ON THE FRONTLINE: Challenging Secrecy in the NHS through Research

ON THE FRONTLINE: Challenging Secrecy in the NHS through Research

Mike Sheaff

As the government pushed ahead with its NHS changes during 2011, I was asking questions about an NHS contract that collapsed two years previously. My role as a NHS Non-Executive Director required me to challenge, but my concerns were dismissed as “completely unfounded”. This article describes use of the Freedom of Information Act (FOIA) to disclose information that provided a different perspective. Alongside failures to share significant information between NHS organisations, correct procedures were not always followed. ‘Normalization of deviance’ is a concept used by Diane Vaughan in an account of the 1985 Challenger spaceship disaster to describe a gradual process of adopting unacceptable practices which, in the absence of negative consequences, become the norm. Considerable efforts can be made to conceal this when things go wrong: at one stage in my own research I was threatened with an injunction if I pursued questions with senior NHS officials.

Tony Blair described the Freedom of Information Act as one of his greatest mistakes, reflecting in his memoirs, “You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate.” Instead, research described here suggests its provisions are needed to provide some remedy for the secrecy Richard Crossman described as the “real English disease”.

Secure Healthcare Ltd (SHL) was a social enterprise, established in 2007 with a Department of Health (DH) grant of £113,000. In July it commenced a £5 million contract with Wandsworth Primary Care Trust (PCT) to provide health services at Wandsworth Prison. Some work was sub-contracted to two NHS Trusts. Two years later, SHL collapsed with debts of over £1.5 million. As a NHS Non-Executive Director at the time I asked the former Chair of SHL to comment, who forwarded this request to our Strategic Health Authority (SHA). I wrote to the SHA, and local MP’s, to explain why I believed the episode, “reveals important insights into how decisions have been made at different levels within the NHS . . . from which there are important lessons that we should be prepared to learn.” The SHA forwarded my letter to the Appointments Commission (AC), responsible for appointing NHS Non-Executive Directors, which established a review. The AC report criticised NHS Wandsworth for demonstrating, “poor procedures and many failings in management”, and concluded SHL’s bid team’s inexperience caused them to “let down the company”.

The overall conclusion was that, “The underlying reason for the failure of SHL were typical reasons for business failure and they were addressed by the management of the company as they arose; without success as it turns out.” It adds that processes for determining DH funding were “thorough, independent, open and externally reviewed”, subject to, “due diligence from the outset”. The AC Chief Executive described this report as being, “supported by robust evidence” and “well argued”, and the SHA Chair described the investigation as “very detailed”, “thorough” and “rigorous”. The SHA subsequently wrote to local MP’s describing my concerns as “completely unfounded”.

Unconvinced, I pursued my questions. The SHA appointed a lawyer, who informed me in October 2012, “My Client is satisfied that the concerns you raised have been fully investigated and that they are unfounded.” In December he told me: “You make reference . . . to the concerns you raised regarding Secure Healthcare. As I stated in my email of 2 October, my Client is satisfied that such concerns have been fully investigated and that they are unfounded”.

Getting nowhere, I constructed a more systematic approach to explore the episode from the perspective of different organisations involved. Relatively little use has been made of FOIA in UK social research, and this seemed a potentially useful method to adopt. As each disclosure provided new insight, they might prompt new questions to another organisation. Over time, I made 23 requests to nine public authorities, seeking to piece together a fuller picture of what happened than available in official accounts.

A notable feature was the contribution of NHS organisational boundaries to inhibiting information flows. This is alluded to in an observation contained in a published review of the contract by Wandsworth PCT, that it, “received no indication from other NHS Partners that they were experiencing increasing payment difficulties prior to SHL ceasing to trade.” The scale of these difficulties is not explained, but was revealed in response to FOIA requests to the two NHS Trusts. Just nine months into the contract, SHL’s combined debts to the two organisations amounted to £532,822.75. A year later this had risen to £556,222.00 (over one-tenth of the contract’s total value), and by the time of the organisation’s collapse in September 2009 the debts amounted to £648,565.00. Yet none of this was known to the PCT.

