Has NHS become a no-go area for compliance with equality laws?

Over this last 12 months, the performance of the NHS in Scotland has been so shambolic it is difficult to conceive that there is a government minister in charge.

Nicola Sturgeon, former Cabinet 
Secretary for Health & Equality

The fiddling of waiting times by NHS Lothian, first revealed early last year, just won't go away.  Just days ago, yet another error in the waiting list figures given to the Lothian Board was found.  Given the previous Cabinet Secretary for Health, Nicola Sturgeon, did not replace either the entire senior management cohort or the members of the Lothian Board itself but instead asked them to clear up their own mess, suggests a naive belief that the resignation of the previous NHS Lothian chief executive was a sufficient catalyst for change.

If the Laurel & Hardy waiting times act were confined to NHS Lothian, there might be some small comfort in that.  Not so.  An investigation by Audit Scotland revealed : 

"The management and scrutiny of the waiting-list systems have not been good enough.  During the period we reviewed, the Scottish government and boards were focussed on making sure waiting times targets were being met but not giving enough attention to how this was being done."

The complete reveal of the shambles across Scotland is in this report from Audit Scotland.  The slings and arrows at NHS Lothian show no signs of abating, with a report last month revealing complaints from Lothian patients surging upwards by 20%.    

One of the many elephants in the room which houses the NHS in Scotland has to be if management and scrutiny of waiting lists has not been good enough, how can we be confident the management and scrutiny in other areas, such as meeting the equality duties, has been good enough?  We can't.  Successive government ministers have refused to build central performance management data systems which would allow government to track, in real time, health board performance on a range of critical areas.

In the last few months, research has been published which shows the performance of health boards on meeting the equality duties begs the question that the same malaise found in performance on waiting  times may also be affecting performance in the NHS on equality.

In delivering Equal Pay, health boards seem determined to break the law and ignore promises made by the Cabinet Secretary for Health in 2009.  In October 2009, Nicola Sturgeon responded to a question from the Scottish Parliament's Equal Opportunities Committee :

'It was indicated [at a previous Committee round-table discussion on equal pay reviews] that advice had been given to NHS boards not to perform equal pay reviews to ensure that agenda for change remains equal-pay-proofed. I want to clarify that that is not the case. There remains an issue about the extent to which such reviews can be carried out while agenda for change reviews are under way, but there is a clear expectation that all boards will get on and complete those reviews as quickly as they can, and that they will go beyond the letter of the law to ensure that they are exemplary employers that live up to all the duties required of them.' [6^th October 2009]

In 2012 I conducted research across all of Scotland's councils and health boards to clarify just what the equal pay gap is in Scotland's public sector currently.  Three years on from that very clear and unequivocal assurance given by Nicola Sturgeon to the Scottish Parliament, I have found that across the NHS in Scotland’s 22 Boards, just 2 [9.09%] of the Boards were able to provide data on the gender pay gap. This shows a gender pay gap of either 4.3% at NHS 24 or 12.9% at the NHS State Hospital. 

This means that just 1 Scottish NHS Board has a gender pay gap which comes within the 5% criteria set by the EHRC.

I shared that research with government.  No reaction.  No plan to shake the health boards out of their almost pathological aversion to meeting the law and stopping the theft from the pay packets of women.  Not only are health boards not going beyond the letter of the law as Nicola Sturgeon said they would, they are ignoring it and have been ignoring it for some time.

More recent research into Equality Impact Assessment of health board budgets, shows how deep the equality crisis is in the NHS.  Just 1 of the 22 health boards offered an EQIA of their budget, with the other 21 Boards unable to offer a consistent reason for not checking their budgets for discrimination and adverse impact on people from the equality communities.

 NHS Lothian claimed that a single EQIA of its big [£1.4 billion] budget would be "meaningless".  Another health board said they did not do an EQIA as they were "not withdrawing services".  The health board which hosts a dedicated equality unit supposed to assist all other health boards with equalities work, NHS Health Scotland, said simply "NHS Health Scotland has not conducted an impact assessment of the budget".  

Our NHS is spending £multi-billions a year and has no credible system in place for checking that the equality bang from each and every pound spent is squeezed to the max.  It has for too many years been complicit in stealing from the pay packets from women as it avoided its legal duties on equal pay.  Its record on race equality and disability equality is threadbare, with a track record of producing equality schemes consuming several hundred pages of print from which emerged little measurable difference in the life experiences for black minority ethnic or disabled people when accessing and using the NHS.

Alex Neil, Cabinet Secretary for 
Health & Equality

The NHS is in deep trouble.  Audit Scotland has found performance management and scrutiny to be not good enough.  Evidence is piling up that health boards are breaking the law on equality.  It is as if health has become a no-go area for equality in Scotland.  Government and the EHRC need to enforce compliance by all health boards with all equality law and fast.  

Where's the beef in the equality commission in Scotland ?

A few weeks ago, parliament lightly grilled the Equality & Human Rights Commission [EHRC] in Scotland on what is was going to do with considerably reduced resources to eliminate discrimination and promote equality of opportunity   The Equal Opportunities Committee did the grilling and the Official Report describes only too well just how the heat of scrutiny exposed the lack of beef in the evidence burger [though there was a lot of cheese] offered up by the EHRC.  If you prefer to watch the sizzle of fat in the fire, you can catch up with the archived parliament tv video of the session.

