Democratising the NHS: Beyond ‘Whatever the Board Wants’

The Thirlwall Inquiry into events at the Countess of Chester Hospital has begun gathering evidence. Later this year, there will be hearings. And careful work to discover how a neonatal nurse killed under her teammates’ noses, while doctors who urged managers to alert the police were ordered to draw a line, attend mediation, and apologise to the colleague they suspected of murdering.

The inquiry will explore the experiences of parents and has statutory powers to compel witnesses to give evidence under oath. It will examine not only the conduct of the board, managers and the medical workforce at the hospital and the role these played, but also the effectiveness of management, governance, and professional regulators throughout the NHS in keeping babies in hospital safe. It will ask whether the accountability of senior managers should be strengthened and consider how NHS culture may need to change. Once it concludes, will the public be safer?

Unlikely. At least, if history is any guide. Letby is the latest inquiry in a twenty-year string running from the Bristol Royal Infirmary children’s heart surgery scandal to the present. The awfulness uncovered in Mid-Staffordshire in 2013 produced an outcry. It led to an NHS-wide review of culture by Sir Robert Francis KC and the appointment of guardians to encourage speaking up.

Supported by an independent national officer, yet fatally on the payroll of local NHS trusts themselves, the guardians were trumpeted as holding boards to account. But they have ended up disappointing, including it seems, Sir Robert who spoke last year of an NHS where staff must “go on strike to get listened to.” Where the culture is “whatever the board wants.”

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When higher-ups are the block, what remains? A democratic reset seems a surer way to give patients and workforces a voice than top-down programmes reliant on the character of local leaderships. A paper in the Journal of Medical Ethics by Dr Edwin Jesudason – a consultant in rehabilitation medicine in Scotland – offers some thoughts on how that might work.

Taking an axe to the management fiefdoms that control NHS trusts, the author, a former paediatric surgeon and whistleblower, argues that just as patients must give informed consent to medical procedures, where managers’ decisions can harm, the public should be informed of the risks and have the right to say no. Had managers had to publish the unexplained escalation in deaths at the Countess of Chester Hospital, some babies might have been saved. To put power in people’s hands and broaden decision-making, Jesudason recommends upping the representation of frontline staff and patients on NHS boards and placing term limits on executive appointments. Requiring managers to rotate back to the frontline, he argues, would lessen “us and them divides.”

The paper is a response to an NHS disaster. But its ideas have relevance wherever there are power ingroups and outgroups. In the Post Office, higher-ups exploited private prosecutions and legal muscle to pin IT-generated deficits on blameless sub-postmasters. In healthcare, poor leaders fear bad publicity, hide risks and hijack disciplinary processes, meant as public safeguards, to silence whistleblowers.

Once subjected to motivated allegations, whistleblowers face being put through the wringer of an opaque internal process. Simply for surfacing risks as medical ethics demand. In the best case, investigators may decide the allegations were baseless. But even then, the damage “can be lifelong”, as a 2015 report on regulatory referrals and suspensions noted. Alternatively, a doctor or nurse may emerge with their reputation for competence unblemished, yet still face the sack because the employer says relations have collapsed. Should they seek legal recourse, they must convince a judge that their whistleblowing was why they were dismissed and not the reason argued by the publicly funded big-name lawyers fighting the employer’s corner.

Requests for disclosure will meet with stonewalling, extreme redaction or point-blank refusals dressed up as legal privilege. People may discover that email accounts were deleted or meetings unminuted, only for notes to later surface.

They may even, as in Dr Chris Day’s disclosure-fraught legal marathon, be told an executive has destroyed up to 90,000 emails, but the judge considers “a fair trial is possible and there is no substantial risk of injustice”. Win or lose, the individual will emerge psychologically battered, with a sense, of  having “a target on my back”, says the whistleblower Peter Duffy, who was subjected to a two-year investigation by the General Medical Council (GMC), which eventually found there was no case to answer.

Despite promises to “learn lessons” inquiries often lament that again the same mistakes were made. They need not. Rather than chronicling how patients were failed and staff ignored, inquiries should track back to the underlying structures and power relationships that encourage non-consensual leadership and recommend reforms.

Jesudason’s paper offers the Letby inquiry some ideas to work with. These include: “meaningful representation of staff and patients” on boards in place of “placatory consultations.”  Also, beefed-up “local democratic oversight” that is not susceptible to board capture – a criticism that campaigners make of today’s councils of governors. Lastly, legal reform to prevent lawyers acting for public institutions from abusing legal privilege to bury risks that the public would want out in the open.

And there are other reform-minded campaigners with ideas that merit attention. One proposal, with widespread medical backing, including by Doctors Association UK and the British International Doctors Association, and a forward by a former NHS England chair, calls for the statutory establishment of independent elected scrutiny panels to ensure disciplinary proceedings are fair. Composed of senior doctors and nurses elected by the workforce, with non-executives representing the board, the panels would guard against miscarriages of justice, says Dr Arun Baksi, an emeritus consultant physician and co-author.

A democratised NHS would help rebuild trust between managers and the healthcare workforce. It would allow public money thrown at lawyers to be spent on patients. In the same way that the sub-postmasters punctured the Post Office’s narrative once they learned of each other’s stories, the pooling of knowledge that democracy enables would make cover-ups harder.

Democracy cannot guarantee good leadership. But when well administered – with safeguards such as modest term limits – it does require leaders to leave their siloes and hear the issues people are raising. Trinity College Dublin, unusually, has a tradition of electing its university provost, deans, and heads of schools. “It gives people some degree of ownership and a voice in what’s going on within their institution,” reflects Louis Brennan, a professor at the university. “That’s the big plus.”  

Democracy may not cure the NHS’s accountability crisis. But, as a step towards cultural recovery, it seems a better focus for inquiries than simply rehearsing the ways in which the public has been failed.