Mid Staffs Hospital, the Francis

Report and the Crisis of Public

Sector Trade Unionism

Bob Carter University of Leicester and

Roger Kline Middlesex University

1

Mid Staffs Hospital, the Francis Report and the Crisis of

Public Sector Trade Unionism

It is almost 20 years since the TUC, in response to

falling trade union membership, launched its New Unionism

strategy that, as well as supporting a partnership

approach with ‘good’ employers, announced the

introduction of the organizing model to contemporary

British trade unionism (Heery 1998). The atrophy of the

British trade union movement continued regardless, with

fewer absolute numbers and an even greater reduction in

the density of trade unions to 26 per cent by 2011, down

from 32 percent in 1995 (Brownlie 2012). Further cuts in

public expenditure pose an acute threat to the future of

British trade unionism if for no other reason than the

public sector encompassed over 62 per cent of union

members (ibid). Trade union density in the public sector

in 2011 stood at 56.5 per cent, compared to 14.1 in the

private sector. The immediate fortunes of the movement

appear therefore to rest on the resilience of this

sector. However, the relatively high density should not

be allowed to mask falling membership numbers in the

public sector: from 4.11 million in 2009 to 3.88 million

in 2011, with a loss of 186,000 members in 2010-11.

Moreover, despite the relatively high density and

coverage of trade unions in the public sector there is

increasing evidence that these factors mask a growing

weakness. Behind the figures public sector unions are

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not well-organised and have effectively been hollowed

out. Of course this process is likely to be uneven

(Simms et al. 2013) as the contexts in which they operate

(such as concentrations of employment, extent of

occupational identities and disruptive capacities) and

their leaderships differ markedly. Nevertheless, even

where conditions are relatively favourable as in core

government employment, Fisher (2005: 159) maintained that

the experiences of Public and Commercial Services (PCS)

demonstrated a crisis in public sector trade unionism, a

key component of which was ‘an as a yet too uncritical

understanding of the significance and future potential

for the degradation and devaluation of work presented by

those new elemental forms of the white-collar labour

process embodied in call centre work’. A similar argument

has been made in respect of the introduction of Lean

techniques to HM Revenue and Customs, where PCS actively

promoted national union action for increased wages,

against pension changes and against changes in redundancy

compensation, but effectively undermined action against

the degradation of work associated with Lean

reorganization of the labour process (Carter et al.

2012). Elsewhere, teaching unions accepted many of the

elements of workforce remodeling that promised short-term

benefits while weakening their autonomy and control

(Carter and Stevenson 2012). With few exceptions (see

Darlington on the Rail, Maritime and Transport union

2009), organisation for control of the production process

3

– how people do things, as opposed to what they get paid

for doing them – appears to present trade unions as

institutions grave difficulties.

The object of this paper is to further illustrate this

observation through an analysis of the responses of

unions to workplace changes and the deterioration of care

at Mid Staffordsire hospital. Evidence to the Francis

Inquiry (2010-12) will be used to demonstrate that the

Royal College of Nursing (RCN) and UNISON had no strategy

for integrating issues of professional standards with

trade union demands. As a result they effectively

allowed their members to suffer understaffing and work

intensification, without engaging with the question of

poor healthcare provision. A consequence was that

patients and relatives (in the form of Cure the NHS) came

to view health service unions as narrowly self-interested

and complicit in excess deaths highlighted by official

reports. Rather than being seen as part of the coalition

for better healthcare, unions came to be seen as part of

the problem.

Public Sector unionism

Public sector trade unionism has become the object of

increasing attention in work on British industrial

relations. Critics of the Donovan Commission’s (1968)

report on employment relations complained that it centred

too much on the private sector and particularly the

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engineering industry, reflecting political concern with

unofficial strikes in heavily unionized parts of

manufacturing industry (Fox and Flanders 1969). In the

intervening period, concern has largely migrated to the

public sector. Although the number of strikes are shared

almost equally between public and private sectors, in

2010 over 80 percent of all days lost were in the former,

a reflection of larger numbers of participants (Office

for National Statistics 2012). Higher trade union

density and propensity to strike, accounts for academic

interest that has been particularly strong from those who

see in the relative fortune of public sector unions the

continued importance of their role in society. Thus

Darlington (2010: 129) contends that there is:

‘important, albeit often neglected, evidence of

continuing resilience and even combativity in certain

areas of employment, notably within the public sector’.

Following on from Fairbrother’s earlier works (1994;

1996), Fairbrother et al. (2012) go further to suggest,

through studies of benefits agencies in the UK and

Australia, that the changing organization of the state

sector provides a dynamic for structural change in public

sector trade unions that in turn presages union renewal.

Examining the management processes associated with New

Public Management (NPM), and the consequent enhancement

and devolution of management power, Fairbrother et al.

assert that attempts to marginalize trade unions ‘appear

5

to have provided the impetus for union renewal and

revitalisation’(2012:5). Their judgement of the extent

of renewal in the Civil Service is ambiguous and

qualified, but, whatever the qualifications, the

contention is that renewal is an actually occurring

process, there being a ‘long-term trajectory towards more

participative forms of representation, accountable

leaderships and an activist approach to both managerial

initiatives and government policy’ (2012: 210).

