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

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 22 June 2017

Summary: CQC has been repeatedly criticised for failing to detect serious care failure and for failing to take warnings seriously. This article reports an important example of serious CQC failure towards whistleblowers. The regulator seriously breached a whistleblower’s confidentiality to their employer. The CQC compounded this failure by complicity with reprisal in a later incident, by suggesting that another employer should refer the whistleblower to the Disclosure and Barring Service. Far from being an honest broker, there are serious questions about CQC’s role in causing detriment to whistleblowers.

Background

Earlier this week a report by Channel 4 Dispatches placed the troubled Care Quality Commission in the frame yet again, over care home abuses that it had failed to detect – or report. 1 2

The Channel 4 investigation took place on Crawfords Walk 3, a Bupa care home in Chester, and revealed shocking neglect, unkindness and abusive attitudes and behaviour by staff towards elderly patients, which clearly amounted to institutional abuse. Unacceptable practice was normalised and a very dysfunctional culture was evident.

During the programme, CQC inspections were criticised as not fit for purpose because the inspection process can be manipulated, for instance by over-staffing in preparation for inspections.

CQC has been repeatedly criticised since its inception for failures to detect serious care home failures and for not taking adequate action when it is made aware of failures. 4

CQC has also been criticised by campaigners for being too close to the care industry.

There is little evidence of learning by CQC, as evidenced by the stock responses it has issued about care scandals over the years. Unreliable assurances are given each time, and the same failings keep recurring:

CQC statements after undercover investigations of poor care

CQC receives disclosures from health and social care whistleblowers every day.

But by CQC’s own admissions via FOI, it often simply puts the most serious whistleblower disclosures in a drawer, as information noted for future inspection. Where CQC acts, it may simply make superficial enquiries to employers and seems easily satisfied with assurances that many whistleblowers know are false.5

In 2011 CQC came under immense pressure with the undercover media exposure of abuse at Winterbourne View, because it was shown that CQC failed to act on repeated whistleblower warnings. The Serious Case Review concluded frankly:

The Review confirms that the apparatus of oversight across sectors was unequal to the task of uncovering the fact and extent of abuses and crimes at the hospital.” 6

CQC has gone through the motions of ‘reform’ since then, and even hired a high profile whistleblower who gave it the seal of approval 7, which was gratifying for the CQC comms department but provided little challenge to CQC’s complacency.

In reality, little has changed. The stream of whistleblowers who complain about CQC failure is undiminished.

Whistleblowers continue to be sacked. Whilst writing this, I heard from a whistleblower who was sacked that same day.

In his 2015 report of the Freedom To Speak Up Review, Robert Francis made over-optimistic observations about CQC’s improved attitudes to whistleblowers. 8

However, he has started expressing disquiet again about CQC’s continuing failures in this area, including at the Board meeting on 20 June 2017.9

Media exposure of care failures has continued, with undercover investigations triggered by the regulator’s failure to listen to service users, families and whistleblowers.

CQC has also been exposed for dirty tricks against whistleblower campaigners.10

Despite all this, CQC is entrusted with stewardship of the National Guardian’s office, which is supposed to ensure good whistleblowing governance.

This speaks volumes about the government’s intentions towards whistleblowers.

 

CQC’s bias towards employers and role in causing detriment to whistleblowers

Two days ago, Helen Rochester a care home whistleblower attended CQC’s board meeting as a member of the public, to confront CQC about its failures towards whistleblowers, using her own case to illustrate the issues.

Rochester was asked to submit her questions to the CQC board in advance, and on the day, she found that a CQC press officer was present at the board meeting.

This is a transcript of the CQC board meeting section on 20 June 2017 where Rochester put her concerns to the board:

Helen Rochester CQC Board meeting transcript 20 June 2017

Rochester is 55 year old experienced former nurse, from an emergency care background, who has in recent years worked part time as a carer in Adult Social Care.

Rochester accuses the CQC of letting her down on two separate occasions, four years apart.

On the first occasion in 2013 she had resigned from a care home after three months, because of concerns about safety at the home, and she reported these concerns to CQC.