It illustrates what Diane Vaughan calls structural secrecy: “the way that patterns of information, organizational structure, processes and transactions, and the structure of regulatory relations systematically undermine the attempt to know and interpret situations in all organisations.” In introducing an additional organisational layer, within a system already separating commissioner and provider, the SHL contract created further opportunities for communication failure. Correspondence from a government Health Minister indicated that the first reference in DH’s own records to SHL’s debts was on 14 September 2009, two days before its collapse.

Unaware of the debts, the PCT made advance payments to SHL as early as April 2008, when an invoice was submitted for June. In May two more invoices were submitted for July and August. On 21 2008 July SHL informed the PCT, “we do not have sufficient funds to cover our July payroll”. In contravention of procedures, advance payments were made. Decisions could also be made without full information, as apparently occurred when DH made a second grant award of £380,000 in February 2009. This was confirmed the day before SHL’s first set of accounts were audited, and SHL’s chief executive later acknowledged that the project for which it was to be used went ahead, “without a tested business plan”.(1)

The normalisation of deviance emerges within particular organisational settings, in this case DH’s determination to establish a “plural and diverse” market. This commitment was reflected in a somewhat understated comment in one of the disclosed documents, noting, “considerable enthusiasm from DH downwards for a social enterprise model of care” (2). Another document, disclosed by the Cabinet Office, reports the award of a loan of £400,000 to SHL in July 2008, to develop capacity, “to bid for and deliver upcoming prison healthcare contracts”. What is considered acceptable behaviour is shaped by the influence of those in authority on organisational culture.

Following SHL’s collapse, Wandsworth prison’s healthcare services transferred back to the NHS, and Board minutes of the organisation between November 2009 and January 2010 reported: “it was far worse than first expected . . . (Head of prison healthcare) was working on the structure as there had never really been one in place . . . This work was extensive and realistically it could take about a year to turn things around at the prison.” The unfolding of FOIA disclosures caused me to reflect again on the early dismissal of my concerns as “completely unfounded”. Failure to acknowledge mistakes seemed more serious than the mistakes themselves, and some information had simply been kept away from public record.

Notably, there was no attention in official accounts to the scale of DH’s involvement with SHL. My MP had been told by the Health Minister that the grants were, “the limit of the Department’s involvement”, but FOIA disclosures revealed two payments totalling £220,770 made as part of a ‘service level agreement’ between DH and SHL. These included costs of seconding a DH employee to SHL as a “project manager”. However, these figures did not correspond with SHL’s accounts, and I requested an internal review, receiving details of three more payments. These amounted to £2,205, 882.50, with the final payment – of £1,457,882.50 – made twelve days before SHL collapsed.(3)

The role of hierarchy is important for understanding the normalisation of deviance. Although exemptions prevent some disclosures, FOIA offered a valuable method for researching aspects of the contract failure at different organisational levels. I am fortunate having an academic role that offered a route for pursuing legitimate research questions in the public interest when others were closed (see evidence submitted to the House of Commons Health Committee). In April 2013 I was informed by the NHS lawyer that my questions were causing “alarm” to senior NHS officials he represented: “I am in the process of drafting a Protection from Harassment Act letter to you regarding proceedings to seek an injunction against you.” He explained, “You are not an investigator, regulator or statutory body and you have no standing from which to require anyone to co-operate with your lines of enquiry. None of these people are accountable to you.” Perpetuating what Crossman called the disease of secrecy, an FOIA disclosure revealed the lawyer was paid £13,788.50 by the NHS.

References:
Blair, T. (2010) A Journey. Hutchinson.
Vaughan, D. (1996) The Challenger Launch Decision. University of Chicago Press.

  1. Document: Grant confirmation from Department of Health dated 4th February 2009.
  2. Two audit documents prepared for SW London & St George’s NHS Trust on the collapse of Secure Healthcare. Here and here.
  3. Two documents from Department of Health disclosing payments it made to Secure Healthcare. Here and here.

 

Mike Sheaff is an Associate Professor of Sociology at the University of Plymouth. The research described here is discussed in his article, Constructing accounts of organisational failure: Policy, power and concealment’, in Critical Social Policy, December 2016.

