WEBVTT 00:00:00.000 --> 00:00:00.500 Music 00:00:00.500 --> 00:00:10.740 Okay, well ladies and gentlemen, 00:00:11.220 --> 00:00:14.860 today's conference is going to be something of an assessment sandwich, I think, 00:00:15.320 --> 00:00:18.880 by which I mean that the filling is going to have a distinctly assessment flavour to it, 00:00:19.260 --> 00:00:22.300 but the bread that holds it together, the two keynote presentations, 00:00:22.600 --> 00:00:24.520 they're going to have an altogether different taste. 00:00:25.260 --> 00:00:29.980 Part of the aim of this conference is to help people within the field of educational assessment 00:00:30.000 --> 00:00:34.300 see broader horizons and to explore risk-related parallels from other fields. 00:00:35.080 --> 00:00:38.640 And our first speaker, Professor Alistair Scotland, is from the health sector. 00:00:39.480 --> 00:00:43.400 And he brings us insights from his experience of governance and regulation in the medical professions. 00:00:44.900 --> 00:00:49.920 Alistair graduated in medicine from Aberdeen University, becoming a surgeon and then later a plastic surgeon. 00:00:50.580 --> 00:00:55.280 He entered management in the 1980s, moving through a range of job titles in London-based jobs, 00:00:55.280 --> 00:01:00.680 from regional medical officer to medical director and director of medical education and research 00:01:00.680 --> 00:01:06.000 before being invited to set up the National Clinical Assessment Authority in April of 2001. 00:01:07.160 --> 00:01:12.500 Alistair led the NCAA which later became the National Clinical Assessment Service until his 00:01:12.500 --> 00:01:19.320 retirement in August 2011. Alistair has more letters after his name than our fingers and toes 00:01:19.320 --> 00:01:22.240 but three which he acquired most recently 00:01:22.240 --> 00:01:24.740 were an OBE from the 2012 00:01:24.740 --> 00:01:25.880 Birthday Honours list 00:01:25.880 --> 00:01:27.860 Alistair is going to be speaking for about 00:01:27.934 --> 00:01:32.454 40 minutes there and then I'll return to the stage to chair a very short I think question 00:01:32.454 --> 00:01:36.194 and answer session. So Alisha it's a pleasure to welcome you here today. 00:01:43.834 --> 00:01:51.994 Thank you very much. Ladies and gentlemen I love to teach. I love to teach in the same way as 00:01:51.994 --> 00:02:01.234 people love to write, people like to make music and even to paint and love is a kind of an odd 00:02:01.234 --> 00:02:06.654 word to use in that setting because it's something that makes you boil with frustration at the 00:02:06.654 --> 00:02:11.314 difference between what you're trying to achieve and what you actually achieve that makes you snap 00:02:11.314 --> 00:02:17.654 your colleagues noses off and kick the dog but I can never remember a time when I did not love 00:02:17.654 --> 00:02:23.574 the world of teaching and education. I had my first experience of teacher training just before 00:02:23.574 --> 00:02:30.554 my eighth birthday when I started tagging along with my father and mother when my father twice a 00:02:30.554 --> 00:02:39.234 year used to lead training conferences, training workshops in Shakespeare in Stratford and Avon 00:02:39.234 --> 00:02:44.334 and we used to spend a week in workshops, acting practice, all of that stuff, learning about 00:02:44.334 --> 00:02:49.574 teaching Shakespeare and it was punctuated by, in that first year, watching Charles Lawton play 00:02:49.574 --> 00:02:55.214 Bottom, watching Laurence Olivier play Coriolanus and watching Paul Robeson play Othello. 00:02:55.868 --> 00:03:02.868 That was intensified by my father's out-of-hours work, which was very much about the boards of the stage. 00:03:03.328 --> 00:03:06.208 It was about writing for the radio and for the television. 00:03:07.048 --> 00:03:15.468 And so when I was not steeped in teacher education, I was either in the wings, on the stage or in the audience. 00:03:15.988 --> 00:03:18.468 So, ladies and gentlemen, I love to teach. 00:03:18.468 --> 00:03:23.948 Now, I'm looking around all of you and you're all thinking this is more information than I need. 00:03:23.948 --> 00:03:31.108 but the point is and I want you to hold this in your mind that my love of teaching and education 00:03:31.108 --> 00:03:39.048 is exactly that I am an amateur the overwhelming majority of you here today are professionals 00:03:39.048 --> 00:03:45.208 and that distinction will lie at the heart of everything I'm going to say today now my task 00:03:45.208 --> 00:03:51.788 today is to set out my perspective on the current debate about regulation and governance 00:03:51.788 --> 00:03:59.968 and I've divided our drama into five acts and as you can see they are laid out there the first one 00:03:59.968 --> 00:04:06.028 which we are in at the moment is a little bit more about me very little but more about the 00:04:06.028 --> 00:04:11.088 importance of this and the breadth of this as a topic across society not just across my own 00:04:11.088 --> 00:04:17.368 industry of health but also of all the other industries that we are involved in secondly I'm 00:04:17.368 --> 00:04:23.808 going to do a bit on the history and inheritance of the field. Then I'm going to talk a bit about what I see 00:04:23.802 --> 00:04:30.962 is a perfect storm that we have been through in my industry, but I think it has affected most of 00:04:30.962 --> 00:04:35.822 the public sector industries and indeed more recently some of the very commercial sector 00:04:35.822 --> 00:04:46.122 industries. The fourth act is about where I think we might go and with one sting in the tail, 00:04:46.122 --> 00:04:55.362 one warning about it and then finally I will review it. Now a bit more about that first act. 00:04:55.802 --> 00:05:01.102 Well as you can see I've spent my career in medicine, you've heard about that and I won't 00:05:01.102 --> 00:05:07.902 presume to reinterpret what I say today for the world of education. Now the reason I'm doing that 00:05:07.902 --> 00:05:14.462 is twofold. Firstly I'm an amateur and therefore if I tried I'd get it wrong but secondly and more 00:05:14.462 --> 00:05:21.162 to the point an audience this size is diverse and so if I successfully reinterpret for one group 00:05:21.162 --> 00:05:29.062 I will not for another but I'm hoping that what I say will have some some resonance so the world 00:05:29.062 --> 00:05:35.662 of governance and the world of regulation can seem arcane to the public and that there are good 00:05:35.662 --> 00:05:43.182 reasons for that because essentially regulation is about worlds which are focused on very complex 00:05:43.182 --> 00:05:48.102 activities, highly developed activities, they are not easily accessible to the public. 