By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 13 February 2018
The CQC’s much criticised antics over Regulation 5 FPPR, which have served to protect and help recycle poor managers have been thrown into relief by the publication on 8 February 2018 of Bill Kirkup’s review of events at Liverpool Community Health NHS Trust.
Steven Barclay Minister of State for Health and Social Care gave undertakings in parliament on 8 February that a wider review will be undertaken of Fit and Proper NHS arrangements, to encompass action required after poor directors leave the NHS.
I have today written to David Behan chief executive of the CQC to ask if CQC will now review FPPR referrals that it previously rejected out of hand, even in the most serious and robustly evidenced cases:
Sir David Behan
Care Quality Commission
12 February 2018
Dear Sir David,
Request for review of FPPR cases rejected by the CQC
I write to ask if CQC is formally reviewing FPPR referrals that it rejected whilst operating FPPR prior to publication of its new guidance in January 2018.
CQC had admitted that its previous way of operating FPPR was flawed and required review.
The need for better FPPR process has now been additionally highlighted by the latest report on the troubles at Liverpool Community Health NHS Trust where Bill Kirkup has concluded that poor leadership led to unnecessary patient harm.
Dr Kirkup has recommended further review of CQC’s operation of FPPR.
The Minister of State indicated on 8 February 2018 that he believes a wider application of FPPR is required, which encompasses what action should be taken after any unfit director leaves the NHS. I raised this point with CQC as long ago as January 2015.
CQC has to date refused to operate FPPR on this basis, and has repeatedly told referrers that it believes Regulation 5 only applies to current NHS directors.
The most recent CQC letter that I have seen to a whistleblower, stating that an individual is not subject to FPPR because they were no longer a director (albeit still employed by the NHS), is dated 5 February 2018.
CQC has also not followed sound process in even some of the most serious and proven cases of misconduct by NHS directors. For example, CQC rejected Dr Kevin Beatt’s FPPR referral without reviewing relevant papers, even though he was a vindicated whistleblower.
“In a separate development, it emerged this week that the Care Quality Commission (CQC) will not conduct investigations into four former and current trust directors referred for assessment against new fit and proper person regulations.
The CQC is understood to have found insufficient evidence to substantiate allegations against the board members, although Dr Beatt said he had not been asked to provide any documents.”
After Dr Beatt won his whistleblowing Employment Tribunal claim in December 2014, the directors of Croydon Health Services NHS Trust chose to repeatedly pursue him through the Courts, all the way up to the Supreme Court. The most shocking thing in this matter is that regulators did not stop the trust despite being asked to do so. Indeed, when NHS TDA (later NHS Improvement) was asked to review the trust’s actions, it only accepted evidence from the Trust and rebuffed an offer from Dr Beatt to provide counter-posing evidence:
Regulatory reluctance to pursue senior managers who have harmed whistleblowers and suppressed disclosures is marked. I wrote as suggested by Andrew Hines in the above letter, to the relevant NHSTDA manager about reviewing the issues arising from the Employment Tribunal decision in Dr Raj Mattu’s favour. However, I never even received a reply.
In some cases, CQC has come to sweeping conclusions that there was insufficient evidence of the referred directors’ individual culpability, but it did so without investigating, even though referrers had indicated to CQC that there was evidence of such individual culpability. It is difficult to see how CQC could have fairly and safely reached such conclusions without even speaking to referrers or considering case papers.
Things have gone awry in some cases after CQC has refused to take action under FPPR. For example:
- Trusts have been placed in special measures for poor care and governance
- There has been financial mishandling costing the public purse millions, as well as disrupting patient care, necessitating investigation and inquiries
- Irregularities in competitive processes between trusts
- Criminal conviction
As a specific example, please see Diana Johnson’s letter to the Secretary of State regarding regulators’ refusal to take action in response to her referral on Phil Morley
This was followed by his trust being rated ‘Inadequate’ and placed in special measures in 2016:
Please also see this summary of evidence obtained about regulatory failure with respect to FPPR in the Paula Vasco-Knight case and NHS England’s admission that it did not share information about Paula Vasco-Knight’s suspected fraud:
Moreover, some of the individuals who were involved in serious service failures after CQC refused to take action under FPPR, have been nevertheless been recycled to other director roles in the NHS. As a worst case scenario, some failed managers have been recycled to director roles in failing organisations.
Some remain outside of the NHS but have sold their services to the NHS since leaving.
Bearing in mind the evidence arising from Bill Kirkup’s review of Liverpool Community Health NHS Trust about the serious harm that can befall patients when poor managers are unchecked, I would be grateful to know if the CQC will re-visit its decisions to reject FPPR referrals and remedy its previous arbitrary actions and omissions.
Dr Minh Alexander
Cc Steven Barclay Minister of State DHSC
Prof Edward Baker Chief Inspector of Hospitals, CQC
Rob Behrens PHSO
Diana Johnson MP
Meg Hillier MP
Public Accounts Committee
Sir Amyas Morse NAO
Sir Robert Francis CQC NED
Dido Harding Chair NHS Improvement
Sir Ian Dalton Chief Executive NHS Improvement
Kathy McLean Medical Director NHS Improvement