Call on the BMA to come clean and to properly support whistleblower members

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 16 May 2018

Summary

 

The BMA has just lost face because Dr Chris Day has this week succeeded in legal action against Health Education England on an important whistleblowing matter, which the BMA declined to support.

This adds to longstanding concerns that the BMA has made unfair decisions not to fully support doctors with whistleblowing claims.

The BMA has been evading specific questions about the services that it has provided to members for several years, and it continues to obfuscate.

It also continues to be reluctant to actively lobby for replacement of utterly flawed UK whistleblowing legislation.

The BMA must be more accountable to those who fund it with their membership fees.

Data on medical speaking up is provided below, and shows that approximately 40% of the 140,000 plus doctors employed by the NHS do not think that their employer would address concerns about unsafe care.

I urge BMA members to write to the Chair of Council to request disclosure of the data on its members services that has so far been withheld, and to call on the BMA to support whistleblowing law reform.

A template letter is provided.

 

For four years I have been asking the BMA questions about services that it provides to members on whistleblowing cases and in general. . The BMA has been most reluctant to provide data. This is what has been revealed to date:

 

  • This is the BMA’s submission to the Freedom To Speak Up Review:

BMA submission to the Freedom To Speak Up Review 2014

 

  • The BMA case file retention period is 6 years

 

  • The BMA advised that their lawyers reported handling five whistleblowing claims by members between 2006 and March 2015 which were settled via COT3 (compromise settlements)

 

  • The BMA said it had no Race and Gender stats

 

  • In March 2015, the BMA promised to keep better records in future, it said it had set up a task and finish group on raising concerns and indicated that it would consider a suggestion to audit its handling of whistleblowing cases

BMA response 5 March 2015 about member services

 

  • In February 2016 the BMA advised that its task & finish group had concluded, and that it was setting up a pilot of trial support for doctors on raising concerns. However, the BMA decided against external review of its handling of whistleblowing matters

BMA correspondence about task and finish group on raising concerns

Report of BMA task and finish group on raising concerns

 

  • In a response of 29 November 2017, the BMA gave this additional information about it member services:

“The BMA is wholly committed to and continues to provide support to individual members who wish to raise concerns about patient safety. We have previously informed you of the pilot arrangements that existed in the North West, were then extended to the South West and are now being rolled out across England. Through this service we provide individual advice to members and educational talks to doctors. Additionally, we advise, support and represent members who believe that as a result of raising a concern they may have suffered a detriment. In total from March 2015 to July 2017 we have supported some 221 doctors in this regard.

 As with all disputes our principle is to work with the member to resolve matters at the earliest opportunity. Many cases have been resolved through the employer’s internal process following advice/support/representation by our advisers. Others have been resolved at First Point of Contact as they required relatively straightforward advice / signposting to information on our website. Sometimes members have decided that they do not wish to pursue the case, or there is insufficient evidence available to support a referral for a merits assessment – the key to this being evidence that links the disclosure (which needs to be one considered as protected) with the detriment suffered.

In terms of support provided at Tribunal, or similar courts, for all types of claim we have pursued 1076 cases since 2006 and secured a total compensation of £14.884m with an average compensation of £13,162. (NB: A number of cases will be considered collective matters and therefore relate to a number of doctors.)”

 

  • The BMA stalled and largely ignored a very specific request of 23 January 2018 for full detailed disclosure. On 30 April 2018 its Senior Policy Advisor gave this minimal reply, which look to me to be more smoke and mirrors:

By way of an update on the support we have provided at Tribunal, or similar courts, for all types of claim, during the current year up to 31 March, there have been another 69 referrals and 48 cases have been won or settled. We have secured a total compensation of £337k. We will not be sharing detailed information but you might be interested to know that the BMA undertakes a monthly survey of a sample of all closed casework to ensure that the support provided meets the needs of its members. This survey by an independent company has been undertaken since 2005. In 2017 overall satisfaction levels with the service have been maintained at or above 90%.”

This response from the BMA does not give clear answers. There is a major difference between ‘won’ and ‘settled’ cases. Settled cases are rarely satisfactory for claimants and it is a sleight of hand to group them together. The BMA’s previous disclosure that it secured “average compensation of £13,162”, a low figure relative to doctors’ earnings, is hardly evidence that the BMA is getting good outcomes for members. I have pressed for more meaningful disclosure and more details of how the BMA measures members’ satisfaction.

These are the questions that remain mostly unanswered from 23 January 2018:

 

 

The BMA advised me in March 2015 that it would review its handling of whistleblowing cases on a quarterly basis henceforth, and I am glad that the BMA is now able to give a figure of the number of cases handled since then, to July 2017 – a total of 221.

May I ask if the BMA is keeping any other central record – such as:

• Outcome of whistleblowing cases

• For example, number of PIDA claims made to the Employment

Tribunal and supported by the BMA to fully concluded hearings

• Or alternatively, in how many cases did the BMA unilaterally

withdraw legal support before cases were concluded?

• Diversity stats

• Member experience of the support received, eg. satisfaction surveys

If possible, it would be very useful to see any such data.

In particular, it would be very useful to know how many ET claims have passed the BMA lawyers’ merits assessments. The BMA previously advised that its lawyers identified only five litigated whistleblowing cases between 2006 and March 2015 that were all settled. If these represent all the cases which passed merits, out of hundreds of whistleblowing cases, that seems a very low number indeed.”

Letter to Chaand Nagpaul Chair of BMA Council 23 January 2018

 

 

The continuing BMA silence on the number of whistleblowing cases that it has fully supported to Employment Tribunal hearing suggests that the answer would be embarrassing. Indeed, it is claimed that a BMA Director of Legal Services admitted that the BMA has not supported a single doctor’s case to full trial over his 3-4 year tenure”.

The experience of many whistleblowers is that the BMA leads them up the garden path, and then drops their cases at a late stage, and or applies huge pressure to settle or otherwise forfeit any further legal support.

There have been longstanding concerns that the BMA leadership operates an old boys club and may side with senior medical managers responsible for whistleblower reprisal.

It is also generally true that whistleblowing cases are expensive to run because of their complexity and because a gamut of legal tests are involved, requiring extensive arguments and examination of evidence.

But whistleblowing cases are a special group because they go to the heart of medical ethics and issues of professional freedom to act in patients’ best interests. The consultant contract has for many years enshrined – in principle – this professional freedom.

 

 

BMA Consultant Contract 2003

“11.4 Publications, lectures, etc 

You shall be free, without our prior consent, to publish books, articles, etc., and to deliver any lecture or speak, whether on matters arising out of your NHS service or not.”

 

If it is the will of the membership that it is for the greater good that whistleblowing cases should be supported, the BMA could approach the merits assessments of such cases on a special basis, with a change to its articles if necessary. At the very least, the BMA should ensure fair merits assessments.

Equally, the BMA should lobby for reform of defective UK whistleblowing law. The union has already acknowledged that the current law is seriously flawed:

 

BMA submission to the Freedom To Speak Up Review 2014

Many BMA members – and indeed their legal representatives – believe, however, that the Public Interest Disclosure Act does not give them adequate protection. The main difficulty in practice lies in showing that the detriment or dismissal is linked to the disclosure. Legally there will be grounds to take action only where it can be shown that the protected disclosure has ‘materially’ influenced the employer’s treatment of the whistleblower. In many cases this will not be clear. For example, if the concern is raised in the context of a dispute with a colleague, a forthcoming reorganisation or a threat of disciplinary action, this may create doubts as to whether the employer’s subsequent actions have been influenced by the disclosure. The Freedom to Speak Up Review might wish to devise ways of strengthening the legislation.”

 

 

The BMA cannot credibly claim that cases are too hard to win under current law and fail to support law reform.

The BMA’s latest Chair needs to be brave and distance himself from the tired old BMA machinery that has in effect aided and abetted in the preservation of the status quo. He has not yet definitively committed to supporting whistleblowing law reform. In correspondence of 1 May 2018 he stressed:

the BMA is a large organisation with a multiplicity of responsibilities, and made up of a myriad of branches of practice and committees with delegated authorities. There are inherent processes involved in developing BMA policy. Mark Hope is a policy staff member who leads on whistleblowing, and each branch of practice also takes its own responsibility, e.g. whistleblowing protection for doctors in training comes under the remit of the Junior Doctors committee.”

Email from BMA Chair 1 May 2018

This reported complexity notwithstanding, clear leadership is needed to stop the BMA from continuing to bring itself into disrepute.

Fence sitting by the BMA leadership on law reform is tantamount to a betrayal of the majority of its members, patients and the public interest.

The BMA has around 170,000 members:

BMA membershipSource: BMA

It receives about £50m in membership subscriptions annually, and has a total income of over £100m. It has considerable reserves:

BMA assets

Source: Companies House – BMA filing history

 

In the BMA’s submission to the Freedom To Speak Up Review, the union observed:

In a recent BMA survey 8% of doctors who had raised concerns over patient care felt penalised for doing so.”

 This figure came from a survey of 1020 doctors, 451 of whom responded.

An earlier, 2009 BMA survey of “3034 consultants, staff and associate specialists and junior doctors in England and Wales” with responses from only 565 (18.6%) members. It is of limited validity but showed that only 49% juniors and 40% of consultants and SAS doctors felt that their workplace fostered “an environment in which concerns (e.g. such as those that relate to patient safety, malpractice or bullying) can be expressed openly.”

 BMA Speaking Up for Patients Survey May 2009

BMA speaking up suvey

The latest 2017 NHS national staff survey shows that doctors in training are one of the groups least likely to feel secure in raising concerns:

2017 nhs staff survey by occupational group

Source: NHS Staff Survey 2017

The NHS employs approximately 140,000 doctors. Scaling up the NHS staff survey results gives roughly 55,000 doctors who are not confident that their employers would address patient safety concerns. This is surely something that the dominant medical union should take seriously.

If any BMA members agree that whistleblowers should be better protected, please add your voice by sending the following letter to the BMA Chair:

Template letter to BMA Chair

All such support is very valuable and my thanks in advance to all who may help with this task.

Please do let me know how your requests fare via the contact page of this website.

This is the main correspondence with the BMA to date.

 

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PIDA ASS (2)

Masters of the Universe: CQC, NHS Improvement & Dame Glynis Breakwell

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 11 May 2018

Peter Wyman a former PwC partner was appointed as Chair of the Care Quality Commission  in December 2015 amidst concerns.

