Whistleblowing in Whitehall: Civil Servants’ Complaints about Breaches of the Civil Service Code since 2014

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 19 February 2019

 

Summary: Under the Civil Service Code, civil servants are required to observe values of integrity, honesty, objectivity and impartiality. They are required to whistleblow if they see evidence that the Code has been breached. Examination of published data by the Civil Service Commission, which is the final arbiter on complaints under the Code, reveals a picture of escalating complaints by civil servants in recent years but no proportionate increase in investigations by the Commission.

A total of 143 Code complaints have been examined by the Commission since April 2014, eleven (7.7%) of which were investigated and four (2.7%) of which resulted in findings of Code breaches. The most complained about Department was the DWP. The Commission has examined 30 complaints by civil servants about the DWP since 2014.

The Commission’s investigative procedure is variable. It appears reluctant to make findings of whistleblower reprisal. Even in a most egregious case of whistleblowing about suspected criminality in contract handling at the MoD, the Commission only criticised the poor whistleblowing governance but refrained from a finding of reprisal. It appears that whistleblowers in the civil service may get a promise of ‘better governance jam tomorrow’ but limited recognition of personal injustice, which can have a chilling effect on culture.

The Commission should in fact be more proactive and recognise that failures to protect and withholding of support are often a form of whistleblower victimisation.

The overall picture is of a clunky, slow, paternalistic and only partially effective and responsive mechanism for whistleblowing at the heart of the government. The public deserves better and a vital starting point is to reform UK whistleblowing law, to compel better minimum standards of practice.

 

Whistleblowing and the Civil Service Code

The Public Accounts Committee looked at whistleblowing in 2014 and advised that government departments should significantly improve their approach to whistleblowing. The Committee held one follow up hearing, in 2015, at which it was evident that the Cabinet Office had not done a good job in leading change, and had held only a single implementation meeting.

Here I examine the published data on whistleblowing by civil servants to the Civil Service Commission since 2014.

Civil servants can appeal to the Commission if their Departments have not properly handled whistleblowing about breaches of the Civil Service Code.

The Code was introduced in 1996, and has been revised since. It requires that civil servants observe the following values:

Integrity

Honesty

Objectivity

Impartiality

It also requires that they should report breaches of the Code.

The Civil Service handbook, the Directory of civil service guidance,

gives this advice about whistleblowing on Code breaches or other matters covered by the Public Interest Disclosure Act:

 

 What should I do if I become aware of wrongdoing? 

6. The Civil Service Code advises that you should report any actions that are inconsistent with its provisions (paragraph 11). First, you should raise the issue with your line manager. If for any reason, you would find that difficult you should report the matter to the nominated appeals officer within your department.

7. If you are unhappy with the response you receive, you may report the matters to the Civil Service Commissioners (paragraph 12 of the Civil Service Code).

Exceptionally, the Civil Service Commissioners will consider accepting a complaint direct.

8. These procedures should also be used if you wish to make any other disclosure covered by the 1998 Act.”

The Civil Service Nominated Officer model has parallels with the NHS Freedom To Speak Up Guardians, who may have been fashioned in their likeness by the mandarins behind the 2014 Freedom To Speak Up Review.

Interestingly, the Directory of civil service guidance hesitates to give assurance that Civil Service whistleblowers will be protected:

 “Will I be protected if I blow the whistle before going through the internal procedures?

9. Only you can make this judgement, and in doing so you will need to consider the preceding paragraphs carefully. It is preferable and this is at the heart of the Public Interest Disclosure Act to raise the matter internally if appropriate and practical. It is after all in the interests of the organisation and its workforce that issues and concerns are aired in this way. If you are in any doubt, you should speak to your departmental nominated officer (paragraph 6). Your conversation will be treated in absolute confidence.”

 

This is a House of Commons report about the Code and its history:

The Civil Service Code, 18 March 2015, Ref. SN/PC/6699

This briefing notes that in 1995, the UK government rejected advice from the Committee for Standards in Public life to set transparency standards for the Civil Service Commission: 

“It rejected however recommendations from Nolan for the Civil Service Commissioner to give detailed information about appeals made before them; leaving the nature and extent of reporting up to the Commissioners to decide.”

 The Commission’s published decision notices only summarise cases.

 

Code Complaints to the Civil Service Commission since 2014

I could find no thematic review of Code complaints on the Civil Service Commission’s website, so I looked at their raw published data on complaints instead.

Since April 2014, the Civil Service Commission has completed examining 213 complaints about alleged breaches of the Civil Service Code.

Data published by the Commission has been collated into a spreadsheet which can be found here.

 

The most complained about Departments were as follows:

DEPARTMENT NUMBER OF ALL COMPLETED CODE COMPLAINTS SINCE 1 APRIL 2014 (INCLUDING BY NON CIVIL SERVANTS)
DWP 46
MoD 27
Home Office 17 (one about Home Office – UK Visas and Immigration)
MoJ 13 (3 about NOMS)
HMRC 10
CPS 7
Department for Business Energy and Industrial Strategy 7
Food Standards Agency 5
Department of Health 5 (three about Public Health England)
Cabinet Office 4
TOTAL 141

However, 69 of the 213 complaints were not made by a civil servant or even about the civil service eg. “No civil servants involved”. One complaint from a former civil servant was not accepted. Putting those cases aside, the Commission examined a total of 143 complaints from current civil servants.

 

Civil servants complained most about the following nine Departments, which accounted for about two thirds of all completed Code complaints by civil servants:

DEPARTMENT NUMBER OF COMPLETED CODE COMPLAINTS BY CIVIL SERVANTS SINCE APRIL 2014
DWP 30
MoD 20
Home Office 15
HMRC 8
CPS 7
DH including Public Health England 5
Cabinet Office 4
Food Standards Agency 4
Department for Business Energy and Industrial Strategy 3
TOTAL 96

 

There has been an increase in Code complaints since 2014:

FINANCIAL YEAR NUMBER OF COMPLETED CODE COMPLAINTS BY CIVIL SERVANTS
2014-15 10
2015-16 16
2016-17 36
2017-18 47
2018-19 Year to date 34
TOTAL 143

The Civil Service Commission has attributed the increase in Code complaints to a programme of awareness raising. There is a small improvement in Civil Service People Survey scores about awareness, which is set out later in this article.

Code complaints about the Department of Work and Pensions (DWP), the most complained about Department, rose over time:

YEAR NUMBER OF COMPLETED CODE COMPLAINTS BY CIVIL SERVANTS ABOUT THE DWP
2014-15 3
2015-16 3
2016-17 8
2017-18 9
2018-19 year to date 7
TOTAL 30

This is a spreadsheet of Code complaints by civil servants about the DWP from April 2014 to the present time: DWP Civil Service Code complaints

Although the DWP is a controversial department and has attracted the most Code complaints in recent years, its current overall compliance rating by the Civil Service Commission is “Fair” and “Improving”.

Despite the rise in the number of Code complaints, the number of complaints investigated has not increased proportionately:

YEAR NUMBER OF COMPLETED CODE COMPLAINTS RESULTING IN AN INVESTIGATION
2014-15 2 (MoD, HM Treasury)
2015-16 4 (Welsh Gov, DWP, Met Office, Home Office)
2016-17 3 (Food Standards Agency, Public Health England, DWP)
2017-18 2 (MoJ, Home Office)
2018-19 YTD 0
TOTAL 11

Eleven (7.7%) of the 143 complaints by civil servants were investigated and Code breaches were found in four of the cases. This gives a 2.7% (4 of 143) chance of Code complaints by civil servants succeeding.

The reasons given by the Commission for not investigating complaints included:

 

“OUTSIDE REMIT – HR Management matters”

“Cannot accept case as currently at Employment Tribunal”

“Case currently being investigated elsewhere”

“Cases satisfactorily resolved by Department”

“Matter resolved by Department”

“OUTSIDE REMIT – Commission does not accept anonymous complaints”

“OUTSIDE REMIT – Complaint not yet heard by Department”

“Unable to pursue case as complainant left Civil Service and did not provide contact details”

OUTSIDE REMIT – Security Services not covered by scope of Commission”

 

 

Forty three cases were rejected altogether on the basis that they were about HR management issues which in the Commission’s view did not comprise Code issues.

At least 78 of the 143 complaints by Civil Servants were referred back to their originating Departments.

The number of cases apparently ‘wrongly’ submitted to the Commission or sent back to Departments raises questions about whether Departmental whistleblowing arrangements are adequate, in terms of responses to staff concerns, and effective communication with staff about procedures. There is also a question of whether some staff escalate quickly to the Commission because of a lack of confidence in their Department to handle their cases fairly.

The Commission has discretion to investigate cases without waiting for Departments to investigate first. It is not clear exactly how often it exercises this discretion, but it seems likely from all the information available that this is rarely done.

In the cases which were accepted for investigation, obfuscation and delay by Departments meant that some cases took an excessively long time to come before the Commission. For example, a serious case of possible criminality in handling of contracts in the MoD  began with disclosures in 2008 but was not investigated by the Commission until 2014.  An earlier appeal to the Commission in 2012 did not result in investigation. The case was sent back to the MoD, and subsequently dragged on for another two years before the Commission investigated.

The Commission gives the following account of its activities in handling Code complaints in its annual reports:

YEAR ANNUAL REPORT COMMENTS ABOUT CODE COMPLAINTS
2014-15

 

During 2014-15, the Commission received 20 new cases (19 in 2013-14). It also completed its investigation into one further case received in February 2014. Most of these 20 cases (16, or 80%) were outwith the Commission’s remit. In some of these, they were out of remit because they dealt with HR issues: HR issues are explicitly excluded from the Code. In others, they were out of remit because they were made by individuals who were not civil servants. Our legal powers only allow us to investigate cases brought by civil servants; there are other bodies – for example the Parliamentary and Health Service Ombudsman – who are able to look at complaints of maladministration brought by members of the public. This is a similar proportion of ‘out of scope’ cases compared with previous years (71% in 2013-14).”

Of the four remaining cases, two remain under investigation at the end of the reporting period; in a third case we are still assessing whether the complaint is within our remit. The fourth case was investigated during 2014-15, details below. The outstanding case from 2013-14 related to the way certain contracts had been procured by the MOD, and whether the process had breached either EU procurement regulations or internal MOD guidance on procurement. The Commission upheld the complaint and concluded that the Code had been contravened in a number of ways: in the initial failure to follow internal procurement policies correctly; in the Department’s failure to consider the complaint in the context of the Code; in the Department’s treatment of the complainant; and in the inadequacy of the Department’s guidance on how to handle Code or whistle-blowing complaints. The Commission made recommendations to the Ministry of Defence including updating and correcting their whistle-blowing and Code complaints procedures, taking steps actively to promote the Civil Service Code and reporting back to the Commission in a year’s time on the progress it has made in embedding a culture that has at its heart the Civil Service values.

The second case adjudicated on during 2014-15 concerned advice provided to Treasury Ministers on the implementation of a new policy being proposed in the 2011 Budget. The complainant argued that a senior official in the Department had breached the Code requirements to act with honesty and objectivity by not presenting a particular policy as a viable option. The Commission did not uphold the complaint as, having considered the evidence, the panel considered that the issue amounted to a difference of views between officials and that the senior official’s view was consistent with the majority view in the Department. They were therefore justified in presenting the advice to Ministers in the way they did.”

 

2015-16

 

During 2015-16, the Commission received 21 new cases (20 in 2014-15), in addition to the three that were still underway at the time of the last annual report. Of these 21 cases nine, or 43%, were outwith the Commission’s remit. This is a smaller proportion of ‘out of scope’ cases compared with previous years (80% in 2014-15). Three of these nine were outside our remit because they dealt with Human Resource issues: HR issues are explicitly excluded from the Code because there are alternative avenues for such decision appeals. The remaining six were outside our remit because they were made by individuals who were not civil servants. Our legal powers only allow us to investigate cases brought by civil servants; there are other bodies – for example the Parliamentary and Health Services Ombudsman – who are able to look at complaints of maladministration brought by members of the public. A further eight cases were referred back to the relevant Department, usually because the concerns had not yet been properly investigated under the Code by the Department concerned – a condition of the Commission accepting a case for investigation. We concluded investigations into four cases this year, including three that were originally received in 2014-15 but which remained under investigation at the time of our last annual report. The outcome of all of these investigations is published on our website and summarised below.”

 

2016-17

 

 

“During 2016-17, the Commission received 47 new cases (21 in 2015-16), in addition to the three that were still underway at the time of the last annual report. This large increase on the previous year was mainly due to standardising how we record and report incoming cases Of these 47 cases, fourteen were outwith the Commission’s remit (9 in 2015-16). Three of these fourteen were outside our remit because they dealt with Human Resource issues: HR issues are explicitly excluded from the Code because there are alternative avenues for such decision appeals. The remaining eleven cases were outside our remit because they were made by individuals who were not civil servants. Our legal powers only allow us to investigate cases brought by civil servants; there are other bodies – for example the Parliamentary and Health Services Ombudsman – who are able to look at complaints of maladministration brought by members of the public. A further twenty-seven cases were referred back to the relevant Department (8 in 2015-16), usually because the concerns had not yet been properly investigated under the Code by the Department concerned – a condition of the Commission accepting a case for investigation. One case concerned serious allegations of fraud against the Department concerned and was passed to the Cabinet Office fraud investigation team. One case that was being considered at the time of the last annual report was referred to the National Audit Office, as a body more suited to consider the matter. Five new cases were accepted for investigation on appeal. Two of those new cases have now concluded. In total we concluded investigations into four cases this year, including two that were originally received in 2015-16 but which remained under investigation at the time of the last annual report.”

 

2017-18

 

“During 2017-18, the Commission accepted three new cases for investigation on appeal. Investigation into one of those new cases has been suspended while the complainant is at Employment Tribunal. In another case, the Commission had to halt its investigation when it was discovered that the case had been investigated by the Department concerned, and the complainant’s concerns upheld. The other case remains under investigation at the end of the reporting period. There were two cases accepted on appeal in 2016-17 still being investigated at the start of this reporting year, which have now concluded. In one case no breach of the Code was found. In the other resolution was achieved via mediation with the complainant and Department concerned without a full Commission investigation being necessary.”
2018-19 YTD No report yet

 

The annual Civil Service People Survey shows the following pattern of staff awareness of and confidence in whistleblowing procedures. The latest survey received 302,170 responses from civil servants, which represents a response rate of 66.4%. The figures show slight improvement in recent years. But it is not guaranteed that such slight changes in staff perception will ensure that the most serious whistleblowing cases will be handled properly. Indeed, less than half of civil servants who contributed to the survey felt that it was safe to challenge the way things are done in their organisation:

YEAR Question B46. “I think it is safe to challenge the way things are done in [my organisation]”

 

Percentage of staff who agreed

Question D02. “Are you aware of how to raise a concern under the Civil Service Code?”

