That is explained to people so that they do not feel they have to campaign for the coroner’s investigations or other investigations to be carried out, and so on, to understand what has happened to their family member—their loved one. The ambition behind that duty of candour is to remove the feeling that people do not get the explanations that they need when something has gone wrong. That has more of a connection to the litigation payments than the way you asked your question.
David Prior: The costs of litigation fall with the NHS Litigation Authority, not with the trust, by which I mean they will have an insurance scheme with the NHS LA. There is evidence—Virginia Mason is the obvious one—where by having a much more open sort of complaint‑friendly culture they have driven down litigation costs hugely. There is very clear evidence of that link.
Q65 Charlotte Leslie: There is a correlation, but it is not necessarily causal all the time. Going back to the fit and proper person test, is that sufficient to ensure that managers who have a lot of pressures on them to demonstrate success—which was one of the problems with the Mid Staffs thing—perhaps have minds focused on good care for patients as measured by other proxy measurements through a direct performance‑related pay mechanism? The pay is significant, and in most private sector organisations, where you have that level of pay of hundreds of thousands of pounds, it also carries with it significant risk. If you are to introduce the kind of professionalism that you need in managers who do not have the equivalent of a GMC, which the clinicians obviously do, would some kind of performance‑related pay mechanism personal to the chief executive, based on transparency as a measurement of it, whatever that measurement may be—it may be legal fees or whatever else—be something that would achieve what we all want? At the moment, it still does not seem as if we have the proper accountability mechanisms in place for managers. The duty of candour is all very well and good but, while it is still easier for a manager to pretend everything is awesome and fine than it is to admit that things are not, they are going to want to say it is awesome when it is not.
David Prior: It is interesting that you say there is not much accountability. If you look at the turnover of chief executives in the NHS, you could sometimes argue there is too much accountability. We are talking about an 18‑month tenure on average. Running these hospitals are really tough jobs. There are some people who fail and they turn up again somewhere else, and that is unacceptable.
Charlotte Leslie: That is the issue.
David Prior: That is unacceptable. But we are very quick to judge people who are running hugely complex, difficult organisations, and this huge turnaround of senior management is not good for hospitals. There is a very strong correlation between hospitals with high turnovers of senior staff and poor performance. The number of hospitals today that have interim chief executives, interim medical directors and interim directors of nursing is far too many. So we have to be careful.
Q66 Charlotte Leslie: I would say there might be a difference between effective accountability mechanisms which prevent rapid turnover through knee‑jerk reactions and accountability through media scrutiny and press, but maybe that is a conversation for another time.
I have a final question. Whistleblowing, as you have very welcomely recognised, is an important part of maintaining quality in a hospital, but for a whistleblower still there can be every incentive not to blow the whistle because of what happens to job and career prospects and whatever else it might be. What role can the CQC take on to protect whistleblowers and to ensure they are supported in doing something that is often very difficult and often does still, despite progress having been made, result in loss of job and loss of livelihood?
David Prior: We have the well‑led domain that we inspect against, which is in many ways the most important domain that we inspect. Part of that is around complaints but it is also partly about raising concerns. It is trying to get at the culture of the organisation. It gets much more difficult. The risks of blowing the whistle are huge, and they are in any organisation because you are blowing the whistle against colleagues with whom you have to carry on working. It is incredibly difficult. All we could do is to try and change the culture of the NHS so that actually raising concerns is seen by everybody as the right thing to do. But we do live in the real world. When you blow the whistle against colleagues, it is very hard to go back to working with those colleagues again, and that is just a fact of life.
Q67 Charlotte Leslie: Very finally, have you published your submissions to the Robert Francis review on whistleblowing and, if not, do you have a time frame for that?
David Behan: Yes, we have. As part of that review, I have met with Sir Robert on two occasions and we have sent in written comments as well to his review. I think he is at that point now where he is considering precisely what he is going to say, having spoken to many hundreds of people, as I understand it, over the past few months. I believe he is very close to publishing his report.
Charlotte Leslie: Thank you.
Q68 Chair: Could I turn to the issue of the out‑of‑court settlement with your former deputy chief executive and ask if you could set out for the Committee what the total cost has been to taxpayers and to those who pay fees, for example, of what has happened and also what lessons have been learned so that this does not happen again?
