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

By Dr Minh Alexander, Martin Morton, Greg Lawton and Clare Sardari, 19 October 2018

 

The vast majority of UK whistleblowers who have litigated do not have a good opinion of current UK whistleblowing law, the Public Interest Disclosure Act 1998

This is an updated collation of what whistleblowers say about the law, and how it failed them and the public, and what changes they think are needed:

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

Law reform is much resisted. But there is nevertheless a growing debate about the need to radically improve the law because major disasters like Gosport show the devastation that can be caused by ignoring whistleblowers

It is important for whistleblowers to have a voice in the creation of any new law, and to be as well prepared  as possible when the time comes for a new law to be drafted.

Whistleblowers do not need to be passive recipients of PIDA II, or to face another twenty years of  ineffective law handed down by those who may not care as much.

Whistleblowers are experts by experience who can help shape law. They can spot and understand things that others cannot.

As a contribution to the debate, we have set out in plain English how a new whistleblowing law might work:

DISCUSSION DOCUMENT: PUBLIC INTEREST PROTECTION BILL

We offer it to stimulate debate, for ideas to be tested and improved or replaced, and for barriers to be identified. If you disagree or have suggestions, we would be delighted to hear. Equally if you agree, please let us know too.

Our proposal maps broadly onto the main suggestions that whistleblowers have made for improving the law, in response to the recent call for evidence.

It is very much written from the perspective of whistleblowers’ practical experience, including of the lengths that institutions may go to in order to cover up.

In brief the proposed law offers:

  • Timely, mandatory investigation of concerns
  • An active duty to protect whistleblowers from the outset
  • A mechanism for early resolution of conflict
  • A means of ordering remedy without the need for litigation
  • A range of civil and criminal penalties against individuals
  • A means of funding legal representation for whistleblowers through a mandatory insurance scheme for employers
  • Expansion of protected groups – the example of patients and families who speak up is explored

We value all feedback and would be grateful to hear what you think.

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

By Dr Minh Alexander and Clare Sardari NHS whistleblowers 18 October 2018 (updated 22 October 2018)

As preparation for a whistleblower-led event on 19 October 2018 about reforming wholly ineffective UK whistleblowing law, we asked fellow whistleblowers who have litigated under the Public Interest Disclosure Act 1998 (PIDA) to contribute brief testimony on their experiences.

We also asked fellow whistleblowers to contribute ideas for improving the law.

A concise summary report of thirty one whistleblowers’ views, and also information from other whistleblowers who did not litigate and supporters who contacted us, is set out below.

The link to the full report with each whistleblower’s testimony can be found: here.

This evidence will be shared with parliament and other decision makers to inform the growing debate on the need to replace PIDA.

The campaign continues and whistleblowers would be very grateful for any support the public can lend. Protecting whistleblowers protects us all. If you are able, it helps greatly if people can write to their MPs in support of our campaign.

If it is helpful, a handy template letter for writing to MPs can be found: here.

Thank you to all and thank you especially to all whistleblowers who poured very personal and hard won experience into this project. We hope it will all count, no matter how long it takes.

Minh and Clare

 

WHISTLEBLOWERS IN THEIR OWN WORDS: WHAT’S WRONG WITH UK WHISTLEBLOWING LAW & HOW IT NEEDS TO CHANGE

“PIDA provided protection not for me but for my then employer.” (whistleblower 9)

INTRODUCTION

 UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA) was an innovation when it was first introduced, but it has fallen far behind international best practice. PIDA is wholly ineffective and needs to be replaced.

A  comparative study by Blueprint for Free Speech in 2016 which set PIDA against international best practice standards of whistleblowing legislation found the Act sorely lacking.

This paper tells the story of PIDA’s failings in UK whistleblowers’ own voices, and is part of an initiative on law reform led by whistleblowers who were members of the National Guardian’s advisory working party for a fixed term 2017-2018. The initiative has been conducted independently of the National Guardian’s Office. It seeks to present evidence from various sources on the vital need for new, radically improved UK whistleblowing law.

SUMMARY

Thirty one whistleblowers who have litigated under PIDA gave first-hand accounts of the problems with the law. Their individual accounts and ideas for change are listed individually below.

Whistleblowers were invited through an open process to submit brief testimony. The process did not include examination of individual cases and facts, but most individuals were known to the authors or to other whistleblowers.

The whistleblowers came from a range of sectors, public and private, including policing, education, industry, local government, health and social care.

Their accounts collectively reveal failures under PIDA to investigate whistleblowers’ concerns, protect them or hold wrongdoers to account. Whistleblowers’ feedback and suggestions amount to a call for replacement of the existing framework. A range of suggestions are made for levelling the playing field, which currently is hopelessly slanted against whistleblowers.

 

PIDA’s failure to ensure that whistleblowers’ concerns are addressed

A prime concern was PIDA’s disinterest in whistleblowers’ disclosures:

 ‘…the most astonishing thing to me was that no one is obliged to investigate the concerns raised’. (whistleblower 15)

 Deaths, abuse, theft and gross governance failures are of no interest to a law that focuses only on the employment relationship:

The ET had no interest in my employer’s failures regarding POVA or in not following policies.” (whistleblower 6).

 The home’s mortality rate quadrupled. Only a fraction of my complaints were investigated by the local Care Trust” (whistleblower 12)

 “Theft, abuse, poor care is not an employment issue.” (whistleblower 2)

 “…the ET judge is only interested in employment issues and can disregard protected disclosures” (whistleblower 20)

 

Lack of protection and detriment due to the litigation process itself

The lack of protection from the law was another key feature. Detriment occurs easily and is not corrected under PIDA.

It is arguable that PIDA protects employers, not whistleblowers:

“PIDA provided protection not for me but for my then employer” (whistleblower 9)

The litigation process itself is a source of detriment:

“Litigation is exhausting, soul destroying, wasteful and bad for all involved. It is often a serious trauma in itself.” (whistleblower 1)

 “I won at tribunal but it didn’t feel like a win I felt battered and left with little confidence about myself.” (whistleblower 2)

PIDA’s prejudicial complexity, which disadvantages ordinary people seeking justice, was noted:

“The burden of proof is on the claimant to prove that each disclosure meets a number of legal tests and is therefore “qualifying”. This assumes that claimants have an understanding of the law (PIDA) at the time at which those concerns were raised. Most claimants have no knowledge of this highly complex area of law” (whistleblower 9)

The highly distressing, often futile nature of legal proceedings under PIDA is described in these first-hand accounts. Character assassination and various other tactics by employers to intimidate and punish are recurring issues.

For example, dragging out proceedings, intimidating witnesses, gagging under duress, threatened and actual vexatious cost orders, aggressive appeals to deplete whistleblowers’ resources, concealment of evidence, conspiracy and misleading the Court. Whistleblowers expressed concern that frank lies under oath and defamation are tolerated in proceedings.

As an example of fabricated allegations being used as a bargaining tool to remove whistleblowers from organisations, whistleblower 16 gave this report:

There was a “settlement” on the second day of the Tribunal proceedings…. Incredulously, based on my fight, every single complaint against me (albeit all false) were withdrawn and quashed; which proves they were all false and fabricated”

Grotesque inequality of arms was reported in some cases, such as the matching of an employer’s QC against a care home worker (whistleblower 2). The fact that some whistleblowers might be disadvantaged by illness by the time cases are heard was flagged: ‘…a claimant at tribunal who might be ill or stressed’ (whistleblower 24).

 Whistleblowers thought the extreme stress of litigation should be avoided: “Litigation should be a last resort” (whistleblower 5). The sense of personal burden upon whistleblowers under PIDA was described. For example:

“The employer was an accountant who covered up. I reported him to the ICAEW and he got a fine. I got a solicitors’ bill.” (whistleblower 2)

 Highlighting how vulnerable whistleblowers can be, and how dependent they currently are on a complex chain of events, one whistleblower’s claim failed because their adviser failed to tick the box on the Employment Tribunal claim form for whistleblowing. (whistleblower 21).

There were indications that Employment Tribunals were not expert enough on whistleblowing. For example, whistleblower 5 was penalised for not accepting a trial return to work related to a loss of trust, when trust is critical to a whistleblower’s safety and well-being:

My remedy hearing failed to account for loss of future earnings because under employment law I had not accepted a trial return to work with my previous employer because of a breakdown in trust.”

 There was incredulity from some whistleblowers that despite being accepted as a whistleblower, the Court found reasons to deny any link with detriment:

“At my ET the judge forced my employer to admit that 15 of my 22 allegations were protected disclosures.  But said he was not interested in the facts of these allegations, only in whether my employer had a valid reason to dismiss me.  The reason accepted for my dismissal ‘A breakdown in the relationship.’  No consideration as to who was at fault for the breakdown!” (whistleblower 20)

 

Failed duty of care and collusion between bodies

A concern was expressed that as long as the law was allowed to be perverted, law reform may be in vain:

As long as the courts allow them to maintain this state no legal refinement will be effective, but rather, will perpetuate even more complicated legal processes ruled by unaccountable institutions with access to unlimited public funds.” (whistleblower 21).

Many of the whistleblowers reported concerted inaction or collusion between bodies, and regulatory complicity in cover ups and reprisal:

“I went to the local clinical commissioning group, NHS Monitor, the CQC and the Parliamentary Health Service Ombudsman. I then went to the police, the CPS and the Crown Court on every occasion I was ignored. Wherever I turn I found that there was no organisation that would listened to me or able to offer any constructive advice or support.” (whistleblower 4)

 My professional regulator failed to protect me or to hold to account those who made false allegations” (whistleblower 12)

 My concerns were not addressed. I believe there was collusion between managers and between bodies, including ministers and regulators, who breached my anonymity and closed ranks.” (whistleblower 15, who discovered collusion and breach of their anonymity through a request under the Data Protection Act)

 Nor do I have any confidence in regulators. They also all let me down.” (whistleblower 10)

 Some whistleblowers reported seemingly very odd decisions by the Employment Tribunal itself. A police whistleblower who raised concerns about false arrests reported:

 I lost my claim as the employer would not accept my concerns were raised as a whistleblower which the ET panel went along with.” (whistleblower 17)

Another whistleblower was devastated by this completely unexpected ruling:

The Tribunal made a shock, illegal finding against me. It erred in law and held that I whistleblew in bad faith. This allowed my employer to pursue me for £100,000 costs which would have ruined me. I thought about suicide.” (whistleblower 22)

Some whistleblowers reported being let down or even coerced by their unions:

“My complaint was investigated under bullying and harassment, my unison rep threatened me into accepting this.” (whistleblower 25)

 The union advised drawing a line under the complaint & were not supportive.” (whistleblower 6)

There were mixed perceptions about the organisation Protect (formerly Public Concern at Work) which many employers advise workers to contact for advice on whistleblowing. Some whistleblowers did not feel supported:

“I contacted Public Concern at Work (PCAW) but they were frankly hopeless and did nothing to help me” (whistleblower 4)

 “I was advised by ACAS and PCAW. They said to let it go, settle for a paltry sum. It was not about money but abuse.” (whistleblower 2)

Some whistleblowers reported that the National Guardian’s Office and or their local trust Guardian had ignored and let them down:

“I have no confidence in the Freedom To Speak Up project. It failed me completely. Indeed, the non-exec’ director with responsibility for whistleblowing has still to contact me after my dismissal.” (whistleblower 10)

 “I was sacked following a sham disciplinary, not supported by my Union not supported by Trust Guardian nor by the National Guardian despite there being adequate time to prevent my sacking or at least to have reviewed the spurious evidence the Trust was using to sack me” (whistleblower 3)

 

 Poor outcome and remedy

Whistleblowers highlighted the wastefulness of litigation under PIDA, PIDA’s inefficiency in terms of the high cost of litigation relative to compensation and a sense of being exploited:

I conservatively estimate that my case cost the NHS over £250K and I know of other cases that have cost considerably more.” (whistleblower 4)

The standard compensation that I received for ordinary dismissal does not reflect my real loss at all, and it was consumed by legal costs. The litigation was also a waste of public money.” (whistleblower 15) 

I ‘won’ my case at ET but my concerns were buried and my compensation was swallowed up by legal fees. I was led a merry dance by lawyers who did not have my best interests at heart or care about the public interest.” (whistleblower 11)

The insufficient calculation under PIDA of loss, and PIDA’s failure to recognise human rights such as the right to family life, was flagged:

Due to the witchhunt, I have to work abroad. I see my family only once a fortnight, overnight…. ET’s should be able to award compensation for intangible losses (like, in my case, loss of contact with my family, friends, relatives and family home for the next 8-9 years).” (whistleblower 10)

Blacklisting was reported, and in relation to this, the pyrrhic nature of ‘winning’ a case under PIDA was noted:

“After taking legal action I was given compensation which mainly covered my legal fee and apology letter from DH. But I stayed black listed and never allowed to work in NHS again.” (whistleblower 12)

 Long term unemployment was reported:

“My employer tried their best to destroy me.  In the long-term, they have. I lost everything, including my home and have not worked since.   The school I worked at, having denied everything I reported, eventually changed most of the systems I reported and eventually got rid of the Head.” (whistleblower 20)

 

Lack of accountability for wrongdoing and reprisal

A serious recurring criticism by whistleblowers was that PIDA has not ensured accountability:

“The wrong doers who were involved in my case were promoted.” (whistleblower 12)

“Those responsible for the detriment I experienced were not personally held to account and were later feted by CQC.” (whistleblower 5)

Over the years, I watched those who lied and who victimised me promoted.” (whistleblower 11)

“….most of the offenders remaining free to carry on to work with vulnerable patients” (whistleblower 19)

 

Miscellaneous issues from non-litigated cases

The core respondents to the exercise were whistleblowers who had litigated.

Several whistleblowers who had not litigated contacted us to share concerns about problems of access to the legal process. These primarily related to problems with union support and unfavourable merits assessment by union lawyers.

An example of such an account is given in Annex 1.

Gagged whistleblowers are another significant group.

Whistleblowers know that gagging continues on a widespread basis and is tool of fear that prevents full transparency.

Settlements which prevent signatory from even revealing the existence of a settlement are particularly intimidating and arguably exist only to subvert the public interest.

Additionally, it is known that several local authorities and NHS employers have seriously overstepped by coercing whistleblowers into accepting gags which questionably sign away rights to make Freedom of Information requests and requests for personal data.

A former NHS medical director who has supported whistleblowers who had been silenced shared a report describing systematic collusion by bodies to silence whistleblowers and protect institutional reputations. The medical director reported huge costs to the public in terms of the destruction of clinical units which took decades to build and were hubs of clinical excellence, research and data, as part of the collateral damage of suppression. These type of costs due to poor whistleblowing governance are very serious, but often overlooked.

Lastly, highlighting important gaps in the list of protected groups, a former NHS non executive director has given an account of the resistance and reprisal that they encountered when raising concerns.

Non-Executive Directors are among several groups not covered by the Public Interest Disclosure Act. Despite recommendations to the contrary, the Government has refused to extend the limited protection PIDA offers to employees to such groups. I became aware of this after raising questions in my role as a Primary Care Trust Non-Executive Director, described by the Chair of the Strategic Health Authority as causing “disruption”. I wrote to the SHA Chair, explaining my concerns about “risk management, governance and public confidence”, adding that if he genuinely believed I caused disruption he could “use the procedure available to you to have me removed as a Non-Executive Director from the NHS”. He initiated an inquiry which he told me found my concerns to be “completely unfounded”. I submitted a complaint to the SHA about the inadequate investigation, which was dismissed.”

 This is a critical matter because part of the NED role is to provide balance and challenge. In many organisations, a NED is the designated Board lead for whistleblowing. If the person to whom all whistleblowers in the organisation are supposed to turn for help is not protected, this makes a sham of the whole system.

 

What changes to the law are needed?

 The following is a broad overview which captures the broad gist of the suggestions from whistleblowers who contributed.

 Whistleblowers ask for a statutory requirement for their concerns to be investigated, and for a statutory duty upon bodies to protect them and their anonymity, from the point at which they whistleblow.

Whistleblowers ask for an element of independence in investigations about their concerns, and for an independent body to enforce statutory protections.

Whistleblowers also ask that the law ensures greater accountability for and deterrence of wrongdoing and reprisal, by providing penalties against individuals.

