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

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 10 August 2018

Summary: I have been asked to comment on HSIB investigations. HSIB is purportedly based on aviation models of accident investigation and has been parachuted into the NHS, but there are very considerable difficulties in attempting  a straight translation. Healthcare is a much, much more complex, human endeavour. There are many more actors, a greater range of tasks, greater relational complexity, including different ethical, regulatory and political contexts. HSIB has also been under the Department Health thumb in the early stages of its establishment, with the embedment of a DH deputy director as its director of corporate affairs, who was in charge of comms.

I have looked at HSIB’s second published investigation report, on a mental health case as this is territory with which I most familiar. I concentrate on HSIB’s silence about failures to deliver a central plank of government mental health policy for almost thirty years – the Care Programme Approach (CPA). A young person died in the transition between two services. HSIB spins a line that CQC haplessly lacked a mechanism for regulating such transitions. In truth, since CQC’s inception its regulations and protocols have required it to inspect the interface between services and providers, and to ensure safe transitions. CQC has repeatedly reaffirmed these principles. The question is why policy failed. The government short changed the public and oppressed the mental health workforce by superficially standing by quality standards such as CPA, but not giving the NHS the resources to properly implement them. If HSIB is truly independent, it should be highlighting these issues more robustly.

The Care Programme Approach

In the NHS, CPA was introduced into mental health services in 1990 after an asylum closure programme to ensure that de-institutionalisation did not result in neglect in the community:

The Care Programme Approach for people with a mental illness, referred to specialist psychiatric services. HC(90)23/LASSL(90)11. Joint Health and Social Services Circular: DoH.

Continuing high profile failures of care in the community of people with serious mental illness, and a string of inquiries into serious incidents, avoidable deaths and homicides by mentally unwell people emphasised the need for joined up mental health care. The disturbing images of Ben Silcock in the lions’ pen at London Zoo on New Year’s Eve 1992 where he was gravely mauled, the revelations of his serious mental illness and the fact that  he had been turned down for hospital admission prior to the incident, prompted a public outcry.

As did the unprovoked, fatal attack by Christopher Clunis on Jonathan Zito, a complete stranger, at Finsbury Park Tube station in December 1992. An inquiry revealed that Clunis passed through several mental health services before the killing, with missed opportunities to care for him and to protect the public. Clunis later sued his Health Authority for neglect.

CPA has been revised several times. Some mental health staff perceived its structure as an imposition. There have also been controversies around later attempts to tier and then restrict CPA to the most complex cases. Confusion persists about who should be cared for under CPA:

 

The CQC has acknowledged in its statistical releases that the proportion of patients on CPA varies greatly between trusts. For example:

2015: “…it is worth noting that there is enormous variation in the proportion of people on CPA between trusts: for respondents to the 2015 survey this ranged from 10% to 61%, which suggests that there are systematic differences in how trusts interpret and apply the CPA policy locally.”

2017: “…it is worth noting that there is a large variation in the proportion of people on the CPA between trusts, which suggests that there are systematic differences in how trusts individually interpret and apply the CPA policy.”

 

In general terms, CPA applies to patients with the most complex needs and risks. It is possible that more patients would be assigned to CPA if mental health services were under less resource pressure.

CPA is just common sense and a formalisation of good practice. It seeks to prevent blind spots in care planning and risk assessment by providing a comprehensive framework under which such activities take place. CPA provides for a key role – that of the key worker or ‘care coordinator’ whose job it is to drive the care plan and ensure that it is properly carried out, and that all of the patient’s needs are met:

B KeyworkerHealth Service Circular/Local Authority Circular HC(90)23/ LASSL(90)11

Crucially, CPA also serves to ensure safe handovers within and between teams and services, because poor communication and badly managed transitions lie behind many serious mental health failures. Lost information and risk assessments based on incomplete information, or risk assessments made without due multi-disciplinary process or senior oversight are classic factors in serious mental health incidents.

Importantly, CPA seeks to ensure that the patient, family and or carer voice is heard by giving a structured means of consulting and recording their views, and providing them with a transparent, written record of therapeutic commitments by the treating service.

CPA emphasised the great importance of the therapeutic relationship and of not letting people fall through the safety net:

B therapeutic relationshipHealth Service Circular/Local Authority Circular HC(90)23/ LASSL(90)11

In short, CPA was intended to be a failsafe that ensured thorough, supportive, patient-centred and safe care.

It follows that breaches of CPA may put basic care standards at risk. Inquiries, coroners’ warning reports and independent mental health homicide reports commissioned by Health Authorities, Strategic Health Authorities and NHS England have repeatedly cited care planning/ CPA failures as contributory factors.

For example, this coroner’s report to Prevent Future Deaths (PFD) was recently sent to Jeremy Hunt, about the death of Robin Richards who was on CPA but in whose case there were a number of care planning and communication breakdowns:

B Coroner's concerns

This PFD was issued on 25 May 2018 and there is still no published response by the Department of Health and Social Care.

Under the strain of austerity and de-funding, immense service pressures make it harder for mental health services to meet CPA standards or to meet them well. Care coordinators may not be replaced when they leave or go off sick , or patients may be passed repeatedly between care coordinators, resulting in an impersonal experience with loss of continuity.

Proactive crisis planning is a core part of CPA, and relies on staff who understand early warning signs. This clearly works better when there is a relationship and staff know the patient, as opposed to someone walking in on a crisis and checking off a list. Patients are also more likely to be comforted by and work more easily with staff whom they trust, than a relative stranger.

Under the pressure of staffing shortages and de-funding, the care coordinator role may be delegated to inappropriately inexperienced and inadequately supervised staff. Care planning may also be dictated by service pressures instead of led by patients’ needs. Serious shortages in mental health beds result in premature, chaotic discharges and sometimes emergency re-admissions in short succession. The CPA process may be reduced to hurried, tokenistic form filling or alternatively it runs behind playing catch up, when it should be a meaningful, proactive process.

It is also possible to have perfect CPA paperwork but awful care that is based on poor assessment and is badly prescribed.

The signs of extreme pressure on mental health services have been writ large for some time, but CQC has not revealed the full extent of the failures. CQC rates most mental health trusts as “Good’ or ‘Outstanding’:

“As at 31 May 2017, we had rated 68% of NHS core services as good and 6% as outstanding.”

This is despite systemic failures across the board to meet patients’ needs, as evidenced for example by daily placement of NHS patients in private sector beds sometimes hundreds of miles from home,  because the NHS does not have enough beds of its own.

 

HSIB’s investigation on ‘The Transition from Child and Adolescent Mental Health Services to Adult Mental Health Services’

The Healthcare Safety Investigation Branch’s second investigation report of July 2018 into the unsafe interface between child and adolescent mental health services (CAMHS) and adult mental health services (ADMHS) leaves much unsaid.

It focuses on the case of Ben. These are the salient facts of his case according to HSIB:

B Reference incident

HSIB’s report did not fully map Ben’s care against accepted CPA standards and national guidance, but it identified that no CPA meeting had taken place in the months that Ben was nominally subject to CPA, that no carer’s assessment had been offered when this was indicated and that there were failings in risk assessment and management.

Almost 30 years after CPA was introduced, HSIB could have said a lot more about the significance of any failure of CPA process. Why are there still frequent failures in this core process for people with serious conditions, that is supposed to ensure safe care? What have the government and NHS regulators been doing in response to the inquiries, coroners’ warnings and mental health homicide investigation reports that have flagged failures in CPA process?

In 2008 the government indicated that it expected NHS regulators to police CPA. CQC’s predecessor the Healthcare Commission examined CPA and in March 2009 concluded:

 ‘However, marked variations between trusts remain and the national averages against which they are compared are relatively low, suggesting that some trusts have been far more successful than others in ensuring that the infrastructure for the CPA is embedded within routine practice.”

CQC took over from HCC in April 2009. What has CQC done since about patchy CPA implementation, including precarious CAMHS to AMHS handovers? If CQC had been regulating CPA effectively, this would have encompassed the transition between CAMHS and AMHS, because safe handover is exactly what CPA was designed to govern.

For decades now, data on CPA compliance has been centrally collated. A critical transition is that between hospital and community. This has been linked time and again to suicides. It remains unreliable. National policy is that patients should be seen within 7 days of discharge from hospital but some still slip through. The data showing the breaches is routinely published by NHS digital. In the last quarter of 2017/18, , ‘Outstanding’ East London NHS Foundation Trust had the second worst rates of 7 day follow up: only 1006 out of 1154 (87.2%). Leicestershire Partnership NHS Trust had the lowest 7 day follow up rate, at 68.8%.

Year in, year out CQC has received intelligence from patients via the annual (adult) community mental health survey of poor experiences of care planning, crisis planning and of being insufficiently involved by services in devising their own care.

Patients’ response rates to the CQC’s annual community mental health surveys have been low and are falling:

CQC annual community mental health survey of patients receiving specialist care Response rate to survey
2012 32%
2013 29%
2014 29%
2015 29%
2016 29%
2017 26%

Source: CQC annual community mental health surveys

It is possible that the results would be worse if data from patients who did not respond was included. Interpretation of survey results is hampered by a change in methodology in 2014, which limits comparability with earlier results. Comparability is also limited by inconsistency in CQC’s presentation of results.

Nevertheless, the surveys have suggested that patients do not reliably receive a care plan or that a care plan is consistently agreed, even when some are deemed ill and disabled enough to require CPA:

Year of CQC community mental health survey Question 27 Have you been given (or offered) a written or printed copy of your NHS care plan?
2012  24% patients on CPA replied ‘No’
2013  24% patients on CPA replied ‘No’
  Question 12 Have you agreed with someone from NHS mental health services what care you will receive?
2014 23% of all patients replied ‘No’*
2015 15% of patients on CPA replied ‘No’
2016 14% of patients on CPA replied ‘No’
2017 24% of all patients replied ‘No’* 

*Specific statistics for patients on CPA not available

The surveys have suggested that crisis care planning has not been reliable enough, even though this is vital to risk management. Recent figures suggest that about a fifth of patients on CPA do not know how to seek help in a crisis:

Year of CQC community mental health survey Question 26 Does your NHS care plan cover what you should do if you have a crisis (e.g. if you are not coping or if you may need to be admitted to a mental health ward)?
2012 14% patients on CPA replied ‘No’
2013 14% patients on CPA replied ‘No’
  Question 21: Do you know who to contact out of office hours if you have a crisis?        
2014 32% of all patients replied ‘No’*
2015 19% of patients on CPA replied ‘No’
2016 20% of patients on CPA replied ‘No’
2017 29% of all patients replied ‘No’*

*Specific statistics for patients on CPA not available

The survey has also suggested that some patients’ care plans are infrequently reviewed, even when they are considered to have serious enough needs to merit being placed on CPA:

Year of CQC community mental health survey Question 28 In the last 12 months have you had a care review meeting to discuss your care?
2012 24% patients on CPA replied ‘No’
2013 26% patients on CPA replied ‘No’
  Q14: In the last 12 months have you had a formal meeting with someone from NHS mental health services to discuss how your care is working?                                                    
2014 26% of all patients replied ‘No’*
2015 17% of patients on CPA replied ‘No’
2016 18% of patients on CPA replied ‘No’
2017 26% of all patients replied ‘No’*

*Specific statistics for patients on CPA not available

NHS England acknowledged some of these core failures in its 2016 Five Year Forward report:

Almost one-fifth of people with care coordinated through the Care Programme Approach (for people with more severe or complex needs) have not had a formal meeting to review their care in the previous 12 months.”