Moreover, much of the discussion is generalized to

suggest that renewal claims have wider authority across

the entire public sector. Not only is there an

assumption of a single ‘public sector labour process’,

but the work is also international and comparative

further indicating its generalisability. Other

narratives describing developments in public sector over

a long period made no link to any successful process of

union renewal (see, for instance, Colling 1985 for local

government unionism; Carter 2004 and Carter et a. 2010

for teacher unionism; Carter et al. 2012 for Civil

Service unionism). More pertinently here, there are a

number of studies centring on the National Health Service

unionism that give little cause for trade union optimism.

Conservative governments before 1997 implemented some

common features of NPM in hospitals (fragmentation

through establishing Trust hospitals, centralization

through target setting, privatization and marketisation).

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These policies did not appear to establish any successful

move towards union renewal. Lloyd (1997: 429) reviewing

the prospects for NHS workplace unionism contended that:

The evidence of “renewal” in these studies is

relatively limited, and they can be criticized

for providing an overly optimistic interpretation

of local responses to more assertive, or even

just new, managerial initiatives . . . Union

renewal appears to be equated with more

participation and activity rather than with

greater union strength or improved outcomes’.

While the central tenets of NPM continued under the

following Labour governments, there was the additional

promotion of social partnership with trade unions with

structures established at national, regional and at local

levels to ensure that union representatives had adequate

time and support to participate in the implementation of

the Agenda for Change (Department of Health, 2004). The

less hostile government stance towards unions made it no

less difficult to promote strong local union

organization. Bach’s (2004) study of employee

participation and union voice focused on nursing and

ancillary staff in three contrasting Trusts. What

emerged from were common issues of union powerless and

demoralization. In response to staff shortages, for

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instances, one ward sister stated: ‘Talked to lots of

people in the trust, but nothing changes; I don’t feel

that anything can change. I would like to provide a

quality service, but can’t do that’ (2004: 8). At one

trust there were signs that good relations with

management were threatened by the exclusion of union

representatives from various groups a practice that ‘did

not support the principle of partnership working’ (ibid.:

12). Even where density was as high as 60 per cent,

members ‘were relatively passive and their reluctance to

take on representative roles encouraged little turnover

among a handful of long-serving staff-side members

(ibid.: 14) with the latter’s functioning restricted by

increased workloads and staff shortages. Bach’s general

conclusion was that there is ‘a widespread staff

perception that they have little control over what

happens at their workplace and that their voice is not

heard’ (ibid.:18).

Evidence would seem to suggest that, notwithstanding

UNISON’s self-declared status as an organizing union,

union vibrancy at the workplace was absent and its

influence low. Nowhere was it weaker than over issues of

job control and the labour process, and lack of

influence, and indeed concern, over these areas

inevitably distances members from their organizations.

Bryson et al (1995: 132) noted:

8

Reprofiling the workforce, for example by

blurring professional demarcations attacks the

power of the professional organization at its

heart, i.e. by shifting control from health

professional to manager about how a job is done

and what skills are required to do it.

Since that conclusion employer strategies have remained

constant with Upchurch et al (2008: 111) detailing how

social partnership has aided the further detachment of

unions from opposition to organisational and labour

process changes:

Management hostility or support could constrain

union renewal opportunities, the latter by

incorporating union representatives in the

management of workplace change that employees

experienced as increased surveillance and

exhortation to achieve performance targets.

Little wonder then that in their survey ‘Only a fifth (21

per cent) of surveyed employees and a quarter (24 per

cent) of those who were union members agreed or strongly

agreed that ‘unions make a difference to what it is like

to work here’. (2008: 129). The ‘what it is like to work

here’ and particularly the impact of changes on

professional practice are frequently not integrated into

9

industrial relations studies of hospitals. Conversely,

while studies such as Cooke’s (2006) report that nurses

saw work intensification as the main factor affecting

standards of nursing care, there is no consideration of

how trade unions might address these issues. It is not

enough for unions to keep restating that they need an

effective voice: they need to develop strategies to make

themselves heard and the profession/duty of care agenda

provides an opportunity.

Methodology

This article focuses on the failure of unions to

integrate professional issues of patient care and trade

union practices and the consequences of not doing so for

membership engagement. The article does so by treating

as a primary source evidence given to The Mid Staffordshire NHS

Foundation Trust Public Inquiry (2013). It might be thought

that this is a narrow basis from which to make judgements

about wider public sector trade union practice. There

are, however, a number of over-riding justifications.

Firstly the experiences of trade unions at Mid

Staffordshire Hospital parallel those already highlighted

in the literature review. Secondly, a number of the

witnesses indicated that trade union practices and

patient experiences of care were little different

elsewhere. While the hospital and its problems may appear

highly specific, there are a number of reasons to believe

that many of its features are, if not typical, then not

10

unknown elsewhere. A subsequent review by Sir Bruce

Keogh (2013), the Medical Director for England, confirmed

that the themes identified by Robert Francis were indeed

common to a greater or lesser extent in the 14 Trusts he

examined and it has become clear since that there are

systemic problems across the NHS in which performance

management, targets, bullying and insufficient staffing

establishment form a toxic mix.

The importance of examining the adequacy of trade union

practice at the hospital is that it is likely replicated

in a large number of hospitals. Thirdly, written evidence

and verbal testimonies from a range of sources including

union representatives and regional and national officers

were examined under oath at the Inquiry. The lines that

were pursued were not necessarily identical to the ones

we would have adopted. However, had an independent

research study been designed, involving interviews with

trade union staff and representatives, it is doubtful

whether access would have been granted given the

defensive nature of many of the contributions and

certainly responses would not have had the threat of

perjury hanging over them.

