Fourteen years after the McPherson report examined the institutional culture of the Metropolitan Police, and proposed a Public Sector Duty to address racist discrimination, concerns continue to be raised in Britain's public services about institutionalised systems that work against equality.
These concerns apply not only to the Police (the original focus for attention over the death of Stepehn Lawrence) but other public institutions, such as health, education and the judicial system. They also apply top to bottom … affecting everyone from youths on the streets to trained professionals.
Manchester University will be hosting a conference on so-called "disproportionality" at the end of next month.
This is one aspect of embedded systems of discrimination felt particularly among professionals.
Speakers from a variety of fields, including academics, lawyers, police leaders and NHS management will be discussing how phenomena like this operate in different professions.
The evidence for disproportionality has been growing for some years.
A report published by Professor Uduak Archibong and Dr Aliya Darr of the University of Bradford, entitled "Involvement of Black and Minority Ethnic Staff in NHS Disciplinary Proceedings" examined, in depth, the ways in which NHS clinicians were disproportionately likely to be subjected to disciplinary proceedings if they were from a Black or Minority Ethnic (BME) background, compared to white counterparts doing similar things.
To their credit, the report is hosted for easy access on the NHS Employers web site. On my recommendation to the conference organisers, the Manchester event will include a presentation on the Bradford research team's follow-up work.
And, to underline this phenomenon, the GMC reported at the start of this year "Most struck-off doctors are trained abroad"
The Department of Health recognised that these kinds of phenomena could represent a risk in their Equality Analysis for the new system of Medical Revalidation which was introduced at the end of last year.
Medical revalidation requires doctors to demonstrate periodically that they are still up-to-date and fit to practice. It's like testing commercial pilots or anyone else working in safety-critical fields. Most people are amazed revalidation for Doctors hadn't already existed.
The problem, however, is that wherever there are such necessary systems for appraising or disciplining people, then something about human nature means that there are those who will apply such systems in less than fair and balanced ways.
We recognised this risk too, which is why we pioneered the development of national guidance to help managers recognise and lay plans to mitigate the risks of the revalidation system being applied unfairly. "A Fair Route to Revalidation" isn't 'Political Correctness'; it has been described as one of the clearest guides to operating the revalidation process as a whole.
One thing should be made clear when discussing these phenomena. Nobody is suggesting that BME doctors who make mistakes or lack competence should not be scrutinised, appraised or disciplined where necessary.
On the contrary. The concern is that these same standards are not always applied with the same attention and zeal to other doctors.
The research doesn't indicate that one group of doctors is any more likely than another to be inherently poor at what they do … in spite of what tabloids would like the public to believe. However, wider factors can mean that some doctors are obliged to work in circumstances that place them and their patients at greater risk.
BME doctors are more likely than their white counterparts to still be working single handed in general practice. This is a risk factor for any doctor.
Doctors working in deprived areas or minority fields (e.g. treating transsexual patients) are also less likely to have the benefit of a strong professional peer group around them. It is perhaps no accident that both the private practitioners treating transsexual patients have faced almost identical disciplinary proceedings in recent years. Clinicians working in larger teams have the buffer of peer support.
If anything, however, the research suggests the more worrying conclusion that doctors who are perceived to be part of an institution's cultural 'in-group' (i.e. white, British, male, and not openly LGBT) are more likely to have their mistakes and poor behaviours dealt with by 'soft measures', stopping short of formal investigation or disciplinary proceedings. Typically someone will just have a quiet word with them and nothing more will be said.
It has been said, for instance, that if Harold Shipman had been a BME doctor (or a woman) his deeds would have been questioned and investigated far sooner.
Getting to the roots of disproportionally is therefore very much about best practice and safety.
A working culture where capability and disciplinary processes are applied disproportionately is hard to pin down. Like other forms of indirect discrimination it is hard to point any finger in individual cases.
The operation of such a culture can only be inferred from statistical analysis on a bigger group. It is not the kind of thing which usually leads to court cases or tribunals. This is why it is not perhaps widely known about, outside of conferences and academic papers.
A lot of discrimination is like this. And the people practicing these behaviours would probably hotly deny they were discriminating.
Our conference last year, launching "A Fair Route to Revalidation" prompted a lot of discussion when one of the speakers presented a simple analysis clearly demonstrating how, for whatever reason, white clinicians were more likely to figure in the top Clinical Excellence Awards (CEAs) handed out each year.
The intended purpose of CEAs is to recognise and reward those consultants who contribute most towards the delivery of safe and high quality care to patients and to the continuous improvement.
These are subjective criteria to begin with, of course. And you can see how clinicians who are pushed to the margins of any peer group, or work single-handed in general practice, could be overlooked.