 

Percentage of staff who agreed

Question D03. “Are you confident that if you raise a concern under the Civil Service Code in [your organisation] it would be investigated properly?”

 

Percentage of staff who agreed

 

2014 41% 64% 69%
2015 41% 66% 68%
2016 43% 67% 67%
2017 46% 68% 70%
2018 47% 67% 71%

 

Eleven Code complaints investigated by the Civil Service Commission since 2014

The links to the eleven cases that were investigated by the Civil Service Commission and brief case summaries are set out in the appendix.

The Commission’s approach to investigation is variable and in some cases consisted primarily of reviewing papers. In other cases, parties are interviewed.

The Commission found code breaches in four cases, relating to the MOD, Met Office, Food Standards Agency and Public Health England. Whilst the Commission found no Code breach in a fifth case regarding the DWP, it noted that a Code breach had been found in the same case during a previous Commission investigation.

The upheld MoD case of non-compliance with proper tendering of contracts stands out in its gravity and the severity of the Commission’s criticism. The MoD and the NHS National Guardian’s Office have of course, been cosying up as part of the National Guardian’s ‘Pan Sector Network’.

In addition to the delays in the system response to Code complaints, the Commission also seems hesitant to make findings of whistleblower reprisal, even in the MoD case that it criticised so severely. The Commission found Code breaches in terms of failure by Departments to respond properly to concerns about reprisal, but it side stepped whether reprisal actually took place in these cases. The Commission should in fact be more proactive and recognise that failures to protect and withholding of support are often a form of victimisation.

The overall impression is of a clunky, slow, paternalistic and only partially effective and responsive mechanism for whistleblowing at the heart of the government. The public deserves better and a vital starting point is to reform UK whistleblowing law.

APPENDIX: THE 11 CIVIL SERVICE CODE COMPLAINTS THAT WERE INVESTIGATED BY THE CIVIL SERVICE COMMISSION:

 

 

Decision Notice: HM Treasury October 2014, Ref.AP000113

“The complainant argues that a senior official in HM Treasury breached the Civil Service Code requirements to act with honesty and objectivity by not presenting implementation of the employment allowance in 2012-13 as a viable option to Ministers.”

Not upheld.

Decision Notice: MoD March 2015, Ref. AP000122

“The complainant alleged that MoD commercial staff had routinely let contracts without competition, in contravention of procurement law and internal guidance, and that significant amounts of money could be wasted as a result. There was a subsidiary allegation that staff who challenged this were treated less favourably as a result.”

The Civil Service Commission indicated that it neither had the resources, nor did it consider It necessary, to launch a full scale investigation. The Commission noted:

–       The complainant had been obstructed by MoD managers in his attempts to raise concerns

–       Specialist police investigation by MoD CID concluded that the complainant had raised his concerns reasonably, and that there was “flagrant disregard for competition which could possibly indicate criminality”.

–       MoD policy was incompatible with the Code, because prevented MoD staff from making public interest disclosures unless it concerned their area of work

–       “…a lack of appetite within the Department to either consider the concern against the framework of the Code or to take account of the evidence that their own internal investigation had uncovered” and a lack of objectivity in the Department’s handling of the concern – which was an additional Code breach.

–       The complainant reported being moved around every time he raised concerns, and that the MoD failed to establish whether this represented reprisal. However, the Commission held that it was “unable” to reach a view on whether the complainant was or was not penalised for whistleblowing.

–       there is clear evidence of a culture which discourages dissent and does not take allegations of breaches the code seriously”

The Commission concluded that overall, the MoD’s behaviour in this matter was so poor that it went to “the heart of whether from the top to the bottom of the organisation there is an unwavering commitment to the values of integrity and honesty which are fundamental to the Civil Service.”

Decision notice: DWP May 2015. Ref 90.

“The complainant says that DMs [decision makers] were asked to follow a reassessment process contrary to DWP policy and guidance, and to sign false statements when making decisions on these cases.”

The initial investigation by DWP fell short of best practice. Originally the complainant was told that he would not be informed of the outcome, as it would be confidential. Finally he was given a three line statement that said that as it was an established and agreed process at the time and in any event was no longer being done that way, there would be no action. There was no reference to the Civil Service Code or the possibility of referring complaints to the Civil Service Commission.”

A further investigation took place by the DWP after intervention by the Civil Service Commission, and upheld a breach of the code and the fact that the DWP worker had been asked to sign a false statement.

The worker remained dissatisfied and referred the matter back to the Commission, who concluded: “DWP has demonstrated that it has apologised and has tried to provide an explanation. In this DWP has acted in an appropriate manner, though the Commission recognises that the complainant remains dissatisfied. The Commission does not believe that it is reasonable to expect personal apologies from three managers who were following the instructions they had been given”

 

Decision Notice: Home Office June 2015, Ref.056

“The complainant argues that senior officials in Border Force breached the Civil Service Code requirements to act with honesty and objectivity by making statements that were untrue and not supported by the facts.” Not upheld.

 

Decision Notice: Welsh Government February 2016, Ref. 132

“The complainant (referred to as Mr X in the remainder of this document) believed that CAFCASS Cymru should have disclosed to the Family Court the fact that it had concerns about a report he prepared for legal proceedings concerning children.” Not upheld.

 

Decision Notice: DWP November 2016 Ref.331

“The complaint was submitted by a member of staff working at a DWP office and concerned allegations of bullying and harassment, manipulation of office performance   statistics and breaches of data  protection  by a named individual, all of which, he argued, amounted to breaches of  the Civil Service Code.”

The Commission accepted the complaint about manipulation of data but did not uphold it: “the Department’s investigation of  the complainant’s concerns was   proper and thorough and the Commission was satisfied  that all possible steps had been taken to address   the concerns raised.”

Decision Notice: Met Office November 2016, Ref.62

“The complainant made an allegation of financial irregularities in relation to an item shown on the organisational finance reports and an attempt by her line manager to cover this up.”

“This is an unusual case as the Met Office’s internal audit team has already concluded there has been a breach of the Civil Service Code. However, the Department’s investigation took place after the complainant had been dismissed from her post. She argues that her raising these concerns contributed to the decision to dismiss her.”

The Commission noted that the Met Office’s internal audit team did not substantiate fraud but concluded that “…comments made by the complainant’s manager were contrary to the standards and behaviours required by the Civil Service Code, a qualified finance manager and a Met Office employee.”

The Commission found that the Met Office breached the Code in an initial failure to investigate the Code complaint and failure to protect the complainant from reprisal.

The Commission declined to find on whether the complainant suffered reprisal through dismissal because her Employment Tribunal claim was not pursued (failure to pay fees): “In the absence of an authoritative judgment by the Employment Tribunal, the Panel noted that it saw no evidence to suggest that raising her concern was the primary reason for the complainant’s dismissal and concluded that this did notconstitute a breach of the Code.”

Decision Notice: Food Standards Agency January 2017, Ref.229

“The complaint was submitted by a Meat Hygiene Inspector working at the Food Standards Agency  (FSA) concerning the way in which a whistleblowing disclosure he raised with the FSA was handled, its investigation  and outcome. The  disclosure  concerned a contractor (Person A) working for the FSA, who the complainant believed was  falsifying official records in order to cover  up poor food hygiene practice within a food business operator premises.”

The Commission concluded that there had been misrecording about faecal contamination of carcasses, and that the FSA had breached the Code by not following its own whistleblowing procedure and not addressing concerns soon enough, with the effect that:

“The key    aspect, which is  the malpractice  concerning contamination    recording,  continued  for a  longer period therefore than would  otherwise  have been the case.”

 

Decision Notice: Public Health England February 2017, Ref.135

“The complaint  was   submitted  by a member of staff working at Public Health England (PHE) and concerned allegations that relate to misuse of safety procedures required by the Genetically-Modified Organisms (Contained Use) Regulations 2014 (the Regulations), allegations of bullying and harassment and an allegation that an investigation by PHE into the complainant’s concerns  was  not   carried  out properly.” 

The commission concluded that PHE’s handling of the concerns breached the Code: The panel has concluded that the delay was a breach of the requirements of paragraph 16 of the Code, a failure to investigate the concerns when they were first raised and investigate them effectively.”

The complainant was temporarily barred from his place of work after raising concerns, but the Commission rejected the contention that this was harassment:

The panel considered the complainant’s allegation that his restriction to a certain laboratory had been restricted as part of a campaign of harassment. PHE, in a letter to the complainant gave the reasons for his restriction as taking into consideration the levels of stress that the complainant had been experiencing, this was not conducive to the complainant continuing to work in a higher containment laboratory. PHE agreed with the complainant that the restriction would be temporary and one month later he was reinstated.”

Decision Notice: MoJ NOMS April 2017, Ref.345

“This appeal under the Civil Service Code is from a Prison Officer working at HMP Springhill, concerning the conduct of a number of investigations, and a subsequent external review of those investigations, into the removal of keys from the prison premises. The complainant believes that in the course of the investigations, junior members of staff were discriminated against, that more senior staff involved in the investigations colluded with each other, that important information and key witnesses were ignored when conducting the  investigation and that there was a conflict of interest in the way that the external review was handled.”

“During the investigations into the removal of the keys, the investigating managers did not interview and take witness statements from the custodial managers who were on duty at the time and this was deliberate to protect them from disciplinary action and that the custodial managers were content to be excluded from the investigation. This allowed the operational support staff (who were responsible for the removal of the keys) to take sole responsibility for the security breaches.”

The Commission agreed that the complainant’s concerns were valid but found no Code breach: “…the complainant was justified in raising his concerns that it was unfair that Operational Support Grade staff bore full responsibility for the security breaches and Custodial Managers escaped any form of disciplinary sanction. However, there was insufficient evidence to support the view that this was as a result of collusion or unethical behavior and so a breach of the Civil Service Code was not found.”

The Commission also considered that NOMS’ whistleblowing procedures were inadequate: “That NOMS do not have adequate arrangements in place for members of staff to raise concerns under the Civil Service Code and the Department’s published guidance on raising concerns is not fully compliant with the requirements of the Code.”

 

Decision Notice: Home Office October 2017, Ref.376

“This appeal under the Civil Service Code is from a former employee of the Department of Health, about the terms of the announcement, on 17 July 2013, of the Government’s decision following a consultation led by the Home Office

on a proposed level of alcohol minimum unit price (MUP). The complainant asserts that unprofessional and unethical methods were used by Home Office special advisers (and perhaps by officials acting under their instruction), to

alter the terms of the announcement at a late stage. This, he says, was in breach of cross-Government clearance and at odds with the findings of  scientific research commissioned by the Government and may have misled Ministers so that they inadvertently make an unfortunate misstatement.” 

The Commission noted: Although the complainant states that he was told at the time in a telephone conversation with Home Office officials that the late changes were as a result of intervention by special advisers, there is no written evidence or other evidence in support of this.”

The Commission did not uphold the complaint or make any recommendations, but it did note an initial failure by the DH to handle the Code complaint appropriately: The Complainant originally raised his concerns with DH senior manager Person A, requesting that they be taken up and raised with Home Office. His request was declined, despite the fact that he raised an official whistleblowing complaint that was fully compliant with DH whistleblowing procedures and he requested an investigation under the Civil Service Code.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Dismissal of over Ten Thousand NHS Staff via ‘Some Other Substantial Reason’

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 17 February 2019

The worst organisations in the NHS are managed ineptly, and with an immature intolerance for staff who swim against the current. This may be accompanied by arbitrary, excessively harsh or even manufactured disciplinary process:

Waste Industry: Abuses of the NHS disciplinary process

Public resources are wasted by sacking unwanted individuals, be they whistleblowers, trade union activists or anyone else who does not conform sufficiently, even if they are perfectly capable and have not misconducted themselves. The sacking takes place under the insidious category of dismissals for ‘Some Other Substantial Reason’, (SOSR) such as a purported breakdown of relationships.

Such breakdowns can be easy to engineer, with deliberate employer provocation. For example in whistleblower cases, the original concerns raised soon become buried under a hail of grievances, counter grievances and deliberately unfair procedures that generate more conflict. Such wars are waged with calculated malice by some employers, who may call in the lawyers to steer strategy long before any formal process, and before the employee realises that they are being managed out.  When such cases arrive at the Employment Tribunal, they are complicated, hard to fight and prohibitively expensive for the employee. The courts often find contributory fault by the employee without sufficiently recognising the employer provocation.

An FOI disclosure of 15 February 2019 by NHS Digital revealed that between April 2010 and September 2018, the NHS has sacked 10,604 staff under SOSR:

 

NHS Hospital and Community Health Services (HCHS): Incidents of HCHS staff with a recorded reason for leaving of Dismissal – Some Other Substantial Reason, in NHS Trusts, CCGs, Support Organisations and Central Bodies in England, 30 April 2010 to 30 September 2018, headcount
Year Headcount
April 2010 to March 2011  1,649
April 2011 to March 2012  1,453
April 2012 to March 2013  1,235
April 2013 to March 2014  1,151
April 2014 to March 2015  1,164
April 2015 to March 2016  1,222
April 2016 to March 2017  1,232
April 2017 to March 2018  1,231
April 2018 to September 2018  267
TOTAL  10,604
Source: NHS Digital NHS Hospital & Community Health Service (HCHS) workforce statistics.

 

The number of NHS SOSR sackings over an eight year period, breaks down by region as follows, with the North West, West Midlands and East of England regions topping the pops:

REGION DISMISSALS VIA SOSR
Health Education North West  1,557
Health Education West Midlands  1,152
Health Education East of England  1,117
Health Education Yorkshire and the Humber  894
Health Education North Central and East London  813
Health Education East Midlands  760
Health Education South West  699
Health Education Kent, Surrey and Sussex  650
Health Education South London  631
Health Education Wessex  430
Health Education North West London  378
Health Education North East  366
Health Education Thames Valley  346
TOTAL  9,793

 

The full list of SOSR sackings for each NHS trust is provided in the appendix.

