A couple of weeks ago, I wrote how a source close to the Leeds General Infirmary (LGI) heart surgery unit had told me, ahead of the publication of NHS England’s official review into its operation and standards, that the NHS ‘Rapid Response Team’ that conducted the inspection had found the unit to be ‘fully exonerated’.
The official review, when it was published, did indeed state that there were no safety concerns at LGI, but the wording of other parts of the report seemed to be phrased in such as a way as still to cast doubt on the performance of the Leeds unit – or at least to justify the original decision to suspend its surgeries the morning after a judge ruled that the decision to close it as part of the ‘Safe and Sustainable’ review had been illegally reached.
The extent of this ‘padding’, and the way it was phrased, was sufficient to cause a Sky journalist to challenge me on Twitter about the ‘fully exonerated’ claim, even though it was plain, if you read the right parts carefully, that this was exactly what the report had no choice but to conclude.
My original article was based on information provided by someone who had seen the draft inspectors’ report. I’ve now been able to obtain a copy of that draft and it’s substantially different from the final one. I’ve been asked not to reveal the whole thing, but I can reveal both the bald, ‘unpadded’ conclusion of the draft report before it was ‘processed’ by NHS England (NHSE) and some of the ’embellishments’ that were put into the final report for purposes that I think will become clear. I’ve also seen the judge’s official finding given when she rejected the closure decision as unlawful, which is not yet in the public domain, but a little more of that later.
The two conclusions
Here’s what the draft report concludes about LGI’s children’s heart surgery unit:
A number of very positive aspects of practice are present in the service provided by this unit.
No serious concerns have been found in relation to Governance, Staffing, or patient management pathways and the arrangements for referrals to other Units.
In terms of governance, staffing and patient pathway management, the review team found no reason for on-going closure of the Unit.
Now here’s the conclusion as it appears in the final report:
Data Management internally in the Unit and by LTHT for internal audit, routine care, routine morbidity and mortality audit processes was found to be adequate, but there were lapses in data uploading and export to national reporting databases, in particular to CCAD. The team has identified this as an area for improvement, in addition to recommending improvements in complaint handling, the format of multidisciplinary case discussions and the information conveyed in some clinic letters to patients. Whilst the issues identified represented low risk to the safe recommencement of surgery, members of the review team suggest that the amendments to complaints handling, and other methods of assessing patient feedback, should be attended to with some priority in order that the Unit may assure itself of delivering a good patient experience.
However the Review found no evidence that the Unit should not commence surgery again, and therefore recommends to the Risk Summit that this should be considered in a safe and structured way.
The draft report is succinct, to the point and absolutely clear. “No reason for the on-going closure of the Unit” – the only thing I’d query there is the need for ‘on-going’, as it’s clear that the review team found no reason why the unit should have been closed in the first place.
The final report’s conclusion starts with a long paragraph about data handling, calling it merely ‘adequate’ and then talking about the ‘format of multidisciplinary case discussions’ and of letters to patients. It damns LGI by faint praise, saying that these issues represent ‘low risk to the safe recommencement of surgery’, as if the format of meetings and the way letters are phrased represent any risk to safe surgery at all.
Only after this long, somewhat rambling paragraph does the conclusion find a little space to say anything about actual surgery. But even this is phrased in such a way as to leave a vague, lingering sense of unease. “The review found no evidence..recommends [recommencement of surgery] should be considered in a safe, structured way“.
The final report does echo some of the wording of the original conclusion in its ‘summary of findings’:
A number of very positive aspects of practice are present in the service provided by this Unit. The teamwork is strong, inter-professional working appears effective, surgical staffing levels are comparable to other Units, clinical supervision is in place and internal monitoring of morbidity and mortality is functional internally through audit and regular feedback systems.
The nursing workforce presented themselves as a highly committed and professional team with a strong child and family focus. Whilst some recommendations are made to support continuous improvement, no serious concerns were evident during the review regarding the nursing workforce or standard of nursing care, though it must be acknowledged that assurance is limited by the process of the review.
but even this is watered down by the equivocation at the end, which appears nowhere in the original verdict.
The compilers of the final report clearly didn’t dare to omit the wording draft conclusion completely (doing so would be extremely incriminating were it discovered). However, many people will skip to the conclusion rather than reading the whole report, and by writing a completely different conclusion and relegating the original conclusion to the ‘summary of findings’, the final report gives a far less emphatic verdict than the draft report conveys.
Not only that, but the addition of that final sentence to the exonerating paragraph serves to leave some hint of concern or to dilute the impact of very clear findings of the review team.
