By Bill Morgan and Mike Birtwistle
Those seeking simple answers from the Francis Inquiry were always likely to be disappointed. The inquiry’s purpose, as Robert Francis made clear, was to identify the lessons which could be learnt from a catastrophic and prolonged failure – and the breadth of his recommendations serves only to underline that. Those seeking to find someone to blame were also unlikely to be satisfied: Robert Francis made clear that, “a public inquiry is not a vehicle which is capable of fulfilling this purpose”.
Predictably, however, the desire to see people brought to book has dominated media comment ever since. That is understandable. The desire to seek justice is as old as mankind itself, and the future of David Nicholson – the man who led the regional health authority which oversaw Mid Staffs, and then the NHS – has inevitably been brought into doubt. The question is whether justice is best served by his removal, and how symbolic that removal would be.
Regime change undoubtedly has its attractions. A clean start, combined with a significant gesture of change would create an environment conducive for those who want to do things differently. It would also – after a period of inevitable (further) instability – allow the Board to focus on things other than defending its leader. Importantly, it would give campaigners what they want, perhaps easing some of the pain caused at Stafford. However, the benefits of defenestration are far from straightforward.
There are three key reasons we can see being advanced for David Nicholson’s departure. First, there is the presentational argument. David Nicholson is part of the generation of NHS management associated with a top-down, target-driven system, and the faults of that system have now been brutally exposed. As well as helping to give the bereaved closure over the tragedies for which that system was responsible, his resignation would give large sections of the media what they have vociferously called for, and would enable politicians to show that they had listened and acted.
There are, however, some drawbacks. There is no ‘prince over the water’, untainted by the ways in which the NHS has worked in the past, waiting to institute an entirely new way of managing the NHS. Close NHS-watchers will be able to think of between five and ten credible replacements for David Nicholson – none of them completely immune from the same kind of criticisms levelled at him. ‘Change’ could well lead to more of the same.
Presentational changes also have real-world consequences. Francis was explicit that focusing on blame will serve only “to perpetuate the cycle of defensiveness, concealment, lessons not being identified and further harm” – a declaration echoed by Lord Darzi in his column for The Times. If the Government blamed, then removed, David Nicholson, how might the person elevated into his position as a consequence react when faced with similar evidence of service failure? Would they call external inquirers in or seek to address an issue behind closed doors? The symbolic ‘head on a platter’ approach to failure surely belongs to the era that Nicholson’s critics are so keen to consign to the past. It would be a tragedy if the reaction to Robert Francis’s inquiry ignored this most important of its conclusions.
The second argument for David Nicholson’s departure is that changes need to be made to how the NHS is run, and David Nicholson – associated as he is with the ancien regime – is the wrong person for that job.
There are two sides to this argument. David Nicholson does indeed represent a particular type of management: a style where you are either with him, or against him – and there is a perception that such a style contributed directly to the events of Mid Staffs. Sir David – talking as he did about the ‘Stalinist controls’ he was putting in place in 2010 – is partly responsible for cultivating such an image, and language like that is hardly likely to encourage a middle-ranking would-be whistleblower to come forward.
But there is another side: that he is a successful manager, who – like many others – builds a cadre of loyal people around him who are willing to implement difficult decisions in a system which demands it. That is particularly relevant today, with the final pieces of the NHS’ new structural jigsaw yet to be slotted into place – and with progressively fewer people in the senior ranks of the NHS deemed capable of managing such a change. But it is also relevant tomorrow, because a Francisesque transformation of the NHS depends upon this successful transition.
The third argument is that David Nicholson is accountable for the failure at Mid Staffs, and should – therefore – resign. That argument originates from a misunderstanding about how the NHS works: as the NHS Chief Executive, David Nicholson – the man in charge – was ultimately responsible for Mid Staffs and should therefore be accountable for it.
Only it doesn’t work like this. To those who know the system, the NHS Chief Executive has always been a misnomer. He (for it has always been a he) has never been fully in charge.
The NHS Chief Executive has never been in charge of any of the professional or provider regulators – be they the GMC, the NMC, CHI, CHAI or the CQC – which might have taken action. He has, for a large number of years, not been in charge of many NHS-owned provider organisations. By the time Mid Staffs was uncovered, it was a foundation trust, and David Nicholson had no levers available to him personally to take action. The Francis Inquiry’s vivid account of the exchange of letters on hospital infections between David Nicholson and Bill Moyes – the head of the foundation trust regulator – only serves to underline the fervency with which the independence of NHS foundation trusts from the NHS Chief Executive was defended. The title ‘NHS Chief Executive’ confers the air of absolute accountability, but does not offer absolute power.
David Nicholson’s evidence to the Francis Inquiry points to his own recognition of this gap between perception and reality: he made clear that he would like to have the power to ‘renationalise’ foundation trusts. They were not the words of a man who was shirking his responsibility as the NHS Chief Executive; indeed, he was speaking out against the direction of government policy. They were the words of a man who fully recognised the gap between his title and his authority, and who wanted to make sure that he had power over what he was to be judged responsible for.
The Health and Social Care Act has sought to make sense of the confusion by legislating the position of NHS Chief Executive out of existence. David Nicholson is now – as he arguably predominantly always was – the chief steward of the resources available to the NHS with which it can pay autonomous providers. The Act makes clear that he is not accountable for Mid Staffs, or any of the other foundation trusts, as he never was. Failing foundation trusts – and all other providers – are now the responsibility of other parts of the system.
The parts of the media thundering about the need for David Nicholson to take responsibility are the same parts of the media which have – not without irony – for years called for an NHS which is not run from Whitehall, is not beholden to top-down targets, and which is based on competing providers outside of state control. Holding sometimes inconsistent positions is a luxury available to the press: to those who would have to appoint a successor to the David Nicholson, it is not. Who would take a job where they would be judged for the success of something which is not under their control?
Likewise, the commentators who so supported taking politicians out of the day-to-day running of the NHS are now reliant on those politicians to step in to the day-to-day management of the NHS to realise their aim. The legal reality has, however, moved on. The only people with the legal authority to remove David Nicholson from his post – the directors of the NHS Commissioning Board – are not dependent on the goodwill of the media, and made clear last week that they had no intention of asking for his resignation. That does not preclude politicians from making clear his position is untenable, but having them step in would surely make the position of the NHS Commissioning Board untenable too. The current generation of government ministers would succeed only in destroying the independence of the NHS which they called for before the last General Election, and which they fought a bloody parliamentary campaign to secure.
If those politicians believe in the independence of the NHS, then they must respect the legal authority of the NHS Commissioning Board, which they established, to decide who should be their Chief Executive. Those directors, whose job it is to ensure commissioning results in improved outcomes for patients, have said that they want David Nicholson to stay because they believe he is best able to help them deliver it.
David Nicholson has undoubtedly made mistakes. He will know them better than us, but it is clear that the persona he cultivated is now damaging him. He was associated for too long with being on the wrong side of the false divide: on the side of the ‘system’, rather than on the side of patients. He will need to learn from these mistakes if he is to be able to lead the changes Francis calls for. But his own bosses at the NHS Commissioning Board have tasked him with doing that, and he should be given the chance to do so.