Fatal incidents in English secondary mental health services reported via NRLS September 2017 to September 2020

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist

The reporting and investigation of serious incidents in the NHS, especially in mental health services remains a serious problem.

The 2015 Mazars investigation into deaths at Southern Health NHS Foundation Trust revealed appalling failure to investigate hundreds of mental health deaths, a failure either not detected or reported by the Care Quality Commission in a preceding inspection.

Independent review of deaths of people with a Learning Disability or Mental Health problem in contact with Southern Health NHS Foundation Trust April 2011 to March 2015

Today a parliamentary debate takes place on mental health deaths under the care of Essex Partnership NHS Foundation Trust, as a result of a petition by Melanie Leahy seeking a public inquiry into the disturbing death of her son Matthew, in the context of many other similar deaths and a concern that the trust failed to learn from these deaths.

Debate on e-petition 255823, relating to deaths in Mental Health care 30 November 2020

NHS trusts report patient safety incidents to NHS England/ Improvement under the National Reporting and Learning System.

The most dishonest trusts may not report all serious incidents.

Occasionally, for example, even homicides may not be reported as serious incidents or externally investigated according to NHS policy.

Specialist mental health services report higher levels of fatal incidents compared to acute trusts.

I have extracted fatal incident data September 2017 to September 2020 for NHS trusts with specialist mental health services from the following annual NRLS reports:

NRLS monthly report 2017-2018

NRLS monthly report 2018 -2019

NRLS monthly report 2019 -2020

I found 8632 fatal incidents had been reported in trusts with specialist mental health services between September 2017 and September 2020

The spreadsheet of extracted data can be found here:

NRLS reported fatal incidents  September 2017 to September 2020 in English NHS trusts with specialist mental health services

It is a rough exercise as some mental health trusts have merged with non-mental health trusts during the past three years.

Even allowing for differences in trust size and deprivation in catchment areas, a rough glance raises questions about wide variation in the number of fatal incidents reported.

Are some trusts with specialist mental health services reporting less honestly than others?

Are some trusts wrongly reporting some deaths as “incidents”?

Are some trusts not learning as much as they should from deaths and if so, why?

How much is due to structural problems such as chronic underfunding and neglect of mental health services?

This is a table of the trusts with specialist mental services with the highest number of reported fatal incidents in the last three years:

For completeness, I compared the number of reported fatal incidents during the pandemic (March to September 2020) – 1634, to the number over a similar period (March to August 2019) the year before – 1376.

(I could not find NRLS data for September 2019).

The most vulnerable patients are entitled to safeguarding of their best interests, but sometimes they are failed precisely because they are vulnerable and unable to speak up for themselves.

This includes systemic failure to learn where such patients suffer serious harm.

Real parity of esteem for psychiatric patients is still a long way off.

We have seen over decades that little changes and mental health scandals recur, with similar failures. The political failures underlying this are complex and refractory.

Importantly though, we still have no real NHS investigator.

Instead, patients and bereaved families are faced with an expensively ineffective labyrinth, which leaves questions unanswered after years of endless processes.

Yet in the case of mental health deaths of people where Article 2 Right to Life is engaged and the State has a particular responsibility, it is especially important that this changes and that effective investigation takes place expeditiously.

Please support this petition for independent pre-inquest investigation into all unexplained mental health deaths:

Require pre-inquest investigation into all unexplained NHS mental health deaths

CCRC’s argument of abuse of process by Post Office Ltd & fitness of Paula Vennells Chair of Imperial College Healthcare NHS Trust

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 27 November 2020

Paula Vennells Imperial’s Chair  was a senior manager at Post Office Ltd for 10 years, including seven years as CEO 2012-2019, when the bitter dispute about unsafe prosecutions, convictions and jailings of subpostmasters rumbled on, and culminated in legal action which was aggressively defended by Post Office Ltd.

Related to this scandal, earlier this year BEIS ministers (who oversee the Post Office) asked both the Department of Health and Social Care and the Care Quality Commission to review whether Vennells, is a Fit and Proper Person to be Chair of Imperial College Healthcare NHS Trust.

A letter of May 2020 by Lord Callanan BEIS minister to Department of Health and Care about Vennells’ fitness is provided by this article:

Business minister asks Dept for Health why Paula Vennells is still running an NHS Trust

Statement 10 June 2020 by Paul Scully BEIS minister to parliament about his Fit and Proper Person referral on Paula Vennells to the CQC:

I made a referral on Vennells to the relevant watchdog, the Care Quality Commission under CQC Regulation 5 Fit and Proper Persons almost a year ago. It was not until October 2020 that the CQC ensured that the trust commissioned an external review.

CQC shows little appetite so far for ensuring that the external review is commissioned fairly. The trust itself has ignored a request to consult  harmed subpostmasters about the review’s terms of reference and to invite their evidence to the supposedly independent review.

The Criminal Cases Review Commission (CCRC ) has now disclosed via FOI that a total of 71 subpostmasters have applied to the Commission for review of suspect prosecutions by Post Office Ltd. In addition to 47 cases already referred to the Court of Appeal by  CCRC, an additional 17 cases are still undergoing CCRC review:

“At the time of writing, the CCRC has received a total of 71 applications for review of potential miscarriages of justice related to the Post Office Horizon cases. 47 have been referred to the Appeal Courts and 17 applications are currently actively under review.”

CCRC has also disclosed letters that it sent to the Justice Committee and to Suella Braverman MP Attorney General, seeking review of private prosecutions in the light of the Post Office’s appalling misuse of its powers.

These are the CCRC FOI disclosure letter and attached disclosed correspondence by the CCRC:

FOI disclosure 25 November 2020 by Criminal Cases Review Commission about Post Office Horizon cases referred and passed to the Court of Appeal

Letter 3 June 2020 by Criminal Cases Review Commission to Justice Committee

Letter June 2020 by Criminal Cases Review Commission to Suella Braverman MP Attorney General

The CCRC letter to Braverman states that CCRC’s referrals to the Court of Appeal are based on an argument of “abuse of process” by Post Office Ltd.

Abuse of process in the legal sense is a most serious matter. The burden of proof is on defendants, so CCRC must have determined substantial evidence existed. The Crown Prosecution Service’s guidance notes on abuse of process can be found here. These are the broad areas covered by the CPS guidance:

Moreover, CCRC stated that its abuse of process argument is derived from the trial judge’s “trenchant” findings.

The CCRC has so far decided to refer for appeal 47 such cases on the basis of an abuse of process argument. That argument is itself based on trenchant findings made against the Post Office by Mr Justice Fraser in High Court civil proceedings brought by a large group of former Sub Post Masters/ Mistresses”.

CCRC additionally quotes the following passage from its referral of cases to the Court of Appeal:

“In making the referrals to the Court of Appeal, the CCRC observes in paragraph 68 of our Statement of Reasons that:

“…in the context of [Post Office Limited’s] POL’s combined status as victim, investigator and prosecutor of the offences in question – the CCRC considers that there are reasons for significant concern as to whether POL at all times acted as a thorough and objective investigator and prosecutor, ensuring that all reasonable lines of inquiry were explored.”

Judge Fraser handed down his High Court judgment against Post Office Ltd on 16 December 2019.

That is to say, relevant evidence was there all along and available to CQC, NHS Improvement and the Imperial trust board, from the start of the FPPR process.

We wearily await the outcome of the external review process, controlled by a trust board which has already demonstrated wilful blindness.

RELATED ITEMS

Lord Arbuthnot a long time supporter of harmed subpostmasters has accused Post Office Ltd of lying to parliament:

23 November 2020 Peer accuses Post Office of lying

Post Office Horizon scandal: How Dido Harding helped to recycle Paula Vennells, FPPR and a suggestion for the BEIS Minister

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

Tories exploited MidStaffs politically but made no real changes: Jo Williams Alder Hey Chair and ex CQC Chief joins the list of CQC’s FPPR failures, as unaccountability grows

Is the National Guardian’s Office covering up its failure?

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 24 November 2020

A former worker from an NHS trust previously reviewed by the NHS National Guardian for whistleblowing has been in contact with me. They allege that they were discouraged by the National Guardian’s Office when they came forward with additional concerns about this trust.

They wrote to the National Guardian’s Office last year asking for help. I have seen the correspondence. Amongst other things, it describes a very dysfunctional trust management culture.

The worker reports that in response, they received a telephone call from a manager at the National Guardian’s Office, persuading them to drop their case.

There is no written record of this conversation, so no proof and only the worker’s recollection of the matter.

But the fact that the National Guardian’s Office apparently did not set out its advice in writing is of itself a concern. This is a theme repeated in another case, the details of which will follow in due course.

Nevertheless, the worker’s broad memory of the comments made by the manager from the National Guardian’s Office is as follows:

The conclusion of the phone call was that [REDACTED] advised me to “just let it go. At the end of the day, what are your expectations? You have a new job now, you no longer work for [REDACTED], do you really want to subject yourself to all the stress of going over your experience again?

Needless to say, these comments were never confirmed to me by either written correspondence or email. This took place in [REDACTED] last year, and only added to my sense of isolation and injustice.

I often reflect on the system we have in this country and how frustrating and pointless it all is.

The inevitable conclusion is that managers continue to bully and threaten staff, affect their physical and mental health, affect their family life and remain safe in the knowledge that, basically they are untouchable.”

The worker had been unwell as a result of their experiences, and the rebuff by the National Guardian’s Office was especially unwelcome from that point of view.

It is of course legitimate to help whistleblowers think through their options, including walking away where appropriate, because of individual circumstances and risk assessment. But that should be a facilitative discussion, guided by the whistleblower’s wishes, not an exercise in persuasion.

However, the above comments by the National Guardian’s Office were experienced by the worker simply as discouragement.

I have been contacted by several unhappy staff from this trust, some of whom have also reported problems with the National Guardian’s Office.

There is a potential conflict of interest for the National Guardian’s Office in this matter. It may be trying to keep a lid on trusts where it has already conducted a case review, because it does not want to acknowledge any evidence of its ineffectiveness.

There have already been similar examples, such as that of the important case exposed by Stephen Colgrave and Byline Times two months ago. This included an audit trail of the National Guardian’s Office twisting its own process to avoid an embarrassing case review:

‘Perversion of Justice’ The Abandoned NHS Whistleblower

Ineffective whistleblowing bodies are dangerous, especially those which are captured or which do not operate ethically. They can harm vulnerable whistleblowers in crisis, and they fail to protect the public.

If you have not done so already, please sign and share this petition for much safer UK whistleblowing law and a properly established, independent central whistleblowing agency to enforce good practice:

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RELATED ITEMS

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

Prescribed Persons or the Pretence of PIDA. How UK whistleblowers are ignored.

