By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 26 May 2017
The Department of Health and senior NHS officials often close ranks when things go wrong, and this includes the protection and recycling of NHS managers after wrongdoing.
Following a serious case of sexual harassment and a subsequent cover up by a mental health trust, Derbyshire Healthcare 1, two of the trust’s former directors were recycled.
Mick Martin a former trust NED and acting trust chair was appointed as Executive Director of Operations and Deputy Ombudsman by PHSO, only to later step down after the scandal over his appointment. 2
It transpired that the Ombudsman had been twice warned about Martin’s background, and acknowledged these communications. An investigation concluded that she made a ‘mistake’ in not looking further into the matter. 3
Steve Trenchard the former trust chief executive was also hired again by the NHS as a consultant, five months after resigning from Derbyshire Healthcare, also amidst much scandal. 4
Tracing the events around Steve Trenchard’s recycling reveals, according to FOI disclosures, that the NMC and a CCG lent a hand, and that CQC took little action to enforce FPPR. The details are provided below.
This is the Employment Tribunal judgment which describes the sexual harassment in the case of Marks v Derbyshire Healthcare NHS Foundation Trust, and its cover up by the trust:
Steve Trenchard was the chief executive of Derbyshire Healthcare when a female fellow director – Helen Marks Director of Human Resources – was sexually harassed and then victimised by Alan Baines the trust’s chair, for rejecting his advances.
The Employment Tribunal upheld all of Marks’ claims of unfair (constructive) dismissal, sex discrimination, harassment and victimisation.
In series of complicated events, Baines subjected Marks to degrading treatment and called her a “whore” and “you stupid woman”.
The Employment Tribunal noted that Marks and Baines formed an inappropriately close personal relationship. The ET also took the view that there was “duplicity” by Marks in that it found that she had used her relationship with Baines to secure favours. For example, agitating for the departure of another director whom she disliked.
However the ET noted that Baines was equally “happy to participate in the behaviour”, and concluded that he was culpable by reason of his position of great power. The ET rejected a suggestion from the trust’s barrister that Marks had led Baines on as regards the possibility of a sexual relationship:
“There is not a shred of evidence that at any stage she had indicated that she would be willing to enter into a sexual relationship with him [Baines]”
The ET concluded that Baines sought a sexual relationship despite Marks giving indications that she did not want this, and that he “engineered” allegations of bullying against her after she repeatedly resisted his sexual advances, with a view to her dismissal.
The ET also concluded that the trust treated Marks less favourably by suspending her but not Baines or Trenchard, when all three had been subject to allegations.
The ET also concluded that the trust failed to follow a fair procedure in that it ended Marks’ suspension and halted an investigation into allegations against her, but never explained the reasons for this. Equally, it refused to exonerate her, reneging on an earlier undertaking to apologise for its poor treatment of her.
The trust also failed to investigate her allegations that Baines had sexually harassed her.
In addition to upholding Marks’ claim of constructive dismissal, the ET also made other findings of repeated unfairness by the trust.
This included an extraordinary review of Marks’ grievance against Baines, by Lee O’Bryan interim Director of Workforce, which consisted of looking at documents and having a coffee with Trenchard:
O’Bryan concluded based on this ‘review’ that Trenchard was a “credible and sincere person”.
He also concluded that Marks’ suspension was reasonable, that there had been no wrongdoing by Baines and that there was no evidence of sexual harassment.
Of interest is the fact that O’Bryan was until his resignation in October 2015 also a non executive director at Avon and Wiltshire Partnership trust, where he was the lead director for whistleblowing. 5 6
The ET found that Derbyshire Healthcare inflicted detriment on Marks because she was woman.
The Employment Tribunal’s findings with respect to Steve Trenchard
Steve Trenchard is by background a nurse. Prior to his appointment as chief executive of Derbyshire Healthcare, he was the Director of Nursing at the very troubled West London Mental Health NHS Trust.