David Behan: Perhaps I should do that. The claim against the CQC had two aspects to it. One was in relation to defamation and the other was in relation to the way Ms Finney’s name was released into the public domain. She issued particulars of claim in January of this year and we went into mediation in December of this year. We were confident in relation to the issue around defamation, but we were advised there was risk in relation to damages in respect of the way her name was released into the public domain. The settlement was in relation to the risks that we faced on that aspect of the claim. So we settled on the way her name went into the public domain. The damages were £60,000 in respect of the way her name went into the public domain, and the claim that was made against us was over £1.5 million in the statement of particulars. Disposing of the action around those damages of £60,000 was about 3% of the damages claimed.
Q69 Chair: What was the total cost to the public purse? That is the question.
David Behan: I will come to that. In addition to that, legal costs were paid of £510,000, which was about 40% of the cost her lawyers estimated had been incurred to that date. Mediation was a way of avoiding any further costs in relation to that.
Q70 Chair: In other words, the total cost to the public purse was £560,000. Would that be right?
David Behan: Plus about £200,000 in our own legal costs.
Q71 Chair: Plus £200,000—right. Gosh, it is £770,000. That is a huge cost not only to taxpayers but also, as I say, to those who contribute fees to the CQC. What lessons have you learned from that so that that does not happen again? If that were to be a regular occurrence, clearly that would be a massive onward cost.
David Prior: Can I say one thing on that? It will not be a cost to the people who pay fees because we are insured through the NHS Litigation Authority, so there is no direct cost.
Q72 Chair: But presumably it will put up your insurance premiums. It would put up my car insurance premiums if I did that.
David Prior: Well, probably not, actually.
Q73 Chair: You think it will not actually put up your ongoing costs.
David Prior: It will not put up our costs, but it is paid for by the NHS Litigation Authority, so—
Q74 Chair: Which is therefore a knock‑on cost for taxpayers.
David Prior: Yes.
Chair: So, ultimately—
David Prior: The judgment we had to make was if we had gone on with this case and had lost it—and it is very hard to predict these things—
Q75 Chair: Yes. I am not expecting you to go further into why you settled out of court. I was asking what lessons had been learned so that it does not happen again.
David Prior: Shall I have a go at that? If you remember, we invited Grant Thornton to do a report into the whole issue around the Morecambe Bay inspection and investigation. We committed ourselves to publishing that report unseen by us because, if we had seen it, we would then have been accused of it not being independent. With hindsight, if we were doing it again, we would have been better to get a lawyer to do that kind of investigation in public and allow everybody who was called to it to have their own representation.
Chair: So to go for a public—
David Prior: A commercial private organisation would get a lawyer, a solicitor or an accountant, but given the fact that we are so much in the public eye, probably with hindsight, it would have been better—more expensive but better—to have done the whole thing in public. We were in the invidious situation that had we interfered with the way it was being done, we would have been accused of interfering with the results of the investigation, but by not interfering with it, we had no control over how it was done and how the people were treated in the process. Having it all done in public by a senior judge, or someone of that ilk, is one of my learning events that I have taken from it.
Q76 Chair: Do you have any similar cases on the horizon?
David Prior: No.
Chair: Thank you. We move on to registration.
Q77 Mr Sharma: What are you doing to accelerate the process of registering care providers, including where an existing provider’s registration must be urgently amended following their failure to meet quality standards? What are you doing to speed up the route?
David Behan: As part of the review that we have been carrying out, we have been reviewing our approach to registration so that there is a much more robust and rigorous test of registration at the point when people are being registered with us. It goes back to David Tredinnick’s question earlier about efficiency and we are looking at how we can improve the efficiency of our services by using a much more digital‑based approach to registration. There are two ways: a tougher test; and standardising the approach and making it doable on a digital platform.
Q78 Mr Sharma: You talked about new ones coming on. What is happening to the old ones whose registration is going to be under the new rules to be amended? Are you going to interview them? Are you going to apply the same practice?
David Behan: I want to be clear because I don’t want to answer the wrong question. If somebody is currently registered and they change the way that they are organised—this might be a partnership in a general practice, for instance, or a company that changes ownership and there is a new registered responsible individual or new registered managers—we do need to go through a process, and that process will involve people being seen and interviewed as part of that process.
Mr Sharma: Thank you.
Chair: Thank you. Virendra, I think you were going to ask about home care as well.
Q79 Mr Sharma: How does the CQC carry out regulation of organisations providing care in people’s homes? There is a follow‑up on that. Is the first point clear?
