Rt Hon Carwyn Jones AM, First Minister of Wales
This was published under the 2011 to 2016 administration of the Welsh Government
On July 14 I published, in full and without redaction, the independent report of Dr Margaret Flynn into cases of neglect and abuse in south east Wales that came to be known by the name of an associated police investigation, Operation Jasmine. Dr Flynn’s report detailed in an exhaustive chronology and analysis the tragedy that befell over a hundred victims and their families.
Members will recall in the plenary session on that day how all sides of the National Assembly for Wales came together to express their sympathy with the families involved, and to commit to working together to avoid any future repeat of these terrible events.
Dr Flynn’s report contained 12 important recommendations. When I made an Oral Statement on the day of the report’s publication I committed to returning to members in this session to update you on the response of the Welsh Government. However, as the majority of the recommendations were towards organisations outside the remit of the Welsh Government I also told members on that day that I had written to the various parties involved asking for their response.
I am able therefore today to set out the response of the Welsh Government to the four recommendations directed to it or the NHS in Wales alongside those from the other relevant bodies. I have published these replies.
Recommendation 1
1. that the residential and nursing care home sector:
(i) becomes a sector of primary national strategic importance for Wales, recognising that low investment in the social care system means higher costs for the National Health Service and affects economic potential by failing to support a modern and trained labour force
(ii) is shaped by explicit policies to regulate and allow intervention in the social care ‘market’ to improve the quality of care by directly addressing issues such as pay and working conditions, staffing levels and the knowledge and expertise of commissioners of publicly funded services
(iii) care home managers are registered and are members of a professional body which sets professional standards, has disciplinary powers and provides them with a voice on national policy and
(iv) develops credible quality indicators to inform strategic planning for health and
social care
The Welsh Government accepts this recommendation.
The Welsh Government agrees with Dr Flynn that the social care sector is of primary national significance. Not just because of the importance it has for the lives of many people, but because of its close synergy with other public services – health obviously but also housing, leisure and the range of public services.
Our Regulation and Inspection of Social Care (Wales) Bill sets out new powers for Welsh Ministers to shape the market in the way that Dr Flynn describes. The Minister for Health and Social Services is also currently researching how issues such as pay and conditions impact on the quality of services in the sector.
I believe the establishment of Social Care Wales through the Regulation and Inspection of Social Care (Wales) Bill will be the powerhouse to deliver Dr Flynn’s recommendation in relation to managers. It will maintain a register of managers, provide them with a clear career development path and offer them a forum to debate and contribute to developing ideas at all levels.
In terms of quality indicators, the Government have set out from the beginning of this Assembly its commitment to put in place effective measurements of the impact services have on people’s lives. The national outcomes framework for people who need care and support under the Social Services and Well-being Act sets out what well-being means for people who need care and support and how we will measure whether well-being is achieved. Many services will support people to achieve well-being, this includes the residential and nursing care home sector. The outcomes framework will provide greater transparency on whether care and support services are improving well-being outcomes for people who need care and support and carers who need support in Wales using consistent and comparable outcome indicators. This will shine a spotlight on what needs to be done to improve people’s well-being rather than focussing on the processes involved in delivering social services.
Recommendation 2
2. that the Welsh Government, in association with Public Health Wales, ensures that:
(i) the significance of deep pressure ulcers is elevated to that of a notifiable condition
(ii) senior clinicians, including Registrars, General Practitioners and Tissue Viability Nurses, assume a lead role in preventing avoidable pressure ulcers and in developing a National Wound Registry, assisted by the Welsh Wound Innovation Centre
(iii) senior clinicians are made responsible for notifying Public Health Wales of deep pressure ulcers and
(iv) where Public Health Wales has been informed of the existence of deep pressure ulcers, a process is identified whereby that information is communicated to the Care and Social Services Inspectorate Wales or the Healthcare Inspectorate Wales and appropriate commissioning authorities as well as to people’s families
The Welsh Government accepts this recommendation.
The Welsh Government will introduce a new monitoring and reporting system to record and publish incidents of avoidable pressure damage in care homes and increase the support available to address failings in the system.
A phased programme of work will be undertaken to introduce a new reporting system so that monthly incidence can be reported; this information will then be published on a public facing website. Public Health Wales will be involved in this development to ensure both its observatory function and service improvement function will be utilised in the new arrangements.
