A legal review of the ‘whistleblower’ situation has concluded that NHS England has no legal power to direct Foundation Trusts (FTs).

The review followed NHS Chief Executive Sir David Nicholson’s promise that he would intervene if NHS organisations failed to protect whistleblowers.

Like Health Secretary Jeremy Hunt’s promise to sack FT leaders who neglect patient safety, the promise overstated his powers under the Health and Social Care Act.

In February, Nicholson was asked by the Commons Health Committee what he would do about trusts that did not support whistleblowers.

He replied: “Wherever I see it or if I have a whiff of it, I immediately intervene in the organisations themselves to tell them what their responsibilities are.”

However, Nicholson later warned a doctor who had been forced to sign a gagging agreement regarding the treatment of dementia patients in a hospital that he could not intervene.

Lawyers had determined that the Department of Health has no legal authority over FTs, he said.

All NHS trusts have to become FTs by April 2014, and they will then not be subject to any control by NHS England or the Department of Health.

A spokesperson for NHS England commented that Nicholson was able to raise relevant issues with the Care Quality Commission, which can take steps to protect patient safety.

Sir David Nicholson will retire from his role as Chief Executive of NHS England, and from the NHS altogether, in March 2014.

The announcement of his retirement will relieve the pressure on him to resign following the Francis report, which implicated him in the Mid Staffordshire tragedy.

It also means that he will not have to deal with growing anger over revelations that the ‘Nicholson challenge’ of cutting £5bn from the NHS budget each year means an absolute cut in the NHS budget.

A former Communist Party member, Nicholson has been a strong supporter of current Conservative health policy: he began implementing the Health and Social Care Act prior to its approval by Parliament.

However, last autumn he warned that “carpet bombing” the NHS with private sector providers would lead to “misery and failure”. NHS reform needed to support clinical decision-making, he argued.

The Francis report into the unnecessary deaths at Stafford Hospital between 2005 and 2009 found that Nicholson, as head of the region’s SHA, had not acted on warnings about the hospital’s high death rate.

While the Francis report blamed inadequate staffing levels and bad management for the tragedy, Nicholson pinned the blame on the Labour Government’s infection control and waiting time targets.

Nicholson has worked in the NHS for 35 years, and was NHS Chief Executive for almost seven years. In April this year he became Chief Executive of NHS England, a role effectively continuous with his previous one.

In a letter to Professor Malcolm Grant, Chair of NHS England, Nicholson declared his continued support for the NHS reform process: “I still passionately believe in what NHS England intends to do. My hope is that by being clear about my intentions now [I] will give the organisation the opportunity to attract candidates of the very highest calibre so they can appoint someone who will be able to see this essential work through to its completion.”

Nicholson’s retirement will quieten the controversy over his role in the NHS reforms of this and the last government, and allow recognition of his lifelong commitment to the NHS.

The rapid pace of NHS reform means that the pharmaceutical industry needs new strategies for joint working to create and sustain commercial opportunities. Diana Vegh, NHS Partnership Manager at the ABPI, describes how the Association is working to develop a joined-up partnership strategy across the new NHS landscape.

The NHS has been going through one of the largest reorganisations since its inception – Sir David Nicholson famously describing it as “so big, you can see it from space” – and the implications for the pharmaceutical industry, particularly regarding the joint working agenda, are significant. So much so that the ABPI has established an NHS Partnerships Team, led by Kevin Blakemore, with one senior manager covering each of the four NHS England regional offices. The concept has been driven by Stephen Whitehead, our CEO, and was piloted several years ago as the ABPI Outreach Team – which made constructive inroads in the South-West, a challenging health economy to work in.

I am one of those regional managers, ex-NHS and industry, based in Devon, and covering a territory that stretches from Penzance to Margate. The population is 13.4 million, with a budget of £21.1 billion and 110 NHS organisations. There are 1,873 GP practices, 34 local authorities (with three unitaries), four clinical senates, five Academic Health Science Networks, seven Area Teams, three specialised commissioning hubs and 51 CCGs. And it’s a 14-hour return journey from one end to the other. Plus we’re a trade association, with limited resources. With such a large number of potential customers and new organisations, how do we make the best use of our time?