David Behan: Yes.
Mr Sharma: Are CQC inspectors sufficiently skilled to inspect home care services? Could there be a more clearly defined role for carers in the process for regulating care providers, including those who provide care in people’s homes? Is the rate of pay linked with the quality of care?
David Behan: There are four bits to that. How do we inspect domiciliary care? By definition, domiciliary care is delivered in people’s own homes. In hospitals and care homes we can turn up and observe the care that is delivered, but it is not possible to do that in the same way in domiciliary care. We will visit the place—that might be an office or it might be somebody’s home—from where a domiciliary care company is organised and delivered, and we will inspect against the standards that we set against the current regulations. From April next year it will be the fundamental standards, the new regulations, and how far those domiciliary care organisations can demonstrate they are meeting those standards. What we are able to do in observing in residential care and hospitals we cannot do in domiciliary care, so it is often looking at systems and processes, records, documentation and so on.
In terms of the second part of your question as to whether our staff are skilled in this, yes, we have staff who have a background of working in adult social care, and some have worked in domiciliary care, and they have the ability to assess the quality of domiciliary care.
The third bit was about carers: do we listen to what relatives of people receiving domiciliary care say about the quality of care? This plays to Charlotte Leslie’s point about whether we listen to people in the community—people raising complaints. Yes, we do. As part of those domiciliary care inspections, we will let people know that we are carrying out an inspection and we invite comments from people using services and their family members. We survey people as part of that approach.
In relation to the rate of pay, we do not have a formal responsibility in relation to the pay that individuals receive. Is there a link between quality and pay? One of the approaches I have made—there will be a meeting in the new year—is to the Low Pay Commission to look at what common issues we have between the work that we do and the work that they do where they have their responsibilities in relation to issues around low pay.
Q80 Mr Sharma: The question was: is the rate of pay linked to the quality of care? Do you think, in your view, that it has any links when you provide the quality of care?
David Behan: We know that there is huge variability in the quality of care that is delivered. We have flagged in an earlier answer that one of the influences on this is as much whether staff feel they are valued, supported and trained. That, for many staff, can be as important as what they are paid. This is a low‑paid profession—there is no getting away from it—but people choose to work in it and to stay in it. They choose to work in domiciliary care because they value the work, they appreciate the work that they undertake and they prefer to do that—to make a difference—rather than working stacking shelves in a supermarket. A significant number of people choose to be there, but how well supported they are and whether they are trained appropriately also affects whether they will stay in those posts. We know from our State of Care report in residential and domiciliary care that the turnover in adult social care is too great and, when you have high turnover, you get a discontinuity in relationships, not a continuity in relationships. You get people changing who is visiting them, and for many people, if they are confused, that can have a profound effect on issues around trust and the development of those relationships. So there is an important relationship with stability. That stability does not just come from pay; it comes from how well led and how well supported people are. But, undoubtedly, other people have commented on the link between the rate of pay that people get and the work that is undertaken.
Q81 Chair: Can I just follow up that point? Will you be finding out both from staff and employers whether they are paying for travel for time between appointments, because that is pushing many care workers below the minimum wage and some of them feel fearful of raising these issues?
David Behan: We will meet with staff and ask their views as part of our inspection, but we do not have a formal role in what the rate of pay is of any staff.
Q82 Chair: No, but do you ask the question? If you have an employer that is not paying its staff fairly, and possibly below the minimum wage, would you routinely ask staff whether they are being paid for travel time? It has been a very important issue around very low pay in this sector.
David Behan: It is, and I have, personally, huge sympathy with those issues, but we have no power in relation to intervening on the rates of pay of staff. We do have a responsibility about quality and—I think this was Virendra’s question—how that impacts back on the quality and safety of care that is delivered. Where it is responsible, because people are not being supported, for high turnover and that leads to a lack of continuity in care, that is what we are responsible for and can comment on. The Low Pay Commission do have responsibilities around low pay and exactly the issues that you are raising, hence this Committee has challenged us historically about how we work with others such as the GMC and NMC. One of the issues that we will pursue is our relationship with the Low Pay Commission.
Q83 Chair: You do not think it goes to the culture of an organisation if they are actually not doing things like paying staff for time between visits. I am sorry to press the point.
David Behan: Personally, yes, I do. That is why we judge the quality of leadership, and that is why, in answer to Virendra’s question, I referred to leadership and the culture of leadership.