There is an overall view that employment law is far too narrow to deal with the complexity of whistleblowing, and that fundamental reform of the framework is needed, to allow appropriate handling of concerns, provide criminal sanctions and other mechanisms.

Whistleblowers stress the importance of dealing with wrongdoing, for example:

“Therefore, the legislation should:

  1. Focus on wrongdoing, and
  2. Not on the employment relationship”

(whistleblower 9)

There is a suggestion to add whistleblowing to the Equality Act:

“Whistleblowing should be a protected characteristic under the Equality Act. (Whistleblower 10)”

Some whistleblowers suggest that the way the law views whistleblowers should fundamentally shift, for example from plaintiff to ‘victim of crime’ (whistleblower 29).

It follows that the State should take therefore greater responsibility for protecting such a witness:

“We need new law that recognises whistleblowing is centrally about public safety and fundamental rights, not some trivial, unedifying employment spat. The law needs to powerfully protect the public interest by creating conditions in which it is easier to speak up, and much harder to persecute those who do. Whistleblowers shouldn’t be bullied by the government by being left to defend themselves against overwhelming force of arms from employers, but actively shielded and lifted out of detriment. Litigation should be avoided where possible” (whistleblower 1)

There are suggestions for earlier intervention:

“The law should be strong enough to prevent serious detriment in most cases” (whistleblower 1)

There are suggestions for revising the causation test which links detriment to whistleblowing, to reduce what is currently too high a hurdle. For example, the law should be changed so that failures to investigate and process a whistleblower’s concerns properly are taken “taken into account by the ET Panel.” (whistleblower 16)

An ET must look at the concerns raised and how they were handled as well as any detriment suffered by claimant.” (whistleblower 6)

 An employer’s failure to follow it’s own policies concerning whistleblowing, disciplinary investigations etc. & safeguarding the public interest should also be taken into account at ET in all claims.” (whistleblower 6)

 Another proposal for tipping the scales more fairly towards whistleblowers is to make other detrimental acts against whistleblowers, besides dismissal, automatically unfair. For example, exclusion. (whistleblower 21)

There are suggestions that concealment and causing serious detriment to a whistleblower should be classified as a crime, for example, under Misconduct In Public Office.

“Would-be abusers should know that they risk heavy fines, disbarment and jail time if they indulge in serious misconduct and cover ups.” (whistleblower 1)

 “Substantial fines for poorly investigated cases. Substantial fines for keeping whistleblowers from work” (whistleblower 25)

 Specifically, it is suggested that not only should employers be held to account, but that other parties who harm or fail whistleblowers should be liable. For example:

“…criminal liability for serious whistle-blower retaliation and for obstructing/perverting the proper functioning of the legal process, and it should hold regulators, other officials and government departments to account for failing whistleblowers.” (whistleblower 10)

 There are suggestions for improving remedies to ensure that all loss is fairly accounted for, including intangible loss such as disruption to family life.

Mechanisms for addressing legal inequality of arms are suggested, for example:

“Legal fees should be waived for all whistleblowing cases.” (whistleblower 25)

 “The law should make legal aid provision for the whistle blower, but also insist that the organisation involved is limited to one legal team” (whistleblower 28)

Special training for lawyers, judges and union representatives who deal with whistleblowing cases is suggested.

The information from non-litigated cases raises the following issues for any law reform project:

  • Access to trade union support
  • Addressing gaps in protected groups, such as non executive directors

The use of gags in settlements, especially clauses which hide even the existence of settlements or which flagrantly breach rights by prohibiting access to data under FOIA and DPA, also needs to be addressed by any new whistleblowing law.

 

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PIDA ASS (2)

 

 

WHISTLEBLOWER 1 

Difficulties that I have experienced in using the Public Interest Disclosure Act:

I’ve whistleblown on serious matters several times in my career, before and after PIDA came into force. I’ve been vindicated in my concerns. There’s never been reliable protection nor full investigation of all concerns. It’s just happenstance, depending what individuals were in the mix. I’ve known both honest and crooked bosses. Diligent and collusive regulators. Ministers who took some action and others who deflected everything. PIDA is a bed of nails for whistleblowers, especially first time flyers with high hopes. The language of PIDA is dishonest: the word ‘protect’ crops up everywhere. Governments repeat it ad nauseam. Yet PIDA is only a poor remedy after the event, if you’re very lucky. It’s easy for employers to attack you under PIDA. Its worst feature is that it ignores your concerns. Litigation is exhausting, soul destroying, wasteful and bad for all involved. It is often a serious trauma in itself.

How I think the law should change:

 We need new law that recognises whistleblowing is centrally about public safety and fundamental rights, not some trivial, unedifying employment spat. The law needs to powerfully protect the public interest by creating conditions in which it is easier to speak up, and much harder to persecute those who do. Whistleblowers shouldn’t be bullied by the government by being left to defend themselves against overwhelming force of arms from employers, but actively shielded and lifted out of detriment. Litigation should be avoided where possible. The law should be strong enough to prevent serious detriment in most cases, and it should restore all loss. It should be compulsory to investigate whistleblowers’ concerns and there should be a fully independent agency to ensure compliance and protection. Would-be abusers should know that they risk heavy fines, disbarment and jail time if they indulge in serious misconduct and cover ups.

 

 

 

 

 

 

 

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

 By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 14 October 2018

 

 The Public Interest Disclosure Act 1998 and Prescribed Persons

It has often been said that the genius of the British ruling classes is that they know when to give in.

More accurately perhaps, it should be described as knowing when to pretend to give in.

The twenty year history of utterly ineffective UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA), is scattered with token concessions. Small adjustments have given the semblance that governments have listened to concerns about the law’s inefficacy. In fact these changes just kicked the can down the road allowing governments to rest on their laurels, and to block real reform.

The ‘Prescribed Person’ system  is a labyrinthine appendage to PIDA which on close examination amounts to nothing at all. It is a disparate collection of organisations and individuals, some of whom are not regulators and who have no real responsibilities towards whistleblowers under the law. Prescribed persons are appointed by the government of the day.

Under PIDA, prescribed persons originally only had a duty to receive and record disclosures from whistleblowers. Since April 2017 they have come under an additional duty to publish minimal annual data about the whistleblowing disclosures they receive.

Under PIDA, workers may be legally ‘protected’ if they make a disclosure to a prescribed person. But they must make their disclosure to the right prescribed person. It is easy to get wrong. And how is an ordinary member of the public to know? This important point was raised by Dr Philippa Whitford in a parliamentary debate which she led on PIDA on 18 July 2018.

National Audit Office’s 2015 review of prescribed persons

In 2015 the National Audit Office (NAO) examined the function of Prescribed Persons. NAO reviewed itself and five other prescribed persons. The auditor’s report coincided with the publication of the report of the Freedom To Speak Up Review on NHS whistleblowing. NAO’s attempt to paint a picture of much system activity was somewhat overshadowed by the fact that this activity came seventeen years after PIDA’s launch and the introduction of prescribed persons.

NAO reported that the government, through the Department of Business, Innovation and Skills (BIS), had “begun to provide support to the network of prescribed persons”.

Research by Middlesex University undertaken just two years before NAO’s 2015 review had found significant frailties in the Prescribed Persons system, including lack of training and funding when the role was established. A questionnaire by Prof David Lewis and Aaron Phillips of Middlesex University revealed that some Prescribed Persons did not even know that they were Prescribed Persons. Indeed, NAO as one of the prescribed persons surveyed, did not seem to know what it was doing. It did not complete the research questionnaire:

Blog NAO Lewis paperSource: Whistleblowing to Regulators. Are Prescribed Persons Fit for Purpose? Arron Phillips and David Lewis Middlesex University 2013

NAO’s 2015 review did not dig as deep as the 2013 Middlesex University research. It narrowed its sights to case studies of just five prescribed persons:

Care Quality Commission

Financial Conduct Authority

Health and Safety Executive

Independent Police Complaints Commission

Office of Rail Regulation

Whilst NAO acknowledged that some staff within prescribed bodies did not have a good understanding of the prescribed person role, it was upbeat overall:

“We found a positive approach to continuously improving procedures. All the prescribed persons we assessed have recently carried out, or are in the process of carrying out, some review of their activity or guidance”.

This observation contained Whitehall’s signature promissory note – ‘We’re on the case, learning from doing, it will be better etc’.  Only so many notes of this sort can be penned before people get restive.

NAO touched lightly upon the fact that the law provided no protection to whistleblowers and that it did not require prescribed persons to investigate whistleblowers’ concerns. However, it made no comment on the fitness of the law. NAO has advised that it is unable to participate in formulating policy, to the extent that it cannot even attend an event on 19 October on failure of current whistleblowing law:

Email from Amyas Morse’s office 4 September 2018: “I am sorry to say that we cannot attend this event as we would then be involved in supporting a change in legislation which would give effect to a policy, and we are specifically excluded from that area.  It is possible that we may be called on to examine the policy impact assessment at a later date, should the legislation change.”

 The recommendations of NAO’s 2015 report were ultimately peripheral. The auditor suggested no remedy for the core problem of defective law.

 

The government’s failure to act upon NAO’s 2015 recommendations about Prescribed Persons

Of concern, a BEIS FOI response 2018/19127 of 14 September 2018  showed that BEIS had not actioned the specific recommendation that NAO made in 2015 for the government:

Blog BEIS foi response

Granted, these last few years have been tumultuous, but whistleblowing governance always seem to end up at the back of the queue. This lapsing backing into indifference after the press conference has been given and headlines are achieved, is very typical of how power behaves on issues of whistleblowing.

 

A failed attempt to make prescribed persons aware of serious whistleblower cases which reached the Employment Tribunal

In 2010, one of the token government concessions was to add a mechanism for alerting prescribed persons to whistleblowing cases that came before the Employment Tribunal.

The stated rationale was thus:

The Government committed to explore whether there was a practical process to allow the substance of allegations giving rise to PIDA claims to employment tribunals to be forwarded to the relevant regulator so that the allegations of the underlying issue can be investigated where appropriate by the regulator”

This was a theatrical touch given that the government had failed to confer a legal duty upon prescribed persons to investigate whistleblowers’ concerns.

Since 2010, many distressed whistleblowers have ticked the box on their ‘ET1’ claim form in the innocent hope that that someone would finally address their concerns.

Blog ET1 claim form

It was just another unkind hoax. By 2013, when BIS reviewed PIDA,  By 2013, when BIS reviewed PIDA, it received submissions advising that this system of notification was not working.

Analysis of responses 

 Concern was raised around the ET referral process because the ET cannot always easily identify the appropriate prescribed person to refer an issue to. It could be argued that this is beyond the ET remit. The point was also raised that the time it takes an ET claim to get through the system (with some cases taking longer than a year), may negate the need for the information to be referred as the issue may have already been resolved. 

The Government recognises that the ET referral system should be a useful tool to give prescribed bodies more information than they may currently have, to enable them to consider trends and to pick up issues which may not have ordinarily been brought to their attention. This referral could play a more strategic role in ensuring the matter about which an individual had blown the whistle, is investigated by the appropriate regulator.”

In response to these concerns, the coalition government made this promise:

To address the concerns raised, the Government will analyse the current referral system in place, working with HMCTS and prescribed bodies, to collate numbers and evaluate its effectiveness. As part of this work, the Government will look at a sample of ET1 forms specifying a referral to prescribed persons to understand if this happened and if not, what the reasons behind this are, with a view to making changes if this is the appropriate course of action.”

I asked HMCTS  what systems and guidance it had in place for Employment Tribunal staff to ensure that the ET1 notification process worked, and whether it had undertaken any audits of the process.

HMCTS advised thus about its internal process:

I can confirm that the HMCTS provides standardised guidance to offices in relation to claims accepted under the Public Interest Disclosure (Prescribed Persons) Order 1999(a) in accordance with the provisions set out in the Employment Tribunal rules of procedure 

www.gov.uk/government/publications/employment-tribunal-procedure-rules

Internal administrative guidance states:

‘If an accepted ET1 includes a claim under the Public Interest Disclosure Act, the vetting clerk should check if the box at question 10.1 of the form has been ticked. If it has, the claimant is giving their permission for the claim form to be copied to a relevant regulator in cases where there are allegations of underlying issues such as serious fraud, health & safety violations, care home standards etc. If the box has been ticked, do not forward a copy of the claim form direct to the regulator. A copy of the form should be sent via email to:

EmploymentJurisdictionalSupportTeamInbox@justice.gov.uk with the subject ‘PID Whistleblowing claim’ in the subject heading.’

Relevant claims are forwarded to and processed at a central location, and the parties are notified which regulator(s) the claim has been referred to.”

It would seem there is some attempt by HMCTS to introduce order through centralisation of this specialist work, to identify the correct regulators, but is it working? Are local Employment Tribunal offices aware of the protocol and adhering to it? Is the jurisdictional support team competently trained?

Anecdotally, there is still evidence of problems. For example the following case of a whistleblower who raised concerns about a major private healthcare provider. Their ET1 form should obviously have been copied to the Care Quality Commission. Instead, the whistleblower received a note from the Employment Tribunal Jurisdictional Support Team on 5 December 2017 advising that it had been ‘unable’ to identify the relevant regulator for forwarding:

Blog Noel Finn ET1 prescribed person notification letter

 

Continuing failure of the system for notifying prescribed persons of whistleblowing cases which reach the Employment Tribunal

FOI requests were made to prescribed persons in August 2018 about the numbers of ET1 notifications that they had received. When compared against  ACAS FOI data on the number of whistleblowing claims lodged with the Employment Tribunal, this suggested that only a small proportion of ET1 forms are forwarded to prescribed persons.

Alternatively, some of the of ET1 notifications that are received by prescribed persons may not be correctly logged.

The figures quite possibly suggest that there is a large element of failure by HMCTS to ensure that ET1 intelligence is passed on safely to prescribed persons.

This spreadsheet summarises FOI responses from 42 major prescribed persons and a selection of 60 local authorities on the number of ET1 notifications received from the Employment Tribunal during the April 2016 to March 2018:

Summarised 2018 FOI responses from prescribed persons about ET1 notifications 2016/17 and 2017/18 

All local authorities are prescribed persons for food standards, health and safety and consumer protection, but surprisingly they rarely seem to be sent any ET1 notifications by the Tribunal. Forty-eight out of a sample of sixty local authorities had either not received any ET1 notifications, or held no data about ET1 notifications.

Past FOI work by others has revealed that some local authorities are unaware of their prescribed person status. The responses to these latest FOI requests suggested that this is still the case. Several local authorities required clarification of the FOI questions because they were confused between ET1 claim forms received as an employer being sued, as opposed to those received as prescribed person being notified of potential wrongdoing:

Please can you clarify your request.  ET1 claim forms are used to make a claim to an employment tribunal – and are not sent by the claimant to the council.  Please could you further explain your request.”

Nottinghamshire County Council flatly denied that it was a prescribed person at all:

“The council is not classed as a Prescribed Person and therefore does not hold any information relating to your request.”

Staffordshire County Council revealed that it had never heard of the ET1 notification system to prescribed persons:

“We would expect such disclosures to be made directly to the local authority by the individual and have never heard of the Employment Tribunal sending ET1 Forms”

Harrow council probably spoke for others when it advised:

“As far as we are aware, the Council has never been passed any ET1 forms from the employment tribunal in its role as a ‘prescribed person’.

Neither did the major prescribed persons, regulators and other oversight bodies seem to receive many ET1 notifications. Collectively, 42 major prescribed persons admitted to receiving fewer than sixteen ET1 notifications during the period April 2016 to March 2018.

Worryingly and bizarrely, and in marked contrast, ACAS reported via FOI  that it received a total of 3, 124 notifications in 2017/18 alone, about whistleblowing cases across all sectors. The gross mismatch between the two sets of figures raises very troubling questions.

There were notable refusals by some prescribed persons to reply to the FOI requests citing cost exemptions, viz:

Care Quality Commission

Department for Education

ICO

This implied poor governance and a failure to centrally collate and track data about ET1 intelligence.

The Department of Health and Social Care admitted baldly that it could not provide the requested data, because it did not keep the data in a central form.

The fact that the DHSC and CQC do not keep central data on ET1 notifications is breath-taking, after all the lip service and the millions squandered on the Freedom To Speak Up Review and subsequent project of appointing a National Guardian and local Guardian network. According to ACAS, Health and Social Care generated 386 whistleblowing claims in 2017/18. This was the largest number of whistleblowing cases for any sector.