RIGS strike oil

Each of us has produced a regional business plan, aligned to member company priorities, broadly supporting our themes of value and partnership, and clustered around 11 core corporate objectives. These have all been discussed and agreed by our Board of Management, which is made up of member company executives. The most important objective for my team is improving the environment for access and uptake of innovative medicines. We’ve segmented our rapidly evolving customer base and developed stakeholder maps for engagement. But pivotal to helping us navigate this complex structure has been the establishment of our Regional Industry Groups or RIGs, one per region, which meet monthly. General managers of our member companies have nominated senior representatives to sit on these groups, and we are adding associates who will join us virtually, i.e. online, via WebEx and telephone conferencing.

My RIG is chaired by Lisa Rosewarne from MSD, and our deputy Chair is James Steed from Pfizer. We have agreed our Terms of Reference and work plan for 2013, with a series of five workstreams and virtual task and finish groups led by RIG members, focusing on industry-wide issues from medicines optimisation to the Formularies Good Practice Guide. We often have external speakers who may not meet with single companies but are happy to talk to a group – such as Steve Sparks from NICE, who manages the field-based Implementation Team, and who recently gave an excellent presentation at one of our meetings. We also connect our RIG to the national policy work we do, and communicate across the other ABPI teams.

We’ve had a number of ‘bids’ from the NHS and healthcare companies who are interested in working with the pharmaceutical that there is a need for external organisations to understand better what joint working truly means in terms of the ‘Moving Beyond Sponsorship’ work done by the ABPI and the Department of Health in 2010. Our key tool for this has been the Joint Working Guide, and in particular the sections on pages 7 and 8. One of our RIG workstreams is to use these guidelines to engage with potential partners in order to share constructive feedback and highlight examples of best practice that we are collecting from member companies.

We showcased this at a conference with the NHS Confederation in February this year, in London. We have a Memorandum of Understanding with the NHS Confederation and the ABHI to work on the Innovation, Health and Wealth agenda collectively; and this national policy work is essentially what we’re putting into practice in our regions.

Rules of engagement

In my day-to-day job and in my meetings with NHS stakeholders, I work to promote the whole pharmaceutical industry and a more mature working relationship with us. The majority of my discussions have been very positive, with a clear desire to move away from the old models of promotional metrics and explore a new way of working. Some CCGs, such as Torbay and South Devon, are striving to be ahead of the curve. Others are more conservative and prefer to agree a new policy on joint working first, and we’re trying to encourage the use of our toolkit and case studies.

But one thing I’m very clear to emphasise is that my team isn’t ‘the’ route into pharmaceutical companies. If an NHS organisation wishes to work directly with a company, of course it can. We are not competing with market access teams – we are enablers and facilitators – and the ABPI Code of Practice gives the NHS assurances about governance and conduct. But some organisations remain difficult to reach. I’m using good examples of joint working elsewhere in the NHS, or pragmatic discussions in other parts of the organisation, to overcome those barriers.

After all, partnership isn’t about pretending that everything’s fine and there aren’t any problems. But it is about moving to a place where you can agree to disagree, and solve your problems together even if you have differences. . e table above shows the framework I base my work on.

On the whole, projects seem to fall into three categories. The first category is disease specific projects, which often relate to long-term conditions such as COPD, diabetes or vascular health. Some of these can be quite broad, while others can be about specific service redesign projects in a particular health economy and relate to implementing new national guidance. The second category is projects that relate to an NHS priority, such as reducing inequalities, where industry expertise in social marketing and media has been put to excellent use. The final category, and the one expanding most rapidly, is where we have shared aims: improving patient safety, reducing medicines wastage, better adherence, realising the benefits of treatments – i.e. the medicines optimisation agenda.