Mid Staffordshire Hospital: the background

Stafford hospital is a small district general hospital in

the west Midlands of England. It was the largest part of

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the Mid Staffordshire Hospitals NHS Trust, later to

become a Foundation Trust in 2008. It is unclear how many

patients died as a result of poor care between January

2005 and March 2009 but estimates put it at between 400

and 1200. Five official reports into the scandal

culminated in the February 2013 report of the public

inquiry chaired by Robert Francis QC. It is widely

regarded as the worst UK hospital care scandal of recent

times. The pursuit of financial targets at the expense

of clinical care, and especially cost-cutting of staff in

pursuit of Foundation Trust status, was later cited as a

key reason why poor care took hold and was allowed to

persist for so long.

The public inquiry lasted two and a half years producing

two voluminous reports, the second with 290

recommendations. The first report, published in February

2010, examined the quality of care at Stafford hospital

in 2005-09 and its causes such as inadequate staffing,

and its conclusions shocked the public and other NHS

staff. The second public inquiry that produced the

second report was established to investigate what the

various NHS local, regional and national commissioning,

supervisory and regulatory bodies and systems had done

(or not done) to detect or prevent poor care at Stafford.

Care was poor before the start of 2006, but was seriously

exacerbated by the redundancies and restructuring which

took place in early 2006 which cut staffing levels,

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changed skill mix and subordinated patient care to the

desire the achieve “Foundation Trust” status.

In mid-2007 the Healthcare Commission, the NHS care

regulator, was warned that Stafford seemed to have

unusually high death rates for its patient mix.

Eventually after immense pressure from the local “Cure

the NHS” campaign group formed of relatives of those who

had died forced an Inquiry and then a Public Inquiry to

hold those responsible to account. Robert Francis’

inquiry was both in-depth and long-running, taking oral

evidence from 164 witnesses as well as 87 witness

statements and totalling a million pages of evidence in

total. Francis found misdiagnosis and fundamentally poor

care in several parts of the hospital. Amongst other

things: patients were often left on commodes or in the

toilet for far too long; often left in sheets soiled with

urine and faeces for considerable periods of time; meals

were placed out of reach and taken away without being

touched; using the same cloth to clean ward surfaces and

toilets; and receptionists without medical training

assessed patients coming in to A&E. Frequently the

explanation appears to have been a lack of staff, but

sometimes staffs were present but lacked a sufficiently

caring attitude (see Francis Report 2010: Executive

Summary).

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Francis was clear about the causes of this scandal. His

first report concluded that ‘a chronic shortage of staff,

particularly nursing staff, was largely responsible for

the substandard care’. He found morale was low and he

reported ‘I heard much evidence suggesting that members

of staff lived in an atmosphere of fear of adverse

repercussions in relation to a variety of events. Part of

this fear was promoted by the managerial styles of some

senior managers (Francis Report 2010: B. 37). His

conclusions were especially fierce about the Trust

leadership and the impact of the Trust board's decision

to try to save £10m in 2006-07, as part of its desire to

gain Foundation Trust status, and about its single-minded

determination to hit performance targets set by the

Regional Health Authority. This article addresses the

reasons the unions proved so ineffectual both on behalf

of patients and their own members.

Disconnected Trade Unionism

The profile of trade union membership at Mid

Staffordshire is unlikely to vary much from that in

hundreds of other hospitals. Certainly none of the

national officers giving evidence claimed any

exceptionalism as an explanation as to why the unions

responded so badly to the experiences of their members:

just the reverse – the reason why union officials failed

to know about the problems was that there were so many

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institutions in which circumstances were similar, Mid

Staffs did not warrant special consideration. The major

unions in the hospital and which are examined here were

the RCN and UNISON. Several other unions had smaller

memberships at the Trust. No figures of the relative

sizes of different sections were revealed at the Inquiry

so it is not possible to work out union densities but the

overall workforce was given as almost 3000. What is

possible, using the Inquiry Report and extensive source

documents, is to examine the practice of these two unions

in the hospital and the extent to which they conducted

themselves in a way that addressed the problems members

faced in a hospital failing in its public duty.

There are a number of ways to capture the features of

successful trade union organizing ranging from Kelly’s

(1998) attempt to promote mobilization theory, to various

emphases within what has become known as the organizing

model (Bronfenbrenner et al. 1998; Carter 2006; Simms et

al. 2013). Approaches tend to stress the importance of

an involved and engaged membership. According to

Fairbrother et al. union renewal is measured by five key

organisational processes: ‘recruitment and extension of

the membership base; replenishment of new generations of

activist members; building workplace- and community-

relevant structures and activity; mutually supportive

relations between layered levels of representation; and

the combination of the local with the global’ (2012: 41).

15

Arguably these are inter-locking features: it is unlikely

that a union performs well on one to the total exclusion

of the others. The focus here is largely on workplace

issues and organization. At Mid Staffs the unions not

only failed to address the renewal criteria, they were

ineffective in representing members or utilizing a

residual partnership agreement to influence policies.

Union representatives and particularly shop stewards have

a key role to play in the development and culture of

workplace unionism (Batstone et al. 1979): in Mid

Staffs, however union orientation is characterized, it

was largely ineffective as the following account

illustrates.