CQC has had to be dragged for the last few years, kicking and bawling, to the point of accepting that its whistleblowing governance was still not sound. As part of this, CQC has accepted that it should review its systems for handling ET1 notifications, notably its lack of any central tracking mechanism.

Letter from Andrea Sutcliffe CQC Chief Inspector of Adult Social Care 13.09.2018 about ET1 notifications from the Employment Tribunal

Letters to Andrea Sutcliffe about CQC’s handling of ET1 notifications by the Employment Tribunal

The recent FOI data revealed clear mismatches between the numbers of ET1 notifications reportedly received by some individual prescribed persons and the numbers of whistleblowing cases reported by ACAS from the relevant sectors.

For example, ACAS advised that there were 23 whistleblowing cases notified from the energy and water sector in 2017/18. However, Ofgem reported that it received no ET1 notifications. Ofwat failed to respond to the FOI at all. However, Ofwat’s response to an earlier, similar FOI in 2016 revealed that it had never received any ET1 notifications since the government introduced the system in 2010.

It is likely that if Ofwat had responded to the recent FOI, it would have reported zero or few ET1 notifications in keeping with the general trend.

As an example of another anomaly, ACAS reported that there were 189 whistleblowing cases notified from the ‘Transport, Storage and Communication’ sector in 2017/18. But the Department of Transport reported that it received zero ET1 notifications  from the Employment Tribunal.

Only the Civil Aviation Authority and Prudential Regulation Authority indicated in their replies that they had coherent governance in place to track and act upon ET1 notifications.

“Allegations received on ET1 forms are logged under the CAA whistleblowing process and investigated as appropriate. The original incoming information, investigation records and closure recommendation are held for 10 years.”

“The PRA collates and holds centrally  the information it has received is an ET1 form and the data that has been provided by the author on the ET1 form.”

 NAO and HMRC indicated that they collated data centrally, but gave less clear assurance about follow up with the whistleblowers who had made claims to the ET. NAO said it had been sent misdirected ET1 forms, that should have been sent to other oversight bodies. NHS Improvement received one (yes one) ET1 notification, but did not contact the whistleblower and gave no reason for this.

The Competition and Markets Authority put on a trench coat and dark glasses and refused to ‘confirm or deny’ anything.

The Serious Fraud Office preferred outright denial:

 “We do not hold the information requested. For future reference please note that we know of no formal or legal requirement whereby an ET1 would be forwarded to us by the Employment Tribunal by virtue of our Director’s capacity as a prescribed person under whistleblowing law. Nor are we aware of any instance where this has happened.”

 These facets of the failing prescribed persons system spell negligence writ large, writ thus:

  • The Employment Tribunal’s failure to identify and send ET1 data to the correct regulators, prescribed persons’
  • Prescribed persons’ Lack of diligence or competence in handling ET1 intelligence
  • NAO’s convenient averting of its gaze
  • HMCTS’ and BEIS the lead government’s Department’s self-admitted failure to do their governance homework.

All this helps to explain the truly dismal experience of whistleblowers as hapless end-users of this ‘service’.

I recall when I first contacted CQC almost a decade ago, to begin the process of disclosure, the person at the end of the phone could not even clearly confirm to me that the CQC was a prescribed person under the Act.

When whistleblowers raise concerns about being given the endless run-a-round, they are often dismissed as querulous or vexatious. Institutions paint themselves as reasonable and long suffering. But laid out here in these various FOI data is the real picture, of torpid, irresponsible and incompetent officialdom. An officialdom that neither cares nor fully understands the central importance of whistleblowing to a safe and healthy democracy, and to public protection.

 

When Morecambe Bay whistleblower Russell Dunkeld tried to disclose to the Care Quality Commission a PIDA Prescribed Person, the regulator sent him off to the PHSO. The PHSO sent him back to the CQC.

“When I complained to CQC, they gave me the brush off. “CQC’s role does not include investigating individual complaints.”

CQC told me to contact the Health Service Ombudsman. The reply from the PHSO was “I understand the CQC have advised you to contact us…but from the information available on their website, they would be the appropriate organisation to consider your concerns”.

This is an experience to which many whistleblowers can relate.

It is inconceivable that CQC as a regulator has been allowed all these years to refuse to investigate individual whistleblowers’ concerns. It is a convenient collusion between CQC and government that CQC pleads inability, and government does nothing to clearly give CQC the necessary powers despite the regulatory gap being repeatedly highlighted by whistleblowers.

Russell tweets at @RussellDunkeld 

The confirmation from these latest FOI responses that there has been no genuine improvement in the prescribed person system comes on top of revelations that the NHS National Guardian’s Office, the UK’s only dedicated whistleblowing agency, does not bother to track whether whistleblowers’ concerns are addressed.

These facts give lie to endless, monotonous government platitudes that the whistleblowing framework has been reviewed and improved with this or that minor adjustment, and that we must all be patient and wait for soft culture change.

After the Gosport disaster, in which most of the 656 lives lost fell after incidents of whistleblower suppression, this pantomime must end. It is time to respect, protect and share power with the public by protecting whistleblowers with new and radically improved law.

UPDATE 22 OCTOBER 2918

An illustrative post script which compellingly shows that the system of forwarding ET1 intelligence on whistleblowing cases by the Employment Tribunal to PIDA Prescribed Persons is truly broken.

A Scottish whistleblower filed a whistleblowing claim with the Employment Tribunal in 2016 and duly ticked the box giving consent for their case details to be forwarded to the relevant regulator. The data was never forwarded. After the whistleblower made recent enquiries, the ET advised on 17 October 2018 that it had finally sent the data onwards…but to an English regulator, who had no jurisdiction whatsoever.

Sheena Pinion ET sent ET1 data to wrong Prescribed Person CQC

 

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Protect. A View from the Fence.

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 8 October 2018

 

Summary: Protect, formerly known as Public Concern at Work (PCaW), is the dominant UK whistleblowing charity. It played a large part in introducing very ineffective UK whistleblowing legislation twenty years ago. Whilst this was probably done with good intentions, the charity has not redeemed the mistakes of the past by calling for replacement of the law or urgent correction of the law’s most serious deficits. For twenty years, UK whistleblowing law has not compelled anyone to investigate whistleblowers’ concerns.

Protect is an important reservoir of specialist knowledge because of its dominance of the market. It receives substantial income from the public purse but has declined to reveal full details of this income. It provides services to employees and employers. Some may be concerned about the potential for divided loyalties, priorities and the degree to which Protect challenges power. In any case, the charity has no official status and no powers to protect whistleblowers. The charity has not challenged the most obvious frailties of sham government whistleblowing policy. The Freedom To Speak Up project, which is arguably the biggest block to real reform, not only goes unchallenged but was this week endorsed by a Protect trustee. In the terrible shadow of the Gosport disaster, the public has a powerful need for a statutory, independent expert body with powers to protect whistleblowers and the public interest, and is subject to proper legal accountability.

 

 

The UK whistleblowing scene is a rubble strewn landscape.

Defective UK whistleblowing legislation, the Public Interest Disclosure Act, (PIDA) has been in force for twenty years. It gives workers the notion that they are protected, until it is too late and they realise they are not.

The law is so bad, it is turned against whistleblowers as a weapon.

Successive waves of bewildered whistleblowers have discovered that UK law is disinterested in the content of their concerns.

Deaths due to poor whistleblowing governance have continued since PIDA came into force. For example, at MidStaffs, in the case of Ian Paterson the rogue surgeon and at Liverpool Community Health NHS Trust.

Opinions vary about whether it is better to have a bad law rather than none at all.

Lord Touhig who proposed a close precursor of the current legislation commented:

“In its current form, Pida is dangerous for whistleblowers because people think they have stronger protection under it than they actually do,”

 Richard Shepherd MP the proposer of the current legislation reportedly defended its honour somewhat hotly:

“[Shepherd] said he was “angered” by the criticisms of what he described as “one of the most progressive Acts in the western world”.

“Pida is blamed for all sorts of things that aren’t its fault,” he said.”

 If Shepherd gave the legislation life, the midwife was the charity Public Concern at Work (PCaw), now re-branded as ‘Protect’. Protect sees itself thus:

PCAW SELFFrom Protect’s 2012 submission to Transparency International

Protect promised much of PIDA, which has not come to pass. For example, PIDA has not delivered accountability as originally promised:

“We warmly welcome this Bill. It will give employees the assurance to sound the alarm on abuse in care, fraud and other serious malpractice and it will provide employers an incentive to handle such concerns responsibly. As it will ensure that employees and employers are less likely to turn a blind eye to the wider public interest, it will improve both accountability and public confidence in the workplace.” Michael Brindle QC, Public Concern at Work

Since PIDA was passed in 1998 and came into force in 1999, PCaW has dominated the conversation.

Protect has been ubiquitous. Its name appears in the majority of public bodies’ whistleblowing policies as the go to source for independent whistleblowing advice for workers. Few conferences on whistleblowing pass without Protect appearing on the attendance list. It has had a place for years on the national user group for the Employment Tribunal. Twining around any number of working groups, Protect has a well-marked dance card.

Protect has amassed much power as a keeper of secrets. Access to secrets often generates more access, and the organisation is embedded into public life. And in fairness, because it cornered the UK market in whistleblowing, Protect holds vast data and knowledge. It would also be churlish not to acknowledge that some of Protect’s work has been very useful in advancing understanding about whistleblowing matters.

Although it must also be said that the organisation sometimes overlooks sampling limitations. It has sometimes implied that its findings are representative, when they only relate to the sub-group of whistleblowers who have found their way to Protect’s front door. But it may be tempting to overlook data limitations when trying to emphasise one’s importance.

For example, in its ‘Whistleblowing Commission’ report, Protect stated:

Further cases analysed in “The inside story” revealed that 74% of whistleblowers said they were ignored when they first raised a concern. This research also established that it is likely individuals only raise a concern once (44%) or twice at most (39%) before giving up.”

 Strictly speaking it ought to have clearly stated that 74% of whistleblowers who contacted Protect said they were ignored when they first raised a concern. Those who ring the Protect helpline are more likely to have experienced problems with raising concerns. A prospective, whole population study as opposed to a retrospective trawl of Protect helpline case files would likely reveal different, less dramatic findings.

Protect has described itself as a ‘self-funding’ organisation. In 2017 it registered £578K staff costs, and £708K income. The lines between the charity and the government are blurred by the fact that Protect accepts public money by selling services to the public sector. For example, Protect operates an NHS whistleblowing helpline for the Scottish government. It has sold training services to the government’s Freedom To Speak Up Project. Protect also trains staff from government departments. FOI disclosure 12017/11460 of 24 May 2017 by the Department of Business, Energy and Industrial Strategy, which leads on UK whistleblowing law, indicated that the Department had sent two members of staff on a Protect training course.

 

Protect’s services to the public sector

An FOI disclosure by Health Education England revealed that it paid Protect a total of £129K for training services.

An FOI disclosure by the Scottish government revealed that it paid Protect £142K for running its whistleblowing helpline between April 2013 and July 2017

There is no comprehensive client data on Protect’s website. Some but not all clients are named. There are also occasional promotional tweets from the charity’s social media account, which reveal some of the organisations to which training services are provided.

Last year I asked Protect’s former CEO and colleagues about the charity’s clients and revenue. They advised that they could not tell me, or tell me with any accuracy:

–       who its 300 plus clients were

–       who its public sector clients were

–       its overall income from public sector clients

Correspondence with Cathy James former CEO of PCaW et al (now Protect)

 

Protect provides free telephone advice on whistleblowing which is available to all workers. However, it also sells consultancy services to individual employers. Questions have long been asked about the potential for conflict.

Indeed, taking the example of Health Education England (HEE), Protect was simultaneously selling whistleblowing governance services to HEE whilst intervening in the case of Dr Chris Day who was in dispute with HEE, and submitting a third party brief to the Court. Moreover, Dr Day was represented by a trustee of Protect, James Laddie QC.

Protect stated in an annual report of 31 December 2017 that its trustees have the responsibility for ensuring there are no conflicts:

PCAW conflicts

It is not explained how this is achieved.

Protect’s website says the organisation provides the following services to whistleblowers who call its helpline:

PCAW compassionate helpline

This menu would raise substantial hope in any inexperienced whistleblower, searching frantically for safe harbour.

There is little activity and outcome data about Protect’s helpline on its website. Raw contact numbers are given in annual reports. The 2017 report gives the following figures:

PCAW 2017 ACTIVITIES

Protect tells others how to run their whistleblowing arrangements. Its 2013 ‘Whistleblowing Commission’ put forward a draft code of practice which advised that best practice included regular review of whistleblowing arrangements, which included measuring whistleblower experience:

d) conduct periodic audits of the effectiveness of the whistleblowing arrangements, to include at least:

  1. a record of the number and types of concerns raised and the outcomes of investigations;
  1. feedback from individuals who have used the arrangements;”

 I am not aware of comprehensive published data on how whistleblowers experience Protect’s services. Some data appeared in Protects’ 2010 report on ten years of PIDA:

PCAW feedback

In its 2017 annual report, Protect briefly reported that 86% of people who had called the helpline in the previous year had said they would recommend the service to ‘someone with a workplace whistleblowing dilemma’.

Anecdotally, I hear more from whistleblowers who express disappointment and who perceive limited support from Protect. To some extent, this could be perhaps anticipated given the parameters of the situation; desperate whistleblowers searching for refuge in the context of toothless law that does not protect but allows further abuse, rubbing up against a non-statutory organisation with limited resources, that has no powers at all.

A few cases which offer interesting points of law are scooped up by Protect which is fair enough. Cases are also used to promote the organisation and used for good news stories – perhaps not so fair enough. Hero-innovator narratives may be good for raising organisational profile, but sober policy arguments about deaths and egregious failures of weak law may be preferable. Protect similarly may approach figures and whistleblowers who might be seen to be useful because of their profile to join as trustees. The response is not always affirmative.  Run-of-the-mill whistleblowers however, sometimes report a less solicitous attitude.

It would be basic good practice for Protect to hold itself to the same standards that it says it expects from others, and to publish comprehensive data on how whistleblowers experience its services with broad details of what it actually does for them.

Protect has not in my view been radical in campaigning for better law. Twiddling at the edges with esoteric tweaks of the existing legislation has had limited impact on the continuing failures of public protection. Protect has repeatedly made recommendations to strengthen, but not to replace the legislation. When legislation was revised by the government, Protect’s 2014 submission  suggested various tweaks, some important, but it did not say the most important thing of all. That is, the law ignores whistleblowers’ concerns and does not compel anyone to investigate them.

There was tangential reference to the investigation of whistleblowers’ concerns in that Protect’s 2014 submission proposed the introduction of a code of practice.

Protect’s draft code of practice from its 2013 ‘Whistleblowing Commission’ report included a standard on responding to whistleblowers’ concerns and keeping whistleblowers informed of investigation plans and outcomes. This was not the same as clear compulsion of investigation with mandatory timescales.

Protect’s tweaking tendencies are less threatening to power. A lack of radicalism can help to keep a place at the table. A charitable interpretation might be that Protect feels it can be more effective inside. Indeed, it is inordinately difficult to get any hearing from power on whistleblowing matters. But it is a question of the price of that audience.

Six hundred and fifty six lives were lost at Gosport,  most of which occurred after whistleblowers were suppressed. They throw into sharp relief the question of where the balance should be struck in challenging power. How much compromise is worth a place at the table for influence over future law? PIDA has been in force for twenty years. Twenty years of recurring disasters and deaths due to poor whistleblowing governance. It is fair to say that alacrity has not been the watch word.

Timeline of inappropriate opioid use at Gosport War Memorial Hospital, which has been linked to 656 unnatural deaths by the panel investigation:

PCAW Gosport opiate timelineSource: Report of the Gosport Inquiry

Protect now endorses the government’s sham Freedom To Speak Up project.

Some may wonder if this is commercial flattery.

Protect’s CEO and I briefly debated some favourable comments that she made about Freedom To Speak Up Guardians at a specialist conference on 20 June 2018 about Twenty Years of PIDA.