Rochester did not give CQC permission to reveal her identity to her former employer, but later received disclosure of documents which showed that the CQC inspector had discussed her whistleblowing case with the employer, and that her employer was hostile and sought to minimise the seriousness of her concerns.

There is also evidence that CQC and this employer discussed the approach to Rochester’s Employment Tribunal claim. This is not only highly irregular, but fascinating when contrasted with CQC’s standard stonewalling to whistleblowers, through claims that it cannot get involved in any employment matters whatsoever.

In addition, the relationship between her employer and the local Adult Safeguarding unit was questionable.

Not all the electronic records are available, but Rochester still has some hard copies and reports the following revealing correspondence from the care home to the local Adult Safeguarding unit:

Email 24 April 2013:

” Adrian from the CQC rang me yesterday and I got the impression Ms
Rochester was not very pleased that he had closed his file (along with
everyone else) goodness knows what she will attempt next but hopefully she
has exhausted every avenue now”

Email 3 May 2013:

“Just a quickie, as we thought Helen Rochester has not gone away
quietly………she is now taking us to an employment tribunal…….”

“After discussion with our lawyers I spoke with Adrian at the CQC today and
asked if it were possible to confirm that the referral HR made in relation
to MC was not taken to safeguarding but documented as an incident and that
no further action was being taken. He said he thought this may have to come
from you, also he is on holiday for a week. If it is possible to have a
written response (by email is fine) that would be very helpful as we have to
submit our formal response to the employment tribunal”

Rochester believes CQC allowed itself to be swayed by the employer’s allegations, and failed to take her seriously or act upon her concerns because of this.

Rochester was vindicated because CQC subsequently found failings in three areas which she had highlighted in her disclosures.

Initially, CQC rated the care home as fully compliant with care standards in May 2013 despite Rochester’s disclosures, but by April 2014, CQC rated the care home as non-compliant on three out of five care domains, with enforcement action on those domains. 11

By April 2015, the home was given ratings of ‘Inadequate’ across the whole board and was served with warning notices 12:

Screen Shot 2017-06-22 at 08.19.42

Also supporting Rochester’s concerns, a comment apparently left by a relative in 2014 on a petition by the charity Compassion in Care noted poor reporting culture at the care home:

Screen Shot 2017-06-22 at 02.37.10

The care home remains under the same ownership but has since changed its name.

Rochester complained that CQC took no action in response to her disclosures for nine months. She believes CQC re-inspected the care home in question only because it was forced to, due to receiving a referral from another regulator.

Rochester reports that she eventually received an apology from Gale Stirling CQC Head of Inspection, who came to her home and claimed that lessons had been learned and measures had been into place to ensure that CQC would not similarly fail other whistleblowers in future.

Rochester could hardly believe it when a similar chain of events took place in April this year. She worked for another care home for only four nights because she was so concerned at what she witnessed in terms of patient harm such as pressure sores, under-staffing, unsafe physical environment, lack of vital equipment needed for both residents’ and staff health and safety, unsafe medicines management, inadequately trained and unsupported staff and various instances of neglect and abuse. She also found that some staff were too frightened to report problems.

After only four night shifts in April, Rochester resigned with immediate effect, citing her concerns about the numerous safety risks, and she also made disclosures to the CQC about these matters.

To her dismay, she discovered that after she resigned, her employer claimed to CQC that it dismissed her for gross misconduct, which she disputed.

These matters are now subject to an Employment Tribunal claim (ET), and the ET has rejected the employer’s post hoc claim that it dismissed Rochester, and made a finding that Rochester resigned.

Of huge concern, Rochester reports that she discovered from a document disclosed by her latest employer that a CQC inspector seemed to accept the employer’s claims, and suggested to the care home manager that she might be under a duty to refer Rochester to the DBS, as a potential risk to vulnerable service users.

The CQC made this suggestion despite having been made aware beforehand that Rochester was a whistleblower.

As far as Rochester is aware, the CQC took no action to verify the care home’s counter allegations against her.

CQC certainly did not bother to discuss the issues with Rochester herself or allow her an opportunity to respond to the counter-allegations before it took the hugely damaging step of suggesting a DBS referral.

Her employer referred her to the DBS as CQC suggested.