In other words, there are obvious cultural and circumstantial factors that could disadvantage individual doctors.
However, this alone is not sufficient to explain the disparity. 38% of NHS Doctors have a BME background. This is a consequence of how, when the NHS was set up, the service needed to bring in so many trained practitioners from the former Commonwealth countries.
Many of those clinicians have by now served for many decades. You would expect them to feature highly in the CEA rankings. But they don't.
This isn't just an academic issue. CEAs are taken into account for those on the NHS's final salary pension scheme. The awards are substantial. So, a disproportionate number of white, male consultants getting awards in their final years of work means a disproportionate number getting a substantial boost to their pensions. Indirect discrimination has direct effects.
Tackling the leaders
This kind of cultural bias is seen across the clinical profession. In December 2010 Professor Rajan Madhok, a GMC Council Member and (then) Medical Director of NHS Manchester wrote to Professor Sir Bruce Keogh (then Medical Director at the Department of Health) to point out the relative absence of BME clinicians in this role. He wrote,
"It was difficult not to notice the lack of BME doctors in the conference Who's Who. This was commented upon by some of my colleagues. I am sure that you will agree with me that this does not portray the ethnic mix amongst NHS clinicians appropriately and does not augur well for the NHS."
In reply Sir Bruce wrote back,
"I have taken on board your comments with regard to the lack of BME Doctor representation in the MD Conference Who's Who booklet and will aim to address this for any future events. I acknowledge that there is a problem in BME representation in medical leadership positions. The Department of Health(DH) is working on increasing access to higher education and in particular medical school. Our DH medical recruitment team regularly look at the impact of ethnicity on success in selection processes. In surgery, for example, the findings only so far demonstrate an effect in those who are BME and non-UK trained - the BME who are UK trained seem to be successful in gaining posts"
Sir Bruce added later in the same letter,
"The National Leadership Council has a work stream on inclusion which is 'redefining leadership in the NHS' to ensure the leaders and the workforce are representative of the communities served, while ensuring that those from minority groups apply and take on leadership roles"
These words all sounds very reassuring, of course. However, Sir Bruce appears to make the classic error of framing the answer around a different question to the one leaders should perhaps be addressing.
Words like this tend to lay the problem at the feet of BME people or other protected groups. It is assumed that the reason why BME doctors are under-represented in the higher echelons is because they are deficient in some way.
"They haven't applied in sufficient numbers". "They need more training". "They are backwards in coming forwards"
However the statistics tell another story. Any examination of the NHS workforce statistics will quickly reveal that something similar is happening in administrative leadership.
The NHS has a pay and seniority banding system which runs up to Band 9 (and, above that, there is a separate system for very senior managers, generally with "Director" in their job title). Assistant Director and Associate Director posts lie within Bands 8 and 9. Management starts mainly at Band 7.
However, the figures show that the highest grade many BME staff in the NHS reach is Band 6. Many find it disproportionately hard to advance beyond that level to begin developing the experience and additional skills to progress in management and leadership positions.
Again, in various discussions, the most senior managers of the NHS tend to frame the phenomenon in terms of a deficiency on the part of individuals. Similar arguments are made across both the public and private sector to explain the under-representation of women in senior posts … whilst women talk, of course, about glass ceilings … the real barriers being encountered.
Managers tend to appoint new managers in their own image. This means that once disproportionality takes hold in a culture it tends to reinforce itself.
Disproportionality is everywhere you look. And explaining the outcomes in terms of schemes to help people try harder will always miss the point.
Not surprisingly, interventions based on the senior leadership way of seeing the problem have failed to make any inroads since Sir Bruce penned his assurances.
In October 2011 a larger group of eight very senior BME clinicians wrote a follow-up letter to Sir David Nicholson, the Chief Executive of the NHS.
- Professor Rajan Madhok (now also Chair of the Clinical Leaders Network Race Equality Action Leadership Initiative)
- Dr Umesh Pradhu (Chair of Warrington, Wigan and Leigh NHS FT and also Vice Chair of the British International Doctors Association)
- Dr Ramesh Mehta (President of the British Association of Physicians of Indian Origin)
- Professor Iqbal Singh (a GMC Council member and Chair of the GMC's Equality and Diversity Committee)
- Dr Kailash Chand OBE (formerly the Chair of Tameside and Glossop PCT)
- Professor Bhupinder Sandhu (Chair of the BMA's Equality and Diversity Committee)
- Professor Aneez Esmail (Professor of General Practice at Manchester University) and
- Dr J S Bamrah, a Consultant Psychiatrist
By now these leaders were not just concerned by any lack of progress on the inequalities which were clearly being evidenced but, in their words,
"...it seems to us that things may have started slipping recently"
"At a time when almost 38% of the doctors in the NHS are from overseas (28% from beyond EEA), we fail to understand their absence or very limited engagement in many of the major initiatives in the NHS. Two examples help to illustrate this. First, is the hopefully self-explanatory letter to Sir Bruce Keogh written last year and second is the absence of any BME doctor on the Council of the recently established Faculty of Leadership and Management (http://www.fmlm.ac.uk/about-us/founding-council). The situation is compounded by the lack of visibility of senior BME figures in the key NHS transition arrangements, and the long standing concerns about their experiences in terms of disciplinary matters, for example.