In undertaking this work it is accepted that the European Ulcer Advisory Panel definitions will be used. The new reporting system and wound registry referred to in the recommendations will therefore focus on grade 3, 4 and unstageable ulcers.
Welsh Government accepts that in introducing this new arrangement that it adds impetus to improvements already seen as a result of the Trusted to Care (2014) recommendations in NHS Wales.
Recommendation 3
3. the Protection of Vulnerable Adults (POVA) process:
(i) defines more narrowly and specifically its functions
(ii) strengthens protective outcomes for individuals where there is an allegation or evidence that harm has occurred, by ensuring that either a care assessment or a review of that individual’s care plan is undertaken. The outcome of the process should be specific action rather than simply a determination of, for example, institutional abuse
(iii) ensures that the NHS is accountable for fulfilling its lead responsibility for investigating such major and potentially lethal conditions as deep pressure ulcers in the residential and nursing care sector
The Welsh Government accepts this recommendation.
Through our Social Services and Well-being (Wales) Act 2014 we are delivering a stronger framework to protect vulnerable adults which has been informed through an extensive programme of engagement and co-production with the sector and citizens.
This work will strengthen and improve safeguarding practice, directing health boards and other relevant partners in the exercise of their duty to report adults who are suspected of experiencing or being at risk of abuse or neglect. The conclusion of a safeguarding enquiry must be recorded in an individual’s care and support plan, including what safeguarding and associated action will be taken and by whom to deliver improved outcomes for that individual.
Revised guidance and procedures flowing from implementation of the Act in April 2016, will embed greater accountability and consistent practice by professionals at all levels across health, local authorities and the police to protect vulnerable adults and children. This will secure appropriate and timely responses to concerns that reflect the distinct responsibilities of safeguarding partners, both individually and collectively, to lead and tackle concerns or conditions, including deep pressure ulcers. The learning from such incidents will be utilised to inform improvement within and across organisations as part of an environment of robust, supportive challenge.
Recommendation 4
4. Inquests should be held, notwithstanding the fact that the deaths of Stanley Bradford, Megan Downs, Edith Evans, Ronald Jones, and others known to the Coroner, have already been registered
The Coroner for Gwent, David T Bowen replied to me on 21 August. He had already had meetings with representatives of Operation Jasmine and Health and Safety Executive in order to identify a way forward.
Mr Bowen wrote to me again on the 30 September with an update, saying he was in contact with relevant stakeholders and is now quite clear that a number of the deaths referred to in Dr Flynn’s report occurred outside his jurisdiction. Mr Bowen concludes his update by reassuring me where he does have jurisdiction, and where the law requires, inquests will be held and he is already working to that end.
Recommendation 5
5. Gwent Police provides the families of older people in the six homes included in Operation Jasmine with the information prepared by members of the expert panel and ensures that they are supported during and after this process
Chief Constable of Gwent Police, Jeff Farrar first wrote to me on 15 July acknowledging Dr Flynn’s report and supporting the recommendation for Gwent Police to provide the families with the expert panel information. However, whilst Gwent Police held this information, Mr Farrar would need to discuss the matter with the Health and Safety Executive and the Crown Prosecution Service to ensure that it was legally appropriate to do so as the Health and Safety Executive are now in charge of the prosecution of Dr Das that is currently stayed.
On 25 September I received a second letter saying a meeting had taken place between Gwent Police, the Health and Safety Executive and the Crown Prosecution Service. Mr Farrar goes on to say in light of the pending Coroners Inquests due to be held by Mr David Bowen, HM Coroner for Gwent, the expert witnesses may be called to provide evidence in these hearing and disclosing this information at this stage may be prejudicial to the coroners inquests.
Recommendation 6
6. NHS Wales considers how the responsibility for reporting hospital deaths to the Coroner is undertaken by senior clinicians and considers the need for a legal presumption in favour of reporting the deaths of residential and nursing home residents to the Coroner
This recommendation is directed towards NHS Wales. However, as it relates to the notification of deaths to the coroner the responsibility rests with the Ministry of Justice. I have therefore personally written to the Secretary of State to bring the Flynn Review report to his attention and to ask him for a response to this recommendation, which I will publish in due course alongside the others on our website.
