By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist, 23 February 2021
Summary: Barts Health NHS Trust has been found guilty of victimising Jeyran Panahian-Jand a bona fide whistleblower who raised concerns that the trust was discriminating against BME staff in unfavourable allocation of work. The Times covered this story today, but missed out the most serious aspect: the trust’s cover up of investigation findings that were in the whistleblower’s favour.
Most seriously, the ET concluded that a trust manager who is an associate trust director was part of a trust cover up of investigation findings that there was race discrimination at the trust: “…we are very concerned here that the Trust went to the expense of an independent investigation but has then misrepresented and diminished the findings of that investigation to the complainant and the ward manager”.
The trust has a predominantly white trust board (fourteen of eighteen directors) despite its catchment being one of the most diverse. The trust’s own documents show that based on 2011 data, only 41% of the trust’s catchment area is composed of white people.
Barts also relies on an outsourced Freedom To Speak Up Guardian, supplied by a private company, which carries a risk of reduced trust board accountability.
The details of the case and background issues about governance problems at Barts follow.
MsJeyran Panahian-Jand v Barts Health NHS Trust whistleblowing case
An Employment Tribunal has found that Jeyran Panahian-Jand a paediatric bank nurse at Barts was victimised after she made public interest disclosures on 14 May 2019 about staff racial segregation on a ward where she had worked, and raised a concern that white staff were being treated preferentially in terms of work allocation.
Just two weeks after whistleblowing, on 30 May 2019 she was banned from working on Acorn ward, Whipps Cross Hospital on insubstantial allegations of misconduct. She was accused of continuing to talk about her concerns after the ward manager claimed they were upsetting other staff and that she should stop airing them.
Ms Panahian-Jand was not allowed back to work on Acorn ward even after an investigation found there was no case against her. The trust failed to give her the findings of the investigation and astonishingly, she had to make a Subject Access Request to obtain the investigation report.
The trust dragged out her restriction wholly unreasonably, and the ET had to make a recommendation at the time of issuing its judgment on10 February 2021 that the trust should lift the ban against Ms Panahian-Jand working on Acorn ward within 4 weeks:
“Pursuant to section 124 of the Equality Act 2010, the Tribunal recommends that, no later than 4 weeks after this Judgment is sent to the parties, the restriction on the Claimant working at Acorn Ward and at Whipps Cross Hospital be removed.”
The Employment Tribunal concluded that the ward manager handled Ms Panahian-Jand’s whistleblowing concerns unfairly and had exaggerated claims that other staff were upset and did not want Ms Panahian-Jand to return to the ward.
The ET concluded that there was only a “loud minority” who were hostile to Ms Panahian-Jand and that this should not have stopped her return after the trust found no case to answer.
“We are not satisfied that there are any more than 4 members of staff on a ward of 60 who are concerned about the Claimant’s return. They have formed a loud minority.”
The ET determined that the ward manager did not respond to Ms Panahian-Jand’s whistleblowing appropriately because she was concerned Ms Panahian-Jand’s disclosures reflected badly on her management of the ward.
“We acknowledge that Mrs Roberts was an inexperienced manager. We consider her memory of the staff response on Acorn ward is likely exaggerated because she herself was uncomfortable and upset by the allegations as a reflection on her own management. She had wanted a happy ward.”
“Mrs Roberts was plainly herself uncomfortable at hearing the allegations. She had not wished to deal with them in an informal way, contrary to both the Whistle-blowing procedure and the Dignity at Work procedure, and indeed had straightaway rejected the correctness of the allegation about allocation. We have concluded thatMrs Roberts saw them as a reflection on her management.”
The trust commissioned an internal investigation into the counter-allegations against Ms Panahian-Jand which the ET noted came to an “unambiguous” conclusion that there was no case to answer. The investigator reportedly concluded that Ms Panahian-Jand had been wrongly suspended on flimsy evidence.
The trust however delayed providing Ms Panahian-Jand with this investigation report despite several requests. Extraordinarily, Barts only gave her the report after she made a Subject Access Request for it.
“Despite the Claimant’s many, polite requests, Mrs Kara’s report was not provided to her until she made a subject access request for it.”
Barts commissioned a quasi-independent investigation into her public interest disclosures:
“The Claimant’s race discrimination complaint was investigated by Mrs Cooper-James, Head of Investigations Services at London Audit, which is hosted by the Trust and therefore to some extent independent of it.”
There was bias by the trust from the outset. The ET concluded that internal correspondence between Mrs Stephenson Associate Director of Nursing for Children and Simon Steward (then Head of Human Resources, and now Head of People at Whipps Cross) showed that Mr Steward was hoping that Ms Panahian-Jand’s allegations of race discrimination would fall apart:
“79. Mrs Stephenson asked Mr Steward whether a 6-8 week estimate was reasonable for the investigation. He answered: If a full-time investigator is on this, I think it is feasible to do this. Many of the points are at this stage, statements without evidence and we would need to clarify who witnessed them. I have added in complaints from patients and staff because if there are none, the allegations, begin to fall apart. (our emphasis) .
80. The Claimant suggests this shows Mr Steward’s wish to see the allegations fall apart. Mr Steward said he was simply adding in that complaints should be looked at as they would provide independent evidence.
81. While it may have been relevant to look for complaints, that there had been none in the past, does not necessarily suggest that this complaint would be without merit. We therefore agree with the Claimant that this wording does suggest a hope that the complaint would fall apart.”
Despite the trust’s biased approach to the investigation of Ms Panahian-Jand’s whistleblowing disclosures, the relatively independent investigator concluded there was evidence to support Ms Panahian-Jand’s concerns:
“Mrs Cooper-James did find evidence to support the three race discrimination allegations first raised informally with Mrs Roberts on 11 May 2019 (allocation; groups on the ward, and bullying)”
Ms Goldsmith the then Head of Midwifery and now commissioning manager was one of the managers handling Ms Panahian-Jand’s case. According to the ET, she and Simon Steward minimised the investigation findings of race discrimination.
In their respective witness statements to the ET, they reportedly both used the phrase “‘no real evidence of discrimination’”. The ET described their claim as “patently incorrect” and castigated their distortion of the investigation findings:
“Why have both of these witnesses told the Tribunal there was no real evidence of discrimination, when on any fair reading of Mrs CooperJames’ report there was some? We are astonished by this. The Trust has sought to hide in its summary of the report, evidence of race discrimination found in the investigation. Mr Steward plainly did not want these findings aired and it supports us in our conclusion that he hoped the allegations would fail.”
Simon Steward drafted an outcome letter for Ms Goldsmith which falsely claimed that three of Ms Panahian-Jand’s central concerns had not been upheld:
“Mr Steward drafted a letter for Ms Goldsmith, which summarised Mrs CooperJames’ findings in a letter to the Claimant on 4 February 2020 (498). We have only looked at those 3 allegations that the Claimant raised initially, but the summary is not fair as Mr Steward accepted in his oral evidence:
84.1. Allegation 6: ‘If there is evidence of racial discrimination of staff members particularly those from non-white backgrounds’. Mr Steward’s summary says that ‘No evidence was found though divisions were expressed and diversity and inclusion training was recommended.’ Whereas Mrs Cooper-James reported ‘Evidence has been found of racial discrimination against staff. Non-White staff speak of a definite divide within the Ward according to race. It is indicative that all but one of the BME staff interviewed expressed that a divide was present. However, all white staff expressed there was no such divide.’
84.2. Allegation 23: ‘If patient allocation is equitable across the Team on duty regardless of race or colour.’ Mr Steward writes ‘In order that there is clarity around the allocation of patients, it is recommended that all staff are involved (where practicable) in the allocation of patients.’ Whereas Mrs Cooper-James plainly concludes there is evidence to substantiate the allegation because all but one of the BME staff stated they felt they were given the heavier workload (376-377).
84.3. Allegation 26: in relation to staff bullying. Mr Steward writes: ‘If staff believe there is bullying on Acorn Ward. Other members of staff should be invited to make complaints if they wish to do so.’ Whereas Mrs Cooper-James stated in terms that evidence had been found to substantiate that staff believed there was bullying on the ward.”
Ms Panahian-Jand experienced retaliatory intimidation from a nursing colleague who physically blocked her path on two occasions. The trust failed to investigate her grievance about this,
“The Trust did not investigate the incident with Miss Hook even though the Claimant reported it to HR promptly and was told it would be reported. That, too, was a disadvantage because the Claimant could reasonably view it to be the Trust not taking seriously a complaint of hostile behaviour towards a whistle-blower/someone who complained of race discrimination. This was contrary to the Trust’s whistle-blowing policy, which made it clear employees should be able to challenge inappropriate behaviour without fear of reprisal.“
Yet the trust speciously justified its hostile actions against Ms Panahian-Jand, claiming it was concerned about her safety. The ET treated this with the contempt it deserved:
“90.4. Mr Steward referred to the safety of the Claimant as an issue because of her complaint. If at that point it was felt she was unsafe, then it was for the Trust to consider suspending/restricting the individuals complained about. It was not within their procedures to suspend a complainant. In December when finally asked about this the Claimant did not have safety concerns.”
Instead of protecting Ms Panahian-Jand from victimisation for raising concerns about race discrimination, the trust effectively penalised her for filing a grievance about being physically intimidated in that it used the grievance to continue her ban from Acorn ward:
“Indeed Mr Steward’s initial email shows that the hold-up is all about the fact of the Claimant bringing her grievance (a protected act) and the potential upset of other staff members. The grievance would not have caused him to restrict the Claimant and should not have caused the continuation of the restriction.”
The ET judgment ended with the following damning comments:
“217. We are concerned that the approach of managers to this complaint seems to have taken little heed of the Trust’s whistleblowing policy. And no manager, even the Director of People, appears to have fully understood the victimisation provisions of the Equality Act. Complainants should not be treated as the problem.
218. Finally, we are very concerned here that the Trust went to the expense of an independent investigation but has then misrepresented and diminished the findings of that investigation to the complainant and the ward manager. Mrs Cooper-James’ found some evidence of potential race discrimination in work allocation and divisions on the ward. These findings were diminished by the Trust’s internal summary (and in witness statements to us) to a point where it hardly appeared that there may be a problem. There is plainly still much work to be done.”
The Times covered the case today but did not acknowledge the ET’s concern about a managerial cover up of investigation findings.
Ms Panahian-Jand may have ‘won’ her ET claim and been awarded £26,083.19 compensation for her pains, but the matter has the potential to seriously affect her career, as the NHS can have a long, vindictive memory. She has also suffered a totally avoidable ordeal simply because a few individuals sought quite foolishly and unethically to manage individual and organisational reputation. There was no existing mechanism in law that she could trigger at early stage to challenge the mishandling of her case.
But will Barts’ misconduct matter? Will the managers involved be held to account, or will they be protected? Did they harm a whistleblower because they believed it was what trust senior leadership expected of them? If so, promotion may be more likely than disciplinary action, but we shall see. I will ask Barts what learning it has taken from this case.
I should say that I have found Barts to be one of the worst trusts in terms of unaccountability and blocking of FOI requests about whistleblowing governance, which points to senior leadership failure.
It is also worth noting that Barts have relied on the private services of a company which specialises in providing outsourced Freedom To Speak Up Guardians. This is a means by which some NHS boards can potentially reduce accountability.
I am not sure if the Head of People for Whipps Cross would be seen as a director for the purposes of CQC Regulation Fit and Proper Persons (FPPR). He appears on the trust website as an associate director:
But CQC has in the past indicated that it would consider whether managers’ roles were effectively director posts whatever their titles.
A gap in the current system is that middle grade managers who harm whistleblowers fly under the radar of FPPR, but may at a future point be promoted to positions of greater power where they can potentially inflict more harm on subordinates.
It is cause for concern that the NHS establishment continues to resist proper managerial regulation.
Whistleblowers need the proper protection of law and strong enforcement systems.
