Who speaks for the dead? Ivy Atkin and the unaccountable CQC

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

The CQC has behaved arbitrarily and evasively in the matter of serious elder abuse at Autumn Grange care home and the horrific death of Ivy Atkin, weighing just 3 St 13lb,  by criminal negligence.

Its chief executive David Behan promised that a belated CQC internal review into these matters would be published but inexplicably, CQC later pulled up the drawbridge.

When CQC was asked to produce the document, it claimed it could not do so because it did not wish to breach its inspectors’ privacy, despite the grave public interest.

I made a formal complaint about CQC’s behaviour on 5 October 2017:

https://minhalexander.com/2017/10/05/ivy-atkins-death-more-cqc-evasion/

The CQC responded on 19 October 2017 and deemed my complaint invalid. However, it paradoxically stated that I was entitled to escalate my non-complaint to the PHSO.

CQC refused my non-complaint on grounds that I was not directly affected by the original events:

CQC refusal to accept complaint on Ivy Atkin and internal review publication 20171019 Dr Minh Alexander NCT 372

In fact, the relevant regulations state that a complaint may be made on behalf of someone who has died.

Indeed, CQC’s sub-committee Healthwatch England previously waxed lyrical on the importance of addressing concerns raised by third parties.

Awkwardly for CQC, Robert Francis is on the record as having clearly concurred with this position.

Moreover, my complaint centrally concerns CQC’s governance, not the original events.

I have written to Peter Wyman CQC chair to question CQC’s refusal to accept my complaint. Don’t hold your breath.

The letter is provided below.

 

RELATED ITEMS

(1) This week, unsurprisingly, Private Eye ran a full page feature on the “pisspoor” CQC’s adventures:

CQC Private Eye Special Issue 1455 20 Oct 2017

 

(2) CQC an ongoing concern – a report by the campaigning charity Compassion In Care

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

 

(3) Care home deaths and more broken CQC promises

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

 

 

Letter 20 October 2017 to Peter Wyman about CQC’s refusal of the complaint about its handling of Ivy Atkin’s death:

BY EMAIL

Peter Wyman

Chair Care Quality Commission

20 October 2017

 

Dear Mr Wyman,

CQC’s refusal to accept a complaint about its governance following Ivy Atkin’s death

Your complaints team has informed me that CQC refuses to accept my complaint. This is on the basis that CQC contends I was not directly affected by the events.

However, CQC seems to contradict itself in respect of the legitimacy of my complaint by suggesting that I may proceed to the next stage of the complaints process by contacting the PHSO.

I consider that CQC’s position is flawed on the following grounds:

1. I believe CQC is wrong to argue that I have not been directly affected by the events of which I have complained.

The events about which I am complaining of are not the original events surrounding Ivy Atkin’s death, but CQC ‘s poor governance and subsequent secrecy about the death, which is a serious matter of public interest that affects all.

The events of which I complain are specifically:

• That CQC did not see fit to conduct an internal review until four years after Ivy Atkin’s death

 

• The response of your Head of Inspection when I made an inquiry about CQC’s handling of Ivy Atkin’s case. In his letter of 2 March 2016 he appeared dismissive of the need for internal review and claimed, despite the lack of an internal review, that CQC’s processes were “better than ever before”.

 

• That the CQC’s failed to disclose and publish the full internal review on Ivy Atkin’s death, despite the fact that your chief executive gave your Board written assurance on 16 November 2016 that the review would be published. I consider CQC’s grounds for refusing to disclose and publish inadequate.

 

• That CQC continues to fail to account for why Ivy Atkin was not taken to hospital when she was found perilously ill. She was instead merely transferred to another care home where she died. CQC did not answer a direct question about this, and there is nothing in the material later published by either CQC or the local authority which answers this fundamental question.

 

2. In my view CQC is applying double standards.

Healthwatch England, which is constituted as part of CQC, not long ago criticised NHS bodies for taking a “defensive and obstructive” approach 1 in that they erected artificial barriers to third party complaints.

Healthwatch England made its criticisms based on the following data, which it obtained by FOI:

https://minhalexander.com/wp-content/uploads/2016/09/healthwatch-2014-hospital_complaints_foi_results17122014-11.xls

 Healthwatch England’s then CEO Anna Bradley made these criticisms of the institutional defensiveness that Healthwatch England had uncovered:

“For me this is symptomatic of a much bigger problem around complaints handling in the NHS and social care services.

The fact that doctors and nurses would rather tell one of these “citizen whistleblowers” they can’t complain because they don’t tick the right box or have the permission to make a complaint is just wrong.

If a passer-by reports an abandoned bag in an airport, the staff don’t say: “I’m sorry sir, but do you have the permission of the bag owner.” Rather they are thanked for their vigilance.

