National Health Service History
|Professor Sir Ian Kennedy|
Professor Sir Ian Kennedy LL.D is Emeritus Professor of Health Law, Ethics and Policy at University College London, is an academic lawyer who, for the past few decades, has lectured on the ethics of medicine. A long-standing member of the General Medical Council, he is a former president of the Centre of Medical Laws and Ethics, which he founded in 1978. He has been a member of the Medicines Commission and the Department of Health advisory group on AIDS, children's heart surgery at the Bristol Royal Infirmary (1998-2001), a government inquiry (1997) which gave cautious approval to xenotransplantation (the use of animal-to-human transplants) and a committee (1998) that recommended pet passports. He is a member of the Ministry of Defence's Advisory Committee on Medical Countermeasures and Working Party to Review the Code of Practice for the Diagnosis of Brain Stem Death.
Sir Ian Kennedy on the Annual Health Check November 2008
From the Guardian, Wednesday June 25, 2003
For Kennedy, chair of the Bristol inquiry that turned the medical profession upside down, has plans for Chai that reach far beyond the remit of any of the separate organisations it is replacing. Anyone who assumes from the name that this is just the old inspectorate (the commission for health improvement, or Chi) plus a bit of the audit commission, all under one roof, should think again.
Kennedy is on a mission - a quest for social justice and fair and equal treatment for the vulnerable. He is, he clearly believes, Kennedy the people's champion. For all the lucid objectivity of the Bristol report, he was deeply moved by the stories he heard from parents of children who died during heart operations and by the inadequacies in some cases of the way they were treated.
It is hardly surprising that one of the areas he intends to focus on is the welfare and rights of children, as they move through healthcare to social care and the interface with the justice system. "'Rights' is a very important word because very often people talk about the 'needs' of the vulnerable and I want to change the rhetoric," he says. From there, he argues, Chai can learn much about the neglect of others - "those who may have learning disabilities and therefore can't negotiate their way through the system, who are mentally ill and maybe detained or otherwise, the older people who are isolated, ethnic minorities suffering from HIV and Aids.
"Intellectually, it is about equal citizenship, ensuring that the ones who are being disadvantaged or excluded have equal citizenship with everyone else. If the healthcare system is taking account of their needs, then you can bet your bottom dollar it is doing well because, dare I say it, the Guardian-reading liberal chic herbivore can already operate the system. That's where my passion lies, in what Eva Peron called the 'descamisados' - the ones without shirts."
It is worst for the vulnerable, but it is not easy for anyone. "I use the example with colleagues of a French bar where there's a pinball machine," he says. "You pull the lever and this little ball-bearing goes up and bounces as if completely at random. And I say: 'Think of that as patients confronting a healthcare system. They bounce without perhaps always understanding where they are going. Sometimes it isn't terribly comfortable for them. Nor is it comfortable for those who are trying to look after them.'"
As Kennedy will today tell the annual conference in Glasgow of the NHS Confederation, which represents health agencies, Chai will attempt not just to judge how well hospitals and primary care trusts have met pre-ordained standards, but will try to ease the patient's journey - monitoring the care people receive as they ping from one pinball post to another, and catching them before they fall into the gaps between, for instance, hospital and social care.
It can be hard to get a handle on the patient experience, but Kennedy believes there is untapped potential to learn from what is going wrong. Under Chai's broad wing will eventually come the second stage of patient complaints, once local resolution has failed. That, he says, will be "a wonderful opportunity to think creatively" about something that has always been considered by the NHS in the past as a massive burden.
This typifies the Kennedy approach. He is the expert outsider, unshackled by professional ties to the NHS. He is not a doctor, nor a manager, but a lawyer, academic and ethicist (professor of health law, ethics and policy at University College, London). He is prepared to think the unthinkable if it stands up to intense intellectual scrutiny.
"I live in the world of ideas. I've always inhabited the world of ideas," he says. "And if my idea is bad, tell me a better idea and I'll go with that. That's my approach and that's my passion, and I also live in the world of wanting to serve. I've never been in anything for myself. It's not about me; it's not about any personality. It's about Joe Sixpack out there."