HSIB’s report did not mention these wider, persisting problems in national CPA delivery, nor did it explore what action CQC had taken in response to this.

HSIB’s report made no reference to specific provision for handover between CAMHS and AMHS that appeared in national Department of Health CPA guidance from 2008:

 “Child and Adolescent Mental Health Services

The importance of having a system similar to CPA for children and young people with mental health needs is increasingly recognised. In the Report on the Implementation of Standard 9 of the National Service Framework for Children, Young People and Maternity Services, 68 in delivering good practice for young people it is noted that “The Care Programme Approach, modified to meet the needs of younger people, is used to plan transition, and transition is supported by agreed protocols.”

A similar point is made in Standard 9 of the NSF for Children, Young People and Maternity Services, namely “When children and young people are discharged from in-patient services into the community and when young people are transferred from child to adult services, their continuity of care is ensured by use of the care programme approach.”

However, it is important that where CPA is considered relevant for children and young people it is tailored to their requirements. Guidance on how this can be achieved is set out at Annex B.”

This Annex B is found on page 45 of the DH 2008 guidance and provides guidance on the special needs of children and young people when care planning. It specifically addresses:

– A need for more frequent review than in adult cases

– Very careful coordination between professionals and agencies

– The particular need to involve families and carers given the developmental stage of children and young people

– A need for age appropriate communication and documentation, and special support to participate in care planning

 

HSIB only summarises the 2008 DH guidance very briefly thus:

B Refocusing the CPA

CQC actually acknowledged that there was unsafe practice around transition from children’s to adult health services in a specific 2014 report. This focussed largely on physical health services but touched on mental health services as well. The question was what happened next.

Instead of confronting the question of CQC’s and other central bodies’ oversight of existing CAMHS-AMHS transition policy, HSIB proffered this wriggly explanation for CQC’s failure to get a grip of CAMHS-AMHS handover issues:

B CQC excuse

This is a bizarre claim by HSIB. Since CQC’s inception, the regulations underpinning its operations have included a requirement for it to regulate co-operation between providers and transfer of service users between providers as part of assessing service safety:

B CQC co op with other providers

HSIB’s report also omitted to mention that in 2013, CQC issued a framework for inspecting mental health services  which specifically emphasised the importance of safely managed transitions between services and providers:

A fresh start for the regulation and inspection of mental health services Working together to change how we regulate, inspect, and monitor specialist mental health services

 ·      Focus on transitions, care pathways and joint working, including where people move between services and where care is provided in an integrated way. Transitions between services will include moving between services within the provider – such as between children and young people’s and adult services or between adult and older adult services – as well as between providers – such as the transition between primary and secondary care or between independent sector and NHS services.

·      For the providers we regulate, this will mean looking at the timeliness of responses and the way they work with other providers to achieve positive outcomes for people who use services. This includes integrated working to address physical as well as mental health needs; to promote recovery, health and wellbeing; to prevent or respond appropriately to crisis; and to achieve quality of life, including in relation to housing, employment and social participation.”

 

 

HSIB omitted to mention that in 2015, CQC issued guidance to providers on meeting regulations which reaffirmed the need for safe transitions:

 

12(2)(i) where responsibility for the care and treatment of service users is shared with, or transferred to, other persons, working with such other persons, service users and other appropriate persons to ensure that timely care planning takes place to ensure the health, safety and welfare of the service users.”

 

 

HSIB did not mention that in 2017 CQC issued an inspection framework for children and young people  which repeatedly specifies assessment of transitions between services. There are plenty of other CQC publications from all the years since CQC’s inception in 2009 which make it clear that CQC has been aware of its duty to inspect the critical care pathway changes between services and providers. For example, CQC’s monitoring reports on the use of the Mental Health Act frequently examine high risks aspects of transfer between services. It would have taken a miracle for HSIB to have missed them all.

And if HSIB had examined CQC inspection reports – and I make no assumptions about whether HSIB did or not – it would have found that CQC does at least occasionally inspect transitions. The difficulty is that CQC does not provide evidence that it does so reliably. A quick and dirty check of the most recent CQC inspection reports on mental health trusts by searching under the term ‘transition’ reveals that CQC commented on service interfaces in only 21 out of 54 of the inspection reports, and in 14 of these instances this was in the context of CAMHS services.

Strikingly, HSIB’s report does not actually describe what regulatory action CQC took at the trust where Ben died, in contrast to its detailed description of clinicians’ actions. That does not seem the even handed, fearless approach that we were promised.

But maintaining the artifice, HSIB recommended:

Screen Shot 2018-08-10 at 03.17.04

So in short, a face saving exercise and a slight slap on the wrist for CQC which allows HSIB to claim that it is holding even regulators to account.

And as for HSIB’s claim that it will investigate if problems are widespread and systemic, why is HSIB’s investigation report silent on the full extent of CPA failures in mental health services?

B systemic

HSIB confines itself to the CAMHS-AMHS interface, whilst reinventing the CPA wheel:

B reinventing cpa wheel

This HSIB recommendation appears to be little more than the final step in a highly choreographed dance. CQC had already tidied up the loose ends some months ago in two new publications. One was a thematic review report in March 2018 waxing lyrical about the importance of person-centred care planning and describing the poor transition between CAMHS and AHMS.

The other publication was a March 2018 specific guide for CQC inspectors on how to inspect the CAMHS-AMHS transition:

Evidence required

1. Providers have to provide the following information to their commissioners:

a) A case note audit to assess the extent of Joint-Agency Transition Planning

b) A survey of young people’s transition experiences ahead of the point of transition (Pre-Transition / Discharge Readiness);

c) A survey of young people’s transition experiences after the point of transition (Post-Transition Experience)

2. The CQUIN also specifies a transition meeting, which should include:

a) The young person;

b) The appropriate key worker from the sending service;

c) Where applicable, a dedicated point of contact for transition from the receiving service; and d) Where appropriate and the young person agrees, the young person’s parent(s) /carer(s).

Ask young people and staff about whether these meetings occurred and their experiences of the meetings

3. Review case notes of young people transitioning to adult services or about to leave CAMHS.”

HSIB’s report states theatrically that HSIB has ‘directed’ its recommendation to CQC and that CQC must respond in 90 days. But it is patently obvious that the next dance step will be the usual heart-warming reassurance that CQC has already acted to safeguard patients etc etc..

HSIB additionally makes the recommendation that NHS England should ensure that money earmarked for CAMHS is spent as intended. HSIB also makes a rather timorous ‘observation’ rather than a recommendation, that it would be ‘beneficial’ if NHS England identifies CCGs that spend less on CAMHS than ‘expected’.

HSIB supports NHS England’s incentivisation of safe handover process between CAMHS and AMHS with the use of Commissioning for Quality and Innovation (CQUIN) targets.  These may be self-defeating if the fundamental problem is that trusts are not given enough money for basic operations and that is the reason for unsafe practices

HSIB seeks to manage disparities between CAMHS and AMHS by proposing that younger people should be able to remain within CAMHS up to the age of 25 if necessary instead of 18, citing long waiting lists and steep eligibility criteria in AHMS as part of the case for this proposal.

For anyone who knows anything about the relative length of CAMHS waiting lists compared to AMHS waiting lists, HSIB’s observations about AMHS waiting lists are perplexing.

It is of course common sense that there should be needs-led flexibility at service interfaces, particularly if this is needed for management of serious risk.

However, the more muscular recommendation that HSIB could have made was that the government should provide all mental health services with the necessary funds to implement the government’s policies and the quality standards that the government says it expects for mental health services, such as safe care planning under CPA. But that would be calling the government’s bluff.

So far, HSIB looks less like the professional investigator that we were promised, and more like another, expensive go-faster stripe on the denial machine.

The element of trust is crucial given all the very serious concerns about abuse of the ‘safe space’ provision in the legislation that will govern HSIB’s operations.

The last word belongs to those most deeply affected, but it is not clear what Ben’s family think of the system response. HSIB offered to meet with Ben’s parent but at the time of publication, it reported that the offer had not been accepted.

Screen Shot 2018-08-10 at 03.20.21

 

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Replacing the Public Interest Disclosure Act (PIDA)

By Dr Minh Alexander NHS whistleblower and former Consultant Psychiatrist, Martin Morton social care whistleblower and former Social Services Manager, Master of Laws, Clare Sardari NHS whistleblower and former trust head of Organisational Development, 11 July 2018. Published 18 July 2018.

 

The UK Public Interest Disclosure Act 1998 was passed in a different era and considered progressive in its time but it has not lived up to expectations. It was a private member’s bill and was not properly debated in parliament. Serious flaws in the Act and resulting injustice have been evident for many years. However, key players in the UK whistleblowing scene have not called for its abolition, only adjustments. PIDA is now seriously out of kilter with international best practice. The proposed EU directive on whistleblowing published three months ago underlines PIDA’s unfitness and how far behind it has fallen. It should be replaced. Below is a brief digest of key issues and some recommended principles that any new UK law should encompass. What is needed now is a formal review of the law and in depth, inclusive debate to properly test any alternatives. The government and Law Commission have been asked to review the legislation.

Our thanks to Ashley Savage Lecturer in Law for comments on this paper.

 

REPLACING THE PUBLIC INTEREST DISCLOSURE ACT (PIDA)

Summary

 

PIDA:

·      Does not ensure that whistleblowers’ concerns are addressed

·      Does not confer protection

·      Invites further whistleblower reprisal through the legal process

·      Unfairly places a burden on the whistleblower to litigate and does not offer an alternative means of seeking redress

·      Is financially inefficient and its weakness has resulted in waste

·      Only relates to harm caused by employers and fails to address harm caused by regulators and other parties

·      Does not effectively deter reprisal or provide penalties against individuals who harm whistleblowers

·      Fails to protect Human Rights

·      Makes no provision for an effective enforcement structure

·      Contains no requirement for regular review of its own efficacy

 

We propose that any law which replaces PIDA should feature these key principles:

 

·      It should serve the public interest in all respects

·      It should ensure timely follow up of whistleblowers’ concerns

·      It should require pre-detriment protection

·      It should provide for civil and criminal penalties for reprisal

·      It should provide expeditious relief from reprisal, and redress, which does not require the whistleblower to litigate

·      It should provide fair remedy for loss, restoring a whistleblower to a position they would have occupied, but for whistleblowing and its consequences

·      It is supported by a dedicated enforcement structure that is independent of government, that has powers

– to investigate where local investigation has failed

– to protect

– to take corrective action against reprisal

– to apply penalties and prosecute where there have been criminal breaches

·      It is regularly reviewed by parliament and any difficulties with implementation are addressed

 

Whistleblowing is work-based speaking up for the common good. It highlights serious risks and harm to the wider public. It follows that effective whistleblowing law should ensure that concerns are effectively handled and that those who speak up are not silenced and victimised. Current UK whistleblowing law, the UK Public Interest Disclosure Act 1998 (PIDA), achieves neither of these aims.