National Guardian’s gaslighting exclusion criteria: the never ending story

The Disinterested National Guardian & Robert Francis’ Unworkable Freedom To Speak Up Project

Shopping for whistleblowing bodies: An Ombudsman doesn’t suffice for whistleblowing governance

By Dr Minh Alexander and Clare Sardari, 18 November 2020

The UK does not have a central whistleblowing body, like the long established US Office of Special Counsel (OSC) which has responsibility for protecting public sector (federal) whistleblowers. OSC has a wide range of powers and can help ensure redress. Instead, we have a vast, chaotic jigsaw of UK bodies who mostly have minimal duties and powers in niche areas. In the English NHS we have a harmful, toothless National Guardian’s Office for the NHS which serves mainly to mislead and pump out government propaganda. In Scotland, NHS whistleblowers can turn to the Independent National Whistleblowing Officer, who is part of the Scottish Public Services Ombudsman (SPSO). This has powers of investigation but not of enforcement of its recommendations. It is early days for this body but there is no reason to expect that its lack of necessary powers will lead to much change.

The UK Parliamentary and Health Service Ombudsman (PHSO) also lacks powers of enforcement and has shown itself incapable on many occasions of delivering justice to those complaining about UK government departments and public authorities, including the NHS. An example follows of an expensively unsatisfactory process in which PHSO made a finding of maladministration by the Care Quality Commission in a whistleblowing matter, but failed to ensure real learning and change. PHSO also failed to correct a factual inaccuracy in its report despite being warned before publication, and the Ombudsman himself ignored concerns about this for seven months. It also came to light that PHSO, unlike its Scottish counterpart the SPSO, had no process for dealing with complaints about the Ombudsman himself, a strong indicator of arbitrary power and lack of accountability.

There is ongoing debate about what form any central whistleblowing body should take, if we ever get that far. The strongest and safest offering out of three current candidates is the Bill by Dr Philippa Whitford: the Public Interest Disclosure (Protection) Bill, with the proviso that this needs to answer to parliament and not be conflicted by the political interests of any government.

The questionable Whistleblowing APPG (funded & linked to US bounty hunters) has fielded a suspiciously brief Bill. It gives us only a pig in a poke and has some important omissions:

The Whistleblowing APPG’s new Bill and unanswered questions about finances and potential conflicts of interest

Protect’s Bill gives us a whistleblowing body that does not investigate, despite a fallacious claim in a Protect blog that it does. This is correspondence exchanged with Protect’s CEO in which she declined to commit to changing Protect’s Bill (which merely amends rather than replacing PIDA), to give their proposed whistleblowing body powers of investigation. She merely undertook to correct the false claim in Protect’s blog.

Correspondence with Liz Gardiner Protect CEO about Protect’s intention to ensure effective investigation of whistleblowers’ concerns

Whistleblowers do not need endless window dressing and tortuous, ineffective processes that only re-traumatise them. The public needs real protection, not propaganda factories which waste our money in protection of the powerful. What is needed is a truly independent body with real powers to establish the truth and to act upon it.

If you have not already done so, please sign and share the petition for much safer UK whistleblowing law, which is strong enough to prevent cover ups and to ensure the public are protected:

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RELATED ITEMS

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

National Guardian’s gaslighting exclusion criteria: the never ending story

EVIDENCE SUBMISSION TO PUBLIC ADMINISTRATION AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE FOR THE PHSO SCRUTINY HEARING 2019-20

This submission was published in redacted form by parliament  to remove third party correspondence. Committee members will be provided with the unredacted submission so they can see the primary evidence underlying the submission.

This is an unredacted copy of the submission which includes the supporting correspondence:

BY EMAIL

Public Administration and Constitutional Affairs Committee

29 October 2020

Dear Mr Wragg and colleagues,

Evidence submission for PACAC scrutiny hearing on PHSO 2019-20

We write to submit evidence on a recent experience of the PHSO and policy issues raised by this experience.

PHSO investigated a complaint of a mishandled referral to the Care Quality Commission under Regulation 5 Fit and Proper Person, about an NHS trust director who had been found guilty of proven whistleblower reprisal and breach of the NHS managers code of conduct (an under-declared family interest), who was subsequently convicted of fraud and also criticised for her attempts to resist the proceeds of crime process.

In our view:

  • The PHSO process was too protracted
  • The Ombudsman himself was unaccountable with regard to a PHSO failure to correct a factual error in its final report, despite this inaccuracy being pointed out prior to publication. He failed for seven months to respond to correspondence which pointed out the pre-publication failure to correct the inaccuracy.
  • Concerns raised about this lack of accountability led to the discovery that PHSO has no special procedure for complaints about the Ombudsman himself, causing inherent conflicts in the PHSO’s response to any complaints about the Ombudsman himself. This is an astonishing failure by a body which is supposed to be a specialist on complaints handling and it raises underlying issues of culture and organisational hubris.
  • There was a lack of rigour by the PHSO in pursuing compliance with its recommendations for corrective action by the CQC, notwithstanding its lack of enforcement powers. It seemed to us that a procedural box had been ticked and thereafter, the PHSO was not interested in enough in ensuring that there was learning or genuine remedy of injustice. The CQC CEO undermined an official apology given as part of the PHSO process, and to our knowledge, PHSO did not challenge this, contrary to its stated aims:

“We do not have legal powers to enforce our recommendations, but where an organisation is reluctant to implement them, we will try our best to persuade it to do so.”

https://www.ombudsman.org.uk/organisations-we-investigate/putting-things-right

Requests

  1. We do not consider that the PHSO model is robust enough to deliver accountability and good governance in public life, because of insufficient powers and the lack of a duty on the PHSO to enforce improvements and corrections. It does not seem good value for money (budget 2019-20: £25.942 million) and we ask parliament to consider an alternative model of conflict resolution.
  • We ask parliament to ensure that PHSO establishes a specific complaint procedure about complaints about the Ombudsman himself, which introduces an element of independence and external scrutiny. It would be unsafe and unjust to leave complaints about the Ombudsman in his own hands or the hands of his subordinates. In contrast, the Scottish Public Services Ombudsman has a policy for addressing conflicts of interest.
  • We suggest that the PHSO should have a process for handling self-evident factual inaccuracies in its final reports. It should be required to issue post-publication clarification, so that false narratives are not allowed to lie on the record without countervailing facts. The suggested process for acknowledging factual errors in PHSO’s final reports should be published and transparent to the public.

Please see in the appendix below the following items:

  1. Copy of email by Mandy Campbell which admitted that PHSO has no specific process for responding to complaints about the Ombudsman himself.
  • Copy of relevant section from the Scottish Public Services Ombudsman’s complaint policy, about their arrangements for impartiality in the handling complaints about the Ombudsman herself.
  • A more detailed account by Clare Sardari of her experience of the impact of the PHSO process.

Yours sincerely,

Dr Minh Alexander

Clare Sardari

APPENDIX

  1. Email by Mandy Campbell PHSO Chief Executive about lack of process for complaints about the Ombudsman himself:

From: Campbell Amanda <REDACTED>

Subject: RE: PHSO’s handling of a factual inaccuracy in investigation report HC 1815 of 13 December 2018, “Blowing the Whistle: An investigation into the Care Quality Commission’s regulation of the Fit and Proper Person Requirement”

Date: 30 August 2019 at 14:00:52 BST

To: Minh Alexander <REDACTED>, InformationRights <REDACTED>

Dear Dr Alexander

There is no policy that deals with complaints about the Ombudsman himself which is why I, as the Chief Executive, have taken a personal interest in your complaint and ensured that it has been responded to in an appropriate way.

I have copied this correspondence to the Information Rights team who will take forward your data disclosure request.

Yours sincerely

Amanda Campbell

Amanda Campbell CBE

Chief Executive Officer

Parliamentary and Health Service Ombudsman

  • Excerpt from SPSO complaints policy on handling complaints about senior staff and the Ombudsman herself:

“CSCs about senior staff and the Ombudsman

  • CSCs about senior staff (staff on the Leadership Team) can be challenging to handle, as there may be a conflict of interest for the staff investigating the CSC. When serious CSCs are raised against senior staff, it is particularly important that the investigation is conducted by an individual who is independent of the situation. Serious complaints include those types of complaints that pose significant operational, reputational, safety or financial risk to SPSO or its customers. Such CSCs must be immediately escalated to the Head of ISE and depending on the seriousness of the complaint in their view, to the Ombudsman. We must ensure we have strong governance arrangements in place that set out clear procedures for handling such CSCs.
  • Generally, it will be acceptable for the Ombudsman to investigate a CSC about a member of the Leadership Team where there is a segregation of duties and clearly no conflict of interest. This would include where the investigation officer has had no involvement in the matter complained about. In such instances, the Ombudsman should be consulted on the response to the complaint and make the final decision on the complaint based on the evidence identified by the investigation.
  • In relation to CSCs about the Ombudsman, a judgement needs to be made about whether the complaint relates to specific conduct or action by the Ombudsman or whether it relates to actions taken by the Ombudsman’s staff in their name (i.e. about the organisation). Where the complaint specifically relates to the conduct, behaviours or actions by the Ombudsman, the Head of ISE will assess the merits of the case and decide if the complaint should be referred immediately to the ICRS, or considered initially by a member of the Leadership Team. The ICRS will consider complaints about the Ombudsman’s conduct, behaviours or actions when referred by SPSO.”
  • Evidence for PACAC Scrutiny Session 2020 with PHSO by Clare Sardari

In 2014 when I raised a concern regarding nepotism at Chief Executive level in South Devon NHS Trust, little did I know that my future – emotionally, economically, socially, mentally, career-wise and in just about every possible way imaginable, would be harmed so dramatically. Little did I know that the processes and structures in place in the NHS and under UK law to ‘protect’ and care for those who were carrying out their responsibilities and duties as laid down by organisational and national policies, and the law, would be on the whole, useless or corrupt in their own way.

Concerns/complaints are the same thing – they are expressions of discontent or worry and particularly, from my experience, the NHS says one thing and acts in quite a different way when addressing these complaints/concerns. The Department of Health and Social Care has set up regulators – CQC, NHSE, NHSI etc, an Ombudsman and a Freedom To Speak Up service. But, what is now completely apparent, is that none of these bodies have been given the authority or powers to take responsibility for even the most heinous of behaviour within the NHS or Social Care.  Either they have fobbed me off with their denials of responsibility or they actually don’t have the powers to take action despite supposedly offering supportive services; either way, this situation is completely untenable. With every issue I have raised post winning at ET (if you can call it that!), the response has been ‘we don’t deal with that’ or ‘that is not our responsibility’. As a service user of the NHS, I have been thwarted at every stage in my pursuit of justice.

So today the issue of COMPLAINT is the area I’d like to pursue with regards to my contact with the PHSO and their investigation into CQC’s regulation and administration of the Fit and Proper Persons Requirement (FPPR).

In 2017, I complained to the PHSO, supported by my then MP and Chair of the Commons Health Select Committee Sarah Wollaston, about CQC’s involvement in the recycling of Paula Vasco Knight to the position of interim Chief Executive at St Georges Hospital in London.

After investigation the PHSO found that CQC’s handling of FPPR was not transparent, fair or proportionate and this amounted to maladministration. (a link to the ‘Blowing the whistle: an investigation into the Care Quality Commission’s regulation of the Fit and Proper Persons Requirement’)

Subsequently, the PHSO recommended that CQC, within 8 weeks of the report should:

  1. apologise for the injustice (loss of opportunity, frustration and distress) their actions have caused me
  1. offer me £500 in recognition of the injustice caused;
  2. review their learning from this case and report back about improvements they have made to demonstrate rigour in their FPPR considerations in future.