00:05:48.662 --> 00:05:51.742 But of course when things go wrong that does, that's 00:05:51.736 --> 00:05:58.696 set of characteristics does not mean that it is not very easily understood and that the the 00:05:58.696 --> 00:06:06.116 consequences are not profound and I've got three examples here of something that was very profound 00:06:06.116 --> 00:06:16.096 but in a very complex area in 1983 in a quiet and affluent suburb of Aberdeen the residents in this 00:06:16.096 --> 00:06:24.776 hotel, where sitting having breakfast, when an explosion in the kitchen tore off the front of 00:06:24.776 --> 00:06:30.916 the hotel, destroyed the roof, and took the dining room down into the basement kitchens. A large 00:06:30.916 --> 00:06:38.516 number of people were killed. And the point about it was that there was clear knowledge of what the 00:06:38.516 --> 00:06:46.676 problem was but Scottish Gas admitted later that it simply decided not to carry out the relevant 00:06:46.676 --> 00:06:54.476 modifications because they were too expensive. Eventually they realised they should do it 00:06:54.476 --> 00:07:01.396 and they ordered that thing there which we all now have in our gas meters, those of us who have gas, 00:07:01.396 --> 00:07:02.516 It's called the gas governor. 00:07:03.936 --> 00:07:05.116 That's my first one. 00:07:06.116 --> 00:07:07.796 This is Hurricane Katrina. 00:07:09.056 --> 00:07:12.576 Seven years ago, it slammed into New Orleans. 00:07:14.196 --> 00:07:15.916 The importance of putting it here, 00:07:16.016 --> 00:07:18.136 that, by the way, is the water pouring over the levees. 00:07:19.670 --> 00:07:23.450 The importance of this is that little report in the bottom right-hand corner there. 00:07:24.890 --> 00:07:31.950 Essentially, in the wake of it, a very significant number of medical practitioners who had been struck off 00:07:31.950 --> 00:07:39.850 presented themselves claiming to be fully registered medical practitioners to help. 00:07:40.550 --> 00:07:45.010 They were banking on the fact that their records had been destroyed in the flood 00:07:45.010 --> 00:07:48.730 and that that was a way of getting back onto the register. 00:07:49.670 --> 00:07:58.030 and in the northwest of England, over a period of 23 years, 00:07:58.970 --> 00:08:09.710 a much-loved local GP is estimated to have killed at least 215 of his patients. 00:08:10.390 --> 00:08:17.850 Now, the point of putting those forward is that all three of those are about an actual or potential failure in governance. 00:08:17.850 --> 00:08:25.730 the the first one i've explained the second one which was a near miss was about an attempt to 00:08:25.730 --> 00:08:32.150 circumvent proper controls and the third it was a repeated cynical abuse of a power gradient 00:08:32.150 --> 00:08:37.210 but what also connects them of course is tragedy i made the point earlier about the 00:08:37.210 --> 00:08:41.270 profound nature of a failure of regulation a failure of governance the really 00:08:41.270 --> 00:08:47.610 immediate impact it has on people the tragedy that connects these i was always brought up in 00:08:47.604 --> 00:08:53.564 that Greek tradition that the tragedy or at least the seeds of it lie in the flaw and the flaw is 00:08:53.564 --> 00:09:00.664 what I will be talking about so moving on to a bit a bit more of the theory and I should at this 00:09:00.664 --> 00:09:07.304 point say that some of what I will say will sound a bit like one of those 1950s dance classes slow 00:09:07.304 --> 00:09:13.624 slow quick quick slow so some of this I will move rather more rapidly than others but I have said to 00:09:13.624 --> 00:09:19.864 the organisers that if anyone here would like a copy of the slides that I've put up I'm more than 00:09:19.864 --> 00:09:25.644 happy for them to have it. Everything I say either is already in the public domain or by the time 00:09:25.644 --> 00:09:37.844 I'm finished will be. So the history of governance in individual practice essentially is steeped in 00:09:37.844 --> 00:09:44.624 the history of professionalism and if you actually go through the literature you effectively come up 00:09:44.624 --> 00:09:50.704 with three features which describe professionalism and I don't believe it's anything to do with just 00:09:50.704 --> 00:09:56.264 being a doctor or a teacher or an examiner anything else. The first one is that there is 00:09:56.264 --> 00:10:03.284 a specialized knowledge, a highly technical knowledge and the purpose of that is to enable 00:10:03.284 --> 00:10:05.784 those three things that I've set out there. 00:10:05.784 --> 00:10:08.424 To know what to do, to be able to justify it, 00:10:08.424 --> 00:10:10.384 and to do it safely. 00:10:10.384 --> 00:10:14.004 Secondly, that there is a socially approved 00:10:14.004 --> 00:10:15.544 self-governance. 00:10:15.538 --> 00:10:20.518 And this is a crucial one for the whole of the issue that I'm going to be talking about. 00:10:21.018 --> 00:10:26.178 And thirdly, and very importantly, commitment to service and devotion to the public good. 00:10:26.298 --> 00:10:30.818 And of course, that third one takes you quite quickly, in the case of my own profession, 00:10:30.938 --> 00:10:34.918 to the Hippocratic Oath or something equivalent to it. 00:10:35.118 --> 00:10:42.338 What it produces, of course, is an idea that the professions and the arena that the professions work in 00:10:42.338 --> 00:10:45.418 are altruistic and they are value-laden. 