This effect is made stronger by the addition of further ‘padding’ around the final report’s ‘summary of findings’, by the phrasing of the conclusion – and by at least one outright untruth that appears in the very first paragraph. Let’s look at that.
The first paragraph of the final report states:
This data indicated that LTHT‟s Children‟s Cardiac Surgery Unit had higher mortality rates for 2010-11 and 2011-12 compared to other children‟s cardiac units in England.
This statement is untrue on two counts. The report prepared by NICOR, the unit whose statistics supposedly showed LGI as an ‘outlier’, made this very clear statement:
the analysis does not show a significantly increased mortality rate
But that’s not all. Here is a composite graph I made from the 3 graphs the NICOR report included to show the comparative data among different units for the years 2009-10, 2010-11 and 2011-12. To make the graph easier to read, I’ve removed the plots for other units and left in only the plots for LGI’s 3 years.
As you can see from the graph, the plots for 2009-10 and 2011-12 are so close as to be indistinguishable. So the statement by the NHSE report that 2011-12 does not show a high mortality rate. Here is the chart for that year showing all of the units’ data:
As you can see clearly, LGI’s plot is much lower than 2 units, on a par with another 3, and nowhere near the notional ‘alert’ line.
Making such a misleading and factually untrue statement in the first paragraph, while leaving the statement that there is no cause for concern at the unit looks suspicious to say the least.
As we’ve seen, the conclusion in the final report, which is completely different from the conclusion of the draft, starts with a long paragraph including negative statements about LGI’s handling and submission of its data. This echoes a comment in NICOR’s own report on the mortality statistics:
It was clear to the NICOR Steering Group that there were major deficiencies in the data submitted by Leeds ..
The effectiveness of the data submission process could be considered as a measure of organizational culture and
commitment to quality service delivery.
As I pointed out in an article focusing entirely on NICOR’s report, NICOR is a statistical unit and completely exceeded its brief and its expertise in linking the handling of data with a lack of “commitment to quality service delivery“.
That would be bad enough if the comments about LGI’s data handling were justified, but they appear to be entirely unfounded. Leeds was criticised, in both NHSE’s and NICOR’s reports, for its data submission. However, both of these criticisms ignore one key fact:
Leeds did not have the software to upload its data until 4 April this year, giving it no chance to provide its submission on time or in the right format.
This information was known to NHSE and must also have been known to NICOR, yet the late data submission is used to incriminate LGI – blatantly in the case of NICOR, more subtly by NHSE.
If you think all this doesn’t smell quite right, I’m tempted to agree with you. But if NHSE’s report is starting to look like a combination of stitch-up and backside-covering, that raises the question of why.
As you’ll know if you like watching detective shows, in order for criminal charges to stick, a ‘trifecta’ (to use the US term) has to be in place: means, motive and opportunity. Clearly NHSE (and NICOR) had means and opportunity to muddy the waters around the LGI closure decision, but why would they do so?
The decision to suspend surgery at Leeds the day after the judge’s verdict that the decision to close it had been unlawfully reached raised obvious questions about the suspension decision. To properly judge that, it’s necessary to understand some of the wider context.
The judgment on 27 March was not the first decision by Judge Nicola Davies on the closure decision. An initial judgment was reached on 7 March, about which the ‘Safe and Sustainable’ (SST) committee’s communications team sent out the following statement by email:
On 27th March Hon. Mrs Justice Nicola Davies DBE will inform us of the next steps she requires the NHS to take following her judgment on 7 March. At that hearing the judge upheld Save our Surgery’s judicial review which focussed on a narrow technical point relating to 450 subscores. The judge did not rule that the consultation was unlawful.
The same communications team sent out an email on behalf of Sir Neal McKay, Chair of the Joint Committee of Primary Care Trusts (JCPCT):
“I am very disappointed with the Court’s decision. The pressing need to reform children’s heart services is long overdue and experts have cautioned that further delay in achieving the necessary change would be a major set back in improving outcomes for children with heart disease.The judgment focuses on a single matter of process, but the case for the reconfiguration of children’s heart surgical services remains strong..This case has focused on a narrow technical point relating to whether 450 sub-scores generated by the Kennedy panel should have been available to respondents to consultation..Safe and Sustainable will continue. The NHS is determined to reconfigure services in England for children with congenital heart disease. Patients, families and NHS staff have waited too long for change.