Below, I have cut and paste the ‘apology’ letter I received from Professor Edward Baker – Chief Inspector of Hospitals. I was most disappointed and distressed by the tokenistic and very grudging apology he gave me on behalf of the CQC. It was the height of condescension and certainly did not reassure me that the CQC meant to learn anything from this process.  I am in complete agreement with the Ombudsman’s Principles of Good Administration but cannot identify the part in Professor Baker’s letter which adheres to the general principle of ‘Putting things right…’ What he does successfully is he puts the words in the right order but there is no sincerity, thus he is not putting things right! He is doing the bare minimum that has been asked of him and he makes that very clear.

Dear Ms Sardari,

14 December 2018

I write further to the Parliamentary and Health Service Ombudsman (PHSO) investigation of your complaint regarding the Care Quality Commission’s (CQC) application of the Fit and Proper Persons Requirement (FPPR) in relation to the appointment of a Chief Executive to Trust P in 2016. I understand that a copy of the final PHSO report has been shared you.

The PHSO has partially upheld your complaint overall and set out a number of recommendations for CQC.

We are sympathetic to your experience, and are sorry for the frustration and distress caused to you through CQC’s application of the FPPR process. In recognition of this, the PHSO has asked us to offer you a consolatory payment of £500. Please can you email your relevant bank details including the sort code and bank account details to ……………. upon receipt we will make arrangements to make a BACS transfer to you.

In respect of the final recommendation outlined by the PHSO, CQC will undertake a review on how to make improvement to the current FPPR process and will update the PHSO in due course.

Yours sincerely,

Professor Edward Baker Chief Inspector for Hospitals

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This apology coincided with a press release from Ian Trenholm CQC CEO

“We recognise that the handling of this case – both by CQC and by wider NHS organisations – did not meet Ms Sardari’s expectations of how the Fit Proper Persons Requirement (FPPR) should operate, and acknowledge her frustration and distress. We take the treatment of whistleblowers very seriously and are wholly committed to the Speak Up agenda.

“This was a challenging case which clearly demonstrates the difficulties faced by NHS bodies who are required to operate the FPPR system and for CQC operating under the current regulatory framework. The current framework needs reform if it is to meet the needs of people, providers and regulators. 

“Those difficulties have been acknowledged for some time and they are the subject of an independent Review by Tom Kark QC, who is due to report to the Department of Health and Social Care shortly. 

“We do have concerns about the approach adopted by the Parliamentary and Health Service Ombudsman (PHSO) which led to some of the findings of maladministration.  There was a considerable amount of contradictory evidence for the Trust to assess.  This included an Employment Tribunal decision, which was not consistent with other pieces of evidence.  Under existing FPPR regulation our role is to consider whether the Trust acted reasonably in coming to their conclusions about the weight that should be attached to various pieces of evidence, rather than whether we would have reached the same conclusions. We judged the Trust had performed its obligations reasonably when faced with this difficult situation.  We are disappointed that the PHSO came to a different conclusion. We have made these concerns clear in our response to the report.”

As a result of the ‘apology’ letter and Ian Trenholm’s press release I decided to complain to Peter Wyman – Chairman CQC– see below:

Dear Mr Wyman,

Complaint about Ian Trenholm’s actions in response to PHSO report on the Paula Vasco-knight FPPR

It is with regret that I would like to make a complaint about the actions of Ian Trenholm, CEO of CQC.

His press release statement following the publishing of the PHSO’s Blowing the Whistle: an investigation into the Care Quality Commission’s regulation of the Fit and Proper Persons Requirement, is insulting, distressing and patronising.  He does not accept responsibility for CQC’s errors and he continues to promote  the strong message that  those who victimise whistleblowers should escape accountability. 

I don’t want him to recognise that CQC did not meet my expectations, I want him to recognise that accountability is vital in protecting the public interest. 

My complaint also lies with his and CQC’s ability to determine the importance and weighting of evidence. It is not a question of numbers of pieces of evidence it is about the weight of each individual piece. The ET decision was the weightiest piece of evidence in this assessment of FPPR, because, in law, it evidenced several aspects of discrimination and reprisal against me. 

The fact is that neither St Georges nor CQC acted reasonably in coming to any of their conclusions, and such governance failure is putting Trusts, their staff and patients at serious risk of harm.

I am seriously concerned that Mr Ian Trenholm’s press statement and comments in the Health Service Journal today contradicted and totally undermined the apology that I received from the CQC via Prof Ted Baker CQC Chief Inspector of Hospitals.

I had been disappointed by the limited concessions made in Prof Baker’s letter of ‘apology’. I was amazed and very distressed when even that was effectively taken away by Mr Trenholm’s defiant comments and denials that CQC had erred.

It makes a farce out of the PHSO process, which itself has been prolonged and stressful for me, and forced me to re-live unpleasant experiences.

Mr Trenholm’s actions disrespected me and they disrespected the basic principles of justice which underlie the PHSO process.

He should not have cocked a snoot at a long, significant investigation nor brushed aside my concerns about injustice in such a manner. To me, that is just more maladministration.

Rather, he should be reflecting much more seriously on how CQC got it so wrong. 

Justice demands that such frailties having been exposed in CQC’s processes, the regulator should now ensure that there is meaningful review of all the FPPR referrals that CQC has rejected. 

The likelihood is that CQC has allowed unfit directors to continue working in the NHS, and this is a serious patient safety and Safeguarding issue.

I await your earliest response.

Yours sincerely,

Clare

Clare Sardari

 Cc Matt Hancock Secretary of State 

Please find below a copy of the reply I received from Peter Wyman:

page1image48666512
page2image48689968

The third and final recommendation the PHSO report made was that the CQC would:

Review their learning from this case and report back about improvements they have made to demonstrate rigour in their FPPR considerations in future.

From this statement, I was under the impression that I would receive details of CQC’s learning and improvements. Apparently, this information is not generally provided as a matter of course to the complainant. I find this obscure as the main reason for complaining is to bring about change. I also need to see the evidence that the changes have actually occurred or will be made.

I did receive this from PHSO when I asked for evidence of compliance:

Many thanks for your patience regarding the compliance in relation to our investigation about the CQC.  As you know, we have been liaising with the CQC in relation to action we recommended they take on your case – that they review their learning and report back on improvements they have made to demonstrate rigour in their FPPR considerations.  We consider that we have seen evidence to show that they have completed that action. 

In particular, the CQC have appointed an independent legal adviser, whose role is to consider all the evidence on FPPR cases and then submit advice to the FPPR Panel.  The FPPR Panel have also taken steps to ensure that their discussions and decisions on FPPR matters are detailed and recorded.  We believe that this provides an added layer of robustness to the decision-making process and an improved audit trail.  Therefore, we are satisfied that the CQC have adequately addressed the failings we found and compliance is complete.

I then asked the CQC for the name and contact details of the newly appointed legal adviser

I am writing in response to your query about the CQC’s compliance with our recommendation following out publication of our investigation report into your complaint.  You said that the CQC had refused to release the name of the legal adviser who provides independent advice.  You said that you were concerned that this showed that the CQC were not complying with our recommendation to ensure rigour in their handling of FPPR. 

As we explained in July 2019, we are satisfied that the CQC has complied with our recommendation on your case.  The CQC have appointed an independent legal adviser, whose role is to consider all the evidence on FPPR cases and then submit advice to the FPPR Panel. The FPPR Panel have also taken steps to ensure that their discussions and decisions on FPPR matters are detailed and recorded. We believe that this provides an added layer of robustness to the decision-making process and an improved audit trail. In other words, the CQC provided evidence of added rigour in the FPPR process, which delivered what we asked of them in our recommendation.

That said, we wanted to give you additional confidence about the present FPPR process followed by the CQC.  For that reason, we made enquiries to the CQC to see if they would be able to provide further evidence about the legal adviser’s actions in present FPPR cases.  The CQC said that they were concerned about sharing information with us which is unrelated to your particular complaint and includes personal information about others.  Therefore, they felt unable to provide more information to us.  

We are not a regulator. It is not our role to monitor the CQC’s ongoing actions.  We cannot compel the CQC to provide us with evidence once our investigation is closed. For these reasons, we propose to take no further action on your case.  The only way we may be able to intervene further is if we receive a fresh complaint which has completed the complaints process.

I recognise that you may be disappointed with our response, however, I hope you are reassured that we have taken it seriously.  Our involvement in your case is at an end and it is difficult to see how we might be of further assistance in the absence of a fresh complaint.

I am regularly advised that as a whistleblower my views, information, concerns, experiences etc are valued and respected (see communications above) but still the disrespect, and disregard continues and remains a consistent part in the way that power responds to me – a much harmed whistleblower that the system purports to want to protect!

I now return to the general heading of this evidence relating to the PHSO’s investigation into CQC’s administration of FPPR – COMPLAINT

As you will see throughout, there is no one taking responsibility for ensuring that action takes place for change. Everyone is telling everyone what they should be doing but no-one is ensuring it is done because none of the regulators are being held to account to provide evidence.

PHSO ‘recommended’ that CQC apologise to me. As I mentioned above, the word ‘sorry’ was used but not in a way that anyone could possibly believe was genuinely meant. The context, and the giving with one hand and the taking away with the other resulted in more frustration on my part and further raising of concerns or complaints.

The specific evidence of meaningful change and improvements were not shared and although I understand that confidentiality should be maintained, why can I not know the name and contact details of a legal adviser? Where does transparency figure in all of this? To me, this smacks of secretive behaviour, of fear of retribution or discovery instead of openness and transparency. Transparency is about seeing things clearly, the first step towards inspecting and adapting, or changing things for the better!

The financial remedy is tokenistic, I accepted it as my current income is limited and every little helps, but does it really compensate for the emotional and mental damage of the harm caused by the recycling and subsequent validation of Paula Vasco Knight? It does, however affect my own perception of my value to society – £500!

Where does my pain end? Is it when I have been brow beaten into defeat by the NHS because I dared to raise a concern/complaint against one of their rising stars?

So at the end of the day do I think that the stress of the PHSO investigation and the outcomes as a result, represent good value for money, and good value for the personal stress involved in the process and the added stress at the end?   No, I don’t. The only way change will happen is when those who can hold others to account on their behaviour have the power to do so, until then the status quo remains. Effective complaint handling could make all the difference, but it must go hand in hand with the power to take action and create change. Additionally, new legislation which properly protects whistleblowers from detriment from the moment a concern or issue is raised, is probably the only way forward for a more equal, open and transparent NHS and society!

Why is West Suffolk NHS Foundation Trust refusing to name the contractor who processed staff fingerprints?

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 17 November 2020

Background

West Suffolk NHS Foundation is the NHS trust rated ‘Outstanding’ by CQC

in January 2018, and which the National Guardian foolishly praised for good whistleblowing governance, which launched a mole hunt for a member of staff who had written anonymously to Susan Warby’s (a patient) bereaved family to raise concerns about safety.

The trust claimed fingerprints were found on this letter/ its envelope, and used this to intimidate staff, including a member of staff who had previously made public interest disclosures about other matters. Staff were threatened with possible consequences if they did not provide fingerprints and handwriting samples for matching. The trust letter sent to staff read:

“any refusal to provide consent … would be considered evidence which implicates you as being involved in the writing of the letter”.