00:10:45.538 --> 00:10:48.278 but it does also take you in some of the literature 00:10:48.278 --> 00:10:52.258 to some of the debate that leads to the George Bernard Shaw comment 00:10:52.258 --> 00:10:55.978 that all professions are conspiracies against the laity. 00:10:56.478 --> 00:11:01.778 There is a use of this obscurity, this arcaneness. 00:11:01.778 --> 00:11:06.218 There is a use of that in order to produce a blank screen 00:11:06.218 --> 00:11:07.938 between the public and yourself. 00:11:07.938 --> 00:11:19.358 so what then arises is what is the nature of being a professional and in my world the two 00:11:19.358 --> 00:11:26.058 probably two best writers are Richard and Sylvia Cruz they have been writing for very many decades 00:11:26.058 --> 00:11:31.378 now they're now well into their 90s but still very active have described two quite distinct 00:11:31.378 --> 00:11:37.718 but overlapping roles one is the healer if you like the practitioner and the other one is the 00:11:37.718 --> 00:11:40.538 and the best way of describing the distinction 00:11:40.538 --> 00:11:43.478 between the two is something you very often 00:11:43.472 --> 00:11:48.872 often here in my world and I suspect you're here in the world of education as well. It's a statement 00:11:48.872 --> 00:11:56.512 along the lines of I just want to treat patients or I just want to teach students or you know 00:11:56.512 --> 00:12:03.592 whatever. I can't be bothered with all this bureaucracy. Now the difficulty is that if you 00:12:03.592 --> 00:12:10.032 want to be a professional you have to do the other stuff. It's all right for the healer or the 00:12:10.032 --> 00:12:19.452 practitioner just to do one bit but the professional needs to do the lot. So moving on from that 00:12:19.452 --> 00:12:29.612 if you start to look at what regulation is about you can pull together essentially three sets of 00:12:29.612 --> 00:12:41.612 things. The first one is the purposes of regulation. Then you get into the criteria by which you would 00:12:41.612 --> 00:12:47.532 select something for regulation. And then finally, something that describes the way they work. So if 00:12:47.532 --> 00:12:55.972 we stick first with the purposes of regulation, essentially they are fourfold. And I would argue 00:12:55.972 --> 00:13:02.892 the latter two very much bring in a strand that I haven't yet picked up and I won't spend a lot 00:13:02.892 --> 00:13:08.532 of time on today because what I've talked about so far is very much the world of quality regulation 00:13:08.532 --> 00:13:11.332 but of course there's a completely separate strand of 00:13:11.406 --> 00:13:18.766 market regulation which is as important. The principles are identical between the two but I 00:13:18.766 --> 00:13:25.106 will devote most of what I talk about to the world of quality regulation because that is the one that 00:13:25.106 --> 00:13:32.386 operates most forcibly in the health industry. But essentially the purposes, why you regulate, 00:13:32.886 --> 00:13:39.146 firstly it is about protecting the knowledge base, secondly it's about maintaining competence 00:13:39.146 --> 00:13:44.326 and teaching it in people who want to be part of that set up. 00:13:45.026 --> 00:13:47.346 Thirdly, it's about protecting the consumer, 00:13:47.486 --> 00:13:48.986 the devotion to the public good. 00:13:49.746 --> 00:13:54.486 And fourth, it's about ensuring the fair operation of the market. 00:13:56.486 --> 00:14:02.446 So why would we select someone for a regulated activity 00:14:02.446 --> 00:14:04.586 or something for a regulated activity? 00:14:04.806 --> 00:14:08.926 And essentially there are two sets of criteria that I would argue 00:14:08.926 --> 00:14:15.366 need to be applied if you look at the literature. The first is this thing I've kept going on about, 00:14:15.366 --> 00:14:22.626 the obscurity of what you are doing to society. And the second one, and this is importantly 00:14:22.626 --> 00:14:29.686 entangled with the first one, is that the oversight of that activity, whether that is 00:14:29.686 --> 00:14:37.746 a market-regulated activity or a quality-regulated activity, the oversight, it is impracticable 00:14:37.746 --> 00:14:39.346 to a 00:14:39.340 --> 00:14:47.760 achieve either through a relevant legal code or through relying on market forces. Now I'm going to 00:14:47.760 --> 00:14:54.880 come back to that later because this can become really quite an important element of the elephant 00:14:54.880 --> 00:15:00.200 trap that I will talk about at the end and to telegraph that right up front the elephant trap 00:15:00.200 --> 00:15:06.720 I will be talking about is inappropriate external influence on a regulated industry. 00:15:06.720 --> 00:15:14.720 so those are the criteria for selection and the third group is how do they work 00:15:14.720 --> 00:15:20.200 and that essentially is about a set of rules this is not a blinding insight 00:15:20.200 --> 00:15:28.060 but the important bit is that it's in the context of the law it is by definition subsidiary to the 00:15:28.060 --> 00:15:36.880 law and secondly that the enforcement feels a bit like the law now on that slide essentially 00:15:36.880 --> 00:15:44.820 is regulation if if you can make your way through that slide then you will get a feel for why we do 00:15:44.820 --> 00:15:50.660 it what it is we do and how it is that we do it so 00:15:50.660 --> 00:16:07.280 So, the real test, however, and that's, if you like, that's the theory. The real test of regulation is how does it work in practice? And from this point of view, this is where I'm moving. 