Rochester contends that there were no grounds for referral because she her circumstances did not meet the DBS criteria for referral.

The DBS took a similar view and also decided not to add her to their barred list.

However, the referral having been made, the DBS has informed Rochester that the information will be retained in her DBS record for at least the next 10 years and that the DBS may take it into account if we receive any further information in the future”.

Hardly a just reward for being a good citizen.

Rochester also reports that she has received no feedback from the CQC about whether it has actually taken any action regarding her safety concerns. There is no published evidence of an inspection since Rochester made disclosures to CQC over two months ago.

This lack of feedback is a very common complaint by whistleblowers about CQC’s behaviour.

Of particular concern, Rochester feels that the CQC is reluctant to take the trouble to inspect care homes at night. She has asked the CQC to inspect at night but says she has received no confirmation from the CQC that it will do so, despite the special risks posed by under-staffed and less supervised night shifts.

 

Action required

The CQC must now urgently review its approach to whistleblowers and ensure that it will not keep repeating these harmful behaviours.

Over two years ago the General Medical Council accepted recommendations that it must look circumspectly at allegations against whistleblowers and ensure that it is not supporting reprisal by uncritically accepting vexatious referrals. 13

The CQC must now give a similar undertaking and ensure that there are safeguards in its processes to prevent any CQC complicity with reprisal against whistleblowers, inadvertently or otherwise.

The CQC must also track whether particular inspectors are repeatedly letting whistleblowers down, and it must effectively manage any potential issues of capture and inappropriate relationships between local inspectors and providers.

According to Rochester, if the CQC had bothered to carry out the most cursory of checks, it would have soon realised that her former employer’s allegations were contradicted by the evidence.

Questions arise about how many times CQC staff have been instrumental in detriment to whistleblowers who have had the courage and decency to risk all by reporting concerns.

CQC failed to disclose to Rochester that it had suggested that she should be referred to the DBS.

How many times has CQC taken similar covert action against other whistleblowers?

How many whistleblowing cases are actively undermined due to frank CQC hostility?

Is CQC partly liable for detriment from mishandled cases?

Do the negative attitudes by CQC inspection staff towards whistleblowers stem from the top of the organisation?

In November 2013 David Behan CQC chief executive made a public claim that he had tightened up CQC practice after the CQC failed to maintain a whistleblower’s confidentiality. 14

And yet a year later, Shiban Ahmed a whistleblower was referred to the GMC by his employer as a result of CQC breaching confidentiality and making false claims to the employer that he had breached patients’ confidentiality. 15

There have also been other cases in which CQC breached whistleblowers’ confidentiality.

With the revelations in the Rochester case, Behan must now account for the action that he claimed he took in 2013, and reveal whether he made arrangements for proper audit of CQC’s practice in relation to whistleblower confidentiality and ensuring that CQC does not contribute to detriment.

CQC made very few concessions to Rochester at the Board meeting on 20 June 2017. All they offered to do was talk about it, to her and amongst themselves.

That is the type of superficial, dysfunctional response that has led to countless whistleblowing governance failures by CQC.

Talk is cheap and the CQC must now not only act, but provide ongoing proof that it acts.

The National Guardian must also hold CQC to account over these matters, but given her subordinate position as CQC’s employee, it is hard to have any confidence in the arrangement.

Lives depend on effective oversight of health and care services, as amply illustrated by the distressing scenes filmed by Channel 4 at Crawfords Walk.

Good whistleblowing governance is a vital part of this, but reform is many years overdue.

For the public interest to be guarded, we need whistleblowing law reform and a fit for purpose infrastructure with powers to ensure compliance.