The trust later retreated in the face of public condemnation and admitted that it should not have asked for staff fingerprints for matching.

Biometric data used for identification is classified as special category data under GDPR, European data protection legislation, and it can only be used for identification based on “explicit consent”. The trust therefore acted outside of its powers when it coerced staff.

The ICO confirmed that the trust staff affected would, on the face of the known facts, have a legitimate basis for lodging a complaint.

A “rapid” review  of the West Suffolk governance failure was commissioned by NHS Improvement in February 2020 and its publication is awaited.

The matter is of special sensitivity as the Secretary of State, the local MP, was implicated by reported failure to help trust staff who sought his help to address patient safety issues and his protection against management bullying. Hancock and the West Suffolk CEO have also exchanged public compliments. It remains to be seen what influence the Department of Health and Social Care will exert over the rapid review report.

West Suffolk’s processing of the purported finger prints

To help tighten up the facts available, I asked West Suffolk about its handling of the fingerprint data. Farcically, the trust initially stalled by asking what I meant by fingerprint data. It has now responded, claiming that it only holds the fingerprints in the form of the original letter/envelope, and does not hold a digital form of this data.

The trust admits that its data protection policy does not explicitly cover biometric data but claims that “by its nature” the policy implicitly covers special category data. That is an unsatisfactory argument. The failure to explicitly tell staff about their rights regarding special category data is unfair. Suggesting a lack of genuine regret, the trust has not bothered to review and amend its data protection policy despite the above furore over its infringement of staff rights.

Of concern, the trust is also tight-lipped about whom it paid public money to analyse the alleged fingerprints on the anonymous letter/envelope. It claims it cannot reveal this information due to the commercial interest exemption. This seems an unusual application of this exemption and I will appeal.

One has to wonder about the reasons behind the trust’s obfuscation.

The trust now claims that the contractor no longer holds the fingerprint data:

“11. Does any third party (or parties) still hold the fingerprint data?

No.”

Lastly, the trust denies that it holds any other staff fingerprint data other than those related to the Warby case.

The FOI correspondence with the trust is provided in the appendix.

If you have not done so already, please sign and share the petition for much better UK whistleblowing law, to replace the currently ineffective system response which is reactive, too slow to prevent harm and very often compromised. We need a proactive system with the powers to establish the truth much more quickly, reduce whistleblowers’ exposure to reprisal and correct governance failures speedily.

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RELATED ITEMS

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

National Guardian’s gaslighting exclusion criteria: the never ending story

Matt Hancock Secretary of State for Health and Social Care, and Freedom To Speak Up lanyard sporting Steve Dunn, CEO of West Suffolk, in happier times

APPENDIX
FOI correspondence with West Suffolk NHS Foundation Trust

From: FOI <REDACTED>

Subject: FOI 20-14795

Date: 17 November 2020 at 08:45:27 GMT

To: minh alexander <REDACTED>

Cc: FOI < REDACTED >

 Dear Dr Alexander 

I am writing to confirm that the West Suffolk NHS Foundation Trust has now completed its search for the information which you requested on 12th September

Thank you for your email dated 24th October clarifying your request for information dated 12th September. We are now in a position to provide a response to the questions posed with the context that you have provided.

We note that by using the term ‘fingerprint data’ you are referring to finger prints on a specific letter/envelope which was sent anonymously to a member of the public. On that basis, we can respond to your numbered points as follows:

  1. Where did the trust store the data on the fingerprints from the anonymously sent documents/ envelope?

The anonymous letter was stored in a sealed police evidence bag in a locked secure location in the Trust’s premises.

  • Who in the trust had access to the fingerprint data?

The sealed evidence bag was sent by the police to the Trust, and a limited number of staff held the evidence bag but did not open it; these include the Case Investigator and the Case Manager.

  • Does the trust still hold the fingerprint data?

Yes.

  • If the trust had multiple copies of the fingerprint data, please disclose all locations in which the fingerprint data has been stored

The Trust did not/does not have multiple copies.

  • Please disclose what level or levels of IT security applied to the stored fingerprint data.

This is not applicable as the fingerprints to which you refer are on a hardcopy envelope/letter.

  • Did any third party store the fingerprint data at any point?

Yes, a laboratory specialising in fingerprinting.

  • Please disclose details of the third party or parties who stored the fingerprint data.

This Trust considers this information to be exempt from disclosure under s.43(2) of FoIA which states that information does not have to be disclosed if it would or would be likely to harm the commercial interests of any person. The exemption in s.43(2) is qualified, which means it is subject to a public interest test. The Trust has considered the public interest arguments in favour of disclosing the information and the public interest arguments in favour of maintaining the exemption. It has reached the conclusion that the public interest balance lies in favour of maintaining the exemption.

  • If a third party or parties stored the fingerprint data, where did the third party (or parties) store the fingerprint data?

As above, the Trust considers this information to be exempt in accordance with s.43(2) of FoIA. We have consider the public interest balance and have reached the conclusion that the public interest is in favour of the exemption.

  • Was the level of IT security applied by these third parties in storing the fingerprint data agreed with the trust, whether specific to this case or by contract?

The Trust undertook due diligence in relation to the laboratory in question which is a recognised company providing a range of forensic science expert witnesses to criminal and civil courts, companies, private investigators, sports teams and private clients. 

  1. Please disclose the details of the level of IT security agreed between the trust and third parties.

As per question 9 above.

  1. Does any third party (or parties) still hold the fingerprint data?

No.

  1. Does West Suffolk NHS Foundation trust hold any other fingerprint data, other than that related to the anonymous fingerprint data from the Susan Warby case?

No.

  1. Does the trust have any policy on the processing of sensitive staff biometric data (such as fingerprints), and if so has this been reviewed and or updated since the trust announced that it was dropping its attempts to obtain fingerprint evidence from trust staff, to see if any matched the fingerprints on the anonymously sent documents/ envelope about the Warby case.

The Trust has a Data Protection Policy which by its nature implicitly covers the processing of ‘special category’ data including biometric data. That policy does not make explicit reference to biometric data and has not been reviewed or updated in response to the fingerprint investigation undertaken by the Trust.

The information supplied to you continues to be protected by the Copyright, Designs and Patents Act 1988. You are free to use it for your own purposes, including any non-commercial research and for  the purposes of news reporting. Any other reuse, for example commercial publication, would require the permission of the copyright holder.

If you are unhappy with the service you have received in relation to your request and wish to make a complaint or request a review of our decision, you should write to:

Chief Executive

West Suffolk NHS Foundation Trust

Hardwick Lane

Bury St Edmunds

Suffolk IP33 2QZ

If you are not content with the outcome of your complaint, you may request the Information Commissioner’s Office to carry out a review.

Kind regards

Jenny Hards

Senior Information Governance Officer

West Suffolk NHS Foundation Trust
Hardwick Lane|Bury St Edmunds|SUFFOLK|IP33 2QZ


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From: minh alexander <REDACTED >

Subject: FOI 20-14795

Date: 24 October 2020 at 12:32:59 BST

To: Stephen Dunn <REDACTED>

Cc: FOI <REDACTED>

BY EMAIL 

Steve Dunn

CEO West Suffolk NHS Foundation Trust

24 October 2020

Dear Mr Dunn,

I have had a rather unexpected response from West Suffolk NHS Foundation Trust to my FOI request of 12 September 2020, in which the trust has asked me, after the FOI response was due, to clarify what I meant by “fingerprint data”. Please see the correspondence exchange with the trust, below.

I clearly meant finger prints detected either on the anonymous letter, the envelope that it arrived in or any enclosures, which sparked the trust’s molehunt & initial demands that staff provide finger prints for matching against those purportedly found on the anonymous letter/ envelope/ enclosures.

I not sure how much clearer I can be.

Please expedite the trust’s response.

Many thanks

Dr Minh Alexander

From: FOI <REDACTED>

Subject: : FOI 20-14795

Date: 12 October 2020 at 10:42:19 BST

To: minh alexander <REDACTED >

Cc: FOI <REDACTED>

Dear Dr Minh Alexander,

Request for Information

Thank you for your email of 12th September 2020 which we are treating as a request made under the Freedom of Information Act 2000 (‘FoIA’).

You have requested information relating to ‘fingerprint data.’

We have given careful consideration to your request and have reached the conclusion that it is not sufficiently clear to enable us to locate or identify any information. In accordance with our duty under s.16 of FoIA, we would like to assist you to clarify your request to the extent that we are able to properly respond to it.

More specifically, please could you clarify what you mean by the term ‘fingerprint data’ for the purposes of your request?

Please note that in accordance with s.1(3) of FoIA, we are not under any further obligation to respond to your request until clarification has been provided to us. 

If you have any complaint about the way in which your request has been handled, please write to

Chief Executive

West Suffolk NHS Foundation Trust

Hardwick Lane

Bury St Edmunds

Suffolk IP33 2QZ

who will conduct a review. If your complaint is not resolved to your absolute satisfaction, you have the right to apply to the Information Commissioner for a decision. The Information Commissioner can be contacted by writing to Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Yours sincerely

Jenny

Jenny Hards| Senior Information Governance Officer

Cedar House

West Suffolk NHS Foundation Trust
Hardwick Lane|Bury St Edmunds|SUFFOLK|IP33 2QZ

Requests received after 3pm will be logged the following working day


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From: FOI <REDACTED >

Subject: FOI 20-14795

Date: 15 September 2020 at 09:37:59 BST

To: ‘minh alexander’ <REDACTED>

Cc: FOI <REDACTED >

Freedom of Information Request Acknowledgement

Thank you for your request which was received by us on 14th September 2020

Under the Freedom of Information (FOI) Act 2000 we are required to provide a response within 20 working days. You should expect to receive a response by 12th October 2020

We will advise you if we do not hold the information requested or if an exemption applies.

Your request has been given the reference number FOI 20-14795 .

Jenny

FOI Team

Cedar House

West Suffolk NHS Foundation Trust
Hardwick Lane|Bury St Edmunds|SUFFOLK|IP33 2QZ

Requests received after 3pm will be logged the following working day

From: minh alexander [REDACTED] 
Sent: 12 September 2020 11:17
To: FOI
Cc: Dunn Stephen
Subject: Handling of fingerprint data by West Suffolk NHS Foundation Trust and third parties

Dear Sir,

Handling of fingerprint data by West Suffolk NHS Foundation Trust and third parties

Regarding the trust’s attempt to obtain fingerprints from staff, in an investigation to find out who had sent an anonymous letter to the bereaved family of Susan Warby, a deceased trust patient whose care was criticised by the coroner:

https://www.theguardian.com/society/2020/sep/07/errors-west-suffolk-hospital-contributed-womans-death-susan-warby

1. Where did the trust store the data on the fingerprints from the anonymously sent documents/ envelope?

2. Who in the trust had access to the fingerprint data?

3. Does the trust still hold the fingerprint data?

4. If the trust had multiple copies of the fingerprint data, please disclose all locations in which the fingerprint data has been stored

5. Please disclose what level or levels of IT security applied to the stored fingerprint data.

6. Did any third party store the fingerprint data at any point?

7. Please disclose details of the third party or parties who stored the fingerprint data.

8. If a third party or parties stored the fingerprint data, where did the third party (or parties) store the fingerprint data?