The Act passed as a private member’s Bill without opposition in parliament and was not sufficiently debated. It was designed to make minimal investigatory demands and not to add regulatory burden to businesses. Doubts that were raised over a closely-related precursor Bill’s ability to prevent disasters, for example the Zeebrugge ferry sinking which claimed 193 lives, were never properly answered. PIDA has only been reviewed once in twenty years, and mostly occasionally adjusted. There is little evidence that the Act has met the expectations of its proposer Richard Shepherd MP that it would ‘ensure that where malpractice is reported in an organisation, the response deals with the message, not the messenger.” Neither did it provide any anticipated accountability.

Repeated failures of whistleblowing governance since the Act was passed have shown that it has not deterred malpractice. Over 23,000 claims have been made under PIDA since it came into force, with claims rising over the years (until the introduction of Employment Tribunal fees in 2013, which discouraged a substantial proportion of claims). This does not suggest that employers are less likely to mistreat whistleblowers as a result of the Act being passed.

PIDA was folded into employment law, which has had the effect of focussing on disputes and putting whistleblowers on trial, instead of protecting the public. Settlements may have the effect of gagging whistleblowers about wrongdoing. PIDA has increasingly fallen behind international best practice standards. Examples of countries that have better whistleblowing law than the UK are  AlbaniaSerbiaBosnia and Zambia.

The emergence from the Gosport War Memorial Hospital deaths inquiry of critical failures to listen to whistleblowers emphasises very painfully that it is vital to ensure more effective legislation. The government has claimed that the failures were historical but there is clear evidence that Gosport could easily happen again. Further information is provided below on PIDA’s key weaknesses.

 

  1. PIDA does not ensure that whistleblowers’ concerns are addressed

PIDA’s central weakness is that it does not require anyone to investigate or act upon whistleblowers’ concerns. This enables cover ups, defeating the intended purpose of the law. Whistleblower retaliation is driven by cover ups. Law that is meant to protect whistleblowers should not facilitate the prime driver of their reprisal, or allow concealment against the public interest. It is now international best practice for whistleblowing law to require follow up in response to whistleblowers’ concerns.

 

  1. PIDA does not confer protection 

UK law does not require anyone to protect whistleblowers. It only allows whistleblowers to claim for compensation after they have suffered harm. The law is not even effective in ensuring that harmed whistleblowers receive compensation after the fact: approximately only 3% of claims under PIDA succeed at hearing. It is now international best practice for whistleblowing law to proactively confer protection before detriment has occurred and provide access to relief from reprisal.

 

  1. PIDA invites further whistleblower reprisal through the legal process

PIDA came about amidst concerns that a whistleblowing law might be a ‘nitpickers charter’ for ‘whingers’, ‘obsessed’ and ‘disgruntled’ individuals with ‘grudges’ who might wilfully damage businesses’ reputations or ‘blackmail’ them into pay outs in return for silence. To overcome such concerns, PIDA introduced legal hurdles with the intention of screening out those who acted unreasonably or in bad faith. In practice this proved very damaging to whistleblowers. Under PIDA, to avoid blame and limit compensation liability, employers must attack whistleblowers’ credibility and character, and fabricate alternative explanations for detriment.

Even when the Tribunal determines that whistleblowers are genuine and have been harmed, they may still be easily persuaded that detriment was unrelated to whistleblowing. Compensation may be reduced if employers convince the court of contributory fault by the whistleblower. Pre-existing legal tests that had been applied to ordinary employment cases, were applied to PIDA cases. This is wrong because in the public interest, it should be harder for employers to tear down whistleblower cases. Workers are often unaware of the complicated legal hurdles that they must clear in order to succeed under PIDA. They may make critical technical mistakes in how they raise concerns. Such overly complex arrangements have been criticised as ‘hollow’ by the UN.

Employers have used the law to punish genuine whistleblowers by pursuing them for costs on questionable grounds. Employers may also prolong litigation to exhaust whistleblowers’ financial reserves or to intimidate them. Living under such legal siege for years is profoundly distressing. Thus, the litigation process has become part of the trauma that whistleblowers suffer. It is very wrong that citizens who act in the public interest are essentially made into targets by the law that is supposed to protect them.

 

  1. PIDA unfairly places a burden on the whistleblower to litigate and does not offer an alternative means of seeking redress

It is wrong that whistleblowers who perform a public service and are harmed must take the serious risk of litigating against a much more powerful employer entirely on their shoulders. Some whistleblowers may be bankrupted as a result of losing claims under PIDA, especially if costs are awarded against them. The requirement to litigate is particularly unjust to low paid workers, who face the greatest inequality of arms.  PIDA fails to offer whistleblowers a means of redress that does not require litigation, such as the option of seeking protection from a dedicated agency with the necessary powers to take corrective action. It is now international best practice for whistleblowing law to prescribe a dedicated agency with powers to take corrective action against any harassment of whistleblowers.

 

  1. PIDA is financially inefficient and its weakness has resulted in waste 

PIDA was designed to have low impact on the public purse but its weakness has had unintended consequences. There continues to be a burden on court time because whistleblowers are unprotected and a high number of claims are made. Costs of litigation are high relative to compensation available. Whistleblowers may be left little to live on or even left in debt despite ‘winning’ cases. Costs may be particularly shocking in cases defended by public bodies. Such bodies may squander public resources in terms of legal costs and court time by unreasonably resisting claims and deliberately drawing out litigation. An EU study concluded that better whistleblower protection would generate savings for the public purse.

 

  1. PIDA only relates to harm caused by employers and fails to address harm caused by regulators and other parties

This is a significant omission as harm done by oversight bodies and senior officials is arguably more serious. Both system and professional regulators are frequently implicated in whistleblowing governance failures. Detriment in law should include neglect and failures to respond and act, which are very common responses to whistleblowers. Moreover, regulators may cause harm by colluding with and prosecuting vexatious cases against whistleblowers, whilst shielding wrongdoers. International best practice now includes protection against harm by all relevant parties and not just employers. Irish whistleblowing law provides an example of this.

 

  1. PIDA does not effectively deter reprisal or provide penalties against individuals who harm whistleblowers

Under PIDA, organisations only have to occasionally pay compensation. Individuals who victimise whistleblowers are not held to account. This is a significant omission as whistleblower reprisal can be orchestrated and even amount to criminal harassment. ‘Bullying’ is not defined in UK law. The threshold for criminal liability for ‘harassment’ as defined by the Protection from Harassment Act 1997 can be prohibitive and rarely invoked in the employment arena. Whistleblowers will often experience “an impassioned collective campaign to exclude,punish or humiliate” (Leymann) and it is this collective abuse of power within institutions which is often whistleblowers’ undoing and which urgently needs addressing. Other jurisdictions have developed what are known as moral harassment (or mobbing) laws – most particularly Sweden and France. ‘Moral harassment’ would not only give a name to the the reprisals that whistleblowers face but provides an alternative legal framework to impose sanctions on institutions who undertake those reprisals, especially those which seek to use public money to fund this unlawful conduct.

 

  1. PIDA fails to protect Human Rights

Whistleblower suppression and mistreatment may affect basic rights of free speech, rights to family life and the freedom of the press in that whistleblowers serve a vital role in bringing key information to light that supports democratic processes. PIDA’s weakness allows such rights to be infringed. PIDA should be reviewed against a growing body of jurisprudence from the ECHR. An example of good practice is that Irish whistleblowing legislation acknowledges that whistleblowers’ families may equally suffer the effects of reprisal, and so recognises detriment to third parties.

 

  1. PIDA makes no provision for an effective enforcement structure

PIDA toothlessly provides for ‘Prescribed Persons’ to receive UK whistleblowers’ disclosures, but gives no guidance on whether or how they should protect whistleblowers or follow up on concerns. PIDA leaves it to the government to designate Prescribed Persons. The result has been a confusing plethora of ill equipped individuals and organisations designated as Prescribed Persons who in reality take limited or no action, may not be regulators and are highly variable in their responses to whistleblowers, leading to an unjust lottery. There has been limited formal study of Prescribed Persons. It is now international best practice for whistleblowing law to prescribe a dedicated whistleblower protection agency that can enforce good practice and protect whistleblowers.

 

  1. PIDA contains no requirement for regular review of its own efficacy

The natural institutional resistance to transparency about whistleblowing requires safeguards at every stage. PIDA has been reviewed only once in twenty years despite obvious problems, and the review resulted mainly in government plans to merely promote culture change. It is now international best practice for whistleblowing law to contain provisions for review.

 

UPDATE 19 JULY 2018

Following the release of the inquiry report on the Gosport deaths disaster, Dr Philippa Whitford MP for Central Ayrshire secured a Westminster Hall debate on NHS whistleblowing and the need to replace the UK Public Interest Disclosure Act. This took place on 18 July 2018. The government acknowledged that there were serious concerns about the Act and agreed to consider a review of the law.

https://hansard.parliament.uk/Commons/2018-07-18/debates/960EC9A7-68F3-4E87-9846-10706988378E/NHSWhistleblowers

 

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

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National Guardian’s Hidden Bulletins & Disappearing Freedom To Speak Up Guardians

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

The National Guardian agreed hesitantly in February 2017 to publish newsletters  for trust Freedom To Speak Up Guardians which her office had begun to send out.

As is often the case when one private means of communication is forced into the open, another covert channel is quietly opened.

A few months later, weekly ‘bulletins’ for trust Freedom To Speak Guardians were implemented alongside the newsletters. These bulletins only came to light recently after FOI disclosures by trusts.

A full set of bulletins was obtained and a few ‘highlights’ from these follow.

 

Pick ‘n Mix reasons for delayed disclosure

The National Guardian’s Office (NGO) was asked to disclose the full series of bulletins, but dragged its feet, breaching statutory FOI deadlines by over a month.

Initially, the NGO claimed that the FOI would be delayed because it was seeking permission from third parties to disclose data.

From: “Pook, Simon” <************************************ >

Subject: Your Freedom of Information request regarding NGO bulletins

Date: 13 June 2018 at 15:38:22 BST

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

Dear Mr. Alexander,

I am writing in response to your email of 15th May 2018 requesting disclosure of all copies of bulletins issued by the National Guardian’s Office.

We have been processing this request under the Freedom of Information Act and had intended to ensure that we replied to you by the 20 working day statutory deadline, which is today.

However, I must extend my apologies to you and say that there will be a short delay in sending you this information. This is because we are completing consultation with all those who have contributed information to the bulletins as part of ensuring we can provide you with as much information as possible.

Please be advised that we will respond to your request as soon as we can.

Yours sincerely,

Simon Pook
Case Review and Governance Manager
National Guardian’s Office

 

 

When it eventually responded, the NGO claimed that the delay was due to initial failure to recognise the request as an FOI:

“The delay was due to an initial failure to identify that this was an FOIA request (for which, additional NGO staff training has been arranged).”

A total of 44 bulletins from the last year were disclosed.

 

Secret Hotline and Hot Potatoes

The disclosed bulletins revealed that the NGO had set up a separate VIP hotline for trust Speak Up Guardians, because they had complained that it was too difficult to get through to the NGO on the ordinary telephone number.

Yet the latter, steam-powered access point was considered good enough for whistleblowers.

So what sort of a service thinks it’s acceptable to palm its core users  off with second best?