If you have not done so, please sign and help share this petition to parliament for whistleblowing law reform.
By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist 21 February 2021
Summary: The government through NHS Improvement continues to be secretive about the much delayed implementation of the Kark review on Fit and Proper Persons in the NHS, whilst scandals continue. There is now a new scandal about possible CV fraud by Mason Fitzgerald, an NHS director who has worked at two mental health trusts and who was previously appointed to NHS Improvement’s Independent Panel advising NHS trust governors. However, CQC had claimed that all directors’ personnel files were in order at his current trust, Norfolk and Suffolk NHS Foundation Trust.
CQC’s published inspection material shows that the regulator does not produce standardised, complete evidence from its inspections. CQC does not reliably show that it checks that NHS trusts fulfil their Fit and Proper Person obligations. This includes verification of directors’ qualifications. Only in four of fifty three recent mental health inspections did CQC explicitly refer to checks of qualifications. In seventeen of the fifty three inspections CQC produced no evidence that it checked directors’ files for compliance with Regulation 5 Fit and Proper Persons (FPPR). Moreover CQC often checks only a selection rather than all directors’ files, and there appears to be variability in the level and frequency of disclosure and barring vetting required by different CQC teams. Even at a trust where a director had admitted CV fraud, Oxford University Hospitals NHS Foundation Trust, CQC produced no evidence in its inspection material of Fit and Proper Person checks of directors’ files.
In addition, Mason Fitzgerald would have been subject to an NHS Improvement Fit and Proper Person test by when the regulator previously appointed him to its Independent Panel to advise trust governors, and NHSI thus also has some questions to answer.
Steve Barclay the former Minister of State at the Department of Health and Social Care commissioned the Kark review on how the NHS fails to ensure that its senior managers are Fit and Proper Persons. This followed Bill Kirkup’s report on gross executive failures at Liverpool Community Health NHS Trust – sometimes referred to as Jeremy Hunt’s MidStaffs, because of similar themes of financial compliance dominance over care standards. The triggering of the Kark review followed many serious examples of CQC failing to respond appropriately to referrals of unfit NHS executives under Regulation 5.
Matt Hancock the Health Secretary cynically handed oversight of the implementation of the Kark review recommendations to NHS Improvement, a body centrally implicated in many serious FPPR failures. NHSI has helped shelter and recycle abusers and wrongdoers. Indeed, NHS Improvement appointed a director who was later convicted of fraud, and showed little inclination to learn after this was exposed:
NHS Improvement has done its best to seek dilution of the Kark recommendations, and has grossly delayed action. It has populated a steering group with establishment figures and a single token whistleblower – who is actually employed as an NHS trust as a Freedom To Speak Up Guardian, raising issues about independence.
I pressed NHS Improvement to be transparent about progress on the Kark implementation, and received a farcically opaque response after much chasing and a complaint about NHSI’s Chief People Officer’s repeated failure to respond to enquiries. The documents obtained from NHSI were redacted to the point of absurdity:
“Recruitment files demonstrated all appointments to the board had been completed in line with fit and proper person guidelines. More recent appointments demonstrated the improved involvement of governors in recruitment and there had been efforts to involve people who use services in the recruitment process more recently.”
Was this claim true? Did there appear to be documentary proof of the law degree in Fitzgerald’s personnel file? Or did this inspection cut corners and falsely claim that it had checked everything?
The CQC inspection team which claimed that all Norfolk and Suffolk board appointments complied with Regulation 5 comprised:
“Julie Meikle, Head of Hospital Inspection, CQC and Jane Crolley, Inspection Manager, CQC led this inspection. One executive reviewer and two specialist professional advisor with board experience and knowledge of governance supported our inspection of well-led for the trust overall. The team for the eight core service inspections included three inspection managers, 17 further inspectors,16 specialist advisors and 10 experts by experience.”
A quick look at CQC’s recent inspection reports and supporting evidence appendices reveals that CQC does not demonstrate in any reliable, standardised way that it carries out comprehensive checks of trust directors’ credentials.
A spreadsheet collating my findings can be found here.
I found seventeen out of fifty three (32%) recent CQC inspections of trusts which provide mental health services, did not produce evidence that Fit and Proper Person checks were made on trust directors’ personnel files:
Some of these seventeen trusts, where CQC failed to provide evidence of FPPR checks, have directors about whom whistleblowers had raised concerns with the CQC.
Where CQC made reference to Fit and Proper Person checks in inspection records, there was great variability in the level of detail given. The evidence produced by CQC could be as terse as:
Some CQC inspections teams checked all directors’ personnel files. But many inspection teams checked only a “selection” of directors’ personnel files, leaving it open to fraudsters and chancers to roll the dice.
“The provider must regularly review the fitness of directors to ensure that they remain fit for the role they are in.”
However, CQC’s inspection records show that many inspection teams are only checking the files of the most recently appointed trust directors, implying that inspectors take the dubious view that appointment checks suffice on their own.
There is also variability in what CQC tolerates in terms of how trusts seek vetting by the Disclosure and Barring Scheme. Some inspection teams seemed to accept lack of refreshment of DBS checks, or lower levels of DBS checks than others.
Not all inspection teams gave evidence that they had checked directors’ files for declarations of interest or information on health.
CQC findings on Fit and Proper Persons were sometimes only found in the evidence appendices, and not the substantive CQC inspection reports. Evidence appendices were not published for all inspections.
An unattractive aspect of the NHS is protectionism and club culture, particularly where the over-promoted defend their interests – and inflated salaries – by any desperate means available.
CQC has institutionalised some of this club culture in that it has invited trust directors to take part in inspections of their peers – surely an invitation to backscratching:
I looked at the teams behind the seventeen CQC mental health inspections which did not produce any evidence of Fit and Proper Person checks.
CQC does not always name the senior staff responsible for its inspections. But where names were given, these were the CQC staff associated with the seventeen inspections that did not produce evidence of Fit and Proper Person checks:
Kathryn Mason Head of Hospital Inspection x 3 inspections
Jane Ray Head of Hospital Inspection x 3 inspections
Serena Coleman Inspection Manager x 2 inspections
Helen Rawlings Head of Hospital Inspection x 1 inspection
Karen Bennett-Wilson Head of Hospital Inspection x 1 inspection
Emma Bekefi Inspection Manager x 1 inspection
Surinder Kaur Inspection Manager x 1 inspection
Natasha Sloman Head of Inspection x 1 inspection
Evan Humphries Inspection Manager x 1 inspection
The “executive Reviewers” (senior managers whom CQC recruits to “support inspections of the leadership of trusts”) who took part in the seventeen inspections of concern were:
Samantha Allen CEO Sussex Partnership NHS Foundation Trust x 1 inspection
Beverly Murphy Director of Nursing West London NHS Trust x 1 inspection
Jagtar Singh Chair of Coventry and Warwickshire NHS Trust x 1 inspection
Aidan Thomas former CEO of Norfolk and Suffolk NHS Foundation Trust and Cambridgeshire and Peterborough NHS Foundation Trust x 1 inspection
David Rogers Chair of North Staffordshire Combined Healthcare NHS trust x 1 inspection
Paul Devlin Chair of Lincolnshire Partnership NHS Trust x 1 inspection
Martin Gower Chair of Midlands Partnership NHS Foundation Trust x 1 inspection
John Vaughan Director of Strategy and Performance, Central and North West London NHS Foundation Trust x 1 inspection
In addition to trusts which provide mental health services, I also looked at a selection of other types of trusts.
A particularly detailed CQC entry was made on the Fit and Proper Person checks at West Suffolk NHS Foundation Trust, where Matt Hancock was implicated in a whistleblower scandal but is currently sitting on an investigation into the affair. CQC’s identified missing references for some directors.
At North Lincolnshire and Goole NHS Foundation where the trust Chair was criticised for derogatory comments about a whistleblower, CQC “found gaps in some files including lack of qualification and professional body checks, and interview notes.”
However, prior to Knight’s admission of CV fraud, a CQC inspection report of March 2018 concluded that the trust was compliant with Regulation 5 Fit and Proper Persons based on checking only three directors’ personnel files:
Worryingly, CQC’s 2019 inspection records on OUH gave no evidence that the regulator had performed Fit and Proper checks of directors’ files, when one would have thought this would have been an important issue.
“Amanda Williams Head of Hospital Inspections led this inspection. An executive reviewer, Sarah Connery, Director of Finance and Information supported our inspection of well-led for the trust overall. The team included two inspection managers, 15 inspectors and one assistant inspector and 18 specialist advisers.”
The 2019 CQC inspection team at Devon Partnership comprised:
“Karen Bennett-Wilson, Head of Hospital Inspection for South West Mental Health chaired this inspection and Evan Humphries, Inspection Manager, led it. Executive reviewers supported our inspection of well-led for the trust overall. The team included inspectors, executive reviewers, specialist advisers and experts by experience.”
I will send this data on CQC’s variable reporting about Fit and Proper Person checks to the CQC, and I have asked for details of CQC’s official policies and procedures in this area.
The poor governance on FPPR is an important part of the failure to protect NHS whistleblowers, because of impunity for corrupt senior managers who cover up and victimise whistleblowers.
We need much stronger UK whistleblowing law to enforce greater accountability and to deter dishonest and abusive practices.
If you have not done so, please sign and help share this petition to parliament for law reform.
I have written again to Prerana Issar Chief People Officer for the NHS about the delay in the Kark review implementation and other matters, chiefly NHS Improvement’s continuing failure to properly check the qualifications of all NHS directors whom it appoints to non-Foundation NHS trusts:
“Achievement of safe staffing in maternity has been challenging. Whilst minimum safe staffing levels have been maintained in October and November there has been a reliance on the support of the escalation policy when acuity is high”.
“The main areas that were challenged were maternity services and speciality medicine wards at Alexandra Hospital and Avon 2 on the Worcester Royal site due to vacancies. There has been no harm to patients reported from staffing incidents.”
The two deaths were reported as follows in the trust’s document:
Incident category – Neonatal Death
Woman in her 1st pregnancy booked late at 25 weeks gestation and appropriately booked for consultant led care. Antenatal care – no concerns identified. At term, the mother called triage , reporting bleeding with spontaneous rupture of membranes. Immediately seen on arrival and a fetal bradycardia was noted, a category 1 lower segment caesarean section (LSCS) was called and a baby girl was born within 30 minutes. Birthweight 3232grams on the 30th centile, requiring extensive resuscitation – which was unsuccessful and therefore a neonatal death was confirmed. The Immediate Case Review was discussed at the Divisional Quality and Safety Review Meeting (QSRM ) on 09.12.20 further information requested before a decision on how the case should proceed. Presented again at QSRM on 16.12. 20 agreed to escalate as an SI – escalated to corporate team & reported via S tEIS on 21.12.20
Terms of reference agreed:
Investigate all aspects of maternity care in the antepartum, intrapartum and postpartum period, with specific focus on:
– The review at 38 weeks in triage and decision making in the intrapartum period.
– The process around the decision for induction
– The resuscitation and care of the baby up to the point of CPR being stopped.
– Ensure that the perception of events is captured from the family, the Trust and staff directly involved in the care of the mother and the baby
Immediate learning & review of guidance
· If the woman presents at or after 37+0 weeks of gestation, it is important to establish if the bleeding is an Antepartum Haemorrhage (APH ) or blood stained ‘show’. In the event of a minor or major APH, national guidance recommends induction of labour with the aim of achieving a vaginal birth to avoid adverse consequences potentially associated with a placental abruption. (R oyal College of Obstetricians & Gynaecologists Green Top Guideline, No 63, page 12, Nov 2011)
· In cases of recurrent unclassified APH , induction of labour should be considered at or near term even if fetal growth is satisfactory. (WHAT -TP -094, 15/11/19). Duty of Candour was completed by the Consultant Obstetrician . Case was immediately referred to:
– HSIB; however this case did not meet the criteria (as the woman not in labour ) .
