Lockyer, the GDC and illuminations
The opening weeks of February 2013 were a deeply embarrassing time for healthcare and its regulation in the UK. With people still reeling from the Francis Report on the appalling failings in basic care standards at Mid-Staffs Hospital, someone may have thought that this created another ‘good moment to bury bad news’- in the jargon of the civil service – and a few days later the Professional Standards Authority (formerly CHRE, the over-arching healthcare regulator) duly released its report on the matters raised by Alison Lockyer on her departure from the GDC in May 2011.
In fact, far from burying bad news, it has created the most illuminating juxtaposition of two situations – in one case (Mid-Staffs) where everything was awful, many people were to blame, whistleblowers are championed as the heroes of the hour and the management team are too valuable to sacrifice and must be absolved from any kind of responsibility or accountability. And the other (Wimpole Street) where everything was awful, many people were to blame, whistleblowers are either protected and championed as the heroes of the hour, or hung out to dry (depending on who they are) and the management team are too valuable to sacrifice and must be absolved from any kind of responsibility and accountability.
As far as the darkest corners of the inner workings of the GDC are concerned, the PSA Report has unwittingly extinguished any flickering illusion of fairness, due process and natural justice and exposed a deeply flawed and partisan regulatory environment and an internal culture that nobody in their right mind would have wanted to be a part of. The rate of loss and turnover of key people and staff over quite a short period almost defies belief, but explains a lot.
Alison Lockyer resigned her position as elected GDC Chair in May 2011 after 11½ years of service to the GDC. In doing so, she voiced her view that it would be irresponsible of her not to express her concerns over the events that had led to her decision and the risks and difficulties for the internal operation of the GDC created by the changing relationship between the executive and management team, and the Council members.
In June 2011, the Department of Health asked the (then) Commission for Healthcare Regulatory Excellence (CHRE) to investigate Alison Lockyer’s concerns. GDC members are no longer elected, but instead are appointed by the Appointments Commission, an arms-length body that itself ceased to exist in October 2012 as a result of the reforms to the NHS. The 24-strong General Dental Council comprises 12 lay members, eight dentists and four DCP members, so with Alison Lockyer herself out of the equation, 23 Council members (seven dentists and 16 others) could have helped CHRE (as it was at the time) with their enquiries. In fact it has been revealed that only 15 of the 23 were willing to do so – all but three of the lay members but barely half of the 11 professional (registrant) members.
No information is provided on how many dentists there were within the six registrants who did respond.
So appointed GDC members can apparently, and with impunity, refuse to co-operate with an investigation of huge importance for the governance of the GDC. I find that extraordinary. The GDC would come down like a ton of bricks on any registrant who did the same regarding a Fitness to Practise investigation. The absence of leadership, responsibility and accountability is deeply embarrassing but is now out in the public domain as a matter of record. The outspoken views of only one Council member are separated out and marginalised – continually referring to this person as ‘Council member Z’ as if to demonstrate how far out on left field these views are, relative to the general view which presumably resides nearer to the front of the alphabet. With only 15 respondants and 26 letters of the alphabet to choose from, it really didn’t need to be ‘Z’, did it? There is a separate reference to a second Council member who veers off the party line on one issue – and yes, you have got the idea, this person is referred to as ‘Council Member Y’. This provides the briefest (and only) light relief as the report unfolds.
The CHRE report chronicles much that was wrong with the GDC and its operations over an extended period of time but significantly, all the stickiest mud attaches itself to individuals who are no longer involved at the GDC and it is truly breathtaking to witness to lengths to which CHRE has gone to avoid any material criticism of the present establishment. There would be no place for Mother Teresa in this firmament of perfection. Indeed – just as with the findings of the Francis Report on events at Mid-Staffs – there appear to be unspoken lists of individuals who are fair game, others who are to be ignored and an inner circle of parties who must be protected from any hint of criticism at all costs. Similarly, where two contradictory views or recollections are expressed, there is a self-evident determination to rubbish or sweep aside the views of anyone on the ‘fair game’ list, while accepting without question anything and everything that the protected species have uttered. When this pattern is repeated for 250 pages it is no accident.
This is not a report to read if you are a subscriber to conspiracy theories and/or someone who is likely to over-react when provoked.
The passage of 21 months between Alison Lockyer’s resignation and the immediate raising of her concerns at that time, and the eventual release of the report was very convenient and allows a ‘that was then and this is now’ approach to be taken. It is fair comment and not unreasonable to point out that the GDC has since fixed a lot of the most serious problems that existed in 2009-2011, but a disproportionate number of pages of this report have been committed to this purpose. Alison Locker’s concerns were of course about events up to and including May 2011, but much of the report concerns itself with improvements made since then. Another ill-disguised accident of the timing is that some of the conclusions exactly mirror and support the submission that CHRE itself had already made last year to the Joint Law Commissions Consultation into Healthcare Regulation. (Wow! – how weird is that? And how lucky. Truly serendipitous). In that sense the investigation and the ensuing report has been hijacked for a wider political purpose.
One of the central planks of the Government’s (and CHRE’s) position was that moving away from elected Councils to wholly appointed Councils (as has already happened) does not go nearly far enough. Healthcare regulators must, it is argued, be made wholly independent from the professions that they are regulating. CHRE calls for much smaller, ‘board of directors-like’ councils and – crucially – centrally appointed chairs rather than allowing each Council to elect its own chair from amongst its own ranks, as had happened when Alison Locker was elected as chair. Much is made of this, and of the need to have – and to adhere to – a core competency framework when making such appointments. Having the slightest clue about dentistry is unlikely to feature in the framework, so don’t bother to apply.