Baroness Onora O'Neill of
Bengarve, part-time EHRC 
Chair  and part-time fish-fryer

One of the early areas of interest was around the Helpline, which used to be run by the EHRC but which was put out to tender by government and awarded in 2012 to a partnership between the private and voluntary sectors.  

In column 1070 of the Official Report, the Committee was told that the helpline advises only employees and service users, not employers.  Clarity on this issue was not helped when the Scotland Director in comments immediately beforehand invited his colleague to clarify what the new helpline offered employers when in fact employers are not offered advice or guidance by the helpline.  The issue cropped up again in 1071 when a Committee member referred to the helpline being aimed at smaller employers.  The EHRC delegates did not correct this confusion.  Maybe they were taking their lead from the Chair of the EHRC, Baroness Onora O'Neill of Bengarve, who is well known as being a part-time philosopher fish-fryer and seems content to see government dismantle the EHRC piece by piece, page by page.

Even once the confusion is cleared up, the gap remains - there is no helpline for employers.  Scottish government needs to consider providing an advice/help line for employers and for service providers.  The continued absence of a structured and focused help/advice line for this group will inevitably have an adverse impact on the rate at which equality is delivered.  

References to the Helpline and its flaws crop up throughout the evidence session, with the EHRC team conveying to the Committee an impression that it is a somehow well-intentioned and innocent bystander in the unfolding disarray and that somehow, if it was all back in their hands/direct control, the sun would shine more often and the helpline would provide more information to more people.  If you listen carefully, you can just about hear Judy Garland soundtrack the evidence session with 'Somewhere over the Rainbow'.

The EHRC somehow omitted to share with the Committee that it sits on a reference group established to oversee the operation of the new Helpline and that a meeting of that reference group took place the week before the Committee session with the EHRC.  Two EHRC staff were present at that Helpline reference group and did not raise any of these concerns with the operators of the Helpline nor with the staff from Government Equalities Office [GEO] staff who were also present.

This was but one example of how the apparently succulent beef-burger of evidence offered by the EHRC turned out to taste suspiciously like horse-meat.  A critique of the horse-burger cooked up by the EHRC team, crinkle-cut gherkin and all, for the Committee can be read here.

Budget cuts in the public sector – deepening the grip of discrimination ?

Equality Impact Assessments [EQIAs] have become ever more crucial in these last few years of deepening recession and year-on cuts in public sector budgets and services.  In 2007-08, an organisation called Southall Black Sisters [SBS] faced funding cuts from Ealing Council in London.  This would have meant the complete closure of its operations.  Ealing Council argued that specialist groups were no longer necessary and pushed its own interpretation of ‘Social Cohesion’.  SBS users challenged Ealing Council and won a landmark victory at the High Court, deeming Ealing Council’s action as unlawful and contravening the Race Relations Act.  Part of the ruling included a clear indication that the courts expected public bodies to have formal written evidence that they had showed due regard to the equalities implications of their decisions and that EQIAs were recognised as good practice models of such evidence.  

The Equality & Human Rights Commission [EHRC] produced and published guidance on the need to compile evidence that due regard was given to equalities, particularly in financial decision making, and disseminated this widely.  The EHRC clearly favoured EQIA as the tool for this work, while recognising that it was not the only tool to achieve the end result – compiling evidence that decisions in budget setting had paid due regard to the 3 elements of the general equality duty.

With that history, it seemed a good time to research just how well public bodies in Scotland are doing in following the EHRC guidance on impact assessing their budget plans for financial year 2013/14. Given the vast amounts of money spent by both councils and health boards, it is essential that it is checked for evidence of discrimination and, where found, for that to be designed out.  In 2011, councils spent around £21 billion [£11.5 million in government grants], employed about 240,000 full-time equivalent staff and used buildings and other assets with a value of about £35 billion.  Health Boards are expected to spend around £11.6 billion in government grants during 2012-13.  That level of financial spend suggests enormous scope for identifying and eliminating discrimination which too many people still encounter on a daily basis in Scotland.

The research reveals overwhelming evidence, submitted directly by public bodies themselves, that the legislative framework on equalities is being routinely ignored.  Most councils and health boards seem to have taken their lead from the Rhett Butler style of management, effectively telling Baroness O'Neill, part-time fish-fryer of the EHRC, that 'frankly my dear I don't give a damn ... about equality'.

Alongside this, it is also clear that the tactical strategy of the EHRC – to encourage public bodies to deliver equality through guidance and support rather than enforcement – is unfit for purpose and is failing to secure the elimination of the discrimination which blights the lives of people when using public services.  

In the particular context of this research, it has become obvious that the default cultural mind set in the public sector is to deny that there is any real depth or extent to discrimination within the sector.  The discourse within budget EQIAs is not on ‘cuts’, but almost always on ‘savings’.  The narrative within EQIAs rarely references discrimination, as if by airbrushing the word out of the public sector lexicon it can, in some parody of ‘Animal Farm’, demonstrate that all are already equal and indeed that some are more equal than others.

Without the radical changes recommended in the research, the structural and institutional discrimination which is inherent in the setting of public sector budgets will continue to flourish unchecked and will in turn continue to present a major barrier to all other work on eliminating discrimination and providing equality of opportunity.