Incident Category – Maternal Death
A woman in her 3rd pregnancy attended maternity triage at Worcestershire Royal Hospital with a history of left sided lower abdominal pain. After assessment and treatment she was discharged with a plan for follow up in the Maternity Day Assessment Unit (DAU ) . She was reviewed the following day at maternity DAU complaining of frontal headache, screening for pre -eclampsia test undertaken and test result suggested that woman was low risk for developing pre -eclampsia. A plan was made for further follow up in 1 week. She attended as per plan and was complained of worsening symptoms. Admission was recommended to enable further investigations to be completed and she then had regular reviews, further blood tests and chest x -rays. During her inpatient stay the woman was reviewed by the consultant and noted to have a mild headache, visual disturbances and epigastric pain. The woman was found collapsed and unresponsive at her bedside. Cardiopulmonary Resuscitation (CPR) was commenced and a peri -mortem caesarean section was undertaken within the recommended 5 -7 minutes. A live baby was born and transferred to the neonatal unit for CPAP. Ongoing maternal resuscitation continue however following an extensive period of resuscitation and further surgical intervention resuscitation ceased following agreement with the attending team. Immediate learning & review of guidance
· VTE assessment was completed; however there has been discussion about whether the most appropriate dose of LMWH was prescribed.
· Duty of Candour completed with partner by Matron and letter provided. Family supported by bereavement specialist midwives.
· Staff supported by Trust Clinical Psychologist, OH advice provided and support from clinical leads, Matrons and wider DMT.
· Referred to HSIB – Investigation ongoing. Investigation within reporting deadlines (6 months HSIB)
· Referred to MBRRACE and Coroner
· Escalated to corporate patient safety team and reported via S tEIS. Initial postmortem – no cause of death identified.”
Maternal deaths are very rare and may indicate poor care quality.
CQC’s inspection report of 19 February 2021 on Worcester Royal Hospital severely criticised the management of the maternity service. This comes on top of previous criticism from an inspection in 2018.
CQC’s recent inspection was unannounced, reflecting the level of concern about intelligence received.
CQC concluded that:
The maternity service was not sufficiently safe
Not all maternity patients were adequately risk assessed
Managers did not audit swab counts
Safety incidents were not well managed and downgraded with suspected failures of Duty of Candour
There was risk of baby abduction and other suboptimal safeguarding practice.
Echoing themes from the MidStaffs Public Inquiry, CQC noted:
“Staff did not always contribute to decision-making to help avoid potential financial pressures compromising the quality of care”
Most strikingly, the CQC stated:
“The service did not have an open culture staff felt they could raise concerns without fear”.
Whistleblowers told the CQC of delays in induction:
“Whistle-blowers reported that there were delays in induction of labour with some women waiting up to a week instead of one to two days. Managers told us that there had been delayed inductions of up to six women.”
Whistleblowers also complained to the CQC that managers ignored their concerns about safe staffing, and CQC was concerned about the trust’s inadequate levels of planned staffing:
“Between July and September 2020, we received four whistleblowing enquiries relating to maternity services. Staffing levels were the main area of concern reported. The whistle-blowers reported the introduction of the CoC model had negatively impacted on staffing levels,yet was a management priority. We spoke to staff of all disciplines throughout the unit who unanimously raised concerns about safe midwifery staffing levels and reported they did not feel their concerns were always considered by managers. Midwives told us that the service was always short staffed and that they were moved frequently within the department. We had concerns about planned staffing levels throughout the unit. Following the four whistleblowing concerns, managers had instigated meetings to listen to staff concerns and take actions to address them. A further planned introduction of another CoC team in December 2020 had been deferred until 2021 as new staff were expected to start in December and were delayed until January 2021.”
This is a list of key concerns about maternity services that were flagged by CQC’s report:
“Our rating of safe went down. We rated it as requires improvement because:
• Not all staff were up to date with their training.
• We were not assured that all medical staff had current knowledge relating to Mental Capacity Act 2005 and Deprivation of Liberty Safeguards due to poor training compliance.
• Risk to women was not always identified appropriately. Staff did not always complete and update risk assessments for each woman or act to remove or minimise risks. Staff did not always identify and act quickly when women were at risk of deterioration.
• Whilst staffing levels were often lower than planned, managers regularly reviewed and adjusted staffing levels and skill mix. Actions were taken to meet patient acuity, however, these were not robustly documented. Staff were redeployed within the unit when needed, to keep patients safe from avoidable harm and to provide the right care and treatment but records of this were weak.
• The service did not always manage safety incidents well. Staff recognised but did not report all incidents and near misses. Managers investigated incidents and shared lessons learned with the whole team and the wider service. However, staff did not always have time to check emails to find updated incident information. When things went wrong, staff apologised and gave patients honest information and suitable support.
• Staff did not always monitor the effectiveness of care and treatment. When care and treatment was monitored, they used the findings to make improvements and achieved good outcomes for women.
• Training compliance had fallen during the COVID-19 pandemic but a plan was in place to improve this. However, the service generally made sure staff were competent for their roles.
• Although leaders mostly had the skills and abilities to run the service and understood the priorities and issues the service faced, they did not always take timely action to address the concerns identified. They were visible in the service for women and staff.
• Staff did not always feel respected, supported and valued by all managers. They were focused on the needs of women receiving care. The service did not have an open culture staff felt they could raise concerns without fear.
• Although leaders and teams used systems to manage performance they did not always identify and escalate relevant risks and issues or identify actions to reduce their impact. They did not have plans to cope with unexpected events. Staff did not always contribute to decision-making to help avoid potential financial pressures compromising the quality of care.
• Whilst governance processes were in place leaders did not always operate these effectively throughout the service. Leaders liaised with partner organisations. Staff at all levels were not always clear about their roles and accountabilities and did not all have regular opportunities to meet, discuss and learn from the performance of the service.
• The service did not always collect reliable data and analyse it. Staff could not always find the data they needed, in easily accessible formats, to understand performance, make decisions and improvements. The information systems were integrated and secure. Data or notifications were consistently submitted to external organisations as required.
• Leaders did not always engage with staff effectively. However, staff actively and openly engaged with women, equality groups, the public and local organisations to plan and manage services. They collaborated with partner organisations to help improve services for women.
• Although all staff were committed to providing good quality care timely action was not always taken to improve.
“The labour ward and delivery suite posed a risk for baby abduction. Most staff were aware of the baby abduction policy but there were no baby abduction drills included in maternity specific training. This meant some staff may not know what to do in such circumstances. Managers told us that abducted baby procedures would be included in the next skills and drills courses.”
“The service did not always adequately risk assess all women in the ante-natal unit.”
“Managers were not auditing swab counts following vaginal or instrumental births.”
“We reviewed incidents reported on the National Reporting and Learning System by the trust from July to September 2020 which identified that term babies admitted to the neonatal unit were graded as no or low harm. This meant that incorrectly graded incidents may not be investigated and there was a risk that women were not informed of the significance of harm caused to them or their baby, or that appropriate action was taken to prevent further occurrences. We were not assured that incidents that were moderate, in line with definitions in Regulation 20 Duty of Candour guidance 2015, were always graded correctly according to the level of harm. We also saw that there were 11 incidents reported where safeguarding information was not transferred to all medical records. This meant that babies and young children may be at significant risk of harm if information was not shared appropriately.”
Worcestershire Acute Hospitals NHS Trust’s Freedom To Speak Up Guardian
The poor whistleblowing governance found by the CQC represents a serious embarrassment for the government’s woeful Freedom To Speak Up project, six years on from commencement of the project.
This is particularly because an examination of publicly available records shows that Worcestershire Acute Hospitals NHS Trust’s Lead Freedom To Speak Up Guardian is the Maternity Matron:
The small print of the CQC report noted that maternity staff had “concerns” with speaking with the trust Freedom To Speak Up Guardian:
“We met with members of the senior leadership team who demonstrated an awareness of the service’s performance and the challenges they faced, including staffing issues and the concerns staff had with speaking with the freedom to speak up guardian.”
The events at the trust lead to questions about whether the Guardian was part of the culture failure, or was unable to discharge her duty effectively due to the weakness of the Freedom To Speak Up model.
It was certainly awkward for maternity staff to be faced with whistleblowing to a senior member of the department, who potentially had conflicts of interest.
And Henrietta Hughes the National Guardian has continued to aid and abet smiley government propapanda on the illusory success of the Freedom To Speak Up project.
With an unerring instinct to laud failure, she and her Office produced this happy image of whistleblowing at Worcester just weeks before the publication of CQC’s damning report:
We are literally going round in circles when a centrally criticised figure from the Midstaffs scandal involving unsafe staffing and suppression, returns to a chair a trust which is then criticised for unsafe staffing and ignoring whistleblowers.
We badly need reform of very weak UK whistleblowing law to sweep away pretences such the Freedom To Speak Up Potemkin village, and to genuinely protect UK whistleblowers and the public.
If you have not already done so, please sign and share this petition for whistleblowing law reform amongst your circle and across social media:
NHS Improvement was previously warned about its assignment of an Improvement Director to Worcestershire Acute Hospitals NHS Trust who had been criticised by an Employment Tribunal for whistleblower reprisal. As the recent CQC report indicated that trust managers were aware that staff had concerns about speaking with the Freedom To Speak Up Guardian, I have asked NHS Improvement to review its oversight of the trust and to establish whether managers acted appropriately on this staff concern.
By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 19 February 2021
Summary: Dr Ambreen Malik a consultant psychiatrist employed by the private provider Cygnet Health Care, has been found on 1 February 2021 by the Employment Tribunal to have suffered multiple whistleblower detriments and unfair dismissal over a baseless allegation of gross misconduct. She had insisted on telling a coroner’s inquest of the full facts about a Cygnet inpatient death, in which staff failed to search a patient after a visit, but then discovered what appeared to be an illicit drug in his hospital room after he died. The Employment Tribunal criticised several Cygnet managers for their part in reprisal against Dr Malik as a whistleblower, including several directors. The ET determined that the CEO, the director of human resources, the then medical director and the regional operations director (now listed as Managing Director, Healthcare Division North and a board member), had variously acted in “bad faith” and/or were “less than honest” or not truthful in the prosecution of a case against Dr Malik or were untruthful in evidence to the ET. The ET was critical of Cygnet’s referral of Dr Malik to the General Medical Council, which it determined was a detriment for whistleblowing. The ET concluded that Cygnet managers had seized an opportunity to dismiss Dr Malik after her whistleblowing:“It is clear that this was however the general background to the respondent’s senior managers disliking her, and later seizing an opportunity to dismiss her.” But puzzlingly, the ET stopped short of finding that Dr Malik was dismissed because of her whistleblowing. The case is yet more evidence in support of UK whistleblowing law reform.
On 31 December 2019 the Care Quality Commission rated the unit where Dr Malik worked, Cygnet Fountains Blackburn, as ‘Outstanding’ overall and outstandingly well led. This is despite the CQC also finding from a specific well led review undertaken in July/August 2019 that there were leadership failures at Cygnet.
NHS England commissions specialist mental health services such as those provided by Cygnet. There are serious questions about NHS England’s performance as a commissioner, especially given that commissioning failures were previously identified by an independent investigation of a homicide of a patient by a fellow patient on a Cygnet unit.
Cygnet was the provider operating Whorlton Hall and Newbus Grange care facilities, when patients were abused in 2019.
Whistleblower mistreatment is a problem across all sectors, but perhaps is particularly likely to occur in profit driven care environments.
The full extent of the whistleblowing governance problems in private healthcare is hidden by ruthless suppression and a fearful workforce.