The top twenty NHS trusts who sacked the most staff under SOSR in these eight years is as follows:

 

Organisation name Org code Headcount: Dismissal, Some Other Substantial Reason SIZE OF TRUST
Nottingham University Hospitals NHS Trust RX1  348 Large (more than 10,000 staff)
Leeds Teaching Hospitals NHS Trust RR8  233 Large (more than 10,000 staff)
Barts Health NHS Trust R1H  170 Large (more than 10,000 staff)
St George’s University Hospitals NHS Foundation Trust RJ7  162 Large (more than 10,000 staff)
University College London Hospitals NHS Foundation Trust RRV  155 Medium (between 5,000 and 10,000 staff)
Oxford University Hospitals NHS Foundation Trust RTH  132 Large (more than 10,000 staff)
Pennine Acute Hospitals NHS Trust RW6  132 Medium (between 5,000 and 10,000 staff)
University Hospital Southampton NHS Foundation Trust RHM  129 Large (more than 10,000 staff)
Heart of England NHS Foundation Trust RR1  115 Large (more than 10,000 staff)
East of England Ambulance Service NHS Trust RYC  106 Medium (between 5,000 and 10,000 staff)
York Teaching Hospital NHS Foundation Trust RCB  103 Large (more than 10,000 staff)
Wirral University Teaching Hospital NHS Foundation Trust RBL  100 Medium (between 5,000 and 10,000 staff)
Aintree University Hospital NHS Foundation Trust REM  96 Small (up to 5,000 staff)
Birmingham and Solihull Mental Health NHS Foundation Trust RXT  96 Small (up to 5,000 staff)
Guy’s and St Thomas’ NHS Foundation Trust RJ1  91 Large (more than 10,000 staff)
Princess Alexandra Hospital NHS Trust RQW  81 Small (up to 5,000 staff)
Royal Free London NHS Foundation Trust RAL  81 Large (more than 10,000 staff)
Stockport NHS Foundation Trust RWJ  81 Medium (between 5,000 and 10,000 staff)
South Essex Partnership University NHS Foundation Trust RWN  80 Medium (between 5,000 and 10,000 staff)
Royal Wolverhampton NHS Trust RL4  78 Medium (between 5,000 and 10,000 staff)

 

Some trusts rated as ‘Outstanding’ by the CQC did their bit to push up the SOSR stats. In the clear lead was Birmingham Women’s and Children’s NHS Foundation Trust, whose CEO regularly makes public statements about the importance of staff engagement and positive culture:

Dismissals via SOSR between 1 April 2010 and 31 March 2018 by NHS trusts currently rated as ‘Outstanding’:

NHS TRUST DISMISSALS VIA SOSR SIZE OF TRUST
Birmingham Women’s and Children’s NHS Foundation Trust  129 Large (more than 10,000 staff)
Christie NHS Foundation Trust  64 Small (up to 5,000 staff)
Clatterbridge Cancer Centre NHS Foundation Trust  63 Medium (between 5,000 and 10,000 staff)
East London NHS Foundation Trust  52 Medium (between 5,000 and 10,000 staff)
Frimley Health NHS Foundation Trust  50 Small (up to 5,000 staff)
Lincolnshire Community Health Services NHS Trust  39 Medium (between 5,000 and 10,000 staff)
Newcastle Upon Tyne Hospitals NHS Foundation Trust  34 Medium (between 5,000 and 10,000 staff)
Northamptonshire Healthcare NHS Foundation Trust  29 Small (up to 5,000 staff)
Northumbria Healthcare NHS Foundation Trust  28 Small (up to 5,000 staff)
Northumberland, Tyne and Wear NHS Foundation Trust  28 Small (up to 5,000 staff)
Royal Marsden NHS Foundation Trust  24 Small (up to 5,000 staff)
Salford Royal NHS Foundation Trust  22 Small (up to 5,000 staff)
Surrey and Sussex Healthcare NHS Trust  15 Small (up to 5,000 staff)
Walton Centre NHS Foundation Trust  7 Small (up to 5,000 staff)
Western Sussex Hospitals NHS Foundation Trust  6 Small (up to 5,000 staff)
West Suffolk NHS Foundation Trust  6 Small (up to 5,000 staff)
West Midlands Ambulance Service NHS Foundation Trust  6 Small (up to 5,000 staff)
Source: NHS Digital NHS Hospital & Community Health Service (HCHS) workforce statistics.
Size of trust by number of employees sourced from National Guardian’s published data

 

National NHS bodies also contributed to the SOSR trail of devastation. Notably, NHS Blood and Transplant, the former billet of the new CQC chief executive Ian Trenholm, had its fair share of SOSR sackings:

DISMISSALS VIA SOSR 1 APRIL 2010 to 31 MARCH 2018
NATIONAL NHS BODY DISMISSALS VIA SOSR
NHS Direct NHS Trust  359
NHS Blood and Transplant  59
NHS Business Services Authority  36
NHS Property Services Limited  28
Public Health England  13
NHS England  11
NHS Professionals Ltd  6
NHS Digital  5
NHS South, Central and West Commissioning Support Unit  5
Health Education England  4
NHS North of England Commissioning Support Unit  4
National Institute for Health and Care Excellence  3
NHS Arden and Greater East Midlands Commissioning Support Unit  3
NHS Midlands and Lancashire Commissioning Support Unit  3
NHS Institute For Innovation and Improvement  2
Northern Deanery  2
NHS South East Commissioning Support Unit  1

 

Training and developing NHS staff costs millions. They are a precious resource paid for by the public. It is staggering incompetence and maladministration to discard such resource for petty and or self-serving reasons. Even where there is genuine and insoluble breakdown of the employment relationship, the NHS as a vast employer should be able to manage redeployment to avoid such waste.

 

RELATED ITEMS

The unfair sacking of Andrew Smith, NHS whistleblower and trade union representative. A heady cocktail of tainted ingredients. Or how CQC, NHS Improvement & Mid Essex Hospital Services NHS Trust worked together on FPPR.

Mr Tristan Reuser surgeon & GMC. Update on GMC, whistleblowing and implementation of the Hooper recommendations

Dr Kevin Beatt NHS whistleblower & the negligent GMC

Whistleblowing in the NHS isn’t fixed yet, and this leaves patients exposed. An overview of unfinished policy business.

What could a new whistleblowing law look like? A discussion document

 

APPENDIX

Incidents of NHS trust staff with a recorded reason for leaving of Dismissal – Some Other Substantial Reason by organisation, England 30 April 2010 to 31 March 2018, headcount

Source: NHS Digital NHS Hospital & Community Health Service (HCHS) workforce statistics. Size of trust by number of employees sourced from National Guardian’s published data.

NHS Trusts are listed in descending order, starting with those that have sacked the most staff under SOSR.