Laughably, the NGO redacted the VIP hotline number from all the disclosed bulletins, giving the justification of exemption under Section 31(g) FOIA – prejudice to law enforcement:

We have a publicly available number to contact the NGO but we consider that it is important that Guardians have a quick and direct line to the NGO so that they can obtain urgent advice and support when required. We consider that public disclosure of this number would defeat this purpose and would therefore prejudice the NGO’s ability to support Guardians in their role to support NHS employees in raising concerns relating to the safety and welfare of patients, and protecting the welfare of the people who raise those concerns. These redactions are made under section 31(g) of FOIA.”

 This argument was curious given that the NGO has zilch enforcement powers. It was void in any case as the hotline number had already been disclosed by trusts.

What the dysfunctional NGO should do of course is ensure that it responds just as promptly to whistleblowers as it does to Speak Up Guardians.

Also implying that whistleblowers may be a distraction or somehow a secondary consideration, Bulletin 5, 5 August 2017 featured a remarkable blog by a Speak Up Guardian (name redacted). This commented that it was all very well to support whistleblowers, but it was better to ‘win big’ by talking to lots of managers.

Bull Hot Potatoes

Is that really the sort of tone that the NGO should be encouraging? But it is certainly consistent with the NGO’s repeated attempts to move away from its original, prescribed core mission of helping individual whistleblowers to vague cheerleading instead.

 

In it to Spin It

The NGO’s real mission, from the Department of Health and Social Care’s perspective, is only too evident from the bulletins. The now trademark obsession with PR, in a small Office that now has a ridiculous proportion of spin doctors, is revealed in frequent encouragement to Speak Up Guardians to apply for the National Guardian’s awards. Awards are mentioned in eighteen of the 44 bulletins. Also frequently mentioned are promotional materials, the use of publicity films, requests for photographs for use in publicity and a general tone of self-congratulation. The latter without any evidence base and before any evaluation.

Of concern, Speak Up Guardians are being encouraged to think that ‘efficacy’ has been established. Bulletin 5, 5 August 2017:

Bull Time to Shine

Raising the profile of the project is a legitimate goal, but putting a gloss on it most certainly is not.

In bulletin 13, 6 October 2017 the NGO asked Speak Up Guardians to reach out to CQC inspectors and make sure that whistleblowing is reflected in reports.

Bull CQC

However, in bulletin 36, 6 April 2018, the NGO looked as if it was trying to drum up Good News for its master, the CQC:

Bull outstanding

 

 What’s missing?

Reading these NGO bulletins is an exercise in deep frustration at missed opportunities for real governance and information sharing.

Where are the audit results?

Where are the tutorials on what can go badly wrong in cases and how to handle it?

Where are the discussions about the scenarios that might require a Speak Up Guardian to refer a case to the National Guardian?

Where is the discussion about what happens when Speak Up Guardians themselves suffer from reprisal for raising concerns and supporting those who raise concerns?

But who would want to talk about such nitty gritty realities if the intention is to blow a pink bubble gum fantasy.

 

Confidentiality

Whistleblowers should be aware of this content from bulletin 2, 13 July 2017, and seek specific clarification from Speak Up Guardians about exactly how their data might be shared with Guardians from other trusts:

Bull confidentiality

 

A key concession of weakness

In bulletin 19, 1 December 2017 the NGO gave this advice to Speak Up Guardians about HR involvement:

Bull HR

So there it is in black and white. Speak Up ‘Guardians’ will be forming judgments about the soundness of trusts’ processes when they do not have access to all of the information.

Also emphasising the weakness of Robert Francis’ Freedom To Speak Up model, two of the bulletins had an overbearing tone and implicitly reprimanded Speak Up Guardians who had not attended regional meetings, reminding them that they had signed ‘compacts’.

The control, of course, lay with employers.

Bull Regional Meetings

Why design a toothless system? Unless of course one wants to give the appearance of action, whilst avoiding it.

 

Cribbing

Revealingly, bulletin 38, 19 April 2018 gave a crib sheet on how to talk to whistleblowers.

Bull Cribsheet

This raises all sorts of questions about the implementation of the Speak Up Guardian network and the sophistication of the work that is being done with people in serious crisis.

The disappearance of Speak Up Guardians

I already had some early warnings that Speak Up Guardians were starting to leave after a short period in service. The most recent indicator came from a mail shot which resulted in several out of office messages stating that various Speak Up Guardians had left, taken early retirement or were off sick. The disclosed bulletins now reveal that the National Guardian is also aware of the departures.

NGO bulletin 6, 11 August 2017 admitted that Speak Up Guardians were leaving in that it noted that an arrangement had been made for exit interviews.

Bull Exit Interviews 1

 Bulletin 24, 12 January 2018 made another similar reference to Speak Up Guardians stepping down and to exit interviews.

Bull Exit Interviews 2

It is very worrying, if unsurprising, that Speak Up Guardians are stepping down after such a short time in post.

One would have expected the National Guardian to be open about this and acknowledge the issues in her official reports. I have not so far found any such references.

It is time for fewer hoorays and more honest reflection.

The model is untenable and unworkable and the National Guardian, if a true champion of the public interest, should be the first to admit it and to support real reform.

 

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STFU not FTSU

 

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

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, first published by the Centre for Health and the Public Interest  26 June 2018

 

The deeply shocking Gosport War Memorial Hospital deaths scandal has propelled the unfinished business of NHS whistleblowing to the fore.

The government has claimed that the failings were historical and that it had made improvements in whistleblower protection, but little of substance has actually been achieved.

Many people are under the impression that the well-known Freedom To Speak Up review by Robert Francis in 2015 on NHS whistleblowing addressed the issues. But in reality, it did not.

In the UK, whistleblowing is defined as the raising of concerns in the public interest by a worker, whether to their employer or externally through a range of designated channels (the chief of which are termed ‘prescribed persons’). Ultimately, workers may make a wider disclosure, for example to the media, but for obvious reasons such disclosures need to meet certain strict tests of reasonableness.

 

Whistleblowing in the NHS

The culture of the NHS is complex. As revealed by the Public Inquiry into the Mid Staffordshire disaster, it can be affected by an imperative not to “do anything to embarrass the Minister”. Repeated cover-ups have been exposed under all governments. There have been well-known failures to listen to whistleblowers or to create conditions in which staff can raise concerns. A few examples:

Graham Pink, a nurse, was sacked and won his Employment Tribunal case against Stockport Health Authority in 1993. His lawyer commented: “His victory represents a triumph for those whose priority is care for patients over those whose first care is for balance sheets.”

Dr Linda Reynolds, a GP, raised the alarm over Harold Shipman.  The Public Inquiry by Dame Janet Smith commented on issues of disbelief, which whistleblowers often encounter: “I accept that DI Smith found it difficult to believe that Shipman might have murdered his patients… I observe that Dr Reynolds had surmounted this difficulty and had made her complaint.”

Dr Steve Bolsin raised concerns about mortality in the Bristol paediatric heart surgery scandal, which resulted in a Public Inquiry report in 2001. He reported being ostracised and famously decided to leave the country.

Several whistleblowers tried to raise concerns about the rogue surgeon Ian Paterson but got short shrift.

 

In the Mid Staffs disaster, Robert Francis, the Public Inquiry chair, expressed a concern that more staff did not speak up despite failures of fundamental standards:

“The first inquiry heard harrowing personal stories from patients and patients’ families about the appalling care received at the Trust. On many occasions, the accounts received related to basic elements of care and the quality of the patient experience. These included cases where:

  • Patients were left in excrement in soiled bed clothes for lengthy periods;
  • Assistance was not provided with feeding for patients who could not eat without help;
  • Water was left out of reach;
  • In spite of persistent requests for help, patients were not assisted in their toileting;
  • Wards and toilet facilities were left in a filthy condition;
  • Privacy and dignity, even in death, were denied;
  • Triage in A&E was undertaken by untrained staff;
  • Staff treated patients and those close to them with what appeared to be callous indifference.”

The extent to which staff raised concerns is moot, but it is likely that more staff would have spoken up had it not been for an oppressive trust culture, and poor handling of staff concerns:  “…a culture of fear in which staff did not feel able to report concerns; a culture of secrecy in which the trust board shut itself off from what was happening in its hospital and ignored its patients; and a culture of bullying, which prevented people from doing their jobs properly.”

 

Freedom to Speak Up Guardians

In Robert Francis’ Mid Staffs Public Inquiry report he included a recommendation that any obstruction of whistleblowing should be a criminal offence. However, in his later Freedom to Speak Up review, he distanced himself from such a position.

The Freedom To Speak Up review has been criticised by many whistleblowers for not making strong enough recommendations. Most critically,  “I want to emphasise that I am not proposing an office to take over the investigation of concerns…. this needs to remain the responsibility of the local organisations.”

Where matters of life, death and serious misconduct are concerned, this is a precarious approach. It is not usual to leave putative embezzlers in charge of the accounts. As well as dishonesty, anti-social behaviour which jeopardises the public interest also needs to be prevented by external oversight and restraint. Yet Francis merely proposed a system of internal Freedom To Speak Up Guardians, who should ‘watch over the process’, and ‘oil the wheels’.

However, there was no evidence base for this proposal. The record of Staffordshire and Stoke on Trent Partnership, the exemplar trust which he cited in the FreedomTo Speak Up review, did not bear scrutiny. Brighton and Sussex University Hospitals NHS Trust, a trust which was also a prototype for the Guardian model, has continued to struggle with governance and patient safety problems. Between February 2014 and April 2017 it attracted 21 coroner’s reports to Prevent Future Deaths, many of which were deeply shocking in their detail.

Crucially, the internal Guardians proposed by Francis have no specific powers and no formal role in core processes. They are only facilitators and invigilators. As employees of the bodies whom they are supposed to hold to account, they are vulnerable to pressure and subject to potential conflicts of interest.

When responding to Francis’ review in 2015, the Department of Health “We now expect local NHS organisations to take forward the actions that are for them in an effective, proportionate and affordable manner and that guidance will be published in due course by the Independent National Officer and the national regulators, as described in the Freedom to Speak Up report” (paragraph 27).

This resulted in variation across trusts, for which there was no credible rationale. Importantly, it resulted in some appointments where the role

was added to existing workloads without dedicated time. There were also numerous corporate appointments – i.e. directors of the trusts concerned who might not be seen as approachable by staff –  and poor diversity. Some of these issues were later officially recognised.

It even emerged that one former Speak Up Guardian had fraudulently claimed the qualifications on the basis of which he had been chair of a trust, a fraud for which he was subsequently jailed.

 

The National Freedom to Speak Up Guardian

In addition to internal Guardians, Francis proposed a national office, now known as the National Freedom To Speak Up Guardian. Francis’ primary reason for the creation of this office was to undertake external whistleblowing case reviews:

 

Principle 15 – External review

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

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

 

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

 

Francis envisaged that the National Guardian would have no powers, but would have borrowed authority from system regulators and could ask regulators to make directions to ensure good practice. Francis’ expectations of the office were deliberately elastic, introducing the risk of arbitrariness and therefore unfairness. This has proven to be the case  and is an ongoing concern.

Francis did at least expect the National Guardian to make recommendations about redress for individual patients and staff who had been harmed as a resulted of poorly handled whistleblowing. Crucially, the National Guardian’s Office, the CQC (its employer) and the Department of Health and Social Care have all sought to dilute this core function, and so far there is no evidence that the National Guardian has ensured redress for harmed whistleblowers.