The Royal College of Nursing

The RCN is the principal UK voice of the nursing

professions with over 400,000 members, organized

nationally into 15 regions. It sees itself as having two

distinct but linked functions: a professional one and a

trade union one. The former role involves delivering

courses and presentations on nursing issues as well as

‘creating policies and providing general advice on

matters such as staffing levels’ (Carter Statement: 2).

Although a Royal College, its powers are considerably

less than other Royal Colleges in that it cannot enforce

standards though it does seek to set them. In its trade

union role it immediately signals two significant

characteristics. Firstly, it minimizes the conflict of

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interest between employers and its members through the

categorical assurance that “Each [RCN] Regional Director

will have good relationships with the senior figures at

the hospitals and Primary Care Trusts in their region’

and secondly that it is a servicing organization: “It is

fair to say we work for out members. The vast majority

who join the RCN join for indemnity and the support we

can offer’ (Statement: 2). The membership section of its

website (https://www.rcn.org.uk/membership) stresses that

it offers protection in the form indemnity against

clinical negligence and a large legal team; advice and

the support of 4000 workplace representatives in

planning, learning and health and safety requirements and

a central career advice service; a campaigning voice; and

a range of discounts. The model it holds is one of a

respected pressure group: there is little emphasis on its

trade union organization and representational roles.

Recruitment and extension of the membership base

RCN had approximately 500 members within the Trust as of

2011 (Legan Day 42: 104) out of a total of approximately

3000 employees. According to the Trust’s Annual Report

2008-9 there were 764 Nursing and Midwifery staff.

Allowing that some of the latter would belong to the

Royal College of Midwives and a few possibly to UNISON

the figures suggest a very high percentage of nurses were

RCN members. At Mid Staffs there is ample evidence that

whatever the formal levels of membership and density

17

there was little in the way of collective consciousness

and involvement. According to the lead representative at

the Hospital, who had 28 years as a representative, her

main contact with members was ‘Predominantly . . .

through branch meetings (Breeze Statement 2011: 4), while

later testifying to the fact that members would only

attend a branch meeting if there was a problem and then

in very small numbers (‘under ten’) (Breeze: Day 42: 12).

Another representative reported that nurses ‘didn’t

really see the point of . . . talking to us, the RCN,

because they didn’t feel that we were being instrumental

in making things any better’ (Adams: Day 51: 28).

Replenishment of a new generation of activists

The organizational structure of the RCN was rudimentary.

There were only three local representatives and a safety

‘officer’ during the period 2005-9 (a period when the

branch also covered another hospital, community practices

and members in the prison service with an estimated total

membership of 1400) (op. cit. 42: 7). Nor were they

distributed rationally to ensure even coverage within or

across the sites, with coverage dependent upon who

volunteered (Breeze op. cit. 42: 7). The lead

representative considered that the optimum numbers were

between eight and ten but was fatalistic about expanding

them: ‘You can’t pressurize people into becoming reps, or

else they don’t do the job they should . . . and people

don’t come forward . . . because they don’t like speaking

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up’ (ibid.: 10). The few representatives were not,

however, overwhelmed due to the combination of the lack

of confidence in the RCN noted above, and positive

discouragement:

If a member did have a problem with patient care,

other than completing an incident reporting form

members could raise concerns with their line

manager . . . I personally did not communicate

directly with RCN members in any other way

(ibid.: 5).

It is hard to imagine that Breeze could have remained

totally ignorant of the emerging problems of the hospital

and her members’ concerns. She, however, stated that no

one had ever reported these to her and that she could not

recall these issues being raised at joint staff side

trade union meetings. When asked whether she thought the

threat to patient care, caused by redundancies, should

have been raised at the JNCC, she replied: ‘I really

can’t comment on it’, causing a sharp rejoinder from the

Chair: ‘Well you can because you were there’ (ibid.

42:48).

The evidence of the other RCN representatives helps

clarify whether Breeze’s experience was exceptional or

illustrated general practice of the RCN at the hospital.

The second RCN representative, Sue Adams, a Day Unit

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Speciality Manager, had five years experience at the time

of the Inquiry and had taken over as lead RCN

representative from Denise Breeze in 2008. Her approach

had a clearer representative orientation. When members

reported problems or concerns to representatives, she

told the Inquiry, the latter ‘were able to feed this

information back to their lead stewards’. In turn,

Breeze ‘could escalate these matters to the Trust’s

Executive Team, at various forums, including JNCC, one-

one meetings etc.’ (Adams, Statement: 2-3). Adams gave

every impression that she was much more alive to the

issues of the hospital, which she discussed with the

third representative, Carol Headley, with whom she also

visited wards to talk to members. The weakness in the

model that she outlined was that relaying issues to

Breeze, as already indicated, did not guarantee they

would receive attention. Nor was there evidence that

reporting issues directly to the regional RCN was

effective. Adams reported, for instance, that when

concerns about the hospital ignoring incident reports

were raised by a nurse ‘nothing appears to have happened’

(Adams 51:65)

There were occasions when Adams objected to hospital

policy both as a Day Ward Manager and an RCN union

representative. In the former capacity she documented

understaffing. In 2004 she wrote this time to a

consultant podiatric surgeon acknowledging the threats to

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patient care and detailing her attempts to have posts

filled which were denied by a Scrutiny Panel looking at

all vacancies. She raised concerns as an RCN

representative over the amalgamation of the day and

short-stay surgery wards at JNCC meetings. The failing

to achieve anything stemmed not from her personal

qualities but from a combination of the intransigence of

the hospital and the ineffectiveness of the RCN as an

organization.