Organisation name Org code Headcount: Dismissal, Some Other Substantial Reason SIZE OF TRUST
Nottingham University Hospitals NHS Trust RX1  348 Large (more than 10,000 staff)
Leeds Teaching Hospitals NHS Trust RR8  233 Large (more than 10,000 staff)
Barts Health NHS Trust R1H  170 Large (more than 10,000 staff)
St George’s University Hospitals NHS Foundation Trust RJ7  162 Large (more than 10,000 staff)
University College London Hospitals NHS Foundation Trust RRV  155 Medium (between 5,000 and 10,000 staff)
Oxford University Hospitals NHS Foundation Trust RTH  132 Large (more than 10,000 staff)
Pennine Acute Hospitals NHS Trust RW6  132 Medium (between 5,000 and 10,000 staff)
University Hospital Southampton NHS Foundation Trust RHM  129 Large (more than 10,000 staff)
Heart of England NHS Foundation Trust RR1  115 Large (more than 10,000 staff)
East of England Ambulance Service NHS Trust RYC  106 Medium (between 5,000 and 10,000 staff)
York Teaching Hospital NHS Foundation Trust RCB  103 Large (more than 10,000 staff)
Wirral University Teaching Hospital NHS Foundation Trust RBL  100 Medium (between 5,000 and 10,000 staff)
Aintree University Hospital NHS Foundation Trust REM  96 Small (up to 5,000 staff)
Birmingham and Solihull Mental Health NHS Foundation Trust RXT  96 Small (up to 5,000 staff)
Guy’s and St Thomas’ NHS Foundation Trust RJ1  91 Large (more than 10,000 staff)
Princess Alexandra Hospital NHS Trust RQW  81 Small (up to 5,000 staff)
Royal Free London NHS Foundation Trust RAL  81 Large (more than 10,000 staff)
Stockport NHS Foundation Trust RWJ  81 Medium (between 5,000 and 10,000 staff)
South Essex Partnership University NHS Foundation Trust RWN  80 Medium (between 5,000 and 10,000 staff)
Royal Wolverhampton NHS Trust RL4  78 Medium (between 5,000 and 10,000 staff)
Sandwell and West Birmingham Hospitals NHS Trust RXK  75 Medium (between 5,000 and 10,000 staff)
South Western Ambulance Service NHS Foundation Trust RYF  71 Medium (between 5,000 and 10,000 staff)
Mid Yorkshire Hospitals NHS Trust RXF  70 Medium (between 5,000 and 10,000 staff)
University Hospitals of Leicester NHS Trust RWE  69 Large (more than 10,000 staff)
Gloucestershire Hospitals NHS Foundation Trust RTE  69 Medium (between 5,000 and 10,000 staff)
Imperial College Healthcare NHS Trust RYJ  68 Large (more than 10,000 staff)
Tees, Esk and Wear Valleys NHS Foundation Trust RX3  66 Medium (between 5,000 and 10,000 staff)
South East Coast Ambulance Service NHS Foundation Trust RYD  65 Small (up to 5,000 staff)
South London and Maudsley NHS Foundation Trust RV5  64 Small (up to 5,000 staff)
Central and North West London NHS Foundation Trust RV3  63 Medium (between 5,000 and 10,000 staff)
East London NHS Foundation Trust RWK  63 Medium (between 5,000 and 10,000 staff)
Christie NHS Foundation Trust RBV  63 Small (up to 5,000 staff)
Coventry and Warwickshire Partnership NHS Trust RYG  63 Small (up to 5,000 staff)
University Hospitals Bristol NHS Foundation Trust RA7  63 Large (more than 10,000 staff)
North Middlesex University Hospital NHS Trust RAP  61 Small (up to 5,000 staff)
University Hospitals of North Midlands NHS Trust RJE  61 Large (more than 10,000 staff)
East Sussex Healthcare NHS Trust RXC  60 Medium (between 5,000 and 10,000 staff)
Royal Cornwall Hospitals NHS Trust REF  60 Medium (between 5,000 and 10,000 staff)
King’s College Hospital NHS Foundation Trust RJZ  59 Large (more than 10,000 staff)
Cambridgeshire Community Services NHS Trust RYV  58 Small (up to 5,000 staff)
Southern Health NHS Foundation Trust RW1  58 Medium (between 5,000 and 10,000 staff)
Norfolk and Suffolk NHS Foundation Trust RMY  56 Small (up to 5,000 staff)
Cambridgeshire and Peterborough NHS Foundation Trust RT1  55 Small (up to 5,000 staff)
South Central Ambulance Service NHS Foundation Trust RYE  54 Small (up to 5,000 staff)
County Durham and Darlington NHS Foundation Trust RXP  54 Medium (between 5,000 and 10,000 staff)
Shrewsbury and Telford Hospital NHS Trust RXW  54 Medium (between 5,000 and 10,000 staff)
Taunton and Somerset NHS Foundation Trust RBA  54 Small (up to 5,000 staff)
North Tees and Hartlepool NHS Foundation Trust RVW  53 Medium (between 5,000 and 10,000 staff)
West Midlands Ambulance Service NHS Foundation Trust RYA  53 Medium (between 5,000 and 10,000 staff)
South Tees Hospitals NHS Foundation Trust RTR  52 Medium (between 5,000 and 10,000 staff)
North Bristol NHS Trust RVJ  52 Medium (between 5,000 and 10,000 staff)
Nottinghamshire Healthcare NHS Foundation Trust RHA  51 Medium (between 5,000 and 10,000 staff)
Lewisham and Greenwich NHS Trust RJ2  51 Medium (between 5,000 and 10,000 staff)
Medway NHS Foundation Trust RPA  51 Small (up to 5,000 staff)
Western Sussex Hospitals NHS Foundation Trust RYR  51 Medium (between 5,000 and 10,000 staff)
Lancashire Teaching Hospitals NHS Foundation Trust RXN  51 Medium (between 5,000 and 10,000 staff)
Central Manchester University Hospitals NHS Foundation Trust RW3  50 Large (more than 10,000 staff)
North West Boroughs Healthcare NHS Foundation Trust RTV  50 Small (up to 5,000 staff)
Royal Berkshire NHS Foundation Trust RHW  48 Small (up to 5,000 staff)
Countess of Chester Hospital NHS Foundation Trust RJR  48 Small (up to 5,000 staff)
Yorkshire Ambulance Service NHS Trust RX8  47 Medium (between 5,000 and 10,000 staff)
Dorset Healthcare University NHS Foundation Trust RDY  47 Medium (between 5,000 and 10,000 staff)
Mersey Care NHS Foundation Trust RW4  47 Medium (between 5,000 and 10,000 staff)
Warrington and Halton Hospitals NHS Foundation Trust RWW  47 Small (up to 5,000 staff)
Basildon and Thurrock University Hospitals NHS Foundation Trust RDD  46 Medium (between 5,000 and 10,000 staff)
South West London and St George’s Mental Health NHS Trust RQY  46 Small (up to 5,000 staff)
Greater Manchester Mental Health NHS Foundation Trust RXV  46 Small (up to 5,000 staff)
Mid Cheshire Hospitals NHS Foundation Trust RBT  46 Small (up to 5,000 staff)
Staffordshire and Stoke on Trent Partnership NHS Trust R1E  46 Medium (between 5,000 and 10,000 staff)
Norfolk and Norwich University Hospitals NHS Foundation Trust RM1  45 Medium (between 5,000 and 10,000 staff)
Doncaster and Bassetlaw Teaching Hospitals NHS Foundation Trust RP5  45 Medium (between 5,000 and 10,000 staff)
Brighton and Sussex University Hospitals NHS Trust RXH  45 Medium (between 5,000 and 10,000 staff)
Northern Lincolnshire and Goole NHS Foundation Trust RJL  44 Medium (between 5,000 and 10,000 staff)
London Ambulance Service NHS Trust RRU  44 Medium (between 5,000 and 10,000 staff)
Frimley Health NHS Foundation Trust RDU  44 Medium (between 5,000 and 10,000 staff)
University Hospitals Birmingham NHS Foundation Trust RRK  44 Medium (between 5,000 and 10,000 staff)
Great Western Hospitals NHS Foundation Trust RN3  44 Medium (between 5,000 and 10,000 staff)
North West Anglia NHS Foundation Trust RGN  43 Medium (between 5,000 and 10,000 staff)
Hillingdon Hospitals NHS Foundation Trust RAS  43 Small (up to 5,000 staff)
Cheshire and Wirral Partnership NHS Foundation Trust RXA  43 Small (up to 5,000 staff)
Yeovil District Hospital NHS Foundation Trust RA4  43 Small (up to 5,000 staff)
East Midlands Ambulance Service NHS Trust RX9  42 Small (up to 5,000 staff)
Northampton General Hospital NHS Trust RNS  42 Medium (between 5,000 and 10,000 staff)
Queen Elizabeth Hospital King’s Lynn NHS Foundation Trust RCX  42 Small (up to 5,000 staff)
Buckinghamshire Healthcare NHS Trust RXQ  42 Medium (between 5,000 and 10,000 staff)
Tameside and Glossop Integrated Care NHS Foundation Trust RMP  42 Small (up to 5,000 staff)
Mid Essex Hospital Services NHS Trust RQ8  41 Medium (between 5,000 and 10,000 staff)
West Hertfordshire Hospitals NHS Trust RWG  41 Small (up to 5,000 staff)
St Helens and Knowsley Teaching Hospitals NHS Trust RBN  41 Small (up to 5,000 staff)
Bolton NHS Foundation Trust RMC  40 Small (up to 5,000 staff)
Salford Royal NHS Foundation Trust RM3  40 Medium (between 5,000 and 10,000 staff)
Birmingham Women’s and Children’s NHS Foundation Trust RQ3  40 Medium (between 5,000 and 10,000 staff)
Worcestershire Acute Hospitals NHS Trust RWP  40 Medium (between 5,000 and 10,000 staff)
Barking, Havering and Redbridge University Hospitals NHS Trust RF4  39 Medium (between 5,000 and 10,000 staff)
Barnet, Enfield and Haringey Mental Health NHS Trust RRP  39 Small (up to 5,000 staff)
Burton Hospitals NHS Foundation Trust RJF  39 Small (up to 5,000 staff)
Walsall Healthcare NHS Trust RBK  39 Large (more than 10,000 staff)
East Suffolk and North Essex NHS Foundation Trust RDE  37 Medium (between 5,000 and 10,000 staff)
West London Mental Health NHS Trust RKL  37 Small (up to 5,000 staff)
Croydon Health Services NHS Trust RJ6  37 Small (up to 5,000 staff)
Surrey and Sussex Healthcare NHS Trust RTP  37 Small (up to 5,000 staff)
University Hospitals of Morecambe Bay NHS Foundation Trust RTX  37 Medium (between 5,000 and 10,000 staff)
Midlands Partnership NHS Foundation Trust RRE  37 Medium (between 5,000 and 10,000 staff)
Hinchingbrooke Health Care NHS Trust RQQ  36 Small (up to 5,000 staff)
Homerton University Hospital NHS Foundation Trust RQX  36 Small (up to 5,000 staff)
Kent Community Health NHS Foundation Trust RYY  36 Small (up to 5,000 staff)
East Lancashire Hospitals NHS Trust RXR  36 Medium (between 5,000 and 10,000 staff)
Cambridge University Hospitals NHS Foundation Trust RGT  35 Large (more than 10,000 staff)
Northumbria Healthcare NHS Foundation Trust RTF  35 Large (more than 10,000 staff)
Royal Liverpool and Broadgreen University Hospitals NHS Trust RQ6  35 Medium (between 5,000 and 10,000 staff)
Bedford Hospital NHS Trust RC1  34 Small (up to 5,000 staff)
Sussex Partnership NHS Foundation Trust RX2  34 Small (up to 5,000 staff)
Pennine Care NHS Foundation Trust RT2  34 Medium (between 5,000 and 10,000 staff)
Dudley Group NHS Foundation Trust RNA  34 Medium (between 5,000 and 10,000 staff)
Portsmouth Hospitals NHS Trust RHU  33 Medium (between 5,000 and 10,000 staff)
South London Healthcare NHS Trust RYQ  33 Medium (between 5,000 and 10,000 staff)
North East London NHS Foundation Trust RAT  33 Medium (between 5,000 and 10,000 staff)
University Hospital of South Manchester NHS Foundation Trust RM2  33 Medium (between 5,000 and 10,000 staff)
Avon and Wiltshire Mental Health Partnership NHS Trust RVN  33 Small (up to 5,000 staff)
East and North Hertfordshire NHS Trust RWH  32 Medium (between 5,000 and 10,000 staff)
Rotherham Doncaster and South Humber NHS Foundation Trust RXE  32 Small (up to 5,000 staff)
London North West University Healthcare NHS Trust R1K  32 Medium (between 5,000 and 10,000 staff)
Whittington Health NHS Trust RKE  32 Small (up to 5,000 staff)
Kent and Medway NHS and Social Care Partnership Trust RXY  32 Small (up to 5,000 staff)
Kettering General Hospital NHS Foundation Trust RNQ  31 Small (up to 5,000 staff)
Maidstone and Tunbridge Wells NHS Trust RWF  31 Medium (between 5,000 and 10,000 staff)
United Lincolnshire Hospitals NHS Trust RWD  30 Medium (between 5,000 and 10,000 staff)
Lincolnshire Partnership NHS Foundation Trust RP7  29 Small (up to 5,000 staff)
South West Yorkshire Partnership NHS Foundation Trust RXG  29 Small (up to 5,000 staff)
Chelsea and Westminster Hospital NHS Foundation Trust RQM  29 Small (up to 5,000 staff)
Ipswich Hospital NHS Trust RGQ  28 Small (up to 5,000 staff)
Salisbury NHS Foundation Trust RNZ  28 Small (up to 5,000 staff)
Royal Surrey County Hospital NHS Foundation Trust RA2  28 Small (up to 5,000 staff)
Birmingham Community Healthcare NHS Foundation Trust RYW  28 Small (up to 5,000 staff)
Royal Devon and Exeter NHS Foundation Trust RH8  28 Medium (between 5,000 and 10,000 staff)
Torbay and South Devon NHS Foundation Trust RA9  28 Medium (between 5,000 and 10,000 staff)
Southend University Hospital NHS Foundation Trust RAJ  27 Small (up to 5,000 staff)
Leeds Community Healthcare NHS Trust RY6  27 Small (up to 5,000 staff)
Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust RDZ  27 Small (up to 5,000 staff)
Surrey and Borders Partnership NHS Foundation Trust RXX  27 Small (up to 5,000 staff)
Southport and Ormskirk Hospital NHS Trust RVY  27 Small (up to 5,000 staff)
Northern Devon Healthcare NHS Trust RBZ  27 Small (up to 5,000 staff)
Leicestershire Partnership NHS Trust RT5  26 Medium (between 5,000 and 10,000 staff)
Norfolk Community Health and Care NHS Trust RY3  26 Small (up to 5,000 staff)
Epsom and St Helier University Hospitals NHS Trust RVR  26 Small (up to 5,000 staff)
East Kent Hospitals University NHS Foundation Trust RVV  26 Medium (between 5,000 and 10,000 staff)
East Cheshire NHS Trust RJN  26 Small (up to 5,000 staff)
Royal United Hospitals Bath NHS Foundation Trust RD1  26 Medium (between 5,000 and 10,000 staff)
West Suffolk NHS Foundation Trust RGR  25 Small (up to 5,000 staff)
Rotherham NHS Foundation Trust RFR  25 Small (up to 5,000 staff)
Harrogate and District NHS Foundation Trust RCD  24 Small (up to 5,000 staff)
Dartford and Gravesham NHS Trust RN7  24 Small (up to 5,000 staff)
Sussex Community NHS Foundation Trust RDR  24 Medium (between 5,000 and 10,000 staff)
City Hospitals Sunderland NHS Foundation Trust RLN  24 Small (up to 5,000 staff)
North East Ambulance Service NHS Foundation Trust RX6  24 Small (up to 5,000 staff)
North Staffordshire Combined Healthcare NHS Trust RLY  24 Small (up to 5,000 staff)
Worcestershire Health and Care NHS Trust R1A  24 Small (up to 5,000 staff)
University Hospitals of Derby and Burton NHS Foundation Trust RTG  23 Large (more than 10,000 staff)
Sheffield Children’s NHS Foundation Trust RCU  23 Small (up to 5,000 staff)
Hampshire Hospitals NHS Foundation Trust RN5  23 Medium (between 5,000 and 10,000 staff)
Kingston Hospital NHS Foundation Trust RAX  23 Small (up to 5,000 staff)
North West Ambulance Service NHS Trust RX7  23 Medium (between 5,000 and 10,000 staff)
Hertfordshire Partnership University NHS Foundation Trust RWR  22 Small (up to 5,000 staff)
Humber Teaching NHS Foundation Trust RV9  22 Small (up to 5,000 staff)
Berkshire Healthcare NHS Foundation Trust RWX  22 Small (up to 5,000 staff)
Milton Keynes University Hospital NHS Foundation Trust RD8  22 Small (up to 5,000 staff)
Alder Hey Children’s NHS Foundation Trust RBS  22 Small (up to 5,000 staff)
Dorset County Hospital NHS Foundation Trust RBD  21 Small (up to 5,000 staff)
Royal Marsden NHS Foundation Trust RPY  21 Small (up to 5,000 staff)
Blackpool Teaching Hospitals NHS Foundation Trust RXL  21 Medium (between 5,000 and 10,000 staff)
Bridgewater Community Healthcare NHS Foundation Trust RY2  21 Small (up to 5,000 staff)
Wrightington, Wigan and Leigh NHS Foundation Trust RRF  21 Medium (between 5,000 and 10,000 staff)
Somerset Partnership NHS Foundation Trust RH5  21 Small (up to 5,000 staff)
James Paget University Hospitals NHS Foundation Trust RGP  20 Small (up to 5,000 staff)
Sheffield Health and Social Care NHS Foundation Trust TAH  20 Small (up to 5,000 staff)
Camden and Islington NHS Foundation Trust TAF  20 Small (up to 5,000 staff)
Northumberland, Tyne and Wear NHS Foundation Trust RX4  20 Medium (between 5,000 and 10,000 staff)
Lancashire Care NHS Foundation Trust RW5  20 Medium (between 5,000 and 10,000 staff)
Mid Staffordshire NHS Foundation Trust RJD  20 Small (up to 5,000 staff)
Calderdale and Huddersfield NHS Foundation Trust RWY  19 Medium (between 5,000 and 10,000 staff)
Leeds and York Partnership NHS Foundation Trust RGD  19 Small (up to 5,000 staff)
Oxleas NHS Foundation Trust RPG  19 Small (up to 5,000 staff)
Ashford and St. Peter’s Hospitals NHS Foundation Trust RTK  19 Medium (between 5,000 and 10,000 staff)
Solent NHS Trust R1C  18 Medium (between 5,000 and 10,000 staff)
Oxford Health NHS Foundation Trust RNU  18 Medium (between 5,000 and 10,000 staff)
Wye Valley NHS Trust RLQ  18 Small (up to 5,000 staff)
Newcastle Upon Tyne Hospitals NHS Foundation Trust RTD  17 Large (more than 10,000 staff)
Birmingham Women’s NHS Foundation Trust RLU  17 Medium (between 5,000 and 10,000 staff)
Sherwood Forest Hospitals NHS Foundation Trust RK5  16 Small (up to 5,000 staff)
Bradford Teaching Hospitals NHS Foundation Trust RAE  16 Medium (between 5,000 and 10,000 staff)
Central London Community Healthcare NHS Trust RYX  16 Small (up to 5,000 staff)
Royal Brompton and Harefield NHS Foundation Trust RT3  16 Large (more than 10,000 staff)
Hertfordshire Community NHS Trust RY4  15 Small (up to 5,000 staff)
Luton and Dunstable University Hospital NHS Foundation Trust RC9  15 Small (up to 5,000 staff)
North Essex Partnership University NHS Foundation Trust RRD  15 Small (up to 5,000 staff)
Black Country Partnership NHS Foundation Trust TAJ  15 Small (up to 5,000 staff)
Bradford District Care NHS Foundation Trust TAD  14 Small (up to 5,000 staff)
North Cumbria University Hospitals NHS Trust RNL  14 Small (up to 5,000 staff)
Barnsley Hospital NHS Foundation Trust RFF  13 Small (up to 5,000 staff)
Royal National Orthopaedic Hospital NHS Trust RAN  13 Small (up to 5,000 staff)
Cumbria Partnership NHS Foundation Trust RNN  13 Small (up to 5,000 staff)
University Hospitals Coventry and Warwickshire NHS Trust RKB  13 Medium (between 5,000 and 10,000 staff)
Derbyshire Healthcare NHS Foundation Trust RXM  12 Small (up to 5,000 staff)
Sheffield Teaching Hospitals NHS Foundation Trust RHQ  12 Large (more than 10,000 staff)
Great Ormond Street Hospital For Children NHS Foundation Trust RP4  11 Small (up to 5,000 staff)
Manchester Mental Health and Social Care Trust TAE  11 Small (up to 5,000 staff)
South Warwickshire NHS Foundation Trust RJC  11 Small (up to 5,000 staff)
Isle of Wight NHS Trust R1F  10 Small (up to 5,000 staff)
Liverpool Community Health NHS Trust RY1  10 Large (more than 10,000 staff)
Derbyshire Community Health Services NHS Foundation Trust RY8  9 Medium (between 5,000 and 10,000 staff)
Essex Partnership University NHS Foundation Trust R1L  8 Medium (between 5,000 and 10,000 staff)
Manchester University NHS Foundation Trust R0A  8 Large (more than 10,000 staff)
Robert Jones and Agnes Hunt Orthopaedic Hospital NHS Foundation Trust RL1  8 Small (up to 5,000 staff)
Cornwall Partnership NHS Foundation Trust RJ8  8 Small (up to 5,000 staff)
University Hospitals Plymouth NHS Trust RK9  8 Medium (between 5,000 and 10,000 staff)
Lincolnshire Community Health Services NHS Trust RY5  7 Small (up to 5,000 staff)
Northamptonshire Healthcare NHS Foundation Trust RP1  7 Small (up to 5,000 staff)
Airedale NHS Foundation Trust RCF  7 Small (up to 5,000 staff)
Royal Orthopaedic Hospital NHS Foundation Trust RRJ  7 Small (up to 5,000 staff)
Devon Partnership NHS Trust RWV  7 Small (up to 5,000 staff)
Gateshead Health NHS Foundation Trust RR7  6 Small (up to 5,000 staff)
Dudley and Walsall Mental Health Partnership NHS Trust RYK  6 Small (up to 5,000 staff)
George Eliot Hospital NHS Trust RLT  6 Small (up to 5,000 staff)
Shropshire Community Health NHS Trust R1D  6 Small (up to 5,000 staff)
2Gether NHS Foundation Trust RTQ  6 Small (up to 5,000 staff)
Poole Hospital NHS Foundation Trust RD3  5 Small (up to 5,000 staff)
Liverpool Women’s NHS Foundation Trust REP  5 Small (up to 5,000 staff)
Walton Centre NHS Foundation Trust RET  5 Small (up to 5,000 staff)
Wirral Community NHS Foundation Trust RY7  5 Small (up to 5,000 staff)
Tavistock and Portman NHS Foundation Trust RNK  4 Small (up to 5,000 staff)
Liverpool Heart and Chest Hospital NHS Foundation Trust RBQ  4 Small (up to 5,000 staff)
Gloucestershire Care Services NHS Trust R1J  4 Small (up to 5,000 staff)
Hull and East Yorkshire Hospitals NHS Trust RWA  3 Medium (between 5,000 and 10,000 staff)
Hounslow and Richmond Community Healthcare NHS Trust RY9  3 Small (up to 5,000 staff)
South Tyneside NHS Foundation Trust RE9  3 Small (up to 5,000 staff)
Clatterbridge Cancer Centre NHS Foundation Trust REN  3 Large (more than 10,000 staff)
Queen Victoria Hospital NHS Foundation Trust RPC  2 Small (up to 5,000 staff)
Weston Area Health NHS Trust RA3  2 Small (up to 5,000 staff)
Royal Papworth Hospital NHS Foundation Trust RGM  1 Small (up to 5,000 staff)