15 Comment responses

  1. Avatar
    August 05, 2017

    Thanks for your patient digging and courage. Look forward to reading full account

    Reply

    • Avatar
      August 06, 2017

      Thank you for the supportive comments, best wishes, Mike

      Reply

  2. Avatar
    August 11, 2017

    Superb work. A really nice touch to use an FOI to find out how much the lawyer was paid.
    I was threatened with legal action if I exposed errors in a consultant’s report. The report was crucial in drawing down some millions of pounds for a public organisation. The cost of defending such actions is prohibitive for most private individuals – even if one wins the case one may not recover the full costs.
    Very revealing that Tony Blair regrets introducing a measure that so obviously serves the common weal.

    Reply

    • Avatar
      August 14, 2017

      Thanks for this comment. While there was no basis for the threatened injunction, it was clearly intended to be intimidating. In his preface to the 1997 White Paper,’Your Right to Know’, that preceded the FOIA, Tony Blair had written, “The traditional culture of secrecy will only be broken down by giving people in the UK the legal right to know. This fundamental and vital change in the relationship between government and governed is at the heart of this White Paper.” So quite a change! In 1999, the late Rhodri Morgan urged a quickening of the tempo in passing the legislation, noting presciently that freedom of information tends to be supported by oppositions rather than governments.

      Reply

  3. Avatar
    August 11, 2017

    We need people like you, knowledgable about the system, and with no vested interest other than that of the citizen, to keep persevering. Thank you for our hard work Mike.

    Reply

    • Avatar
      August 14, 2017

      Thanks Julie, that is very kind. I hope to write up something about the experience itself, as I found perseverance can be misrepresented as obsession, and challenge to authority holders as personal malice!

      Reply

  4. Avatar
    August 12, 2017

    As an aside, I think secrecy and tight control of questioning may be becoming the norm at the Dept of Health.

    I needed to find out whether a CCG Governing Body document I’d been looking at was up to date. Google not telling me, I phoned DoH and then discovered I couldn’t be put through directly to anyone who might know. Instead I was to fill in a contact form or to email the ministerial team with my query (an answer – possibly an irrelevant answer – would be sent 18 days later).

    On previous occasions I’ve had cause to ‘phone up other government departments with similarly small requests for urgent information. I didn’t then have any difficulty in having my ‘phone call transferred to someone who could help.

    Reply

    • Avatar
      August 14, 2017

      Interesting. Eventually, I sent a summary of what I found to my MP, who raised this with the Chair of the Public Accounts Committee who asked the National Audit Office to investigate. They found relevant Department of Health records had been destroyed – apparently this normally happens after 6 years unless they are judged of importance!

      Reply

  5. Avatar
    August 13, 2017

    One of the most shocking aspects is them threatening you with a lawsuit for harassment simply for doing your duty as a citizen and trying to hold authority to account, especially for something as important as health care. If this is how DH money was being wasted on one contract, just think how much was being wasted across the whole NHS – then and now! The idea of DH lending money to companies to help them build capacity to make bids – i.e. the DH directly involved in developing the market by developing bidders – is disgusting. It shows that this was an active political project of the DH, acting for the government of the time. They not only diverted resources from where they were needed to fund special projects like this but, by backing cowboy outfits who could not provide care better than the NHS was providing it, actually damaged the quality of health care for the recipients of their market experimentation – in this case prisoners – a group that is not really in a position to complain. If the general public knew that was how public money was being spent they would be appalled. No wonder the NHS is facing financial difficulties – it’s not simply underfunding, it’s the egregious waste of the market based structures that were introduced by New Labour and intensified by subsequent governments. The interesting thing revealed by your article is that it gives a detailed “case study” of how this is clearly not a “free market” in any sense but a cultivated, groomed market with the state playing a central role, rigged in favour of the private sector (all those grants, advance loans, help with capacity development , loans of DH employees as “project managers”, blind eyes being turned, and so on) and against NHS providers who had no such help.

    Reply

    • Avatar
      August 14, 2017

      Many thanks for your comments. One reason I pursued this was that I realised I had a quite rare opportunity to present a case study that had wider relevance. Although it wasn’t easy, meeting more and more resistance deepened my concerns, and a sense of responsibility to continue. In addition to the legal threat, a complaint against me was submitted to my Vice-Chancellor!