Q84 Chair: Do you think that, as part of assessing the culture of leadership, it is a reasonable question to ask, when you go into a care home and inspect the management, whether they are paying for travel time?
David Behan: The question is, “How well supported are you and how is that support demonstrated? Do you feel that you are supported to do the job that you are being asked to do?”
Q85 Chair: Right. So you do not feel there is a case for actually having a specific issue—
David Prior: Yes, it is something we ought to—
Q86 Chair: You could consider it anyway.
David Prior: We will do.
Mr Sharma: That is the question.
David Behan: The issue is that if we asked and they said, “No, we are paid below the national minimum wage and we are not paid travel time,” I am honestly not sure—this might be my failing—what we can do about that, other than say, “This is not acceptable.” We do not have powers in relation to—
Q87 Chair: I know you do not have powers, but it goes to the heart of whether or not this is an organisation that is failing to support its staff if it is failing to pay the minimum wage.
David Behan: I thought I had said in answer to your question, Chair, that we will raise questions of how well led an organisation is in the way that we do.
Q88 Chair: Thank you, but sometimes you have to ask the question, don’t you, and that was my point?
Can I very quickly touch on something that is the subject of another inquiry that we are doing around public expenditure? It is the issue of how you assess quality and whether or not you feel that there is sufficient comparability between the markers that are used to assess private providers and NHS providers. Could you say to the Committee whether you are using exactly the same markers or whether there are different things that make it difficult to compare different organisations? Are they exactly the same or not?
David Behan: The approach we have taken—yours was a very specific question around money and quality—
Q89 Chair: It was about assessing quality. In other words, if you are going into a private provider that is providing the same services as an NHS provider, are you asking the same questions?
David Behan: Yes.
Chair: In other words—
David Behan: It is absolutely essential that we have a level playing field, and the challenge to us around consistency is exactly that. We ask absolutely the same questions whatever the model of ownership is, whether it is profit, not for profit, and so on.
Q90 Mr Sharma: I will ask a question on the co‑ordination between you and Monitor. The Foundation Trust Network has raised some concerns about overlap and alignment between the CQC and Monitor. Do you feel you are working effectively enough with Monitor to co‑ordinate your work, clarify boundaries and avoid duplication?
David Behan: Yes, I think we are. I meet regularly with the chief executive of Monitor, David Bennett. Mike Richards and the inspection teams liaise regularly with Monitor teams in relation to our inspection of hospitals. Indeed, there were some joint concerns in relation to the Christie hospital in Manchester, and we carried out a joint inspection of that service between Monitor and the CQC. That is an example of us working with Monitor. The Foundation Trust Network’s evidence to the Committee around this duplication is something they have raised with us, with David and myself, and we regularly meet the senior leadership of the Foundation Trust Network and its members to discuss these issues about how we can work effectively together. Again, this is another example of where we have worked productively and constructively with Monitor. There is probably more for us to do if members of the Foundation Trust Network are still not clear. So we will continue to work at that and have those discussions with the Foundation Trust Network and its members.
Q91 Chair: There do not seem to be any further questions, so thank you very much for coming. Our successor Committee will see you next year.
David Behan: Chair, can I add one thing that I should have said in answer to your question to me about log‑ins and records on medical confidentiality? We ask the provider for the records; we do not ask for log‑ins or passwords.
Q92 Chair: That was not my question. Just to be clear, I know you are not asking for log‑ins or passwords, but I am hearing reports that when your inspectors turn up to GP practices, they are asking practice managers or nurses to log in with their own passwords and then they are handing over for the inspector to view the record. There is a point here that, when you inspect somebody’s notes, you should be opening somebody’s notes with your own password, not somebody else’s password.
David Behan: I am sorry; I have absolutely got the point. We will come back to you in relation to that.
Q93 Chair: Could you come back to the Committee on that, because that went to the heart of the concerns that were raised with the Committee and I think in a public forum as well?
David Behan: I did not want to go backwards. I thought I was clarifying something; I am sorry.
Chair: No, but could you come back to us on whether you think it is reasonable for your inspectors to have their own log‑in codes so that it is clearly identifiable who has seen somebody’s record?
David Behan: Let me come back to you, Chair.
Chair: Thank you.
Oral evidence: 2014 accountability hearing with the Care Quality Commission, HC 765
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