CQC were forced to undertake a review of Cygnet’s leadership in response to the multiple care scandals, much as they had been forced to review the provider Castlebeck after the 2011 Winterbourne View scandal. The CQC review of Cygnet’s leadership, undertaken in July/August 2019 but not published until January 2020, concluded there were problems with accountability:
“Governance structures and processes were not effective in supporting good quality and sustainable services… A clear line of accountability from the “ward to board” could not be established across all of Cygnet Health Care’s locations. Governance systems and processes had not prevented or identified significant issues within locations to allow effective intervention by the executive team.”
“Governance systems and processes were not effective in maintaining sustainable and high-quality care. The systems and processes in place had not prevented or identified significant issues in locations which have resulted in breaches of regulation and hospitals being placed into special measures due to inadequate ratings.”
“Not all the required checks had been carried out to ensure that directors and members of the executive board were “fit and proper”.
But incongruously, CQC glossed over Cygnet’s suppression of staff concerns and praised its culture:
“A culture of openness was encouraged by leaders and embedded within policy. Most staff knew what should be reported and felt able to do so.”
One of these ‘Outstanding’ psychiatric facilities, Cygnet Fountains in Blackburn Lancashire, has been found guilty by an Employment Tribunal, through a judgment issued on 1 February 2021, of serious whistleblower reprisal and the unfair dismissal of a whistleblowing doctor.
Cygnet’s CEO, the then medical director (now reportedly retired), Human Resources Director and the then regional operations director (now managing director, Healthcare Division North) were criticised for malpractice and reprisal.
The ET remarked of Cygnet’s CEO: “We found Dr Romero’s actions to be less than honest.”
The CEO and human resources director were criticised for bad faith. The ET found that the medical director made an “untrue” referral of the whistleblower to the General Medical Council. It also found that the regional operations director and other Cygnet staff were untruthful in their evidence to an internal investigation. The ET rejected some of the evidence given by the regional operations director during proceedings:
“101. We do not find that Mr Ruffley’s evidence with regard to asserting that a legal opinion be sought was actually said to the claimant at the time. We have found this to be a back-covering comment inserted with hindsight.”
Other whistleblowers have raised concerns about Cygnet’s care standards. For example, in 2019, it emerged from an inquest that Taffy Mandizha, ward manager at Cygnet Coventry had repeatedly raised concerns about safe staffing. This included a concern raised a week before Claire Greaves, a detained inpatient took her life:
Poor governance by private providers such as Cygnet is especially important because they provide specialist locked facilities for patients with very special needs. These special needs are largely no longer catered for by the NHS. That is to say, private providers look after particularly vulnerable patients, isolated by detention and usually located out of area and far away from their families.
The whistleblower case of Dr Ambreen Malik
I will only summarise this complex case broadly. The full Employment Tribunal judgment about the facts of the case can be found here:
Dr Ambreen Malik was a consultant psychiatrist employed at Cygnet Fountains hospital, in Blackburn Lancashire. She attracted the wrath of Cygnet management because she refused to look the other way over a failure of risk management by Cygnet.
In 2015, a patient died the day after receiving visitors. He was not searched by staff after the visit. After his death, a foil wrap of what appeared to be an illicit substance was found in his room. Dr Malik informed the medical director and the regional operations manager of the issue. She became increasingly concerned that the organisation was covering up the matter.
“43. The claimant then, on the same day, attempted to contact her line manager, Dr Leslie Burton, to raise her concerns. He was on leave and unavailable, as was the person who covered for him. She then made a disclosure by email to the Assistant Medical Director, Dr Bari, and to the CEO, Dr Tony Romero. Dr Romero’s reply the following day by email was to start with, “Are you telling me you will go to the police?” and ended with, “Do you know the implications of what you are saying?”. The claimant felt intimidated and bullied.”
An internal investigation was set up by Cygnet, which excluded Dr Malik and failed to involve the police or the family. The ET noted that Cygnet’s regional operations manager misled Dr Malik on these issues:
“44. Dr Romero did, however, set up an enquiry panel and 20 staff members were interviewed. The claimant was not one of them, nor were the police contacted, nor the deceased’s family. In spite of this Mr Ruffley advised the claimant that staff on duty, police and the deceased’s relatives had been interviewed, and no-one corroborated her observations. On three occasions the claimant was asked to apologise to members of staff. She refused because she knew what she had seen.”
Cygnet’s CEO later advised Dr Malik not to make her life “complicated”, with regards to her evidence to the coroner’s inquest:
“45. In March 2016 the claimant was called to attend the coroner’s inquest into the patient’s death. She had previously discussed the evidence that she would be giving to the coroner with Dr Romero, and asked for advice on how to proceed over the drugs found (as she believed it). His reply was that she should “do not make your life complicated” (bundle A pages 345-346).
Dr Malik was advised by Cygnet’s solicitor not to mention the discovery of drugs to the coroner, but she stood her ground and gave evidence about the discovery:
“46. The day before the inquest on 8 March 2016 the claimant met with Mr Parsons, a solicitor, at a briefing arranged for staff members due to give evidence the following day. The claimant asked him when and how to mention her discovery of the drugs. Mr Parsons indicated that it was not relevant to the patient’s death (bundle A pages 357-360). The claimant was left believing that the respondent was trying to cover up the discovery of drugs.
47. Prior to the start of the inquest on 9 March 2016 Mr Parsons and Ms Ngaaseke had a conversation with the claimant in which Mr Parsons advised the claimant that if she mentioned the discovery it would affect her credibility and that she must have mis-remembered the event. He went on to indicate that if she told the court about it, it would affect Mr Parsons’ credibility. The claimant approached the coroner’s clerk to ensure the coroner was asked to raise this issue with her. When asked about it by the coroner she narrated the sequence of events and her observations, including explaining that the subsequent internal enquiry did not corroborate her claim.”
Twelve days after giving the above evidence to the coroner, Dr Malik was suspended by the regional operations director on grounds of loss of trust. One of the accusations against her was that her evidence reportedly triggered a police investigation against Cygnet, and led the coroner to threaten Cygnet’s solicitor with a regulatory referral:
“49. On 21 March 2016 the claimant met the Group Medical Director, Dr Burton, and the Regional Operations Director, Mr Ruffley. She was advised there had been a breakdown of trust and she was being suspended because of the evidence she had given at the coroner’s inquest. She was told that the coroner had threatened to refer Mr Parsons to his regulator, and that Fountains was to be investigated by the police for hiding evidence and ‘higher ups were very upset by it’. This was confirmed in writing by a letter on the same date, which stated that she was suspended pending an investigation into the evidence she gave at the inquest and the effect it had had on relationships at Fountains.”
The ET determined that this suspension was a detriment against Dr Malik for making protected public interest disclosures.
It also concluded that other detriments followed, including:
a) Punitive publicising of her suspension by the medical director:
“On her return to work she discovered that an email had been sent about her by the Group Medical Director to all of the doctors within the organisation. It was admitted by Dr Romero that this had not been done before.”
b) Excessive, punitive supervision, established by the assistant medical director, medical director and CEO:
“56. Before the claimant returned to work, Drs Bari, Burton and Romero met and agreed a course of action. On her return, Dr Burton increased her supervision from six monthly to twice weekly”
c). Undermining of Dr Malik’s role by the hospital manager, through excluding her from important admission and discharge decisions, removing support for clinics, criticising her for being late and introducing a new deadline for reports.
d) The assistant medical director asked staff to covertly report on Dr Malik. For instance, a cleaner accused her of leaving a screen open in her office whilst she saw patient.
e) Removal of Dr Malik’s role as Clinical Appraisal Lead, by the medical director, against her wishes
f) Failure to ensure that a grievance by Dr Malik about whistleblower reprisal was progressed.
g) Being subjected to ostracisation such as hostile behaviour when she raised a concern about contributory organisational failings related to a patient suicide, and not being invited to clinical board meetings as previously agreed.
Cygnet additionally conceded that Dr Malik was subject to another detriment when the medical director later referred her to the General Medical Council. This referral was based on false allegations that she had failed to follow protocol on covert medication:
“79. The respondent referred the claimant to the GMC on 18 October 2017 after an incident, which is described in more detail below, led to her dismissal for gross misconduct.
80. The respondent denied in evidence referring the claimant to the GMC maliciously or without justifiable reason, but did accept the referral to the GMC is a detriment.”
The ET condemned the “defamatory” GMC referral by Dr Leslie Burton the medical director, which it considered was linked to Dr Malik’s protected disclosures:
“398. Dr Burton subsequently thought that the claimant was dishonest and told the GMC – a defamatory comment and one questions the motive behind that. He suggested that she had used the word “useless” about her line manager when she had never said any such thing.”
“418. We do, however, find that the additional detriment, of Dr Burton’s reference to the GMC on the day of dismissal was a detriment and is in time. The features contained within that referral and the note that he sent to the GMC link, were unpleasant and untrue, and formed a second detriment. They clearly reflected his view of the claimant following the earlier public interest disclosures. These were detriments because of an earlier public interest disclosure, and we find this to be both in time and made out. We note that the claimant’s appraisal did not reflect his damning assertions about the claimant.”
The ET described the tone of the medical director’s correspondence to the GMC as “venomous and dishonest” and it concluded that he had been “waiting” for a chance to make a referral:
“170. Mr Burton’s assessment of the situation with the GMC could not be regarded as honest and objective. An email sent by him on 13 October to Kate Harrison (Liaison Officer for the GMC) suggests a far from impartial stance. He described the claimant as “an opinionated woman”, and alleged there were rumours of bullying (contradicting her glowing appraisal from 17 July). None of her past actions which had caused concern would have merited a referral to the GMC, suggesting he had been waiting for this chance.”
Regarding the false allegations which led to the GMC referral and Dr Malik’s dismissal by Cygnet for gross misconduct, these related to her implementing a care plan of covert medication in an extreme case with risk of violence. This is a rare practice, but permitted and ethical in certain circumstances, with safeguards.
The ET found that the covert medication care plan implemented by Dr Malik was based on full multi-disciplinary consultation, including with Cygnet senior managers and the patient’s family, and it complied with policy. However, Cygnet manufactured a disciplinary case against her, with false claims by several individuals that she failed to follow procedure and did not consult adequately. Cygnet additionally accused her of bullying, a claim rejected by the ET.
The ET noted that Cygnet’s disciplinary case was very obviously flawed and contradicted by a mass of records which showed her to be innocent of the charges. It stated:
“423. We find that the investigation and disciplinary procedure were fatally flawed. In particular Mr Ruffley, who was dishonest in his information to the investigation and to the Tribunal. The decision making process was disreputable.”
The brother of the patient who was covertly medicated, who supported the care plan, gave evidence at the ET in Dr Malik’s favour.
The ET concluded there had been no gross misconduct by Dr Malik:
“434. We do not find the claimant guilty of gross misconduct in the light of our findings above. We therefore find that the respondent was in breach of contract in dismissing the claimant for gross misconduct. We find that the claimant followed the hospital’s policy and took note of the other policies. The policy of her employer was noted to be signed by Dr Burton but he appeared to have little or no knowledge of its content. We find it more likely than not that the hospital’s own policy was not actually read by the investigators, the dismissing offer or the appeal officer, and we are sure that Dr Burton was unaware of the contents of the policy that was signed off in his name. The reason for the dismissal was adequately explained in the venomous and dishonest tone of the email to the GMC link. A careful analysis of the steps she took showed that she had complied with every step required of her under the respondent’s own policy in the particular circumstances of M. Prudence may have suggested that other steps could be taken, taking legal advice for instance, but there was no requirement on her to do so. There was no evidence of wilfulness, or of gross negligence. The evidence suggested she was doing the best she could for her patient, as her contract required, and within the policies and statutes under which she was required to work The claimant was thus dismissed without notice in breach of contract.”
The ET criticised Cygnet managers responsible for the blatantly unfair disciplinary action against Dr Malik and her unwarranted dismissal.
The ET concluded that the interim hospital manager and the regional operations manager were dishonest about the case against Dr Malik:
“The investigators were not helped by the dishonesty of Serena Birtwhistle and Mr Ruffley.”