Public Health England’s response to the finding of Race discrimination and victimisation against Dr Femi Oshin: Discrepant Race and grievance statistics

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 13 February 2019

Public Health England (PHE), as an executive agency of the government with oversight functions, should set an example.

It seriously failed to do so in the case of its former employee Public Health Consultant Dr Femi Oshin. An Employment Tribunal determined on 17 January 2017 that PHE had racially discriminated against Dr Oshin and constructively dismissed him. Most seriously, the ET concluded that PHE victimised Dr Oshin for raising concerns about Race discrimination. Despite attempts by PHE to cast aspersions, the ET concluded that there had been no contributory conduct by Dr Oshin:

Race Discrimination by Public Health England

The aftermath of the case rumbles on. Public Health England delayed in completing a review of its governance failure. It produced a voluminous report of October 2018 by Professor Parish a PHE NED, which was published  in board papers of 21 November 2018. The report was accompanied by a submission from Capsticks LLP,  counsel’s opinion from Old Square chambers, a ‘Management response’ document by PHE and annex D, a PHE document entitled: Analysis of Appraisals, Employee Relations and Engagement by Ethnicity and Other protected Characteristics”:

PHE Advisory Board parish report and associated material 21 November 2018

I focus on Annex D of the Parish report, which starts at page 140 of the bundle and reassuringly states:

PHE excerpt from Parish report on Femi Oshin

This is curious, because the same document gave PHE grievance data for 2018/19 year to date as follows. Page 145 of the bundle:

Screenshot 2019-02-13 at 15.30.57

This gives 33% (11 of 33) BME grievances, which is higher than expected because PHE has approximately 18% BME staff:

NHS England WRES analysis of ethnicity in ALBs

Source: 2017 WRES report for NHS national bodies

Over two months after the publication of the Parish report, an FOI disclosure by PHE of 11 February 2019 gave different, lower grievance numbers for 2018/19 YTD, but a pattern of over-representation of BME staff in grievances since at least 2016/17:

Screenshot 2019-02-13 at 13.33.24

Based on the above PHE FOI data, taking the whole period from 1 April 2016 to the present time, gives 32% BME grievances (25 of 78).

PHE claimed it held no central data for 2013/14, 2014/15 and 2015/16.

Whatever the truth of the matter, it is disconcerting that PHE has released discrepant Race statistics for grievances even at this late stage.

It would also seem rather selective of PHE to only provide 2018/19 grievance figures in the Parish report, when the data from preceding years would also seem relevant to a picture of Race disadvantage.

The discrepancies have been questioned.

 

RELATED ITEMS

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Jo Williams’ letter of 25 November 2011 to all CQC staff, about two CQC whistleblowers who were about to give evidence at the Mid Staffordshire Public Inquiry

Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 10 February 2019

On Monday 28 November 2011, two Care Quality Commission (CQC) whistleblowers Kay Sheldon Non Executive Director and Amanda Pollard Senior CQC Inspector gave evidence at the Mid Staffordshire Public Inquiry on serious concerns about the health and care regulator

These are their witness statements and exhibits, and a transcript of the Inquiry session on 28 November 2011:

Amanda Pollard witness statement and exhibits to Mid Staffs Public Inquiry

Kay Sheldon witness statement and exhibits o Mid Staffs Public Inquiry

Mid Staffs Public Inquiry session 28 November 2011 Transcript

There had been publicity in advance of the hearing:

CQC non-exec to blow the whistle at Mid Staffs inquiry

On the Friday before the two whistleblowers gave their evidence to the Inquiry, Jo Williams CQC Chair sent the following message to all CQC staff, about the damage that might be done to the CQC’s reputation. The letter stated:

“The kind of coverage we may get next week damages our reputation, damages our colleagues and weakens the future of the organisation, which we have all worked tirelessly to build over the last two and half years.

It is not in our interests, nor the public’s whom we seek to serve, to have damaging accusations and personal opinions voiced in the media, because a weaker CQC will find it harder to challenge poor care.”

Jo Williams letter to all CQC staff 25 November 2011

Jo Williams eventually announced her departure  from the CQC in autumn 2012.

She returned to the NHS in November 2016 when she was appointed as a trust Non Executive Director at Alder Hey Children’s NHS Foundation Trust:

Alder Hey Jo Williams biog

Williams was also for a period appointed as a Non Executive Director at Liverpool Community Health NHS Trust.

Earlier this month, it was revealed that she had been promoted to Chair of Alder Hey Children’s NHS Foundation Trust:

The Times 1 February 2019: “Disgraced CQC chief Dame Jo Williams given top job at children’s hospital”

The CQC twice inspected Alder Hey after Jo Williams was appointed as a trust NED. On the most recent occasion in 2018, CQC rated the trust as “Good” on the well led domain,  and it commented favourably on the trust’s compliance with Regulation 5, Fit and Proper Persons. This regulation requires that regulated bodies must appoint suitable directors:

 

Overall trust

Our rating of the trust stayed the same. We rated it as good because:

• We rated well-led as good because the trust had a vision for what it wanted to achieve with plans to turn it into action. Staff throughout the trust were aware of the vision and values. There was an experienced and stable leadership team who were committed to improving services, through learning research and innovation. The trust had made improvements to the fit and proper person process since the last inspection.”

 

 

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Sorry is the hardest word: CQC, Paula Vasco-Knight and Regulation 5 Fit and Proper Persons

What could a new whistleblowing law look like? A discussion document

 

 

 

 

 

 

The unfair sacking of Andrew Smith, NHS whistleblower and trade union representative. A heady cocktail of tainted ingredients. Or how CQC, NHS Improvement & Mid Essex Hospital Services NHS Trust worked together on FPPR.

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 7 February 2019

 

Summary

 The government and its arms length bodies continue to protect poor senior NHS managers. The Kark FPPR Review report was published yesterday, but is a curate’s egg. Matt Hancock has wasted no time in undermining its findings and recommendations, and has astonishingly delegated the response to Kark’s report to one of the most heavily conflicted bodies, NHS Improvement. On the same day as Kark’s report was published, CQC shut down yet another FPPR referral about a case of proven serious whistleblower reprisal. This related to Mid Essex Health Services NHS Trust. One of the trust managers criticised by the Employment Tribunal in this case is employed as an NHS Improvement Director. CQC also issued a puff piece in July 2018 extolling this individual’s virtues, after the critical ET ruling of whistleblower reprisal in March 2018. Whatever propaganda gushes from the National Guardian’s Office, Covering Up, not Speaking Up, is business as usual.

  

Background and the Kark FPPR Review

Yesterday, the government published the report of the review by Tom Kark QC on CQC Regulation 5 Fit and Proper Persons.

 A review of the Fit and Proper Person Test Commissioned by the Minister of State for Health by Tom Kark QC and Jane Russell (Barrister)

The review had been ordered by former Minister of Health Steve Barclay after mounting pressure about the continued recycling of poor NHS senior managers, and the CQC’s failure to take effective action under Regulation 5 to stop this. The recycling of failed directors of Liverpool Community Health NHS trust was one of the catalysts.

In January 2014 as part of the government’s attempts to manage the news on the MidStaffs deaths disaster, it claimed that FPPR would be trialled but if that was not successful, it would “legislate” to ensure that there was an effective barring mechanism:

 

 

53. There will be a new stronger fit and proper persons test for Board level appointments which will enable the Care Quality Commission to bar directors who are unfit from individual posts at the point of registration. This will apply to providers from the public, private and voluntary sectors. The Government believes that the barring mechanism will be a robust method of ensuring that directors whose conduct or competence makes them unsuitable for these roles are prevented from securing them. The scheme will be kept under review to ensure that it is effective, and we will legislate in the future if the barring mechanism is not having its desired impact.”

Hard Truths The Journey to Putting Patients First Volume One of the Government Response to the Mid Staffordshire NHS Foundation Trust Public Inquiry

 

 

Kark was of course, Counsel to the Mid Staffs Public Inquiry.

Kark’s FPPR review report was originally scheduled to be published in October 2018 but was delayed.

An FOI request by @JadeTaylor8  revealed that Kark’s report had been repeatedly revised and that ‘feedback’ was sought from many parties including the NHS managers’ union, Managers in Partnership.

However, whistleblower participants were not given the same opportunity to comment prior to publication. A specific request  for whistleblower participants to be allowed to comment before publication was ignored.

There is a lot to say about Kark’s report. In brief it provides some interesting insights such as a glimpse into CQC’s Well-Led inspections, but it ducks and dives, makes some excuses for the CQC despite recent criticism of CQC’s FPPR process by the PHSO which as far as I can see is not even mentioned by Kark. The report also gives the Department of Health and Social Care a pass, and strews about some lawyerly escape clauses.

Nevertheless Kark made some potentially interesting recommendations:

 

Page 14 Kark FPPR Review report:

(d) Extending the concept of the FPPT to Board level directors of commissioners and appropriate NHS Arms’ Length Bodies (ALBs).

(e) Setting up a body which has the power to bar directors where serious misconduct is proved to have occurred. We have suggested that this body be called the Health Directors’ Standards Council (HDSC) and that it should have the powers to investigate, require the production of information and, following a fair hearing, to bar directors from director level appointments in the health service;  

(f) Requiring the identification and definition of what is regarded as ‘serious misconduct’ justifying barring. This should focus upon deliberate or reckless but not inadvertent behaviour. Apart from obvious misconduct such as dishonesty and crime, we think there should be a focus upon behaviour which suppresses the ability of people to speak up about serious issues in the health service, whether by allowing bullying or victimisation of those who ‘speak up’ or blow the whistle, or by any form of harassment of individuals. There should be a focus on discouraging behaviour which runs contrary to the duty of candour, so any deliberate suppression or falsification of records or relevant information should be regarded seriously. Further, serious misconduct should include reckless mismanagement which endangers patients;”

 

 

The trouble is, the government shows little sign of good faith in response. The Secretary of State paid lip service yesterday to preventing ‘morally abhorrent’ mistreatment of whistleblowers.

Times photo headline morally wrong to hound whistleblowers

But according to the Health Service Journal (HSJ), Hancock has reportedly accepted  only two of Kark’s less threatening recommendations: 

  1. Definition of core competencies for NHS directors

2. Establishment of a central database on NHS directors’ experience and previous employment, including disciplinary and grievance issues.

 

Moreover, the Department of Health and Social Care initially claimed to HSJ that the government’s proposals did not include striking off poor managers:

However, a DHSC spokeswoman told HSJ the government’s proposals did not include the ability to “strike off” directors or managers.”

 second HSJ article yesterday   stated:

“The government has delayed making a decision on whether to introduce a regulator for NHS managers, after a review recommended those guilty of misconduct should be banned from sitting on NHS boards”

and it reported that Hancock had washed his hands by passing these decisions to NHS Improvement.

This was an especially contemptuous touch by Hancock, given that Kark had acknowledged that bodies like NHS Improvement are a part of the problem by suggesting that the concept of Fit and Proper Persons should extend to such bodies.

 

Mid Essex Hospital Services NHS Trust and Andrew Smith

The CQC chose yesterday to demonstrate that it was very much business as usual, by responding in its usual fashion to an FPPR referral on the directors of Mid Essex Hospital Services NHS Trust, for their actions towards Andrew Smith.

Andrew Smith was an RCN steward at Mid Essex who raised concerns, some about patient safety, in the course of his duties as a trade union rep. The Employment Tribunal (ET) concluded that “he was doing no more than his job as a trade union representative”.