A Protect trustee has now gone into glowing print about the debatable merits of the Freedom To Speak Up project:

Whistleblowing: public services fail to deliver on promise of open culture

‘It is true there has been progress. Following the 2015 review of health service whistleblowing by Robert Francis QC, there is now a network of “freedom to speak up guardians” across NHS trusts, supported by a national guardian for the health service, a post energetically filled by Dr Henrietta Hughes.

Her first report, published in September, reveals that more than 7,000 cases were raised with freedom to speak up guardians over the previous year. A third involved patient safety and service quality, and 361 people alleged they had suffered at the hands of their employer as a result of raising concerns.

That thousands of people feel able to approach the guardians – albeit a fifth of them anonymously – is promising, and Hughes pushing for action at the trusts that failed to record any cases is a good sign.’

 

 

This article coincides with an inadvisable and manipulative publicity stunt by the National Guardian’s Office viz. ‘Speaking Up Month’, just before the government’s response to the Gosport Inquiry report and the annual collection of data for the NHS staff survey.

The endorsement of the government’s woeful and harmful whistleblowing policy is problematic for many reasons. Praising the project effectively endorses his own organisation’s contribution to the project.

The article cited statistics from the National Guardian’s Office. This data is flawed and unverified:

Another health check on the quality of the National Guardian’s data

Indeed, I wrote to parliament about a mission critical failure by the National Guardian to gather any data at all about whether whistleblowers’ concerns are addressed.

Parliament has acknowledged that this is a matter that needs to be pursued.

Even the Health Service Journal, not always a friend to whistleblowers, reported on 27 September 2018 about the National Guardian’s disinterest in whether whistleblowers concerns were addressed.

Over a week after HSJ’s coverage, the Protect trustee did not acknowledge this. This omission mirrored Protect’s inaction on PIDA’s failure to compel investigation of whistleblowers’ concerns.

The article made passing reference to the law:

“…the whistleblowing legislation itself needs strengthening”

Strengthening. Not wholesale, radical reform. This is even despite PIDA’s core failure to require the investigation of whistleblowers’ concerns or to compel anyone to protect whistleblowers. Even in the terrible shadow of Gosport.

As far as I can see, Protect remains perched on the fence. Lip service, tweaking, and endorsing the biggest block to real reform – the Freedom To Speak Up project, which the government is trying to spread and embed. Once embedded, undoing it will be a devil of a job.

Of interest, Protect’s former Head of Legal Services is now National Engagement Manager at the National Guardian’s Office, taking cross fertilisation to a different level. She has contributed to the National Guardian’s publicity material, for example, through a newsletter:

“I feel extremely privileged to be a part of the process in working with Guardians and supporting staff on the journey towards making speaking up business as usual in the NHS”

In short, you can have all the technical expertise and knowledge in the world. But how much is it worth if your compass doesn’t work.

It is time for any fiefdoms built on mutual interests to be challenged. The public interest must always reign.

A properly independent statutory body with duties and powers is needed to protect the public and whistleblowers, not private bodies partly paid for by the public that will not – or feel unable – to fully challenge power.

An independent, statutory body with proper reporting duties, duties of transparency, duties under FOI, duties of Equality, duties to account for how it gets its money and uses it, and duties to answer to parliament.

 

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How can National Guardian’s Office say workers ‘know that the right actions will be taken’ if they speak up? Another health check on quality of the National Guardian’s data

 By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 27 September 2018

Summary: The National Guardian is relying on unverified Speaking Up data obtained by very variable methods and supplied by NHS trusts, and is drawing conclusions from too little evidence. The National Guardian inexplicably fails to collect or publish any data on whether whistleblowers’ concerns are addressed. Parliament has been alerted to this mission-critical failure and Health and Social Care Committee has indicated that it will follow up this issue.

Background

I asked the National Guardian in January and February 2017 about the issue of data quality when evaluating progress, when there seemed to be no clear answer:

 

Agreed record of meetings on 23.01.2017 and 2.02.2017 with Henrietta Hughes National Guardian

MA What data are local guardians collating and has it been agreed with your office? Is it standardised?

HH “What” has been agreed with us and is standardised “How” – no. “How” is very much what works for the organisation. So long as information held separately from main databases. We haven’t been prescriptive.

MA How do you know data from local Guardians isn’t fiddled or flawed in some other way?

HH Ultimately it will reflect in the staff survey.

MA Have you got a means of quality control to check quality of local guardians’ data?

HH We’re working on trust….

MA So no checks?

HH We don’t have access to their information systems. Are you suggesting we do so? Is that appropriate?

MA You have the remit for picking up local failures including by local guardians, and Safeguarding against local failure.

HH We haven’t received any information about problems with local guardians.

MA You have received no concerns about local guardians’ inappropriate actions or omissions?

HH We did have one. Not from a member of staff. We were copied into something. I’m not sure. The individual didn’t meet the needs of the staff.

…..MA How are SUGs measuring staff experience?

HH It varies, Different trusts need different things

MA What are the different ways in which SUGs are measuring staff experience?

HH Working in partnership at local level. Pulse surveys as well as the annual staff survey.

MA What are the pulse survey questions?

HH We haven’t received the outputs of those yet.

MA But what questions are being asked?

HH We haven’t asked specifically

HH Every organisation sends something in. Learning shared.”

 

As far as I am aware, there is still no resolution regarding data quality checks. Guidance documents and correspondence from the National Guardian’s Office to trust Freedom To Speak Up Guardians, disclosed by trusts, do not contain any evidence that the National Guardian’s Office does any more than specify the data that it requires. There is no evidence of any quality sampling and checking by the National Guardian’s Office.

 

Final data for 2017/18

The National Guardian published a report on 20 September 2018 about Speaking Up data returned to her in 2017/18 by trust Freedom To Speak Up Guardians.

This revealed that in 2017/18, trust Freedom To Speak Up Guardians recorded 7087 cases, and received feedback from 2407 staff, 2077 of whom reportedly said they would speak up again.

The report of 20 September was accompanied by a press release on 24 September 2018 which claimed:

“NHS workers in trusts in England are speaking up to their Freedom to Speak Up Guardians, confidentially, knowing the right actions will be taken as a result.” 

This was also tweeted  by the National Guardian’s Office that day.

This claim is unsupportable as clear instances of detriment and failures to act upon staff concerns continue to occur. Recent examples are:

 

The National Guardian’s 20 September report claimed that there has been an ‘encouragingly large response rate’ from staff who have used the Speak Up Guardian service, but no figure is given.

Neither has the National Guardian published trust level data on NHS staff feedback about Speak Up Guardian services. Only global figures are provided. This seems inconsistent given that she has published all other Speaking Up data at trust level.

And how can the National Guardian’s Office possibly know, without exhaustive investigation,  that concerns are always handled ‘confidentially’? Whistleblowers sometimes find out, in retrospect, from disclosed personal data and court documents that there is collusion between trust managers from an early stage of their whistleblowing journey.

 

‘Would you speak up again?’

The National Guardian’s tracking of outcome focuses centrally on the question ‘Would you speak up again?’ The implication in all the material from the National Guardian’s Office is that this is an effective measure of success. But no evidence has been presented to demonstrate that this is a valid measure of effective whistleblowing governance.

Reported willingness to speak up again does not necessarily mean that a worker has had a wholly positive outcome. Data obtained by FOI from some NHS trusts has shown that staff may indicate an intention to speak up again even where they do not feel their concerns have been addressed, or even when they have suffered detriment. For example, this Survey Monkey report of staff feedback at Leeds and York Partnership NHS Trust showed that although not all staff felt their concerns had been properly addressed or addressed at all, and despite some reporting detriment, all said they would speak up again:

Leeds and York Partnership NHS Trust Speaking Up feedback data FOI 2449

It may well be that this expressed intention to speak up again largely reflects the professional commitment amongst frontline healthcare workers. But it may also partly reflect an element of something social scientists and psychologists call ‘social approval’, which can kick in when people respond to surveys. Equally, it may reflect most staff’s inexperience in whistleblowing, and a lack of appreciation of how badly things can go wrong if a worker persists in raising concerns.

Some data on how risk of reprisal increases with successive attempts to raise concerns can be found in the 2014 ‘Inside Story’ report by Public Concern at Work and Greenwich University:

Whistleblowing – The Inside Story

 

No data gathered on whether concerns are resolved

Worryingly, the National Guardian provides no data on whether staff feel their concerns have been addressed. Disclosed template reporting forms have shown that the National Guardian does not ask trust Freedom To Speak Up Guardians to gather feedback data from NHS staff on whether their concerns are addressed. To illustrate, this is a copy of the National Guardian’s standard reporting template disclosed by David Loughton’s trust, the Royal Wolverhampton NHS Trust:

Royal Wolverhampton NHS Trust Speaking Up data return to National Guardian

This failure to check if concerns are addressed is a key and inexplicable omission. Surely a central function of the National Guardian’s office is to monitor whether whistleblowers’ concerns are addressed? The failure to deal with concerns is probably the most distressing and single most important matter to all genuine whistleblowers who fall foul of the current flawed system. But it is also a political hot potato that the government likes to sweep under the carpet. The National Guardian’s avoidance of clarity about whether NHS staff’s concerns are addressed mirrors Robert Francis’ behaviour in the Freedom To Speak Up Review. Francis reported in great detail about the employment disputes that whistleblowing cases get bogged down in, but did not breath a word about the types of serious public interest disclosures that had never been resolved.

Generally, trust FOI data also shows great variation in how trusts obtain feedback data on staff experience of Speak Up Guardian services. Some have better audit trails, for example, by using electronic surveys. Others do not collect any written material from staff and depend only on trust Freedom To Speak Up Guardians to document what staff purportedly said.

I will report in more detail on the FOI data from trusts in due course.

 

Non-reporters

But at least both the National Guardian’s report of 20 September and the press release of 24 September acknowledged that six NHS trusts had not reported any cases and or returned data to the National Guardian in 2017/18. The trusts were listed in the National Guardian’s report as follows:

A note on non-reporting trusts.

Six trusts did not record any cases of speaking up throughout the year.

These are:

  • Black Country Partnership NHS Foundation Trust
  • James Paget University Hospitals NHS Foundation Trust
  • London North West Healthcare NHS Trust
  • Royal Papworth Hospital NHS Foundation Trust
  • South Tees Hospitals NHS Foundation Trust
  • Walsall Healthcare NHS Trust

The National Guardian’s Office has raised this point with regulators and requested that they take appropriate action to support these trusts.”

 

This the National Guardian’s data upon which the report of 20 September was based:

Speaking Up data Q1 2017/18 – reconciled

Speaking Up data Q2 2017/18 – reconciled

Speaking Up data Q3 2017/18 – reconciled

Speaking Up data Q4 2017/18 – reconciled

 

Papworth, one of the six trusts that the National Guardian reported to the regulators for not reporting any Speaking Up cases, actually scored above average in its peer group on staff confidence in speaking up on the 2017 NHS staff survey. Its staff survey results are quite good generally, as is often the case for specialist trusts. A point that has already been made repeatedly is that good trusts do not need Freedom To Speak Up Guardians.

However, the other five trusts all scored below average on staff confidence in speaking up, and above average on bullying. Details are provided in the annex below. This is not cause for confidence that ‘the right action will be taken’, as the National Guardian’s Office press release claims.

The National Guardian’s foreword in the September 20 report states: The absolute number of cases is not necessarily reflective of the speaking up culture in an organisation” which is fair enough.

But the upbeat press release by the National Guardian’s Office went too far and implied that the number of cases denotes success of the model:

Thousands of NHS workers bring cases to Freedom to Speak Up Guardians…NHS workers in trusts in England are speaking up to their Freedom to Speak Up Guardians, confidentially, knowing the right actions will be taken as a result….A trusted alternative channel for speaking up where workers feel they can’t use other channels is being developed…The increase in the number of cases, quarter on quarter, that are being brought to guardians is encouraging as workers become more familiar with and confident in this new route for speaking up”

There is insufficient reflection here on the fact that workers are being encouraged to make themselves vulnerable, most likely without properly informed consent, when there is no guaranteed protection.

Some of the most notorious trusts for whistleblowing detriment have high levels of reporting to Freedom To Speak Up Guardians, which may put staff in harm’s way.

 

Mid Yorkshire Hospitals NHS Trust

The Mid Yorkshire Hospitals NHS Trust has long had troubled governance and is known to whistleblowers.

As recently as 2017, the trust was found by the Employment Tribunal to have unfairly dismissed and to have subjected worker who made a protected disclosure (about bullying) to a detriment, but the whistleblowing aspect of the claim failed because it was presented out of time:

Miss G Wright v Mid Yorkshire Hospitals NHS Trust

As an indicator of problems with internal reporting, Mid Yorkshire generated the highest numbers of external whistleblowing disclosures to CQC over the period April 2015 to March 2017 – 58 in total.

According to the National Guardian’s published data, there have reportedly been 159 cases raised with the trust’s Freedom To Speak Up Guardian, and 5 reported instances of detriment during financial year 2017/18.

An FOI disclosure by Mid Yorkshire reported that the trust started collecting feedback in May 2017, and extended the exercise to staff who had spoken up prior to that date. The trust claimed that 116 cases were closed between September 2016 and March 2018, and that feedback questionnaires were sent to 98 staff whose cases had been closed, 69 of whom responded. 68 reportedly said they would speak up again.

According to the FOI disclosure, 18 staff were not asked to give feedback. Those who disclosed anonymously were reportedly not contactable. Worryingly, some staff had also left the trust after making disclosures.

29 staff did not respond to requests for feedback.

It is not possible to tell at this stage exactly what percentage of all Mid Yorkshire trust staff who have disclosed to the Speak Up Guardia have been asked for, or given feedback.  However, it does seem that a substantial proportion of outcomes are as yet unaccounted for.

The experience of the staff who are too frightened to identify themselves, who leave and or who do not return feedback is of obvious interest. The National Guardian should be both acknowledging this in her analyses and making efforts to improve data capture across the system in a way that is safe for whistleblowers.

Mid Yorkshire has had the same Chair since 2012, the same Director of Nursing since 2014, the same Chief Executive and Director of Workforce since 2016.

In all the circumstances, can the trust’s staff really be sure that the trust would take ‘the right action’ if they speak up?

 

Unresolved questions

Ultimately, how much taken from data supplied by trusts themselves? I imagine many Freedom To Speak Up Guardians will act in good faith but equally, some are part of the corporate machinery responsible for orchestrating cover ups.

The apparent lack of any quality control over the data published by the National Guardian leaves it open to question.

There have also been some serious issues about the presentation of data by the National Guardian’s Office, to which I will return at a later date.

I would remind the National Guardian that she said to me in February 2017 that the ultimate proof of the pudding will be in the national NHS Survey results. So far, there is zero movement on that with respect to confidence in speaking up, for all the millions spent on the Freedom To Speak Up project.

UPDATE 29 SEPTEMBER 2018:

The Health Service Journal questioned the National Guardian’s Office about its failure to track whether whistleblowers’ concerns are being addressed. The Office advised ‘data was collected locally on how concerns were resolved’. This is a strange evasion and also a half truth. I know from FOI data that some NHS trusts do not ask staff who contacted Freedom To Speak Up Guardians if their concerns were resolved, and some admitted to not collecting any staff feedback at all.