The most recent serious concerns arise from the situation at Brighton and Sussex University Hospitals NHS Trust where a mass referral by 24 whistleblowers has not yet resulted in a case review by the National Guardian.  Correspondence reveals that the National Guardian’s Office agreed to conduct a review but then postponed it, claiming that review might disrupt the trust’s improvement work. After this was revealed, and the National Guardian’s Office was questioned by the media, the National Guardian stated that the trust had declined to comply with a timely review. This highlights the structural flaws of the Office.

A very large amount of money has been spent on the Freedom To Speak Up Project. The National Guardian has an annual budget of approximately £1 million.  Over 500 local Freedom To Speak Up Guardians have been appointed, requiring training events and other resources. Health Education England has contributed resources. Various high-profile conferences have been held at considerable expense. Most recently, it has been revealed that the Department of Health and Social Care has spent £628K on forthcoming evaluation research on local and National Guardians. There is concern that this research does not concern itself enough with the experience of whistleblowers, especially the harm (or ‘detriment’) that they may incur.

There is also concern about how the National Guardian’s Office and the Department of Health have represented the progress of the Freedom To Speak Up Project. At the National Guardian’s conference on 6 March 2018 the Secretary of State claimed: “So far this year 4,600 concerns have been raised with Freedom to Speak Up Guardians and 90% say they would speak up again”. This was misleading, because the 90% statistic was based on very incomplete data and also did not relate to a denominator of 4,600, as had been implied.

To give an example of incomplete data, an FOI disclosure by the University Hospitals of Morecambe Bay NHS Foundation Trust of 12 March 2018 revealed that there had been 124 concerns raised with its Freedom To Speak Up Guardian. Related to this, 87 feedback forms had been sent to staff who had raised concerns, but only 32 of these (37%) were returned.

As for the ‘90% would speak up again’ statistic, it had been supplied to the Secretary of State by the National Guardian’s Office. It had not been published and has still not been published, breaching the UK Statistics Authority’s Code and the principle of equality of access to statistics. The UKSA has stated that it continues to pursue publication of the statistic.

The upbeat view expressed by the Secretary of State and the National Guardian is not supported by the fact that the key NHS staff survey metric on whistleblowing – Question 13b “I would feel secure raising concerns about unsafe clinical practice”– has not changed at all in the period during which the National Guardian and Freedom To Speak Up Guardians have been in place. The overall national score was 70% in 2016 and it was 70% again in the 2017 survey.

Added to this is questionable behaviour by regulators, such as failing to protect whistleblowers and hold abusers to account, or even acting to a whistleblower’s detriment.

delay deny road signs

 

 

The role of law in protecting the public interest

The government and Robert Francis argue that it is necessary to work on changing culture, and that changes in the law to protect whistleblowers are less important. This is a fallacy: besides providing sanctions, well-written, strong law has a communicative function and can drive culture and behavioural change. The key to protecting both NHS and social care whistleblowers is to protect all UK whistleblowers by means of improvements to the law.

At present, UK whistleblowing law is very flawed. Even one of those who originally helped draft the current law, Lord Touhig, subsequently recognised this. The law does not compel investigation of concerns, confers no legal duty of protection and does not hold individuals to account for acts of reprisal.

Reprisals against whistleblowers can be devastating.  Despite carefully crafted press releases, the NHS has not kept promises to make amends to those whistleblowers whom it has already harmed , sending out a very unfortunate message to its remaining staff.

Alongside much-needed improvements in the law, whistleblowers need the protection of an agency that is independent of government departments and has powers to investigate, remedy and where necessary litigate to enforce good practice and protect the public interest. Safety-critical sectors such as the NHS illustrate the absolute necessity of good whistleblowing governance and what can go disastrously wrong when there is maladministration. In an age of austerity when the risks are all the greater, it is vital that frontline staff have a voice.

 

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hole2 (3)

 

 

Gags still stop whistleblowers speaking out: Government claims about new safeguards are hollow

By Dr Minh Alexander NHS whistleblower and consultant psychiatrist, 24 June 2018

 The disastrous consequences of suppression were revealed at the MidStaffordshire Public Inquiry

Jeremy Hunt claimed that he ended NHS gagging, but in fact he took no real action. It was a bravura performance of showmanship of seemingly responding to the inquiry’s recommendations but doing very little. And his lead regulator, the Care Quality Commission, despite being urged by Robert Francis in 2015 to monitor NHS gags as part of its inspection process, joined in this fantasy cabaret of inaction.

NHS Gagging: How CQC Sits on its Hands

From 2013, a fig leaf clause was merely added to NHS compromise agreements. This weakly stated that gagged staff could still whistleblow, but NHS agreements continued to contain gags. The result unsurprisingly was confusion and insecurity, and the fear remained.

 

NHS gags typically take three forms:

·      Secrecy clauses that prevent signatories from even revealing the existence of settlements

·      Confidentiality clauses that prevent signatories from revealing the contents of settlements

·      Non-disparagement clauses that forbid signatories from criticising each other

These clauses remain widespread in the NHS.

NHS Employers the body which leads on NHS HR policy provides a template for settlement agreements which still contains theses gagging clauses as standard, despite criticism:

NHS Employers December 2013: The use of settlement agreements and cofidentiality clauses

Screen Shot 2018-06-24 at 11.22.43

 

I attended a conference at Middlesex University on 22 June on ‘Twenty Years of PIDA’. PIDA (or the Public Interest Disclosure Act) is the UK’s wholly ineffective whistleblowing law.

The room was full of UK and international legal whistleblowing experts. Yet not one person was aware of any test cases where a UK worker has sought to challenge the legality of their gags by using PIDA provisions.

This is hardly surprising. After all the unpleasantness of living through a whistleblowing case that has to go to law, and knowing that one is dependent on what is usually an inadequate settlement because of blacklisting and problems with getting further employment, who would have the appetite to risk losing such a case?

Journalists intermittently call on gagged whistleblowers to break cover in order to stand up stories about continuing suppression. More often than not there is silence, which itself speaks volumes about the effectiveness of institutional coercion that is targeted at whistleblowers’ long term economic security. A current call for such case evidence from 2013 onwards has so far resulted in no volunteers, even though it is known that NHS whistleblowers have been gagged since 2013.

Some might think it is obvious what a public interest disclosure is. Just reading the schedule of qualifying disclosures under the Act it might seem straightforward. But in reality, common sense is not enough when it comes to the practice of the law. It is only through bitter lived experience that whistleblowers learn how arguable every tiny detail is. There are endless legal tricks for scuppering whistleblowing cases, at every step of the long and winding legal road that whistleblowing claimants must pass to succeed in court. Knock out just one of those many links in the fragile chain of flickering fairy lights and the employer is home free.

A particularly grey area is whether concerns about whistleblower reprisal would constitute protected disclosures under the Act. In principle, concerns about illegal acts and cover ups are considered to be protected disclosures under the Act. But it is reprisal activity that employers particularly wish to conceal with gags, because that is where the most serious managerial misconduct tends to occur.

As an experiment, in 2016 I asked NHS trusts and a few other NHS bodies whether they would take legal action against any staff who were gagged by non-disparagement clauses if they spoke up about experiences of whistleblower reprisal.

 

“Question 5

If staff who have entered into a compromise agreement with the Trust were to voice concerns about reprisal by the Trust for whistleblowing, would the Trust consider this to be an actionable breach of non-disparagement clauses? 

Or would it consider the raising of such concerns to be qualifying disclosures under PIDA?”

 

 

The majority of trusts refused to answer. Some stood on FOI ceremony because an opinion had been requested, and not data. For example Cambridge University Hospitals NHS Foundation stated on 29 January 2016:

We are unable to respond as you are seeking a view for a hypothetical situation.”

A number of trusts gave equivocal anwers. For example, some indicated that they would respond on a ‘case by case’ basis or rely on legal advice. Some made general comments that they would not discourage staff from speak up, but failed to answer specifically and unequivocally that they recognised concerns about whistleblower reprisal as whistleblowing, and that they would not sue the whistleblower for speaking up about it. Equivocating trusts included the following ‘Outstanding’ trusts: Frimley Health NHS Foundation Trust, Birmingham Children’s Hospital NHS Foundation Trust and Newcastle Upon Tyne Hospitals NHS Foundation Trusts. They also included Yeovil District Hospital NHS Foundation Trust, Peter Wyman CQC Chair’s former trust.

This is a list of the NHS trusts and some of the other bodies that gave equivocal answers, and their responses: List

Some central NHS bodies were amongst the equivocators, including NHS Blood and Transplant, the current home of Ian Trenholm the CQC chief executive who will take over from David Behan.

Only a handful (9) of trusts were prepared to state unequivocally that they would consider reports of whistleblower reprisal to be qualifying disclosures and or therefore would not take legal action against the staff member for breaching a gag.

These are the trusts. Some are well known to whistleblowers:

 

Alder Hey Children’s NHS Foundation Trust FOI response 28 April 2016:

“This would not be a breach of any of the agreements – see answers given above.”

 Cambridgeshire Community Services FOI 673, 18 May 2016:

5) If staff who have entered into a compromise agreement with the Trust were to voice concerns about reprisal by the Trust for whistleblowing, would the Trust consider this to be an actionable breach of non-disparagement clauses? 

 No 

 Or would it consider the raising of such concerns to be qualifying disclosures under PIDA?

 Yes

Hounslow and Richmond Community Healthcare NHS Trust FOI 669, 2 June 2016:

“Qualifying disclosure” 

Liverpool Community Health NHS trust FOI 17148, 1 June 2016:

I can confirm that if an individual who had signed a compromise agreement were to voice concerns about reprisal by the Trust for whistleblowing, the Trust would consider this to be a qualifying disclosure under PIDA.”

Luton and Dunstable University Hospital NHS trust FOI 3408, 1 June 2016:

“The Trust would consider the raising of such concerns to be qualifying disclosures under PIDA”

North East London NHS Foundation Trust FOI732, 6 July 2016:

“We would consider the raising of such concerns to be qualified disclosures under PIDA”

North West Ambulance Service NHS Foundation Trust FOI 313, 6 May 2016:

“…it would be seen as a qualifying disclosure.”

Northumbria Healthcare NHS Foundation Trust

 “Qualifying Disclosure”

 Princess Alexandra Hospital NHS Trust

 Qualifying concern”

 

Health Education England also claimed that it would not sue whistleblowers:

“HEE would not consider such action” FOI 160611, 7 July 2016

but of course continued its ill-advised legal battle against Dr Chris Day.

This dismal picture demonstrated persisting poor culture, and the failure of the Secretary of State and the DH to lead and ensure genuine change.

The fact that the vast majority of NHS trusts would even contemplate the possibility of suing staff for raising concerns about whistleblower victimisation, or not deny that they might, is deeply depressing.

Many organisations hide behind ‘legal advice’. Cutting through this obfuscation, it is for leaders to decide on what is right, and to use the law wisely and temperately as a tool. It is not Fit and Proper leadership to set the dogs on whistleblowers and then shrug and say ‘the lawyers told me to do it’.

There can surely be no circumstance in which the greater good is served by public bodies suing staff who raise concerns, correct or incorrect.