00:16:07.274 --> 00:16:13.094 into saying the gold standard of any regulated activity is that it picks up the remarks we had 00:16:13.094 --> 00:16:21.314 at the beginning, that there is an ability to predict, to prevent, to identify and to manage 00:16:21.314 --> 00:16:29.734 when things go wrong. Of course regulation is much more broadly based than that and it does a lot 00:16:29.734 --> 00:16:36.874 more than that. It's very much about the whole of that particular activity but the real bottom line 00:16:36.874 --> 00:16:44.854 for the success of any regulated activity is if it can achieve, if it can set up an environment in 00:16:44.854 --> 00:16:50.094 which those four things can be successfully achieved. Prediction, prevention, identification 00:16:50.094 --> 00:16:58.134 and management of the untoward. Now this is where I move into, if you like, systems that we have in 00:16:58.134 --> 00:17:05.034 place to assure governance. These come from my world of the health industry, I believe they can 00:17:05.034 --> 00:17:14.054 be more broadly set. And the first of the three worlds of governance, if you like, the three 00:17:14.054 --> 00:17:23.554 estates of governance, are about being equipped for practice. This is about capability. This is 00:17:23.554 --> 00:17:30.594 the world of the universities, the world in my world of medical schools, of postgraduate deans, 00:17:30.594 --> 00:17:33.014 of Directors of Medical Education. 00:17:33.174 --> 00:17:34.514 I know Diana's here today. 00:17:35.208 --> 00:17:38.848 this is all about assessment. 00:17:39.788 --> 00:17:42.388 This is the world of educational appraisal. 00:17:43.268 --> 00:17:48.508 And as I say, this is about assuring the capability of the field. 00:17:49.068 --> 00:17:51.688 The second one is about delivery. 00:17:52.168 --> 00:17:54.528 This is about being fit for purpose. 00:17:54.708 --> 00:17:55.948 This is the world of management. 00:17:56.548 --> 00:17:58.988 This is the world of organisational delivery. 00:17:59.208 --> 00:18:02.008 This is the world of individual performance review. 00:18:02.008 --> 00:18:10.188 and the third one is the world of ethics the ethical basis of practice this is the world of 00:18:10.188 --> 00:18:17.408 the professional regulators in terms of my world it is the plethora of professional regulators in 00:18:17.408 --> 00:18:23.288 health but there are also the various general teaching councils whether they still exist or 00:18:23.288 --> 00:18:31.568 don't and I will come back to that phenomenon as well and this is about licensure and re-licensure 00:18:31.568 --> 00:18:36.288 it's about having a franchise to deliver if you're an organisation and so forth. 00:18:36.728 --> 00:18:42.548 So essentially these are about capability, about delivery and about ethics 00:18:42.548 --> 00:18:46.948 and these essentially are the vehicles, the tools that are used. 00:18:48.128 --> 00:18:52.408 So what mechanisms might we use for identifying underperformance? 00:18:52.648 --> 00:18:56.888 Well I've talked about those three and I won't talk any more about them. 00:18:56.888 --> 00:19:03.148 But the second group is actually what are the self-writing 00:19:03.142 --> 00:19:09.322 mechanisms that are in place. I've talked about the theory, the regulatory stratosphere, the national 00:19:09.322 --> 00:19:16.082 bodies that exist in the national architecture, but actually that's only one of what I would call 00:19:16.082 --> 00:19:23.382 the four levels of regulation. This is a widely recognised analysis in a number of different 00:19:23.382 --> 00:19:32.082 arenas, but it starts with true, and I would argue unique, self-regulation. This is the individual 00:19:32.082 --> 00:19:37.602 knowing their own boundaries, wanting to stretch them but staying within them. But there's also 00:19:37.602 --> 00:19:43.722 team regulation, that's caring for each other, acting as the critical friend and so forth. 00:19:44.602 --> 00:19:49.842 Organisational regulation, which is about the entire organisation that you're part of, 00:19:50.162 --> 00:19:54.622 in health, the health economy you're part of, the educational economy you're part of. 00:19:55.062 --> 00:19:59.782 And then finally, the bit I have been talking about so far, statutory regulation. 00:19:59.782 --> 00:20:08.162 but how do we get concern? I would argue there are three sources and they're all as important 00:20:08.162 --> 00:20:16.082 as each other. Possibly the first is the most important, self-regulation. The little voice 00:20:16.082 --> 00:20:21.882 that tells you somebody might be looking as H. L. Mencken said. Then there's the consumers. 00:20:22.282 --> 00:20:27.482 We have to listen to them. We have to pay attention to them. We are notorious in the 00:20:27.482 --> 00:20:30.742 health industry for not paying attention to the consumers. 00:20:31.076 --> 00:20:37.856 either the patient or the carer. And then finally, there are the colleagues. They're often the loudest 00:20:37.856 --> 00:20:45.596 and often the least effective. In my world, I very often see situations where posses of consultants 00:20:45.596 --> 00:20:51.676 will stomp about a hospital saying something must be done. And when one says, fine, now would you 00:20:51.676 --> 00:20:56.436 kindly tell me what the problem is? They melt away like, as they say in my part of the world, 00:20:56.436 --> 00:21:07.996 snow off a dike. So those are the mechanisms. That, as I say, is the theory and that is how it should 00:21:07.996 --> 00:21:20.676 work. Now we move on to Act 3. We're at the midpoint and I would argue that we've seen the 00:21:20.676 --> 00:21:26.316 development of regulatory structures. The structures themselves really started in the 00:21:26.316 --> 00:21:32.436 mid-19th century and they started as a direct consequence of the heavy development of 00:21:32.436 --> 00:21:37.896 professionalism through the Industrial Revolution. There was a lot of opposition to their introduction 00:21:37.896 --> 00:21:43.376 and there was a lot of opposition because of what I've been alluding to, the notion that we don't 00:21:43.376 --> 00:21:48.236 like to be challenged. But the fact is they came in, there was an enormous expansion in them 00:21:48.236 --> 00:21:52.856 and particularly those of us of a certain age here 00:21:52.856 --> 00:21:56.496 grew up with quite a complex environment, 00:21:56.496 --> 00:21:59.016 regulatory environment in which to work. 00:21:59.010 --> 00:22:09.550 It all started to seem to go wrong in the late 1980s and early 1990s, but I would argue the seeds of that were sown a great deal earlier. 