“We found Mr Ruffley to be less than truthful, and noted that there was evidence that he had lied in the investigation in that he denied he knew about the covert plan, and there was clear evidence in the emails that he did.”
The ET criticised the fact that Cygnet appointed an inexperienced peer of Dr Malik’s to hear her disciplinary case. It concluded that the decision to dismiss was in reality one of bad faith and had in fact been made by the CEO and the director of Human Resources.
“430. The matter was then compounded by Jenny Gibson’s involvement. She appears to have written both the dismissal letter and the appeal letter, and we find it more likely than not that she did both make the decision and write the decisions with Dr Romero. That cannot be within the range of reasonable responses, and shows a litany of bad faith.
431. The claimant was unable to attend her appeal because she was unwell. Dr Romero allegedly heard the appeal in her absence. He made a decision with regard to the administration of the drug O which had not been discussed with the claimant and was never put to her before the decision was taken. Jenny Gibson was again involved. There are no file notes at all of any discussions between her and any of the other people involved in the investigation, dismissal or appeal. We find that to be quite extraordinary for a senior HR manager. There were no notes either from Dr Romero of his part in the appeal, simply the letter we believe was prepared by Jenny Gibson which was signed by him. We do not say he played no part in that decision, but we find it to be a collaboration between Jenny Gibson and Dr Romero. The claimant, as she believed, did not stand a chance of the dismissal being overturned.”
Cygnet’s CEO heard Dr Malik’s appeal against dismissal even though there was an outstanding grievance by Dr Malik against him. The ET commented:
“We noted he [Dr Romero] chose to undertake the appeal himself, which he could have delegated to a manager immediately below him. We noted that the grievance was never heard – and is still outstanding to this day – and that Dr Romero was responsible in effect for nearly all of the actions taken by the other parties, through Jenny Gibson.”
The director of HR composed an outcome letter for the dismissing officer:
“Jenny Gibson sent an email to Dr Burton, Mr Ruffley, Dr Romero and Mr McQuaid in which she created some wording to send to Dr Malik in terms of why “we” had decided to dismiss her. She also sent a copy to Mr Boyapati “so that he is aware”.
162. Jenny Gibson was not the HR representative at the disciplinary hearing and did not credibly explain her intervention at this point, when given the opportunity. The rough notes of the reasons to dismiss were produced by Ms Gibson and sent to Dr Boyapati to approve. She selected very few issues and ignored the balance of the allegations and evidence. She gave a very partial account. The letter made no mention of the policy of the hospital, the NICE guidelines or the CQC (presumably because they could not say that she had failed to comply with them).”
The ET noted that the director of human resources’ draft letter of dismissal received the medical director’s approval:
“165. Dr Burton on receipt of the draft thanked Ms Gibson for “a good email. Dr Boyapati on receipt made a few minor changes. It is however completely clear that Dr Boyapati did not provide the wording as suggested by Ms Gibson, and that in fact the wording was hers.”
Illustrating how arbitrary Dr Malik’s treatment by Cygnet was, the medical director criticised her despite her adherence to Cygnet’s covert medication policy, which he himself had personally signed off the previous year:
“122. This policy was approved specifically by Dr L Burton who later appeared to be a serious critic of the claimant’s actions when she followed his policy.”
“The policy of her employer was noted to be signed by Dr Burton but he appeared to have little or no knowledge of its content. We find it more likely than not that the hospital’s own policy was not actually read by the investigators, the dismissing offer or the appeal officer, and we are sure thatDr Burton was unaware of the contents of the policy that was signed off in his name.”
In short, the ET concluded that Cygnet effectively commissioned “lies” and came to a predetermined decision to dismiss Dr Malik:
“It was done by only interviewing those who sided against the claimant, telling lies to the investigation and the tribunal, and by Drs Romero, Jenny Gibson and Dr Burton ensuring that the script for the dismissal and appeal was theirs.”
Sadly, as often seen, the ET stopped short of concluding that Dr Malik was dismissed for whistleblowing, even though it appeared to acknowledge that Cygnet had been waiting for an opportunity to dismiss her because of her previous whistleblowing:
“433. We do not therefore find that the respondent has proved on the balance of probabilities that there was a potentially fair reason for the dismissal or further that a fair procedure was followed. There may be an argument to follow on the issue of contribution. We do not find that the claimant was dismissed because she made public interest disclosures i.e. automatically. It is clear that this was however the general background to the respondent’s senior managers disliking her, and later seizing an opportunity to dismiss her.”
So there you have it, a case of proven conspiracy against a whistleblower which will seriously affect her career, but with no legal linkage made between the disclosures and the dismissal. This will mean as usual that any compensation will likely not reflect the real losses suffered by Dr Malik nor truly compensate for blacklisting that she may suffer.
Once again, Dr Malik’s case reveals graphically what a sustained ordeal whistleblowers may face, only to be failed again by weak whistleblowing law when they seek redress years later.
At present, highly paid executives often see unfairly sacking whistleblowers as a worthwhile risk, and the paltry compensation they have to pay harmed whistleblowers as simply the very reasonable price of doing unethical business.
There is often a chasm between corporate rhetoric and the reality of what happens behind closed doors. In a rapid response of 14 January 2020 to a BMJ article about Cygnet’s governance failings, Dr Tony Romero Cygnet CEO wrote:
“The board take any concerns raised very seriously and as a leadership team we promote honesty and transparency. The report cites a culture of openness and initiatives to encourage reporting of issues, including a whistleblowing line. It acknowledges most staff feel able to report incidents and raise any concerns, which demonstrates our lines of accountability are clearly understood. We are also appointing a freedom to speak up guardian.”
Whistleblowing law reform
The Malik case shows yet again why we need much stronger, proactive whistleblowing law that compels protection, a proper, timely response to whistleblowers’ protected disclosures and much stronger deterrence of cover ups and reprisal.
A Westminster petition was previously set up seeking reform of and gathered only 1,462 signatures by the time of the six month expiry date on 17 February 2021.
Your help in signing and sharing this petition would be much appreciated.
Commissioners and regulators
It is also vital that NHS commissioning oversight of high risk services such as those operated by Cygnet is improved, to protect vulnerable patients and to ensure best value for the public purse. There is currently a standard clause in NHS purchased private care, which requires private providers to have a basic level of whistleblowing governance. But does anyone really bother to track instances of whistleblower reprisal?
The local CCG, East Lancashire, seems to have been cheerleading instead of interrogating:
“There was compassionate, inclusive and effective leadership at all levels. Leaders at all levels demonstrate the high levels of experience, capacity and capability needed to deliver excellent and sustainable care.
Comprehensive and successful leadership strategies were in place to ensure and sustain delivery and to develop the desired culture. Leaders had a deep understanding of issues, challenges and priorities in their service, and beyond.”
“Staff knew and understood the provider’s vision and values and how they were applied in the work of their team.
Staff were proud of the organisation as a place to work and spoke highly of the culture. Staff at all levels were actively encouraged to speak up and raise concerns, and all policies and procedures positively support this process.
The managing director of Castlebeck Care, one of Cygnet’s predecessor organisations was banned by the Insolvency Service for eight years because he failed to act appropriately on whistleblowing disclosures about patient abuse at Winterbourne View hospital:
“Neil Cruickshank, the Managing Director of Castlebeck Care (Teesdale) Ltd, has been disqualified for 8 years for failing to follow proper company procedures regarding Quality of Care, after he was sent information from a whistleblower regarding the behaviour of staff at the Winterbourne View Nursing Home, near Bristol.”
Notoriously, the system regulator Care Quality Commission also failed the Winterbourne View whistleblowers:
Summary: North Tees and Hartlepool NHS Foundation Trust has once more been comprehensively rebuked by the Employment Tribunal for serious whistleblower detriment. It is an illustrative case of how organisations close ranks and collude. The trust has been found to have racially discriminated against surgeon Mr Manuf Kassem, and to have punished him for whistleblowing. The ET has determined that the trust medical director threatened him with disciplinary action, that a clinical director revealed his identity as a whistleblower – including to other doctors about whom he had whistleblown, and that doctors about whom he had raised concerns filed retaliatory Datix incident reports. The ET found that Mr Kassem was subjected to a retaliatory disciplinary investigation and punitively removed from emergency out of hours duties for whistleblowing. Care Quality Commission Regulation 5 Fit and Proper Person issues arise about the board of this trust, this being the second recent and serious whistleblower case. The earlier case of North Tees whistleblower Linda Fairhall drags on because the trust is vindictively pursuing an appeal after she won her ET claim and despite the fact that her partner died of a heart attack whilst she was suspended.
It is also relevant to note that Mr Kassem’s patient safety concerns were reviewed by North Tee’s deputy medical director, who was also called in by University Hospitals of Morecambe Bay NHS Foundation Trust to review whistleblowers’ concerns about orthopaedic services. The orthopaedic safety matters at UHMBT drag on and local members of parliament are now involved.
North Tees and Hartlepool NHS Foundation Trust has already been in the spotlight because of its proven victimisation of NHS whistleblower Linda Fairhall, a senior nurse who raised safe staffing concerns. Her partner died of a heart attack whilst she was suspended from her duties in an act of detriment. Linda Fairhall won her Employment Claim but the trust has been vindictive in defeat and seeks to inflict more suffering by appealing. The case was also particularly notable because the trust head of Human Resources was at one point the lead Freedom To Speak Up Guardian. See:
Another whistleblower at North Tees Mr Manuf Kassem Associate Specialist in Urology has now had an Employment Tribunal judgment in his favour, remarkably after representing himself. It is rare for whistleblowers to win ET claims, rarer still for them to establish a specific finding of whistleblower detriment and very rare for them to succeed as litigants in person.
I am unable to do the case justice due to very limited time at present, but am reporting briefly on the ET judgment to raise awareness of North Tees’ recidivism:
In essence, Mr Kassem has established that North Tees racially discriminated against him and also retaliated against him because he made protected disclosures in the public interest, about patient safety.
This is the ET’s summary of Mr Kassem’s protected disclosures:
“The second investigation meeting into the claimant’s grievance took place on 4 August 2017 (260). While this is the second meeting that had been arranged to discuss the grievance it has additional significance in that at this meeting the claimant presented to Mr Tulloch details of 25 patients whom he alleged had “suffered complications, negligence, delayed treatment and avoidable deaths.” In this respect the Tribunal records that the respondent accepted that the claimant raising these concerns amounted to a protected disclosure. Additionally, at this meeting, unlike the first investigation meeting, the claimant made express reference to issues of ethnicity and race. Having named five surgeons whom he described as being “untouchable” the claimant is recorded as having said, “it was dependent upon nationality if you are white or from India you would receive different treatment”. In this regard, the claimant referred to a Turkish surgeon who had received treatment similar to him, a doctor from Pakistan “who had put a complaint in about how AA had treated her” and a colleague from Nigeria who was “shouted at by one of AA close friends” (265).”
Very significantly, the ET found that those who retaliated against him included Dr Dwarakanath the trust’s medical director. Dr Dwarakanath set up a panel to look at Mr Kassem’s patient safety concerns. The ET noted that the medical director had given inconsistent accounts about this process and its objectivity as regards the involvement of Mr Kassem’s clinical director, Mr Agarwal:
“Returning to the chronological order of events, as mentioned above at the second grievance investigation meeting with Mr Tulloch the claimant had raised concerns in respect of 25 patients. Dr Dwarakanath was made aware of this by Mr Sheppard and Ms Johnson in early February whereupon he established a panel to consider the concerns the claimant had raised in relation to these patients. The individuals whom Dr Dwarakanath invited to join him on the panel were Mr C, consultant urologist and medical director with a neighbouring NHS Foundation Trust and Mrs C (no relation to Mr C) who was employed by the respondent and had expertise in governance and safety. The evidence of Dr Dwarakanath was that Mr Agarwal and a colleague provided access to the patients’ records and other relevant information but neither “played any role in the review” but that is contrary to the letter he wrote to consultant surgeons and urologists dated 25 June 2018 in which he stated that the cases “were critically reviewed by [Mr C], myself, Mr Agarwal and [Mrs C]” (381); that clearly indicating Mr Agarwal’s position within the review panel.”