Trenchard’s LinkedIn account states: “I am an accomplished, mature and skilled leader with a track record in people development and service delivery through establishing compassionate, appreciative and performance informed cultures and systems.” 7
The ET concluded that Steve Trenchard accepted Baines’ vexatious allegations against Marks “without question”, even though they tended to be non-specific, contained “sweeping statements” and were at times even “incoherent”.
The ET concluded that Trenchard allowed himself to be used by Baines, and that he decided through an irregular process, that Marks was guilty. This was despite the fact that he had not even spoken to her:
The ET also found that Trenchard willingly participated in Baines’ decision to sack Marks, without due process:
The ET found unfairness in the manner in which Trenchard suspended Marks and denied her appropriate information about the allegations against her.
The ET found that Trenchard failed to check Baines or properly satisfy himself as to the reasons for Baines actions against Marks, despite the fact that Baines’ allegations against Marks were in the ET’s view obviously “trumped up”:
Baines’ behaviour complicated matters further in that he tried to engineer Marks’ departure by settlement, and the ET concluded that this was to prevent his own behaviour coming to light.
Baines urged Trenchard to “bury” the matter:
However, in September 2013 Marks complained about Baines’ sexual harassment to Monitor’s regional director Adam Cayley and to the trust governors, and she submitted a grievance regarding the sexual harassment by Baines.
Importantly, AFTER Trenchard became thus aware of Baines’ real motives in pursuing Marks’ dismissal, Baines was allowed to leave the trust without a stain on his reputation.
The ET noted that Trenchard wrote to trust staff that Baines had decided to retire and had been a great ambassador for the trust.
Mick Martin was reportedly even more effusive:
The ET concluded that the trust protected Baines:
In contrast, the trust repeatedly treated Marks in a hostile and unfair manner until she resigned due to loss of trust and confidence, and took legal action, eventually winning her claim to the ET.
Trenchard was suspended by the trust following the ET judgment in June 2015, and resigned in February 2016.
The system response to the Employment Tribunal Judgment, and Steve Trenchard’s appointment by Pennine Care NHS Foundation Trust
Unusually, the scandal arising from the ET judgment was such that Monitor conceded that there would need to be an investigation into the trust.
Two investigations were commissioned by the trust.
One investigation was by Deloittes, which “…assumed that the information provided to us and management’s representations are complete, accurate and reliable”. 8 This was the methodology applied in Deloitte’s much criticised governance review of Royal Wolverhampton and David Loughton. 9
The other investigation was conducted by a panel of three, including Alan Yates, whom Monitor previously installed as improvement director at the still struggling Norfolk and Suffolk NHS Foundation trust. NHS Improvement later appointed Yates as improvement director at Southern Health, and then promoted him to interim chair of Southern Health. Under Yates’ chairmanship, Southern Health recently told the media that it had apologised to a bereaved family, which the family disputed. 10 Yates has today been replaced by new chair. 11
The main report by Yates et al was published in Derbyshire Healthcare’s March 2016 board papers 8, but the Fit and Proper assessment on Trenchard has not been made public.
I found the main Yates report very different in tone to the ET judgment. It refers to the trust being so “overwhelmed” by the situation facing it that it “unconsciously or culturally” deviated from normal procedures:
“The Trust seemed to be overwhelmed by the nature of the challenge and decided perhaps sometimes unconsciously or culturally that its machinery would not work in the circumstances.”
The report also comments on the fact that “suspicion” was caused by the failure to follow accepted procedures, which could be understood to imply that Yates et al did not conclude that there was deliberate obscuration by the trust:
“The Trust’s failure to use its standard reporting machinery, approach to risk management and normal approaches to escalation resulted in an approach which was not supported by the whole Board and denied those involved the protection as well as the support good governance offers. It also led to the suspicion that an issue which affected Board members was treated differently to other issues of governance.”
There is less emphasis in the Yates report on weighing the credibility of witnesses and their evidence than in some past FPPR investigation reports.