Most recently, he has given whistleblowers cause for concern by flatly refusing to audit CQC’s handling of whistleblower confidentiality.

This was despite the regulator admitting to some breaches of confidentiality  and being accused of many more, which it denied despite having conducted no audit. Wyman has remained fixed in his position even though his own fellow CQC board member David Behan recently breached confidentiality.

Wyman has been treasurer at Bath University since 2011.

Both he and Glynis Breakwell the vice-chancellor of the university are Deputy Lieutenants of Somerset.

Breakwell stepped down as VC last year after a furore over her stupendous £468K plus remuneration package:

‘In an interview with ITV, she also attributed her pay to market forces, saying: “I think that we have a situation where we are in a globally competitive market for talent in higher education and that’s particularly true in terms of the leaders of higher education.”

 Yet the terms of her departure, which include a paid sabbatical, continued accommodation in a listed Georgian townhouse and the write-off of a £31,500 car loan, only seem to have fanned the flames.’

FT 2 Dec 2017: Britain’s vice chancellors accused of taking the biscuit on pay

 The university’s governance was criticised after an investigation by the Higher Education Funding Council for England (HEFCE), which had been triggered by a complaint from Lord Andrew Adonis:

HEFCE Report of an enquiry into a governance matter at the University of Bath November 2017

 Breakwell reportedly voted against this motion at a university meeting despite a conflict of interest:

That Court makes representation to Council that it is concerned at the lack of transparency and accountability of the Remuneration Committee and the decisions the Remuneration Committee has made in the past year.”

 HEFE concluded that conflicts of interest had not been properly managed by the university:

“The university’s handling of the motion proposed by a Court member about the conduct of the Remuneration Committee at the Court meeting of 23 February 2017 was flawed and has, in our view, resulted in damage to the reputation of the university. All Court members were permitted to vote on the motion without their eligibility to vote being clarified or established before the vote took place. Certain members of Court were, in HEFCE’s view, clearly conflicted by the motion under consideration.”

Nicolas Soames MP tweeted:

Screen Shot 2018-05-11 at 07.44.39

 

Parallel to all this, Breakwell’s appointment to the Board of NHS Improvement as a Non Executive Director was announced in April 2016, shortly after Wyman had been appointed as Chair of CQC.

 

November 2010 Glynis Breakwell appointed as Deputy Lieutenant of Somerset

January 2011 Peter Wyman appointed Bath University Treasurer

December 2014 Peter Wyman appointed Deputy Lieutenant of Somerset

December 2015 Peter Wyman appointed as CQC Chair 

April 2016 Glynis Breakwell appointed as NHSI NED

28 November 2018 Bath University announced that Glynis Breakwell would retire in February 2019

FOI data obtained from Bath University about the background and characters at Bath was reported in this article for the Bath Chronicle:

First freedom of information request gives student insight into University of Bath’s governance

 

 

And wouldn’t you know it, but Breakwell has been chairing NHS Improvement’s Remuneration committee. NHSI was asked about details of its Remuneration committee in February, and was uncharacteristically tardy in replying. There were tales of ‘the dog ate your email’ etc, but NHSI finally admitted on 10 May 2018 that Breakwell oversees its Remuneration committee:

NHS Improvement FOI disclosure 10 May 2018 Remuneration Committee

NHSI FOI disclosure Remuneration Committee Annex 1

NHSI FOI disclosure Remuneration Committee Annex 2

 

Glynis Breakwell (1)

 

An enquiry to Jeremy Hunt about whether he would review Glynis Breakwell’s position at NHS Improvement in the light of the HEFCE report findings resulted in this opaque response of 10 January 2018, upon which his Department refused to elaborate:

Our ref: DE-1108526

 Dear Dr Alexander,

Thank you for your correspondence of 26 November to Jeremy Hunt about Dame Glynis Breakwell’s position on the board of NHS Improvement.  I have been asked to reply and I apologise for the delay in doing so.

Dame Glynis was appointed to the NHS Improvement Board until March 2020.  All public appointments are reviewed before their end date in readiness for either a future decision to re-appoint or to run an open competition for a new member.

 I hope this reply is helpful.
Yours sincerely,

Holly Casson
Ministerial Correspondence and Public Enquiries
Department of Health and Social Care”

But who cares how all this looks when the Secretary of State himself shrugs off breaking money laundering law.

Jeremy Hunt got ‘bulk discount’ on seven flats from Tory donor

 

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The Greasy Freedom To Speak Up Review: More Tales of Silence about Silence

 

delay deny road signs

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

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 6 May 2018

 

 The Background

There are considerable concerns about whether the National Guardian’s Office is fulfilling its original, core function of helping NHS whistleblowers who have been ignored and harmed.

Of Arbitrariness and Arbiters: The Freedom To Speak Up Project 3 Years On

The Greasy Freedom To Speak Up Review is Stuck: More Tales of Silence about Silence

 

There is controversy about the National Guardian’s exclusion criteria. For example, these criteria have resulted in whistleblowers being rejected if there are any outstanding processes in their cases. This is bizarre and potentially leaves whistleblowers in harm’s way for years.

The National Guardian’s office has been secretive and selective in what information it reveals about case review activity, but an FOI request has shown that the most frequent reason given so far for declining case referrals is that there would be insufficient learning from case review:

National Guardian’s Office FOI disclosure 0218, 4 April 2018

This could hardly be true of Dr Chris Day’s whistleblowing case which has implications for 54,000 other junior doctors. But astonishingly, his case was rejected:

National Guardian letter to Chris Day 21.03.2017

 

It now transpires that the National Guardian has also disappointed many staff at the extremely troubled Brighton and Sussex University Hospitals NHS Trust (BSUH).

BSUH has been a governance disaster for years. Repeated coroners’ warning reports have shown very basic failings that have continued recurring.

 

 

Brighton and Sussex University Hospitals NHS Trust has generated one of the highest numbers of coroners’ warnings.

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

Nineteen of these reports had been copied to the Secretary of State.

The Care Quality Commission (CQC) placed BSUH trust into special measures after the fifteenth PFD report.

Two cases – those of Evelyn Kennedy and Jack Molyneux – are especially illustrative of the governance dysfunction. Due to the degree of patient neglect, one team in a hospital made a Safeguarding referral about another area, and a care home made a Safeguarding referral about a hospital after a patient was discharged to its care.

This is the full list of the 21 BSUH PFDs

It will be evident that 62% (13 of 21) of responses by BSUH to the PFDs are missing from the Chief Coroner’s website, assuming that responses were ever sent. There is no published BSUH response for the PFD on even Jack Molyneux’s death.

This apparent gap in the audit cycle is a widespread, national problem.   Parliament was informed in January 2018, but as yet has given no indication of whether and how it will address this grave failure of accountability and transparency in public protection.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jean Stockley, 12/08/16, 2016 – 0286

 

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

 

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

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

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

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

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

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

 

 

In addition, a police investigation started after an 85 year old patient died after ingesting bleach last September.

BSUH was placed in special measure in August 2016. Its CQC ratings are largely painted in red:

Brighton and Sussex CQC rating

CQC Inspection report on Brighton and Sussex University Hospitals NHS Trust

 

There have been high profile employment disputes, with a prominent Race component. After years of struggle, two senior BME staff won Employment Tribunals against the trust.

Brighton Hospital Bosses Unfairly Sacked Black Consultant

Brighton hospital’s race equality champion wins employment tribunal

There are concerns about whether CQC has been proactive enough in regulating Diversity and Equality matters. The trust BME Network is concerned that the CQC inappropriately washed its hands. Related to this, there are also questions about CQC’s application of Regulation 5 Fit and Proper Persons, and whether delays by CQC resulted in a lack of accountability for discriminatory practices by individuals.

 

BSUH was effectively taken over by the board of a neighbouring trust, Western Sussex Hospitals NHS Foundation Trust in November 2016.

This is the current BSUH board:

Blog Brighton white board

 

But there is limited evidence that the serious governance problems have abated. Most recently, the BSUH BME Staff Network published criticism of the trust CEO for arranging a Race Equality event without involving them.

Black and Ethnic Minority Network Have ‘No Confidence’ in Brighton Hospital Boss

 

This picture of troubled governance is all the more remarkable given that BSUH has effectively had a Freedom To Speak Up Guardian for years. A prototype post was established with the appointment of a ‘Patient Safety Ombudsman’ in 2010.  During the years when this post operated, there was no significant governance improvement and many staff still had to take their concerns outside of the organisation, for example by whistleblowing to the CQC:

CQC FOI disclosure IAT 1516 0116 on whistleblowing by Brighton and Sussex staff to CQC in 2013 and 2014

 

Not only is there is no evidence base for Robert Francis’ model of Freedom To Speak Up Guardians, but BSUH is an example of the model’s inefficacy.

 

Whistleblower suppression at Brighton

 Most recently, I received information that 24 current and former BSUH staff made a formal request on 4 December 2017 to the National Guardian for help and for case review. The referral related to a range of governance and patient safety issues.

I have seen the detailed referral form that was sent to the National Guardian. I am not sharing detailed information because the situation at Brighton and Sussex is fraught and current staff are vulnerable to victimisation, save to say that the matters are serious. Broadly, the matters include patient safety issues across several departments which staff are concerned have not been fully resolved, and also issues such as an alleged pattern of victimisation for raising Race Equality concerns.

On 19 December 2017 the National Guardian’s Office (NGO) advised BSUH staff:

“We have looked at the information you have provided in your referral and have decided that your case is suitable for us to review.

 We are currently undertaking case review work in other trusts and once we have completed this we will make a decision regarding when can begin work on your case. Because of our workload and limited resources it will be a few weeks before we can do this, but we will contact you to let you know when we are able to start.”

Email from Case Review and Governance Manager, National Guardian’s Office 19 December 2017

BSUH staff chased for a progress update on 17 January 2018, and were told that work was unlikely to start until Easter.

“I cannot yet give you a date as to when we will be in a position to start; given our current workload on existing reviews we are unlikely to be able to begin before Easter, but I will, of course, inform you as soon as we are ready to begin.”

Email from Case Review and Governance Manager, National Guardian’s Office 17 January 2018

BSUH staff chased again on 12 March 2018 and were told:

The NGO will shortly contact the trust to discuss how we can provide support to improve its speaking up culture, procedures and policies through our case review process. Once this discussion has taken place I will be able to give you more information about timescales.”

This implied that no action had been taken for almost three months following referral.

On the 6 April 2018, BSUH staff received this extraordinary response from the NGO:

“Following a recent conversation between Dr. Hughes and the trust CEO regarding our intention to undertake a review we have decided to undertake this in a few months’ time. This is to give time for improvement work at the trust, including in relation to speaking up arrangements, to take effect and so allow our review to obtain a more accurate picture of whether any necessary improvements are happening.

 This is particularly important because our review will wish to compare any such developments with how the speaking up culture, policies and procedures were operating at the time of your referral. 

 The purpose of our reviews is not only to highlight the need for any improvements and make recommendations to that effect, but also to commend any good practice we find. Therefore, if positive changes have begun by the time a review commences we will seek to highlight them to help ensure that they continue.

 We will continue to closely monitor the speaking up culture at the trust; if you have any additional information in relation to your referral please pass this to us. Also, should you or any of your colleagues have new issues that arise in relation to speaking up at the trust we would advise that you bring these to the attention of the Freedom to Speak Up Guardian.”

The deeply unhappy BSUH staff protested to the National Guardian and expressed the view that the NGO had ‘colluded’ with their employer and that this treatment was additional indication of ‘institutional racism’.

On 18 April 2018 BSUH staff received an even more extraordinary letter from the National Guardian herself, which asserted that case review “could inhibit the organisation from making the improvements we understand are currently underway at the trust”.

 Screen Shot 2018-05-06 at 21.09.48.png

 

Applying this stunning logic to the criminal justice system, to Safeguarding of children, or to Safeguarding of vulnerable adults would save taxpayers a fortune. Just ask suspects to do better and give them a chance to shine up their story. And don’t worry about the putative victims, because they can still whistleblow to the same ineffective internal structures that they drove them to an external agency. Sorted.

 

Clearly, this situation is very wrong. Robert Francis emphasised in his report of the Freedom To Speak Up Review  that:

The officer [National Guardian] would need to operate in a timely, non-bureaucratic way. He/she would not take on the investigation of cases themselves, but would challenge or invite others to look again at cases and would need sufficient authority to ensure that any recommendations made were taken seriously and acted upon. The office should be more nimble…”

Nowhere is it written anywhere in the Review that ‘Ye shall dangle distressed whistleblowers on a string and then ye shall additionally harm them with delay upon delay”.

But why might the National Guardian make such a remarkable decision and such striking claims?

Is it because Marianne Griffiths the CEO of Western Sussex and BSUH’s sister trust, Western Sussex Hospitals NHS Foundation Trust, are political sacred cows?

 

Griffiths was one of the NHS managers who drank deeply of Jeremy Hunt’s Virginia Mason collaboration :

“Four years ago, the leadership team of Western Sussex Hospitals visited one of the safest and best performing hospitals in the world to learn the secrets of their success.

At the Virginia Mason Institute in Seattle, USA, they discovered a hospital where staff were highly engaged and empowered to make improvements every day with expert training and support.

For Marianne Griffiths, chief executive of Western Sussex Hospitals, the visit was a “professional epiphany” and inspired the development of the trust’s leading Patient First programme.”

Coastal West Sussex CCG release 15 March 2017

 

Hunt has repeatedly held Griffiths up as an exemplar when proclaiming his patient safety pretensions:

“Or Marianne Griffiths at Western Sussex who created the strongest learning culture I have seen anywhere in the NHS by modelling her Trust on Virginia Mason hospital in Seattle.”

 Jeremy Hunt’s speech at NHS Providers conference 30 November 2016

“…Western Sussex, under the inspiring leadership of Marianne Griffiths, which has the best learning culture I have seen anywhere in the NHS.”

Jeremy Hunt’s speech to Conservative Party conference 2 October 2017

“We do indeed have superb clinical leaders, such as Marianne Griffiths at Worthing, which was recently given an outstanding rating.”

Jeremy Hunt in a parliamentary debate on clinical leadership 20 December 2016, Hansard

Hunt at W Sussex

 

Some might see a sub-text of spinning about private sector quality and efficiency. What Hunt never mentions, when implicitly denigrating the NHS by unfairly comparing it to Virginia Mason, is that the NHS delivers proportionately far more care on starvation rations.

It would undoubtedly be embarrassing for Hunt, after all the propaganda, if a trust under Griffiths’ control was reviewed by the National Guardian. This is would be on top of a previous embarrassment that arose when Virginia Mason failed a safety inspection:

US hospital paid £12.5m of taxpayer cash by Jeremy Hunt to improve British hospitals FAILS safety inspection

The serious and persisting failures of whistleblowing governance at BSUH are also embarrassing to Hunt because they are heavyweight evidence that his Freedom To Speak Up Guardian model simply does not work in the most dysfunctional organisations, and it leaves patients exposed.

Delay by the National Guardian allows for a damage limitation exercise. Typically in whistleblowing cases, delays allow employers to get their stories straight. Delays allow employers to to intimidate and wear staff out. Delays allow employers to sprinkle some gags around. And delays allow employers to cultivate a few tame individuals who can be used to undermine whistleblowers.

delay deny road signs

The Freedom To Speak Up debacle is dreadful but by no means unique. It follows a very familiar pattern of government behaviour across many jurisdictions, in which elaborate political theatre is staged to give a semblance of good governance and protection, when in reality the suppression and neglect continues. Law may be deliberately poorly drafted, or shiny, promising law is enacted but crippled because no effective enforcement infrastructure is provided.

Governments will always seek political advantage in handling whistleblowing, and it is parliament’s job to ensure that there are better checks and balances to safeguard the public interest against this self-interest.

Much, much better whistleblowing law is needed , as is a genuinely independent enforcement infrastructure, that is not under the control of governments with interests to protect.

As for the National Guardian, she ought to stop beating about the BSUH and prove her purported independence by reviewing the trust without any further delay.

 

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By day Henrietta, by night Lanyard Woman

 

 

The Greasy Freedom To Speak Up Review is Stuck. More Tales of Silence about Silence.

By Dr Minh Alexander NHS whistleblower and former NHS consultant psychiatrist, 2 May 2018

 

On whistleblower protection, Robert Francis rejected statute in favour of grease.

Three years ago, the lawyer argued that changing the law to properly protect whistleblowers would take too long. Instead, he advocated for “nimble” Guardians, local and National, to “oil the wheels”.

 

“The Freedom To Speak Up Guardian… watches over the process, and ‘oils the wheels’”

Page 150 report of the Freedom To Speak Up Review

 

 

One could almost forgive a powerful man for thinking that you can get things done by having a word in the right ear.

But what of mere mortals, and the mostly female nursing assistants and care assistants who get ignored because someone doesn’t think they’re important enough? Or the BME staff who are more likely to be ignored and victimised if they speak up?

Francis recommended that Guardians should not have any powers, but “authority”:

“He or she [the National Guardian] would need to have sufficient authority to ensure that reviews and any recommendations coming from them are taken seriously and acted upon quickly.” 

 Page 169 Freedom To Speak Up Review

 

Wishful thinking and warm words are all too easy when you are betting on someone else’s future.

Unfortunately for whistleblowers, Francis left many convenient loopholes and escape clauses strewn about: 

“The intention of my proposal is to provide an officer [National Guardian] with the widest discretion to decide whether or not it is appropriate to become involved in a particular case, and, if so, what measures of intervention may be appropriate.”

 Page 169 Freedom To Speak Up Review

 Three years on, the folly of deliberately designing a system with no clear rules is clear. The National Guardian’s Office (NGO) declined to help Lloyd Armstrong a whistleblower from the very troubled Essex Partnership NHS Foundation Trust, following which he was sacked.

A complaint about this was rejected on questionable grounds. This decision was upheld by Francis, ruling on the performance of his own creation. No conflict there.

Armstrong has yet to hear about the progress of a second complaint about the Office, submitted in February 2018 in the light of new information which suggested that the Office has acted inconsistently. Perhaps exercising the ‘wide discretion’ that Francis proposed, contrary to most accepted principles of good public administration and fairness.

On 28 March 2018 Armstrong asked the NGO once more to review his case, on grounds that there were no longer any outstanding processes and that ongoing patient safety and governance issues had emerged at his old trust, of a similar nature his original concerns. On 24 April 2018 the NGO sent him a referral form to fill in. The slow-moving and unsupportive process was not reassuring.

And Armstrong has received no response at all from Robert Francis to the following question, raised in other correspondence:

“I would be very grateful if you could clarify to me what was in your mind when you made your original recommendation in the report of the Freedom To Speak Up Review that the National Guardian should help ensure redress for harmed whistleblowers, including through a direction by a regulator if necessary.

 Please could you give some practical indications of the sort of cases and scenarios that would in your view qualify for such help from the National Guardian.”

Letter by Lloyd Armstrong to Robert Francis of 4 February 2018

This silence is very significant. If the great man cannot answer on this pivotal point, for whatever reason, that must surely signal serious problems with the Freedom To Speak Up Project.

Francis’ reported comments at a Westminster Forum meeting on 26 April 2018 do not exactly convey confidence in the project’s progress:

“Sir Robert also said more action was desperately needed to ensure staff feel able to speak up in their trusts and that whistleblowers are welcomed rather than hounded out.”

There has been virtually no information in the public domain about how the National Guardian has handled referrals for whistleblower case review. This is despite the fact that conducting case reviews was the core function for which her office was established: ‘Principle 15 – External Review’. One might not think so though, from the subsequent mission drift to that of primarily cheerleading.

 

 

Principle 15 of 20 key principles from the Freedom To Speak Up Review

Principle 15 – External review

There should be an Independent National Officer resourced jointly by national systems regulators and oversight bodies and authorised by them to carry out the functions described in this report, namely:

• review the handling of concerns raised by NHS workers, and/or the treatment of the person or people who spoke up where there is cause for believing that this has not been in accordance with good practice  

• advise NHS organisations to take appropriate action where they have failed to follow good practice, or advise the relevant systems regulator to make a direction to that effect

• act as a support for Freedom to Speak Up Guardians

• provide national leadership on issues relating to raising concerns by NHS workers

 

 

Most peculiarly, the National Guardian’s first annual report  gave no data at all on case review activity. This was particularly odd because she has asked local Guardians to record and report on their case activity, so the absence of data about her own Office’s activities could hardly have been due to lack of awareness.

Armstrong wrestled some data out of the National Guardian’s Office on its handling of cases. An initial response to his FOI request had a touch of gloss and left some key issues unclear.

Clarification was requested . The subsequent response revealed that the NGO had declined 12 out of 37 case referrals received so far, with 16 of the 37 cases still ‘pending’ in the system:

 

Status of all referrals for case review received by the National Guardian

Status of referrals for National Guardian case review as of 4 April 2018

Source: FOI disclosure by National Guardian’s Office 4 April 2018

 

That is, the National Guardian’s rejection rate for ‘processed’ cases was by implication 57% (12 out of 21).

The most frequent reason given for declining review of whistleblowers’ cases was that there would not be sufficient learning generated:

Reasons why National Guardian declined case review

Source: FOI disclosure by National Guardian’s Office 4 April 2018

 

The whistleblowers’ whose concerns were covered up and whose careers and livelihoods might depend on case review would probably take a different view. Perhaps if the NGO trimmed its PR spend, it might be able to afford some more case reviews. . (The NGO has admitted to spending at least £261,101 to date on PR staff and conferences , although the real figure may be more as the number of spin doctors has tripled from one to three since the Office was established). Unsurprisingly, there is more to come about the NGO’s failure to help whistleblowers in distress – more of that another time.

Strikingly the FOI revealed that no whistleblowers have returned any feedback data to the National Guardian about the case review service:

“To date the NGO has not received any [feedback] forms returned” 

This is despite the NGO restricting requests for feedback to only those who succeed in applying for case review, not those rejected, thus potentially skewing results in its favour. But perhaps the silence by whistleblowers is not surprising given that the NGO maintains steadfastly, despite Francis’ recommendations that it seeks redress for harmed whistleblowers as part of case review, that it has no responsibility for helping harmed whistleblowers: 

“Therefore, you will see from our remit, as described by the Francis review and endorsed by the government does not include intervention in the cases of individuals.”  

At her conference on 6 March 2018 Henrietta Hughes told representatives from NHS trusts that she was advising regulators to treat lack of whistleblowing disclosures and failures to return whistleblowing data as risk indicators. So will the National Guardian’s overseers apply the same reasoning to her Office?

And how does Robert Francis’ miracle grease work in relation to the NHS whistleblower employment scheme?

Armstrong, who had been accepted as a suitable person for the NHS whistleblower employment scheme, asked Dido Harding the Chair of NHSI if the regulator could ensure his safe return to his old trust, which has vacancies.

Many whistleblowers would not wish to return to the scene of prior conflict, but understandably there will be some like Armstrong who will. Family commitments may make it difficult to relocate, relocation is costly and some will still have the support of old colleagues.

Ensuring a whistleblower’s safe return to an erring employer is the ultimate test of the system’s “authority”, upon which Francis banked. Indeed, Francis went as far as to recommend that NHS regulators should direct remedy for whistleblowers:

7.6.12 The INO should be authorised by these bodies to use his/her discretion to…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”

But Dido Harding’s answer was ‘No’.

Disconcertingly, there was also some row back on whether whistleblowers who have been accepted by the whistleblower employment scheme can really be considered bona fide whistleblowers.

The [Employment Support Scheme] panel decision therefore does not amount to de facto acceptance that you are a genuine whistleblower or that there are no significant performance issues with your previous employer; only an employment tribunal can determine these issues.” 

This was rather Kafkaesque because whistleblowers must prove to NHSI that they are genuine whistleblowers in order to be accepted onto the whistleblower employment support scheme.

Harding’s contention that only a Court can decide who is a genuine whistleblower is an unworkable counsel of perfection. For example, it may be so obvious that someone is a whistleblower that in the course of litigation, parties may agree upon this before the court rules. Similarly, an independent investigation or public inquiry may accept that someone is a whistleblower. Regulators are in a position of power and oversight which allows them to easily confirm whether a worker has made qualifying public interest disclosures, so such fence sitting is not justifiable.

But if even the regulators who are running the NHS whistleblower employment support scheme are thrice denying whistleblowers, what hope is there?

Armstrong had a practical demonstration of this when he tried to apply for a Healthwatch post, of ‘Information and Signposting Officer’ for which he was amply qualified having been a longstanding, clinically qualified NHS worker (RMN) with professional people skills and a former trust staff governor.

He asked NHS Improvement three times over more than two weeks to support him with the application, but received no answer. Only after NHSI was embarrassed by a social media disclosure, on the day before the closing date for applications, was there a response. NHSI claimed that Armstrong’s emails had gone into the wrong folder. It then also struck a strange, incongruous note by officiously asking him to confirm that he had sent his messages to the correct address.

Armstrong asked NHSI if it would negotiate a guaranteed job interview on his behalf. Guaranteed job interviews, in cases where applicants meet the person specification, are something that NHSI claims to be providing as part of the whistleblower employment support scheme. But NHSI came back to Armstrong empty-handed – he was not shortlisted – and NHSI’s contribution was to tell him that he could contact Healthwatch for feedback on why his application had been unsuccessful.

Armstrong has challenged NHSI about whether a guaranteed job interview would have been secured if it had responded in timely manner to his requests, and he awaits a reply.

As part of Robert Francis’ recommendations in February 2015 that an employment support scheme should be set up for exiled NHS whistleblowers (he recently clarified that he had expected this to be a re-employment scheme), he advised that a pool of employers willing to offer trial employment should be established.

Whistleblowers have repeatedly asked NHSI about this since March 2017. It has responded with promises, procrastination and most recently, hostile denial of any need for much preparatory work on establishing an employer pool. The latter had the ring of a post hoc invention, to excuse inaction. The latest position is that negotiations with employers will take place when need is identified in individual cases.

I cannot reveal the details of the discussions because, as previously reported, NHSI has taken to blanket gagging of all the proceedings of the employment support scheme ‘Design and Monitoring Group’. However, this is a NHSI document disclosed via FOI which reveals some of the claims that the regulator has been making about the employer pool, as recently as February 2018.

NHSI’s latest ‘ad hoc strategy’ to employers hardly helped Armstrong.

Would it be too harsh to wonder if that it is perhaps the point? I doubt it.

Whistleblowers press on, but judging from the ample evidence of obfuscation and resistance there are many, many miles to go. Sir Robert has many promises to keep for the woods are dark and deep.

 

RELATED ITEMS

A Whistleblower Led Event on UK Whistleblowing Law Reform: The Public Interest Disclosure Act Needs To Be Replaced

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

Behind the Performance: The National Guardian’s Conference of 6 March 2018

 

 

 

 

 

 

 

 

 

A two year correspondence with NHS Improvement about the ET judgment from Dr Raj Mattu’s whistleblowing case

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

Almost exactly two years ago I asked NHS Improvement what action it would take in response to the Employment Tribunal’s findings in favour of Dr Raj Mattu, in his very well-known whistleblowing case.

The question has still not been answered. NHS Improvement initially ignored my enquiry. I asked again in February of this year. Promissory notes have ensued, but there has so far been no evidence of improved practice.

Mattu was one of six whistleblowers who met with Jeremy Hunt in 2014 leading to the costly political theatre otherwise known as the Freedom To Speak Up Review, which has changed nothing for whistleblowers.

So a key case which was purportedly a spur to better NHS transparency, and which cost so much suffering to Mattu and his family, has in reality not resulted in change.

Private Eye Issue 1364 Raj Mattu and the Death of Whistleblowing

There is not a lot more to say about the authenticity of Mr Hunt’s Freedom To Speak Up project. That said, it is important to note that the Freedom To Speak Up model is an obstacle to effective whistleblowing governance because it is being used by the government as an excuse for not pursuing real whistleblowing reform.

Dr Henrietta Hughes the NHS National Guardian has set up a ‘Pan-Sector Network’ for swapping ideas.

Irregularly, the NHS National Guardian has held un-minuted meetings with the management consultancy KPMG in setting up her Pan-Sector Network, as revealed by a CQC FOI disclosure.

 

CQC FOI disclosure of 19 April 2018, Ref IAT 1718 0886, about meetings between the National Guardian and KPMG

 “Meeting with KPMG 2nd February and 22nd May 2017 

We hold no records from these meetings however we can advise you of the following: 

The purpose of these informal meetings was to discuss the NGO’s Pan-Sector Network.  

The National Guardian’s Office (NGO) believes that the NHS has much to learn from other sectors – many of whom have learnt from tragedies which could have been prevented if staff had been supported in speaking up. The NGO therefore launched a pan sector network in 2017 which will enable cross-sector discussions and learning. 

The network includes representatives from the sectors of finance, regulation, health, sports and aviation. 

The network held its first meeting in July 2017. It is anticipated that the network will meet two to three times a year. 

By working together, the NGO hopes that we can progress more efficiently to a point where all workers feel listened to and valued.”

 

 

The correspondence with NHS Improvement about Mattu’s case is provided below.

 

RELATED ITEM

FPPR: CQC has lost all moral authority, but what will the National Guardian do?
Correspondence with NHS Improvement about Raj Mattu ET Judgment

From: “GRIMES, Tom (NHS IMPROVEMENT – T1520)” <********************************>

Subject: Fwd: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Date: 29 March 2018 at 09:28:37 BST

To: Minh Alexander <********************************>

 

Hi Minh

The below is what I intended to send you – apologies if it didn’t get through properly first time.

 

Tom

Sent from my iPad
Begin forwarded message:

From: “GRIMES, Tom (NHS IMPROVEMENT – T1520)” <**************************>
Date: 28 March 2018 at 17:30:04 BST
To: Minh Alexander  <***************************>
Subject: FW: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Hi Minh

I am mindful that I haven’t come back to you on this yet, and I am now on leave until 9th April. We are still considering the matter and I will be in touch further in the next few weeks.

I am sorry for the delay.

Best wishes

Tom

 

From: GRIMES, Tom (NHS IMPROVEMENT – T1520)
Sent: 07 March 2018 17:13
To: ‘Minh Alexander’
Cc: WORRALL, Jeff (NHS IMPROVEMENT – T1520); Steve Barclay ********************; DALTON, Ian (NHS IMPROVEMENT – T1520); HARDING, Dido (NHS IMPROVEMENT – T1520)
Subject: RE: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

 

Dear Minh

Thanks for your email, and sorry you have had to chase.

As I’m sure you know, this is a lengthy employment tribunal judgement and we are considering it carefully. The references to David Loughton relate to events that are 15-20 years old and so do not raise current governance concerns for us regarding University Hospitals Coventry and Warwickshire NHS Trust. However, I realise that he is currently Chief Executive at Wolverhampton and we are looking at whether it raises issues there.

I am sorry this is taking a little while, but we are taking it very seriously and I hope to be in contact further in the next few weeks.

Best wishes

Tom

Tom Grimes

Head of Enquiries, Complaints and Whistleblowing

NHS Improvement

Direct Line ***********************| www.improvement.nhs.uk
Wellington House, 133-155 Waterloo Road. London SE1 8UG

 

From: Minh Alexander [mailto: ********************* ]
Sent: 05 March 2018 13:40
To: GRIMES, Tom (NHS IMPROVEMENT – T1520)
Cc: WORRALL, Jeff (NHS IMPROVEMENT – T1520); Steve Barclay ******************; DALTON, Ian (NHS IMPROVEMENT – T1520); HARDING, Dido (NHS IMPROVEMENT – T1520)
Subject: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Thanks Tom,

I wonder if it is possible to know when NHS Improvement will be in a position to reply?

BW

Minh

 

From: “GRIMES, Tom (NHS IMPROVEMENT – T1520)” <********************>

Subject: FW: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Date: 15 February 2018 at 16:32:05 GMT

To: Minh Alexander  <*********************>

Hi Minh

I just wanted to acknowledge this and say that we aim to be in contact with a response next week.

BW

Tom

From: Minh Alexander <*******************>
Date: 12 February 2018 at 08:49:55 GMT-7
To: Jeff Worrall *****************
Cc: Steve Barclay<**********************>, Ian Dalton <******************>, Dido Harding <********************>
Subject: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Dear Mr Worrall,

Further to Bill Kirkup’s conclusions about avoidable harm to patients at Liverpool Community Health NHS Trust due to poor leadership of the trust, and the Minister of State’s announcement of a review of governance of the Fit and Proper Test in the NHS, I wonder if I could possibly have a response to my letter to you of 12 May 2016, copied below.

Yours sincerely,

Dr Minh Alexander

cc Steven Barclay Minister of State

Dido Harding Chair NHS Improvement

Ian Dalton CEO NHS Improvement

 

From: Minh Alexander <*********************>

Subject: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Date: 12 May 2016 at 15:33:31 BST

To: Jeff Worrall ********************* Cc: Hines Andrew <*******************>, Health Committee <****************>, Sarah Wollaston *******************, Philippa Whitford *******************, Emily Thornberry *******************, Maggie Throup ********************, Liz McInnes ********************, Andrew Percy ******************, James Davies ******************, Andrea Jenkyns  *********************, Paula Sherriff ********************, Ben Bradshaw *********************, Julie Cooper ********************, Robert Francis *******************, “CE England (NHS ENGLAND)” <******************>, ****************************** <******************** >

 

Mr Jeffrey Worrall Portfolio Director for Midlands & East 12 May 2016

Dear Mr Worrall,

Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

After Monitor launched an investigation last year into Derbyshire Healthcare NHS Foundation Trust as a result of an serious ET finding against that trust (sexual harassment and cover up of wrongdoing http://www.cloisters.com/images/Marks_-_judgment.pdf ) I asked NHS TDA to review the governance and safety issues arising from the ET judgment against Croydon Health Services NHS Trust, and it kindly did so.

I also asked if NHS TDA would review the implications of the 2014 ET judgment against University Hospitals Coventry and Warwickshire NHS Trust (UHCW) in favour of Dr Raj Mattu. I was advised by your colleague Mr Andrew Hines that you were the appropriate contact for this matter. I hope that this is still correct, following the establishment of NHS Improvement to replace NHS TDA, but please advise me if it is not.

Now that a very critical Verita report has been published today about the handling of  whistleblowing concerns by Royal Wolverhampton Hospitals NHS Trust, where Mr David Loughton has been Chief Executive since leaving UHCW, I would be grateful if NHS Improvement could advise whether it will review Dr Raj Mattu’s case and the governance and patient safety issues arising from the ET judgment against UHCW.

I ask NHS Improvement to note the well-known fact that numerous vexatious allegations were made to GMC against Dr Mattu, and that allegations were also made to the GMC in the more recent case of another whistleblower, Prof David Ferry, at Royal Wolverhampton. Prof Ferry was cleared by the GMC only a few months ago: http://www.expressandstar.com/news/2016/01/18/cleared-after-four-year-fight-victory-for-nhs-whistle-blower/

Dr Mattu’s case is very well known, but I  ask NHS Improvement to note a detail that was reported by Private Eye in its 2011 special on NHS whistleblowing:

“Mattu’s representative, Stephen Campion, was called to an off-the-record meeting with Loughton at a local hotel. At that meeting, Campion claims Loughton said: ‘I’m not interested in giving Dr Mattu a parking ticket, I want him off the road.” Two months later, Mattu was suspended on an allegation of bullying. He remained suspended for six years. “

http://drphilhammond.com/blog/wp-content/uploads/2011/11/Shoot_the_Mesenger_FINAL.pdf

I hope to hear from you.

Yours sincerely,

Dr Minh Alexander

Cc Health Committee

Simon Stevens CEO NHS England

Sir Robert Francis QC

Jim Mackey CEO NHS Improvement

Andrew Hines NHS Improvement

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A Whistleblower-Led event on UK Whistleblowing Law Reform: The Public Interest Disclosure Act needs to be replaced

By Dr Minh Alexander and Clare Sardari @SardariClare   NHS whistleblowers, 26 April 2018

Whistleblowers are united in calling for reform of UK whistleblowing law which was introduced twenty years ago but is ineffective in protecting the public interest and those who speak up.

The NHS National Freedom To Speak Up Guardian has not agreed to support calls for law reform, and her Office initially declined to support an event on law reform.

After several exchanges of correspondence , the National Guardian has agreed to sponsor such an event. It will be discussed at the next meeting of the National Guardian’s advisory group on 4 May.

Negotiations continue but this is an outline of the event, which is scheduled for 19 October 2018:

 

A WHISTLEBLOWER-LED EVENT ON UK LAW REFORM

There is consensus amongst whistleblowers that UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA), is weak and needs urgent reform.

Sir Robert Francis acknowledged in his report of the Freedom To Speak Up Review that PIDA is weak.

The salient concerns about PIDA are summarised below in the annex.

The National Guardian has to date not agreed to support calls for law reform, but has agreed to support an event led by whistleblowers on this issue.

 

Outline of event

Negotiations continue and the final details of the event are yet to be finalised, but an outline follows.

The event will seek to present expert evidence to key decision makers such as Ministers and the Law Commission about the need for whistleblowing law reform.

The format will include preparatory information gathering to inform the event and for publication in a report arising from the event:

  1. Survey of participants and survey of NHS trust chief executives prior to the event

 

  1. Collation of succinct whistleblowers’ personal accounts of their experience of PIDA and their views on how the law should change.

The event will be a small scale symposium to present expert legal evidence to key decision makers, and to allow for in depth discussion and start a conversation on what is needed.

Three key areas will feature:

  • The need for pre-detriment protection
  • The need to compel investigation of whistleblowers’ concerns
  • The need for meaningful penalties for reprisal

Whistleblowers will facilitate the event and expressions of interest will be sought.

A full report will be produced from the event to document the evidence gathered and the arguments in support of reform.

Dr Minh Alexander and Clare Sardari, NHS whistleblowers, 25 April 2018

 

ANNEX: KEY CONCERNS ABOUT PIDA:

  1. PIDA does not compel anyone to investigate whistleblowers’ concerns

 

  1. PIDA does not confer protection. It only allows whistleblowers to sue for compensation after serious harm. There is no evidence that the prospect of being sued for compensation deters reprisal by employers. As long as employers have the means to pay compensation, they can easily rid themselves of whistleblowers by unfairly dismissing them.

 

  1. PIDA does not confer personal jeopardy for those who cover up and victimise whistleblowers. There is no formalised penalty for betrayal of the public interest.

 

  1. Under PIDA, whistleblowers personally carry the burden of risky litigation, even though the matters in question concern the public interest. The cost of litigation can be ruinous. Even on the rare occasions when whistleblowers ‘win’, the legal fees can swallow up much of what is already inadequate compensation for loss of livelihood and a future of long term unemployment.

ETs seem also to be increasingly awarding costs against whistleblower claimants. Equally, ETs may also dock compensation on the basis of alleged contributory fault by whistleblowers, that may in fact stem from inexperienced litigants in person being outgunned in court and thus making tactical mistakes, or the result of deliberate employer provocation to muddy the waters.

 

  1. It is very hard to win PIDA cases. This is due to the nature of the legal tests that must be satisfied and the inequality of arms between employers and whistleblowers. Many cases are simply settled (usually to the whistleblower’s disadvantage) or they are withdrawn. Only approximately 3% of all whistleblowing PIDA claims eventually succeed at hearing.

 

  1. PIDA is narrowly constructed to focus on employment issues, and PIDA cases are handled by Employment Tribunals, despite the fact that Employment Tribunals are not equipped to deal with whistleblowers’ concerns and struggle with the complexity of some of these cases. This perpetuates a focus on personal conflict and deflects attention away from the public interest and policy issues that provoke whistleblowing in the first place. It helps to continue the narrative by successive governments that whistleblowers are troublemakers, and neatly avoids the need to address the underlying risks to the public.

 

  1. PIDA does not compel employers to improve their governance following whistleblowing failures. 8. PIDA focuses on whistleblowing governance failure by employers but not by regulators and government departments, when the latter are in fact much more serious and important. For example, the ET clarified that it had no jurisdiction for hearing Helen Rochester’s complaint about detrimental actions by the CQC towards her as a whistleblower.

 

This a comprehensive report by Blueprint for Free Speech which categorises in detail PIDA’s substantial flaws and shows how badly PIDA compares to legislation from other jurisdictions:

Protecting Whistleblowers in the UK 

This is a very recent case example, of Helen Rochester’s care home whistleblowing case, which clearly illustrates the weaknesses of PIDA and the ET system:

UK Whistleblowing Law is an Ass: Helen Rochester v Ingham House Ltd and the Complicit CQC

Helen Rochester proved the facts of her claim but still lost because the ET chose to give her former employer extraordinary latitude and the benefit of the doubt as to whether the detriment that it inflicted was motivated by her whistleblowing.

Her case is particularly cogent because she was twice betrayed by a regulator (the Care Quality Commission) which has since refused to transparently review its processes, further highlighting the folly of tolerating weak UK whistleblowing law in a system which is subverted by politicisation and various degrees and types of corruption.

Given such repeated and very substantial failures of PIDA over twenty years, it is not sustainable to maintain a position that law reform is merely secondary, and that a programme of nudging and soft culture change is more important.

Daily serious breaches of the Nolan standards – introduced over twenty years ago – in our public services amply demonstrate that soft codes of conduct and exhortation are no substitute for legislation, such as for example USA legislation, which governs conflicts of interest and prohibited personnel practices by federal employers.

Good law, which is accompanied by an appropriate enforcement infrastructure, will enforce better practice and drive culture change much more effectively and quickly.

It is time for the government to act upon this and to finally and properly protect whistleblowers.

 

UPDATE:

This information for whistleblowers, about the forthcoming call for evidence:

Forthcoming call for whistleblower evidence for an event on 19 October 2018

 

RELATED ITEMS:

Engineered failure to investigate NHS whistleblowers’ concerns

Sir Robert Francis and Reform of Whistleblowing Law

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Behind the performance: A postcard from the National Guardian’s Conference of 6 March 2018

 By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 22 April 2018 

The smoke and mirrors on NHS whistleblowing by Jeremy Hunt et al continue, and this piece chronicles some more evidence of government manipulation.

A handful of whistleblowers were invited to the tightly controlled, high gloss, well-polished conference held by the National Guardian last month. Whilst the invitations were manifestly related to our membership of the National Guardian’s advisory group, it was unclear why we had been included.

We were not invited to lead any discussions or to present. We were given no role and allowed little voice. Time for audience questions and discussions was limited. Although there was an attempt to place whistleblowers in seats at the back and edges of the conference hall, some of us made other arrangements.

We were treated to a speaker – the King’s Fund Head of “Thought Leadership” – who referred to “angry” whistleblowers. He suggested that trust executives needed to deal more understandingly with irate whistleblowers. In doing so, he seemed not to acknowledge the fact that the vast majority of whistleblowers are very reasonable in raising concerns, and that it is only after repeated suppression and reprisals that some become angry.

I had a tussle with Henrietta Hughes on being allowed to respond to this distortion. We spent longer disagreeing on whether I could comment than it took me to rebut the Thought Leader’s misrepresentation. Several Speak Up guardians were brave enough to later privately express approval that I had spoken up, which rather said it all about the nature of the Freedom To Speak Up project.

Cult of personality was the order of the day. The National Guardian’s Office’s billed the key speakers as ‘stellar’. So much for public service values of selflessness.

Stellar

This was the official conference slide pack produced by the NGO:

National Guardian’s conference 6 March 2018 slides

 

Uneven Stevens and a static 70% statistic

Simon Stevens triumphantly announced that an expansive promise which he made a few months previously to appoint one third of BME Speak Up Guardians at NHS England (NHSE) had been fulfilled.

Behind this theatre lay a great deal of evasion by NHSE. It had avoided answering questions for some time, prior to the conference about its achievement of the one third target, no doubt saving up for Stevens’ conference splash.

NHSE’s National Director for Transformation and Corporate Operations (NHSE’s Lead Guardian), has still not fully substantiated Stevens’ claim of one third BME despite several and increasingly specific enquiries. In short, NHSE has claimed that the crude headcount of BME Guardians is one third of the total, but has repeatedly failed to evidence that the WTE of BME Guardians genuinely comprises one third of its Speak Up Guardian service.

On 8 March NHSE shared internal documents which indicated that its Speak Up Guardians would have designated time for the role:

 “With sufficient designated time to carry out their role, participate in external FTSU activities, and take part in staff training , induction and other relevant activities”

but did not provide details of the WTE of its BME Speak Guardians.

When I continued to press for disclosure of the WTE details, this was the reply from NHSE on 16 April 2018:

“I will not be able to provide data on this time commitment, as Guardians are not required to record how much time they spend within their FTSU roles. Time is not considered a reporting factor; Guardians are focused more importantly, on ensuring colleagues feel empowered to raise their concern(s) via the FTSU process without any time constraints.  Any time spent within the Guardian role is protected time and the Guardians are fully supported to take as much time necessary to ensure the FTSU process fully supports colleagues when raising their concern(s).”

One might be tempted to wonder if NHSE hurriedly designated a selection of BME staff as ‘Guardians’ just to help shine up its CEO’s Race credentials, but without giving these staff ring fenced time to for the role.

This is the correspondence with NHS England, copied to Stevens:

NHS England correspondence re appointment of BME Speak Up Guardians

Simon Stevens one third (1)

 

Of relevance, I asked NHS England to share a previously suppressed report on the experience of its BME staff, which had been leaked and was the subject of a report by the Health Service Journal in December 2017.

NHS England agreed but omitted to attach the report to its reply. After a further request, NHSE gave me the link to a more favourable report but this was dated March 2018. On the third attempt, the report was disclosed:

NHS England Deep Dive BME staff survey 2017

This showed that 58 out of 163 (36%) of BME NHSE staff who took part in the survey reported personally experiencing bullying, harassment or abuse at work, based on their race since joining NHS England”.

A debate on Diversity was organised as part of the NGO’s conference on these lines:

Motion

The chair of NHS England’s advisory group for the WRES programme spoke against the motion.

Astonishingly, the conference voted against the motion.

But at least Stevens came clean about the fact that the key metric on NHS whistleblowing, question 13b of the national staff survey about staff security in speaking up, had remained static at 70%. This was despite the appointment of hundreds of Speak Up Guardians and the millions spent on the NGO and the Freedom To Speak Up project. However, neither Stevens nor the rally organisers openly acknowledged this enormous elephant in the room.

Screen Shot 2018-04-22 at 18.44.44

The static 70% statistic was omitted from the briefing report for the 2017 NHS Staff Survey.   The CEO of the Picker Institute, which conducts the survey, later advised:

…the briefing report for the survey is intended to provide a summary of results rather than to fully list the results for every item.”

Email from Chris Graham 8 March 2018

But one would have thought that the overall score on question 13b would have been of great interest this year, after establishment of the Freedom To Speak Up Guardian network.

The score of 70% implies that 30% of 1.3 million NHS staff (390,000 staff) do not feel secure in raising concerns. That potentially represents a great deal of unreported patient harm and risks.

Nevertheless, Steven tacitly conceded that things were awry, because he indicated a need for increased measures. He floated a suggestion that the NHS might start tracking whistleblowing metrics in the annual NHS staff survey, broadly in the same way that the WRES programme tracks Race indicators.

However, a debate would be needed first on the validity of the current survey measures, and whether any changes are needed. Monitoring without enforcement, à la WRES policy, would be of little use.

 

‘Sorry’ is the hardest word for the CQC

As I arrived at the conference I came upon David Behan in obviously relaxed conversation and laughing heartily with a trustee of Patients First. They continued their discussion for some time as I followed them into the building.

When David Behan later spoke, he held forth on the importance of Just Culture, which was like the governance equivalent of watching dad-dancing.

In a cringeworthy contrivance, he repeatedly characterised the Freedom To Speak Up Guardian network as ‘social movement’, even though the project has been wholly centrally driven.

Behan subsequently approached me in unusual, tense manner for a very uncomfortable encounter. His approach was most unexpected given that he has avoided interaction where possible in the last few years. He even deployed snippy letters by his Head of Legal services. The interaction was also in marked contrast to the conversation that he had earlier with the Patients First trustee. I remain mystified as to why Behan approached me.

Whilst bestowing himself thus Behan asked my companion, a sacked and blacklisted fellow whistleblower, what they were doing now. He tersely dismissed the whistleblower’s concerns about CQC failure on FPPR.

Entertainingly, Behan managed to breached my confidentiality during the encounter. Whilst there was no real harm done by the breach, it was not his data to give away. He apologised at the time, but studiously ignored a mention of the incident in later correspondence. Despite demonstrating how easily slips may occur, Behan still declined to reconsider CQC’s previous refusal to audit its practice in safeguarding whistleblower’s confidentiality. 

Peter Wyman the CQC chair has since maintained this position, with the trademark charm that is now all too familiar.

This is the correspondence exchanged after the conference:

Correspondence with CQC about whistleblowers’ confidentiality March and April 2018

wyman and behan in a bath

 

Jeremy Hunt’s statistical slipperiness

Jeremy Hunt deigned to appear at the conference. Subsequent FOIA disclosures by the National Guardian’s Office (NGO) and the Department of Health and Social Care (DHSC) revealed that there was careful stage management by the two bodies.

DHSC disclosure 9.04.2018 – correspondence between DHSC and National Guardian’s Office about the conference

CQC disclosure 9.04.2018 – correspondence between DHSC and National Guardian’s Office about the conference

The DHSC was keen to be supplied with ‘Good News’ items:

Good News DHSC re NGO conference

The NGO was careful to brief Hunt’s team about the presence of whistleblowers who were “less supportive” of government policy:

NGO briefing less supportive

The NGO also briefed Hunt’s team that whistleblowers whom it had invited to the conference might have opinions:

NGO briefing members of our advisory group

NGO officials even solicited retweets from the DHSC, consistent with the social media strategy of central NHS bodies to prop each other up.

Potential answers to questions about the private sector were rehearsed:

Rehearsed answers about private sector

Where there were anticipated questions about weaknesses, the strategy deployed was one of deflection. For example:

  1. On the lack of compulsion for primary care providers to appoint Speak Up Guardians:

Deflection 1

 

  1. “Q Where are the ‘teeth’ in the system to bring employers to account for bullying?”

Answer:

Deflection 2

The NGO also briefed the DHSC that CQC will assess how well the Speak Up Guardian role is implemented in any given trust:

CQC will assess FTSU implementation

This is bound to work well for the Secretary of State then, as the CQC has helped to bury whistleblowers whether by act, omission or both. The CQC has through its various failures made whistleblower reprisal acceptable.  It has no transparent, fit for purpose inspection methodology on whistleblowing governance. CQC’s guidance notes on whistleblowing for inspectors are painfully basic and do not give confidence that inspectors have the necessary expertise.

Hunt brazenly claimed during his speech to the conference that 90% of staff who had raised 4600 concerns through trust Speak Up Guardians would speak up again. He then tweeted the claim for good measure:

Hunt 90% tweet

Whilst Hunt waved the ‘Robert Francis’ kitemark about, Sir Robert Francis was noticeable by his absence.

The NGO supplied the 90% statistic:

HH 9:10

Dr Henrietta Hughes National Guardian speaking on 6 March 2018

 

The 90% statistic was based on incomplete, flawed data – more about that another time. It was unpublished, and has been confirmed to be so by a UK Statistics Authority investigation. Hunt breached the UK Statistics Authority’s code by citing an unpublished statistic. The code seeks to restrain dissemination of dodgy digits by Ministers for political gain. Hunt has done it before. 

From a letter 18 April 2018 by the UKSA’s Director General of Regulation to me about Hunt’s use of the 90% statistic:

Ed Humperson 18.04.2018 re Hunt use of statistics

But then, what’s a fib or two when you’re ‘stellar’?

 

promises and delivery

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Jeremy Hunt et al’s re-branding of Morecambe Bay and a suppressed report on Race concerns

By Dr Minh Alexander and Russell Dunkeld @RussellDunkeld , NHS whistleblowers, 21 April 2018

As many NHS whistleblowers are aware, the Department of Health and its arms length bodies sometimes declare failing organisations as turnaround successes whatever the truth of the matter.

CQC slaps on the green ratings and the trust executives start being showered with conspicuous accolades. Ministers may contribute a plug or two.

University Hospitals of Morecambe Bay NHS Foundation Trust is an example of re-branding. Morecambe Bay was notorious for the maternity safety scandal, which was the subject of a major report by Dr Bill Kirkup in March 2015

Morecambe Bay was also exposed for  victimising whistleblowers who raised concerns about the accuracy of breast cancer screening. The trust admitted in 2016 that it was still gagging whistleblower, details of which follow below. In 2016, a former nurse who was treated by Morecambe Bay revealed a picture of chaotic shortages. 

Despite such ongoing governance issues, Morecambe Bay has featured prominently in Jeremy Hunt’s publicity schemes and his superficial claims to be a patient safety champion, whilst overseeing a programme of disinvestment and resultant NHS crisis.

 

Maternity safety has been a key element of Hunt’s patient safety shtick.

Screen Shot 2018-04-20 at 07.37.42

 

Hunt has repeatedly used Morecambe Bay for political gain:

Screen Shot 2018-04-20 at 07.34.49

 

Although Hunt et al have been spinning the above line of transformation,  Morecambe Bay staff have not stopped whistleblowing outside of the organisation. Such external whistleblowing usually reflects internal whistleblowing governance problems – staff are either deterred in some way from using internal routes, or they have tried internally but been unable to progress their concerns.

FOI data from the regulator the Care Quality Commission (CQC) revealed that Morecambe generated the third highest number nationally of whistleblowing contacts to the CQC over 2015/16 and 2016/17.

Additional FOI data from the CQC, obtained by former Morecambe Bay whistleblower and nurse Russell Dunkeld revealed more detail about whistleblowing disclosures to CQC between 2014/15 to 2016/17:

CQC FOI disclosure Ref IAT 1718 0653 on whistleblowing contacts by Morecambe Bay staff

 

Russell Dunkeld is a nurse who whistleblew about serious patient safety issues at Morecambe Bay, including incorrect, undetected insertion of a nasogastric tube into a patient’s airway. This is a so-called ‘Never Event’ because it is a very serious but avoidable form of medical harm and should never happen. Dunkeld also whistleblew about concerns that a nurse colleague was hastening patients’ deaths by tampering with intravenous fluids.

Dunkeld’s safety concerns have never been fully resolved.

He believes a recent offer of employment from the trust to help improve its whistleblowing governance was withdrawn because he would not stop pursuing the unresolved patient safety and Safeguarding issues. The trust denied all:

“Different people within the Trust have tried to engage with Mr Dunkeld over the past three months, and it is disappointing that he has yet to take up these offers as we believe that insight would help us in developing our approach to Freedom to Speak Up further”

Former nurse blasts Morecambe Bay Health Trust’s whistleblowing policy

 

 

Out of 47 recent whistleblowing contacts to CQC about Morecambe Bay, only one triggered a follow up inspection. CQC dealt with the rest of the concerns mostly by speaking to the trust or sticking the information in a drawer, purportedly to be used at the next inspection.

Notably in 2017, the CQC was contacted twice by trust whistleblowers about the trust slipping back into old ways:

 Concerns about returning to old practices to save money”

The CQC simply noted in its log that an investigation was ongoing.

As regards a 2015 disclosure of ongoing concerns about the breast cancer screening affair, CQC played pass the parcel with a related concern and appeared to it brush off with the conclusion:

Met with complainant. Matter raised with  Public Health England . This was a matter between the whistleblower, Public Health England and NHS England.”

Not only were significant patient safety failings revealed by a November 2014 Public Health England investigation report , but other evidence of patient harm continued to emerge in 2015: New calls for Morecambe Bay breast cancer review.

Moreover, Morecambe Bay has continued to gag staff, including whistleblowers. The trust was evasive when questioned about its practices in this area but eventually admitted that it had gagged two whistleblowers and spent £92,519 on legal services in two whistleblower cases.

In October 2016 the Health Service Journal lavished praise on Morecambe Bay for revealing that past trust managers had reached an irregular settlement with one of the midwives from the maternity scandal, which included an undertaking from the trust not to investigate her performance.

But beneath this razzamatazz, the trust failed to fully answer enquiries about whether or not there were other such past non-investigation agreements.  The trust disclosed a summary report which waxed lyrical about how much had been learned:

Morecambe Bay redacted summary report disclosed November 2016 FOI request 6065

A snapshot analysis of Employment Tribunal decisions about NHS organisations revealed that Morecambe Bay was in the top ten of employers most claimed against.

The trust has also scored poorly on the Workforce Race Equality Standard (WRES). There have been pledges to improve. Morecambe produced a glossy strategy document featuring the obligatory token gesture by a smiling CEO, with a zippy declaration slapped across the cover: ‘Our Journey to Effortless Inclusion’.

But the trust’s WRES score remains poor. 38% of BME trust staff reported bullying by other staff in the previous 12 months, compared to a national average of 27% for comparable trusts. 19% of BME staff reported experiencing discrimination in the previous 12 months, compared to a national average of 15% for comparable trusts.

Screen Shot 2018-04-20 at 07.02.49

University Hospitals of Morecambe Bay NHS Foundation Trust 2017 Staff Survey results

 

In view of the poor WRES scores, Morecambe Bay was asked about its governance with respect to Race concerns. It twisted and turned in response. The trust initially tried not to answer at all, and would not even confirm or deny that it had conducted or commissioned any review into its poor WRES scores. It speciously claimed that no data was disclosable under exemption 41 FOIA – information given in confidence.

Q5, 6 and 7 The Trust considers the request in questions 5, 6 and 7 exempt under Section 41 (1) of the Freedom of Information Act (2000) regarding the disclosure of confidential information The Trust considers this information exempt under Section 41 (1) (a) regarding information obtained by the public authority from any other person and (b) that disclosure would constitute a breach of confidence. We consider our obligation of confidence and will be unable to provide you with this information.”

After challenge, Morecambe Bay then delayed a response until two days after its outgoing CEO Jackie Daniel had been anointed and enthroned as the new CEO at Newcastle, following the acrimonious removal of Newcastle’s previous   CEO amidst recriminations of wrongdoing on both sides.

Morecambe Bay admitted that there had been Race concerns serious enough to warrant an external review by Prof Carol Baxter which had cost the trust a total of £25,000.

“The total cost of the external reviews commissioned by the Trust as referred to in our response to your question 5 was £25k.” 

 But the trust still maintained that none of the contents were disclosable.

The same FOI disclosure dated 2 March 2018, and received on 9 March 2018 revealed that a total 124 staff concerns had been raised through the trust Speak Up Guardian, but fewer than 5 of these related to Race issues.

The trust has also later revealed that 87 feedback forms were sent to staff who raised concerns through the Speak Up Guardian from April 2017 onwards, of which 32 (37%) had been returned.

In the course of the above wrangling with the trust about release of the data, a trust governor was copied into the correspondence. He commented:

“…as governors, we are aware of, and support, efforts made by the Trust to improve staff morale and the quality of relationships throughout the organisation. To this end we are aware that internal surveys of staff views in relation to the issues you raise are carried out on a routine basis, the results of which are shared with governors.

For my part I am confident that good work is being done by the Trust in these areas and that progress is being made.”

 Email 1 February 2018

One wonders if the trust has been totally open with its governors about the full extent and seriousness of its Race issues.

In complicated twist, it has just been reported that a white male surgeon alleges that he was persecuted at the trust for whistleblowing, and was subject to false Race allegations.

As for the CQC, it last rated Morecambe Bay as ‘Good’ overall (despite admitting that Morecambe Bay was sub-standard on ‘Safety’) and ‘Good’ on the well-led domain.

Screen Shot 2018-04-20 at 07.24.31

CQC inspection report on UHMBT February 2017

 

With regards to Race Equality, the CQC was contradictory – it largely gave Morecambe Bay a good report, but conceded that bullying of BME staff had increased.

Perhaps CQC’s Chief Inspector of hospitals should take another look at what are clearly very troubling and complicated issues of Equality and Diversity. Assuming CQC is bothered, and is not fettered by political instructions from on high.

 

RELATED ITEMS:

Race Discrimination by Public Health England

WRES, CQC and More NHS Hot Air on Race

Screen Shot 2018-04-20 at 15.37.01

Screen Shot 2018-04-20 at 15.42.39

 

 

Martin Morton social care whistleblower and Wirral Council

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

 

Whistleblowing cases can take years to resolve.

A very serious and interesting social care whistleblower case is that of Martin Morton’s whistleblowing about financial abuse of vulnerable adults who should have received care and protection by Wirral Council.

Morton was vindicated after a long fight, and the Council had to re-pay approximately half a million pounds to care home residents, that should not have been charged:

Wirral whistleblower Martin Morton’s six year fight for justice finally is over

The Equality and Human Rights Commission criticised Wirral Council for Disability discrimination:

Watchdog accuses Wirral Council of discrimination against disabled people

Morton’s case was featured by the specialist periodical Community Care, in which lack of effective protection for whistleblowers was highlighted:

Wirral social care whistleblower says “there’s not enough money in the world” to make uo for his family’s trauma

Notably, Morton successfully pursued his whistleblowing case using criminal harassment provisions, thereby underlining how serious whistleblower reprisal can sometimes be.

His case is important in helping to highlight the deficiencies of current civil UK whistleblowing law (the Public Interest Disclosure Act), which does not hold individuals responsible for misconduct and criminal behaviour in the course of suppressing and victimising whistleblowers.

His case also featured in reportage about widespread local authority use of gagging clauses:

Council whistleblower who signed gagging agreement speaks out

Morton is still seeking answers. The ICO ruled partly in his favour after the Council withheld a relevant report about the treatment of whistleblowers in its entirety.

ICO decision reference FS50649341

 

 

An Upper Tribunal (Administrative Appeals Chamber) will now hear an appeal for further disclosure at Field House, 15-25 Breams Buildings, London, EC4A 1DZ on 26 April 2018.

This is a blog about the forthcoming hearing:

Upper Tribunal (Administrative Appeals Chamber) case involving information request to Wirral Council by Martin Morton listed for public hearing on Thursday 26th April 2018

 

 

RELATED ITEMS:

UK Whistleblowing Law is an Ass: Helen Rochester v Ingham House Ltd and the Complicit CQC

Wirral whistleblower Martin Morton speaks up for truth and justice at Hillsborough Law event

Another call to the Chair of the parliamentary Health and Social Care Committee to examine the government’s lack of progress on whistleblowing

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 16 April 2018

 

Whistleblowers are crucial to the public interest and the protection of people’s rights, but can be viewed as a vexation by those in power, who want to stay in power.

Whistleblower protection will always be very hard-won. Parliament called for better whistleblower protection with two major reports, published respectively by the Public Accounts and Health Committees in 2014 and 2015.

There has been plenty of government spin since, but no real progress has been made.

The controversial case of Dr Bawa-Garba has caused much alarm about the professional risks that healthcare staff may face if they are forced to work in unsafe conditions over which they have limited control and in which speaking up is still risky.

I asked the Chair of the Health Committee a year ago to review the continuing failures of whistleblowing governance, and I understand that others have also asked for review. I now ask again.

All recent correspondence is laid out below.

 

 

BY EMAIL

Dr Sarah Wollaston

Chair of Health and Social Care Committee

16 April 2018

Dear Dr Wollaston,

Implications of Dr Bawa-Garba’s case and whistleblower protection

Thank you for responding to my previous correspondence of 10 March and 23 March, which for convenience I copy below.

Therein, you advise that the Committee does not review legal decisions and point me to Sir Norman William’s review on Gross Negligence Manslaughter.

To clarify, I did not write in the expectation that the Committee would review matters that are decided by the Courts.

Rather, I wrote to you about the conduct of the General Medical Council (GMC), and in my letter of 10 March I shared data that raised questions about the consistency of the GMC’s decisions. These were similar questions to those raised by the Committee itself especially with regards to possible Race bias. 

The Professional Standards Authority has also questioned why the GMC would deviate from case law established by the Supreme Court, in order to increase the severity of punishment against doctors:

PSA document disclosed via FOIA to the Health Service Journal (A)

PSA document disclosed via FOIA to the Health Service Journal (B)

I hope the Committee will help to ensure that there is fairness.

I am aware of the Gross Negligence Manslaughter review by Sir Norman, who also assisted Sir Robert Francis and the Department of Health with the Freedom To Speak Up Review. The recommendations from the Freedom To Speak Up Review were not strong. The relevant arms length bodies and the National Guardian’s office have over the last three years sought to further dilute even the modest help that Sir Robert proposed for whistleblowers.

In all, the Bawa-Garba case and other events leave doctors – and other Health and Social Care workers – in a cleft stick of being damned if they speak up, and damned if they do not.

The Secretary of State recently claimed misleadingly in a speech that 90% of staff who had raised 4600 concerns with Freedom To Speak Up Guardians would do so again. He also tweeted the misleading claim:

Screen Shot 2018-04-16 at 13.24.03

This figure of 90% was a flawed, unpublished statistic supplied by the National Guardian’s Office, the very body charged with upholding values of transparency and accountability.

The UK Statistics Authority has confirmed that the statistic was unpublished, and advised that it will write to the National Guardian’s Office to make suggestions for improvement. Discussion continues on the matter, and I will share further evidence with the Committee about these irregularities.

The truth is there is still no effective, reliable protection for Health and Care workers who speak out, at a time when service quality is deteriorating and there is a great deal of unsafe unmet need to report.

But whistleblowing to the Care Quality Commission is in fact decreasing, to the point that the Public Accounts Committee recently advised that the CQC should ensure that whistleblowers can be confident in contacting the Commission. (Page 7, Section 6)

And yet the conduct of the regulator itself is likely to be part of the problem, for example by admitting to breaches of whistleblower confidentiality but refusing to transparently audit its practice.

I wrote to you almost exactly a year ago to ask if the Committee might hold a follow up hearing on whistleblowing, particularly as its recommendations from January 2015 have not been implemented by the government to any real degree. I do not know of any whistleblower who has received genuine ‘apology and practical redress’ as set out by the Committee. (Page 36, para 115)

In fact, I know only of a single, seriously harmed whistleblower who has received an apology, which they consider is insincere because the DHSC has not helped to remove blacklisting.

I wonder if you would consider a follow up inquiry, as the failures of protection continue, at a serious cost to patients:

Of Arbitrarness and Arbiters: The Freedom To Speak Up Project Three Years On

There are concerns about whether the National Guardian’s Office is reviewing enough cases, selecting cases for review in a fair way and being open and accountable about its activities. The Office has  disclosed via FOIA that it spent more on comms than on establishing the Speak Up Guardian network. It has also announced only three case reviews, which focus on systems and not on helping individual whistleblowers in difficulty.  Further evidence will be shared with the Committee in due course.

With best wishes,

Dr Minh Alexander

Cc

Health and Social Care Committee

Harry Cayton CEO Professional Standards Authority

David Isaac Chair ECHR

Rob Behrens PHSO

Dr Philippa Whitford MP

Meg Hillier MP Chair of Public Accounts Committee

Secretary of State for Health and Social Care

Minister of State for Health and Social Care

Sir Terence Stephenson Chair GMC

 

CORRESPONDENCE FROM CHAIR OF HEALTH AND SOCIAL CARE COMMITTEE 16 ARPIL 2018

 

Dear Dr Minh Alexander,

Please find attached a letter from the Chair of the Health and Social Care Committee, Dr Sarah Wollaston MP.

Kind regards,

Health and Social Care Committee

House of Commons | London | SW1A 0AA

 

 

Screen Shot 2018-04-16 at 12.59.03

 

CORRESPONDENCE 23 MARCH 2018:

 

 

BY EMAIL

Health Committee

23 March 2018

Dear Dr Wollaston and colleagues,

Re Consistency of GMC decisions on erasure of doctors after convictions after conviction for criminal offences

I wrote to the Committee on 10 March to pass on disclosed GMC data, which showed that in the five years between 2013 and 2018, 50 out of 73 doctors subject to Fitness to Practice proceedings as a result of sexual offences were subsequently erased from the register.

The i newspaper published an article yesterday about the statistic of ‘1 in 3 doctors convicted of sex offences still able to practice medicine’, after it liaised with the GMC about these figures.

Today, the GMC has advised that it supplied incorrect data and that 60, and not 50 of the 73 doctors were struck off.

The relevant correspondence from the GMC is copied below

Yours sincerely,

Dr Minh Alexander

 

From: “Simon Willis (0161 923 6310)” <***********************>

Subject: RE: Your Information Access Request – F18/9323/SW

Date: 23 March 2018 at 13:32:15 GMT

To: Ian Alexander <************************>

 

Dear Mr Alexander,

I have noticed a typographical error in my email below and I am writing to provide you with the correct information.

In respect of your question 2, the number of doctors struck off was actually 60.

I apologise unreservedly for my mistake and for any inconvenience caused.

Yours sincerely

Simon Willis

Information Access Officer

Resources & Quality Assurance Directorate

 

 

LETTER 10 MARCH: 

BY EMAIL

Health Committee

10 March 2018

Dear Dr Wollaston and colleagues,

Re consistency of GMC decisions on erasure of doctors after conviction for criminal offences

I write to submit evidence pertinent to the debate around the case of Dr Bawa-Garba.

  1. The GMC has admitted via FOIA that it has no policy on the automatic erasure of doctors convicted of gross negligence manslaughter.

This is despite its chief executive Charlie Massey asserting that the GMC had no choice but to seek erasure after Dr Bawa-Garba’s conviction for gross negligence manslaughter, implying automaticity.

The GMC is clearly more open to questions of arbitrariness and discrimination in the absence of a clear policy.

  1. The GMC has admitted via FOIA that in the last 5 years it has chosen not to seek erasure in one third of cases where doctors had been convicted of sex offences (23 out of 73).

It seems a peculiar and unjust state of affairs when the GMC overrides its own Tribunal to strike off a doctor who made errors that the Tribunal considered were not made recklessly,

 

Medical Practitioners Tribunal Service decision 13 June 2017:

“There is no evidence to suggest that your actions on 18 February 2011 were deliberate or reckless.”

https://minhalexander.files.wordpress.com/2018/03/mpts-dr-hadiza-bawa-garba_13_june_2017.pdf

 

but it applies lesser sanctions to doctors who have been convicted of wilful, often premeditated, criminal sexual offences.

This is the FOI correspondence with the GMC and the disclosed data which is summarised above:

https://minhalexander.files.wordpress.com/2018/03/gmc-foi-response-on-erasure-for-sex-offences-and-policy-on-gross-negligence-manslaughter-9-03-2018.pdf

Yours sincerely,

Dr Minh Alexander

Cc

Harry Cayton CEO Professional Standards Authority

David Isaac Chair ECHR

Rob Behrens PHSO

Dr Philippa Whitford MP

Secretary of State for Health and Social Care

Minister of State for Health and Social Care

Sir Terence Stephenson Chair GMC

 

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After the Bawa-Garba judgment: Some responses from the Court of Appeal, CPS, Criminal Cases Review Commission and GMC

Waste Industry: Abuses of the NHS Disciplinary Process & Dr John Bestley