Moving the goalposts

Those of you with a lot of experience may be reading this with a sceptical eye. Hasn’t this all been done before? Talked about before?

Yes. But this time, there are some key differences. The clinical voice is louder, and often in a leadership position. Attention is far more on quality than in the past, and the sanctions are greater. And while our austere financial climate is squeezing medicines spending, increasingly senior people are seeing that it is disingenuous to look at medicines solely as a cost pressure, and far more beneficial to see them as a means of improving health outcomes – on which the NHS is now being more tightly measured. New organisations also have a legal duty to innovate, which is now in primary legislation as part of the Health and Social Care Act. The new Academic Health Science Networks have been set up as companies, and though many focus on the earlier part of the medicines life cycle they will all be looking for new partnerships.

Pharmaceutical companies are also changing. We’ve gone from Share of Voice to Key Account Management, and the skills and competency mix of pharmaceutical field teams is very different from how it was a few years ago. When I’m out and about I’m meeting people with new roles, such as service development managers, NHS business managers and strategic account managers. And there have been a lot of redundancies in the NHS which have seen knowledge and skills move into the pharmaceutical industry. Today I had an email from a CCG asking me how they could second someone into an ABPI member company.

We are in a ‘perfect storm’ of policy, and the organisational turbulence we’ve all experienced is bringing some very forward-thinking and creative people into senior positions. Let’s make the most of that, and work together to get better outcomes for the populations that we live in and for the organisations that employ us.

The first criminal investigation into a death at Stafford General Hospital has found that a patient with a broken hip died as a result of not being given insulin.

Gillian Astbury, aged 66, died in 2007 in a diabetic coma after a new nursing team failed to read her clinical notes.

The Health and Safety Executive (HSE) is investigating the death as a possible criminal violation of the Health and Safety at Work Act, punishable by a fine.

This is the first criminal investigation arising from the Mid-Staffs tragedy, and the first instance of failure to give medication being considered as a crime.

Ms Astbury was admitted to Stafford General Hospital in 2007 with hip and arm fractures following a fall. Her partner reported finding her left without food or cleaning on several occasions.

The inquest jury concluded: “Nursing facilities were poor, staff levels were too low, training was poor, and record keeping and communications systems were poor and inadequately managed.”

The Francis inquiry said the Mid-Staffordshire NHS Foundation Trust had put “corporate self-interest and cost control ahead of quality and patient safety”.

However, NHS Chief Executive Sir David Nicholson blamed the deaths on the Labour Government’s infection control and waiting time targets, which he said monopolised clinical attention in hospitals.

The HSE commented that it will focus on “establishing whether there is evidence of the employer or individuals failing to comply with their responsibilities under the Health and Safety at Work Act.”

The case could have implications for many situations in which healthcare professionals administer medication.

Sir David Nicholson, Chief Executive of the NHS, could be charged with corporate manslaughter in a private prosecution over Stafford General Hospital.

A member of the public has applied to Camberwell Green Magistrates’ Court for permission to charge Nicholson with corporate manslaughter and misconduct in public office, as well as perverting the course of justice.

Alan Edwards of Greenwich, London, a former investment banker, seeks to convince the court that Nicholson has a prima facie case to answer – i.e. that his guilt is plausible on the known evidence.

Edwards hopes to call on witnesses including members of the Cure the NHS campaign; CQC board member Kay Sheldon and former CQC investigator Heather Wood; and patient groups representing families.

“The regulatory system is just not fit for purpose,” he said. “That is why I am doing this and because there are serious failings across the health system which means things like deaths are covered up.

“We will seek full disclosure of all correspondence with David Nicholson’s office to find out about all of the information he received, what information he had and what he did with that.”

Nicholson has already claimed that the Labour government’s infection control and waiting time targets were responsible for the deaths because they distracted healthcare professionals from care quality.

Legislation allowing prosecution for corporate manslaughter was passed in the UK in 2007.

Private prosecutions for serious crimes are rare in the UK, though precedents exist. It is not clear whether Edwards will be cleared to bring the prosecution.

The Department of Health commented: “We see no basis for this case.”

NHS Chief Executive Sir David Nicholson has told the Health Select Committee he does not intend to resign over the Mid Staffs enquiry.

Nicholson, who led the Mid Staffordshire Foundation Trust for 10 months during the period when neglect and abuse of patients caused over 400 deaths, has blamed the Labour government for the abandonment of care.

With the endorsement of PM David Cameron, Nicholson also claimed he is what the NHS needs to see it through the critical period of reform.

An early day motion signed by 40 MPs has called on Nicholson to resign after the Francis report made it clear that he had failed to intervene in the regime at Stafford General Hospital when Chief Executive of the regional trust.

The Francis report made it clear that the trust’s focus on qualifying for Foundation trust status by slashing budgets and cutting staffing levels was the underlying reason for the Stafford General Hospital tragedy.

However, Nicholson – who started driving through Lansley’s NHS reforms on the ground long before the Health Act became law – avoided saying anything to the Health Select Committee that might lead them to doubt the safety of the reforms.

Instead, he placed the blame for the disaster on two policies that were specific to the Labour government: treatment access targets and infection control targets.

“There were a whole set of changes going on and a whole set of things we were being held accountable for from the centre, which created an environment where the leadership of the NHS lost its focus,” he argued.

Furthermore, he claimed, the NHS “is at maximum risk over the next few days”, when the old structures are dissolved and the new ones become fully operational, and he is the only person able to manage those risks.

Critics may suspect that Nicholson has won Cameron’s support by placing the blame on the Labour government and distracting attention from the threats to patient safety that are intrinsic to the current NHS reforms.

The public enquiry report on preventable deaths at Stafford General Hospital has placed emphasis on improving the ‘transparency’ and regulation of the NHS.

The long-delayed report by Robert Francis QC recommends bringing together economic and care quality regulation.

However, it does not – as had been predicted – recommend that the NHS have the power to take back Foundation Trusts into public ownership.

In addition, it blames the breakdown of care at Stafford Hospital, which caused 400 to 1,200 preventable deaths, on a “systemic” failure rather than calling for leaders to be held responsible.

The Staffordshire-based organisation Cure the NHS said it would continue to campaign for the dismissal of those who “covered up” the scandal, including NHS Chief Executive Sir David Nicholson.

The scandal of poor care at Stafford General Hospital between early 2005 and early 2009 has been called the most serious failure of care standards in NHS history.

The local PCT, the Healthcare Commission and the Royal College of Nursing all denied that anything was seriously wrong. Only local campaigners kept the number of deaths and the suffering of patients in the public eye.

During an extended phase of patient neglect that Francis calls “appalling”, Mid Staffordshire NHS Trust gained Foundation Trust (FT) status.

The first enquiry in 2010, which was internal to the NHS, concluded that a “chronic shortage” of nursing staff caused by the hospital’s drive to meet the financial conditions to become an FT was the main cause of the problems.

It also noted the severe negligence implied by persistent failures to provide “the most basic elements of care” to patients in terms of hygiene, pain relief, feeding and hydration.

The Labour Government twice refused to open a public enquiry into the Mid Staffs scandal, but the Coalition Government did so in 2010.

In May 2011, Nicholson warned that the Francis report would conflict with the direction of NHS reform: it would recommend the unification of Monitor with the Care Quality Commission (CQC), when their roles were being moved further apart; and it would recommend that the NHS take back FTs that failed to maintain care standards, when FT status was being made obligatory.

The 12-month delay in the publication of the Francis report may be linked to these issues – certainly, the recommendation concerning FTs has been dropped. While the joining of Monitor with the CQC is still recommended, it appears unlikely given that Monitor is now concerned only with enforcing competition.

Other recommendations in the Francis report include:

• A “duty of candour” towards patients and the public for all healthcare organisations, including a ban on gagging clauses and a requirement to publish all upheld complaints on the organisation’s website.

• Only registered people may care directly for patients.

• The CQC should develop a team of specialist hospital inspectors.

• GPs should be responsible for monitoring secondary care services received by their patients.

Health Secretary Jeremy Hunt has said that “the crisis in standards of care” is the single greatest problem facing the NHS. However, how the recommendations of the Francis report can be integrated with the market agenda of the NHS reforms – for example, how the “duty of candour” compares with the commercial confidentiality insisted on by independent health providers – remains to be seen.

In the new Pf, Health Secretary Jeremy Hunt answers some questions from our readers. Maxine Vaccine delivers a brief audit report on his answers.

The most vital thing to remember about Jeremy Hunt is that he’s not Andrew Lansley. The older man spent nine years dreaming up a transformation of the NHS into a competitive healthcare market system, then claimed he’d had to invent it out of thin air when, as part of the new coalition government, he “saw the books” (which he’d had full access to for nine years) for the first time. Then he drove through legislation designed to break up the NHS and place its fragments on the bargain shelf of global corporate business, and mocked anyone who questioned it. Forced into a cosmetic display of ‘consultation’, he followed it up by declaring that the ‘listening period’ had been needed only to educate the ignorant doctors.

And suddenly, the Tories are faced with the prospect of losing power. Journalists are calling the Health and Social Care Act ‘Cameron’s poll tax’. Cue the new Department of Health. Exit the sneering headmaster and enter the elegantly half-smiling head boy. Who doesn’t half scrub up well, and – unlike Lansley – can say “the NHS is one of our greatest assets” without crossing his fingers behind his back. Jeremy Hunt was a contributor to Direct Democracy (2005), a Conservative Party activist guide that claimed the NHS was “no longer relevant” to modern society because it was a public sector health system. But he can say “the NHS is one of our greatest assets” because he can say anything. Lansley is a Thatcher type of politician, whereas Hunt is a Blair type.

His answers to the Pf questions are classic examples of why he has been drafted in to front NHS reform up to the next General Election, or at least part-way there. He never says the wrong thing. If he can’t say the right thing, he says nothing in a nice way. He makes you feel that anyone who disagrees with him must be insane. It’s only when you compare his words with what is actually going on that things get complicated – and you realise that, as a new lease-holder in the house that Lansley built, he has only unpacked the suitcases for two rooms: the front room and the bathroom. The rest of the house is unoccupied.

Regular Pf contributor Omar Ali asked Hunt a question about NHS rationing: how will making patients pay for services be integrated into the wider healthcare bill implementation? A good question, as this is already happening: patients in many areas are being told they cannot have cataract operations, varicose vein surgery or hip/knee replacements unless either (a) they wait until their need is greater (for example, they can have cataract surgery once they are blind) or (b) they go private. Referral management, which Sir David Nicholson is very keen on, is another form of rationing: if patients want to see a specialist in many situations, they have to go private. Hunt’s response is worth quoting in full:

Let me be absolutely clear on this – the NHS will always be free at the point of delivery and no one will be asked to pay for its services. Yes, in the future, services will be provided differently – public health services will be organised by local authorities, for example – but the founding principle of those NHS services being free, for those who need it, will never change.

Hunt is neatly splitting the hair of Omar Ali’s question. If people are paying for services they are not NHS services, they are private. But money will still be changing hands for services that used to be free. They just won’t be NHS services any more. And that “for those who need it” is significant. It has two aspects: severity of clinical need (already a moveable famine) and ability to pay (Direct Democracy suggests the NHS should become a means-tested state reimbursement of private healthcare fees). Who needs free healthcare, and what free healthcare they need, will be critical issues from now on – and legally, the Health Secretary now has no remit to influence those decisions, which will be made by autonomous CCGs and/or the autonomous Commissioning Board.

Pf reader Susan Ranch asked whether the Government’s recent announcement that it will cap individual payments for social care at twice the Dilnot-recommended level means that more NHS funding will be committed for elderly patients. Hunt replied: This is incorrect. The Government has not said this and no decision has been made. Strictly speaking, he is right. According to the BBC and three Tory-loyal newspapers (the Sunday Times, the Daily Mail and the Daily Express), journalists were briefed that setting the social care payment cap at £75k (whereas Dilnot had recommended £35k) would feature in the Government’s mid-term review. But it did not – and the critical backlash from social and healthcare experts was either unnecessary or effective, depending on your interpretation. Whatever its level, the cap appears unlikely to be implemented before the 2015 election.

Hunt went on to say: I want this country to become one of the best places in Europe to grow old and make sure people can live independent and healthier lives into old age. Which is the kind of gold-plated soundbite Lansley never delivered.

Another Pf reader, Leigh Saunders, asked how the pharmaceutical industry could work with the NHS to improve cancer survival rates. Hunt replied: The pharmaceutical industry already plays a vital role in improving the health of people with cancer. I want to improve mortality rates, where the targeting and development of medicines is becoming ever more important. I am sure the pharmaceutical industry will want to build on its work in this area and help improve cancer care.

Great stuff: that flatters the industry, expresses a decent medical aim, and then flatters the industry again. It doesn’t answer the question, but who cares?

Jeremy Hunt’s management of the Pf questions is a masterclass in accessible spin. It tells us almost nothing about Government policy, but it tells us why Hunt currently holds the lease on the house of NHS reform. He knows how to make it look good – and in politics, that’s not always easy. The pharma industry should recognise Hunt’s talents as those of marketing and sales. He’s one of us.

Maxine’s views and attitude are not necessarily those of Pf.

Ian Dalton, the Chief Operating Officer and Deputy Chief Executive of the NHS Commissioning Board (NHS CB), will leave the National Health Service for a role at telecommunications giant BT.

The experienced NHS boss has decided to swap the public sector for the private sector after accepting the role as President of Global Health at BT Global Services.

The former Chief Executive of NHS North of England said it had been a “huge privilege” to have worked and contributed to the NHS over a number of years.

“I have been impressed by the NHS Commissioning Board’s passionate focus on the interests of patients and I am confident it will deliver real improvements for the future. For the next period, my focus will be on delivering what I am sure will be a successful transition for the operations directorate of the NHS Commissioning Board.”

Sir David Nicholson, NHS CB Chief Executive, thanked the departing Dalton for his efforts over a number of years. “I would like to take this opportunity to thank Ian for his significant contribution and dedication to the NHS over many years,” he said. “Ian has worked incredibly hard to drive forward better health outcomes for patients. Ian will be missed and I wish Ian all the best in his new role at BT.”

The date of Dalton’s departure from the NHS CB has not yet being specified.

Mr Dalton is the second high profile member of staff to leave the NHS for a role in the public sector. Jim Easton, the former Director of Transition at the NHS Commissioning Board and as the National Director for Improvement and Efficiency at the DH, formally stood down his roles in November to join Care UK, an independent provider of health and social care.

Two new competitions, with £5m of funding, have been launched to help improve standards of end of life care and care for people with mental illnesses.

Businesses can win funding by creating new products or services that drive standards for patients with long-term conditions.

Health Minister Lord Howe (pictured) said that “small businesses play a crucial role in providing creative and innovative solutions to existing problems. That’s why we are supporting them.”

One competition challenges businesses to generate creative ideas and technologies that could see mental health illnesses diagnosed earlier – resulting in better management through a tailored approach.

The other focuses on how new technologies can assist people to have a better experience of end of life care.

Sir David Nicholson, NHS Chief Executive, said the NHS can be “proud of the innovation it has introduced” but it needs to get “smarter at making it easy for others to adopt”. He added that “technologies that can give people a better end of life or improve the management of mental illness could make a real difference to many.”

The competitions are part of the Small Business Research Initiative (SBRI), and will be managed by NHS Midlands and East.