00:22:10.550 --> 00:22:18.270 I would actually argue that they were sown paradoxically by the welfare state reforms immediately after the Second World War. 00:22:19.010 --> 00:22:26.130 That was the world I grew up in, and it was one we felt very safe in. 00:22:26.130 --> 00:22:34.430 the state will manage, the state will do it. But what I've talked about up till now is a contract 00:22:34.430 --> 00:22:41.990 between an industry or between an individual or between a profession and society at large. 00:22:42.530 --> 00:22:48.090 With the management of that contract being in order to take away from the public at large 00:22:48.090 --> 00:22:53.590 the challenge of managing something it found difficult to understand or was not easily 00:22:53.590 --> 00:22:59.150 accessible. I would argue that the welfare state reforms at the end of the Second World War actually 00:22:59.150 --> 00:23:06.410 started to introduce a wedge between the public at large and the professions, the industries that 00:23:06.410 --> 00:23:12.810 were being regulated and I think it was in part because of what I've just said this business of 00:23:12.810 --> 00:23:20.490 the state will provide but I think also there was a sense of a falling off in that commitment to 00:23:20.490 --> 00:23:26.950 public service among the professions generally. 00:23:26.943 --> 00:23:35.023 What that moved on to, and I suppose one should have seen an early example of it. 00:23:35.023 --> 00:23:39.503 I talked earlier about my family background in teacher education. 00:23:40.203 --> 00:23:44.183 My father was very much involved in the group that set up the General Teaching Council for Scotland, 00:23:44.363 --> 00:23:46.703 which was the first of its type anywhere. 00:23:47.283 --> 00:23:49.183 Indeed, he was seen as one of the prime movers. 00:23:49.903 --> 00:23:52.243 There were some who were quite implacably opposed to it, 00:23:52.243 --> 00:24:00.783 and one particular high-profile individual who marshaled arguments that really very firmly gave you an idea 00:24:00.783 --> 00:24:05.943 that this person did not see themselves as having any accountability to the public for what they were delivering, 00:24:06.643 --> 00:24:12.903 got so frustrated with the relentless progress towards the introduction of the General Teaching Council for Scotland 00:24:12.903 --> 00:24:21.223 that I can still remember when he had one day at his own expense had a ton, a full ton of fresh 00:24:21.223 --> 00:24:31.163 steaming horse manure delivered to our back garden. Which sight met me rather later than the smell 00:24:31.163 --> 00:24:37.943 arriving home from school? My father was understandably distressed about this and he 00:24:37.943 --> 00:24:41.523 She said, oh, Jean, we're really going to have to do something about this. 00:24:41.663 --> 00:24:46.323 Too right, she said, as she strode past him in a pair of Wellington Boots gardening clothes, 00:24:46.803 --> 00:24:48.863 brandishing a fork and a beaming smile. 00:24:49.423 --> 00:24:52.463 They were the best roses and fruit we ever had. 00:24:53.183 --> 00:24:54.843 The point of the story, however, is... 00:24:54.877 --> 00:25:01.237 not that, it is that it was quite striking that there was a significant minority who were starting 00:25:01.237 --> 00:25:11.597 to lose sight of that contract. So how it happened in medicine, and this is where I'm going to go 00:25:11.597 --> 00:25:16.657 very much into the health sector, was that in the 1990s we had a governance crisis. 00:25:17.617 --> 00:25:23.957 It had four features and I think they do have resonance but they are very much about my world. 00:25:23.957 --> 00:25:40.077 The first was we were tolerating poor performance, and I will challenge everyone in this room to put up a hand if they have never been in the situation where they've seen something in their world which was not right, and they did nothing about it. 00:25:40.077 --> 00:25:48.497 second we kept doing it it kept happening we've heard more eloquently and more concisely than I 00:25:48.497 --> 00:25:54.457 can ever do the challenge on patient safety that the health service faces and the biggest challenge 00:25:54.457 --> 00:26:00.377 it has was it just keeps happening we didn't seem to learn thirdly we did not have good systems 00:26:00.377 --> 00:26:08.237 for responding highly adversarial not surprising given everything I've said so far and lastly we 00:26:08.237 --> 00:26:14.717 had the glories of the media, which of course overwhelmingly focused on blame, finding someone 00:26:14.717 --> 00:26:16.997 to kick around the front pages. 00:26:17.577 --> 00:26:22.817 And the point of that was it made it very difficult to have a proper debate about the real 00:26:22.811 --> 00:26:29.231 issues that are going on and if anything is resonant for the issues that are facing education 00:26:29.231 --> 00:26:36.831 and assessment today that last one for me is the most important. So what do we do? Well first of all 00:26:36.831 --> 00:26:42.751 what did that mean? Over on the left there you see the victim of the patient safety incident, 00:26:43.491 --> 00:26:49.811 you see the family rather upset about it all and the person bottom left I think is probably the 00:26:49.811 --> 00:26:53.951 local chief executive who is finding it very difficult indeed to talk to anyone. 00:26:55.471 --> 00:27:01.171 A little bit later the lawyer arrives and instructs three barristers and nobody is yet 00:27:01.171 --> 00:27:04.291 talking to the family. And for the staff... 