9. Was the level of IT security applied by these third parties in storing the fingerprint data agreed with the trust, whether specific to this case or by contract?

10. Please disclose the details of the level of IT security agreed between the trust and third parties.

11. Does any third party (or parties) still hold the fingerprint data?

12. Does West Suffolk NHS Foundation trust hold any other fingerprint data, other than that related to the anonymous fingerprint data from the Susan Warby case?

13. Does the trust have any policy on the processing of sensitive staff biometric data (such as fingerprints), and if so has this been reviewed and or updated since the trust announced that it was dropping its attempts to obtain fingerprint evidence from trust staff, to see if any matched the fingerprints on the anonymously sent documents/ envelope about the Warby case.

Yours sincerely,

Dr Minh Alexander

Cc Steve Dunn CEO West Suffolk NHS Foundation Trust

National Guardian’s gaslighting exclusion criteria: the never ending story

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 12 November 2020

Summary The National Guardian’s Office makes it up as it goes along. It has now tied itself in an especially absurd knot by claiming that both an active and a concluded Employment Tribunal case are exclusion criteria which prevent whistleblowers’ access  to a case review. This brief post unpacks the careless and dangerous arbitrariness. The National Guardian has not responded to an invitation to comment and to put the matter right.

The NHS National Guardian for whistleblowing has no statutory basis, no powers and few duties. Even the duties that she holds are not properly discharged.

Importantly, the National Guardian has made a number of arbitrary decisions with regards to whistleblowers seeking review of their cases by her Office.

She has at times invoked exclusion criteria that are not listed in her official publications.

At Brighton and Sussex University Hospitals NHS Trust, she left whistleblowers and patients exposed by allowing the trust board time to get their story straight, before conducting a case review which predictably ended with the cheery conclusion that things had improved.

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

At another NHS trust, her Office refused to review the case of whistleblower who suffered serious detriment and personal injury which required a cardiac pacemaker to be fitted. Echoing events at Brighton and Sussex, the whistleblower was told by the National Guardian’s Office that their trust should be given more time, when it had already exceeded the timescale given by the National Guardian to make improvements:

‘Perversion of Justice’ The Abandoned NHS Whistleblower

The likely reason for the refusal? The National Guardian had already reviewed the trust, self-evidently ineffectively. Opening another case review would have effectively been an admission of failure.

A particularly shocking aspect of the National Guardian’s & her funders’ games with whistleblowers include the operation of an exclusion criterion that all processes must be concluded before any case review  by the National Guardian would be considered. This only came to view in May 2017 via a subject access request for personal data by a whistleblower. The exclusion of whistleblowers until all processes are concluded is a dangerous approach because it leaves patients exposed, potentially for years:

National Guardian reprieves NHS employers, but condemns whistleblowers and patients

In 4 July 2017 the National Guardian’s Office specifically confirmed to the desperate whistleblower that the National Guardian would not consider applicants for case review until any Employment Tribunal claim had ended.

“…I can confirm that outstanding decisions relating to a particular case include those to be made by an employment tribunal…Therefore, as you have informed us that you have submitted your case for consideration by an employment tribunal, I can confirm that we are unable to currently consider your case for review.”

The National Guardian’s Office has now surpassed itself in absurdity by advising a vindicated whistleblower, who succeeded in an Employment Tribunal claim, that their case cannot be reviewed  partly because there has purportedly been “learning” through the Employment Tribunal process.

This is the height of slipperiness. Employment Tribunals may make findings from which the NHS could potentially learn, but quite often it fails to do so.

For example, in Dr Kevin Beatt’s case, his trust defied the Employment Tribunal and repeatedly appealed, wasting vast amounts of public money. In the case of the former HR director of South Devon, the NHS re-employed her as Director of HR at another trust after she was found to have victimised two whistleblowers.

Employment Tribunals also have narrow scope and only examine the secondary employment issues related to whistleblowing. They do not investigate if concerns have been safely resolved.

Thus, the National Guardian’s Office is turning its back on patients when it claims there is sufficient “learning” through the Employment Tribunal.

Moreover, the conclusion of an Employment Tribunal is not the end of the story for whistleblowers in terms of detriment. Many face continuing problems with blacklisting and undermining by their former employers.

I have put it to Henrietta Hughes herself that it is surreal for whistleblowers to be told that both an active and a concluded Employment Tribunal case are exclusion criteria. I asked her if she wished to comment and or set out a different position to that recently taken by her Office. There has been no response so far.

The gaslighting of whistleblowers by the National Guardian’s Office on behalf of the government is one of the most unpleasant aspects of the chronic failure of UK whistleblowing governance.

It matters deeply to patient safety that we have a credible alternative to this charade.

This is borne out by today’s news about a cluster of “Never Events” at the Royal Cornwall Hospitals NHS Trust, another trust ineffectively reviewed by the National Guardian, which came to attention three years ago over Never Events.

This is an FOI disclosure of March 2020 by the trust regarding Never Events:

Royal Cornwall Hospitals NHS Trust FOI Ref: 9580

To make a real difference, we need a truly independent whistleblowing agency free of government interference, and which has both the powers and the appetite to protect the public interest.

If you have not done so already, please sign the petition for reform of UK whistleblowing law and for provision of effective enforcement infrastructure.

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RELATED ITEMS

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

National Guardian looks set to throw Freedom To Speak Up Guardians under the government’s bus too

The Disinterested National Guardian & Robert Francis’ Unworkable Freedom To Speak Up Project

More CQC-Employer collusion against whistleblowers

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 7 October 2020

Summary: A whistleblowing case of two care home staff, Karen McGuire and Miss T Skitt who were found to have been victimised by care home managers, has revealed correspondence in which the local Care Quality Commission inspector lacked impartiality. She appeared to accept without question derogatory employer claims about the whistleblowers. We previously saw a similar CQC response in the case of Helen Rochester, another care home whistleblower who was baselessly referred to the Disclosure and Barring Service upon CQC’s suggestion:

Breach of confidentiality by CQC and complicity in referring a whistleblower to the Disclosure and Barring Service

In this latest case the care home in question, Charlton Court Pudsey Leeds, is still rated by CQC as ‘Good’ including on the ‘Well Led’ domain. This is despite the ET discovering that one of the care home managers hired an ex Detective Chief Superintendent who posed as a CQC official to find out what one of the whistleblowers (Karen McGuire) had reported to the CQC. The ET accepted Karen McGuire’s evidence about this bizarre contact in its entirety. She told the ET via her witness statement that upon being discovered in his deception, the former senior police officer accused her of theft. UK whistleblowing law does not recognise detriment by regulators, only employers. It also does not compel regulators to investigate whistleblowers concerns. This case powerfully adds to the case for major reform of the law.

The whistleblowers at Charlton Court care home

A good Samaritan drew my attention to a highly significant Employment Tribunal (ET) judgment of 11 December 2019 in a whistleblowing case brought by two care home workers, Karen McGuire and Ms T Skitt, who were unfairly and constructively dismissed:

Case numbers 1801731/2019 and 1801734/2019 K McGuire & T Skitt v ADL plc, Mrs P Jackson, Charlton Court Care Home Ltd

The whistleblowers achieved a rare ‘victory’ and the ET accepted that they had suffered detriment as a consequence of whistleblowing about neglect and abuse of vulnerable service users. More usually, detriment is found but ETs stop short of attributing it to whistleblowing.

According to the ET judgment , Karen McGuire made the following whistleblowing disclosures about events at Charlton Court care home, Pudsey, Leeds:

“13. We will deal with the 6 internal disclosures first in our findings as those disclosures are relied upon for all the alleged detriments complaints. Mrs McGuire alleges the following disclosures were made to her employer:

1. Telling Miss Lewis that a resident had been left unattended and that carers were not around in November 2018 (claim form paragraph 10).

2. Telling Miss Metcalfe that Carer B was taking photos in resident’s rooms on 27 December 2018 (claim form paragraph 12).

3. Telling Miss Lewis that a Carer P, had thrown porridge on a resident in late November/early December 2018.

4. Telling Miss Metcalfe that a resident had been left with soiled pads and only changed when he went to bed in late November/early 2018 (claim form paragraph 14).

5. Telling Miss Metcalfe that a resident had been taken outside wearing very little and raising more general concerns about neglect on 5 December 2018 (claim form paragraph 16).

6. Repeating those matters to Miss Metcalfe later in December 2018 (claim form paragraph 17).”

  • “Mrs McGuire alleges she made her first ‘protected disclosure’ in November 2018, to Mrs Lewis. She told Mrs Lewis (senior registered nurse) that a resident (J) had been left unattended and that carers were not around to help residents. She “was concerned that residents were being left to wait to be changed and washed as a matter of course due to the fact that carers were often not around to help as they had gone for cigarettes or had gone to the shops. The claimant expressed her shock at the lack of pads and the length of time that many residents were having to wait to be changed and she said that she felt that this was neglect and she thought that something should be done about it.”
  • “The claimant reported concerns about an incident where a vulnerable resident had reported to her that Carer P had thrown porridge over the resident and caused a mark to her chest. The claimant had been told by the resident that Carer P had thrown the porridge at her ‘in a mood’. The claimant reported this incident and advised Mrs Lewis that she was worried about this carer’s suitability to look after vulnerable residents.”

As ever, the whistleblowers were reported by the ET to have unblemished records prior to counter-allegations by their employer, after they raised concerns. For example:

“23. Mrs McGuire had not worked for 17 years while she had a career break to care for her children. This was her first job back to work in a care home setting. She had set herself high standards for the care she expected of the residents at the home. She was confirmed in ‘post’. No complaints were made about her work. She was considered, to be a good carer and received an award as “Carer of the Month” in December 2018.”

Unusually, the whistleblowers named an individual (Mrs P Jackson, manager) as a respondent in addition to suing their employing organisations. This is traditionally frowned up and may count against claimants, but in this case the judge was very critical of Mrs P Jackson and upheld some of the claims against her.

A bizarre twist in this grim tale is the fact that a former senior police office, former Detective Chief Superintendent Bob Taylor hired by the care home as an investigator, phoned one of the whistleblowers, Karen McGuire and he reportedly posed as a CQC official. According to a report by the Daily Mirror in June 2020, he reportedly “fished” for information about what she had disclosed to the CQC. But his voice was recognisable and the ruse failed:

“He pretended to be from the CQC but Mrs Maguire recognised his voice from fire safety training he had given at the home.”

The ET judgment itself makes these observations about the detriment involving Mr Taylor:

Detriment involving Mr Taylor

125.This then leads to the detriment alleged against Mrs Jackson involving Mr Taylor. The claimant alleges that Mrs Jackson instructed Mr Taylor to approach her and question her purporting to be from the CQC, accusing her of theft, insisting she had to attend a meeting with him and texting her (the events described in paragraphs 44 to 47 of the claim form). Those paragraphs are repeated in the witness statement in which the claimant gives a very detailed account of her telephone call with Mr Taylor. The respondents were fully aware of the allegations from the claim form and knew the telephone call was pleaded as a detriment.