Kennedy, 61, is ready to tear up old ways of doing things if he thinks they are inappropriate. He was advised, he says, that he could take over the 100 or so experts who currently deal with second-stage complaints. "I said: 'Who are these experts?', and they said they were clinicians and nurses. I said: 'Do you have 100 people who sit in the pub?'"
Some within the NHS are at a loss to know what to make of him. He was appointed only last December, and Chai is not due to be launched until next spring, yet he has already prompted bemusement, alarm and anger. Three weeks after giving Peter Homa, head of Chi, the job of chief inspector of Chai, Kennedy abruptly sacked him. Homa had been a popular choice among NHS managers and was viewed as a safe pair of hands at the executive tiller of what many thought would be just an expanded inspectorate. That is not what Kennedy has in mind. Chai is not Chi; it is, he says, "a new organisation which has to really address things that haven't been historically addressed".
He is reluctant to talk further about the Homa affair, which he has suggested was about simple incompatibility. But he is aware that criticism has been mounting and he considers it unjustified. "There's a parallel universe in which there's another Chai and another Ian Kennedy. I don't recognise either of those. I've got broad shoulders. I expect to be the object of comment, or even criticism if it's deserved. But I'd like it to be about things I've done, or I'm doing," he says, laughing.
He rejects suggestions that he upset his newly-appointed commissioners by setting up his own advisory board. No, he says, the advisers came first. "I sit there and I think, gosh - there are a lot of problems here: first of all how to set up a new regulatory board of this sort and, second, all the challenges that new Chai will have to take up. I ought to surround myself with some good minds. Indeed, I'd be failing in my duty if I didn't."
So he hand-picked a group to do the intellectual spade work. "The commissioners and I won't all know that that's been tried in Australia and was shown to be a failure - or did I know about the South African initiative on this, or had I read [US health academic] Don Berwick's piece on that?"
The sniping is premature, Kennedy protests. "When you are unfamiliar with a different way of doing things, a military person will feel very unhappy in a commune and a university professor will maybe feel unhappy in an NHS management structure," he says. "But there are different models and mine is a model that I've used throughout my professional life, not without a degree o success. Now, I think I'm entitled to say that I would expect to be judged on what we are doing, rather than on speculation. I think I am entitled to that."
The Act of Parliament that established the Healthcare Commission required us to assess on an annual basis the performance of every NHS organisation, taking account of the standards issued by the Department of Health. Out of this requirement grew the annual health check. In this piece, I want to describe the thinking that led us to the annual health check and the lessons we have learned.
When I was asked to chair the Healthcare Commission, there was barely any tradition of regulation in healthcare, except in the case of professionals. Moreover, the word regulation was not commonly used; we were thought of as being in the inspection business. And inspection was taken to be synonymous with visiting. So, the assumption was that we would create an organisation with a large force of inspectors who would wander the land visiting places and looking for whatever might serve as evidence that the government's standards and targets were, or were not, being met. I had a problem with this line of thinking. Not only is visiting resource intensive and therefore costly, it is also unlikely to provide patients and the public with the level of reassurance that they deserve (despite the popular assumption that it will). For example, the organisation could prepare for the visit, and visits would necessarily be infrequent.
There had to be a better way to enquire into the performance of the NHS that could penetrate the complexities and multiple manifestations of the beast. That better way was to use the one commodity that makes the NHS unique in the world - data. The NHS collects, and has collected for the past 60 years, a huge range of data. So have other bodies interacting with the NHS, such as the Litigation Authority, the Audit Commission, the Royal Colleges, and various patients' groups. All this data could be put together and analysed. Gaps could be identified and filled over time. A picture could be developed of what is going on. Superimposed on that picture could be a model of what good practice should amount to. Variations from the model could be identified and, from those variations, the risk posed to patients and the public by any particular organisation could be revealed.
This was the genesis of what came to be called our "information-led, risk based" system of regulation. It had a number of things going for it. The commission could be a lean organisation - a third the size of other comparable bodies while regulating a much larger sector. It meant the idea of knowing what you are doing, particularly as regards the quality and outcome of care and the experience patients have of it, became an imperative for all NHS organisations (and a novelty for many!). It meant judgements could be based on evidence and that benchmarks of performance could begin to be developed. The notion of benchmarks is important because it suggests that what you are looking for is not some abstract standard of performance, but one that is reasonable in the circumstances, while never being allowed to fall below a given level. The system also allows you to compare like with like, and explore why organisations in similar situations can perform differently. In this way, good practice can be shared and poor practice identified and avoided.