The implication is that each healthcare regulator should be run by its executive, policy created by its executive and driven through by its executive and with an externally appointed chair who can be relied upon not to ask questions, to avoid challenging the executive and above all, not to get in the way of full-on regulation at industrial strength. It is not difficult to see that Alison Lockyer would never have fitted that mould. In any event, new rules limiting any member to two terms of office would have forced Alison Lockyer to step down this coming September anyway.
Time and space does not allow anything other than a cursory dip into the detail of this saddening report, which unwittingly discredits healthcare regulation in this country and does it more serious damage than even the GDC in its finest hour has shown itself to be capable of. Which is saying something. If this is the best we can expect from the super-regulator that exists to oversee the performance of all the other healthcare regulators, heaven help us all. The Department of Health could do the decent thing and say publicly that this report is simply not good enough, is too one-sided and compounds all the failings of the GDC. That won’t happen of course because the chair of CHRE (and now, PSA) Harry Cayton – while a very astute, experienced and respected player in healthcare – is also a long-serving DH ‘insider’ having been the architect of the three-band patients charges system that provided the platform for the UDA system that we all know and love. But perhaps I can give you a flavour of the main themes.
Firstly, an institutional attack of selective amnesia that makes David Cameron’s appearance before Leveson look like a masterclass from The Memory Man. Regrets that some key witnesses who were likely to have said something unhelpful or even wounding about the GDC’s inner circle, had vanished from the face of the earth and could not be contacted to provide their crucial evidence, nor compelled to do so. A bizarre requirement for a personal apology to be offered to someone who needed to remained anonymous (yes, I know what you are thinking – that would be difficult wouldn’t it?). This person was perfectly happy to be identified in order to receive that apology in person, but for reasons of GDC internal policy their identity was being witheld for reasons of ‘whistleblower’ protection. A complaints system that had to be invented on the hoof because no such process existed and which then changed arbitrarily and without notice several times along the way. A complaints system in which the only person who never had sight of the actual ‘complaint’ was the person being ‘complained’ about, where the investigator was personally selected by the person bringing the complaint, and where the ‘complaint’ did not even satisfy the GDC’s own definition of a complaint, as published in its own guidance documents for registrants. And even that is not all.
Further revelations include a failure by the GDC to follow the GDC’s own processes for the conduct of meetings and most worryingly, a covert ‘choir practice’ involving executive and senior management together with lay members of Council to choreograph – without the knowledge of any dental or DCP members of Council – a game plan for a key meeting the following day. Some Council members suspected foul play when the pre-appointed chorus line took to the stage at the speed of light at the start of the meeting – but alas they said nothing at the time. Crucial and far-reaching policy decisions that were taken by the executive and not subject to input from Council.
An astonishing propensity for crucial records to go missing or not to have been kept in the first place (including a crucially important debate for which it was decided, without following the standing procedural rules, that no formal record should be kept at all) and the airbrushing of inconvenient or uncomfortable facts out of the story altogether. One staggering example of this was the studied omission of arguably one of the most important facts in the whole saga and one which would shape and colour any reader’s understanding of what really happened to kick things off. Leaving this detail out can only have been a conscious decision by those who wrote this report, and that in itself is symptomatic of the whole thrust of the report and tells us all we need to know about its provenance. A second example was the most vague and dismissive passing reference to legal advice from a QC – which was made available to the Council members at a critical moment – that the GDC was acting in a thoroughly improper and unfair way. It was as if this advice had never even existed, because it was inconvenient and unwelcome. I could go on, but you are possibly getting the picture.
Lost in translation
Those who studied Latin in a former life will not need telling what the title of this column means, nor its relevance to this protracted and distasteful saga. Those who did not may be wondering if it means ‘How would you fancy being hung out to dry?’ It matters not – because that would be a pretty reasonable translation in any language.
It is all very, very messy and unfortunate. But what really matters now is that lessons have been learned. Changing people is not enough if the underlying systems or culture are wrong. Nor is changing the systems and culture enough if the people are wrong. We will see and hear a lot of ‘spinning’ and ‘distancing’ in the weeks ahead, perhaps from some quarters along the lines that the GDC’s actions have been endorsed and vindicated by this report. Had Alison Lockyer gone quietly, said nothing, and got on with her professional life after the GDC, her own duty of confidentiality as a former GDC member would have meant that the profession would have been denied all this information about its own regulatory body. I am sure some parties would have preferred that, but many dentists suffered a lot of unnecessary stress as their cases were bumping their way up to and through the Investigating Committee process when all this was happening, and I think they have a right to know what was going on. The former chair does not emerge without criticism (and nor do many others) but it is greatly to her credit that she knowingly exposed herself to the glare of the spotlight, when it would have been much easier and less embarrassing for her not to do so. We are all the beneficiaries of that decision because trust and confidence can only be rebuilt from a starting point of openness and honesty.
This is a highly embarrassing read for the GDC and there is no getting away from it. One wonders what else might have been revealed, had the Department of Health not limited the scope of the investigation so tightly.
No doubt we will also hear it argued that both The Mid-Staffs and the GDC are now very different places and these things could not possibly happen again today (or tomorrow). You will need to decide for yourselves whether or not you can believe this. I am left wondering if the CHRE report, in leaning so far in one direction, has missed a huge opportunity to reassure us all that this really is the case where the GDC is concerned and might even have created more concerns than ever.