RELATED ITEMS:

1)‘CQC an ongoing concern’ a highly revealing report on repeated CQC failure by the charity Compassion in Care:

http://www.compassionincare.com/node/229

2)CQC’s broken promises to act on coroners’ warnings:

https://minhalexander.com/2016/10/08/care-home-deaths-and-more-broken-cqc-promised/

3)CQC, Department of Health and National Guardian failure to help individual whistleblowers:

https://minhalexander.com/2017/05/06/cqc-and-national-guardian-defend-fortress-dh/

4)Data on CQC’s failure to listen to or act upon whistleblowers’ concerns:

https://minhalexander.com/2016/12/05/whistleblowers-unheard-by-cqc/

chateau-cqc

REFERENCES

1 Channel 4 Dispatches 19 June 2017

http://www.channel4.com/programmes/dispatches

2 Exposed: ‘Horror of institutional abuse’ in Bupa care homes as secret filming reveals shocking catalogue of abuse towards elderly dementia victims, Nick Craven, Daily Mail 17 June 2017

http://www.dailymail.co.uk/news/article-4614310/horror-institutional-abuse-Bupa-care-homes-undercover.html

3 CQC reports on Crawfords Walk care home

http://www.cqc.org.uk/location/1-127503548

4 Public Accounts Committee report on the CQC December 2015

https://www.publications.parliament.uk/pa/cm201516/cmselect/cmpubacc/501/501.pdf

5 An FOI disclosure by CQC on the very trouble North Cumbria NHS Trust revealed that CQC repeatedly just noted grave whistleblower disclosures about management fiddling on safety issues as information for future inspection.

https://minhalexander.com/2016/12/05/whistleblowers-unheard-by-cqc/

There has been similar evidence from other FOIs.

CQC previously failed to publish any data about whistleblowing.

It started doing so in recent months, and the data reveals that CQC is still failing to keep complete records of its responses to whistleblower disclosures. For example, 6.3% (32 out of 504) contacts in April this year had no recorded outcome:

Screen Shot 2017-06-21 at 13.04.43

Source: CQC Chief Executive report to the Board 20 June 2017

6 Serious Case Review on Winterbourne View, by Margaret Flynn for South Gloucestershire Safeguarding Adults Board, 2012

South Glos Serious Case Review Winterbourne View

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

Kim Holt blog for CQC 16 Feb 2015

8 Report by Robert Francis of the Freedom To Speak Up Review 11 February 2015

71 It is the responsibility of boards to ensure that there is no victimisation of or retaliation against whistleblowers, and they should be held to account for it. This will require them to maintain constant vigilance, and effective systems to enable them to keep track of what is happening within an organisation where so many people are under pressure to deliver a service. System regulators should look for evidence that this is being taken seriously. I was encouraged to hear optimism about the impact of the CQC’s new inspection regime.”

http://webarchive.nationalarchives.gov.uk/20150218150343/https://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf

9 Remarks by Robert Francis at CQC Board meeting 20 June 2017

“I’d like to just to register a welcome some figures on what is done about whistleblowing information

And I think it’s potentially significant that we receive 500 or 600 a month from members of staff

What comes out of it, unless I’ve got it wrong, is that there are a number of different categories many of which might be interpreted as – If I can put it in a colloquial sense – nothing much happening about the information apart from it being stored.

Now that might be entirely the right action. 

When I see a category for the ‘information is missing’ – I’m no sure what ‘unqualified whistleblowing, no outcome expected’ is – I presume there are a number of different things there which are different ways of saying: “We received a telephone call, nothing happened”.

That may be an over simplification. If it is I’d like to be corrected.

But it is important I think that we continue to keep an eye on the quality of the information that comes through and more importantly the quality of what we do about it”

https://cqc.public-i.tv/core/portal/webcast_interactive/291254

10 Subject Access Requests by whistleblowing campaigners have revealed surveillance of social media activity, negative internal briefings and denigratory comments, and coordination of comms responses about criticisms of the CQC. An example is provided by the CQC’s internal correspondence about the charity Compassion In Care and coverage by Private Eye:

C_jrHT7WAAEz-Tf

http://compassionincare.com/sites/default/files/breakingsilence/The%20Internal%20Web%20of%20Deceit%20Continues%20SAR%20cqc%20report%20two_0.pdf

11 CQC inspection records on Manor Gardens care home 11 April 2014 (click on headings on the left of the page)

Screen Shot 2017-06-22 at 13.29.46.png

Screen Shot 2017-06-22 at 13.29.32

Screen Shot 2017-06-22 at 13.29.56

http://www.cqc.org.uk/location/1-118973975/inspection-report/INS1-1172629661/04#report-top

