Editor's blog Friday 26 February 2010: Why regulating managers is a redundant idea

So, the Boy Wonder - Health Secretary Andy Burnhoid - thinks that in response to Mid-Staffordshire, the solution will be to set up a regulation system for NHS managers so that they can be struck off and die.

Oh dear.

This isn't just a bit silly; it's totally ridiculous.

The tradition has been that NHS managers get off scot-free for serious incompetence or negligence, it is true. The pay-off with a compromise agreement has been the usual way, often with an unwritten understanding that a new job could be arranged after a suitable period in the wilderness (usually a bit over forty days and forty nights).

Recent exceptions such as the case of former Maidstone and Tunbridge Wells CE Rose Gibb (whose claim for unfair dismissal the trust actually fought - once heavily leant on by ex-Health Secretary Alan 'postie' Johnson to withhold a reduncdancy pay-off), are notable by their novelty - not to say rarity.

Why the free pass?
There are some reasons for the traditional free pass. They are not all good reasons, but they are there.

One is the NHS tradition of doing absolutely nothing about nightmare trusts. There are those 'kamikaze' which churn over chief executives - good, indifferent and bad alike - because the trusts themselves have seriously dysfuntional finances, or clinical teams, or are over too many sites but nobody will close any. You might wonder why the NHS overall does nothing about such places.

You might well wonder that.

Another is a corrolary of the above: that sometimes, it just isn't the individual chief executive's fault in any real, meaningful sense. The NHS is really quite crap at supporting people in nightmare trusts, as David Nicholson admitted in a press briefing at last June's NHS Confederation conference in Liverpool. He then refused to answer my question about the NHS's treatment of Tara Donnelly at West Middlesex or Julian Nettel at Barts and the London, but that's David all over for you.

A third is the NHS's chronic and apparently incurable Candour Aversion Syndrome. If you go after somebody, properly, you have to reveal far too much about the system's dysfunction.

Why regulation won't work
Regulating NHS managers, and the sanction of striking-off, will not work for the following reasons.

1. Regulating properly means external regulation. That costs money. More spending on management costs, anyone? Thought not.

2. NHS management is about 50% science (economics, politics, sociology, evidence et al) and about 50% humanities (interpersonal skills, diplomacy, performance art, cunning, empathy). You can maybe legislate for, list competencies in and regulate the science bits. The humanities bits are pretty much self-directed and culturally-formed or -appropriated. You cannot legislate for wisdom.

3. It is evident that there are going to be mergers and closures as the NHS copes with the deceleration and probable reduction in funding. That means there will be an over-supply of chief executives and the like. Striking people off will not really be the issue.

4. Striking people off the clinical registers doesn't appear to have a strong deterrent effect. It works as well as a prison system with no serious rehabilitation (like ours), which is to say not very well at all. The clinical professions still know who is dangerous and who is unlucky. The rest of us still don't. It will be the same with managers.

Use the existing laws, you idiots
It is unsurprising that a government of so many ex-lawyers has been as keen on legislating as New Labour has been. If all you've got is a hammer, everything looks like a nail.

There is more than enough in the toolbox to deal with genuine crappy performance by a chief executive already. Check out the senior responsible officer clause in the contract of a chief exec. They are liable for everything - and I mean everything - that their organisation does (or now, commissions). It's a lot of responsibility. It's unambiguously clear, too.

More to the point, we do not require new regulation. We have the civil and criminal law. Employers hold the whip hand in UK employment law (although inconveniently, we have adopted the habit of paying CEs enough to afford decent legal advice, following the private sector myth that they are worth big bucks).

The laws to prosecute the incompetent and the wicked are all there. The contractual responsibility is clear. The NHS just has to be prepared to use them - and to accept that dirty laundry will be washed in public.

Who knows? One day, it might even inspire some of the dimwits in Richmond House to start doing some proper spring cleaning.

Elsewhere online of interest today
The Times reports the defection of Professor David Kerr to the Conservatives.

The Independent has a thoughtful piece on NHS use of homeopathy.

The BBC has an alarming signal on cross-border healthcare.

The Independent also has a shocking but unsurprising report on malnutrition in hospitals.