126.In those circumstances you would expect that Mrs Jackson would ensure that Mr Taylor’s witness statement provided some detail about the instructions he received from Mrs Jackson, the ambit of his authority and the call he made to the claimant following those instructions. His witness statement makes no reference at all to the call made by him to the claimant and was in our view deliberately misleading. He says at paragraph 8: “I was informed that she would not talk to me but nevertheless I sent her a text on the number I had been provided. I was asked to carry out a safeguarding investigation in January 2019. I was made aware that the allegations were being made by Karen McGuire a carer who had walked out of work on 9 January 2019”.

127.Mr Taylor made a correction to his statement at the beginning of his evidence by adding a sentence to his paragraph 6 to say: “I contacted her by telephone on 10 January 2019”. In his witness statement he did not offer any details of that conversation. We found Mr Taylor was being deliberately evasive about the telephone call, firstly by not referring to it at all in his witness statement, implying he was ‘informed’ that the claimant would not talk to him, when he had spoken to her directly and knew exactly what had happened. Secondly by only including the fact of the call at all as a ‘correction’ to his statement when he knew it was the reason he was called to give evidence.

128.Mr Taylor has 31 years of experience as a police officer rising to the rank of Detective Chief Superintendent before retiring. He tells the tribunal he has a law degree. He has worked for ‘ADL Care Plc’ for the last 5 years when ‘they’ commission work from him ‘usually through Pearl Jackson the Operations Director of ADL Plc’. He was fully aware of the importance of that telephone call prior to this hearing because it was the only alleged detriment that involved him, yet he chose not to deal with it at all in his statement. The statement prepared for these proceedings ends with a ‘statement of truth’ signed on 18 September 2019.

129.We were surprised given Mr Taylor’s long experience in the police force, which would have included taking statements, that he was unable to provide a statement dealing truthfully with the matters he was required to address, to assist the Tribunal.

130.Given the conversation that had taken place between Mrs Jackson and the claimant prior to her call with Mr Taylor and the tone of the letter that followed, it is likely that Mr Taylor would have understood that Mrs Jackson was angry with the claimant and wanted to protect the home at any cost. She had taken against the claimant and wanted his help given the allegations made and CQC’s involvement. His instructions would have included Mrs Jacksons expressing her views about the claimant in the same tone as her letter.

131.The claimant’s witness statement accurately reflects what was said to her by Mr Taylor in that call and we set it out in full because we accept it in its entirety.

“I received a phone call from a man who called and introduced himself as the head of the whistle blowing team at CQC. However, when he was talking to me I felt that something was not quite right. I was taken aback by the tone that the caller adopted and became more suspicious of him as the call carried on.

He was very forceful in the way that he spoke to me not professional or calm. He was telling me that I needed to tell him everything about what I’d reported and leave nothing out and that if I didn’t tell him everything that there would be consequences. This made me smell a rat to be honest, I’d not encountered this kind of attitude from CQC before. I just felt that the caller was acting in a manner that no professional organisation representative would. As the male voice carried on speaking I thought that I recognised it, and then realised that this was the voice of the man who worked for Charlton Court and who had in the past carried out the fire training. As soon as I realised this I said to him I know who you are, you aren’t from CQC you work for Charlton Court. You carry on the fire training for Pearl and his name came to me and I said your Bob Taylor. Mr Taylor stopped talking and seemed shocked to be challenged and I again said to him you don’t work for the CQC. Mr Taylor then admitted he didn’t work for the CQC but then proceeded to tell me it was the same thing in that he was a private investigator and he was conducting an investigation into matters. Mr Taylor told me that I had to tell him what I’d reported to the CQC. I was also told by Mr Taylor that I had to attend at Charlton Court to be interviewed. I said to Mr Taylor I didn’t have to attend Charlton Court to be interviewed. It was wrong for him to suggest that I had to do this and make out it was compulsory. I was very unhappy about how he was speaking to me and thought that it was utterly outrageous that he’d pretended to be from the CQC in the first place. I didn’t want to carry on the conversation with him and I told him that I didn’t care for how I was being spoken to and advised that I’d reported my concerns to the home and to the CQC already and the CQC would deal with the matter now. Mr Taylor shocked me he would not take no for an answer. I found the call to be extremely intimidating and threatening when Mr Taylor saying a number of times that the home was going to take steps needed to protect the home and directors and that I must tell him everything that I’d reported. Mr Taylor seemed very annoyed when I advised him that I would not coming in to be interviewed and then he proceeded to accuse me of stealing confidential documents to which I said don’t be ridiculous I’ve done no such thing. You’re just trying to intimidate me don’t call me again”.

The ET remedy judgment of 12 March 2020 was very seriously critical of the care home’s managers, including a finding that Mrs P Jackson had been “dishonest”:

Conduct of these Proceedings

7. At the liability hearing, we had found Mrs. Jackson on behalf of the respondents, had improperly conducted these proceedings in the following ways:

6.1 She deliberately misled the Tribunal about her previous experience of Tribunal hearings to avoid any censure for her failures (paragraph 4).

6.2 Her approach in defending these proceedings was inflammatory, ignoring any guidance given by the Tribunal. Case No: 1801731/2019 1801734/2019 10.7 Judgment with reasons – rule 62 March 2017 She accused the claimants of lying, then of the wrongdoing they had reported, and then of wasting time by bringing these proceedings (paragraph 5, 6 21).

6.3 Evidence was deliberately concealed and records were altered to mislead the Tribunal and to try to discredit the claimants. Mrs. Jackson deliberately concealed parts of an inspection report only disclosing parts that were helpful to the respondents’ case and to corroborate her statement. She asserted that home had been ‘completely exonerated’ and therefore the claimants were lying, when she knew that to be untrue.

6.4 She was dishonest and was prepared to go to any lengths to try and portray the claimants in the worse possible light concealing evidence that went in their favor.

6.5 Mrs. Jackson, Miss Hopkinson and the witnesses that attended the hearing were openly hostile towards the claimants during the liability hearing, making it a difficult and unpleasant hearing for them. As we note in paragraph 21 of the judgment, while that kind of reaction might have been expected by more junior staff (given their hostility towards the claimants in the workplace), we expected better behavior from the senior management representing the respondents in these proceedings.

6.6 The hostility and anger towards the claimants was clearly visible throughout the hearing. 2 notable examples were the angry response of Mrs. Hopkinson who accused the claimants of ‘wasting 2 weeks” of her life by bringing these proceedings and Mrs. Jackson (in the context of the letter she sent to Mrs. McGuire) confirming it was a deliberate act that had failed to achieve the desired outcome of preventing her from bringing these proceedings.”

The ET concluded that the respondents, represented by Mrs P Jackson, had shown “contempt” towards the Tribunal itself:

“The conduct of the respondents since the last hearing shows complete disregard and contempt, not only towards these claimants, but also to the Tribunal and these proceedings.”

Both claimants were awarded aggravated damages.

THE CQC INSPECTOR’S LACK OF IMPARTIALITY

The most important and truly astonishing governance issue arising from this ET case is that the ET criticised a local CQC inspector, Emma Hatfield, for her relationship with the provider which led to her accepting without question derogatory claims and comments against the whistleblowers, made by one of the care home managers, Miss Hopkinson. The relevant passages from the ET judgment are as follows:

“171. On 10 January 2019, after Mrs McGuire had resigned informing Miss Hopkinson she would be reporting the home to the CQC, Miss Hopkinson sent an email to Ms Hatfield. The email states: “Hi Emma I just wanted to make you aware that a staff member walked out of shift yesterday due to gossiping. She has since taken to social media with immature comments. She has telephoned Pearl Jackson, the director and made some accusations about the home which Pearl is investigating and I am telephoning safeguarding to make them aware.

172. On the same day Emma Hatfield replies by email: “No problem at all. As if you haven’t got enough to do”.

173. Miss Hopkinson immediately labels the claimant as the trouble maker in this email exchange and Miss Hatfield sympathises without question. In another email on 14 January 2019, Miss Hatfield is given an update of the situation by Miss Hopkinson. Her response on the same date is “That is appalling. What is wrong with her?”. Another update follows and Miss Hopkinson apologises for ‘going on’ about it. Miss Hatfield responds “No you are not going on. It is upsetting I just don’t know what she thinks she will achieve”. In another email sent by Miss Hopkinson dated 16 January 2019, Miss Hopkinson states “I appreciate you have a process you have to follow but I really feel this is all just malicious and vindictive”. Miss Hatfield in her response of the same date states: “I’m sorry that you had to deal with all of this”.

174. Mrs McGuire having seen these emails says in her statement “I am alarmed at the inappropriate degree of empathy between the CQC inspector and the care home manager and I feel this is worrying given the nature of what was being reported. I would have expected more impartiality”.

175. Unfortunately, from the email exchange we saw (disclosed and relied upon by the respondent), we can see why the claimant has those views of the relationship between Miss Hopkinson and Miss Hatfield. From the claimant’s perspective she expected the CQC interaction to demonstrate the impartiality she had received in her dealings with the home.”

The moral of this story is that whistleblowing remains perilous partly because those with a duty to protect the public interest, to Safeguard the vulnerable and to enforce good governance may be on the side of employers, and are too ready to believe counter-allegations instead of acting impartially.

UK whistleblowing law does not recognise detriment caused by regulators and it does not compel regulators to investigate whistleblowers’ concerns. The CQC by policy refuses to investigate individual whistleblowers’ concerns, claiming tenuously that their regulations do not permit them to do so. The UK government refuses to do anything about this.

The CQC’s central concern should be for patients and service users. They should not be cosying up to service providers who profit from vulnerability.

Law reform is desperately needed, as this above case shows.

If you have not done so already, please sign and share the petition for vital reform of UK whistleblowing law to protect us all and ensure better standards in public life.

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

Other information in the public domain which may be of relevance in the above case:

There is a CQC record of inspections on a Charlton Court nursing home, 477-479 Bradford Road Pudsey Leeds West Yorkshire LS28 8ED, which is rated ‘Good’ by the CQC including on the well led domain:

There is also a Pearl Lorraine Jackson who is listed by Companies House as a director of 16 companiesincluding ADL PLC and Charlton Court Care Home Ltd.

Thirteen of these companies are listed as active. Amongst them are companies which run care home services:

Woodlands of Woolley Limited runs Woodlands Residential Home currently rated by CQC as “Good” and “Good” on the well led domain

Woodlands Healthcare Limited runs Sunnymede care home which is  currently rated by CQC as ‘Requires Improvement’ and ‘Inadequate’ on the well led domain.