Alas, Mid Essex lacked the organisational integrity and maturity to deal with this fairly and reasonably. It suspended him in 2014 and then sacked him a year later in May 2015  – after the Freedom To Speak Up Review was published. The ET judgment referred to a “witch hunt” against Smith.

Mid Essex Hospital Services NHS Trust classically not only persecuted and unfairly sacked Smith as a whistleblower, but it wasted public money by futilely fighting an Employment Tribunal ruling on 5 March 2018 in his favour. It prolonged the immense stress that he suffered by not reasonably acknowledging fault. But the trust lost again, and the EAT sent the case back to the ET which decided once more in his favour.

EAT Judgment 5 March 2018, Mid Essex Hospital Services NHS Trust v Mr A Smith UKEAT/0239/17/JOJ 

ET judgment 16 July 2018, Mr A Smith v Mid Essex Hospital Services NHS Trust 3202272/2015

The trust persisted, through its appeal to the EAT, in claiming that Smith had been dismissed because he made a nuisance of himself, and not because he whistleblown. It contended that the ET had shown incomplete consideration of the case in this respect.

The EAT judge accepted that the ET had not shown all of its reasoning for its verdict, but did not consider that the omission invalidated the whole. He sent it back to the ET for a fuller judgement.

The ET subsequently concluded on 16 July 2018:

 

16.9. The dismissal and appeal officers were very much aware of the protected disclosures and what a nuisance those disclosures had been, which is not to say the reason was the nuisance factor, it means as a whistleblower, he was a nuisance, and so they dismissed him because he was a whistleblower, because of the protected disclosures.”

 

 

On this basis, I asked CQC to review the fitness of the trust directors responsible for causing detriment to Andrew Smith and for prolonging his ordeal in the courts at public expense. My request to CQC of 28 July 2018 is provided in the appendix below.

This is CQC’s FPPR decision letter yesterday from CQC Deputy Chief Inspector Ellen Armistead:

CQC FPPR outcome letter from Ellen Armistead on Andrew Smith v Mid Essex 6.02.2019

In short, CQC has taken nearly 7 months to tell me that it will not be taking action because:

 

  1. The Trust has informed CQC that the directors of nursing most closely associated with the Smith case no longer work for any NHS provider:

“The Trust has informed us that the Director of Nursing and Deputy Director of nursing who were referenced in the employment tribunal are no longer working for an NHS provider and therefore as they are no longer employed in a director role, they are outside the scope of Fit and Proper Person Requirement (regulation 5).

 

  1. The trust has told the CQC that it has pulled its whistleblowing governance socks up:

“ The local team engaged with the Trust again on the well-led inspection in October 2018 to follow up on the outcome of the employment tribunal. The Trust informed us they have undertaken work following the judgements including group work focus on the whistle blowing policy at the trust. The development of the policy has included all stakeholders including staff site representatives as well as non-union affiliated staff representatives. There has been the full implementation of the freedom to speak up network. The Trust has nominated a NED for FTSU. There has been a dignity and respect campaign in 2017 and a further raising of executive’s visibility. The inspection team received positive feedback at inspection, particularly about the daily staff briefings that are given by executives. There has been ongoing work against an action plan in response to the staff survey. The trust acknowledged an historic disconnect between staff side representatives and senior trust management. They were also aware that further work was required with staff side. There has been an increase in executive attendance at staff side meetings as well as a more formal approach to contact which the trust believes is working. The local team are continuing to engage with the Trust”

 

By focussing only on the nurse managers specifically cited by the ET, CQC glosses over who signed off the continuing mistreatment of Andrew Smith through the Employment Tribunal process.

The trust nurse managers who were explicitly criticised in the ET’s original judgment of 5 March 2018 on the Smith case were Cathy Geddes Chief Nurse and Deputy Chief Executive and Lyn Hinton, deputy chief nurse:

293. The reason for dismissal was, we conclude, on the balance of probability, that Mr Smith had made the protected disclosures relied upon. This is what was in the mind of Ms Geddes and Ms Hinton in their decision making. It was not the content of any one disclosure in particular, it was the collective of the disclosures, the fact that he had made them at all, that was in the mind of Ms Hinton and Ms Geddes.”

If Kark’s FPPR review recommendations had been accepted in full by the government, this would have included his red lines that specify whistleblower reprisal as a form of serious misconduct. These managers above would be under serious scrutiny in such a system. But to all appearances, they have not been put through a proper process of accountability.

Worse still, what the slippery CQC failed to acknowledge to me yesterday was that Cathy Geddes, according to her LinkedIn page,  is currently an NHS Improvement Director of Improvement and Quality, NHS Midlands and East region.

So there we have it. The body to whom Hancock has handed the critical decision on which of Kark’s recommendations will be adopted is still brazenly sheltering those proven to have seriously harmed whistleblowers.

Ten days before the final ET verdict against Mid Essex in July 2018, CQC published a questionable report  which puffed various senior NHS managers for making a difference, including Cathy Geddes. CQC even picked out quotes by Geddes about the importance of building a culture in which it was possible for staff to safely challenge things:

Cathy Geddes excerpt CQC Driving Improvement report

Hand up, anyone who thinks NHS Improvement will volunteer its own directors, and those of other dubious bodies like CQC, for scrutiny under FPP?

The repeatedly sleazy behaviour of NHS regulators, and their master the Department of Health and Social Care, brings our long suffering NHS into disrepute. This is convenient for those who do not wish our NHS well.

But hark, do not despair entirely. Geddes is “passionate about working with others to improve care for our patients.”

Cathy Geddes linkedin profile 7.02.2019

 

RELATED ITEMS

 

Letter 7 February 2019 to Dido Harding Chair of NHS Improvement

Dear Dido,

NHS Improvement’s role in recycling managers with a proven track record of whistleblower reprisal

I write following the publication of the Kark FPPR Review report yesterday, and the Secretary of State’s reported decision to put NHS Improvement in charge of deciding which of Tom Kark’s recommendations will be accepted.

I believe NHS Improvement still employs an NHS Director who was personally criticised by the Employment Tribunal for the unfair dismissal of a whistleblower and trade union representative at Mid Essex Hospital Services NHS Trust. Please follow the link below for the relevant evidence.

I wonder if NHS Improvement can advise what, if anything, it will do about this.

I ask you to bear in mind that falling across this matter is the terrible shadow of the Gosport War Memorial Hospital deaths disaster, in which hundreds of unnatural deaths followed the suppression of whistleblowers,

With best wishes,

Minh

Dr Minh Alexander

Cc Tom Kark QC

      Matt Hancock Secretary of State for Health

      Stephen Hammond Minister for Health

      Caroline Dinenage Minister for Social Care and MP for Gosport

 

Letter 8 February 2019 to Peter Wyman Chair of CQC:

BY EMAIL

Peter Wyman

Chair of Care Quality Commission
8 February 2019
Dear Mr Wyman
CQC’s promotion of provider managers, including those who have been found to have harmed whistleblowers, and regulatory capture
I write to raise some concerns about a regular bulletin that CQC has been issuing – ‘Driving Improvement’. This gives vignettes of supposed good practice and learning from CQC action against regulated bodies.
However, its effect in some instances is to promote some senior managers of regulated bodies.
There is one case that I would like to draw your attention to: CQC’s July 2018 ‘Driving Improvement’ bulletin on ‘Individuals who have made a difference in NHS Trusts’ featured the former Chief Nurse of Mid Essex Health Services NHS Trust. The bulletin highlighted the Chief Nurse’s credentials in turning culture around and creating an environment where staff could challenge poor behaviour:
In fact, she had been criticised by the Employment Tribunal judgment of 5 March 2018 for seriously harming a whistleblower and trade union representative, when in the Tribunal’s view he was doing “no more than his job as a trade union representative”:
I wonder if CQC could review whether it should be promoting individual senior managers this way and whether such action could undermine its regulatory independence and neutrality.
But if CQC intends to continue such promotion, could it at least ensure that it does not promote those who have been found, through a formal process, to have harmed whistleblowers. Particularly as this would seem to conflict with CQC’s duty to enforce Regulation 5 and ensure that regulated providers comply with the requirement not to employ unsuitable directors.
Yours sincerely,
Dr Minh Alexander
cc Health Committee
    Sir Robert Francis CQC NED
    Prof Ursula Gallagher Deputy Chief Inspector and CQC lead on whistleblowing
    Prof Ted Baker Chief Inspector of Hospitals
    Ellen Armistead Deputy Chief Inspector and CQC lead on NHS FPPR
    Rob Behrens PHSO

Regulation 5, Fit and Proper Persons: Dissecting CQC’s Dissembling

Sorry is the hardest word: CQC, Paula Vasco-Knight and Regulation 5 Fit and Proper Persons

What could a new whistleblowing law look like? A discussion document

Whistleblowing in the NHS isn’t fixed yet, and this leaves patients exposed. An overview of unfinished policy business.

 

APPENDIX

FPPR referral to CQC about Mid Essex Health Services NHS Trust directors and the mistreatment of Andrew Smith, whistleblower:

BY EMAIL

Ian Trenholm

Chief Executive

Care Quality Commission

28 July 2018

Dear Mr Trenholm,

FPPR referral on directors of Mid Essex Hospital Services NHS Trust in regards to serious whistleblower reprisal

I understand that you have taken up or are about to shortly take up post at CQC.

I write to ask the CQC to look into the actions of the relevant directors of Mid Essex in respect to the unfair dismissal of an RCN steward for whistleblowing.

This is the relevant final ET judgment in the case of A Smith v Mid Essex:

https://minhalexander.files.wordpress.com/2018/07/a-smith-v-mid-essex-final-judgment-mr_a_smith_v_mid_essex_hospital_services_nhs_trust_32022722015_remission.pdf

This is the core of the matter from the ET’s perspective:

 

“16. We review why we considered whistleblowing was the reason for the dismissal:

16.1. The coincidence of timing;

16.2. Everyone pointedly ignoring the possible link between the disciplinary action and the protected disclosures;

16.3. The witch hunt against him;

16.4. The flawed, cursory investigation report;

16.5. The failure to disclose the CQC email by the appeal officer;

16.6. The weakness and lack of merit in the disciplinary charges;

16.7. It was not at all clear that there was a breakdown in employment relationship;

16.8. Mr Smith was not unmanageable as claimed, and

16.9. The dismissal and appeal officers were very much aware of the protected disclosures and what a nuisance those disclosures had been, which is not to say the reason was the nuisance factor, it means as a whistleblower, he was a nuisance, and so they dismissed him because he was a whistleblower, because of the protected disclosures.

17. We remain of the view that Mr Smith was dismissed because he made the Protected Disclosures.”

 

 

You will I imagine be aware that Robert Francis advised in his report of the Freedom To Speak Up Review that whistleblower reprisal should be considered an a matter of serious misconduct under FPPR.1

Also, the current Kark review on FPPR has been asked to specifically consider whether FPPR should henceforth explicitly consider “conduct which might inhibit or discourage appropriate whistleblowing” and “any conduct designed to conceal or disguise” such acts.

Mid Essex trust squandered public funds by unreasonably resisting Mr Smith’s justified claim and appealing to the EAT, which sent the case back to the ET. As well as wasting large amounts of public money, this will have added significantly to the suffering experienced by Mr Smith and his family.

The case of Mr Smith will not have reached the EAT without the complicity of several Board members. It is also likely that the appeal officers, and possibly the dismissing officers, who were criticised by the ET were trust directors.

I would be grateful if the CQC would therefore look into this matter under Regulation 5.

The CQC will of course already be aware of Mr Smith’s case as he made repeated disclosures to your organisation.

Yours sincerely,

Dr Minh Alexander

Cc Steve Barclay Minister of State for Health

 

Day 16 FPPR shredder wyman

 

 

 

 

 

 

 

 

 

 

 

Staff Surveys and FOI adventures with AAIB and HSIB

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 27 January 2019

 

Jeremy Hunt the former Health Secretary’s great gimmick was patient safety crusading.

Marvellous false colours to sail under whilst his government destabilised and defunded the NHS.

MidStaffs, Morecambe Bay and other pennants fluttered from his mast.

Robert Francis was knighted and nailed onto the prow of Hunt’s HMS Safety.

Another piece of political theatre was the importation of aviation safety, amidst many a glib soundbite.

The small and largely toothless Healthcare Safety Investigation Branch was established as a shiny beacon of aviation safety expertise. It came with Keith Conradi  former Chief Inspector of the Air Accident Investigation Branch (AAIB) a part of the Department for Transport.

But there were questions about the nature of HSIB.

In a recent mental health services investigation, HSIB produced an inaccurate investigation report which had the effect of protecting the CQC and minimising the regulator’s negligence.

I asked for historic AAIB staff survey data, including the period from when Keith Conradi was AAIB Chief Inspector.

AAIB takes part in the annual Civil Service People Survey, the results of which are published by individual department.

Staff survey transparency is now an established part of public service culture.

But in spite of this, AAIB resisted the FOI request.

This was also despite the fact that, as another party has now established via FOI, AAIB routinely shares its staff survey results with its staff:

 

AAIB FOI disclosure 18 January 2019 Ref F0016928

“AAIB shares the results of its annual staff surveys (people surveys) with all AAIB staff. 

The surveys include aggregated data.”

 

 

An internal review of my FOI request was personally signed off by the current AAIB Chief Inspector Crispin Orr, who also refused disclosure of AAIB’s staff survey data.

An appeal to ICO later led to a decision in favour of disclosure.

But AAIB continued to resist.

Its parent the Department for Transport lodged an appeal against the ICO’s decision to the First Tier Tribunal (Information Rights), Number EA/2018/0286, dated 22 November 2018.

This was received by the Tribunal on 20 December 2018 according to the First Tier Tribunal website. 

I have applied to join the appeal as a party, so I will say no more about the proceedings at this stage.

In the meantime, a subject access request for personal data showed that AAIB and HSIB acted in concert in response to my request for historic AAIB data. The box below shows a disclosed, copied and pasted fragment from an email exchanged between AAIB and HSIB personnel on 23 November 2018:

 

Hi

  Are you able to share the AAIB surveys with me?