00:27:07.571 --> 00:27:16.091 So what about the response? Well this essentially was a three-phase approach to reform. I'm going to 00:27:16.091 --> 00:27:20.191 skate through these fairly quickly but there are some important elements to it. 00:27:20.991 --> 00:27:27.311 Essentially the first thing was making accountability for the quality as well as the market, the 00:27:27.311 --> 00:27:34.951 financial regulation of the health sector, making that centre stage. So it brought together market 00:27:34.951 --> 00:27:42.191 regulation and quality regulation in health and chief executives feel very accountable despite 00:27:42.191 --> 00:27:44.931 what a lot of my colleagues in the medical profession think. 00:27:46.371 --> 00:27:48.431 There were a lot of underpinning bodies 00:27:48.431 --> 00:27:50.591 that were introduced at that point. 00:27:50.745 --> 00:27:52.765 and that's an important point as well. 00:27:53.025 --> 00:27:54.405 Mine is somewhere in there. 00:27:55.685 --> 00:27:59.485 The second group was a modernisation of modern HR practice, 00:27:59.485 --> 00:28:02.505 and the third was a reformed professional regulation. 00:28:02.965 --> 00:28:03.825 The first is key. 00:28:04.285 --> 00:28:06.945 Unless you get accountability sorted, 00:28:07.765 --> 00:28:09.205 nothing else will work. 00:28:09.885 --> 00:28:11.805 And I will keep coming back to that point. 00:28:12.725 --> 00:28:17.225 But the point was what that then felt like was like that. 00:28:17.225 --> 00:28:25.405 these are all bodies in the health sector that see themselves as having some responsibility for 00:28:25.405 --> 00:28:32.565 the quality of care at local level and it really can feel bewildering and oppressive. 00:28:33.945 --> 00:28:40.405 Now how have we done to meet this challenge? Essentially those are the three things I want to 00:28:40.405 --> 00:28:45.845 apply to see whether we've actually succeeded or not. The first is is there evidence that the 00:28:45.845 --> 00:28:50.785 public is more assured. That's the purpose of regulation. It is about managing a social contract 00:28:50.785 --> 00:28:58.925 on behalf of the public. So are the public more assured? Point two, are the problems that were 00:28:58.925 --> 00:29:06.725 coming up in the 90s, the 80s, 90s, is there any evidence they're lessening? And can we do it 00:29:06.725 --> 00:29:14.045 at a reasonable amount of money? Professional governance, this is the GMC, the GDC, all those 00:29:14.045 --> 00:29:18.685 acronyms which are essentially about the different professions in health. 00:29:18.679 --> 00:29:22.539 Actually, qualified rapture, modified rapture, this isn't bad. 00:29:22.699 --> 00:29:23.759 It's a lot better. 00:29:24.399 --> 00:29:29.259 The shift in the debate from the late 80s, early 90s about named people 00:29:29.259 --> 00:29:34.999 who were seen as being the focus of the problem, it's now about systems. 00:29:36.079 --> 00:29:39.619 That has an inherent problem built into it, which I'll come back to. 00:29:39.939 --> 00:29:41.399 And I've put some evidence there. 00:29:41.539 --> 00:29:45.059 I won't explore it in detail, but essentially there is some clear, 00:29:45.059 --> 00:29:47.979 hard evidence that the world there is getting better. 00:29:48.679 --> 00:29:53.279 but the fault lines are there, and they're still there, 00:29:53.459 --> 00:29:57.359 and there is an inadequate integration across the field. 00:29:57.599 --> 00:30:00.299 Please think of that in terms of your own world. 00:30:02.319 --> 00:30:04.299 What about systems governance? 00:30:04.499 --> 00:30:06.519 Well, this is nothing like as good. 00:30:07.439 --> 00:30:09.659 The problem here, in professional governance, 00:30:09.659 --> 00:30:13.419 a single bad failure can hit the headlines big time. 00:30:14.139 --> 00:30:16.919 In systems failure, it's repeated failure 00:30:16.919 --> 00:30:19.939 that will actually get you into the press. 00:30:20.839 --> 00:30:26.619 And the impact of the change is much less clear. 00:30:26.839 --> 00:30:29.679 We're still seeing the scandals coming forward. 00:30:30.279 --> 00:30:32.739 At the moment, there's a very big one in my world 00:30:32.739 --> 00:30:34.559 about the mid-Staffordshire hospitals, 00:30:34.919 --> 00:30:38.699 where over years there were sustained poor outcomes 00:30:38.699 --> 00:30:41.539 very much along the lines we were hearing earlier on. 00:30:42.499 --> 00:30:46.619 And it's still coming forward. 00:30:47.433 --> 00:30:49.053 The fault lines are still there. 00:30:49.153 --> 00:30:50.753 There is poor integration. 00:30:51.453 --> 00:30:54.513 And that leads directly with poor integration. 00:30:54.653 --> 00:30:56.533 The first thing that goes wrong is whistleblowing. 00:30:57.373 --> 00:31:01.253 People respond to whistleblowing not at all well. 00:31:01.933 --> 00:31:03.013 Do the dogs bark? 00:31:03.013 --> 00:31:05.273 If they do, what happens? 00:31:06.733 --> 00:31:12.613 And at Mid Staffordshire, my colleague Robert Francis, who is chairing that inquiry, 00:31:12.613 --> 00:31:17.113 the question he was asking right at the start was, why didn't the dogs bark? 00:31:18.353 --> 00:31:25.313 By the time I got to give evidence, the question he was asking was, the dogs were barking. 00:31:26.093 --> 00:31:30.273 Why was no one listening? Because they were barking in all the right directions. 00:31:31.473 --> 00:31:37.333 So what went wrong? Well, my colleague Cyril Chandler essentially said that once, 00:31:37.333 --> 00:31:42.333 and it's a very powerful statement. Medicine used to be ineffective and safe. 00:31:42.613 --> 00:31:53.153 now it is very effective it's very high in its impact and it's very unsafe it's a huge challenge 00:31:53.153 --> 00:31:59.133 and the difficulty is over my career what I have perceived 00:31:59.133 --> 00:32:05.773 is it's a bit like electing a politician you elect politicians on the basis of a fantasy you 00:32:05.773 --> 00:32:10.453 don't elect them for their track record you elect them because you think they'll they'll reduce your 00:32:10.453 --> 00:32:12.513 tax bill. So you 00:32:12.513 --> 00:32:14.553 elect someone on the basis of a 00:32:14.547 --> 00:32:21.207 fantastic future. And the problem is that that's what happens when these arm's length bodies are 00:32:21.207 --> 00:32:26.827 created. They are created on the basis of a fantasy. And when that fantasy isn't delivered 00:32:26.827 --> 00:32:33.307 because they have no existence outside of political whim, is they tend to be either 00:32:33.307 --> 00:32:40.147 reconfigured or actually abolished without any analysis of why the fantasy wasn't delivered. 