      Reply

    • Avatar
      August 14, 2017

      Sadly growing the private sector has been going on a long time. Back in 2003, the Labour Government supported the development of Independent Sector Treatment Centres or ISTCs. There were several, notably one in Trafford that people referred to as the Trafford Centre – not the mega temple to Mammon, but a production line for uncomplicated orthopaedic procedures. A South African company was brought in, and the local PCTs were forced to give it custom. In Wigan where I worked at the time, no patients wanted to go there – it was very inaccessible for those without car, or unable to drive because they had, er, orthopaedic procedures. Everyone in Wigan wanted to go to the much loved Wrightington Hospital, home of the Charnley hip replacement. Patients had to be bribed into going to the Trafford Centre with taxis provided for their visitors, and shorter waiting times. The PCT was forced to give 15% of the orthopaedic budget to the Trafford Centre – no one, the Board, the local clinicians, the patients, wanted this, but it was a DH mandate.

      Reply

  6. Avatar
    August 14, 2017

    Mike,
    Thanks for this. It was a difficult read. It will be doubly difficult for those public readers with little experience or knowledge of the processes going on behind the blue logo. But as campaigners this sort of info is vital. 999 Call for the NHS – a non party grassroots NHS campaign group – recently agreed that our campaign must focus on this form of “behind the scenes” corruption and that it is key (along with the Austerity weapon messaging) to fighting to save the NHS – our aim is see it renationalised not just properly funded or a “preferred provider”. It is an uphill battle right now with none of the mainstream parties really talking about proper change and restoration of a publicly funded, owned, delivered NHS – they are all still stuck in the neo-liberal economics of markets and affordability.
    But we will continue to campaign as we know other campaigners, and indeed the general public, are beginning to feel the corporate undercurrents and see the wider scandalous picture.

    Reply

    • Avatar
      August 14, 2017

      Thanks for this comment Steve. Yes, it is pretty complex, and at times I have had to be careful to keep a focus on the key issues, and there is much that is left out of this account. But I came to the view that my academic role gave me an opportunity, and perhaps obligation, to try to piece together what happened through a long sequence of FOIA requests to different NHS organisations. I was surprised when at one point the Department of Health claimed I was being vexations, and were able to provide the number of times I had raised concerns through my MP, and FOIA requests to different organisations! Best wishes for your campaign.

      Reply

  7. Avatar
    August 17, 2017

    Thank you for showing how shrewd and determined sleuthing can produce results, Mike, and for continuing to expose the culture of ‘normalized deviance’ at the heart of the establishment. We will certainly need that determination if we are to see more transparency and accountability, particularly of Sustainability and Transformation Plans.

    Reply

    • Avatar
      August 18, 2017

      Thanks Joan. As Sustainability & Transformation Plans are not statutory organisations, their executive bodies are not subject to FOIA requests. CCG’s, NHS Trusts and local authorities that form these partnerships are all subject to FOIA, and I found this in one STP Memorandum of Understanding. 7.3 and 7.5.2 raise important issues about accountability:
      “If any Party receives any formal inquiry, complaint, claim or threat of action from a third
      party (including, but not limited to, claims made by a supplier or requests for information
      made under the Freedom of Information Act 2000 (“FOIA”)) in relation to the
      STP, the matter shall be promptly referred to the STP Programme
      Director.
      7.3 The Parties acknowledge and confirm that no action shall be taken in response to any
      inquiry, complaint, claim or action as described in paragraph 7.2 above, to the extent
      that such response would adversely affect the Gloucestershire STP, without the prior
      approval of the STP Delivery Board (led by an independent chair).
      7.4 Each Party acknowledges that the other Parties are public authorities for the purposes of
      FOIA.
      7.5 Each Party may be statutorily required to disclose information about the MoU in
      response to a specific request under FOIA, in which case:
      7.5.1 each Party shall provide the others with all reasonable assistance and cooperation
      to enable them to comply with their obligations under FOIA;
      7.5.2 each Party shall consult the others regarding the possible application of
      exemptions in relation to the information requested; and
      7.5.3 each Party acknowledges that the final decision as to the form or content of the
      response to any request is a matter for the Party to whom the request is
      addressed.
      This last point acknowledges the statutory basis of accountability of the individual organisations, which cannot be delegated to STP’s

      Reply

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