Mutually supportive relations between layered levels of representation

Representatives on the ground require support and advice

in order to be effective. They were badly let down by

the RCN. There was for instance no leadership on major

issues and in particular on the hospital move to gain

Foundation Trust status, the financial preconditions of

which exacerbated existing staff shortages. Adams’ view

was:

the RCN were generally very laissez-faire, about

the Foundation Trust proposal. At patch meetings

the regional RCN/full-time RCN reps proffered no

view either way about whether Foundation Trust

status was a good or bad thing (ibid.: 10).

21

Even more significant was that the Region seemed

unconcerned about the state of organization at the

hospital. When questioned about the role of Breeze and

her claimed lack of knowledge of widespread staff

concerns about overwork and care quality, Adams insists

that she and the other steward raised them with her in

numerous fora (ibid: 40), and indicated that she took her

concerns about Breeze’s ineffectiveness to the Regional

Office (ibid. 41): ‘we needed more support because Denise

wasn’t able to come to meetings, she wasn’t getting to go

to patch meetings, she didn’t always get to staff-side

meeting’. Moreover, this situation would have been

clear to the full-time officer, Adrian Legan, responsible

for the hospital.

Legan’s remit was in part ‘to support and develop local

branch activity and advise and represent members in

relation to employment issues’ (Legan Statement: 1-2).

Patently, the development of the branch had not been

successful. Part of the explanation given was that there

were too few RCN stewards, a complaint Legan endorsed.

But on this, as a number of other issues, he was at pains

to point out that in this the hospital was typical:

‘There are never enough staff representatives’ (Legan 42:

112). Nor was the low level of membership participation

abnormal: ‘there was no more or less engagement in

Stafford than any other organization or branch that I

support’ (Statement: 112). In Mid Staffordshire

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Hospital, as presumably elsewhere, he appeared to do

nothing to alter this situation despite, according to

Breeze, being there ‘most of the time’, a claim Legan

disputed (Legan 42: 134). What is not disputed is his

close involvement with workplace issues. Breeze states

that ‘He was always there on hand and dealt with all –

anything major, any reorganization, anything like that he

dealt with it’ (Breeze 42: 98). For his part, Legan

acknowledged that Breeze ‘did tend to consult with me . .

. when she did not have time to assist a member, and so

she would contact our office to deal with the matter’

(Legan Statement: 3). Breeze on her own admission did

very little (Breeze 42: 19) a situation with which Legan

seemed comfortable, happily filling the vacuum.

Given the extent of his involvement it might be expected

that he would be aware of the concerns about serious

staff shortages, particularly as Adams maintains that the

issue was discussed and reported. He maintained that, had

he received a complaint of that nature, ‘then I’m pretty

confident that that would be retained at a regional level

and acted upon’ (Legan 42: 132): but he also added:

There were occasions when staffing had become an

issue and . . . quite often the response from

the trust would be that it was attributable to

short-term sickness or they were aware of sort of

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global issues around staffing concerns and were

addressing matters’ (ibid; 132).

The management contention that the problem was restricted

to short-term sickness, rather than to chronic and

structural understaffing, appears to have been

internalized: ‘I think most of the concerns regarding

staffing would have been around short-term sickness. So

it would have been pertinent to a particular shift . . .

it wasn’t necessarily a long-term issue’ (42:213).

Nurses would have found it harder to accept management

explanations, although they would likely be entirely in

the dark about these conversations. RCN representatives

were ignorant of the nature and outcome of meetings

between RCN and management. Despite frequent meetings

between the full-time officer and the Chair and Chief

Executive of the Trust, for instance, Adams reported:

As a steward I was not told when the full-time

officers at the RCN were visiting the Trust.

This meant it was very difficult to know when

they were speaking to the Trust’s Executive team

and whether any issues were being raised or acted

upon. (ibid.: 4).

The internal relations of the RCN meant that where there

were objections to hospital policies there was no

24

mobilization of members. The debilitating nature of the

RCN also impacted upon members in other ways. Adrian

Legan’s close relations with management, was apparent in

his role in the case of the nurse whistleblower Helene

Donnelly who reported bullying, poor care standards and

falsification of records in the accident and emergency

department resulting in the suspension of two sisters.

She sought support from Legan (Donnelly Statement: 8) and

initially he appeared ‘horrified by what was happening in

A&E’, but she was disappointed that she didn’t hear back

from him for some time. When she did eventually hear, he

informed her that the sisters ‘had received a slap on the

wrist’ but would shortly be returning to work, that team

building was to be scheduled and that ‘everything would

be fine’ (ibid.: 8). She was left feeling exposed and

vulnerable and later found out that he was representing

at least one of the sisters in discussions with the

trust. The Inquiry discovered that the sisters did indeed

returned with a first warning, which came about as a

result of a private agreement between Mr Legan and Martin

Yeates [the CEO]i.

The way the RCN conducted itself at Mid Staffs

corresponded with its national culture. The widespread

disengagement of members and their reluctance to report

issues to the RCN at Mid Staffs was far from unique.

Peter Carter, its Chief Executive and General Secretary,

cited the example of the problems at Maidstone and

25

Tunbridge Wells NHS Trust, ‘which included reports of

patients being left in excrement and beds being only 8

inches apart’ that ‘were never raised by any of our

members’ (ibid.: 3). The imperative of close relations

between management and the RCN, to the exclusion of

dialogues with its membership, was also indicated by

Carter: ‘If there are no issues in a particular hospital,

the officer may not visit the hospital at all . . .

However, these officers may call the Director of Nursing

to ask if they can visit to discuss matters generally’

(Carter Statement: 4-5).

The collaborative orientation of the RCN informed the

nature of the visit that Carter made to Mid Staffordshire

Hospital shortly before the crisis in its care was

revealed by the HCC (2008). Carter neither sought, nor

was given by Legan, any briefing on the serious issues at

the Trust (Carter 52: 24). On the visit he met two full-

time staff from the regional office and also the hospital

Chief Executive and the Director of Nursing. In his

statement he could not recall whether he had met Sue

Adams and his tour of the hospital was conducted with the

RCN senior full-time officer and the Director of Nursing.

He did not meet his members, was not informed of any

issues, nor saw evidence of understaffing and poor

patient care.

26

Following the visit, the Chief Executive wrote to thank

him for the visit and particularly for how the RCN had

been repositioned ‘in terms of constructive and

supportive dialogue as we face inevitable change in the

NHS’ (Exhibit PC1). Carter believed this reference to

dialogue related to the fact that ‘In the past, the RCN

had been quite conservative in relation to change’. In

contrast, the RCN was now ‘repositioned to support change

in the interests of patient care’ (Statement: 7) which

‘can often be difficult for our members to understand’

(ibid.: 8). In his willingness to be supportive of the

hospital, Carter wrote to the Director of Nursing saying

that ‘I have seldom been as impressed with the standard

of care as I witnessed at Stafford Hospital’ (ibid,: 8).

He also wrote a letter with similar sentiments to the

local newspaper. It was not until after the publication

of the HCC Report (2008) that Carter returned to Stafford

for a meeting with his members.

UNISON

The RCN is not a typical union seeking as it does to be

both a representative and a professional body. For this

reason alone it is not possible to gauge the health of

public sector unions from its organization and

performance. The position of UNISON is much more

central. UNISON has around 450,000 members in the health

service (Jennings Statement), so clearly was a major

27

player in industrial relations within hospitals. It

claims to be an organizing union (Waddington and Kerr

2009) and, with well over one million members, has the

resources to offer assistance to its branches.

Recruitment and extension of the membership base

UNISON had 814 members in the Hospital, comprising

nurses, ancillary and clerical employees. No breakdown

of the membership figures was available but it is likely

that only a minority were nurses, giving the RCN the lead

voice in matters that were specific to this role.

According to one of their representatives, Kath Fox,

‘there was always good attendance’ at annual general

meetings and ‘if there was a particularly contentious

issue going on, there would usually be about twenty

people at branch meetings’ allowing membership feelings

to be voiced (Witness Statement: 2). There was no

evidence, however, of increased membership numbers or

activity and certainly nothing resembling an organizing

culture had not taken hold.

Replenishment of a new generation of activists

UNISON was certainly formally better organized than the

RCN in that there were eight representatives in the

hospital for the 800 or so members. Moreover, there were

mechanisms for the positions to be contested through

nominations and elections. The leading figure of the

UNISON branch secretary at the hospital was a Bereavement

28

Officer, Kath Fox, who had nearly 20 years experience in

the union post and performed roles from representing

members at stage one sickness reviews to negotiating pay

reviews with management. In addition, she attended

UNISON meetings at weekends and as a consequence she felt

pressed for time, evidenced by her working longer hours

and going into the union office on Sundays, and

unsupported:

When I first became a trade union rep, we would deal

with things such as normal day-to-day grievances,

sickness reviews, that type of thing . . . now –

your local reps are expected to do the role of full-

time, paid trade union official, and we can’t do

that and hold a job down at the same time. It’s

just not possible (Fox Day 43: 129).

While there is no evidence of replenishment of activists,

the representatives were not inactive. Like Sue Adams,

Fox insisted that representatives had raised staff

shortages from 2005 onwards and that minutes of the JNCC

did not accurately reflect their continual concerns. She

did acknowledge that unions did not raise patient safety

as such in the JNCC meetings but maintained that ‘It was

taken for granted that if you had a fully staffed ward

patients would receive the proper care’ (Fox Statement:

7). When concerns about understaffing were raised they

were met with generally replies such as ‘that staffing

29

levels were adequate in the “professional view”’ (ibid.:

7). It is at this point that the ability of the union to

support representatives and to devise strategy to put

pressure on the hospital becomes crucial.

Mutually supportive relations between layered levels of representation

While the role of the RCN official was arguably

conservative, his presence was undeniable and his

influence tangible. In contrast, the role of the UNISON

full-time officer was almost entirely absent and the

links between the workplace and the region negligible.

When asked about escalating issues through the union, Fox

testified that the UNISON full-time officer frequently

attended the JNCC and maintained that regional officials

would therefore have been aware of the problems at the

hospital. After a recess, counsel for the Inquiry,

having had the minutes of its meetings from 2005 and 2009

examined, found that attendance had been restricted to

one occasion. Fox responded that the minutes of every

meeting would be automatically forwarded to the regional

officer but was again forced to admit that, while she

hoped that the minutes were read, no one ever got in

touch to discuss any of the issues contained within them.