I have written to parliament to pass on the evidence about this crucial failure of governance, copied to the UN Rapporteur on Freedom of Speech who reported on whistleblowing in 2015:

Letter to Parliament 29 September 2018 UK government does not track whether whistleblowers’ concerns are addressed

UPDATE 6.10.2018

I have received a response from the Chair of Health and Social Care Committee, picking up the concerns about the National Guardian’s failure to track whether whistleblowers’ concerns are addressed:

Screenshot 2018-10-03 at 15.37.10

ANNEX

These are further details on the six trusts which did not report any cases or failed to return data to the National Guardian in 2017/18: 

 

Black Country Partnership NHS Foundation Trust

No cases reported for Q1-4

Rated ‘Good’ by the CQC

Listed Freedom To Speak Up Guardian: Andy Green Director of Corporate Governance and Trust Secretary

Above average bullying (21% v 20% average for combined MH/LD and community trusts)

Below average on staff confidence in speaking up:

Black Country

 

James Paget University Hospitals NHS Foundation Trust

No cases reported for Q 1-4

Rated ‘Good’ by the CQC

Listed Freedom To Speak Up Guardian: Julie Smith Head of Compliance and Quality Improvement

Above average bullying (27% v 25% average for acute trusts)

Below average on staff confidence in speaking up:

James Paget

 

London North West Healthcare NHS Trust

No cases reported for Q1-4

Rated ‘Requires Improvement’ by the CQC

Listed Freedom To Speak Up Guardian: Fiona Coogan Director Infection Prevention and Control

Above average bullying (30% v 24% average for combined acute and community trusts)

Below average on staff confidence in speaking up:

London North West Healthcare

Royal Papworth Hospital NHS Foundation Trust

No cases reported for Q1-4

Rated ‘Good’ by the CQC

Listed Freedom To Speak Up Guardian: Richard Quigley Lead Nurse Transplant

Average bullying (23% v 23% average for acute specialist trusts)

Above average on confidence in speaking up:

Papworth

 

South Tees Hospitals NHS Foundation Trust

No cases reported for Q1-4

Rated ‘Good’ by the CQC

Listed Freedom To Speak Up Guardian: Debbie Elliott Patient Experience Team Advisor

Above average bullying (26% v 24% average for combined acute and community trusts)

Below average on confidence in speaking up:

South Tees

 

Walsall Healthcare NHS Trust

No data returned for Q1-3, no cases reported for Q4

Rated ‘Requires Improvement’ by the CQC

Listed Freedom To Speak Up Guardians: Shabina Raza, Antimicrobial Lead Clinician and Kim Sterling Podiatrist

Above average bullying (29% v 24% average for combined acute and community trusts)

Below average on confidence in speaking up:

Walsall

 

 

STFU not FTSU

 

CQC concedes. Four years on from ‘Complaints Matter’, CQC’s whistleblowing governance is still not right

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 23 September 2018

Summary: After much spin, lengthy evasion and denial, the CQC has admitted that its approach to whistleblowing requires improvement. Time will tell if the CQC will take the necessary, serious action.

Following the publication of the report of the public inquiry into MidStaffs and the conclusion of Raj Mattu’s long running case in the Employment Tribunal, the government was under pressure to improve the NHS’ response to whistleblowers.

It responded in 2014 by commissioning the controversial Freedom To Speak Up Review, the efficacy of which remains hotly disputed. 

It was of course a little odd that Robert Francis as a CQC NED was in the position of reviewing his own organisation’s performance on whistleblowing as part of the Freedom To Speak Up Review. The potential conflict of interest was not formally acknowledged in his Review report or by the government. But he did at least acknowledge that system regulators could do more within their existing powers to protect whistleblowers, and he recommended that if necessary, they should seek a change in their regulations to better protect whistleblowers.

Complementing the government’s efforts with the Freedom To Speak Up Review, the CQC put on a show of reviewing its approach to whistleblowers. This culminated in its December 2014 report ‘Complaints Matter’, in which the CQC set out sketchy evidence and insubstantial recommendations on how it would approach whistleblowing in the future.

There was more emphasis on spin. A great CQC triumph was securing the endorsement of a high profile whistleblower. This glowing recommendation was tactically released by CQC within days of the publication of the Freedom To Speak Up report:

Although my secondment ended last year, I was involved in the evaluation of the work once the trials had been completed. I have been keeping a close eye on things as they develop at CQC; I have every faith in them – and that perhaps things can change for the better.”

 But whistleblowers have continued to complain about CQC’s approach. In December 2014, when CQC’s “Complaints Matter” report was published, it was revealed that CQC had outed whistleblower surgeon Shiban Ahmed to his employer. CQC maintained that this was an error on its part.

CQC’s superficial governance of whistleblowing matters continued to be a bone of contention on matters such as:

 

 

 

 

CQC treated concerns about these sort of matters as a nuisance. It even has containment strategies for whistleblowers, myself being one.

In June 2017 Helen Rochester a care home whistleblower attended CQC’s Board meeting to challenge the CQC about its behaviour towards her in two separate whistleblowing incidents, which involved breach of her confidentiality (admitted by CQC) and later complicity in a vexatious referral to the Disclosure and Barring Service. This is information about Helen Rochester’s case and her ordeal at the Employment Tribunal:

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

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

In July 2017, I asked the new CQC Chief Inspector of Hospitals to meet with me about CQC’s approach to whistleblowing. This was declined:

“Thank you for your offer of a meeting, but as I am sure that you will appreciate the coming months will be a very busy time for me and reluctantly I will have to decline the offer at present. I can, however, assure you that I am fully committed to listening to the views and experiences of people who use, and work within services as we develop our future approach.”

 In October 2017 I alerted Ted Baker to some issues about CQC’s approach to workforce issues, and lack of attention to Employment Tribunal judgments that are relevant to its Well Led domain. This was curtly received: 

On behalf of Professor Ted Baker, Chief Inspector for Hospitals at the Care Quality Commission (CQC), thank you for your email of 20 October 2017.

 CQC will keep the suggestions you make under consideration. We do not intend to engage in further correspondence with you on this matter.”

I had responses in a similar vein from CQC’s Chair and then CEO when corresponding respectively about CQC’s approach to whistleblower confidentiality and CQC’s handling of coroners’ warnings.

Peter Wyman 21 September 2017: “At the Care Quality Commission we routinely monitor compliance with our policies but have no plans at present to conduct an audit such as you propose. I do not intend to enter into further correspondence on this matter.” 

David Behan 13 October 2017: “We do not intend to engage in further correspondence with you on this matter.”

However, in December 2017, the BBC reported on Helen Rochester’s case and CQC’s approach to whistleblowers.

Rather remarkably, the CQC claimed to the BBC:

“The CQC said it had encouraged Dr Minh Alexander to “share her evidence with us, so that we can look into her allegations further”. 

 In the light of this reversal, I repeated the request for a meeting.

This eventual took place on 5 June 2018, with Ted Baker and also Ursula Gallagher CQC Deputy Chief Inspector, who had been assigned the lead on CQC’s whistleblowing programme. We previously exchanged correspondence in November 2017, when she had held Peter Wyman’s line about audit.

The meeting in fairness was courteous and reasonably conducted. Ted Baker took on board the seriousness of any breaches of whistleblower confidentiality and agreed to re-visit the issue of audit.

It was agreed that I would produce brief bullet points of the meeting, which I submitted the same day. Almost four months later I reminded CQC to get back to me about the accuracy of the meeting record.

This is the final agreed meeting record, received on 19 September, which appears substantively unchanged from my original draft:

Brief summary notes of telephone meeting on 5 June 2018 about CQC’s approach to whistleblowing

Also, a CQC board paper of 18 July 2018 by Ursula Gallagher gave this report on the work in progress:

CM/07/18/07 Responding to Speaking Up and Whistle blowing – Assessment of current practice and Action Plan for Improvements

The work included a paper review of cases that examined amongst other things, looking at 11 whistleblowers’ complaints about such matters such as CQC’s observance of whistleblower confidentiality.

CQC’s board report of July 2018 revealed that:

  • CQC has revised its guidance to inspectors

 

  • CQC aims to gather feedback from whistleblowers in future

 

  • CQC aims to improve its tracking of whistleblowing matters

 

  • CQC aims in 2019 to review the success of any changes

 

Interestingly, Ursula Gallagher’s board paper acknowledges that due to the pattern of whistleblowing being concentrated in certain areas, some CQC inspectors may have little or no experience of whistleblowers:

Some of the variation may be linked to the fact that the volumes of concerns are concentrated in certain sectors. This means that some inspectors working will rarely receive a disclosure, and this has implications for the support they require when they do.’

 Importantly, these changes represent a tacit concession by CQC, that despite all the puff in 2014, it had still not got its basic whistleblowing governance in order. This is progress, even if it has all been somewhat reluctant.

I have asked for clarification about some aspects, including CQC’s plans to consult whistleblowers and what routine audits CQC will undertake in future of its whistleblowing governance.

CQC is made of many parts and individuals, some more conscientious than others. It will be interesting to see what happens next given the tone set by the arrogance and hostility of some of its most senior officers.

I recently wrote to Ian Trenholm the new CQC CEO about CQC’s inappropriate use of containment protocols. These have the effect of  a contagion, spreading hostility towards dissenting voices. Trenholm seemed to imply that I ought to be grateful to have had the meeting with Ted Baker et al in June:

Letter from Ian Trenholm 14 September 2018

I note that my predecessor attempted to engage with you in a constructive way and corresponded extensively with you, and that you were given the opportunity to discuss your issues and concerns with Professor Edward Baker, Chief Inspector of Hospitals, and Professor Ursula Gallagher, Deputy Chief Inspector Primary Medical Services and Integrated Care, in June 2018. They listened to and noted your concerns.

These sentiments in themselves would suffice for a thesis in historiography. I will return to the substantive contents of Trenholm’s response another time.

With even more charm, Trenholm ended his missive with a warning that I should expect a cool reception in future:

Screen Shot 2018-09-23 at 14.52.42.png

So, let us see how much genuine co-production there will be on CQC’s new whistleblowing standards and procedures.

If there is no genuine involvement of whistleblowers, we may see yet another four year cycle of denial and failure.

 

RELATED ITEMS

CQC’s conduct towards whistleblowers is an example of the weakness of UK policy on this vital aspect of public protection. The CQC is not alone. Whistleblowers from other sectors also complain about their regulators.

To ensure safe governance, reform of UK whistleblowing law is vital:

Replacing the Public Interest Disclosure Act

 

Whistleblowing to the CQC

 

 

Will the National Guardian come clean about why Freedom To Speak Up Guardians are leaving?

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 17 September 2018

 

The Freedom To Speak Up Guardian role, introduced upon Robert Francis’ recommendation from the Freedom To Speak Up Review 2015, is an ill designed mess.

Employees of NHS provider organisations are expected to hold their employers to account for misconduct, such as failure to investigate whistleblowers’ concerns properly or at all, and victimisation of whistleblowers.

 

Report of the Freedom To Speak Up Review

Page 150

The Freedom to Speak Up Guardian:

– is recognised by all as independent and impartial

– has direct access to the CEO and the chair of the board

– has authority to speak to anyone within or outside of the trust

– is an expert in all aspects of raising and handling concerns

– has dedicated time to perform this role, and is not expected to take it on in addition to existing duties – watches over the process, and ‘oils the wheels’

– offers support and advice to those who want to raise concerns, or to those who           handle  concerns

– ensures that any safety issue is addressed and feedback is given to the member of staff who raised it

– safeguards the interests of the individual and ensures that there are no repercussions for them either immediately or in the longer term

– takes an objective view where there are other factors that may confuse the issue, such as pre-existing performance issues, to enable these to be pursued separately

– identifies common themes and ensures that learning is shared

– raises concerns with outside organisations if appropriate action is not taken by their employer

– works with Human Resources to develop a culture where speaking up is recognised and valued

– helps drive culture change from the top of the organisation.”

 

To most people of common sense, this is clearly a non-starter.  This system just creates more potential victims. In a corrupt organisation, any honest employee who has the specific role of raising concerns and challenging is vulnerable to reprisal.

But Francis had the chutzpah to refer to these roles as ‘internal and independent’.

There was no evidence base for the Freedom To Speak Up Guardian model. Staffordshire and Stoke on Trent Partnership NHS Trust (SSOTP), the exemplar trust that Robert Francis very sketchily cited in the Freedom To Speak Up Review report, was not an exemplar. Crucially, after the Guardian role had purportedly been established at this trust, staff still had to make serious external patient safety disclosures to the CQC.

Francis’ solution to the problem of local trust Guardians being victimised was to suggest a National Guardian to whom local Guardians could turn if needed, for support and to whom they could escalate concerns. But the National Guardian’s Office (NGO) has not been reliable or robust in supporting whistleblowers in trouble.

It has sat on even mass referrals from distressed trust staff  and has made poor decisions generally.  It refused to support calls for reform of obviously defective UK whistleblowing law. It is now evident that the NGO is flirting with corporate interests, that have a very poor track record on whistleblowing. Instead of a safe harbour, it is more of a fire wall. There is no reason to believe that it would be a reliable support to trust Guardians who need help to progress concerns blocked by their trusts, or that it would always protect them from retaliation by trusts.

A critical and as yet unanswered question is whether local Guardians are escalating concerns appropriately outside of trusts, such as to the NGO or to regulators, if they encounter trust obstruction. To do so would incur the greatest risk that a local Guardian could face.  I asked SSOTP, Robert Francis’ exemplar trust, about how many matters its local Guardian had escalated externally. The trust fudged the answer, then stopped responding to further enquiries. I drew my own conclusions.

 

SSOTP issued this partial FOI response to my questions on 27 June 2017:

SSOTP Speak Up Guardian FOI response 794

 

Email to SSOTP FOI Officer 27 June 2017:

“Dear Nigel,

Thank you for the attached trust response.

I do not think it answers my request fully or clearly.

1) I originally requested how many of the 629 concerns raised with the Cultural Ambassador were escalated externally, broken down by financial year. In its reply, the trust only gives indication of external escalation of staff concerns by the Cultural Ambassador from March 2015 onwards, and it gives no exact figure.

Please clearly indicate whether or not any concerns were externally escalated by the Cultural Ambassador prior to March 2015, and please give the numbers of concerns escalated externally by the Cultural Ambassador for each financial year, as requested.

3) I asked the trust how many of the 110 concerns about staffing were externally escalated by the Cultural Ambassador, broken down by financial year. The Trust’s reply does not provide this data. The Trust’s response only indicates that staffing concerns were amongst concerns escalated externally by the Cultural Ambassador from March 2015 onwards, but no clear figure is given. Please provide the information as requested.

Yours sincerely,

Minh

Dr Minh Alexander

cc Helene Donnelly Ambassador for Cultural Change”

 

 

Moreover, a FOI disclosure (Ref 1022, 24 April 2018) revealed that only 35% of SSOTP staff who contacted the trust Freedom To Speak Up Guardian gave feedback about their experience of using the service. This is a low figure for an established service, and compares poorly to the response rates in other trusts. Moreover, the trust indicated that feedback questionnaires had only been sent out to trust staff since January 2018.

Some whistleblowers have complained of trust Freedom To Speak Up Guardians who have been unhelpful.

It has been clear from information in the public domain that some English NHS trust Freedom To Speak Up Guardians have left or moved around after relatively short spells in post.

When I did a mailshot to Guardians, I received some out of office messages indicating that some were off sick, had left or taken early retirement.

An FOI disclosure of bulletins for local Guardians from the NGO revealed that the National Guardian was aware that some local Guardians had been leaving their posts. In response to this, the NGO had been sending out exit questionnaires. However, the NGO’s annual report of October 2017 had not mentioned this.

The NGO was asked in July 2018 for data about what it had learned from these exit questionnaires:

 

“Please may I have…a copy of the protocol or equivalent which the NGO uses to conduct exit interviews with Freedom To Speak Up Guardians who have stepped down – as mentioned in NGO bulletins 6 and 24

Can the NGO advise advise to its knowledge how many FTSU Guardians have stepped down, and what have been the range of reasons that Guardians have given for leaving post?

If possible, can the NGO give a numerical breakdown of the reasons that Guardians have given for leaving?”

 

The Office has prevaricated and failed so far to comply with its obligations under FOI.

Yesterday, there was important news that Munwar Hussain a Scottish equivalent of a Freedom To Speak Up Guardian has decided to quit.

He did so reportedly because his Health Board NHS Tayside was not responding appropriately to concerns.

NHS Scotland adapted the Freedom To Speak Up model and appointed Non Executive Directors of Scottish Health Boards as ‘Whistleblowing Champions’. This is a letter of September 2015 from Paul Gray CEO of NHS Scotland to Scottish Health Boards setting out how the role would operate:

Paul Gray letter to Scottish Health Board Chairs re NED Whistleblowing Champion role 

To my knowledge, Hussain is the first Speak Up Guardian-type appointee to go public about difficulties with raising concerns. It has been reported that he was been on leave with stress.

If Hussain as a board member and a member of NHS Tayside’s audit committee could not prevail, how do the Department of Health and Social Care and Robert Francis expect trust Freedom To Speak Up Guardians who are not as senior or powerful to fare?

NHS Tayside has been lurching between scandals for some time. There was a row over whether funds had been misused. Its CEO was sacked and departed with a controversial £300K pay off.

