I recently wrote an article for the HSJ on how regulation of NHS managers must drive real change by addressing root causes, prioritising patient safety, and ensuring accountability without repeating past failures.
The introduction to the government consultation on the regulation of NHS managers states:
The secretary of state pledges to hold NHS managers accountable, and ban those who commit serious misconduct
Regulation will bring in professional standards and support a culture of transparency
However, any serious consultation on the regulation of managers and leaders in the NHS needs to:
Be clear what the problem is that needs to be solved
Understand what effective leadership looks like in the NHS (and what it doesn’t look like)
Explain why whatever form of regulation is proposed will actually address current shortcomings and better enable more effective NHS management and leadership.
The NHS is awash with past efforts to “hold managers to account”, and the current effort risks repeating past failings. The consultation responses I have seen are full of good intentions and not much else.
The standards leaders set, and whether they are supported and acted on, set the culture of the organisation. But just as the Fit and Proper Persons Regulations have failed to incentivise good behaviours or deter toxic ones, we need standards for managers that actually support managers to do their jobs fairly and effectively, whilst requiring learning and - where necessary - sanctions if behavioural standards are not met.
Neither the consultation itself, nor the institutional responses discuss why the NHS has allowed toxic behaviours to thrive despite a raft of initiatives, action plans, policies and procedures, training, and exhortation. Too many managers are promoted without support or challenge, whilst too many boards go comfort seeking, not problem seeking, and are faced with avoidance, denial, or downright poor behaviours, including within their own ranks.
With ministers demanding financial balance, headcount reduction and waiting list targets, boards will be deciding who they fear more: Sunday night ministerial phone calls or a scandal a few years later? Managers, in turn, may not just be responding to concerns, they may be pressed into creating the concerns in the first place.
Principles a code might adopt should include:
Make safety the prime litmus test for all initiatives and “stop the line” (from board to ward and community setting) when it is not. Do not allow organisational reputation to influence decision making in response to concerns. Be relentlessly “problem sensing” not “comfort seeking”;
Make speaking truth to power a precondition of effective leadership. Make clear that where unsafe or unlawful instructions or expectations are set by their own leadership or manager, that it is a requirement of the code that managers and leaders must challenge and place on the record their concerns without fear of detriment;
Prioritise the duty of care all staff owe. Expect that in line with the duty of care leaders and managers owe to patients, service users and to staff (and themselves) and individuals, families and carers must be enabled and encouraged to challenge unsafe instructions or expectations without fear of detriment. Pay particular attention to those staff and individuals, families and carers who may be especially cautious about the personal consequences of raising concerns – including agency staff, bank staff, contractor staff, probationary staff, junior staff, Black and minority ethnic staff, and staff with a disability;
Expect and support managers (and staff) to always behave respectfully to each other (and to patients) and to relentlessly seek to create a culture of psychological safety, civility and inclusion, not least by leaders and managers modelling the behaviours they should expect of all staff;
Cease performative measures to tackle toxic cultures. Only approve strategies intended to tackle toxic behaviours, which can explain why they have a reasonable likelihood of achieving their stated goal. Use both good practice (and failed practice) to encourage learning (not blame) and emphasise proactive intervention and prevention. All serious incident reviews should be conducted externally (ideally by qualified staff from elsewhere in the NHS) and published;
Employer legal proceedings involving staff who have raised concerns should also be regarded as a “never event” and all costs disclosed. Employers must review at pace (with independent support) all cases of staff who have left or been dismissed after raising concerns with a view to helping them gain NHS employment;
Appointment and appraisal decisions. Emphasise the importance of inclusive and compassionate behaviours, challenging discrimination, willingness to speak to power, demonstrable evidence of effective team working, alongside humility, curiosity and courage at all times in all appointment and appraisal decisions. Boards must hold themselves and staff to account transparently in implementing these principles;
References. Managers must be accurate, fair and objective when writing and providing references;
Openness and transparency. All managers should ensure the adoption of Don Berwick’s (2013) Recommendation seven, which states that “transparency should be complete, timely and unequivocal” such that “all non-personal data on quality and safety, whether assembled by government, organisations, or professional societies, should be shared in a timely fashion with all parties who want it”:
Duty of candour. All managers should have a professional duty of candour to ensure that the existing statutory (organisational) duty of candour is correctly followed in their organisation and be held accountable for this;
Specifically regarding as a breach of the Code “never events” such as:
any attempt to prevent workers (including agency and contractor staff) or patients/service users/relatives from raising reasonably held beliefs about patient safety or worker well-being, or any attempt to cause detriment to any such individual;
where a manager or leader personally engages in discriminatory practice;
where a manager or leader personally engages in a serious act of bullying or harassment or a sustained pattern of less serious bullying or harassment;
where a manager or leader fails to intervene or actively obstructs investigation when staff face discrimination, bullying or harassment;
where a manager or leader issues instructions or sets expectations that might reasonably be regarded as unsafe or unlawful;
where a manager or leader fails to escalate concerns they may have, or have been disclosed to them, about patient or public safety, or the level of care people are receiving in their workplace or any other health and care setting they have a responsibility for.
As recent events at the Nursing and Midwifery Council have demonstrated, the existence of a regulator, never mind one that doesn’t practice what it preaches, is not in itself any assurance of effectively setting standards and contributing to ensuring they are met.
Staff – and managers – may ask how a new code for NHS managers relates to the NHS leadership competencies. They will ask how the Fit and Proper Persons Framework can be made effective alongside such a code. They will ask why the regulation of managers will be effective given that senior leaders who are registered professionals are not obviously subject to any better regulation than those who are general managers.
They will ask, since staff are the most valuable NHS asset, where are the people management standards that embed the powerful evidence that respect, inclusion, psychological safety, and systematic pushback on discrimination all underpin good patient care and staff wellbeing?
Managers will rightly ask whether, after the initial promises of a balance between enforcement of standards on the one hand and support and development on the other, the support and development will vanish under budgetary and workload pressures.
As I have suggested elsewhere, nevertheless, the regulation of NHS managers and leaders may be helpful if it adopts the approach suggested here and avoids the illusion that setting worthy standards without understanding the causes of poor behaviours, or making clear the specific implications for the most common concerns identified by staff about culture, is pointless.
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