If the policy makers and politicians are serious about driving culture change in the NHS then more needs to be done to wipe out this ‘compute says no’ attitude and encourage staff to welcome feedback – positive and negative.” 1

She also commented that the NHS’ refusal of third party complaints, which comprised about a fifth of all cases, is a misapplication of the rules:

 “Hospital patients often feel incredibly vulnerable and too scared to complain when they receive poor care. And yet widespread misapplication of the rules is preventing concerned citizens standing up on their behalf.” 1

 A CQC non-executive director, Sir Robert Francis commented thus in response to Healthwatch’s findings:

 “…it is vital that healthcare providers listen and act on concerns from whatever source they come. Unless they do so they are unlikely to be fulfilling their commitment to be open and transparent learning organisations focussed on meeting the needs of their patients.” 1

3. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 state that a complaint may be made on behalf of someone who has died. 2

 

The CQC has expressed itself fulsomely about the obligations of regulated bodies:

“Complaints handling is an excellent proxy for an open, transparent and learning culture that we would expect to see in well-led organisations.” 3

I believe that if CQC refuses to account properly for its poor governance in Ivy Atkin’s case, this is both an injustice to the deceased and to the public.

CQC claimed in December 2014 that it would hold itself to the standards that it expects of others with respect to complaints handling:

“As we hold providers to a higher standard, we know we need to deliver that same standard ourselves. We are working to make it easier for people to share their experiences with us, to use that information effectively in our regulation, and to report back to people on what action we have taken.”

 Please reconsider CQC’s decision to dismiss my complaint.

 

Yours sincerely,

Dr Minh Alexander

 

Sir Robert Jay Queen’s Bench Division, High Court

Ms Stephanie Haskey Ass Coroner Nottinghamshire

Ms Mairin Casey Coroner Nottinghamshire

Judge Mark Lucraft Chief Coroner

Elizabeth Denham UK Information Commissioner

Lord Bew CSPL

Sir Amyas Morse NAO

Public Administration and Constitutional Affairs Committee

Public Accounts Committee

Health Committee

Philip Dunne MP Minister of State for Health

Dr Philippa Whitford MP

Norman Lamb MP

Jon Ashworth MP Shadow Secretary of State for Health

Barbara Keeley MP Shadow Minister for Mental Health and Social Care

Professor Rob Behrens PHSO

Sir Paul Jenkins, Matrix Chambers

Sir Robert Francis QC CQC NED

Prof Louis Appleby CQC NED

Paul Corrigan CQC NED

Paul Rew CQC NED

Jora Gill CQC NED

Ted Baker CQC Chief Inspector of Hospitals

Andrea Sutcliffe CQC Chief Inspector of Adult Social Care

Steve Field CQC Chief Inspector of General Practice

Mike Mire CQC NED and Chair of CQC Regulatory Governance Committee

Malte Gerhold CQC Executive Director of Strategy and Intelligence

Jane Mordue CQC NED and Chair Healthwatch England

 

 

 

REFERENCES

1 Healthwatch England statements 5 December 2014

https://minhalexander.com/wp-content/uploads/2016/09/healthwatch-england-statements-x-2-on-citizen-whistleblowers-5-12-20142.pdf

2 The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009

“ Persons who may make complaints

5.—(1) A complaint may be made by— 

(a)a person who receives or has received services from a responsible body; or

(b)a person who is affected, or likely to be affected, by the action, omission or decision of the responsible body which is the subject of the complaint.

(2) A complaint may be made by a person (in this regulation referred to as a representative) acting on behalf of a person mentioned in paragraph (1) who— 

(a)has died;

(b)is a child;

(c)is unable to make the complaint themselves because of—

(i)physical incapacity; or

(ii)lack of capacity within the meaning of the Mental Capacity Act 2005(1); or

(d)has requested the representative to act on their behalf.

(3) Where a representative makes a complaint on behalf of a child, the responsible body to which the complaint is made— 

(a)must not consider the complaint unless it is satisfied that there are reasonable grounds for the complaint being made by a representative instead of the child; and

(b)if it is not so satisfied, must notify the representative in writing, and state the reason for its decision.

(4) This paragraph applies where— 

(a)a representative makes a complaint on behalf of—

(i)a child; or

(ii)a person who lacks capacity within the meaning of the Mental Capacity Act 2005; and

(b)the responsible body to which the complaint is made is satisfied that the representative is not conducting the complaint in the best interests of the person on whose behalf the complaint is made.

(5) Where paragraph (4) applies— 

(a)the complaint must not be considered or further considered under these Regulations; and

(b)the responsible body must notify the representative in writing, and state the reason for its decision.

(6) In these Regulations any reference to a complainant includes a reference to a representative.”

http://www.legislation.gov.uk/uksi/2009/309/regulation/5/made

 

3 Complaints Matter. CQC December 2014

http://www.cqc.org.uk/sites/default/files/20141208_complaints_matter_report.pdf