More recently, it was reported that an NHS Tayside surgeon Sam Eljamel Head of Neurosurgery had harmed ‘dozens’ of patients for years but the Health Board took insufficient action. It was also reported that colleagues felt too ‘intimidated’ to speak up. According to the BBC, the Health Board tried to obfuscate when asked for a copy of a Royal College Surgeons report into Eljamel’s surgical errors:

“When we originally asked for the report through a Freedom of Information request NHS Tayside said it could not confirm if it even existed.” 

 NHS Tayside’s FOI disclosure log shows that it was also evasive in response to an FOI request which asked about the departure of whistleblowing staff and the underlying reasons.

In another FOI response it disclosed that compromise agreements had been used in recent years, which feature confidentiality clauses.

To whistleblowers who have fallen foul of NHS organisations, these behaviours are recognisable as standard operating procedure. Determined senior managers, bent on self preservation, will go to great lengths.

Hussain’s case adds to the evidence that a properly independent system of whistleblower protection is needed, not half measures.

So, will the National Guardian take a break from churning out Good News, and come clean about why Freedom To Speak Up Guardians are leaving?

It is possible that the information might be embarrassing to Francis and ministers, and it may make it harder for the government to stall on proper whistleblowing reforms. But it is her job to tell the truth. And the whole truth at that.

 

UPDATE 17 SEPTEMBER 2018:

Clarification: NGO sent the the data on Freedom To Speak Up Guardian departures on 15 August.

At least 15 local Guardians have stepped down. There may have been more departure as the NGO says it is not always informed.

In ten cases Guardians reported they had insufficient time to carry out the role. Of note, in two cases, Guardians stepped down because of ‘conflict of interest’.

 

“Please note that the NGO is not always made aware when FTSUGs step down from their role. The NGO has conducted exit interviews with 15 FTSUGs.

When the NGO has been informed about a FTSUG leaving, the reasons provided in the exit interview have been summarised as follows: Number of FTSUGs

Summarised reason for stepping down as FTSUG

2

Retired

2

Potential conflict of interest between the individual’s substantive role and their ability to carry out the FTSUG role

10

Insufficient time to perform the role

8

Left the trust/promoted/new opportunities

1

FTSUG post re-advertised at a higher grade

Please note, some of the FTSUGs are included twice, as they provided more than one reason for leaving the role.”

These are the standard questions which have reportedly generated the above results: exit questions

In addition, this is the ‘compact’ between the NGO and local Freedom to Speak Up Guardians. The NGO undertakes to ‘promote successes’ as part of the deal:

Screen Shot 2018-09-17 at 19.57.18

RELATED ITEMS:

Replacing the Public Interest Disclosure Act

delay deny road signs

 

 

Corporate schmoozing at the National Guardian’s Office: National Guardian’s Pan Sector Party Planning

 

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 15 September 2018

 Summary: The National Guardian’s Office turns away NHS whistleblowers in serious trouble. It sat on a mass staff referral from Brighton and Sussex University Hospitals NHS Trust about an unsafe and failing organisation. It has not inspired enough confidence, such that staff at Shrewsbury and Telford Hospital NHS Trust turned instead to the Local Authority as a route for disclosure.

The National Guardian is quick enough to cry limited resources when defending its very selective and minimal choice of cases for review.

But it can find a fat slice of these limited resources to host grandiose schmoozing sessions with corporations that are notorious for harming whistleblowers.

The output from these meetings does not suggest that there is any serious governance work being done in these sessions.

Whose interests are being served? 

The Freedom To Speak Up project is a Department of Health and Social Care PR vehicle.

Its function is not to do any governance heavy lifting or to genuinely challenge the political origins of much of the bullying and suppression in the NHS.

Rather, it is needed to spin the semblance that ‘something has been done’ and to generate endless soundbites and photo ops.

The National Guardian’s Office (NGO) sits at the head of this PR machine. It is supposed to review instances of poor practice but has stayed clear of obvious whistleblowing hot spots such as

Colchester University Hospital NHS Foundation Trust  (now amalgated with Ipswich Hospital NHS Trust to form East Suffolk and North Essex NHS Foundation Trust.)

The NGO failed whistleblowers at Brighton and Sussex who made a mass referral.

It did not review Shrewsbury and Telford Hospital NHS Trust which was also obviously troubled and knee deep in patient safety scandals and complaints from families. We now know from a report this week that Shrewsbury and Telford Hospital NHS Trust staff were so frightened that over a period, they took their concerns about bullying at the trust to a Local Authority councillor.

What does that say about trust and confidence in either the local or National Freedom To Speak Up Guardians?

But illustrating the way that the Freedom To Speak Up project is used for publicity to prop up dysfunctional trust boards, there has been a generous sprinkling of selfies and surreally upbeat promotional material on trust Instagram, Facebook and Twitter about Shrewsbury and Telford Hospital NHS Trust’s Freedom To Speak Up Guardians. Not to mention public displays by the CEO and HR Director  of enthusiasm for the project.

There is probably more case work than the NGO can actually handle given its relatively small establishment and budget of £1million. It certainly has a high case rejection rate.

So, perhaps one would expect to see hard work, no frills, a serious focus on looking after whistleblowers in difficulty and holding erring executives to account?

Wrong! Party on down instead to glitzy conferences and roadshows.

Behold the obsession with getting a mention in the papers. An email revealed that an NGO spin doctor had a strop because the media talked to smelly old whistleblowers  after the appalling findings of the Gosport inquiry report were released, instead of talking to the NGO. Given the issues arising from the unnatural, covered up deaths of hundreds of people and industrial scale collusion between various government bodies, the pettiness and self-interested nature of this protest sits very ill.

As part of the non-stop party planning, the NGO established a ‘Pan Sector Network’. This was kept out of view and not shared with the National Guardian’s official advisory working group, which includes a number of whistleblowers, myself included. But a brief mention in the NGO annual report of October 2017 revealed that the Pan Sector Network (PSN) had been launched.

The National Guardian’s PSN has met on five occasions since it started in July 2017:

17 July 2017

10 November 2017

26 January 2018

8 June 2018

14 September 2018

The National Guardian’s Office was asked for the PSN meeting records in July, but dragged its feet on this FOI and was over a month late in disclosing without good reason.

The NGO initially apologised that there was a delay and advised this was because the request was not recognised as an FOI. It later shifted the goal posts and claimed the delay was due to consulting a large number of third parties (despite the scope of the request having been reduced by negotiation with the CQC’s information governance team.)

The disclosure was incomplete and has been challenged.

These are the papers that the NGO has released:

National Guardian’s Pan Sector meeting papers disclosed 14 September 2018

The stated purpose of the PSN is stated to be:

B AIms

A think tank to spread NHS policy that is beautifully crafted to be ineffective?

And judging from the record of attendees, apparently one not including whistleblowers, except perhaps for a few employed by the NHS as Guardians (although this is not clearly evident).

Lots of emphasis on soft culture change, and no plans to transfer any power to workers through effective, protective legislation.

A Sir Humphrey special.

Not to mention that the banking sector and MoD – attendees of the PSN meetings – have embraced the same model of internal champions who can also be victimised by any unscrupulous employer. As amply demonstrated by Barclays Bank’s treatment of its head of whistleblowing, as reported by Private Eye Issue 1470, in May:

Cosy nostra

The terms of reference for the PSN claim rather overbearingly and without evidence that:

“…other sectors have much to learn from the NHS, which has come a long way since the publication of the Freedom To Speak Up Review”

And what of the guest list? A preponderance of corporate types and employers. Just the sort of gathering that would have the wrong sort of expertise on how to deal with whistleblowers.

Attendees at the first PSN meeting in July 2017:

Attendees July 2017

The NGO failed to produce an attendee list for the second PSN meeting in November 2017, so it is possible that some inconvenient fact lurks there. A repeat request has been made.

Attendees at the third PSN meeting on 26 January 2018:

Attendees Jan 2018

 

Attendees at the fourth PSN meeting on 8 June 2018:

B Attendees 8 June

 

For a venture that is supposed to be about transparency, there has been daft secrecy. Even the identities of specific NHS trusts were redacted. The identities of attendees whom the NGO had happily tweeted about were redacted. For instance, the Surrey Police representative and Lloyds Bank Head of Colleague Conduct Management Team.

B lloyds

 

Lloyds has of course been dogged with scandal over the suppression of whistleblower Sally Masterton

Another example of information in the public domain being withheld is the redaction of the MoD’s Chilcot Guardian from the attendance list of 26 January 2018, when he and the NGO had exchanged jolly tweets.

B Hutton

Interestingly, the NGO also made this disclaimer in a covering email to the FOI disclosure:

Please note, although a Royal Bank of Scotland (RBS) representative is listed as an attendee of the event on 8 June 2018, they did not attend that meeting.”

What was the NGO thinking in any case, inviting a notorious whistleblower slaying organisation to pose as a whistleblowing resource?

The same could be asked about why Lloyds were invited:

Screen Shot 2018-09-14 at 22.30.14

The Nationwide is no innocent either. 

Credit Suisse has recently been accused of complicity in a fraud.

PwC has been accused of many improprieties over the years. A recent allegation by a PwC whistleblower is of fraudulent audits for Silicon Valley companies:

“Botta alleged that, to keep corporate managers happy and to avoid losing their business, PwC was pulling its punches—trying not to flag too many problems with companies’ internal controls.

He said he was concerned about “the risk of collusion between auditors and management in this valley . . . with management paying us the fees and auditors picking and choosing what to call an audit issue.”

 

PwC is notorious because of another whistleblower scandal – the so-called LuxLeaks:

 

·       “PricewaterhouseCoopers has helped multinational companies obtain at least 548 tax rulings in Luxembourg from 2002 to 2010. These legal secret deals feature complex financial structures designed to create drastic tax reductions. The rulings provide written assurance that companies’ tax-saving plans will be viewed favorably by Luxembourg authorities.

·       Companies have channeled hundreds of billions of dollars through Luxembourg and saved billions of dollars in taxes. Some firms have enjoyed effective tax rates of less than 1 percent on the profits they’ve shuffled into Luxembourg.”

 

 

PwC called for the Luxembourg authorities to prosecute Antoine Deltour the whistleblower who did a tremendous public service by lifting the lid on the tax scam:

“PwC’s official complaint, which triggered the charges for theft and violation of professional secrecy looks arrogant and firmly in the camp of Big Bad Business. It should urgently reconsider its call.”

Thankfully, the conviction against Deltour was quashed and he was rightfully recognised as a whistleblower. 

As for KPMG, what is not known about their services to whoever pays? KPMG cash in on whistleblowing by selling services to purportedly improve clients’ governance, and for a fee, they provide purportedly confidential reporting channels:

Faircall

But there have been concerns raised about whether such services are safe for whistleblowers. For example, in the scandal in South Africa over State capture by the Gupta brothers. KPMG was hired by the Guptas and has come under serious criticism for the rigour of its audits, some of which it has been forced to review because of the scandal. Inevitably, the Gupta scandal comes with tales of whistleblower persecution. Some have questioned the independence of KPMG’s whistleblower services in South Africa:

The hotline is hosted by KPMG SA on behalf of its clients so that they can anonymously report to the auditing firm any internal corruption at the client’s company.

It’s not configured to be used internally at KPMG SA for whistleblowing by its own staff. In the past fortnight, KPMG SA has basically admitted to being a Gupta pawn.

It has conceded that its “rogue unit” report for the South African Revenue Service was a work of fiction.

We also now know that when junior auditors at KPMG SA raised red flags over work done for the Guptas, they were slapped down.

Thus, it is not irrational to conclude that any whistleblower at Sars, or any Gupta-controlled company, would similarly have got short shrift if they phoned in their tip-offs to KPMG.”

In June 2018, KPMG came under heavy criticism by the UK Financial Reporting Council for the quality if its audits:

 

‘Across the Big 4, the fall in quality is due to a number of factors, including a failure to challenge management and show appropriate scepticism across their audits, poorer results for audits of banks. There has been an unacceptable deterioration in quality at one firm, KPMG. 50% of KPMG’s FTSE 350 audits required more than just limited improvements, compared to 35% in the previous year. As a result, KPMG will be subject to increased scrutiny by the FRC.’

 

 

So what is it that the National Guardian wants to learn from the likes of Lloyds, RBS, KPMG and PwC?

Or is a mistake to assume that learning is the primary goal of the schmoozing?

The NGO disclosed via another FOI request (CQC IAT 1718 0886, 19 April 2018) that the National Guardian held two un-minuted meetings with KPMG:

KPMG meetings

It is troubling that a senior public servant should meet twice with a commercial organisation, and for there to be no record kept.

Also listed amongst PSN meeting attendees is an entity called Dexterity Solutions. It is not clear what its business is, but a business of the same name  which is listed as Company 06374717 by Companies House, has website which I find difficult to understand in its explanation of the services on offer. But it does post blogs such as ‘Creating a culture in 2 minutes’, and it advocates listening: “Acknowledging that what is said is important to the speaker”.

And what is the output of these grandiose, hugely expensive PSN meetings launched by the NGO? A glance at the impoverished content of the minutes would make any experienced whistleblowing campaigner want to cry.

Suggestions generated by PSN meeting 26 January 2018:

Output

This is all very basic. And some of it is evidence-free, such as the emphasis on internal Guardians employed by the organisations they are supposed to hold to account.

The disclosed papers reveal more barriers that the National Guardian has put in place against whistleblowers seeking help from her office. It appears that cases must be ‘practical to review’, whatever that means:

B Practical to review

It is galling to see precious public money wasted on frippery and empire building when the NGO turns down whistleblowers seeking help, and some whistleblowers are driven to bypass current NHS reporting mechanisms altogether because they cannot trust them

The sub-industry of employers, non-expert experts and hired guns congratulating each other for good whistleblowing governance builds careers and revolving door opportunities for some.

But whistleblowers continue to suffer whilst this unseemly festival of false assurance dances on.

Oh, and brace for a treat. A whole month of Freedom To Speak Up is on its way.

Weather forecast: Hurricane force selfies, torrential self congratulation.

B Oct

 

RELATED ITEMS

NHS whistleblowing isn’t fixed yet and this leaves patients exposed. An overview of unfinished policy business

Replacing the Public Interest Disclosure Act

Notably, Peter Wyman Chair of the CQC which employs the National Guardian, was a PwC partner and as Private Eye pointed out, a key figure in de-regulation

STFU not FTSU

 

 

 

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

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 12 September 2018

 

 

Summary: UK whistleblowing is utterly ineffective and fails to protect the public, or indeed whistleblowers.

It needs to be replaced and the campaign continues:

https://minhalexander.com/2018/07/18/replacing-the-public-interest-disclosure-act-pida/

But whenever law change is mooted, some hear opportunity knocking in a different way

There has been increasing lobbying to import a US model of ‘whistleblowing’ bounties. This is a lucrative business but is a far departure from whistleblowing in its truest sense, and raises problems of ethics, fairness and the efficient use of public funds.

There is insufficient data in the public domain on the effectiveness of US bounty schemes in protecting whistleblowers to conclude that they merit replication by the UK. The data that is available raises serious questions.

The use of bounties would be particularly problematic in the public sector as the model conflicts with Nolan principles of selflessness and strict neutrality.

This piece examines some of the background on bounties and a new All Party Parliamentary Group on whistleblowing. This APPG was established with financial contributions from a US bounty hunting law firm. Whistleblowers UK, a private company which has advocated for whistleblower rewards, has been paid by Constantine Cannon to act as APPG secretariat.

 

Whistleblowing is a social good. The European Commission and others have defined it as work-based speaking up in the public interest.

For many years, whistleblowers were viewed with suspicion and seen as no better than ‘rats’, ‘snitches’ and ‘stool pigeons’.

There have been occasional examples of ‘whistleblowers’ who have themselves been implicated in wrongdoing, such as falsification of records or who were paid bounties despite conviction for criminal breaches. Bradley Birkenfeld was paid $104m in bounties for reporting a tax fraud under US IRS rules, but he withheld some of the relevant information during the resulting investigation. He was eventually jailed for his part in tax evasion.This paper discusses the issues around the Birkenfeld case and others in more detail:

 Bounties for bad behaviour

But whistleblowing in its truest sense is altruistic, done in good faith and motivated only by the public interest.

That said, legal tests which require proof of utmost good faith are problematic, because they invite employers to attack whistleblowers’ character and fabricate smears.