It is important to note however that since 2012 Local Health Boards in Wales have developed and introduced a process of mortality case note reviews of patients who die in acute hospitals. This process is two fold: its provides an opportunity to identify themes and areas for improvement; it also provides assurance to families that the care has been reviewed and if any concerns emerge then it is subject to a more in depth review.. Mortality reviews are currently confined in most areas to hospitals, but the intention is to extend them to cover deaths that occur in the community under the care of GPs. This process is being designed to ensure it will transition to future changes to the death certification process being brought forward by the UK Government, including the introduction of the role of Medical Examiners.
It is important to note however that since 2012 Local Health Boards in Wales have developed and introduced a process of mortality case note reviews which aim to provide assurance when patients die in care, identifying cases where further investigation is required. Mortality reviews are currently confined in most areas to hospitals, but the intention is to extend them to cover deaths that occur in the community under the care of GPs.
As indicated previously, the majority of recommendations within the report do not fall to the Welsh Government or bodies within its powers. However I have written to all of those bodies requesting a response.
For the benefit of members however I have listed the remaining recommendations below, alongside some information on the response from the relevant bodies:
Recommendation 7
7. General Medical Council (GMC):
(i) collaborates with NHS Wales to identify ways in which conflicts of interest can be managed that arise from the admission of patients of General Practitioners and other GMC registrants (hospital consultants, for example) into residential and nursing homes in which such doctors are company directors, or are related to the directors of these homes
(ii) ensures that all General Practitioners and other GMC registrants are informed about what constitutes a conflict of interest and how to manage this in practice. Given that declaring a conflict by itself would have been an inadequate safeguard given the findings of this Review, the GMC may wish to consider the specific example of clinicians owning nursing and care homes
(iii) considers in its review of the Medical Register, the potential for recording information on declared conflicts of interest
Niall Dickson, Chief Executive of the General Medical Council, replied to me on the 24 August.
Mr Dickson stated in that letter that the General Medical Council accepts recommendation 7(i) in full and will collaborate with NHS Wales to identify what further action can be taken. He says that Dr Flynn’s report demonstrates how important it is that doctors are open and honest in declaring any potential conflicts of interest and they must never let such conflicts influence the care or treatment that patients receive.
Recommendation 7(ii) is also accepted, in principle. The General Medical Council will continue to raise doctor’s awareness of our existing guidance on financial and commercial arrangements and conflicts of interest, which is clear that doctors should declare any interests in nursing or care homes, including the interests of people close to them. Mr Dickson tells me GMC will work to develop additional resources, such as case studies, to support doctors in understanding their responsibilities in practice.
In terms of nursing and care home ownership, the General Medical Council will work with Healthcare Inspectorate Wales to explore what further effective steps could be justified, and will also work with Healthcare Inspectorate Wales to explore if there are restrictions they may wish to place.
In response to recommendation 7(iii) Mr Dickson informs me that as part of their current review of the List of Registered Medical Practitioners they are already considering including conflicts of interest on the medical register.
We will be writing to professional bodies and GP local medical committees, drawing to their attention the key messages from the report and reminding them about the management of conflict of interests (including family involvement). All bodies and committees will be asked to take account of the recommendations and strengthen guidance about conflicts of interest as appropriate.
We will also be writing to the GMC and NHS Wales asking them to meet with Welsh Government to identify ways in which these specific conflicts of interest may be eliminated / mitigated / managed in relation to residential and nursing homes in which such doctors are company directors, or are related to the directors of these homes. In addition, we will be working closely with Care and Social Services Inspectorate Wales (CSSIW) , Healthcare Inspectorate Wales (HIW) and Health boards to consider whether any changes to regulatory legislation and / or national standards need to be considered.
Recommendation 8
8. General Medical Council (GMC) and the Nursing and Midwifery Council (NMC) consider the need for continuing reform to ensure that fitness to practise proceedings are conducted as quickly as practicable, while maintaining their primary purpose of protecting the public
With regard to recommendation 8, which is directly aimed at both the General Medical Council and the Nursing and Midwifery Council I can confirm that the General Medical Council accept this in full and have already made a commitment to reform their fitness to practise procedures by changing the way they investigate cases and streamline their adjudication processes.
On the 4 September, I received a response from Jackie Smith, Chief Executive of the Nursing and Midwifery Council, who welcomes the recommendation which reinforces their objective to take swift and fair action to deal with individuals whose integrity or ability to provide safe care is questioned, ensuring public confidence in the quality and standards of care provided by nurses and midwives.