That threat must be removed and the government must in the aftermath of the Gosport deaths finally act. It must at the very least prohibit the use of secrecy clauses (super-gags) which hide even the existence of settlements. This is an issue that applies not only to the NHS but other sectors.

The Department of Health and Social Care remains very stubborn on this issue, despite periodic invitations to do better.

If however, you are an NHS whistleblower who was gagged after Hunt’s pledge in 2013 to stop gagging, and are prepared to take the risk of speaking confidentially to a journalist who will report only anonymously on your case, please contact me via the contact page of this website.

Please be aware that no absolute guarantees are possible and very occasionally leaks have been known to occur.

 

A notable incident in the junior doctors’ dispute with the government was the mass leaking of private whatsapp messages between junior doctors involved in BMA union activity to the Health Service Journal, followed reportedly by a counterleak back to the BMA of the identity of HSJ’s source.

From a report by the BMA legal department of 21 March 2017, declassified on 17 May 2017:

HSJ counterleak to BMA

But if you are in a position to take such a risk, it would provide valuable testimony that would help others.

With sincere thanks if you can help.

 

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delay deny road signs

 

 

 

END

Inaction. Inefficiency. Indifference. The NHS whistleblower employment support scheme and NHS Improvement’s employer pool

By Dr Minh Alexander with kind contributions by Clare Sardari, Mr ZA, Noel Finn and Dr Kevin Beatt, NHS whistleblowers, 7 June 2018

 

Summary

Three years after Robert Francis urged the Department of Health to “urgently” ensure that an employment support scheme was set up to offer exiled whistleblowers trial employment and other help to return to the NHS, little real help has been provided.

According to FOI data gathered so far, only three NHS trusts have confirmed that they have provided support to whistleblowers as part of the NHS employment support scheme.

This does not mean there are no other examples, but it does suggest that there are very few in total. In one of the three cases so far, the support provided, after several months of an elaborate return to work assessment process, is reported to be merely library access.

First hand reports by various whistleblowers reveal a considerable gap between the rhetoric and the reality.

delay deny road signs

 

The current story began over three years ago in February 2015 when Robert Francis produced his report of the Freedom To Speak Up Review on NHS whistleblowing. Whilst he refused to support a public inquiry and spared ministerial blushes by drawing a veil over many serious past cover ups, he at least recommended that a whistleblower employment support scheme should be ‘urgently’ established. He later made it clear that he expected this to be a re-employment scheme. 

The main bodies charged with this ‘urgent’ task, NHS Improvement and NHS England then dawdled despite being aware of shattered lives and injustices. NHS Improvement did not even start the process of consulting and designing its part of the scheme, for trust whistleblowers, until over two years after Francis’ ‘urgent’ recommendation.

NHSI has continued to disgrace itself with unpleasant behaviour and lack of convincing commitment. An especially ludicrous example being its heavy handed gagging of the proceedings of the scheme after whistleblowers were vocal in criticising the lack of progress.

A vital component of the NHS whistleblower employment support scheme was supposed to be a pool of NHS employers willing to offer trial employment. This after all was the central reason for setting up the scheme. NHSI prevaricated, and most recently announced that it would not even establish an employer pool. It claimed that it would be enough just to approach local employers on an ad hoc basis whenever it identified a need in a particular case. This was a post hoc rationalisation for inaction. NHS Improvement had previously agreed that prospective employers should be vetted for possible risks to vulnerable whistleblowers attempting re-entry after serious victimisation, and it had started developing criteria for vetting.

It is difficult to see how last minute searches for openings are compatible with NHSI’s previous acceptance of the need for systematic evaluation of employers’ suitability.

FOI requests were sent to NHS trusts asking whether they had received requests from NHS Improvement to participate in the scheme, whether they had agreed to provide support and what support had been provided. Supporting documents were requested.

About 10% of trusts, listed below, failed to respond at all to the FOI, but it is unlikely that the silence signifies that these trusts had much to trumpet about.

NHS Improvement Employer pool trusts that didn't respond to FOI.png

 

Some trusts appeared to churn out responses taken from an NHSI hymnsheet, as the same phrases kept re-appearing, and some even forgot to re-phrase the information that had evidently come from NHS Improvement, revealing its original source:

“The support was requested through the workshops. Attached is a list of the types of support that trusts have made an initial commitment to providing/considering, although there are many trusts that have also communicated with us directly outside of the events to offer support.

Trusts varied greatly in their willingness to share documents. Some disclosed comprehensive trails of correspondence, newsletters, spreadsheets and slideshows by NHS Improvement. Others responded with a single sentence. This is representative of the range of documents disclosed by various trusts:

NHS England and NHS Improvement invitation letter to trusts to employer workshops

NHS Improvement email invitation to employer workshops

NHS Improvement employer workshops agenda

NHS Improvement leaflet circulated to trusts on Chatham House Rule

NHS Improvement correspondence about training sessions for scheme panel members

NHS Improvement correspondence about employment scheme panel meetings

NHS Improvement letter to all trust Chairs and CEOs about launch of the employment support scheme

NHS Improvement presentation on whistleblower employment support scheme September/ October 2017

NHS Improvement presentation on whistleblower employment support scheme February 2018

NHS Improvement Newsletter July 2017

NHS Improvement Newsletter September 2017

NHS Improvement Newsletter November 2017

NHS Improvement Newsletter February 2018

A key disclosure was a spreadsheet compiled by NHSI showing how many trusts had attended initial workshops in autumn 2017, and what initial pledges of support were made. Only a few trusts disclosed this spreadsheet:

FOI disclosure 9.03.2018 NHS Improvement’s autumn 2017 employer workshops spreadsheet

 

Noel Finn fellow whistleblower made a similar FOI request to NHS Improvement and received a smaller range of disclosed documents, but the same spreadsheet was included.

 

 

The NHSI spreadsheet revealed:

 89 trusts attended the workshops

59 trusts pledged at the workshops to provide some or all of the following types of support:

·      Shadowing

·      Temporary employment

·      Mandatory training

·      Guaranteed interviews

·      Library access

 

 

NHSI insisted in its FOI response of 28 March 2018 to Noel Finn:

“Opportunities were discussed during these events. Further correspondence and conversations are continually being held with trusts that participants on the pilot scheme NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority, Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams have identified as being within their area. This is so that we can communicate with trusts/organisations within participants’ catchment areas to focus on opportunities locally.”

 

However, juxtaposed against the NHSI workshop records, the subsequent FOI responses from individual trusts showed that 187 trusts variously indicated that they were had not agreed to provide support, claimed that they had not been asked to do so, failed to respond to the FOI request at all, failed to respond to the specific question or provided vague or unintelligible answers.

This is a spreadsheet of collated FOI responses from NHS trusts, with supplementary information added from the NHSI workshop spreadsheet to additionally show what initial pledges of support were made last year by some trusts:

Spring 2018 FOI responses by NHS trusts about their participation in NHS Improvement’s whistleblower employment support scheme

Of the trusts that initially pledged support at the workshops, only 16 trusts (listed below) subsequently clearly confirmed via FOI that they intended to provide support to whistleblowers broadly as intended:

Pool 16 trusts that confirmed support.png

Another seven trusts (listed below) that initially pledged support at the workshops later only tentatively confirmed in FOI replies that they were “potentially” willing to offer support, or might do so on a “case by case” or “individual” basis, or “dependent upon an individual’s needs and discussion with them at the time”.

NHS Improvement employer pool seven trusts .png

 

Only three trusts, 2gether NHS Foundation Trust , Manchester University NHS Foundation Trust and the Whittington Health NHS Trust indicated that they had actually provided support to whistleblowers. The Whittington has provided library access. The nature of Manchester’s support is not known. There is some question about whether 2gether NHSFT should be included in the figures as they may have cited a case resolved (with a permanent appointment) prior to the establishment of the scheme. This is to be further clarified.

There were a number of anomalies. Some trusts that according to NHSI’s records had participated in the initial workshops later claimed, in response to FOI requests, that they were never even invited to the workshops. For example, Barts:

“The Trust has not been asked by NHS Improvement (NHSI) to take part in workshops about the NHS whistleblower employment support scheme.”

 Some trusts defensively pointed out that participation in the scheme was not compulsory:

“Yes the Trust was invited to make nominations but not required to do so.”

 Some trusts gave single sentence responses. For example, ‘Outstanding’ East London NHS Foundation Trust stated:

“East London NHS Foundation Trust (ELFT) has not been asked   by NHS Improvement to take part in workshops about NHS whistle-blower employment support scheme”

 

A number of trusts similarly denied being contacted. This was surprising as most trusts and NHSI itself confirmed that all trusts were contacted. The anomalies raise the possibility of muddle or even dissembling, but overall there are questions about the adequacy of NHSI’s overall oversight.

Some trusts made careful use of language. For example:

“BSUH NHS Trust has not formally engaged with the NHS whistleblower employment support scheme”   

Brighton and Sussex University Hospitals NHS Trust

“Not to the best of our knowledge.”

Royal Brompton and Harefield NHS Foundation Trust 

“This has yet to be progressed by the Partnership Trust.”

 Staffordshire and Stoke on Trent Partnership NHS Trust

The last of these three is significant because Staffordshire and Stoke on Trent Partnership NHS Trust was Robert Francis’s exemplar trust and prototype for the Freedom To Speak Up Guardian model. There was no evidence base behind his claims. 

Moreover, in his report of the Freedom To Speak Up review, Francis acknowledged that organisations’ willingness to hire whistleblowers was a measure of cultural health:

All NHS organisations should support such a scheme. Doing so would send a clear signal to their staff, and to staff across the NHS that they are willing to value people who are brave enough to raise concerns. Organisations that do should be given appropriate recognition.”

So if Staffordshire and Stoke on Trent is dawdling on supporting exiled whistleblowers, it hardly augurs well for Francis’ stratagem of changing NHS culture with Speak Up Guardians.

Northumbria Healthcare NHS Foundation Trust, the former NHS Improvement CEO Jim Mackey’s trust, had a double entry in NHSI’s workshop records. One entry indicated that the trust had pledged several forms of support. The other indicated that it had only pledged library access. A subsequent FOI reply by the trust clarified that the trust was offering only library access.   It later added that it was “still” working with NHSI to offer more.

Jim Mackey wrote as NHSI CEO in September 2017:

“This is very important work and we must make sure we get it right. We want the scheme to meet whistleblowers’ needs as fully as possible, within the criteria outlined in the Francis report.

If the former CEO of NHSI could not ensure that his own trust straightforwardly offered trial placements as Francis recommended, that says a great deal about the NHSI scheme.

Of note, Northumbria has confirmed that its former acting CEO Dave Evans is a panellist on the employment support scheme.

Questions arise about whether the senior manager of a trust that was only willing to offer harmed whistleblowers library access, thus implying certain organisational attitudes of unwillingness and unhelpfulness, should be a scheme panellist.

A similar concern arises about a scheme panellist who is a trust Freedom To Speak Up Guardian from Surrey and Borders which replied to “No” when asked via FOI if it had agreed to provide support via the scheme. The trust gave this interesting detail in its FOI reply about appeals:

“Our Freedom to Speak Up Guardian is a trained panelist and has taken part in one appeal and is scheduled to undertake a second next month.”

 This is this the first indication to my knowledge that whistleblowers may have had to appeal against panel decisions, and further clarification seems desirable.