No evidence was produced of any regular (or even

occasional) inquiry about local developments by the

UNISON regional office. As a result of this lack of

30

UNISON engagement with its members, and because ‘none of

the ftos [full-time officers] were taking - or appeared

to be taking things seriously’, the branch looked for

other ways of raising concerns about understaffing and

decided to send Fox to see David Kidney [the Labour MP

for Stafford] to determine ‘whether he could do anything’

(Fox 43: 114). Kidney, however, was reassured by the

hospital Chief Executive that processes were in place to

alleviate the concerns and wrote to Fox to that effect.

Her conclusion was that that the effort had been ‘a waste

of time’.

Unfortunately the UNISON regional official made no

statement: nor was she heard at the enquiry. Had she

been, the practice and thinking of the union might have

been further scrutinized. However, the national

secretary for health, Karen Jennings, both made a

statement and appeared in front of it (by which time she

had been promoted to an assistant general secretary). She

described the role of the national office as ‘very

strategic’ focusing on national bargaining and developing

policies and guidance for members that is cascaded down

(Jennings Day 43:8). Regional officers are available to

‘give advice to branches when they can’t handle something

or they have concerns about something, or where they need

further expert advice’ (Jennings Day 43: 12). Even

though Mid Staffs representatives were not given expert

advice there appeared to be no apparent mechanisms for

31

picking this up. The almost total absence of the regional

officer from the trust only became apparent after Fox’s

evidence and thus Jennings was not directly confronted

about it. When Jennings reflected on the fact that the

national union knew nothing of issues at Mid Staffs, she

stated that ‘it was perfectly open for the branch to

write directly [to national office] on these matters’

(ibid: 20). In response to a suggestion that going to an

MP to raise the issues demonstrated a note of desperation

on the part of the branch, Jennings again reiterated that

‘it is up to the branch to feel that they can come to the

national office. It is up to the regional office to

raise it with the national office’ (ibid.: 20). The idea

that the union might initiate involvement between the

region and the branch that is organic and intelligence-

led did not seem to arise.

Jennings portrayed the role of the national officials as

passive and constrained. When asked about systems for

monitoring trends and developments she responded:

The only way we would set up a system to monitor

these things would be if a motion came to us from

the regions or indeed at our annual conference.

Because our primary aim throughout the year will

be looking at what we’ve been mandated to do . .

. by conference. That’s what sets policy for us

(43: 22).

32

This partial and defensive vision was challenged by the

Chairman who wanted Jennings to explore ‘what you are

asking your branches, your regions to look out for and

perhaps be more proactive about when members aren’t

coming forward with things that might be more obvious to

the outside expert eye’ (43: 25). The opportunity to

offer some vision and direction was effectively refused.

Moreover, asked about individual complaints made direct

to the national office, Jennings states: ‘What we do is

refer that letter to the regional office and to the

branch to deal with’. When pointed out that letters in

relation to Mid Staffordshire would therefore probably

have ended up back on Fox’s desk, her reply is “Or the

regional office’, the very places which seemed incapable

of dealing with them.

Building workplace and community relevant structures and activity

The prime forum for joint trade union activity at

hospital level was the JNCC. Representatives of other

JNCC unions were wary of the RCN because of the

relationship between Legan and the management of the

trust. UNISON representative, Kath Fox:

33

Adrian Legan never seemed unduly concerned with

the matters discussed . . . It was apparent that

meetings were taking place between the RCN full

time officer and management at the trust . . .

outside the context of the JNCC, which undermines

the JNCC role (Fox Statement: 12)

Although Legan denied this role, his testimony in fact

reinforces the impression: ‘What you have to bear in mind

is that a lot of senior managers you’ll be referring to

were also members of the RCN . . . A lot of these

occasions I would actually be representing that

particular manager ’ (Legan 42: 143-4). When replying to

questions about redundancies and understaffing he was

less equivocal: ‘I was constantly reassured that even

when there was talk of 180 posts [being made redundant]

that these would not include front-line nursing staff’

(42: 156).

Such reassurances would have been given when the other

unions, as the principal casualties of this policy, would

not have been present. (42: 156-7).

Nevertheless, there was some collective union opposition

when in 2006 the trust proposed the 180 redundancies. The

opposition of the staff unions coalesced around resisting

both compulsory redundancies and a shortening the prior

period of consultation from the statutory 90 to 30 days.

34

The lead official in this resistance was the full-time

officer from neither the RCN nor UNISON but from Unite,

with a much smaller healthcare membership. While the

Trust quickly, if reluctantly, conceded on the issue of

complying with the statutory redundancy consultation

period, and relented on the compulsory nature of the

redundancies, these changes did nothing to save any jobs,

which, the Inquiry concluded, seriously impacted on

patient care. Those remaining after voluntary

redundancies and normal turnover that faced worsening

conditions, increased pressure and lower health care

standards.

The RCN appeared to believe that job losses were

inevitable. There was no attempt by Legan or the other

union representatives to mobilize the membership or to

use other avenues to challenge management. There is no

mention of any effort to gain evidence of the effects of

the redundancies by conducting a members’ survey, holding

ward or site meetings, or insisting on union involvement

in risk assessment as both unions were entitled to do.

No links were made with the nurses who, the Inquiry

heard, had signed a collective letter of protest. Nor is

there any mention of contacting the HCC, the service

regulator, or the NMC, the professional regulator for

advice. Nor were statutory rights used as they could

have been. TULCRA s.188 (4) requires employers to

meaningfully consult and to provide the real reasons (and

35

supporting information) for any redundancy. The Trust

had no accurate idea of how many nurses it employed, nor

was it able to show the inquiry any clinical risk

assessment of the impact of planned cuts and

restructuring.

The crisis of health care at Mid Staffordshire became

public not because of union activity or even complaints

but rather as a result of the formation of Cure the NHS

(CHNS) by relatives of the hospital’s patients.

Particular anger was directed at the RCN leader for

publicly congratulating the Trust’s health care

standards. The experiences with the union led CNHS to be

highly critical of unions as such: far from being part of

a coalition to protect standards of care they were

regarded as an impediment to that process. The practice

of the unions is captured by Tom Kark QC, Counsel to the

Inquiry:

It showed them operating in their natural sphere

rather than concerning themselves with the risks

to patients arising from the proposed

redundancies. In the end the overriding concern

for the union officers involved in the workforce

reduction at the Trust seems to have been the

avoidance of compulsory redundancies (Francis

Report: final written submission).

36

Conclusion: The Duty of Care and Trade Unionism

The evidence here joins a growing list of work that

documents that public sector unions functioned poorly on

a number of fronts with members almost totally unengaged.

Both the RCN and UNISON had substantial numbers of

members but were unable or unwilling to mobilize them

around important workplace issues. Density is not

organization. Unison campaigned nationally throughout

the period against changes such as privatization and wage

restraint but national action was defensive, tokenistic

and ineffectual. Within Mid Staffs hospital both unions

maintained in their defense that they were unaware of the

problems of understaffing and poor healthcare provision:

it is a defense that is at the same time an indictment.

Little wonder that members, with a few notable and

isolated exceptions, mirroring their colleagues elsewhere

(Bach 2004), were demoralized, quiescent and complicit in

the accepting poor standards. Where members looked to

their unions for support and leadership the unions were

found lacking. Unions individualised members’

responsibilities to abide by the professional code of

practice and thus left staff open to threats from

managers. Sue Adams (Statement: 16) indicated that

nursing staffs were advised that ‘if they considered

staffing levels were unsafe that this was a breach of the

NMC Code of Conduct . . . and they should be very careful

37

about what they put in a formal complaint as it might

lead to them losing their job’. Kath Fox reflected a

similar sentiment (Fox Statement: 9) when stating: ‘From

everything I have learnt, professional standards and

accountability is down to the individual nurse and not

UNISON to maintain’. This narrow interpretation deflects

attention from managements’ over-riding responsibilities

towards both patients and their staff and thus removes

patient safety as an issue around which to mobilise.

Members of both unions, like those studied by Cooke

(2006), faced too many work demands and struggled to

provide care with unacceptably low resources. The

commitment that they had to patients found no way of

asserting itself, and coalescing as a force against

hospital policies. It should have been a trade union

demand that patients received adequate and safe care, a

demand that if fulfilled would have also improved staff

conditions of work, their satisfaction and morale and

made them allies with patients and relatives groups.

Alongside the lack of internal trade union support and

competence in challenging management prerogatives this

proved a big mistake.

An alternative strategy would have been to mobilize

members around their duty of care. In order to practice

nurses have to be registered with the NMC and

registration requires adherence to its professional code

38

of conduct. As only registered nurses can be employed

adherence to the code becomes an implicit (and sometimes

explicit) part of nurses’ contract of employment and they

cannot be asked to breach it. Had the unions documented

unsafe practices and, for instance, only followed written

instructions to work in such situations, managements’

culpability would have been visible, embarrassing and

unsustainable. Often those issuing the instructions are

also registered practitioners and also directly subject

to professional codes. Indeed, in January 2014, the

director and chief nurse responsible for nursing at Mid

Staffordshire was struck off the nursing register after

it was found that she had endangered patients, and that

she had shown no insight into her failings (Nursing Times:

29 January).

The RCN has a professional orientation, developed

guidelines and recommendations on good nursing practice,

and published authoritative research on the impact of low

staffing levels as early as 2006: however, it has little

organization at the workplace. Its Annual Report (2013:

7) notes: ‘Numbers of representatives continue to

decline, due in part to the impact of the tough economic

climate on NHS and independent providers and in part to a

policy decision to focus on quality standards’ (emphasis added).

Campaigning for safe staffing ratios without local

organization to monitor or enforce them will prove

ineffective. Moreover, with officials who are more

39

comfortable talking to directors than mobilizing its

membership a change of direction would prove difficult.

UNISON, on the other hand, encouraged a routinised trade

union response that largely ignores issues of work

organization and content. As its Head of Nursing framed

it: ‘We are a trade union, not a professional

association’ (Nursing Times: 14/5/2013). Despite its

policy statements, members’ day-to-day concerns escape

its attention. It is interested in recruitment but not

in a dialogue about the workplace and professional issues

that dominate their members’ everyday lives.

The recruitment and engagement of members, and the

development of effective workplace organization, will

come not from a split between professionalism and trade

unionism as recommended by the Francis Report but rather

by the integration of the two. More generally, if public

sector trade unions fail to take members’ concerns about

the nature of their work seriously and to have strategies

to organize around them, the crisis of unionism will

become ever more stark.

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i The two were subsequently struck off the nursing register by the Nursing and Midwifery Council, (http://www.theguardian.com/society/2013/jul/25/mid-staffordshire-nurses-struck-off)