There is also a wider public interest issue in ensuring that serious concerns are aired, even if motives may be ambiguous. For example, if whistleblowing disclosures are made in the context of an employment dispute.

But such pragmatic arguments can only be extended so far. The practice of actively incentivising whistleblowing with financial bounties is a much more ethically difficult matter. In the public sector, bounty models are incompatible with Nolan principles of selflessness, neutrality and the need for public servants to avoid any conflict of interest or actions motivated by personal gain. Bounties could undermine public trust.

In the health service, bounties for whistleblowing would conflict with the professional duty of candour and could erode public trust in healthcare professionals.

Bounty models would also cut across NHS contractual obligations introduced after the Winterbourne View scandal through changes in the NHS constitution, These require staff to raise concerns. From the public’s point of view, why should NHS staff be paid extra to do something which is already part of their job?

There are also practical problems with bounty models. They typically run on recovering financial assets, with a percentage of the spoils going to the person who raised the alarm. But how is such a model to work where there is no financial angle?

And how would it make sense to impose fines on a de-funded NHS that is little more than skin and bones, or take money from patient care for bounties? NHS Improvement has just admitted  that English NHS trusts have an underlying deficit of £4.3billion.

Taking a prime example, the US False Claims Act 1863 (FCA) was an emergency measure passed during the American civil war to stem a tide of fraudulent defence sales to the Union. Senator Howard who proposed the Bill explained that it was intended to induce fraudsters to betray their co-conspirators for a cash bung.

“In short, I have based the…sections upon the old-fashioned idea of hold out a temptation,” and “setting a rogue to catch a rogue…a reward for the informer who comes into court and betrays his co-conspirator”

Or as one author drily put it, ‘Riches for Snitches’. The idea was for anyone to litigate on financial fraud against the US government, on behalf of the US government. These are known as ‘qui tam’ suits (‘qui tam pro domino rege quam pro se ipso in hac parte sequitur’ or ‘who brings the action for the king as well as himself’). Qui tam actions were deployed in medieval England as a crude means of law enforcement by citizens where the Crown provided little infrastructure. Qui tam legislation had long been abolished in England.

The original False Claims Act bounty set in 1863 was an eye watering 50% of all assets recovered. Rough and ready justice. Fair enough under the exigencies of war, but there are better governance tools in quieter times.

The FCA fell into disrepute in the Second World War due to unpatriotic, so-called ‘parasitic’ and opportunistic claims. Adventurers piggy backed private FCA claims onto government criminal actions against fraudsters, which added nothing to the public interest. After representations by a disgusted Attorney General, Congress hogtied the FCA legislation in 1943 and discouraged bounty hunting under this provision for over forty years.

This is a history of the FCA:

False Claims Act – Incentivising integrity for 150 years for rogues, privateers, parasites and patriots

The FCA was revived in 1986 after scandals. This helped to spawn an industry which has netted billions in bounties. Bounties pay for claimants’ legal fees and a cut of the bounties typically go to specialist bounty hunting law firms. Phillips and Cohen one of the best known US bounty hunting law firms, reports that its whistleblowing suits have recovered over $12billion:

Phillips and Cohen

 

The modern FCA allows bounties of up to 30% of any money recovered by qui tam suits. The US government may join qui tam actions, ignore them or kick them out if, for example, they are considered ‘parasitic’ and a waste of public time and resources. An internal US Department of Justice memo from January 2018 reportedly revealed growing government impatience with the over-proliferation of FCA claims which are counter to the public interest.

According to US Departmen of Justice statistics, between 1986 and 2017 there were 11, 980 qui tam suits, which netted a total of $40,549,645,268 for the public purse. Of this, a total of $6,584,992,211(approximately 15%) was paid to bounty hunters.

Arithmetically, the US government is one up on the fraudsters. But is it right that vast amounts of precious public money have been given to individuals as bounties? Is appealing to greed the right way to tackle greed? Wasn’t legitimising greed and de-regulation of the markets part of the original problem? The jackpot model may get the government results, but also leaves some hungry. It is possible to be a genuine whistleblower who makes reasonable disclosures, but not to qualify for any award under a bounty scheme.

There is no complete, published dataset evident on the nature of FCA claims that have been made since 1986. The great majority of anecdotally reported cases feature financial fraud such as kickbacks and false billing. It is less common to come across FCA claims that are specifically about public safety. Arguments about fraud on the basis that the US government has been billed for health or social care that is so substandard that it is ‘worthless’  and constitutes fraud have been controversial. Some such claims have occasionally succeeded.

Regardless of whether such claims about substandard care succeed, the US government should arguably ensure that these concerns are passed to the relevant regulators as a matter of public protection. I asked the US Department of Justice if it tracked this category of claim and if it could furnish me with a list. It could not.

When the FCA was revived in 1986, anti-retaliation provision was added to the law, but there is no complete, published dataset evident on how whistleblowers have fared under these provisions. Unofficial sources suggest that only a minority of FCA claims result in bounties being awarded, and that many employees who whistleblow under the FCA have poor outcomes, which implies that protection has not been effective:

Whistleblowers, beware: Most claims end in disappointment and despair

There was even a totally bizarre case of Jeffrey Wertkin, a Department of Justice lawyer who was jailed for literally trying to sell out whistleblowers, who had claimed under the FCA, to their employers.

But markets march on. FCA claims need not be confined to US territory. They can be filed from abroad and this is a growing market:

“At least four awards have been made to whistleblowers who reside outside of the US, including SEC’s largest award-to-date of $30 million,” said Tim McCormack, partner at Constantine Cannon.” [2016]

 Two well known US bounty hunting law firms set up offices in the UK, Phillips and Cohen in 2016 and Constantine Cannon LLP in 2017 respectively. Constantine Cannon LLP reportedly tried for years to persuade UK authorities to adopt the US bounty model.

Earlier this year, Forbes reported that Constantine Cannon had teamed up with the organisation Whistleblowers UK. The same article discussed the possibility that a ‘billionaire whistleblower’ will result from the bounty schemes.

There have been multi-billion claims under the FCA. In July this year, Mary Inman of the bounty hunting law firm Constantine Cannon reported on a pending case of $5b healthcare fraud. So, working on a 30 percent bounty, it is theoretically possible for the False Claims Act system to issue a reward of over a billion dollars.

In a parliamentary debate about the finance sector on 18 January 2018 Norman Lamb MP, who secured the debate, called twice for the adoption of US style bounties:

 

Debate on RBS Global Restructuring Group and SMEs 18 January 2018

‘The truth is that whistleblowers have no real protection in this country. Contrast that with the situation in the United States, where the Dodd-Frank legislation introduced the Office of the Whistleblower, which is there to protect whistleblowers. Whistleblowers are rewarded financially for doing the right thing—they are awarded between 10% and 30% of the sanction collected against the firm, which can run into millions of dollars. What a contrast with the position in this country! We need our own office of the whistleblower, and whistleblowers should be guaranteed anonymity; they should be rewarded for their bravery. Maintaining the integrity of the banking system is of fundamental importance to all of us, and whistleblowers are necessary for that purpose.

… The Minister has not yet mentioned the role of whistleblowers. Does he agree that they are vital to maintaining the integrity of the financial system, that they need proper protection—an office of the whistleblower—and that they should be rewarded for being brave enough to reveal wrongdoing?”

 

A new whistleblowing All Party Parliamentary Group on whistleblowing was established over the summer. Its officers and full details of its secretariat were revealed on 29 August 2018.

Screen Shot 2018-09-11 at 15.23.30

Of great interest to whistleblowers, it became evident that Constantine Cannon had paid Whistleblowers UK to act as the APPG secretariat:

Whistleblowing APPG Constantine Cannon paid WBUK to act as secretariat

Whistleblowers UK is the trading name of a private company WhistleblowersUK Company number 09347927. (This is not to be confused with the original organisation Whistleblowers UK Company number 08112953, which was dissolved in 2015)

The CEO of Whistleblowers UK and her husband established two new  whistleblowing companies in May 2018, Whistleblower Legal Limited and Whistleblowers International Limited.

Whistleblowers UK has advocated for whistleblower rewards:

WBUK and rewards

I asked Whistleblowers UK for details of any disclosable donations under parliamentary APPG secretariat rules,  and whether the organisation had received any other remuneration from law firms with an interest in bounty hunting. The Chair of Whistleblowers UK has advised that there were no disclosable donations, but there was no response on the wider question of other remuneration: Correspondence with Whistleblowers UK 

Corporate funding for APPGs has been a controversial matter, as there is concern about the access that APPGs may provide to parliament and to ministers.

On 29 August when details of the new whistleblowing APPG were revealed, The Times ran a piece about the APPG, Whistleblowers UK and Constantine Cannon. The banner photograph was of bereaved families from the Gosport scandal about unnatural opiate related deaths, where whistleblowers first raised the alarm in 1991 but were ignored. It was eye catching, but this is precisely the sort of disaster that will not fit easily into bounty hunting schemes.

Whatever one makes of the new whistleblowing APPG, and despite Norman Lamb’s proposal to import the US Securities and Exchange Commission’s Dodd-Frank programme, the known facts about the programme are not compelling evidence of ethical governance.

SEC’s Dodd-Frank bounty programme commenced in 2011 and it invites disclosures from both employees and other sources. Tip offs to SEC have increased steadily since the programme’s inception:

SEC tip off statistics

Tipsters may qualify for a bounty of up to 30% if their intelligence contributes to government enforcement action that generates more than $1million in fines.

In its 2017 annual report, SEC advised that its bounty programme has resulted in over $975million fines and over $671million in ‘disgorgement of ill-gotten gains and interest’.  The programme has paid out a total of $160million in bounties to 46 individuals since inception. However, the Commission has been criticised for welching on its bounty deals and attempting to conceal this. In 2015, the Wall Street Journal obtained data which showed that 247 of 297 (83%) claims for bounties since 2011 had not received a decision from SEC.

Moreover, SEC prosecutes hundreds of enforcement actions every year:

SEC enforcement action statistics 2016 and 2017

but since the inception of its whistleblower programme in 2011 the Commission has undertaken only three enforcement actions for whistleblower retaliation under the Dodd-Frank provisions.

It also appears from government data that US financial sector whistleblowers fare poorly when they apply to the US Department of Labour for administrative remedies for reprisal.

The system is very complicated, but two important statutes under which US finance whistleblowers can file complaints are Sarbanes-Oxley and Dodd-Frank.

Department of Labour statistics show that between 2007 and 2017, out of 2054 cases received under the Sarbanes-Oxley administrative procedures, only 23 (1%) resulted in a clear win and finding of merit for whistleblowers. About a fifth of Sarbane-Oxley retaliation cases resulted in some sort of positive outcome, even if short of a clear finding of merit.

Department of Labour Sarbanes-Oxley whistleblower retaliation complaints statistics

Since the Dodd-Frank administrative procedures for whistleblower retaliation commenced in 2011, only 4 out of 281 (1.4%) complaints received resulted in a finding of merit. Less than a tenth of Dodd-Frank retaliation cases were considered to have a positive outcome for whistleblowers, in terms either of a clear finding of merit or settlement.

Department of Labour Dodd-Frank whistleblower retaliation complaint stats

Under Dodd-Frank some whistleblowers may be permitted to litigate after exhausting the administrative process for retaliation. There is no complete data on how they fare when they seek legal remedies for retaliation in the courts, but anecdotal reports have highlighted problems with how the law is interpreted, pro-employer bias and issues of jurisdiction. Most recently, SEC issued this discouraging clarification:

“On February 21, 2018, the United States Supreme Court issued an opinion in Digital Realty Trust, Inc. v. Somers stating that the Dodd-Frank anti-retaliation provisions only extend to those persons who provide information relating to a violation of the securities laws to the SEC.  To understand how this may affect you, we encourage you to consult with an attorney.”

As with the FCA, tip offs to SEC’s Dodd-Frank programme can be made from outside of US territory. In the Commission’s 2017 annual report, the UK led the field in that year with 84 tip offs, followed by Canada (73) and Australia (48).

Some may feel that the finance sector needs special arrangements for whistleblowing, for the greater good and in consideration of serious disruption to public services and misery that can be inflicted on millions of people from major financial disasters. But the Bank of England is very much opposed to bounties. Whilst some of the BoE’s observations about the effectiveness of bounty models in generating tip offs have been disputed, its general points about the ethical problems with bounties are well made. That said, the BoE’s limp offering of culture change is unacceptable:

“Our aim will be to ensure that the culture in firms is one where people are prepared to speak up, as part of improving behaviour throughout the firm.”

This mirrors the political line and tokenistic measures that the Westminster government has put in place for the NHS.

Neither the extremes of wilful blindness and impunity for retaliators, nor pitiless monetisation of whistleblowing which treats many whistleblowers as disposable, are acceptable. What is needed is seriously implemented protection for all genuine whistleblowers.

When Norman Lamb vice chair of the new whistleblowing APPG, was in power as a minister at BIS in 2012, he made some similar arguments to those made by the Bank of England in rejecting bounties. He warned of the inadvisability of mixing governance up with personal enrichment, the need to discourage “speculative” claims and to prevent speculative claims from harming genuine whistleblowers through disrepute:

Debate on Enterprise and Regulatory Reform Bill 3 July 2012

‘There have been calls to make the penalty payable to the individual, but I would strongly resist that. The measure is intended to benefit all employees by encouraging employers to behave better. That is addressed only at those employers that fall below the standards that any decent person would expect. The measure is not intended to benefit individual claimants directly. The only effect of such a step would be to incentivise employees to bring speculative claims—the very opposite of the steps that we are taking to deal with concerns about weak claims. The employee gains nothing from a decision that an employer has behaved particularly badly in an individual case. They get the compensation for the loss that they have suffered, as I have explained.

… To return to my explanation of the purpose of the clause and of why the Government have designed it in such a way, the decision in the case of Parkins v Sodexho Ltd has resulted in a fundamental change in how the Public Interest Disclosure Act operates and has widened its scope beyond what was originally intended….The ruling has left the Public Interest Disclosure Act open to abuse and is creating a level of uncertainty for business. Concerns have been expressed, underpinned by anecdotal evidence, which I appreciate is a dangerous word to use in this Committee, from lawyers—that is an even more dangerous word—that it is now common practice to encourage an individual to include a Public Interest Disclosure Act claim when making a claim at an employment tribunal, regardless of there being any public interest at stake. That has a negative effect on businesses, which face spending time preparing to deal unnecessarily with claims that lack a genuine public interest element. It also has a negative effect on genuine whistleblowers, by encouraging speculative claims.’

 

Protecting whistleblowers will never be easy. Bounty models by definition do not try hard enough to ensure that whistleblower protection is effective: the proffer of large rewards is a tacit acceptance of unacceptable levels of reprisal. It is by design a solution – of sorts – but for just a few. The house plays the numbers.

The bounty model of whistleblowing is a glorified one-armed bandit.

And it’s people who should count the most, not cash.

 

RELATED ITEMS

  • This is Mary Inman of the US law firm Constantine Cannon speaking about whistleblowing bounties and qui tam suits at the Byline festival on 24 August 2018:

https://www.youtube.com/watch?time_continue=1&v=QoY6FEEeTNI

Inman argued that the use of paid informants is an accepted technique of law enforcement.

 

  • In recent debates, there has been conflation of compromise agreements with ‘bounties’ and ‘bribes’. For example:

Ed Jesudason tweet bounties instead of pay offs for dropping concerns

David Drew tweet compromise agreements are bribes

Such statements imply that whistleblowers accept cash to keep quiet against the public interest. The reality is much more complex. Gags unquestionably do discourage some staff from speaking out, but many compromise agreements are implemented after a long battle, and after patient safety disclosures have been made. The clue is the name : compromise agreements are usually substandard and do not even compensate fairly for all serious loss. They quite often leave whistleblowers in chronic economic insecurity. From whistleblowers’ perspectives, settling may be a means of limiting litigation risk when there are mouths to feed, families to protect from the stress of endless disputes or self care when health has been seriously affected. What compromise agreements quite often hide are embarrassing details of what employers to whistleblowers, as opposed to the whistleblower’s original concerns. So in short, it is mostly victimisation and attrition that leads to compromise agreements. To equate this with ‘bounties’ or being ‘rewarded’ is not a serious argument.