Solutions (Yorkshire) Limited runs Harewood Court Nursing Home currently rated by CQC as ‘Good’ and ‘Good’ on the well led domain.  CQC lists a Pearl Lorraine Jackson as the ‘nominated individual’ for this home:

A person named Emma Hatfield is identified as a CQC inspector of adult social care services based in Leeds on the professional networking website, LinkedIn:

https://www.linkedin.com/in/emma-hatfield-527bba130/?originalSubdomain=uk

There is another LinkedIn account for a Yorkshire based Emma Hatfield, who is described as “Senior Forensic Nurse Examiner at Mountain Healthcare Limited”:

https://www.linkedin.com/in/emma-hatfield-2974841b3/?originalSubdomain=uk

Another National Guardian NHS whistleblowing failure: Nottinghamshire Healthcare NHS Foundation Trust

By Dr Minh Alexander NHS whistleblower and former consultant psychiatry, 30 September 2020

Summary: This is a brief post chiefly for the benefit of any trust staff currently suffering at Nottinghamshire Healthcare NHS Foundation Trust following an ineffective case review by the National Guardian two years ago. Since the National Guardian’s review, 19 Employment Tribunal claims have been made against the trust, including claims for whistleblowing detriment. One of the employees concerned has been gagged, but the trust denies gagging whistleblowers. I have asked the trust CEO to personally verify this and I have asked NHSI to independently audit the trust’s use of non disclosure agreements. In this period, a vast number of requests have also been made to the trust for personal data, by 4556 patients and 58 staff, suggestive of unresolved issues of poor culture. Moreover, nine complaints have been made to the Information Commissioner about the trust’s handling of requests for personal data, seven of which resulted in follow up action by the Commissioner.

Background

The National Guardian neither has the powers nor appetite to do what her Office was primarily established for: To provide independent review of NHS whistleblowers cases which had been handled badly by their employers and ensure corrective action.

The original vision set out in the Freedom To Speak Up Review report of 2015 included a role for the National Guardian to ensure redress for mistreated whistleblowers:

“….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:….offering redress to any patients or staff harmed by any failure to address the safety risk”

“suggesting support and remedies for former employees”

The National Guardian and her funders (the Care Quality Commission and NHS England/ Improvement) have since washed their hands of this crucial duty to help ensure redress, and the chilling effect of gibbeting remains.

Neither does the National Guardian investigate whistleblowers’ original concerns – she merely superficially reviews how they have been handled.

The National Guardian has no enforcement powers. She only hands evidence of failings onto NHS Improvement for action. From whistleblowers’ experiences, NHS Improvement does very little with the intelligence.

Some whistleblowers whose cases have been the subject of National Guardian reviews have complained of continuing cover ups and of being abandoned.

A recent Byline Times investigation reported such a case.

In truth, the National Guardian’s main contribution has been propaganda for the government, pumping out a false narrative that it is safer to speak up than it really is.

The Unbearable Lightness of the National Guardian’s Office. Or how the National Guardian spends our money on publicity for the government’s Freedom To Speak Up Scam. A Night at the HSJ Awards

One particularly distasteful aspect of the relentless spinning is the annual October “Speak Up Month”, when the National Guardian leads intensified PR by her Office and by local trust guardians. The purpose is to give a superficial impression that speaking up is joyous, just before NHS staff complete the annual staff survey which includes questions about how they perceive the risk of speaking up in the NHS.

Speak Up Month is a sad spectacle of wasted public resources, manipulation, self-promotion, selfies and empty gestures. A million miles from the wreckage of lost jobs, ill health and long term unemployment of whistleblowers whom the National Guardian has failed to help in her four years in post.

The disrespectful and cynical Speak Up Month is going ahead this year too, starting tomorrow. This is despite the COVID-19 crisis and draconian suppression of NHS staff’s concerns about PPE and other serious infection control issues that has been so plain to all.

Meanwhile, FOI data about one of the trusts that the National Guardian reviewed shows serious continuing problems, as follows below.

Nottinghamshire Healthcare NHS Foundation Trust

Nottinghamshire Healthcare NHS Foundation Trust was reviewed by the National Guardian in May and June 2018, following complaints that whistleblowers had been ignored and punished.

An FOI disclosure by the trust  has now revealed a large number of Employment Tribunal (ET) claims against the trust since the publication of the National Guardian’s review report in 2018.

There have been a total of 19 such ET claims.

Of huge concern, these claims included whistleblowing detriment:

“Response to the information requested

1) How many Employment Tribunal claims have been made against the trust? 19

2) Please give the numbers of ET claims under each heading of claim, including:

– Unfair dismissal –10

– Unlawful Deduction from Wages – 6

Public Interest Disclosure < 3

– Sex Discrimination < 3

Age Discrimination < 3

Race Discrimination < 3

Religion or Belief Discrimination < 3

– Marital/Civil Partnership Status < 3

– Other < 3

Also of concern, the FOI disclosure revealed that one of these ET claims was settled and that the employee was gagged with confidentiality and non-disparagement clauses:

“3) How many of the total number of ET claims, for the period 1 April 2018 to the present time, have been settled? 1

4) How many of these settlements relating to ET claims received since 1 April 2018 have contained confidentiality clauses such as:

a) clauses which prevent signatories from disclosing the existence of the settlement 0

b) clauses which prevent signatories from disclosing the contents of the settlement 1

c) clauses which prevent signatories from disparaging the other party? – 1”

The trust has specifically denied gagging any whistleblowers, but is this to be believed?

“5) Since 1 April 2018, has the Trust entered into any settlements with workers who have made an ET claim under the Public Interest Disclosure jurisdiction? – 0

I have asked the Trust CEO to personally confirm if this is correct. I have also asked NHS Improvement to audit Nottinghamshire Healthcare’s use of gags and the above gag in particular.

Moreover, there have been an extraordinarily large number of subject access requests to the trust by both staff and patients for their personal data. This is usually a sign of dispute and conflict.

FOI ref 5070 29 September 2020 by another party shows a total of 4614 subject access requests to the trust since 1 April 2018:

1. How many subject access requests for personal data has the trust received since 1 April 2018?

4614 requests received since April 2018.

2. How many of these subject access requests for personal data, since 1 April 2018, were made by patients or on behalf of patients?

Patients – 4556.

3. How many of these subject access requests for personal data, since 1 April 2018, were made by trust staff?

Staff – 58.

4. What was the average length of time taken by the trust to respond to the subject access requests for personal data the trust has received since 1 April 2018?

The data recorded for the average length of time taken includes requests from the following directorates – General Health, Mental Health and Forensics. The average length of time taken, by these directorates to process and respond to a subject access request is 44 days.”

I will send this evidence to the CQC, particularly because it raises questions about the trust’s communication and rapport with patients.

An FOI disclosure by the Information Commissioner’s Office showed that since 1 April 2018, nine complaints were made to the ICO about Nottinghamshire Healthcare’s responses to subject access requests, with 6 complaints made since 2019:

So overall, it looks like business as usual.

Will such continuing evidence of failure curb the insulting Speak Up Month?

Nope,  judging by the last two years’ shameless spinning by the National Guardian.

Public office just isn’t what it used to be.

Henrietta Hughes National Guardian collecting an OBE on 3 March 2020

For real change and safer whistleblowing governance, please sign and share the petition for reform of UK whistleblowing law. It matters to all of us, and is important for all sectors.

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RELATED ITEMS

Bullying and harassment at Harrogate and District NHS Foundation Trust & a concern about the National Freedom To Speak Up Guardian

Replacing the Public Interest Disclosure Act (PIDA)

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

The Disinterested National Guardian & Robert Francis’ Unworkable Freedom To Speak Up Project

The toothlessness of the National Guardian’s Office: Why it cannot be a model for protecting whistleblowers

An important investigation by Byline Times about serious failure of the government’s whistleblowing policy in the NHS

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 24 September 2020

It is now very clear that the government’s five year old Freedom To Speak Up project, on culture change in the NHS, is an an expensive flop.

It is expensive not only in terms of direct costs of

  • Operating a National Guardian’s Office that has neither powers nor appetite to challenge power and to genuinely protect frontline whistleblowers
  • Employing hundreds of frontline staff as local Freedom To Speak Up Guardians in NHS trusts, when good trusts do not need them and bad trusts will ignore and or victimise them
  • Running glossy campaigns, events and conferences to promote a false narrative that it is safe to whistleblow in the NHS

but most importantly, the Freedom To Speak Up project is unaffordably expensive in terms of lives avoidably lost, avoidable harm suffered by patients and the cruel persecution of whistleblowers to silence them.

Byline Times, part of our much needed independent media, is running a series on whistlebowing.

It started with this rare and precious coverage of why UK whistleblowing policy is so poor, the inconceivably dangerous gaps in our whistleblowing legislation and the fact that we will not benefit from the EU Whistleblowing Directive after Brexit:

ALONE AND EXPOSED Don’t Let Brexit Stop Whistleblowing

Today, Byline Times has published a damning investigation of a serious failure by the National Guardian’s Office and NHS regulators to act on intelligence that NHS trust managers tampered with an investigation report and other matters:

‘Perversion of justice’. The abandoned NHS whistleblower

A diligent NHS whistleblower ended up with a cardiac pacemaker after an ordeal in which he received no real help from the National Guardian’s Office (NGO) , NHS Improvement, the Care Quality Commission and the General Medical Council, despite raising such serious concerns.

In contrast, the National Guardian got an OBE in the New Years Honours list.

Henrietta Hughes at Buckingham Palace on 3 March 2020, receiving her OBE

In essence, the NGO bent its own rules and procedures in order to keep a lid on whistleblower reprisal and cover up by an NHS trust that it had previously reviewed. NGO arbitrarily allowed the erring managers of the trust extra time to improve, despite being made aware by the whistleblower of continuing corrupt practices.

Most likely, this was a self interested manoeuvre because to publicly acknowledge this particular whistleblower case and conduct a further case review would have revealed that the National Guardian had failed to make any difference with her original review of the NHS trust.

The omission was reminiscent of the National Guardian’s personal decision at Brighton and Sussex University Hospitals NHS Trust to arbitrarily delay a review to allow a favoured trust CEO and board time to get their story straight.

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

It is bad enough that the National Guardian’s Office has no powers and no real authority. It is additionally deplorable that it makes up the rules as it goes along, at major cost to frontline staff and patients.

The NHS is a critical public service. Staff must be free to raise issues of unmet need and risks to patient safety, whether or not this is embarrassing for ministers.

It is completely unacceptable for vulnerable NHS whistleblowers’ fates to be left in the control of politicised processes and bodies, and for them to suffer serious personal injury because of oversight bodies’ negligence and collusion with employers.

If you have not done so already, please sign and share the petition calling for reform of UK whistleblowing law, and real enforcement structure to protect whistleblowers and the public.

We need a central whistleblowing agency, free from political interference by any government, which operates fully in the spirit of public service and Nolan standards of objectivity and selflessness.

All of us depend on whistleblowers all the time, whether or not we know it.

Please help them in return.

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RELATED ITEMS

Bullying and harassment at Harrogate and District NHS Foundation Trust & a concern about the National Freedom To Speak Up Guardian

Replacing the Public Interest Disclosure Act (PIDA)

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

The Disinterested National Guardian & Robert Francis’ Unworkable Freedom To Speak Up Project

The toothlessness of the National Guardian’s Office: Why it cannot be a model for protecting whistleblowers

An NHS whistleblower’s conversation with the Minister: BEIS needs to take reform of UK whistleblowing law much more seriously

Morecambe Bay trust frontline worker Russell Dunkeld @RussellDunkeld whistleblew on several patient safety issues, including concerns that a nurse colleague was ending stroke patients’ lives early by turning off drips:

Ignored: whistleblower’s claim of nurse who ‘sped up deaths’

He has been followed by several more whistleblowers at the trust, not all of whom are yet in the public domain, who have suffered and found their concerns ignored or trivialised.