But being information-led is not the same as having a regulatory model based wholly on information. Inspections (or visits) are a crucial part of the system. And they come in two forms. There are the ones triggered by our information - where we think there may be a risk that performance is below where it should be - and there are the unannounced visits, to take the temperature of organisations. This was an idea I borrowed from Terry Leahy, CEO of Tesco, who recommended using "mystery shoppers".
The final part of the jigsaw was the decision to turn the system on its head. The commission was not going to do the first assessment of performance, the boards of trusts were getting that job. This was not decided on lightly. Some feared that self-declaration of performance would be like most forms of self-regulation: self-serving and unreliable. Nor was it introduced because it was a cheaper way of doing regulation. No - boards are legally responsible for the performance of their organisations. This was the best way of holding them to account. Of course, they could try it on, as some feared. And some did in the first year. But then the penny dropped. We had thousands of pieces of data against which to test what they claimed. Significant variations between their accounts and our evidence meant a visit from the commission and an often painful reassessment. The system came to be respected and a new model of regulation began to take shape.
Scope for improvement
If the commission were not being abolished, what developments would I like to have seen? First, it has always been a regret that the standards that we must take account of only partly capture what is important to patients. I would like to see standards focusing on three things - the safety and quality of care, the outcomes of care and the experiences of patients. And all of these would be measured not by reference to processes ("Do you have a system in place?") but by outcomes ("What is actually being delivered?"). And, as I have said, the standards would reflect what patients and the clinicians who look after them think is important in improving health and healthcare. They should be grown organically from the bottom up, rather than stipulated by central government. This is a challenge that the Care Quality Commission now has to take on, so that the things it measures are those that matter to patients and those who care for them.
Second, it would be good to see the annual health check supplemented by an increasing ability to assess performance on a regular basis during the year - a movement from post-hoc annual audit to real-time surveillance of what is happening. We are getting there, but now it will be the task of others. Why is this important? There are at least two reasons. The first is to spot and head off another Bristol or Maidstone and Tunbridge Wells in the making. The second is so the regulator can provide everyone with an up-to-date picture of performance. And, I have no doubt that this is a crucial role of an independent regulator - to report publicly what is being delivered so as to hold those delivering healthcare and public health to account on behalf of those funding the NHS (taxpayers) and those receiving care.
Third, I would like the annual health check and our developing surveillance to enable us to tell the public what they really want to know. They are less interested in whether an organisation receives a score of "excellent" than whether they or a family member will be well looked after by this GP or that unit in this hospital. And increasingly, they want to know whether their care will be managed well as they travel along what is called the pathway of care. Currently, the annual health check does not take us far enough. This is a great regret.
The annual health check could yet provide it. Though our hands were slightly tied by the legislation that established the commission and limited us to assessing the performance of organisations rather than pathways of care, GPs' practices, units and services, we are slowly finding ways around this handicap. Our only real enemy has been time: the time needed to agree on the metrics, draw in the data, analyse it and make the results known.
Working with government
Last, I would have liked the annual health check and the broader role of the regulator to have been embraced more warmly by government. Regulation is a crucial element in the government's strategy to devolve responsibility from Whitehall. The regulator is the public's independent agent in making sure that all is well and, where it is not, that something is being done.
But, given the highly politicised nature of any discussion of the NHS, government both saw the need for the regulator and at the same time felt uncomfortable about it, particularly when it brought bad news. Regulation was sometimes seen as part of the problem rather than part of the solution. Now, of course, those days when regulation was seen as a fetter to progress and innovation have vanished before our eyes as the economy reels, and calls for greater regulation echo through the City. Let us hope the Care Quality Commission will be able to take advantage of this new understanding and cement the role of regulation.
For my part, I have no doubt that the case for information-led, risk-based regulation has been made and that, in one form or another, it is here to stay.