The ET considered that a letter from the medical director to Mr Kassem amounted to a threat of disciplinary action and was a detriment for whistleblowing:
“10.111 Ms Johnson wrote to Dr Dwarakanath on 27 November to draw these matters to his attention (477). He then wrote to the claimant on 13 December 2018 (500) informing him that so as to ensure that any reconvened meeting was productive and conclusive he had instructed Prof M to facilitate the job plan discussion along with a member of HR who would provide expert advice. Dr Dwarakanath concluded his letter, “May I remind you also that anyfurther incidents of this nature may result in formal action being undertaken in accordance with Trust HR policy.”
“f. The letter Dr Dwarakanath wrote to the claimant on 13 December 2018 is considered at paragraph 10.111 above. The Tribunal is satisfied that such a strongly worded letter written by someone of such seniority and authority in the respondent’s organisation did constitute a threat of disciplinary action and that was a detriment. The letter therefore amounted to a detriment to which the claimant was subjected by the respondent (in the shape of Dr Dwarakanath). The Tribunal is satisfied that Dr Dwarakanath’s motivation in writing this letter was bound up with the claimant having raised his concerns in respect of the 25 patients as a result of which Mr Shanmugam and Mr Bhaskar were no longer willing to work with him on the emergency on-call rota and Ms Dean, Mr Agarwal and Dr Dwarakanath then agreed that the claimant should be removed from that rota, all of which is set out in more detail in the Tribunal’s findings of fact above. For those reasons, and having considered the mental processes of Dr Dwarakanath, the Tribunal is not satisfied that the respondent has discharged the burden of proof upon it to show that the letter was not written on the ground that the claimant had made a protected disclosure.”
Moreover, the ET found that Dr Dwarakanath inappropriately placed himself on a disciplinary panel against Mr Kassem despite prior involvement in the case, and that this constituted a detriment for whistleblowing:
“In his letter of 7 March 2019 Dr Dwarakanath informed the claimant that he would be one of the three members of the disciplinary hearing panel; indeed he was to be its chair. Given Dr Dwarakanath’s previous involvement the Tribunal is satisfied that that was to the claimant’s detriment, which is reinforced by Ms MT having explained in her letter to the claimant of 15 May 2019 that due to that involvement she considered it appropriate that an alternative chair should be appointed. Thus, there is again the protected disclosure and detriment to which the respondent submitted the claimant. Once more on the evidence available to it and again having focused upon the mental processes of Dr Dwarakanath, the Tribunal is not satisfied that the respondent has discharged the burden of proof to show that Dr Dwarakanath appointing himself as chair of the disciplinary panel was not on the ground that the claimant had made a protected disclosure.”
The ET judged that Mr Kassem was removed from some duties, emergency on call, as an act of whistleblower detriment:
“As also explained above, the Tribunal is satisfied that the outcome of the job plan review meeting on 2 January 2019 that the claimant would no longer undertake out of hours or emergency on-call duties as part of the middle grade rota was undoubtedly a detriment to which the claimant was subject by the respondent. Having focused primarily on the minds of Mr Agarwal and Ms Dean who had conduct of that meeting but more generally upon the mental processes of all those referred to above who had sought to have the claimant removed from the on-call rota, on the evidence available to it as summarised above, the Tribunal is satisfied that the respondent has failed to discharge the burden of proof to show that the claimant no longer undertaking such duties was not on the ground that he had made a protected disclosure.”
The ET concluded that the three key individuals behind this act of detriment were Dr Dwarakanath medical director, Mr Agarwal clinical director and Ms Dean Care Group Manager:
“The Tribunal has explained above its findings in relation to the email exchanges on 4 September 2018 and being satisfied that the purpose of that email exchange was to stop the claimant’s oncall emergency duties. The claimant had made a protected disclosure and, having focused on the minds of Ms Dean, Mr Agarwal and Dr Dwarakanath, the Tribunal is satisfied that he was subjected to detriment by the respondent, in the shape of those three individuals. As such, in accordance with section 48(2) of the 1996 Act the burden of proof shifts to the respondent to prove, on balance of probabilities, that the claimant was not subjected to detriment on the ground that he made the protected disclosure. Again having focused on the minds of those three individuals, on the evidence available to the Tribunal (again as set out at some length above in relation to the email exchanges) it is not satisfied that the respondent has discharged that burden of proof.”
The ET indicated that it was not satisfied with the clinical director’s evidence:
“The Tribunal did not find Mr Agarwal’s evidence on this issue to be satisfactory. At paragraphs 43 and 44 of his witness statement he had conflated what were clearly two conversations between him and Mr Q some seven months apart. He did not make it clear that in the first of their conversations Mr Q had denied that the claimant had telephoned him (that only coming to light in the course of the investigation carried out by Mr Tulloch into the claimant’s grievance in July and August 2017) or make it clear that it was only in their second conversation that Mr Q had told Mr Agarwal that the claimant had in fact telephoned him. Further, Mr Agarwal’s evidence was that at the consultant’s meeting on 9 December he did not mention names or criticise anyone. That, however, is contrary to, first, Mr CH having told the claimant that he had been identified at the meeting and, secondly, to the discussion between the claimant and Mr Agarwal in the corridor having been witnessed by others. Notwithstanding this change in Mr Q’s account of the incident (and therefore Mr Agarwal’s understanding of what had actually occurred between Mr Q and the claimant) the minutes of the meeting on 9 December were never revisited or clarified.”
The ET also concluded that the clinical director had revealed Mr Kassem’s identity as a whistleblower to other doctors at a meeting where Mr Kassem’s patient safety concerns were discussed:
“The oral evidence of the respondent’s witnesses in relation to this meeting was to suggest that the claimant was not named by Mr Agarwal as being the person who had raised the concerns but that is contradictory to the evidence in Mr Bhaskar’s witness statement that at this meeting in April he was given details of two cases pertaining to his treatment, “In one of the cases discussed it states that Mr Kassem had been told by another consultant that I had performed an experimental operation on a patient ….. This incident occurred in 2012 so there had been plenty of time for Dr Kassem to have approached me to express his concerns.” That witness statement was presumably produced in a considered way and with the benefit of legal advice and the opportunity for discussions with colleagues, for example Mr Agarwal. That being so, the Tribunal accepts that evidence that at the meeting in April the identity of the claimant as the individual who had raised the patient safety concerns was revealed by Mr Agarwal.”
Related to the punitive, retaliatory removal of Mr Kassem from emergency out of hours work, the ET determined that two doctors, who had been criticised in Mr Kassem’s protected disclosures, submitted unfavourable Datix incident reports against Mr Kassem as an act of whistleblower reprisal:
“The Tribunal has found above that the claimant made a protected disclosure when, at the second grievance meeting on 4 August 2017, he provided to Mr Tulloch a list of 25 patients whom he considered had suffered morbidity, harm and unnecessary death; this being carried forward into the consultants’ meeting in April 2018. Additionally, having focused on the minds of Mr Shanmugam and Mr Bhaskar, the Tribunal has made a specific finding at paragraph 10.88 above that they respectively submitted their Datixes with the express purpose of removing the claimant from the emergency on-call rota; further, that their reason for that was that he had criticised their clinical practice when he raised his concerns in respect of the 25 patients.
Thus, the claimant made a protected disclosure and was subjected to detriment by the respondent; in the shape of Mr Shanmugam and Mr Bhaskar. As such, in accordance with section 48(2) of the 1996 Act the burden of proof shifts to the respondent to prove, on balance of probabilities, that the claimant Case Number: 2502292/2019 79 was not subjected to detriment on the ground that he made the protected disclosure. On the evidence available to the Tribunal as considered above it is not satisfied that the respondent has discharged that burden of proof. On the contrary, the Tribunal is satisfied that the motivation of Mr Shanmugam and Mr Bhaskar in submitting those Datixes (being the detriment) was that the claimant had made that protected disclosure.”
Mr Kassem was accused of working too hard. Whilst this may seem bizarre to the uninitiated, conscientious whistleblowers may face all manner of desperate, ridiculous allegations by those scraping the bottom of the barrel to fabricate disciplinary cases, including allegations of working long hours or working late.
The ET reported as follows on this issue, concluding that long hours were a pastoral and not a disciplinary matter:
“10.116 As to the allegation of unsafe working practices, Ms Lynch’s evidence in her witness statement was that concerns had been raised in relation to the number of additional hours that were being undertaken by the claimant but the Tribunal is unable to identify the source of those concerns. Suffice it to say that it appears that by mid September 2018 any issue in this regard had been resolved in discussions between Ms CB, an Administration Manager, and the claimant (950). In particular, it is recorded that the RMO was going live on Healthroster and Ms CB informed the Investigation Team on 12 October that if they ever needed the claimant “to cover we check what he has been doing previously and the day after the shift” (775) i.e the risk of the claimant working excessive hours was being monitored and could be addressed as necessary. This is significant as in its report the Investigation Team refers to the week commencing 10 September 2018 (i.e. before the resolution of this issue). It would also appear from CB’s email to Ms Dean of 29 August 2019 (1054A) (which explains the Healthroster system) that if excessive hours were to be worked, Directorate staff would be alerted to reject the doctor from the shift. It also seems from that email that other doctors were working excessive hours but there is nothing before this Tribunal that suggests they were taken through a disciplinary process in those respects. In any event, as the Investigation Team also records, the Directorate bore some responsibility for ensuring that the claimant did not work excessively. Fundamentally, however, if this is an issue, it would appear to the Tribunal as one for guidance in a pastoral sense rather than being addressed through a disciplinary procedure.”
At one point, Mr Kassem was accused of possible fraud, but this was dismissed and it was concluded that if anything, Mr Kassem had underclaimed for work done and deserved to be paid more:
“10.120 The final allegation against the claimant is that he had engaged in potentially fraudulent activity. The basis of this allegation was identified by Ms Dean in her witness statement as being that during a review of additional timesheets submitted by the claimant for the period 4 August to 16 September 2018 she had identified that there was an overlap and double-counting for time when he should have been starting his normal scheduled work but was still claiming for his RMO work finishing after that time. More particularly, on 10 and 15 August and 14 September 2018 the claimant had claimed to have finished his 12-hour RMO shifts in Hartlepool at 9.00am but, on each of those days, he should have commenced his scheduled programmed work at 8.30am; that being, on 15 August, a manometry clinic at 8.30am at North Tees. As to 10 August and 14 September, the claimant explained that he had adjusted his working time to accommodate a colleague. The claimant had started his shift at 8.00pm the night before and a colleague attended at 8.00am and they both agreed that so as to avoid confusion they would each claim 12 hours as shown on the rota (i.e. in the claimant’s case from 9.00pm to 9.00am), which the claimant suggested is a frequent occurrence between doctors. As to 15 August, the claimant explained that although the manometry clinic started at 9.00am, preparatory work could take 30 to 40 minutes and it had therefore been agreed with the colorectal manager that the claimant’s start and finish times could be adjusted so as to be from 9.30am to 1.30pm thus maintaining the same number of hours per session. In these circumstances the claimant denies any overlap in his working hours. The Tribunal accepts the claimant’s explanation that the manometry clinic does not start until 9.00am, and not 8.30am as alleged, given that that is supported by the evidence of Mr Tabaqchali, and, in any event, the clinician is not required to be in attendance until 9.30am and the claimant finished at 1.30pm. In this regard, the evidence of Mr Tabaqchali is clear, “the manometry clinic starts at 9.30am, and not 9.00am as stated in his job plan” and given the regular meetings that Mr Tabaqchali (as lead for the colorectal service until 2016) had had with the Directorate management team where all operational, performance and staffing issues were standing items on the agenda it was “difficult to imagine that the directorate had no knowledge of how the lab or the service works over such a long period of time.” Although it is a different point, Mr Tabaqchali concluded his evidence in this respect that he was aware that the claimant “did numerous additional sessions without claiming payments. I therefore think it is a great pity that the directorate has taken this approach rather than thanking him for his hard work and dedication. I would suggest that the directorate overall owe him more pay, not less pay.”