Derbyshire Healthcare currently refuses to even disclose whether Trenchard was found to be a Fit and Proper Person. 12
However, it seems the above Fit and Proper Person investigation report may have later featured in Trenchard’s subsequent and controversial appointment as a consultant at Pennine Care.
The appointment at Pennine Care was not a board position and not subject to FPPR, but the trust has indicated that a report about Trenchard’s fitness was considered as part of Pennine’s appointment process.
Pennine Care was reluctant to be fully transparent about the details of Trenchard’s appointment, but provided the following information:
- Trenchard’s post at Pennine Care was not externally advertised:
“Professor Trenchard’s consultancy services were commissioned in line with Trust processes for engaging external consultants. It did not require external advertisement.”
- Trenchard was interviewed by Pennine Care’s chief executive Michael McCourt and Medical Director Henry Ticehurst
- Trenchard had been referred to the NMC which was reportedly satisfied of Trenchard’s good character and integrity:
“The matter had also been referred to the Nursing and Midwifery Council (NMC). The Trust reviewed the details of the NMC investigation which found there was no case to answer and noted there was no ‘evidence such that could be said to bring into question Professor Trenchard’s good character or alternatively his integrity or honesty.’
- Pennine Care also indicated that a Derbyshire CCG provided Trenchard with a verbal reference, given to Pennine Care’s CEO, but that there was no further record of this.
South Derbyshire CCG advised me that it did not provide the reference.
North Derbyshire was evasive and claimed it did not hold a record about a reference, but did at least clarify that no reference was provided by its most senior officials.
- Pennine Care stated that it reviewed a report which concluded that Trenchard was a fit and proper person:
“Additional assurance was sought from reviewing an independent report, which found him to be fit and proper and no evidence of misconduct or wrongdoing.”
Of note, Pennine Care misled me by initially claiming that there were no communications with regulators about Trenchard to disclose.
Several exchanges later, the trust coughed up a letter from CQC, which revealed that CQC took no further action after examining FPPR issues at Derbyshire Healthcare.
This was despite the fact that CQC concluded from an inspection in January 2016 that Derbyshire Healthcare’s FPPR paperwork was not in order, and whilst Trenchard had been suspended by that point, there was no documented rationale as to why other managers named in the Marks ET judgment had been allowed to continue in their roles. CQC noted that no investigations had been mounted into the other managers named in the ET judgment.13
This is the information and CQC correspondence disclosed by Pennine Care:
It is also worth noting that Trenchard had previously been a CQC insider, acting as an inspection chair for CQC. For example at Cambridgeshire and Peterborough NHS Foundation Trust:
But as Trenchard has reportedly been found Fit and Proper, and the NMC has apparently vouched for his integrity, no doubts in that direction are likely to be countenanced.
1 Helen Marks awarded £832,711by Employment Tribunal, BBC 16 February 2016
2 NHS watchdog faces new blow as deputy stands down
3 Report of investigation into the PHSO’s appointment of Mick Martin, by Sir Alex Allen, 13 September 2016
4 Disgraced NHS boss lands a job – at the trust next door. Jennifer Williams. Manchester Evening News. 13 February 2017
5 Three AWP mental health chiefs resign. Eve Buckland, Swindon Advertiser, 28 October 2015
6 Lee O’Bryan’s LinkedIn data:
7 Steve Trenchard’s LinkedIn data:
8 The report of the Deloitte governance review on Derbyshire Healthcare, and the Yates investigation on Derbyshire Healthcare, were published in the trust’s board papers of 30 March 2016:
9 Report of Deloitte governance review on the Royal Wolverhampton NHS Trust
10 A missing ‘apology’ in five parts. Sara Ryan, 11 May 2017
12 FOI disclosure 24 May 2017 by Derbyshire Healthcare NHS Foundation Trust, ref. 4147_001
13 CQC inspection report February 2016 on Derbyshire Healthcare NHS Foundation Trust