  The ICO has said they are to be released to Min [sic] so I wondered if I could have copies as I suspect she will be FOI-ing us soon 

 I want to prepare some lines to take in prep for our FOI – Min [sic] is a frequent commentator on HSIB on social media”

 

 

AAIB denied that there were any other emails accompanying the above email.

AAIB also disclosed – bit by bit – that the following sequence of briefing emails (supplied as copied and pasted fragments) were exchanged between AAIB, the Department of Transport and the Cabinet Office:

 

 

Email between AAIB and DfT Sat 01/12/2018 12:32

“Q2 – why the applicant might be interested in the AAIB?

A2 – Doctor Minh Alexander is specifically interested in the AAIB ex-Chief Inspector Keith Conradi who is currently the Chief Inspector at the Healthcare Safety Investigation Board (HSIB). She describes herself as a NHS Whistleblower and on her website she has a document called “Alexander’s Excavations” stating “mostly whistleblowing , NHS underbelly but other stuff too!”. This includes comments and details of a large number of FOIs directed at the Department for Health and the NHS. Regarding the recent ICO response to the AAIB she tweeted “Upon appeal, @ICOnews has decided that AAIB must disclose the requested AAIB staff survey data. So we will get to see what sort of #justculture existed under Keith Conradi’s tenure at AAIB”

 

Email between DfT and AAIB (all names redacted)

From: xxxxx

Sent: Fri 30/11/2018 10:08

To: xxxx

Subject: FW: FOI

Dear xxx ,

Please see message below from xxx at Cabinet Office.

Clearly only the AAIB can answer the first bullet! And are best placed to respond to all the others. 

On the reports issue, I guess it was only the top level AAIB report that was requested; not the Inspector / admin team splits that sit below that. I have reports back to 2009 or AAIB, by the way.

Regards,

 

Email between Cabinet Office and DfT (all names redacted)

From: xxxxx On Behalf Of Employee Engagement Program Mailbox

Sent: 29 November 2018 17:44

To: xxxx

Subject: FOI

Hi xxx

 

We’ve asked an FOI expert here for more information to help us decide whether to appeal.

We need some info from you too. 

Do you know: 

if the AAIB are content to release their results?

why the applicant might be interested in the AAIB?

how many years reports you have?

if the AAIB employs any SCS staff?

the status of the AAIB? It is listed in the ‘Other’ category of your list of agencies and public bodies on GOV.UK

https://www.gov.uk/government/organisations#department-for-transport

thank you

 

 

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NHS Bodies: 5 years of ICO decisions

HSIB’s sleight of hand, CQC and the Care Programme Approach: Comments on HSIB Investigation into the transition from child and adolescent mental health to adult mental health services 12017/18

FOI shark

Whistleblowing APPG: Whistleblowers UK and questions about funding by Constantine Cannon LLP

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 24 January 2019

 

 

Summary:

A controversial whistleblowing All Party Parliamentary Group (APPG) was established last summer, with reported funding from Constantine Cannon a well-known US bounty hunting law firm.

A subsequent denial about the funding by the APPG’s secretariat, the private company Whistleblowers UK (WBUK), has not been clarified or resolved.

 

 

The back ground to the establishment of the above APPG and the ethical questions posed by the US bounty hunting model has been set out previously:

Whistleblowing v Bounty hunting. A new whistleblowing APPG with sponsorship from bounty hunters

There has been much concern that the APPG reportedly accepted funding from Constantine Cannon LLP to operate a secretariat administered by WBUK, as per details published in the August 2018 parliamentary APPG register.

These are the financial details for the whistleblowing APPG that appeared in the parliamentary register in August 2018:

screenshot 2019-01-24 at 12.42.20

For those unfamiliar with APPGs, they are special interest groups with no official status, but they can influence:

 

All-Party Parliamentary Groups (APPGs) are informal cross-party groups that have no official status within Parliament. They are run by and for Members of the Commons and Lords, though many choose to involve individuals and organisations from outside Parliament in their administration and activities.”

https://www.parliament.uk/about/mps-and-lords/members/apg/

 

 

There has been concern that APPGs can be a means of lobbying by private interests:

Are APPGs a ‘dark space’ for covert lobbying? (The Guardian 6 January 2017)

APPGs are required to comply with certain rules, including declaring benefits, financial and in kind, such as of hospitality, gifts, overseas visits.

Guide to the Rules on APPGs

On 5 November 2018 an unidentified person at the end of the WBUK Twitter account denied that the financial details published in the parliamentary APPG register were correct:

screenshot 2019-01-24 at 12.45.50

 

The individual who tweeted the denial did not provide alternative facts.

The office of the parliamentary Registrar of Members’ Financial Interests advised on 6 November 2018 that it would enquire further into the matter.

On 22 November 2018, the office advised that it was still awaiting a formal response from the whistleblowing APPG. It additionally clarified:

 

In the meantime I should say that the register entry does not indicate that the secretariat has already been paid by Constantine Cannon LLP; only that this is the payment expected over the year.

I will let you know when I hear anything further.”

 

I have not heard from parliament since the last communication on 22 November 2018.

On 2 January 2019, an updated register of APPGs was published by parliament.

This showed the same financial details for the whistleblowing APPG as was originally published in August 2018.

I have asked the office of the Registrar of Members’ Financial Interests if there has been any response from the whistleblowing APPG.

I have also written to the chair of WBUK, to ask if he can help shed any light on the facts.

I await a response from both.

 

 

Email 23 January 2019 to Tom Lloyd, Chair of Whistleblowers UK:
“Dear Tom,

Accuracy of published details about the whistleblowing APPG

I write to ask if you could clarify the financial arrangements between WBUK and the law firm Constantine Cannon.

The published whistleblowing APPG details that first appeared in August 2018 stated:

WhistleblowersUK is paid by Constantine Cannon LLP to act as the group’s secretariat

 From : 10/07/2018

To : 09/07/2019”

and they indicated that the sum paid was between “£13,501-15,000”.

On 5 November 2018 someone on the WBUK Twitter account tweeted to me that the APPG register details were incorrect: “This entry is incorrect”.

However, the person tweeting on behalf of WBUK did not provide alternative facts.

The latest January 2019 version of the published APPG register still shows the same details for the Whistleblowing APPG as published in August 2018.

Please can you advise if these details are correct.

If they are not correct, please can you advise of the correct details.

Many thanks,

Minh

Dr Minh Alexander

cc Stephen Kerr MP  APPG Chair & registered contact

Norman Lamb MP APPG Vice Chair

Andrew Mitchell MP APPG Vice Chair

Baroness Kramer APPG Co-Chair

Anneliese Dodds MP APPG Vice Chair”

 

 

It would seem desirable for a working group about whistleblowing to have straightforward governance.

I do not intend to engage with this APPG given my concerns about the bounty hunting model, which I think works against both the public interest and the welfare of the majority of whistleblowers.

Norman Lamb MP a Vice Chair of the APPG has advocated in parliament for the UK to import US Frank Dodd style bounties.

I doubt that engaging with and legitimising this APPG will help deliver genuine reform.

The reform of UK whistleblowing law is a sober and critically important matter.

I urge all whistleblowers who take part in the debate to read as widely as possible.

The debate needs to be informed and evidence-based, and any solutions need to be just, credible, sustainable and realistic for law reform to become a reality.

UPDATE 4 FEBRUARY 2019

I wrote to Stephen Kerr MP the Chair of the whistleblowing APPG on 31 January 2019 as I had not heard from the Chair of WBUK in response to my above query of 23 January.

Today, the parliamentary Registrar of Members’ Financial Interests has advised that Stephen Kerr MP has confirmed that the published APPG financial details are correct:

“Dear Minh

This is just to let you know that I have corresponded with the chair of the APPG on Whistleblowing who has confirmed that he believes the Group’s Register entry is indeed accurate. It sets out the sum which the secretariat expects to receive over the year.

This answers the question about the group’s register entry.

With best wishes”

This of course begs the question of why someone at Whistleblowers UK denied that the published details were accurate, and then did not or could not substantiate that denial.

 

HOW TO HELP

If you are a member of the public who would like to help protect future whistleblowers, a really simple and effective thing you can do is write to your MP to ask for the law to be reviewed. Here is a handy template letter that you can send off in couple of minutes:

Send this letter to your MP to help protect UK whistleblowers

 

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Mission Drift by the National Guardian: Further, proposed dilution of NHS whistleblower case reviews

 

PIDA ASS (2)

Mission Drift by the National Guardian: Further, proposed dilution of NHS whistleblower case reviews

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 29 December 2018

 

The Freedom To Speak Up Review on NHS whistleblowing was a sop to public opinion, which in reality protected the government and allowed continuing control of information against the public interest.

The Review made weak recommendations, but even these have been watered down by the CQC and National Guardian, without demur by the Department of Health and Social Care.

The National Guardian’s Office has moved away from its original primary function of helping individual whistleblowers in serious difficulties, to making vague recommendations for culture change.

The National Guardian has avoided thorny issues of personal accountability for whistleblower reprisal, and even denied on a national broadcast that there were “bad guys”. 

The National Guardian’s Office has also acted arbitrarily in its handling of requests for case review. It has allowed whistleblowers to be seriously harmed by refusing to accept cases on questionable grounds. Alongside this, the National Guardian failed to review the handling of patient safety concerns in these cases.

At Brighton and Sussex, the National Guardian protected a favoured NHS trust board by arbitrarily delaying case review for many months, whilst the Brighton and Hove coroner continued to issue warnings about lethal poor care:

Coroner’s report to Prevent Future Deaths on Rita Giles 11 July 2018

Coroner’s report to Prevent Future Deaths on Ronald Harman 19 July 2018

Report 20 September 2018 of coroner’s intention to issue a PFD on death of Joan Blaber

The list of preceding coroner’s warnings was already lengthy. Brighton and Sussex University Hospitals NHS Trust has generated one of the highest numbers of coroners’ warnings nationally.

There were 21 published coroners’ reports to Prevent Future Deaths (PFDs) which related to BSUH between February 2014 and April 2017:

Stephen Palmer 25/02/14, 2014-0072 – copied to Secretary of State for Health

Herta Woods 26/02/14, 2014-0081 – copied to Secretary of State for Health

John Adams, 1/07/14, 2014-0293 – copied to Secretary of State for Health

Martin Hill, 22/08/14, 2014-0382 – copied to Secretary of State for Health

Linda Rignall, 19/09/14, 2014-0414 – copied to Secretary of State for Health

Isaac Bahar, 15/06/15, 2015-0229 – copied to Secretary of State for Health

Evelyn Kennedy7/05/15, 2015-0178 – copied to Secretary of State for Health

Anthony Geerts, 24/06/15, 2015-0240 – copied to Secretary of State for Health

Thelma Jones, 12/08/15, 2015-0318 – copied to Secretary of State for Health

Marion Howes, 11/02/16, 2016-0046 – copied to Secretary of State for Health

Geoffrey Moyse, 20/02/16, 2016-0067- copied to Secretary of State for Health

Graham Watts, 3/04/16, 2014-0149 – copied to Secretary of State for Health

Jack Molyneux 29/04/16, 2016 – 0168 – copied to Secretary of State for Health

Christine Street, 10/05/16, 2016 – 0177- copied to Secretary of State for Health

Jean Stockley, 12/08/16, 2016 – 0286

[17 August 2016 CQC placed the trust into special measures]

Diana Ritchie, 18/08/16, 2016 – 0296 – copied to Secretary of State for Health

Leslie Lerner, 28/10/16, 2016-0487 – copied to Secretary of State for Health

Mary Muldowney, 8/12/16, 2016-0440

Raymond Pollard, 25/01/17, 2017-0023 – copied to Secretary of State for Health

Ronald Bennett, 5/04/17, 2017-0097 – copied to Secretary of State for Health

Patricia Webb, 20/04/17, 2017-0130 – copied to Secretary of State for Health

 

 

The National Guardian finally announced a case review on 21 December 2018 as follows:

The purpose of the review is to support the trust to develop its speaking up culture, by identifying any areas for improvement and commending good practice”

As the trust’s CEO Marianne Griffiths features in today’s New Year’s Honours list as a new Dame, “For services to the NHS”, what is the betting that the eventual case review report on Brighton and Sussex will lean towards “commending good practice”?

I have been in correspondence with the National Guardian and her Office about her case review exclusion criteria.

This has resulted in disclosure of suggestions by her Office to dilute its case review process even more:

National Guardian Presentation 7 September 2018 on revision of case review process and criteria

These are the key suggestions from this presentation by her Office on 7 September 2018:

Screenshot 2018-12-29 at 09.38.07

There has been reluctance by her Office to clarify whether and how it will consult on any new case review process. I am pressing for full, open consultation.

If you agree there should be open consultation, you can make a request to the National Guardian’s Office via this general address: enquiries@nationalguardianoffice.org.uk

 

In the meantime, this is my initial feedback to the National Guardian in response to the above suggestions:

1. I think you should remain grounded in the original reasons why your Office was proposed by Robert Francis – it was proposed primarily to benefit NHS whistleblowers who had no place to go, regarding the handling of their concerns.

“7.6.5 It became apparent during the course of the Review that there is a gap in the mechanisms for oversight of how an NHS body deals with concerns raised by staff”

 

2. Francis also proposed that your Office should use its influence to ensure redress for harmed whistleblowers and patients who had suffered as a result of poor whistleblowing governance, page 168 Freedom To Speak Up Review:

 

“7.6.12 The INO should be authorised by these bodies to use his/her discretion to: 

 

• review the handling of concerns raised by NHS workers where there is cause for concern in order to identify failures to follow good practice, in particular failing to address dangers to patient safety and to the integrity of the NHS, or causing injustice to staff

 • to advise the relevant NHS organisation, where any failure to follow good practice has been found, to take appropriate and proportionate action, or to recommend to the relevant systems regulator or oversight body that it make a direction requiring such action. 

 

This may include: 

– addressing any remaining risk to the safety of patients or staff

 – offering redress to any patients or staff harmed by any failure to address the safety risk – correction of any failure to investigate the concerns adequately

3. I am very concerned that your Office has been drifting away from the core focus of righting wrongs in individual cases, to just learning general lessons that arise from cases.

4. A particularly serious concern is the continuing denial by your Office that it has any remit for helping to ensure redress when this is plainly part of the original intention and was a principle accepted by the government. Redress in this context was clearly intended to be a patient safety mechanism, and it is disturbing that your Office has not accepted this.