00:32:40.147 --> 00:32:42.347 Was it a reasonable fantasy in the first place? 00:32:42.927 --> 00:32:44.627 And how were you measuring it? 00:32:45.907 --> 00:32:47.767 And so why is there a problem? 00:32:48.047 --> 00:32:49.747 Well, that summarises it. 00:32:49.887 --> 00:32:52.527 Point one, I've said it's busy, the landscape. 00:32:53.367 --> 00:32:58.987 Two, it doesn't reflect local practice. 00:32:59.987 --> 00:33:03.947 We still regulate according to a traditional retrospective approach 00:33:03.947 --> 00:33:09.047 to the way the world of that service, that industry is designed. 00:33:09.047 --> 00:33:22.767 And of course, we're comfortable with silos. So doctors will regulate doctors, nurses will regulate nurses, teachers will regulate teachers, and so examiners will regulate examiners, and so forth. 00:33:23.067 --> 00:33:36.927 But there's a third one, which I find quite pernicious, and it's very, very much the case in health, which is what I would call a sort of organisational snobbery, which can feel a bit like one of those German royal weddings of the turn of the 20th century. 00:33:36.927 --> 00:33:41.027 can an elector speak to anyone other than an archduke 00:33:41.027 --> 00:33:42.487 can't 00:33:42.481 --> 00:33:48.041 what kind of duke are you? Are you a duke of or a duke in? And does that make a difference to who 00:33:48.041 --> 00:33:54.361 I can speak to? That's what it can feel like in the health service. The current chief executive 00:33:54.361 --> 00:34:02.961 of the GMC said to me once despairingly, he said, going in through the door, you get this sense of 00:34:02.961 --> 00:34:11.961 we're the GMC. Now, well, yes, that's what it says on the door. But of course, there is that sense 00:34:11.961 --> 00:34:18.901 that he was railing against, that in some way it had a special status and could only deal 00:34:18.901 --> 00:34:26.641 upwards or sideways and never what it saw as downwards. And without a duty of cooperation, 00:34:26.701 --> 00:34:32.681 there is a big problem. So how do we make it better? 00:34:35.041 --> 00:34:38.841 This is just a summary of what I've said so far. I'm not going to go through the slide, 00:34:38.841 --> 00:34:45.541 but if you like I could have used it and substituted it for a lot of the earlier ones. 00:34:48.641 --> 00:34:52.681 Now these are the challenges that I think we've got to try and deal with. 00:34:53.661 --> 00:34:58.681 I've said that the social contract appears to be compromised. 00:34:59.521 --> 00:35:05.061 It isn't as strong, it's not entirely clear why it isn't as strong, I've suggested why. 00:35:05.061 --> 00:35:10.421 The regulatory landscape at the moment is seen to be ineffective. 00:35:10.415 --> 00:35:18.795 depressive, it's fragmented and it doesn't reflect local practice. There is a lack of effective 00:35:18.795 --> 00:35:26.275 cooperation. I've suggested one of the reasons why that is. Another colleague who's here today 00:35:26.275 --> 00:35:32.815 has described it as being a bit like the operation of a soap opera and I think that also fits with it. 00:35:32.815 --> 00:35:43.435 there is also a poor or absent collaboration with non-regulatory in other words this world isn't just 00:35:43.435 --> 00:35:49.315 about statutory regulation there's a lot of other organizations that underpin the quality 00:35:49.315 --> 00:35:56.355 and the quality of the market in in which we work and we need all to be working properly together 00:35:56.355 --> 00:36:02.235 and then of course finally there is a flavor of the political football around all of this 00:36:02.235 --> 00:36:12.015 so what do we need we need a simpler landscape and my first point would be that we only should 00:36:12.015 --> 00:36:19.275 regulate where we meet the criteria i set out earlier and actually if we just do that inflation 00:36:19.275 --> 00:36:24.315 deflation of arm's length bodies all the time then actually we're making a mockery of the market 00:36:24.315 --> 00:36:27.355 market forces, and we're making a mockery of the law. 00:36:29.995 --> 00:36:31.215 I'm going to test that. 00:36:31.875 --> 00:36:33.115 The odd one out round. 00:36:34.515 --> 00:36:38.315 Which of these five people do you think is the odd one out? 00:36:38.349 --> 00:36:46.969 out. There we have Sir Lancelot Spratt, James Robertson Justins of course, this is the medical 00:36:46.969 --> 00:36:55.589 profession, this is the health industry. And there we have Dr Alex Smart of Narcover School, 00:36:56.189 --> 00:37:04.409 the world of education. And here we have the head of Gringotts Wizarding Bank. Oh, sorry, 00:37:04.409 --> 00:37:05.949 Oh, that's better. 00:37:09.829 --> 00:37:11.369 And there we have 00:37:11.369 --> 00:37:13.909 Stipendiary Magistrate Swallow, 00:37:14.229 --> 00:37:16.169 Alistair Sim, from misleading cases. 00:37:16.329 --> 00:37:17.049 There we have the law. 00:37:18.549 --> 00:37:20.449 And there we have Charles Foster Kane, 00:37:20.589 --> 00:37:21.229 the media... 00:37:21.229 --> 00:37:22.409 Oh, it's happened again. 00:37:22.949 --> 00:37:25.029 Sorry, Charles Foster Kane, 00:37:25.489 --> 00:37:26.369 the media mogul. 00:37:27.329 --> 00:37:28.589 You are absolutely right. 00:37:28.729 --> 00:37:30.289 The odd one out is the last one. 00:37:31.669 --> 00:37:34.109 The news media do not meet 00:37:34.109 --> 00:37:40.129 the criteria that I've set out this morning. So in my view, it is wrong to regulate them. 00:37:40.309 --> 00:37:46.289 We should simply use the law. So what do we need? That's the first one. The second one, 00:37:47.269 --> 00:37:54.989 regulatory structures need to reflect local practice. And I've asked the question there, 00:37:55.049 --> 00:38:00.469 in my industry, we have 10 bodies that see themselves as having a statutory role in the 00:38:00.469 --> 00:38:03.429 regulation of healthcare staff. 