"This makes it very difficult for us to support and motivate BME doctors for the changes facing the NHS. We feel it is important to find ways to ensure that we do not disengage this large proportion of the medical workforce. Not only are we in danger of compromising progress in the UK, there are also implications for the growing desire to promote overseas collaboration with the NHS since the launch of Health is Global initiative. Certainly, we are very aware of many ongoing, and planned, developments between NHS institutions like NICE and various Royal Colleges and their Indian Counterparts, and the UK based Indian doctors are increasingly being sought to support these."
Six weeks later Sr David replied,
"Firstly I fully understand and share your concerns about racial equality in the NHS. Discrimination has no place whatsoever in the NHS and while we have come along way, there is always more to be done.
"In recent years the Equality and Diversity Council has been leading the way, embedding its vision of a better, personal, air and diverse NHS. I know you were at the recent launch of the Equality Delivery System (EDS) in Leicester and I have to say I was overwhelmed by the passion and enthusiasm that I experienced on the 10th November. I am determined that we now build on this momentum as we mainstream equality in the NHS and engage more effectively by using the EDS as the tool and guided by the principles and values of the NHS Constitution."
This again somewhat misses the point. The Equality Delivery System, in spite of the implication in the poorly chosen name, is a framework for measuring progress on a range of key process essentials and outcomes. It is not, itself, the solution.
What Nicholson fails to say is that, in spite of many urging him to do so, he ducked the opportunity to make the EDS a mandatory requirement for NHS organisations to complete. Flaws in the design also make it very difficult for stakeholders to hold participating organisations to account using the EDS as a tool.
My own research on the EDS, carried out across several English regions, shows that in some parts of the country less than half of NHS organisations have taken part in the EDS (and in many regions those who did have not published their assessments). Where I could get hold of the headline assessments, these varied in one region between trusts claiming they were Achieving in less than 10% of the 18 outcome areas and others claiming they were Achieving or Excelling in over 80%. If the EDS as implemented was supposed to be part of the solution, there are many questions to be answered.
And the disproportionate institutional issues are still here
Despite the assurances over two years from two of the top leaders in the NHS, the problems I've described, and which a raft of very senior clinicians have raised, appear to be no nearer to resolution.
The extent of the problems could perhaps be inferred from more detailed analysis of recent figures about compromise agreements sanctioned to pay off NHS staff. These figures were revealed in data submitted by the Department of Health to the Public Accounts Committee in April 2011.
Recent public attention has brought this data to light as potential evidence of the extent to which NHS staff have been paid off and 'gagged' by clauses when raising issues relating to safety. The main case which prompted this was that of a former NHS trust Chief Executive, Gary Walker, who was said to have received £500,000.
However, what caught my eye is that many of the payments listed in this data are for more modest amounts, less than six figures. There is no diversity breakdown accompanying the Departmental data. However, all the indications about the outcomes of disproportionality operating at the professional end of the NHS would suggest that at least some of these payments result from the contractual avoidance of messy employment tribunals by affected staff.
And when compromise agreements are declined and the grievances go to court they can result in very significant payouts indeed.
In January 2012 Elliot Browne was awarded £1 million for the 'systematic bullying and harassment' he was found to have experienced whilst employed by Central Manchester University Foundation Trust. And, in December 2011 Dr Eva Michalak received £4.5 million for sex and race discrimination and unfair dismissal by Mid Yorkshire Hospitals NHS Trust.
These two examples may be the high profile tip of the iceberg but they are not isolated cases. Coupled with the possibility that other cases are kept out of the courts by compromise agreements and their accompanying gagging clauses it is clear that the issues described here are not just matters of fair practice. They have major financial implications too. Discrimination, whatever the form, is expensive for the NHS. Payouts represent our money being spent in ways that could have been avoided on things other than care.
When senior clinicians are highlighting the issues and the response from the NHS leadership is a misdiagnosis of the problem and faith placed in misconceived solutions then these problems are not going to go away.
There is a challenge, but does the NHS have the right people in place to really understand the underlying issues and treat the actual problem?