The ET concluded that those involved in a process of disciplinary investigation against Mr Kassem had acted out of retaliation for his whistleblowing:
“As stated in relation to paragraph 4b. of the claimant’s victimisation complaint the Tribunal has found that the investigation did amount to a detriment. Given that the claimant had made a protected disclosure and the Tribunal being satisfied that the respondent subjected him to that detriment, the burden of proof again shifts to the respondent to prove that the claimant was not subjected to the detriment on the ground that he made the protected disclosure. Having considered the mental processes of those involved in instituting and progressing the disciplinary investigation, for the reasons set out in its findings of fact above, the Tribunal is not satisfied that the respondent has discharged that burden of proof to the satisfaction of the Tribunal.”
All the above is a depressing litany, so very familiar to many whistleblowers.
Issues of CQC Regulation 5 Fit and Proper Persons arise regarding the board of North Tees and Hartlepool NHS Foundation Trust, not just because of the details of Mr Kassem’s case but because it follows Linda Fairhall’s case.
And there is one notable detail.
Mr Kassem’s patient safety whistleblowing concerns were reviewed by North Tees’ deputy medical director, Chris Tulloch. The ET noted the following:
“The 25 patients referred to above were reviewed by Mr Tulloch. He noted that all but one of the cases had been through at least one of the relevant processes operated by the respondent: the M&M meeting, the Independent Review Panel (“IRP”) or the Safety Panel. The one case that had not been through a review route was relatively recent and there were plans in place to progress it. Having reviewed the documentation, Mr Tulloch was satisfied that the appropriate processes had been adopted to ensure that objective scrutiny had been applied and he had not identified any untoward practice occurring within the Directorate (285/6).”
Yet she has announced no formal case review of the whistleblowing governance at North Tees, and now there is a second serious failure. Who knows if even this will persuade her to take any real action to support future whistleblowers at the trust. Her Office has ingeniously cited both uncompleted and completed employment tribunal proceedings as exclusion criteria for case review.
In fairness, one must marvel at the audacity of the self-serving puffery that is the government’s Freedom To Speak Up project.
These outrages and injustices will continue for as long as UK politics remain broken with cronyism and impunity, and our weak whistleblowing law is left unreformed. However long as it takes, whistleblowing law reform is badly needed:
By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 29 January 2021
Summary: The most recent in a long line of whistleblowing scandals at UHMBT, regarding orthopaedic safety, involves potential whistleblower reprisal by counter-allegations. The trust was asked to explain its approach to managing counter-allegations and reprisal, but its response does not address the specific issues. The national whistleblowing template policy by NHS Improvement does not help much either. Without accountability and effective deterrence of reprisal, problems will continue. Weak UK whistleblowing law needs to be overhauled to ensure accountability and to deter reprisal. Concerns continue about orthopaedic surgery at UHMBT and there is pressure for a fuller, independent investigation.
Counter-allegations in whistleblowing cases
Whistleblowers are at high risk of malicious counter-allegations and retaliatory disciplinary action.
Reprisal is the logical thing to do if you wish to silence a whistleblower, or undermine their credibility to obliterate their embarrassing disclosures.
That is not to say that whistleblowers are all saints and above reproach.
But fair and skilled handling of counter-allegations is an essential part of good whistleblowing governance. As is ensuring jeopardy for abusers.
Well-known organisational tactics are to deliberately make whistleblowing cases complicated and harder to understand, and to use malicious counter-allegations to muddy the waters.
Sometimes, the aim is to sell a narrative of clash of personalities (which may allow a whistleblower’s dismissal under the Some Other Substantial Reason mechanism), or an “it’s a can of worms” type scenario. The whistleblower is then caught in this undertow and swept out to sea, their disclosures conveniently forgotten. If some blame can be smeared on to a whistleblower, this also reduces awards that may be made by Employment Tribunals.
Sir Anthony Hooper reviewed the General Medical Council’s handling of whistleblowing after a series of scandals in which whistleblowers were vexatiously referred to the regulator.
His recommendations emphasised the vital need for accountability and included a mandatory statement of truth by senior, registered doctors who refer other doctors to the GMC, and a recommendation that those found to have made vexatious referrals should be subject to a review of their fitness to practice.
The English NHS currently has a national policy that is supposed to be adopted by all NHS organisations, produced by NHS Improvement. This national template is weak on the management of whistleblower reprisal. It does little other than provide an empty promise of zero tolerance, with no practical detail on how this is achieved:
“Feel safe to raise your concern
If you raise a genuine concern under this policy, you will not be at risk of losing your job or suffering any form of reprisal as a result. We will not tolerate the harassment or victimisation of anyone raising a concern. Nor will we tolerate any attempt to bully you into not raising any such concern. Any such behaviour is a breach of our values as an organisation and, if upheld following investigation, could result in disciplinary action.
Provided you are acting honestly, it does not matter if you are mistaken or if there is an innocent explanation for your concerns.”
NHS Improvement’s policy does not state how evidence on possible reprisal should be evaluated and weighed. Neither does it explain how organisations should track possible reprisal and suspected abusers. Importantly, it does not say how whistleblowers will be supported if counter-allegations are made against them, or how counter-allegations should be handled to ensure that whistleblowers are not punished by allowing abuse of process.
Counter-allegations against a whistleblower at University Hospitals of Morecambe Bay NHS Foundation Trust
Importantly though, the heart of the affair was noted:
“In their letter to the CEO, the doctors said further patients were harmed between the 20 clinical incidents being raised and the restrictions being imposed, including a patient whose hip socket fell out days after a hip replacement and a patient’s femur being fractured during an operation. The consultants alleged the response to their concerns had amounted to a “cover up”.
In a reply to the consultants, chief executive Aaron Cummins admitted “more robust action” should have been taken after analysing the list of 20 incidents.
Meanwhile, an external review completed by the deputy medical director of North Tees and Hartlepool FT in January 2020 confirmed “several patients did suffer in the period between presentation of the 20 critical incidents and action being taken by the GMC”.
The above January 2020 review conducted by Chris Tulloch the deputy medical director of North Tees has now been published in an FOI disclosure by UHMBT (see last 19 pages of the disclosed document).
For the record, North Tees and Hartlepool also has severe whistleblowing governance problems, as evidenced by senior nurse Linda Fairhall’s case of serious, proven whistleblower detriment:
There is a particularly worrying aspect of the UHMBT orthopaedics whistleblowing case that is revealed by the Tulloch review.
The review report contains this passage on possible reprisal by counter-allegations, against one of the doctors who had raised concerns:
“Q12: Why was Consultant A practice suddenly subjected to scrutiny and performing a particular operation stopped temporarily after he raised the concerns while the AS continued unrestricted practice?
A12: This practice was raised through whistleblowing and is being reviewed by the HR director. This is the subject of a separate external review.”
From this passage, there seems no visible attempt to consider the possibility of reprisal, or to address why harsher action appears to have been taken against a whistleblower than the person about whom they raised concerns.
I therefore asked UHMBT for comment on the soundness of its whistleblowing governance, and in particular its approach to handling possible reprisal against whistleblowers in the form of counter-allegations.
The questions put to the trust were as follows:
“Would you like to comment on whether the Trust has appropriately managed possible whistleblower reprisal by a manager against a doctor who raised concerns about a colleague, and who was then subject to restriction of their practice, when there was reportedly no restriction of the practice of the doctor about whom they had raised concerns? I refer to the Tulloch external review report, which states:
“Q12: Why was Consultant A practice suddenly subjected to scrutiny and performing a particular operation stopped temporarily after he raised the concerns while the AS continued unrestricted practice?
A12: This practice was raised through whistleblowing and is being reviewed by the HR director. This is the subject of a separate external review.”
Can the trust believe it has adequate policies to manage malicious counter allegations against whistleblowers?
Does the trust believe it has taken appropriate disciplinary action for any whistleblower reprisal?
If the trust’s policies do not currently deal with possibly vexatious counter allegations against whistleblowers, does the trust have any plans to correct this gap?
Does the trust wish to comment on why it continues to have problems with whistleblowing matters?
Does the trust believe that its HR systems and its senior HR managers are responding appropriately to whistleblowing issues and that they are proactively and effectively supporting good practice?”
After reporting that it had run its response past NHS England, the trust replied as follows yesterday:
From: REDACTED Subject: Re: Comment on whistleblowing issues Date: 28 January 2021 at 18:09:40 GMT To: Minh Alexander <REDACTED>
Hi Dr Alexander – with apologies because its so late, please find below a statement in response to your queries about the service. It doesn’t answer each point individually but hopefully the overall statement explains our position.
“Aaron Cummins, Chief Executive, UHMBT, said: “We encourage all colleagues from across the Trust to raise their concerns, either with staff side colleagues, the Freedom to Speak Up Guardian, our Governors, including staff governors, or one of our non-executive directors.
“We also have an app to raise concerns anonymously and its great that more incidents are being raised, which shows staff feel more comfortable about raising issues.
“During a six month period in 2018 we received reports related to 20 incidents regarding clinical care which occurred between 2011 and 2018 within our orthopaedic service. These were all investigated and reviewed appropriately by our Patient Safety Summit and reported through our internal governance processes, with appropriate action taken to ensure the safety of our patients.
“Subsequently in October 2019, further concerns regarding the orthopaedic service was sent to the Chief Executive, which posed a number of further questions. Senior leaders, including the Chief Executive, met with the orthopaedic team to ensure the concerns were fully understood and addressed. We operate a safe orthopaedic service.
“As a result of this, the Trust appointed an independent external orthopaedic expert to carry out a review of the concerns raised and to answer the questions posed. That review reported in January 2020 and made some recommendations for the service.
“The issues raised and recommendations from the independent report are being worked through and implemented, ensuring the service continues to be safe for our patients. The orthopaedic service continues to be supported with additional training, capacity, executive support and expertise.”
Perhaps I am missing something, but the trust board does not seem to be engaging at all on the issue of whether its management of whistleblower reprisal is adequate.
We may well see yet more Morecambe Bay whistleblower scandals if there is a reluctance to learn, and to ensure that any inappropriate bullying against whistleblowers is properly deterred.
The trust appears keen to draw a line under the orthopaedics issues, but we may not have heard the last of this affair. Representations continue to be made and there is pressure for a more in depth, and fully independent review of orthopaedic safety, in line with the review of the urology service, that has been precipitated by another whistleblowing matter.
Who is most likely to be proven right? Whistleblowers or the trust that has had serial problems with whistleblowing governance?
Meanwhile, the last two UHMBT CEOs enthuse about speaking up and positive culture.
Please sweep away all the faux whistleblowing governance and government propaganda by supporting law reform, and signing and sharing this petition:
By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 3 January 2021
The NHS is currently under attack from deliberate disinformation by extremists, who seek to minimise the seriousness of the COVID-19 crisis, and to spur people into ignoring infection control guidance.
Unhelpfully, an NHS England comms blackout is reportedly in force.
Dr Marie-Louise Irvine NHS GP and former candidate for the NHA party asserts that this media blackout allows the government to control the narrative:
This context permitted an uncomfortable series of events to unfold over a BBC Radio 5 Live interview about NHS pressures in which a senior nurse, a matron, spoke of her perception of increased admission of children and younger people with COVID-19.
These were her words:
“It was minimally affecting children in the first wave. We have a whole ward of children here and I know some of my colleagues are in the same position with whole wards of children with Covid.”