Whistleblowers continue to be very concerned that NHSI’s scheme is generally unsupportive and under-resourced. There is a sense that NHSI is going through the motions without real intention to provide much help. The obligatory coaching sessions by a private contractor are not popular and their usefulness is much questioned. What whistleblowers want is re-entry to work, but NHSI has not made this attractive to employers. There is no money that follows whistleblowers, just more responsibility and perceived complication at a time when services are under great pressure.

I am gagged as a member of the working group on NHSI’s  whistleblower employment support scheme from reporting recent interim results of an evaluation of the scheme, but I really wish I could share the results.

NHSI’s own workshop records show that some trusts raised issues from the outset about resources. For example, one employer said it would offer temporary employment “as long as [it was] funded”. Another employer raised an issue of “access to resources”. One trust asked: “DBS costs – who would meet”.

Equally, there was also recognition from some employers that all NHS employers should sign up:

There has to be engagement from all trusts to support the scheme.  Needs to be a programme in place for all to sign up to.  Important not to loose [sic] trained and experienced staff”

 The disclosed NHSI spreadsheet from its autumn 2017 workshops revealed that besides NHS trusts, only a handful of other organisations attended:

 

NHS Employers

Virgin Care

Working Transitions (the private company provider coaching services to whistleblowers on the scheme)

Welsh Government

North Somerset Community Partnership CIC

 

 

It is unimpressive that the Department of Health and Social Care has not shown leadership in ensuring that all NHS employers have been more strongly encouraged to participate and that there has been better uptake. Ensuring a better budget for the scheme and holding NHS England and NHSI to proper account might have made a difference. As might have some more creative approaches in matching whistleblowers with trusts that genuinely wanted to help, and making practical arrangements to overcome geographical barriers, and help with travel and temporary accommodation for short placements.

 

A case vignette of whistleblower ZA’s case raises disturbing questions:

 

ZA is a secondary care whistleblower who was accepted onto NHSI’s scheme.

He is London-based and in January 2018 he asked NHSI for work placements at three NHS trusts nearest to him (UCH, the Royal Free and the Whittington). However, he would be willing to travel further, as nowhere in London is very far.

NHS Improvement put him forward to the Whittington despite the fact that (unbeknown to ZA) the trust had not indicated that it was willing to provide work placements, and it has since declined a request to provide him even shadowing.

Whittington Health NHS Trust FOI response

Inexplicably, the regulator has not put him forward to the Royal Free which would have been willing to provide a work placement.

Royal Free London NHS  Foundation Trust FOI response

Camden and Islington are also in ZA’s local area, and this trust had indicated to NHSI that it was willing to provide work placements

Camden and Islington NHS Foundation Trust FO response

Since starting the scheme six months ago, the support that ZA has received from NHSI has amounted to 3 one hour work coaching sessions. ZA feels his needs are not being met by scheme.

ZA intends to make a complaint to Dido Harding, the chair of NHS Improvement and to ask for a work placement to be expedited.

 

 

Another whistleblower, Lloyd Armstrong has had equally difficult experiences of the scheme and was unable to access appropriate support when he asked for help from NHSI to ensure a guaranteed interview:

The Greasy Freedom To Speak Up Freedom To Review is Stuck

 

Clare Sardari, South Devon whistleblower applied to be a whistleblower panellist on the scheme but was cold shouldered.

A session of training was cancelled and promises of further training did not materialise despite prompting. She was excluded from the pool of panellists because of this failure. Eventually, she was offered an irregular telephone ‘training’ session but told that there was no further demand for panellists. After a formal complaint, an opportunity to sit on a panel arose, but she declined because a heavy handed confidentiality agreement was sent at the last minute. Unsurprisingly, NHSI largely did not substantively uphold Sardari’s complaint, and excused the delays and failures in its handling of her request as oversight due to workload.

Outside of the scheme, Sardari approached her former employer after it emerged that the trust had agreed to offer whistleblowers the full range of employment support services.

To date, the trust has offered Sardari nothing despite further enquiry. This questions the robustness of the trust’s commitment and whether it would provide a genuinely safe environment for any whistleblowers placed there.

 

A similar tale is reported by Dr Kevin Beatt, who in January 2018 also approached his former employer Croydon Health Services NHS Trust outside of NHSI’s scheme, to ask if it would consider providing him with re-employment support services.

Croydon attended NHSI’s workshops last year and pledged to offer the full range of employment support services, with the additional enthusiastic comment:

How can we use apprenticeship levy to support the development of the individual.  Mentoring, buddying”

However, Croydon did not even respond to my FOI request about its participation in the scheme despite being prompted. It also twice shut the door in Dr Beatt’s face. Letter from Croydon Health Services NHS Trust Chair 29 January 2018:

Screen Shot 2018-06-07 at 14.09.11

In response to a request from Dr Beatt for the Trust Board to acknowledge the findings of the Court and assist him in securing future employment, theTrust Chair of Croydon Health Services NHS emailed on 28 March 2018:

“The only outstanding issue between you and the Trust is the remedy hearing in respect of your Employment Tribunal claim…. the Trust will not be entering into further correspondence with you on those points.”

Again, the tone does not suggest much learning or that Croydon will clearly be a safe haven for other whistleblowers.

There are also other matters regarding the employment support scheme that are not in the public domain.

You can be sure that NHS England and NHS Improvement will do their best to capture and parade a few feel good stories of plucky whistleblowers who have made it against the odds, through sheer positive thinking. It’s an easier sell than whistleblowers who won’t go away until problems are properly fixed and who make folk feel awkward. Whilst some of the individuals on the good news wagon will be entirely well meaning, others will be less so. But divide, rule and spin is to be expected, when little of substance is proffered.

There has been job creation on the scheme, but mostly not for whistleblowers. Whilst whistleblowers continue to suffer out in the cold, with a pittance set aside for whistleblowers on the employment scheme, Jeremy Hunt et al have blown £628K on evaluating the non-evidence based Freedom To Speak Up network of Guardians. A study that hardly glances at whistleblower detriment has been commissioned. 

The Freedom To Speak Up project is a three-ring circus of the vainglorious, the futile and the cynical.

But what this all demonstrates is that UK law to protect whistleblowers must be strengthened to avoid such obvious and protracted injustices.

Robert Francis’ arguments on appealing to people’s better natures are weak and fall flat where poor culture and the wrong values are ingrained and come from the top.

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Call for Whistleblower Evidence on Flaws in UK Whistleblowing Law & the Need for Reform

By Dr Minh Alexander, NHS whistleblower and former Consultant Psychiatrist and Clare Sardari, NHS whistleblower and former NHS Trust Head of Organisational Development, 1 June 2018

Countless whistleblowers and their families, and therefore the public, have been failed by UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA).

Vital matters of public protection have been suppressed because whistleblowers have been silenced and intimidated.  The law has not protected them and has even enabled their victimisation. The law has not compelled investigation of whistleblowers’ concerns and it confers no proactive duty of protection.  The law only applies to employers and not to other bodies such as regulators, which may also harm whistleblowers and are arguably more important because they have a greater responsibility to ensure good governance.

UK whistleblowing law has fallen far behind law in other jurisdictions. A comparative review by the director of the European Centre for Whistleblower Rights concluded that PIDA met only 37% of international standards.

It is time to focus even more on how the system should be changed to better protect future whistleblowers. Individual whistleblowers’ stories have been repeatedly reported in the media to little avail. Considerable public sympathy has been evident, but this has not resulted in meaningful reform. It has merely prompted public relations exercises by governments and their subordinate bodies.

The best known of these is the NHS Freedom To Speak Up project, which is an expensive, toothless culture change programme under the control of a government department and bodies responsible for many serious cover ups over the years. It has produced zero change in NHS staff survey whistleblowing metrics despite millions of pounds spent in public money on publicity and establishing local Freedom To Speak Guardians and a National Office. Even more alarmingly, the government is rolling out similar models in other sectors such as the Ministry of Defence and financial sectors, and the NHS National Freedom To Speak Up Guardian established a pan-sector network last year which will likely drive the model into additional sectors.

The NHS National Guardian’s Office has proven to be seriously ineffective and a block to real reform. The National Guardian and her oversight bodies have sought to dilute her role so that she does not help individual whistleblowers with detriment and instead makes only general recommendations. Her exclusion criteria also mean that many whistleblowers will not receive help when they should, and their patient safety concerns may be neglected for years, only to be ultimately declared ‘historic’ and irrelevant. The weakness of her office has recently been further exposed by her failure to act upon a mass referral by whistleblowers simply because an employer failed to co-operate. But equally, she previously refused to seek additional powers. This  highlights why it is not appropriate to rely upon whistleblowing bodies that operate without guiding statute. In short, it would be an extremely serious blow to the public interest if the Freedom To Speak Up Model is allowed to spread nationally, and would stifle reform for many years.

Law reform is urgently needed, and work continues on lobbying parliament and the Law Commission. An opportunity has arisen in that the NHS National Guardian has agreed to sponsor an event led by whistleblowers on law reform. The National Guardian previously advised that she did not consider lobbying for law reform to be a priority for her office. Latterly, her office has denied that law reform is a matter that is even in its remit. Nevertheless, a small scale symposium  will be held at the headquarters of the Care Quality Commission on 19 October which will seek to present expert legal evidence to key decision makers such as MPs and the Law Commission.

As preparation for the event, we are seeking first hand testimony from whistleblowers who have experience of using the Public Interest Disclosure Act, to help build the case for law reform. The whistleblower accounts will be collated into a report for parliament, the government and Law Commission. We would be very grateful if as many people can help as possible.

This is a focussed exercise about helping whistleblowers who come after us, and so is not for general re-telling of personal experiences. It is important to be very concise and to summarise the universal principles in question, to communicate effectively with the public and with decision makers. The more concise and well-distilled the evidence is, the more powerful the final report will be. Busy politicians have many issues competing for their attention, and our task is to explain very clearly and economically why law reform is crucial and important to the public interest. We have therefore set some tight word counts to help ensure that the final material serves its objective – it can be done! A real life example is provided below.

A case:

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

 I was a very senior public sector manager. I whistleblew about corruption. I lost my job. I have never worked again. I ‘won’ my case at ET but my concerns were buried and my compensation was swallowed up by legal fees. I was led a merry dance by lawyers who did not have my best interests at heart or care about the public interest. Over the years, I watched those who lied and who victimised me promoted.

How I think the law should change:

The law should include pre-detriment protection and it should mandate investigation of concerns. There should be criminal liability for serious whistleblower retaliation. The law should hold not just employers but regulators, other officials and government departments to account for failing whistleblowers. There needs to be a body independent of the government to enforce new law. I think the Freedom To Speak Up project is a travesty of justice and a serious risk to patient safety.

 

 

So if you have had experience of using the Public Interest Disclosure Act, and have made a claim to the Employment Tribunal, whether or not your case went to court, please send in an account of any problems that you have experienced via the contact page of this website:

Contact

Please simply submit free text in this form:

 

1)  Difficulties that I have experienced in using the Public Interest Disclosure Act [Up to 150 words]:

2)  How I think the law should change [Up to 150 words]:

 

Your response will be reported anonymously, and we will in discussion with you ensure that the contents are not identifiable of individuals and organisations, and can be published by the National Guardian’s Office and others. Approaching the data in this way will ensure that the message will have greater reach and be of overall greater benefit to whistleblowers and the public interest.