12 CQC inspection report on Manor Gardens care home April 2015

http://www.cqc.org.uk/sites/default/files/new_reports/AAAB9437.pdf

13 Report by Sir Anthony Hooper on GMC’s handling of whistleblower cases, March 2015

http://www.gmc-uk.org/Hooper_review_final_60267393.pdf

14 CQC chief promises to keep identity of whistleblowers secret, Care Home UK, 28 November 2013

Screen Shot 2017-06-21 at 14.39.40

https://www.carehome.co.uk/news/article.cfm/id/1561759/cqc-chief-promises-to-keep-identity-whistleblowers-secret

15  ‘NHS is allowing babies to be maimed’. Sunday Times 21 December 2014

https://minhalexander.files.wordpress.com/2016/10/cqc-sunday-times-re-shiban-ahmed-confidentiality-21-dec-2014.pdf

 

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

  1. Thank you for this report, Dr A.
    I did accompany Helen Rochester to an ET a couple of years ago and am so glad that she has not been broken by the process but has found the system to be reinvigorating!
    I continue to be appalled by our useless, self-serving and, either dim or corrupt bureaucrats.
    As with the inferno of Grenfell Tower, however much evidence is presented to those in positions of authority, they will prefer to imagine their self-protecting version of reality even when lives are endangered and eventually lost.
    Thank you again.
    Zara

    Like

  2. Morning all – Thought I needed to respond.

    I’m not “reinvigorated” here just sad and disillusioned to be in exactly the same boat 4 years on.

    Employers who victimise WB’s are still common place despite the public interest disclosure act 1998 (PIDA). There is no deterrent to them via the current laws that a WB has to jump through hoops on anyway at a tribunal when they are already going through an awful time and are perhaps ill due to this.

    The only people that seem to benefit through PIDA are the lawyers themselves. You only have to sit in the claimants waiting room at the ET to see what goes on re “agreements” between both parties lawyers that will mutually benefit them minutes before it might get before an independent judge.

    PIDA needs to be consigned to the rubbish bin and parliament needs to step up and change the law. People who raise concerns affecting public safety deserve better.

    In the meantime, given the glacial pace that that could happen, I went to the CQC board in person to deliver what I hoped was the simplest of challenges to the current prescribed authority under PIDA and who were on video in April as struggling to know what a WB actually was!

    Sometimes people at the very top need to hear from those at the front line for a reality check.

    My challenge to them was very simple re what whistle blowers actually are/do:

    1) Wise up
    2) Listen up
    3) Act on what they say instead of storing it under various platitudes

    And perhaps most importantly extract yourselves from the train wreck of the current failures to date and tell me what you are going to do moving forwards?

    Not quite what I said but the message should have been received!!

    Behan sort of got it but no doubt the assurances that he had given 4 years previously were flashing before his eyes because they had clearly failed.

    That’s not to mention what I was told at a much lower level in my own home around this time.

    Re my case at this time the CQC need to note employers are more than capable of making vexatious referrals against WB’s entirely on their own. They do not need any help from the regulator charged with protecting WB’s under the PIDA which is what I have experienced just recently.

    The CQC might want to talk to me re this issue at some point. Don’t talk just act because that will speak much louder than any words.

    Not all regulators are the same now. The DBS tightened up their procedures on this some time ago due to issues I brought to their attention and it appears the GMC have at least accepted they need to do so.

    Lagging way behind are the CQC and others.

    Like

    1. Hello Helen,

      Glad you haven’t lost heart. The first ten years are the worst.

      I would point out that, it seems to take an average of between fifteen and twenty years to have any chance of getting even a modicum of justice in this country.

      We can even boast of housing families in what was predicted, and was evidenced to be, a crematorium. And those responsible will no doubt get away with it whilst all of the lawyers and advisors will pay off the mortgages (of their non-inflammable houses), and the culpable legislators will continue to chortle vacuously.

      What most of us eventually obtain is the satisfaction of surviving as a more or less functioning human being and thus being able to campaign, as you are doing, and support others, where we can, whilst watching Karma slowly but surely manifesting her own brand of Justice.

      Kindest regards, Zara.

      Like

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