The papers for this APPG show that it was working with the organisation Public Concern at Work (which was just re-branded and is now known as ‘Protect’) and Whistleblowers UK to establish an Office for the Whistleblower:

Banking APPG WBUK PCaW Office For the Whistleblower taken up by BEIS

Some finance sector whistleblowers have expressed concern that this APPG has also accepted industry funding.

 

One armed bandit

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

 

 

 

 

CQC case study. Snooping, Briefing, Porkies & Vexatiously Applied ‘Vexatious’ Protocols.   Personal data guide for campaigners

 

Summary

This is a piece to raise awareness amongst fellow campaigners about the importance of personal data as a tool when dealing with institutions that are seemingly opaque and unaccountable. I use an example of a ‘Subject Access Request’ for personal data that I made to the Care Quality Commission. This revealed institutional collusion and hostility, close surveillance of my online activity and revealed the reason for some critical failures to respond to some of my protected disclosures. Disclosed documents showed that this inaction was due to a deliberate, covert protocol of treating me as a ‘frequent correspondent’.

CQC’s internal deliberations show a crazy ambivalence. The organisation will largely not engage meaningfully, preferring to demonise and denigrate, yet secretly monitors me like a stalker.

Other whistleblowers have made similar discoveries.

Anyone can request their personal data, under the Data Protection Act, by making a so-called ‘Subject Access Request’ Organisations now have a month to respond. Guidance on your rights and how to make a request can be found on the Information Commissioner’s website. You can not only ask for all your personal data held by an organisation, but also the following questions:

·       What it is using your data for.

·       Who it is sharing your data with.

·       How long it will store your data, and how it made this decision.

·       Information on your rights to challenge the accuracy of your data, to have it deleted, or to object to its use.

·       Information on where your data came from.

·       Whether your data is used for profiling or automated decision making and how it is doing this.

·       If it has transferred your data to a third country or an international organisation, what security measures it took

When making a Subject Access Request it is useful to ask for the organisation’s correspondence about your request, as that too can be revealing.

 

The Care Quality Commission has a difficult reputation amongst patients, families and whistleblowers. In its troubled history, it has been repeatedly linked to cover ups and failures to be fully open with the public.

In regards to whistleblowers, CQC’s shortcomings include:

  • refusal to investigate individual cases
  • failure to follow up many whistleblowing disclosures (approximately half, according to its own statistics)
  • failures to safeguard whistleblowers’ confidentiality
  • failures to ensure that action is taken to remove unfit senior managers who victimise whistleblowers
  • failures to deter gagging
  • failures to sufficiently track and analyse data on whistleblowing events.

 

I asked the CQC for my personal data. The CQC exceeded the statutory time limit by over four months, pleading an excessive volume. This was undermined by the fact that I was aware CQC had processed a bigger request, for another whistleblower, in shorter time.

When the data eventually arrived in June 2017, in dribs and drabs, it was not in original format. Instead of scanning documents and redacting conventionally as CQC normally does, CQC had copied and pasted all the data into enormous documents. These had chunks deleted rather than blacked out. I suspect this was in some way a subterfuge.

Even from what was revealed, one could see why CQC might be a bit embarrassed. There is too much to report comprehensively, so I will cover a few highlights.

There is repeated evidence of ‘close’ CQC surveillance of my social media activity, including by ‘James’. This an email from David Behan CQC CEO’s office of 29 May 2015:

B James

This internal CQC email made it sound as if I publicly tried to discuss Dr Kevin Beatt’s case with CQC by twitter.

 

This was a distortion. What I did was publicise CQC’s questionable handling:

B Beatt

But that is how one creates a monster, by greasing and sliding facts around to give a certain impression.

CQC officers repeatedly circulated links to my blogs and tweets amongst themselves.

David Behan himself, CQC’s CEO from 2012 until this July 2018, dog whistled the social media surveillance:

B Behan monitor tweets

CQC’s internal documents showed that the regulator conducted a laughable assessment of the merits of one of the FPPR referrals that I made. This is despite CQC telling some other referrers that it had no remit to make any such judgments of the merits of referrals, and that only providers could make that determination. CQC’s determination of my FPPR referral included taking evidence from a CQC manager who had ceased to be involved in the matter long before certain index events occurred. And as all of this was done covertly by CQC and never disclosed to me at the material time, I had no right of reply.

There was a fair sprinkling of derogatory comments by CQC officers in the disclosed papers, mostly expressing resentment at the level of correspondence from me, with no evidence of any reflection by CQC that my persistence could be due to CQC’s failure to address issues. CQC portrays itself as reasonable and accommodating.

Andrea Sutcliffe a CQC Chief Inspector described me as a “trenchant and relentless” critic of the CQC and Eileen Milner Director of Customer and Corporate Services accused me of “wilful misrepresentation” over a dispute in 2015 about whether CQC was doing enough to track whistleblowing events. History is on my side as CQC has had to change its practices since then. In 2017, CQC started publishing data on whistleblowing events and outcomes.

B WILFUL

The unpleasant comments by some CQC staff had the quality of Chinese whispers. Misinformation abounds. A good example is this peevish outburst by a CQC member of staff who implied that dealing with whistleblowers was not work, and was wont to believe that I was responsible for 250 items of correspondence:

B 250

Their colleague put them right on the over-inflated 250 figure:

55

It is clear from the internal correspondence that CQC treated me as if I was vexatious, applying a covert protocol coordinated by the CEO and Chair’s office. Again, Behan had a hand in this:

B Behan ordered protocol

Behan strengthened the subsequent protocol designed by staff at his request by adding an instruction that there should be director oversight of my containment protocol:

B Behan director

As per the above Director of Legal Services’ email of 3 May 2016, CQC was not content to just denigrate me within its internal workings, but upon Behan’s instruction it explicitly sought to spread its view of me to other bodies and to coordinate approaches.

Because CQC redacted some third party information, I have no idea who some of these people are.

But I do know that when CQC consulted with NHS Improvement as a third party over releasing personal data to me, it unsubtly flagged its reluctance to disclose by writing this warning to NHSI:

B NHSI

Interestingly, I also discovered that Rosie Cooper MP forwarded one of my letter to the Health Committee to CQC, with no explanation of her purpose in doing so:

B Cooper

Behan wrote to all CQC Board members about my pariah status, the letter having been crafted by various managers including the head of legal services:

B Behan Board

The ‘she identifies herself as a whistleblower’ is a nice piece of Goebbelism. I made numerous very serious patient safety disclosures to CQC which were vindicated and led to regulatory action. I have repeated correspondence from CQC recording this fact. Behan himself acknowledged in a letter of 25 May 2013 and on subsequent occasions that I made entirely valid disclosures to the regulator:

Screen Shot 2018-09-05 at 15.32.32

What a difference three years makes. From ‘valuable’ to ‘vexatious’.

But re-defining the fact of my whistleblowing to a matter of subjective preference was all part of the de-legitimisation game.

CQC never did openly declare me vexatious, but it became very obvious that all my mail was controlled by Behan’s office.

When I questioned Mike Richards CQC Chief Inspector of Hospitals about the fact that he made a factually inaccurate claim to The Times that NHS gagging had ceased, Behan’s office reassuringly took it off his hands and reaffirmed that all my correspondence was centrally controlled:

B Richards

In February 2016 I had a meeting with the first National Guardian, Eileen Sills. I later found out from the Subject Access Request that she asked for a ‘briefing’ on me beforehand from the CQC:

B BRIEFING

The final version of the briefing was not in the bundle, and there is an implication that it was given orally. However, the trail shows an initial draft by Behan’s office was a lengthy rant, and was rejected by another manager as inappropriate in its content. I can only guess what might have been said instead of written. But so much for the mythical independence of the National Guardian’s Office, which is no more than a sub committee of the CQC. There were other examples of collusion and poor boundaries between the CQC and the National Guardian’s Office. Such as this huddle over the contents of my blog:

B HUDDLE

This was around the time that another whistleblower says they were approached by one of the National Guardian’s spin doctors at a public forum, who started berating me in a staged manner.

Ironically the person hired by CQC to improve customer services, including whistleblower engagement, the ‘Customer Experience Lead’, was amongst the most derogatory:

B Fawcett cost

Fawcett added to the heap of Chinese whispers by claiming that I wrongly stated that I had been promised terms of reference for the project on improving CQC’s response to whistleblowers:

B Fawcett ToR

Contrary to Fawcett’s account, this is the written promise by her colleague to provide me with ToR, which Fawcett falsely claimed was never made:

B Luxton

The significance of this is that CQC invited me to take part in the improvement exercise, but I declined to do so unless give sight of the ToR. It then became false CQC orthodoxy that I just refused to take part and that I made up the story about being promised ToR. Monster Myth 101.

And my crime from Fawcetts’s point of view? Asking CQC to do some basic governance work on supporting and protecting whistleblowers which it had already been asked to do by Robert Francis and since by others. That is, ensuring tracking and analysis of whistleblowing data, better inspection methodology of whistleblowing governance and better application of Regulation 5 Fit and Proper Persons. The CQC is in retreat on all of these areas, and I anticipate that it will be forced to concede more ground as its failures are increasingly exposed.

An extraordinary doublethink runs through some of the internal CQC correspondence. For example, the Information Rights Manager claimed on 3 January 2017 that I had just looked for evidence of CQC failure:

B FAILURE

CQC seems to find it hard to ask questions such as ‘Is this a fair challenge? Should we have thought of this before? Should this have been part of our regular governance? What can we learn?’ Instead, CQC’s repeated stance is ‘How dare you’.

In the same email, which is mostly taken up with complaining about dealing with me, the Information Rights Manager conceded that I was correct about fundamental CQC failures of whistleblowing governance:

B Assertions

CQC’s hypocrisy is reflected in its awareness that it ought to engage with its critics’ concerns, but the fact that it mostly only does so if there is any prospect of public exposure.

Behan sent out this ‘urgent’ request to his team for help just prior to an accountability hearing with the Health Select Committee, which includes a request to be updated about any outstanding matters in my case:

B Urgent

Readers will note that I was not the only person on Behan’s list.

Likewise, in November 2016 CQC initially deliberately did not engage with evidence that I collated about CQC’s failure to adequately regulate the use of restraint in mental health. I had by now stopped writing much to CQC as there was little point given its attitude.

B RESTRAINT

After Behan was publicly quizzed by the Health Select Committee about my evidence in December 2016, there were internal CQC emails identifying me as the person responsible for alerting Health Committee:

B SOURCE

The focus, one way or another, was more on projecting blame onto me and less on dealing with CQC’s serious failure to protect patients from huge variations in use of physical restraint.

In the same vein, Behan sent this internal email requesting that some correspondence be expedited because I had been tweeting at the weekend at about it:

B WEEKEND

The disclosed papers afforded some comic moments. Here is an occasion when the regulator picked up an undercover media report of care home abuse as a result of snooping on me:

B Panorama

Robert Francis joined in with some of the ‘she’s a pest who writes too much’ chorus, and agreed with the containment protocol that Behan wanted to apply in my case. But interestingly, he was repeatedly a lone voice pointing out that I had a point. For example on:

  • The need to acknowledge the National Guardian’s status and responsibilities as a Prescribed Person under the Public Interest Disclosure Act

B Prescribed

 

  • CQC’s application of FPPR

B FPPR

  • Some NHS trust’s continuing, heavy use of gagging clauses

B Gagging

Francis opined at one point that CQC needed to either ‘rebut or acknowledge’ points which I had raised.

Lastly, the most serious revelation was a little email which must have slipped past the CQC cull of documents to be concealed.

2012

As above, Behan’s office informed Mike Mire NED that CQC had been treating me as a ‘frequent correspondent’ since 2012. The date is very significant.

The internal CQC correspondence from 2012 about how this decision was made, to manage me as a ‘frequent correspondent’, was absent from the disclosed documents.

That is unsurprising as CQC could hardly have justified any decision to treat me as ‘frequent correspondent’ on the basis of my evidenced, measured, stepped disclosure correspondence. Nor could it have explained how a witness it had treated as wholly reliable for two years had suddenly morphed into a purported green ink case.

2012 was the year in which CQC started inexplicably ignoring my continuing, very serious disclosures. Prior to that, whilst the CQC response had not always been ideal, there had at least been a response and action, which had culminated in major leadership changes at an NHS trust.

In 2012 CQC had deemed that through the magical touch of regulation, all was improving. My continued disclosures about persisting safety issues were therefore not welcome. And now I know that CQC simply pressed the mute button.

As a result of CQC repeatedly ignoring my very serious disclosures, I had to escalate to David Behan himself at the end of 2012.  The disclosures concerned matters such as deaths in custody and a patient’s complaint about Winterbourne View type abuse against patients on a locked ward and serious staff reprisal against him for speaking up.  But as CQC had  already declared me persona non grata, Behan ignored me too.

CQC must have eventually realised that they had screwed up. But, instead of taking immediate action to follow up on my patient safety concerns and to ensure that the patient who had complained about abuse was protected from reprisal, Behan knee-jerked by bizarrely launching a complaint investigation which I had not asked for.

Needless to say CQC’s complaint ‘investigation’ exonerated CQC, apart from a small slap on the wrist for inadvertent delay and not answering questions straightforwardly enough. The investigation reported nothing about CQC deliberately not responding to whistleblowing disclosures as a matter of protocol. The investigator indulged in a factual inaccuracy for good measure, by claiming that a complaints manager tried to telephone me several times but could not get through.

“Ms ******* has not been in touch; I know that she has tried to reach you by telephone on a number of occasions.”

I in fact received an email from the same individual stating they did not have my telephone number:

“I apologise I have not been able to speak with you but I have not got a contact number for you.”

And what is the investigator picked by Behan to investigate his conduct towards me doing now? She is CQC’s very own Freedom To Speak Up Guardian.

Other whistleblowers have made similar discoveries through Subject Access Requests. For example, Pam Linton senior midwife who whistleblew to CQC about Homerton maternity services established that CQC failed to act upon her concerns. Another whistleblower found that CQC even has a flow chart for them, as part of a containment protocol. There are others.

So, fellow travellers, be not daunted by overbearing and porkie prone officialdom. Its arrogance is often its weakness. If you feel you are being pushed around or given the runaround, make full use of your rights under the Data Protection Act.

 

RELATED ITEMS

This is a CQC policy which includes procedures for containing members of the public whom it considers troublesome:

https://minhalexander.files.wordpress.com/2018/08/cqc-board-paper-complaints-whistleblowing-2010-cm0031008_complaints__whistleblowing_-1.doc

The use by NHS bodies such as the CQC of covert protocols to denigrate and discriminate against patients, families and whistleblowers who are treated as if they are ‘vexatious’ is an unpleasant infringement of rights. Its secret nature means that unfairness and misinformation cannot be challenged, and that name calling becomes a self-perpetuating exercise.

I have asked NHS England in the first instance to coordinate a system-wide response on these issues of rights abuse:

https://minhalexander.files.wordpress.com/2018/08/letter-to-nhs-england-neil-churchill-28-08-2018-nhs-approach-to-vexatious-people.docx

 

APPENDIX

  1. CQC – please file as appropriate
  2. Jed Mercurio – feel free to adapt as a comedy thriller
  3. NB. CQC’s mis-named system of ‘intelligent monitoring’ has been binned. May it rest in pieces.

 

UPDATE 19 SEPTEMBER 2018:

Alarmingly, CQC’s papers for its board meeting today show that the proportion of whistleblowing concerns for which CQC takes no follow up action has jumped from approximately 50% to 70%.

CQC was given a chance to apologise for its above behaviour and to put better systems in place, so that in future it would not unfairly stigmatise patients, families and whistleblowers.

I received a very unfortunate reply from Ian Trenholm, CQC’s new CEO, to which I will return another time.

In the meantime, in consultation with NHS England and NHS Improvement, the Department of Health and Social Care has agreed to review central guidance about how NHS organisations should handle situations in which they think members of the public are unreasonable or inappropriately persistent. This is the relevant correspondence from NHS England:

Correspondence with NHS England about the NHS treating patients, families and whistleblowers as ‘vexatious’

Anyone who would like to make suggestions for fairer processes and safeguards can direct them to Chris Bostock, Head of Complaints at the Department of Health and Social Care.

NHS England has advised that suggestions for some form of independent review are welcome:

“…we would be interested in ideas about how & in what circumstances external auditing might be appropriate, including oversight by patient and public voice groups locally”

 

 

STFU not FTSU