Your data will be treated confidentially and will seen by us only. It will not be shared with anybody and specifically, will not be shared with the National Guardian’s Office. If you prefer, you can submit to us from a temporary email account that does not identify you. Please indicate if you are doing so, and we will reflect this in the report.

Everybody who submits evidence will receive a copy of the final report and if they wish, updates on any subsequent developments with the Law Commission.

There may be no progress at all in the short term, as all change on whistleblowing is very hard won. Whistleblowing is about the freedom of ordinary people to look after each other, often against powerful vested interests. Even if no visible progress is made at this time, collating this evidence will be an important reference point and an important marker to lay down for those who come after us.

Expressions of interest in facilitating the event on law reform on 19 October 2018

We would be greatly value it if fellow whistleblowers would help us lead this event. If people are interested in helping please contact us via the contact page of this website:

Contact

Numbers will need to be limited because the event is designed to generate in depth discussion. We will prioritise invitations based on the best interests of all whistleblowers and the primary objective of achieving a review of the law. This is an outline of the qualities that would help in facilitating the event: Whistleblower facilitators

Our thanks in advance to all who may help either in submitting evidence  about problems with the law and or facilitating the event.

 

Dr Minh Alexander, NHS whistleblower and former Consultant Psychiatrist

Clare Sardari, NHS whistleblower and former NHS Trust Head of Organisational Development

 

 

WHY NOT WRITE TO YOUR MP TO ASK FOR REFORM OF UK WHISTLEBLOWING LAW?

Template correspondence here

 

 

 

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Dr Kevin Beatt NHS whistleblower & the negligent GMC

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 25 May 2018

 

Introduction

In 2014 following the conclusion of Dr Raj Mattu’s Employment Tribunal  the GMC was forced to review its procedures with respect to medical whistleblowers.

After whistleblowing, Dr Mattu suffered years of endless vexatious referrals to the GMC, including toxic allegations of a criminal nature. None of these were upheld.

In 2014 the GMC announced alongside the general review of NHS whistleblowing by Robert Francis, the so-called Freedom To Speak Up Review, that a review of its approach to whistleblowers would be undertaken by Sir Anthony Hooper, a former Court of Appeal judge.

The pithy Hooper report was published in 2015 and made strong, effective recommendations. At the heart of Hooper’s recommendations was the need to make Responsible Officers (senior medical managers) responsible for any referrals to the GMC, so that if referrals were found to be malicious, the senior doctors responsible could be held to account under the GMC’s fitness to practice framework. It was effectively a recognition that no such accountability was possible where non-clinical managers are responsible for whistleblower reprisal, because there is currently no managerial regulation.

Hooper also proposed that the GMC should proactively exclude improper motivations whenever medical whistleblowers are referred to the GMC.

 

4. If a doctor being referred to the GMC has raised concerns about patient safety or the integrity of the system with the organisation making the referral, then the necessary steps should be taken to obtain from the organisation material which is relevant to an understanding of the context in which the referral is made.

5. Investigators assessing the credibility of an allegation made by an organisation against a doctor who has raised a concern should take into account, in assessing the merits of the allegation, any failure on the part of an organisation to investigate the concern raised and/or have proper procedures in place to encourage and handle the raising of concerns.

6. In those cases where an allegation is made by an organisation against a doctor who has raised concerns, the Registrar should, where it is appropriate to do so, exercise his powers under rule 4(4) to conduct an examination into that allegation, including taking the steps outlined in my earlier recommendations and asking the doctor for his or her comments on the allegation and the circumstances in which the allegation came to be made.”

Indeed, these good practice principles should apply to all professional groups.

 

However, the Hooper report has been poorly implemented by the GMC and hampered by unaccountability in the form of undue secrecy. But more of that another time.

Despite the criticisms inherent in the findings of the Hooper report, there is persisting evidence that the GMC has continued to handle whistleblowing cases badly. An example of this is the GMC’s behaviour in case of Dr Kevin Beatt.

 

Dr Kevin Beatt and the GMC

Dr Beatt prevailed in his much publicised Employment Tribunal claim against his former employer Croydon Health Services NHS Trust in December 2014.

‘Landmark legal win’ for cardiologist Dr Kevin Beatt sacked by Croydon Hospital for whistleblowing on patient safety

The ET determined that he had been unfairly sacked because he whistleblew. It is hard for whistleblowers to ‘win’ at Employment Tribunal, and a compelling level of proof is needed in order to succeed. Not only did Dr Beatt win, but the Employment Tribunal determined that he had not contributed in any way to the dispute. This too is unusual as employers more often than not manufacture conflict in whistleblowing cases, in order to argue contributory fault.

This is the 200 page Employment Tribunal Judgement of December 2014:

Beatt v Croydon Health Services NHS Trust 2014

The reserved reasons given in pages 2 to 5 of the ET judgment contain stark detail of Dr Beatt’s ordeal. This included an extraordinary, witnessed episode in which trust managers laid hands on Dr Beatt:

“….physically restrained him whilst he was going about his contractual duties”

 After the ET made its findings in his favour, Dr Beatt wrote to the GMC about his concerns that some colleagues, who were registered doctors, had not complied with their GMC obligations to be candid and truthful during the course of the proceedings.

As far he is aware, the GMC took no meaningful action to investigate and address these concerns.

In contrast, the GMC took three years to look into allegations that had been made against Dr Beatt. The regulator eventually told him in March 2015 that it would not pursue the matters any further. Dr Beatt’s concerns about the GMC’s behaviour were reported by the media:

“The ongoing probe made Dr Beatt essentially unemployable because he would have been obliged to tell any prospective employers he was under investigation.

After learning the investigation had finally been dropped this week, he said: “It is welcome, but they don’t give any explanation or apology or justify taking nearly three years over the matter. 

“After I sent them the tribunal findings they continued the investigation, I think rather arrogantly, saying that they conduct their own investigations even though they’re not a judicial body.”

GMC finally abandons investigation into wrongly sacked whistleblower doctor Kevin Beatt

 

In 2015 the Secretary of State refused to help Dr Beatt:

Health secretary Jeremy Hunt criticised for inaction over ‘horrific victimisation’ of Croydon NHS whistleblower Kevin Beatt

Dr Beatt was left under attack from repeated appeals by his former employer, which only concluded when the Supreme Court refused the trust leave to appeal a decision by the Court of Appeal in his favour.

After the Court of Appeal found in Dr Beatt’s favour last year, he tried once more to engage the GMC in the form of a complaint about the GMC’s failure to investigate his concerns.

Dr Beatt is of the view that the GMC caused detriment to him through its handling of his case.

In March of this year, the GMC informed Dr Beatt that it would review these matters, but he has heard nothing since.

The GMC demands that doctors must fulfil their professional Duty of Candour, but it still seems most reluctant to protect whistleblowers by clearly and consistently challenging reprisal.

Putting together the case of Dr Bawa-Garba and those of whistleblowers, it would seem that doctors are damned if they speak up and damned if they do not.

There is now greater potential jeopardy for the GMC following an important Supreme Court judgment of November 2017 in favour of Dr Eva Michalak,  which held that she had the right to take legal action against the GMC in the Employment Tribunal for causing her employment detriment.

This judgment gave the medical workforce greater freedom to challenge unfairly harmful, overbearing behaviour by the GMC which seriously impacts on their employment.

Dr Beatt awaits the GMC’s response with interest. Their next steps will have great significance for other doctors who whistleblow and who need to report reprisal by medical colleagues to the GMC.

This is a letter of February 2018 from Dr Beatt to the GMC which covers the salient issues:

Letter 12 February 2018 by Dr Kevin Beatt to Chair of GMC

In the meantime, Dr Beatt has yet to receive any semblance of justice because Croydon Health Services NHS Trust’s repeated appeals have meant that a remedies hearing could not be held for the last three years.  Ten days have now been set aside for the hearing, and a date is awaited.

 

CROWDFUNDING APPEAL

Dr Beatt has managed his protracted litigation to date through private funding, and help from his lawyers who have sometimes worked for nothing or greatly lowered their fees. But after years of battling, he is now in a difficult financial position and seeks help with the final stages of litigation. If you are able, please help either by contributing or sharing the details of his crowdfunding appeal:

https://www.crowdjustice.com/case/whistlebloweraccountability/

 

 

The issues with the GMC will be shared as events unfold.

 

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

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

Summary

 

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

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

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

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

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

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

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

A template letter is provided.

 

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

 

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

BMA submission to the Freedom To Speak Up Review 2014

 

  • The BMA case file retention period is 6 years

 

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

 

  • The BMA said it had no Race and Gender stats

 

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

BMA response 5 March 2015 about member services

 

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

BMA correspondence about task and finish group on raising concerns

Report of BMA task and finish group on raising concerns

 

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

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

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

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

 

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

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

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

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

 

 

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

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

• Outcome of whistleblowing cases

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

Tribunal and supported by the BMA to fully concluded hearings

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

withdraw legal support before cases were concluded?

• Diversity stats

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

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

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

Letter to Chaand Nagpaul Chair of BMA Council 23 January 2018

 

 

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

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

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

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

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

 

 

BMA Consultant Contract 2003

“11.4 Publications, lectures, etc 

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

 

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

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

 

BMA submission to the Freedom To Speak Up Review 2014

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

 

 

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

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

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

Email from BMA Chair 1 May 2018

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

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

The BMA has around 170,000 members:

BMA membershipSource: BMA

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

BMA assets

Source: Companies House – BMA filing history

 

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

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

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

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

 BMA Speaking Up for Patients Survey May 2009

BMA speaking up suvey

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

2017 nhs staff survey by occupational group

Source: NHS Staff Survey 2017

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

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

Template letter to BMA Chair

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

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

This is the main correspondence with the BMA to date.

 

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

Whistleblower-Led Event October 2018 on UK Whistleblowing Law Reform: The Public Interest Disclosure Act 1998 needs to be replaced

PIDA ASS (2)

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

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

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

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

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

Wyman has been treasurer at Bath University since 2011.

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

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

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

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

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

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

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

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

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

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

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

Nicolas Soames MP tweeted:

Screen Shot 2018-05-11 at 07.44.39

 

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

 

November 2010 Glynis Breakwell appointed as Deputy Lieutenant of Somerset

January 2011 Peter Wyman appointed Bath University Treasurer

December 2014 Peter Wyman appointed Deputy Lieutenant of Somerset

December 2015 Peter Wyman appointed as CQC Chair 

April 2016 Glynis Breakwell appointed as NHSI NED

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

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

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

 

 

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

NHS Improvement FOI disclosure 10 May 2018 Remuneration Committee

NHSI FOI disclosure Remuneration Committee Annex 1

NHSI FOI disclosure Remuneration Committee Annex 2

 

Glynis Breakwell (1)

 

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

Our ref: DE-1108526

 Dear Dr Alexander,

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

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

 I hope this reply is helpful.
Yours sincerely,

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

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

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

 

RELATED ITEMS

In contrast to the pay afforded to senior NHS officials, NHS Improvement cannot manage the NHS whistleblower employment support scheme effectively, nor even get a sacked whistleblower a guaranteed interview for a Healthwatch vacancy (£22K to £25K per annum) when he was more than qualified.

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

 

delay deny road signs