5. I am even more concerned now to see the suggestion that your Office could de-couple itself entirely from focus on specific cases and look at themes. In seeking to drop even the term “case review”, your Office marginalises whistleblowers even more and the fate of individual whistleblowers and patients harmed by suppression is given even less importance. This is serious mission drift.

6. I believe that if you continue to leave injustices uncorrected, this will be very damaging to Speaking Up culture. In time, these injustices will accumulate and be apparent to all, no matter what staff are told through official briefings.

7. You stated in your latest annual report that the victimisation of staff who speak up must stop:

“This type of behaviour has to stop.”

Statements are not enough and your Office needs to take proactive measures as set out originally in the report of the Freedom To Speak Up Review, to help reverse harm to whistleblowers and patients in specific cases.

8. I repeat my request that you stop the blanket exclusion of cases from review on the basis that there is an active employment process. This excludes the most serious cases for years, as they languish in the Employment Tribunal. It is vital that all issues relating to poorly handled patient safety issues are examined as a matter of priority, whether or not you side step the employment issues. Although I think the latter would be a shame, as whistleblower detriment is also ultimately relevant to patient safety. Inaction and delay allow great harm to be wreaked in whistleblowing cases, and early intervention was acknowledged to be important by the Freedom To Speak Up Review (Principle 8 and Principle 9).

 

 

 

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CQC’s Victimisation of Whistleblowers: Failure to Investigate Concerns

A Study in Delay: The National Guardian & Brighton and Sussex University Hospitals NHS Trust

Mr Tristan Reuser surgeon & GMC. Update on GMC, whistleblowing and implementation of the Hooper recommendations

Replacing the Public Interest Disclosure Act (PIDA)

What could a new whistleblowing law look like? A discussion document

 

DR NO (1)

 

 

 

 

 

 

Dissidentdaubs’ Boxing Day Cabaret

Whistleblowers! Sick of government propaganda? Got indigestion from being force fed over-cooked porkies? Take a swig of refreshing counter-culture seltzer and pull up a chair.

Willkommen! And bienvenue! Welcome!
Fremder, étranger, stranger
Glücklich zu sehen
Je suis enchanté
Happy to see you
Bleibe, reste, stay
Willkommen! And bienvenue! Welcome!
….Dissidentdaubs’ Alternative #SpeakUpMonth of December 2018:

 

 

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The National Guardian’s Day Out with the PHSO: Claims & Rebuttals

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What could a new whistleblowing law look like? A discussion document

 

Sorry is the hardest word: CQC, Paula Vasco-Knight and Regulation 5 Fit and Proper Persons

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 19 December 2018

UK whistleblowers are not protected. Instead, powerful wrongdoers are protected.

That is the bald truth, and the situation is enabled by very weak UK whistleblowing law. 

We even have an NHS National Guardian for whistleblowing who recently and astonishingly dismissed a suggestion that there are ‘bad guys” responsible for suppressing staff who speak out.

This echoed previous remarks by the National Guardian, in which she re-framed accountability as ‘blame” and suggested that it was undesirable:

“I’m not going to perpetuate harmful, negative cultures, blame shifting.”

There is now a further twist in the saga of the Care Quality Commission’s mishandling of Regulation 5 Fit and Proper Persons (FPPR), which is supposed to prevent the recycling of poor managers but does not.

The Parliamentary and Health Service Ombudsman has partially upheld a complaint about CQC’s perverse closure of the FPPR referral on Paula Vasco-Knight, disgraced former NHS chief executive and convicted fraudster. This is PHSO’s report and its accompanying press release:

Blowing the whistle. An investigation into the Care Quality Commission’s Regulation of the Fit and Proper Person Requirement

PHSO press release

The PHSO criticised CQC’s slippery minimisation of the Employment Tribunal’s serious criticisms of Vasco-Knight’s conduct towards whistleblowers at South Devon Healthcare NHS Foundation Trust.

Also criticised were CQC’s conveniently fuzzy record keeping, and the way its senior officers contradicted and tripped over each other with inconsistent claims and excuses, in a Keystone Cops attempt to justify what CQC had done.

CQC’s misrepresentation of information supplied by the NMC was also highlighted.

 

 

Key PHSO criticisms of CQC’s handling of the Vasco-Knight FPPR

“…they [CQC] dismissed the criticisms of the chief executive in the 2014 Employment Tribunal findings”

“…CQC’s record keeping was poor” 

“The FPPR panel members cannot demonstrate consistency in the considerations they made of the case”

“The Deputy Chief Inspector said that the Professional Regulator found there was ‘categorically no case to answer when the Professional Regulator’s report said that some of the Chief Executive’s actions were concerning (in relation to the second matter considered by the Professional Regulator) and that it could not be sure the incidents were isolated ones, but it did not think it would be able to progress these concerns further”

 

 

However, PHSO maintained that that the outcome of the FPPR referral would not have been clear even if CQC had followed a fair process:

 

“It would be speculative to establish what would have happened had the CQC undertaken a robust consideration of Trust P’s handling of the FPPR, therefore we are unable to uphold this element of Ms K’s complaint”

“…it is possible they [CQC] might have reached the same decision on this case if their actions had been administratively sound”

 

 

This is despite the Employment Tribunal’s findings of whistleblower reprisal, breach of the NHS managers’ code of conduct and suppression to which Vasco-Knight was most likely party.

This position by the PHSO is another trivialisation of the grave betrayal of the public interest whenever whistleblowers are harmed and their concerns are covered up. It is simply not excusable because it is wilful behaviour that costs lives, both directly and through general intimidation of the workforce.

PHSO’s report contains an important, unchallenged factual inaccuracy by the CQC:

Para 59 “The CQC had not known that the Chief Executive had moved into an interim Chief Executive role until their suspension in May 2016″

This was an attempt by CQC to minimise its culpability. CQC knew full well about Vasco-Knight’s promotion to CEO, from at least April 2016, when I sent this letter to David Behan and Robert Francis, and commented on the promotion:

“Six months is a long time for there to be no transparency or accountability regarding CQC’s FPPR process, especially as Ms Vasco-Knight has now been promoted to Acting Chief Executive at St. George’s.”

It is more likely that CQC knew well before this. The factual inaccuracy was pointed out to PHSO prior to the publication of its report but curiously, it has not been corrected.

But then, PHSO has supported the National Guardian’s public relations campaign and allowed her to make and disseminate unsubstianted claims about her Office’s illusory achievements via a broadcast by PHSO.

Moreover, PHSO had no quarrel with CQC’s policies on FPPR. Its report stated that it had no remit to examine CQC’s interpretation of Regulation 5.

 

“The approach and process of the 2015 guidance for FPPR appears to have enabled the CQC flexibility in considering the actions of providers on their individual merits and allowed the CQC to take account of the evidence before them in the round”.

“It is not our role, or within our power, to impose our interpretation of regulations on organisations in our jurisdiction…”

 

 

In contrast, Tom Kark QC who has been conducting a a review of FPPR in the NHS, raised the possibility of writing ‘red lines’ into a future Fit and Proper Person test, including the serious mistreatment of whistleblowers.

This the relevant passage from an agreed record of an evidence session with Kark on 30 August 2018:

 

It was agreed that it would be helpful in future if explicit ‘red lines’ could be written into FPPR rules, which would prevent the trivialisation of whistleblower reprisal and suppression as has happened in cases handled by the CQC.

For example, red lines should include:

–       Unfairly sacking a whistleblower

–       Trying to improperly influence/interfere with an investigation about a whistleblower

–       Attempting to or actually perverting the course of justice.”

 

 

It remains to be seen if Kark will recommend this in his final report, or whether the government would adopt it if he did. But it is vital that a more robust approach is taken and that there is no permissiveness regarding whistleblower reprisal and suppression by senior officials.

PHSO has no powers of enforcement. It can only recommend. PHSO recommended that CQC should apologise and learn from the Vasco-Knight FPPR debacle, but this already looks futile.

At PHSO’s suggestion the CQC has issued an apology to South Devon whistleblower, Clare Sardari, but this was was so grudging that it only added insult to injury:

Ted Baker apology letter to Clare Sardari 14.12.2018 PVK FPPR

CQC indicated in the “apology” that it will carry out yet another review of its FPPR practice, but the regulator appears unwilling to genuinely do its duty.  It may be more careful to cover its tracks in future, but the bias against whistleblowers will most likely persist.

Day 16 FPPR shredder wyman

Neither have all those who protected Vasco-Knight, and who continued to help her after her wrongdoing was exposed, been held to account. The full scale of the governance failure has been obscured by NHS England, NHS Improvement and CQC closing ranks.

According to PHSO, the NMC was unsure if concerns raised about Paula Vasco-Knight were isolated incidents. It would be surprising if they were. It is more likely that opportunities to stop her were missed.

It is also quite possible that even as CQC ‘apologises’ for the Vasco-Knight FPPR debacle, it is concealing other FPPR failures, in the way that it concealed FPPR failure at Kettering General Hospital NHS Foundation Trust.   CQC’s economy with the truth only came to light because of an FOI request to the trust.

Nor has there been any recommendation for CQC to review all the many other FPPR referrals that it spiked, allowing unfit and unsafe directors to continue unimpeded in the NHS.

It is useful that PHSO has at least partially upheld the complaint against CQC, but this will be mere theatre if there are no statutory changes which embed real improvement

Clare Sardari has written to the Secretary of State calling for managerial regulation and reform of UK whistleblowing law:

 

BY EMAIL

Mr Matt Hancock

Secretary of State

Department of Health and Social Care

17 December 2018

Dear Mr Hancock,

NHS managerial selection, development, accreditation and regulation, and reform of whistleblowing law

I write as a seriously harmed NHS whistleblower to ask that the government takes more effective action on ensuring that senior NHS managers are Fit and Proper Persons.

An Employment Tribunal concluded that after whistleblowing, I and a colleague suffered serious detriment at the hands of disgraced former chief executive Paula Vasco-Knight and my former trust, South Devon Healthcare NHS Foundation Trust. The Tribunal also concluded that there had been serious dishonesty by our former employing trust in its attempts to suppress our disclosures of nepotism and its concealment of a related, unfavourable report. Vasco-Knight was suspended and then resigned after the Tribunal issued its judgment.

Despite the Tribunal’s damning findings, senior NHS managers and regulators rallied  to protect Paula Vasco-Knight and provided her with well-paid locum work. With their help, she was recycled to two Board positions at St Georges. The CQC protected her and perversely shut down an FPPR referral. In my view, it kept this decision quiet, to allow her promotion from COO to CEO at St Georges.

St. Georges’ 2017/18 annual report  shows that the trust paid £470K in total to the locum agency through which Vasco-Knight worked for the trust, for just a few months.

It all ended in more predictable scandal when a financial fraud by Vasco-Knight against the NHS emerged in 2016 and led to her conviction. It transpired that NHS England had known about the fraud  for over two years before the scandal became public.

Vasco-Knight falsely accused a former co-worker who was dragged into the scandal. There are still unanswered questions and I am concerned that the full extent of the governance failures has not yet been admitted by senior NHS officials.

It is now also clear to me from recent developments that the CQC remains unrepentant about its handling of the FPPR referral on Vasco-Knight. Whilst CQC may be more careful not to be caught out in future, the regulator’s attitude does not give me confidence that it has genuinely reflected or will act without reservation to defend the public interest in the future.

The system remains populated with too many senior officials who collude, cover up and protect each other. The fundamental problems are that the NHS too often selects the wrong people for promotion into managerial roles, and it has no rigorous system for developing and accrediting them.

Paula Vasco-Knight was promoted by the NHS Leadership Academy, which for all its superficial rhetoric has singularly failed to embed the right values.

I call on the government to introduce long overdue measures to tighten up the selection, development, accreditation and regulation of NHS managers.

I also call on the government to reform UK whistleblowing law to mandate the proper handling of whistleblowers’ disclosures, provide proactive protection and robustly deter reprisal.

If my case had been properly handled from the outset, this would have saved the public purse millions and avoided serious harm to all the individuals affected by the above trail of devastation.

Yours sincerely,

Clare Sardari

 

UPDATE 20 DECEMBER 2018

CQC chief executive Ian Trenholm has further disgraced the CQC by dismissing the PHSO’s findings, and effectively taking back even the grudging apology made to Clare Sardari by his Chief Inspector of Hospitals.

Trenholm hit back at PHSO through an article for the Health Service Journal, which featured Trenholm’s lengthy, self-justifying rant.

A complaint has been made about this behaviour and parliament has been asked to consider what should be done when organisations defy the PHSO in this way, via evidence to  an upcoming PHSO scrutiny hearing by the Public Administration and Constitutional Affairs Committee.

The CQC’s recalcitrance is all the more remarkable when FOI data shows that the PHSO in fact – and improbably – finds in CQC’s favour in the great majority of cases:

PHSO FOI response 21 September 2015 about outcome of complaints about CQC

Of 354 enquiries received about CQC between 2009 and 2015, PHSO accepted only 17 for investigation, had completed 11 investigations, and had not upheld any at the time of the FOI response:

PHSO FOI data 21 September 2015 outcome of complaints investigated

 

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The National Guardian’s Day Out with the PHSO: Claims & Rebuttals

The Flexible CQC, FPPR & Kettering General Hospital NHS Foundation Trust

CQC’s Victimisation of Whistleblowers: Failure to Investigate Concerns

Regulation 5, Fit and Proper Persons: Dissecting CQC’s Dissembling

Whistleblowers in Their Own Words: What’s wrong with UK whistleblowing law and how it needs to change

What could a new whistleblowing law look like? A discussion document

Sir Robert’s Flip Flops

 

MEDIA COVERAGE

The PHSO findings of CQC maladministration were widely covered including by the BBC and ITV. These are some of the print stories:

The Independent – Health watchdog says lessons must be learned after NHS fraudster landed multiple top jobs

Daily Mail – Health regulator slammed for giving a top NHS job to a fraudster under investigation for paying her husband £11,000 in public funds to write a research paper he never completed

Western Daily Press – Review of top jobs in NHS urged after fraud

 

Steve Field and Vasco Knight co-signature

Screen Shot 2017-10-10 at 02.29.55

Steve Field well done PVK