It will also be of interest to members to note that the NMC has now concluded its disciplinary proceedings in relation to these events, and have agreed to meet with the families in the near future.
Recommendation 9
9. Director of Public Prosecutions refers the Operation Jasmine Investigation to the Special Crime and Counter Terrorism Division (formerly known as the Special Crime Division) of the Crown Prosecution Service
On 31 July, I received a letter from Alison Saunders, Director of Public Prosecutions in response to Dr Flynn’s recommendation. Although Ms Saunders welcomes the publication of Dr Flynn’s report which highlights a number of issues for all agencies to consider and address going forward, Ms Saunders also states this case has previously been referred to Special Crime Division (SCD), who looked at the case review notes, and charging decisions and quality assured by an experienced lawyer from the Special Crime Division. Ms Saunders states there is no need to refer the matter again.
Recommendation 10
10. the National Police Chiefs’ Council ensures that the primacy of a police investigation delivers the ability of (a) the Care and Social Services Inspectorate Wales and (b) professional regulators, such as the GMC, the NMC and the Care Council for Wales (CCW) to take forward civil and criminal action; and address concern about alleged fitness to practise within a defined time frame
Recommendation 11
11. the National Police Chiefs’ Council, the Health and Safety Executive, the Care and Social Services Inspectorate Wales and the professional regulators share what has been learned as a result of this Review and collaborate to specify and confirm the components of a framework for undertaking timely team and parallel action in future
I received a response on the 9 September from Chief Constable Sara Thornton Chair of the National Police Chiefs’ Council. She believes that the recommendations have, at their heart, the need for clear and effective collaboration between those who investigate serious wrong-doing in the care sector. By its very nature, any response to these recommendations should be understood and agreed upon by all the named organisations.
For this reason, CC Thornton provided me with one single collective response setting out the progress being made. The collaboration included Neil Craig, Head of Field Operations Wales, Health & Safety Executive, Steve Thomas, Chief Executive, Welsh Local Government Association, David Francis, Deputy Chief Inspector, Care and Social Service Inspectorate Wales, Jackie Smith, Chief Executive, Nursing and Midwifery Council, Niall Dickson, Chief Executive, General Medical Council and Rhian Williams, Chief Executive, Care Council for Wales.
In summary, the Group thought it was worth responding to the question ‘What would be different if the events that gave rise to the Flynn report happened today?’ instead of answering the recommendations directly.
CC Thornton advised me that in the ten years since the start of Operation Jasmine there have be substantial changes to the legislative framework, with significant progress in the development our collaborative frameworks. Those changes have engendered greater understanding of each other’s roles and remits; our relationships enabling collaborative working are much stronger. The group agreed to understand better how to support each others’ work to achieve the right responses and outcomes in both a proactive and timely manner in response to an incident.
Recommendation 12
12. the Law Commission reviews the current legal position in relation to private companies with particular relevance to the corporate governance of the residential and nursing care sector
I have also more recently, had an e-mail from Elaine Lorimer, Chief Executive of the Law Commission, informing me that the Law Commission agrees that the independent report raised very serious issues and that the Law Commission is currently on their Twelfth Programme of Law Reform which was published in 2014. That programme of work does not include a specific project which addresses the recommendation directly. However, the protocol between the Law Commission and the Welsh Government does allow flexibility to respond to pressing issues that emerge outside the cycle of their programme. Ms Lorimer has indicated to me that she would happily discuss further whether this area of law might be appropriate as the subject of a formal reference by Welsh Ministers to the Law Commission under section 3(1)(ea) of the Law Commissions Act 1965.
Conclusion The Welsh Government believes there will continue to be significant learning from this review and the work that Dr Flynn undertook. The Minister for Health and Social Services has written to each of the Welsh six adult safeguarding boards that this Government established in Wales under the Social Services and Well-being Act to consider the report, and to facilitate a wider regional consideration. He has asked them to bring together the thoughts and actions of stakeholders following that consideration by the middle of January. The Welsh Government has suggested regional events to help this process, and we have made available Government money to support them. I am also pleased to say that Dr Margaret Flynn has agreed to attend each of these events.
I will, of course, publish the six reports on the WG website. In this way the lessons from these tragic events will form an ongoing part of the way we care for and support older people across Wales.