“….20 and 30-year-olds with no underlying health conditions are coming in”
This is a link to the BBC interview recording:
It is not clear what effort, if any, the BBC made to corroborate her account, and whether it contacted her employing trust for more information.
His comments were reported yesterday by several media outlets, including the Sun and the Daily Mail, with the following headlines:
The Mail noted that Laura Duffell was a “vocal campaigner for nurses”:
“Ms Duffel – a vocal campaigner for nurses who previously appeared on Good Morning Britain to talk about paying £1,440 to park outside her place of work – defended herself against backlash online, as others accused her of lying about having a ward filled with children with coronavirus.”
The Mail did not note equivalent contextual information about Dr Cheung, such as the fact he was reportedly a signatory to a letter from paediatricians this summer, urging the government to re-open schools:
The BBC ran an article quoting Dr Cheung and four other senior doctors headed
The most recent Office of National Statistics data release from the national coronavirus infection survey (based on community testing) estimated that as of 18 December 2020, 2.98% (1 in 33) children in school years 7-11 and 2.43% (1 in 41) of school year 12 to age 24% would test positive for COVID-19.
The BBC article contained no update quote from Laura Duffell, and it made no reference to whether her employing trust had confirmed or denied her original account about child COVID-19 admissions.
BBC Radio 5 Live helped to disseminate the BBC article:
It was difficult to tell how much balance was being restored to the debate. Or alternatively, whether there was a drive to limit interest in a matter which might impinge on the politically sensitive dispute about the government’s attempts to keep schools open (in spite of SAGE advice on 22 December 2020 that without secondary school closure, the virus will continue to spread).
Whatever, it was uncomfortable to see the wall of senior medics ranged in united chorus against the matron’s comments.
Information in the public domain indicates that Laura Duffell works at King’s College Hospital NHS Foundation Trust.
King’s previously produced a paper about the children whom it had admitted with COVID-19 earlier on in the pandemic:
The numbers were small, but the paper posited that children in the local catchment might be at greater risk of severe COVID-19 disease because of the socioeconomic context.
King’s has confirmed to me today that it has a 15 bedded paediatric COVID ward, currently with four patients and one further paediatric patient in ICU.
Laura Duffell has also featured in a Guardian article today on the experiences of staff at the frontline. In this article she reports that as paediatric matron, she has set up one paediatric COVID ward and is in the process of setting up another:
“Duffell, who is a paediatric nurse, says the south-east London hospital where she works is full, with intensive care beds being moved into operating theatres and recovery wards.
“We’re juggling which patients go where constantly: are they sick enough to go to intensive care? Or could we put them in a high-dependency ward? Where are we going to get ventilators from and where are we going to get the nurses trained to use them? It’s hour by hour,” she says. “It’s far worse than any winter I’ve ever experienced and we’re barely even in January yet.”
Her department worked hard over the summer to get through waiting lists after operations for sick children were cancelled but she fears they may soon be in the same situation again. “Unless something changes, we are going to be in a position where patients that don’t have Covid suffer,” she adds.
The new coronavirus variant, which is thought to be behind the spike in cases, appears to be hitting younger people harder. Duffell has been forced to turn over two paediatric wards to children with the disease. “We had the odd child here and there last time, but in this wave we are getting a lot of positive younger people,” she says. “We have one Covid ward for children already and we are just setting up a second one.”
It seems unlikely in these hugely strained times that an NHS trust would make such arrangements without reasonable belief that such a contingency is necessary.
But the dense fog of the centre’s media clampdown, and the fact-lite news reports, leave us guessing.
What we do know is that King’s, like other NHS trusts in London and the South East, has seen a very rapid recent expansion in the overall number of COVID-19 inpatients.
Such is the state of emergency that the trust has reportedly recalled staff from leave. The document below is apparently a leaked internal memo:
The COVID-19 pandemic has thrown into sharp relief something well known to whistleblowers – that UK whistleblowing governance is marred by conflicts of interest, and that the government of the day may deprive the public of its right to know out of political self-interest. Although it may take a long time, we need much better whistleblowing law and systems, including a central whistleblowing agency that is not subject to any government control and interference, and which reports directly to parliament.
They subsequently ignored mainstream scientific advice and chose not to impose a brief national lockdown to stop a second wave, which inevitably occurred.
Moreover, extremist actors who have supported the current UK government are spreading fake news, denying the seriousness of the COVID-19 crisis, implying that the risks are minimal for people under 60 years old and even falsely claiming that reports of huge strain on the NHS are untrue.
This is a brief post to share source material from the SAGE scientific advisory group meeting on 22 December 2020 which:
Gave information about the more infectious new COVID-19 variant
Listed as yet unanswered but important questions about the new variant
Advised of increasing evidence that children are transmitting virus and that keeping schools open is enabling virus spread via this route
Gave advice to the government that without closure of secondary schools, it was “highly unlikely” that virus transmission could be controlled
Gave advice to the government that even a full national lockdown might not be sufficient to control virus transmission
This is the critical excerpt from the SAGE minutes:
These were the observers and government officials who were documented to be present at the SAGE meeting on 22 December 2020:
We know of course that the government did not act to reduce risk by closing schools or at least secondary schools, and it also allowed Christmas household mixing in some areas, despite SAGE’s above advice on 22 December 2020.
Not only that, it intimidated councils who tried to act on steeply rising infection rates by closing schools. Greenwich borough council closed its schools and the government launched action to force Greenwich to back down. The borough is currently one of the worst infected areas in the country, with some localities with more than a thousand cases per 100,000 resident population. However, the government has made a vindictive political point by allowing some schools to delay reopening in January, but continuing to refuse permission for Greenwich to close its schools. This is a letter from Danny Thorpe Leader of Greenwich council to Gavin Williamson the Education secretary about these events:
It is horrifying but not surprising to learn what SAGE advised the government just before Christmas, and the extent of the government’s cruel recklessness with lives.
We are currently reaping the whirlwind in unprecedented numbers of daily new COVID-19 cases and our hospitals are filling up with COVID-19 patients with some areas such as the South East being forced to evacuate critically ill patients far out of catchment because there are no beds. And the biggest surge is yet to come.
By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist
The reporting and investigation of serious incidents in the NHS, especially in mental health services remains a serious problem.
The 2015 Mazars investigation into deaths at Southern Health NHS Foundation Trust revealed appalling failure to investigate hundreds of mental health deaths, a failure either not detected or reported by the Care Quality Commission in a preceding inspection.
Today a parliamentary debate takes place on mental health deaths under the care of Essex Partnership NHS Foundation Trust, as a result of a petition by Melanie Leahy seeking a public inquiry into the disturbing death of her son Matthew, in the context of many other similar deaths and a concern that the trust failed to learn from these deaths.
It is a rough exercise as some mental health trusts have merged with non-mental health trusts during the past three years.
Even allowing for differences in trust size and deprivation in catchment areas, a rough glance raises questions about wide variation in the number of fatal incidents reported.
Are some trusts with specialist mental health services reporting less honestly than others?
Are some trusts wrongly reporting some deaths as “incidents”?
Are some trusts not learning as much as they should from deaths and if so, why?
How much is due to structural problems such as chronic underfunding and neglect of mental health services?
This is a table of the trusts with specialist mental services with the highest number of reported fatal incidents in the last three years:
For completeness, I compared the number of reported fatal incidents during the pandemic (March to September 2020) – 1634, to the number over a similar period (March to August 2019) the year before – 1376.
(I could not find NRLS data for September 2019).
The most vulnerable patients are entitled to safeguarding of their best interests, but sometimes they are failed precisely because they are vulnerable and unable to speak up for themselves.
This includes systemic failure to learn where such patients suffer serious harm.
Real parity of esteem for psychiatric patients is still a long way off.
We have seen over decades that little changes and mental health scandals recur, with similar failures. The political failures underlying this are complex and refractory.
Importantly though, we still have no real NHS investigator.
Instead, patients and bereaved families are faced with an expensively ineffective labyrinth, which leaves questions unanswered after years of endless processes.
Yet in the case of mental health deaths of people where Article 2 Right to Life is engaged and the State has a particular responsibility, it is especially important that this changes and that effective investigation takes place expeditiously.
Please support this petition for independent pre-inquest investigation into all unexplained mental health deaths:
By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 27 November 2020
Paula Vennells Imperial’s Chair was a senior manager at Post Office Ltd for 10 years, including seven years as CEO 2012-2019, when the bitter dispute about unsafe prosecutions, convictions and jailings of subpostmasters rumbled on, and culminated in legal action which was aggressively defended by Post Office Ltd.
Related to this scandal, earlier this year BEIS ministers (who oversee the Post Office) asked both the Department of Health and Social Care and the Care Quality Commission to review whether Vennells, is a Fit and Proper Person to be Chair of Imperial College Healthcare NHS Trust.
A letter of May 2020 by Lord Callanan BEIS minister to Department of Health and Care about Vennells’ fitness is provided by this article:
Statement 10 June 2020 by Paul Scully BEIS minister to parliament about his Fit and Proper Person referral on Paula Vennells to the CQC:
I made a referral on Vennells to the relevant watchdog, the Care Quality Commission under CQC Regulation 5 Fit and Proper Persons almost a year ago. It was not until October 2020 that the CQC ensured that the trust commissioned an external review.
CQC shows little appetite so far for ensuring that the external review is commissioned fairly. The trust itself has ignored a request to consult harmed subpostmasters about the review’s terms of reference and to invite their evidence to the supposedly independent review.
The Criminal Cases Review Commission (CCRC ) has now disclosed via FOI that a total of 71 subpostmasters have applied to the Commission for review of suspect prosecutions by Post Office Ltd. In addition to 47 cases already referred to the Court of Appeal by CCRC, an additional 17 cases are still undergoing CCRC review:
“At the time of writing, the CCRC has received a total of 71 applications for review of potential miscarriages of justice related to the Post Office Horizon cases. 47 have been referred to the Appeal Courts and 17 applications are currently actively under review.”
CCRC has also disclosed letters that it sent to the Justice Committee and to Suella Braverman MP Attorney General, seeking review of private prosecutions in the light of the Post Office’s appalling misuse of its powers.
These are the CCRC FOI disclosure letter and attached disclosed correspondence by the CCRC:
The CCRC letter to Braverman states that CCRC’s referrals to the Court of Appeal are based on an argument of “abuse of process” by Post Office Ltd.
Abuse of process in the legal sense is a most serious matter. The burden of proof is on defendants, so CCRC must have determined substantial evidence existed. The Crown Prosecution Service’s guidance notes on abuse of process can be found here. These are the broad areas covered by the CPS guidance:
Moreover, CCRC stated that its abuse of process argument is derived from the trial judge’s “trenchant” findings.
“The CCRC has so far decided to refer for appeal 47 such cases on the basis of an abuse of process argument. That argument is itself based on trenchant findings made against the Post Office by Mr Justice Fraser in High Court civil proceedings brought by a large group of former Sub Post Masters/ Mistresses”.
CCRC additionally quotes the following passage from its referral of cases to the Court of Appeal:
“In making the referrals to the Court of Appeal, the CCRC observes in paragraph 68 of our Statement of Reasons that:
“…in the context of [Post Office Limited’s] POL’s combined status as victim, investigator and prosecutor of the offences in question – the CCRC considers that there are reasons for significant concern as to whether POL at all times acted as a thorough and objective investigator and prosecutor, ensuring that all reasonable lines of inquiry were explored.”
Judge Fraser handed down his High Court judgment against Post Office Ltd on 16 December 2019.
That is to say, relevant evidence was there all along and available to CQC, NHS Improvement and the Imperial trust board, from the start of the FPPR process.
We wearily await the outcome of the external review process, controlled by a trust board which has already demonstrated wilful blindness.
UPDATE 6 DECEMBER 2020
Post Office miscarriage of justice campaigners have spotted this post by Imperial College Healthcare NHS Trust three days ago, announcing that Paula Vennells will step down as Chair of Imperial: