Stinging attack launched on scandal-hit Southern Health over patient failures

151150-728_TAMERINE_09/07/2015

Southern Health, NHS Foundation Trust, Tamerine, Southwick Road, Denmead, Hampshire.  

Picture: Allan Hutchings (151150-728) PPP-150907-202812006
151150-728_TAMERINE_09/07/2015 Southern Health, NHS Foundation Trust, Tamerine, Southwick Road, Denmead, Hampshire. Picture: Allan Hutchings (151150-728) PPP-150907-202812006
Heroin and crack seized by Portsmouth police in Devonshire Square, Southsea. Police posted this image on December 11, 2017

Portsmouth police seize 100 wraps of crack and heroin in Southsea

  • Ex-governor calls on trust’s interim chairman ‘not to repeat the mistakes of the past’
  • It comes amid a wave of controversy over the health authority’s treatment of patients
  • Letter says Southern’s reputation is ‘beyond redemption’
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AN EX-GOVERNOR of the scandal-hit Southern Health NHS Foundation Trust has launched a stinging attack on the beleaguered authority.

Mark Aspinall quit from the organisation little more than two weeks ago following a wake of controversy and a damning review by national health watchdog, the Care Quality Commission, which found Southern had been failing in its duties to patients.

The simple fact is that the trust has been so fixated on circling the wagons that it has failed to appreciate the immense pain and suffering it has caused

Mark Aspinall, ex-governor at Southern Health

Now, he has written an open letter to the trust’s interim chairman, Tim Smart, calling for the authority ‘not to repeat the mistakes of the past’.

It comes just days after Portsmouth MPs criticised Southern for failings in not doing more to help prevent the suicide of Havant man David Hinks, in December last year.

In the letter, seen by The News, Mr Aspinall slams the trust for the way it has dealt with complaints – particularly after the death of Connor Sparrowhawk, 18, who drowned in the bath while under the care of Southern.

‘The simple fact is that the trust has been so fixated on circling the wagons that it has failed to appreciate the immense pain and suffering it has caused,’ he said.

‘The leadership and management of the trust have been found wanting in report after report.

‘CQC and NHSI have consistently told the trust that it is failing.

‘Coronial inquiries have slated the trust. Local authorities and MPs have denigrated the lapses of good governance and leadership; MPs in the Commons have called for people to be sacked.

‘And, worst of all, the opinions of the public, patients and families served by the trust have been damaged – arguably beyond redemption.’

Mr Aspinall explained that the health body’s failings pre-dated the ‘shocking death of Connor Sparrowhawk’, in 2013.

He claimed the earliest failures related to ‘shoddy due-diligence ‘on the takeover of Ridgeway Partnership.

‘Those problems have been compounded, time and again, by the legion of reports, complaints missed chances and constant failure to address weaknesses of provision, environment and – most patently – leadership,’ he added.

Mr Aspinall condemned the way Southern handled failures, branding its actions ‘disturbing’.

He said the health group had been more interested in ‘shoring up its reputation’ than being ‘open, honest and transparent’.

‘Rather than apologising – without caveat or mitigation – for its mistakes, the trust has sought to defend itself,’ he said.

‘It has painted some families as trouble-makers when it should have been embracing those families, prostrating itself before them and begging forgiveness.’

In the letter, he attached a series of resolution he suggested before he left the group.

Addressing Mr Smart directly, Mr Aspinall said: ‘I can only implore you not to perpetuate the mistakes of the past. The trust cannot hope to recover whilst those leading it are seen as part of the problems it faces.

‘You have an opportunity to rescue the trust - please, for the sake of the trust’s patients, their families and the staff, grasp that opportunity to put right what is wrong, apologise for past failures and put the Trust on course for a brighter tomorrow.’

HERE IS THE FULL COPY OF MR ASPINALL’S LETTER:

Dear Mr. Smart

I have chosen to make this an ‘open letter’. It will be published shortly after you receive it. I think that we both respect and value transparency.

You have my sympathy. You have walked into the Trust and straight into a mess that is almost entirely of the Trust’s own making. I had great hopes that you would be able to cut through the mess and find a way through for the Trust, its staff and its patients to find confidence and reassurance once again.

Sadly, I fear that you have been poorly advised thus far. I am going to offer some thoughts and advice to you which, given my new status as an ex-Governor, carry almost no weight at all – not that it is clear they would carry any more were I still a Governor.

By any measure, it has to be easy enough to agree that the Trust has some major problems. These pre-date even the appalling failures that led to the shocking death of Connor Sparrowhawk. The earliest failures appear to have been around shoddy due-diligence on the takeover of the Ridgeway Partnership.

Those problems have been compounded, time and again, by the legion of reports, complaints, missed chances and constant failure to address weaknesses of provision, environment and – most patently – leadership. Add to that the way in which the Trust has behaved towards complainants and families – not least Richard West and Sara Ryan and a disturbing pattern emerges that indicates a malign and discreditable style of management.

The fact that the Trust has expended so much time, energy and money in trying to shore up its reputation rather than being the open, honest and transparent body that the Nolan principles, the NHS Constitution and the House of Lords suggest it should be, adds further unease for those of us who are observing its demise. Rather than apologising – without caveat or mitigation – for its mistakes, the Trust has sought to defend itself. It has painted some families as trouble-makers when it should have been embracing those families, prostrating itself before them and begging forgiveness.

I defended both the Chief Executive and the Board as a whole on several occasions during my brief tenure as a Governor of the Trust. I was prepared to give them time to put right what was patently wrong. I allowed myself to believe – in my naivety – that the Board, as a whole, was committed to setting right the wrongs, apologising for the hurt and preventing a reoccurrence.

It is a matter of profound sadness to me that I was utterly, entirely and totally wrong.

The simple fact is that the Trust has been so fixated on circling the wagons that it has failed to appreciate the immense pain and suffering that it has caused. The leadership and management of the Trust have been found wanting in report after report. CQC and NHSI have consistently told the Trust that it is failing. Coronial inquiries have slated the Trust. Local authorities and MP’s have denigrated the lapses of good governance and leadership. MP’s in the Commons have called for people to be sacked. And, worst of all, the opinions of the public, patients and families served by the Trust have been damaged – arguably beyond redemption.

Yet, still, those who have led the Trust remain in post.

The former Chairman, Mike Petter, was a good man. He genuinely wanted to protect the patients of the Trust and to see the Trust do what was right. Sadly, events overtook him and he came to the conclusion that a change of leadership was needed. If he can realise that, after 8 months in the role, how is it that the rest of the Board cannot see it too – and if they can, why the persistent inertia? They can’t be protecting the Trust’s reputation anymore – that is all but destroyed and the Board need to face the fact that they are the people who led it to the disgraceful mess it is in today.

You understand, as well as anyone, that the Chief Executive of an organisation is the pinnacle, the figurehead and the point to which all roads run. That the same CEO has been allowed to continue in post – and worse, has clung to that post – despite all that has been allowed to fail during her tenure is unconscionable. Katrina Percy should have resigned or been dismissed by the Trust after the first, or at least second, occasion on which the Trust was slated by its regulators. The Mazars report should have been the final nail and have put to rest any doubt on the matter.

I am very much afraid that Katrina, Chris and Lesley, at the very least, have gone from being a troupe of leaders who are holding the troops together, gallantly battling the troubles of the Trust, to being rather more a distraction – the epitome of the troubles rather than the resolution to them.

The Resolutions

I originally drafted a set of resolutions for the 26th April 16 meeting of the Council. I am attaching these for your reference. At that meeting, I stated that any resolution to move no confidence in the Board could have no direct legal effect – because that power is not provided to NHS FT Governors. It would be ultra-vires. What is within the power of the Council is to move a confidence motion that is advisory and intended to prompt action in line with due process.

Peter Bell, following my resignation from the Council, re-drafted and added to those resolutions. I understand your concerns regarding due process. It would be a great shame if the resolutions are discussed and voted upon only to be judicially challenged. I am heartened by your most recent statement that once the meeting is re-convened, it should be in public.

Adjourning the meeting sine die was not the wisest decision you have made. This is made particularly so because you appear to have consulted only one Governor in reaching your conclusion. I can accept that there are grounds to allow Governors to take legal advice. That is sensible. It is unfortunate that both you and the Trust refused to do this earlier – i.e. on 4th May when Peter Bell asked for it. For my part, I can see nothing legally objectionable in the resolutions as drafted. They seek to instruct the Board – in various forms – to do that which the Constitution of the Trust permits them to do. Taking each in turn, I will set out what I see in them and where any amendment might make them more “acceptable”:

RESOLUTION 1: contains nothing at all that is legally objectionable. It would make a statement from the Council to the effect contained therein. It is a statement that is, in my view and that of many others, long overdue.

RESOLUTION 2: I suggest is also not legally contentious. It must be acceptable for the Council to state, publicly, that they have no confidence in the (un-named and not individualised) leadership of the Trust. It is worth remembering that this resolution can have no legal effect as the Council does not have the power to give such effect. It would be purely advisory.

RESOLUTION 3: This is the first of the challenging resolutions. Under clause 29.2 of the Trust Constitution, it is for the Council to approve (by majority of those voting) the appointment of the CEO. The corollary of that must be that the Council – whether differently constituted or not – can, by majority, withdraw that approval. It does not follow that the CEO therefore stands dismissed. That is ultra-vires of the Council. It would, however, be reasonable to expect that on this resolution passing the Board would invoke clause 29.3 of the same Constitution to consider the statement made by the Council in passing it and to investigate, determine and – via due process – give effect to a reasoned and fair decision of the committee formed under 29.3. The key point to remember though, is that the CEO can only be appointed with the approval of the Council of Governors.

RESOLUTION 4 & 5: These should be handled in the same way as that for the CEO, by the same committee, under clause 29.3. That same committee should make appropriate arrangements for an appeal procedure should any party wish to avail themselves of it. None of those involved in making the original decision can be involved in any appeal.

RESOLUTIONS 6 & 7: Non-Executive Directors serve at the pleasure of the Council of Governors. These roles, like all others in the leadership of the Trust are governed by the legally mandated Constitution of the Trust (s.36(1)(b) National Health Service Act 2006). Any person filling those roles knows, or ought to know, that their terms and conditions are subject to the provisions contained in the Constitution of the Trust. That Constitution is clear. By 27.4, those Non-Executives involved are entitled to address and respond to the reasons for their proposed removal – at the meeting of the Council where the resolution to remove them is to be voted upon. If 75% of the whole Council (not just those attending) vote to pass the Resolution, then that Non-Executive stands dismissed. In current circumstances, with 19 Governors, it would require 15 in favour to pass each of Resolution 6 & 7. There is nothing legally objectionable in that process. It is open, it provides those under challenge the opportunity to respond and defend their actions. It is scrupulously fair and, moreover, the Constitution – as I have already demonstrated above – is given statutory and legal effect by the Act.

In all of the circumstances, I think you have been led into error in bringing the adjournment. I am by no means sure that you have the authority under SO 4.14.1 to adjourn sine die. It seems from the express terms of that SO that you may only adjourn where one of the subsequent reasons is met and may only adjourn to a stated time and date – “…shall stand adjourned… to such a time and place that the Chairman shall state”. As I have explained above, I don’t believe that any of the situations outlined in SO 4.14.2-5 actually exists, to whit:

4.14.2 There is no indication in your reasoning that there are Directors or Governors who would be unable to attend.

4.14.3 The meeting hasn’t commenced so there can be no way to judge the conduct of those present and experience tells us that, even with the strong feelings that this issue will evoke, it is unlikely that anyone present will cause so much trouble that it becomes impossible to continue. In any event, you have the power under 4.1.1 to remove from a meeting, any individual who is disrupting proceedings.

4.14.4 I can’t see that this can be made out. Unless you have compelling legal advice to counter what I have said above in relation to each resolution this can’t be sustained. It may be that you would have to reconsider the length of the meeting and the overall agenda for the day but these are administrative matters and can be done easily enough.

4.14.5 Of absolutely no relevance as this would require the consent of the Council at the meeting.

Perhaps it would be sensible to reconsider the adjournment?

Finally, perhaps most importantly, I would advise that the time has come for the Chairman of the Trust to act decisively. It is, of course, right that there should be a fair and open process when the employment of individuals is in question. That is only just. However, it is perfectly acceptable that those under consideration should be removed from their roles in the interim until the decision is made. That is normal practice in almost all disciplinary procedures. I can only counsel you that in your position, I would consider imposing a suspension on those Board members being challenged until such a time as those challenges are resolved.

I can only implore you not to perpetuate the mistakes of the past. The Trust cannot hope to recover whilst those leading it are seen as part of the problems it faces. You have an opportunity to rescue the Trust – please, for the sake of the Trust’s patients, their families and the staff, grasp that opportunity to put right what is wrong, apologise for past failures and put the Trust on course for a brighter tomorrow.

Yours sincerely

Mark Aspinall