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.
Blair, T. (2010) A Journey. Hutchinson.
Vaughan, D. (1996) The Challenger Launch Decision. University of Chicago Press.
- Document: Grant confirmation from Department of Health dated 4th February 2009.
- Two audit documents prepared for SW London & St George’s NHS Trust on the collapse of Secure Healthcare. Here and here.
- 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.