So we have a clear claim from the SST that the judge did not say that its decision had been unlawful, and that her decision had been based purely on a technicality. The NHSE board also states that it plans to press ahead with the reconfiguration and expresses its impatience with the delay.But what did the judge have to say about the matter on the 27th, the day before NHSE suspended surgery? Because of confidentiality commitments I made in order to access the full findings, I can’t quote properly from the judgment until it’s officially made public. However, I can tell you that, in the most categorical terms possible within the strict legal framework and language of a judicial finding, Justice Nicola Davies slaps down the SST.
The wording of the finding indicates that the judge wishes to avoid any doubt or misunderstanding about her original finding and to underline that it was not based on any ‘narrow technicality’ but rather on a question of ‘fundamental fairness’. To be even more clear, she calls the SST decision to close the Leeds unit “unfair” and “unlawful.
A few hours after Judge Davies’ decision, Sir Roger Boyle (Chair of NICOR until his recent resignation over unprofessional and misleading comments to the press about Leeds) was interviewed by ITV programme Calendar News. Here are some excerpts from that interview:
The final outcome may not be any different in terms of how the services are configured.
There is a high-level determination now to carry on implementing this programme.
The NHS is now deciding quite how we need to recoup this position and to give ourselves the face validity to go forward with an implementation programme.
To be frank, I think we will end up with the same solution as has been recommended, but I’m pre-empting a lot of further decision-making and the review carried out by the Independent Reconfiguration Panel as well. But my belief is that that is what should happen.
The very next morning, the suspension decision was announced.
To boil all this down into the simplest terms, it appears that the sequence of events was:
- 7 March: Judge rules the closure decision unlawful and unfair.
- Just after 7 March: SST and Sir Neal McKay dismiss the judge’s decision as being based on a ‘narrow technicality’ and says it intends to press ahead anyway.
- 27 March: Judge slaps down the SST and makes it absolutely clear that in no way was this dismissal justified; she then affirms her judgment that the closure decision was fundamentally unfair and unlawful.
- 27 March evening: Sir Roger Boyle tells Calendar News viewers that the ‘high-level determination’ to press ahead means that he expects the outcome to be exactly the same, regardless of the judge’s ruling.
- 28 March: the very next day, NHSE announces the suspension of surgery because of ‘safety concerns’ and worries about how referrals have been handled.
- April: the ‘Review Team’ commissioned to investigate the concerns finds no evidence to support them, and no evidence to support suspension of surgery.
- 8 April: NICOR publishes its report into the statistics that supposedly gave rise to the safety concerns. Although it has to acknowledge that there has been no statistically significant evidence of higher death rates at Leeds, the report still misleadingly implies that there is cause for concern, and exceeds its brief by stating that the late submission of Leeds’ data equates to a lack of commitment to service excellence – which it has no way of knowing, and which turns out to be completely false. Leeds did not have the necessary software to submit its data, and this was known to both NICOR and NHSE.
- 9 April: the official, final NHSE report includes the ‘no evidence’ finding, but structures its report in such a way as to make the emphatic nature of the Review Team’s findings less clear and to leave an impression that the LGI unit still wasn’t running quite as it should. Not only this, but it states that Leeds had a higher death rate than other units in 2011-12 when NICOR’s graphs show that it did not.
The evidence appears to paint a clear picture of a team that:
- for whatever reasons, was determined to see LGI’s children’s heart surgery unit close
- found a ruling by a High Court judge to be an annoying inconvenience that it considered a ‘mere technicality’
- was put in its place by the judge but remained determined to see its plan through one way or another
- then found its motivations and actions under unwelcome scrutiny
The wording of the final report compared to the concise conclusions of the draft report suggests an attempt by one or more parties in a position to influence the structure of the final report to extricate themselves from an incriminating situation while saving as much face as possible.
Who that person or persons is/are is not something I can say with the evidence that I currently have. However, the concern must remain that the phrasing of the final report is intended to do more than merely cover someone’s behind, and that it may be intended to leave enough of a smear on LGI in the public consciousness to allow the closure plan still to be forced through, whenever the moment becomes opportune.
However, an objective reading of the facts really leaves no doubt that Leeds has indeed been ‘fully exonerated’ and that the move to suspend its surgeries was not motivated only – or perhaps even at all – by a concern for patient safety as has been claimed.
I have grave doubts about any supposed benefit deriving from the closure of any of the existing paediatric heart surgery units, but whether the ‘Safe and Sustainable’ programme goes ahead or not, for the sake of a fair, transparent outcome it’s absolutely essential that the reality surrounding the suspension decision permeate thoroughly into the public awareness.
So please spread the word.