00:38:03.429 --> 00:38:05.369 That's bonkers. 00:38:05.369 --> 00:38:06.289 Step one. 00:38:06.283 --> 00:38:10.863 We need to have a single regulator, but we need to reflect that in the systems regulator. 00:38:11.043 --> 00:38:14.803 We've got a series of regulators that do systems in health as well. 00:38:15.083 --> 00:38:16.243 That makes no sense. 00:38:16.963 --> 00:38:19.683 So step two, they need to be unified. 00:38:20.223 --> 00:38:23.383 And step three, perhaps we have a single regulator for health. 00:38:26.403 --> 00:38:31.063 We also need a properly integrated approach. 00:38:31.063 --> 00:38:36.663 I would argue that we need to require, we need a legally binding duty of cooperation. 00:38:36.843 --> 00:38:40.823 If you want to be in the field of regulation or governance support, 00:38:41.083 --> 00:38:46.443 you need to come under the umbrella of a binding duty of cooperation, 00:38:47.343 --> 00:38:50.383 which is blind to your status. 00:38:51.043 --> 00:38:53.483 Remember my point about organisational snobbery? 00:38:53.483 --> 00:38:58.923 and it actually includes that last point 00:38:58.923 --> 00:39:01.403 that you've got to open the books. 00:39:03.163 --> 00:39:04.803 An elephant trap. 00:39:05.523 --> 00:39:09.123 This is the question of inappropriate external influence. 00:39:09.923 --> 00:39:11.043 We've all seen it. 00:39:11.243 --> 00:39:12.603 It naturally happens. 00:39:12.743 --> 00:39:15.363 It's one of those instincts that everyone has. 00:39:16.323 --> 00:39:21.143 Essentially, inappropriate political influence 00:39:21.143 --> 00:39:29.503 and I use it with both a large and a small p is easier to handle it's easier to see it happen 00:39:29.503 --> 00:39:34.223 shall we say essentially if those two sets of 00:39:34.217 --> 00:39:41.077 bullet points there, the first two sub-bullet points operate, i.e. firstly, if we're not 00:39:41.077 --> 00:39:50.477 sufficiently rigorous about deciding what we are regulating, secondly, that there isn't 00:39:50.477 --> 00:39:56.797 a justification for any other body that's there, and thirdly, that they don't work effectively 00:39:56.797 --> 00:40:04.897 together. And you need that to make sure it is working properly. The tighter and more effective 00:40:04.897 --> 00:40:12.737 it is, the less likely it is for the political algorithms of the time. In other words, if it 00:40:12.737 --> 00:40:18.197 isn't entirely clear why those people are there and why they're working together, given that they 00:40:18.197 --> 00:40:27.317 are subsidiary to the law then it is very much more easy for their actions to be influenced 00:40:27.317 --> 00:40:33.037 inappropriately. The best way I think of illustrating this is a particular anecdote which I'm sure is 00:40:33.037 --> 00:40:39.237 true. Some here like me are old enough to remember Her Majesty's inspectors of schools. Of course 00:40:39.237 --> 00:40:46.557 they're Ofsted inspectors down here now but some years ago, actually some decades ago, 00:40:46.557 --> 00:40:52.737 one particular HMI who was very, very proud of his teaching prowess, 00:40:52.837 --> 00:40:55.337 many decades as a teacher of religious education, 00:40:56.957 --> 00:40:58.677 was doing one such inspection. 00:40:59.157 --> 00:41:02.117 And he used to enjoy himself by adding to... 00:41:02.151 --> 00:41:10.391 the whole experience by engaging with the school students. And he said to one particularly bright 00:41:10.391 --> 00:41:20.191 young man, he said, tell me, Smith, who blew down the walls of Jericho? Smith looked up and said, 00:41:20.191 --> 00:41:26.151 please, sir, it wasn't me, sir. You can imagine he was a bit disappointed by this, and he went to 00:41:26.151 --> 00:41:32.691 see the head teacher and told the story and and and she looked suitably grave and said 00:41:32.691 --> 00:41:38.151 well I know Smith and if he said he didn't do it he didn't do it 00:41:38.151 --> 00:41:46.451 we can imagine the consternation at this point and when he got back to base he went to see the 00:41:46.451 --> 00:41:50.811 local director of education went into his office asked to see and went into his office told the 00:41:50.811 --> 00:41:56.031 whole sorry state. The guy there took off his glasses, put his head in his hands and said, 00:41:56.691 --> 00:42:02.091 well, let's not make too much fuss about it. Just find out what it cost and we'll write a 00:42:02.091 --> 00:42:06.311 check and that'll be the end of it. So, ladies and gentlemen, 00:42:07.311 --> 00:42:16.971 that is essentially what I have suggested we need into the future. Everything I've said here, 00:42:16.971 --> 00:42:22.231 down as far as moving upstream is summarised in the other slides. 00:42:23.311 --> 00:42:30.091 Those last two are, firstly, we need to move upstream. Today is a 00:42:30.085 --> 00:42:37.165 about moving upstream. Today is about risk, and risk is about the predictive end, the preventive 00:42:37.165 --> 00:42:42.945 end, and the early identification end. It's also about the management of those situations. 00:42:43.845 --> 00:42:51.865 And so we need what I've set out there, sensitive, specific systems, so they're sensitive enough to 00:42:51.865 --> 00:42:59.645 pick everything up and specific enough to know what's important. But also please note 00:42:59.645 --> 00:43:08.645 that if you identify failure early it is unlikely to have breached the standard below which 00:43:08.645 --> 00:43:17.865 nothing must fall. It's likely to have breached a target. Lastly it can be done light touch 00:43:17.865 --> 00:43:20.525 with frameworks and binding rules. 00:43:21.745 --> 00:43:23.385 And if we get it right, 00:43:24.585 --> 00:43:26.185 can we avoid that? 00:43:29.485 --> 00:43:31.845 And can we also avoid that? 00:43:32.885 --> 00:43:37.385 That cold, remote, arcane image. 00:43:38.705 --> 00:43:41.285 Ladies and gentlemen, thank you very much for listening. 00:43:41.285 --> 00:43:41.385 Thank you. 00:43:47.865 --> 00:43:48.865 Thank you.