Very weak and unfit UK whistleblowing law allows these serious abuses against the public interest to continue.

Russell Dunkeld recently wrote to his MP David Morris about the weaknesses of the law, and he in turn raised them with the government department that is currently in control of whistleblowing law, the Department for Business, Energy and Industrial Strategy.

Paul Scully responded as the relevant government minister, giving an unusually more detailed response than usual, and a more positive appraisal of UK whistleblowing law than is merited. Mr Scully may be well intentioned – he recently sent concerns about the disgraced former Post Office CEO to the Care Quality Commission, under the mistaken understanding that CQC investigates and determines whether NHS directors are Fit and Proper Persons. (CQC stubbornly does not take responsibility for this and he was advised of this). But nevertheless, he is entirely wrong about the strength of current whistleblowing law.

At least he did not wheel out the woeful Freedom To Speak Up project as an excuse not to reform the law. Perhaps a subliminal ministerial slip, as it must be patently obvious to all by now how toothless the Freedom To Speak Up project is.

But be assured that the same type government claims about the merits of current whistleblowing law will be wheeled out tomorrow in opposition to Dr Philippa Whitford MP’s bid to make the government do more, and to improve the law.

Russell Dunkeld has responded to rebut the government’s baseless claims that it has done enough so far to improve whistleblowing law. In his reply to Paul Scully, he points out the urgency of the matter and life and death implications of not correcting law so weak that it does not ensure the investigation of whistleblowers’ concerns.

The important exchange of correspondence is provided below.

If you have not already done so, please sign and share the petition calling for reform of UK whistleblowing law:

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RUSSELL DUNKELD’S EXCHANGE OF CORRESPONDENCE WITH PAUL SCULLY, BEIS MINISTER

BY EMAIL
Paul Scully

Minister for Small Business, Consumers and Labour Markets Minister for London

Department for Business, Energy and Industrial Strategy

24th October [sic – September] 2020

Dear Mr Scully,

Urgent need for whistleblowing law reform to save lives

Thank you for your letter of 7 September, copied below in the appendix.

I believe you have been misled about the strength of whistleblower protection in the UK.

Our whistleblowing law now lags far behind that in many other countries.

The central weakness is that it does not ensure that whistleblowers’ concerns are investigated and acted upon.

This is a longstanding, disastrous failing of UK law which has allowed recurrent mass failures of governance, such as in the Ian Paterson rogue surgeon scandal and the Mid Staffs hospital scandal.

I address below, in turn, several key passages from your letter.

1.“The Employment Rights Act 1996, amended by the PIDA, gives legal protection to those who speak up in the public interest.”

PIDA does not provide any pre-detriment protection.

It does not ensure that reprisal is actively prevented.

For example, PIDA does not oblige employers to carry out risk assessments and to provide protection plans for individual whistleblowers.

Whistleblowers experiencing reprisal by their employer cannot access and activate any mechanism to make it stop.

PIDA only acts after the fact.

Whistleblowers can only make a claim to an Employment Tribunal at a very late stage after suffering serious harm and being made unemployable due to stigma, blacklisting, maliciously manufactured disciplinary or capability record and ill health.

The process of litigation itself is very harmful to whistleblowers and presents more opportunities for employers to abuse them.

Some people suffer not only broken health but are ruined by the highly risky litigation that UK whistleblowing law forces them to take, as the only chance of redress after serious harm.

Some employers make vexatious appeals after losing Employment Tribunals, wasting public money and punitively keeping the whistleblower in a state of fear for several more years.

2. “the legislation provides a remedy for claimants who suffer detrimental treatment by their employer. An Employment Tribunal is the right body to make judgements on the facts of a given case and on the evidence it considers. The compensation that can be awarded by a Tribunal in a whistleblowing case reflects the detriment that the worker has suffered.”

The compensation you cite is very hard to win.

Only 3% of cases succeed at hearing.

The vast majority of whistleblower claimants are forced to withdraw and or accept a substandard settlement because unions will not support cases all the way and most whistleblowers cannot afford to continue.

Where whistleblowers ‘win’, compensation never fully reflects the real long term financial losses.

Compensation may also be swallowed up by legal expenses.

Employers may whittle away compensation by constructing an argument of contributory fault by claimants, which results in compensation being docked.

Claimants may also be threatened and punished with cost applications by employers.

UK whistleblowing [law] only thinks in terms of pounds and shillings.

It does not provide vital non-financial redress such as the wiping of malicious, manufactured disciplinary records.

3. “The most recent change introduced in 2017 was a new legislative requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers. It aims to increase confidence that prescribed persons are taking whistleblowing disclosures seriously through greater transparency about how disclosures are handled, in particular, that they investigate where appropriate and take action where necessary.”

The 2017 changes did nothing to ensure that Prescribed Persons investigate and act upon concerns.

The law still does not compel anyone to investigate or act upon UK whistleblowers’ concerns.

This is at the core of why UK whistleblowing governance is ineffective.

Most whistleblowers’ disclosures to Prescribed Persons are not investigated.

Prescribed Persons are a disparate group of bodies and individuals, some have no power to act.

Regulators who are Prescribed Persons have powers, but are under no legal compulsion to investigate and act upon whistleblowers’ disclosures.

Some regulators who are Prescribed Persons refuse to investigate as a matter of policy, for example, the Care Quality Commission (CQC).

At the very most, the CQC will only review a general theme, not a whistleblower’s specific concern. CQC’s own statistics show that in the majority of cases, CQC takes no further action or merely notes disclosures as information for a future inspection. Even very serious disclosures of corruption

I believe your department’s composite Prescribed Persons’ report 2018/19 relating to 23 bodies revealed that only eight of these bodies explicitly reported that they conducted investigations of some (usually a minority) of the whistleblowers’ concerns received:

·      NHS Counter Fraud Authority

·      Scottish Social Services Council

·      NHS Improvement

·      Office of Nuclear Regulation

·      Scottish Charity Regulator

·      Public Services Ombudsman for Wales

·      Scottish Housing Regulator

·      Scottish Social Services Council

Some Prescribed Persons reported taking “further action” without clearly indicating whether this included investigation.

NHS Improvement received 190 whistleblower disclosures in 2018/19 of which it deemed 100 were qualifying disclosures. Only 16 investigations arose from these disclosures.

NHS England reported receiving 70 whistleblower disclosures, of which only 3 had been investigated. It claimed that others were still ‘under investigation’.

Some bodies such as the IOPC reported that they referred most whistleblowers’ concerns back to their employer:

“Most of the reports we received in 2018/19 25 were suitable to be dealt with by the relevant force and so we provided them with the relevant information.”

Similarly, Ofqual did not investigate the whistleblower concerns that it received but referred them back to awarding organisations.

Several Prescribed Persons reported that they received no disclosures at all, such as Ofcom, Registers of Scotland, Revenue Scotland, Water Industry Commission for Wales, Welsh Revenue Authority and Scottish Information Commissioner raising questions about whether the system is sufficiently publicised.

It is significant and of concern that your department presented only 23 vignettes  instead of systematic analysis, when there are in fact thousands of Prescribed Persons. Local authorities and MPs are Prescribed Persons.

If the aim of the recently introduced publication requirement is as you say to provide reassurance that whistleblowers’ concerns are investigated by Prescribed Persons, it is surely vital that the government undertakes proper audit and analysis instead of cherry picking a tiny proportion of examples.

Your department’s report did not for instance, feature the Care Quality Commission, the single most important regulator with regard to oversight of vital, safety critical health and social care services.

Indeed, if as the government claims, it wanted Prescribed Persons to investigate, it should change the law and compel investigation.

4. “It is right and proper that the Government reviews the whistleblowing framework once we have had sufficient time to build the necessary evidence of the impact of the most recent reforms.”

The changes to whistleblowing law in recent years have all been superficial.

Because the government has not ensured that whistleblowers’ concerns are reliably investigated and acted upon, serious harm continues, including deaths.

In conclusion

I hope the above demonstrates to you why UK whistleblowing law is deeply ineffective and fails to defend the public’s right to know about unsafe services and corruption, and to be protected from such risks and malfeasance.

I request that the government treats the persisting gap in investigation of UK whistleblowers’ concerns as a matter of great urgency.

It cannot be right to continue for several more years without addressing this matter of life and death.

Yours sincerely,

Russell Dunkeld

NHS whistleblower

Cc Davis Morris MP

APPENDIX: YOUR LETTER OF 7 SEPTEMBER 2020

David Morris MP House of Commons London
SW1A 0AA

Dear David,

Department for Business, Energy & Industrial Strategy 1 Victoria Street
London
SW1H 0ET

T +44 (0) 20 7215 5000 E enquiries@beis.gov.uk W www.gov.uk

Our ref: MCB2020/28784
7 September 2020

Thank you for your email dated 20 August, enclosing correspondence from your constituent, Mr Russell Dunkeld of 1 Richmond Farm, Heaton Bottom Road, Heaton with Oxcliffe, Morecambe LA3 3EU, regarding the Public Interest Disclosure Act (PIDA) 1998. I am replying as this matter falls within my ministerial portfolio.

I would like to reassure Mr Dunkeld that the Government believes that whistleblowers play an important role in bringing to light wrongdoing in the workplace. The Employment Rights Act 1996, amended by the PIDA, gives legal protection to those who speak up in the public interest. The legislation is intended to build openness and trust in workplaces by ensuring that workers who hold their employers to account are treated fairly.

The purpose of Part IVA of the Employment Rights Act is to provide means of redress for a worker who suffers detriment at the hands of their employer after ‘blowing the whistle’. In many cases, employers respond appropriately when concerns are raised by their employees. Where they do not, the legislation provides a remedy for claimants who suffer detrimental treatment by their employer. An Employment Tribunal is the right body to make judgements on the facts of a given case and on the evidence it considers. The compensation that can be awarded by a Tribunal in a whistleblowing case reflects the detriment that the worker has suffered.

Over recent years the Government has made improvements to the whistleblowing framework to make it more robust and increase support for whistleblowers. This includes guidance for whistleblowers on how to make disclosures while preserving their employment protections, and guidance for employers, including a non-statutory code of practice. We have added student nurses and student midwives into the scope of the legislation and introduced whistleblowing protections for job applicants in the health sector. We have also fulfilled the commitment to keep the prescribed persons list up to date.

The most recent change introduced in 2017 was a new legislative requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers. It aims to increase confidence that prescribed persons are taking whistleblowing disclosures seriously through greater transparency about how disclosures are handled, in particular, that they investigate where appropriate and take action where necessary. The reporting duty should also improve consistency across different bodies in the way they respond to disclosures. These bodies are due to publish their third set of annual reports, for 2019/20, by the end of September.

It is right and proper that the Government reviews the whistleblowing framework once we have had sufficient time to build the necessary evidence of the impact of the most recent reforms.

Thank you once again for taking the time to raise Mr Dunkeld’s concerns on this matter. I hope that the information above is helpful to you in your response to him.

PAUL SCULLY MP

Minister for Small Business, Consumers and Labour Markets Minister for London