Regulation 5, Fit and Proper Persons: Dissecting CQC’s Dissembling

Disraeli opined: “There are three kinds of lies: lies, damned lies, and statistics.” Ironically it is the UK Statistics Authority that is the most trusted ALB. Pity the same cannot be said of the CQC where it appears clarity and openness are seemingly rare commodities.

The CQC has a history of deliberate deception. A well-known CQC lie of omission at Basildon consisted of a pretence at being hard hitting, whilst deliberately withholding facts.

Daily Mail Basildon CQC 2010

 

CQC’s application of Regulation 5 Fit and Proper Persons (FPPR) is worth examining. It would seem that some powerful wrongdoers, have been protected.

This is how the regulation, which was introduced in November 2014 is set out in law:

 

Fit and proper persons: directors

5.—

1.   This regulation applies where a service provider is a body other than a partnership.

2.   Unless the individual satisfies all the requirements set out in paragraph (3), a service provider must not appoint or have in place an individual—

a.   as a director of the service provider, or

b.   performing the functions of, or functions equivalent or similar to the functions of a director.

3.   The requirements referred to in paragraph (2) are that—

a.   the individual is of good character,

b.   the individual has the qualifications, competence, skills and experience which are necessary for the relevant office or position or the work for which they are employed,

c.    the individual is able by reason of their health, after reasonable adjustments are made, of properly performing tasks which are intrinsic to the office or position for which they are appointed or to the work for which they are employed,

d.   the individual has not been responsible for, been privy to, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of carrying on a regulated activity or providing a service elsewhere which, if provided in England, would be a regulated activity, and

e.   none of the grounds of unfitness specified in Part 1 of Schedule 4 apply to the individual.

4.   In assessing an individual’s character for the purposes of paragraph (3)(a), the matters considered must include those listed in Part 2 of Schedule 4.

5.   The following information must be available to be supplied to the Commission in relation to each individual who holds an office or position referred to in paragraph (2)(a) or —

a.   the information specified in Schedule 3, and

b.   such other information as is required to be kept by the service provider under any enactment which is relevant to that individual.

6.   Where an individual who holds an office or position referred to in paragraph (2)(a) or (b) no longer meets the requirements in paragraph (3), the service provider must—

a.   take such action as is necessary and proportionate to ensure that the office or position in question is held by an individual who meets such requirements, and

b.   if the individual is a health care professional, social worker or other professional registered with a health care or social care regulator, inform the regulator in question.

http://www.legislation.gov.uk/uksi/2014/2936/contents/made

http://www.legislation.gov.uk/uksi/2015/64/pdfs/uksi_20150064_en.pdf

 

 

Since 2014, CQC has issued three version of its guidance on FPPR:

CQC FPPR guidance November 2014

CQC FPPR guidance March 2015

CQC FPPR guidance January 2018

 

As CQC itself admitted in its original FPPR guidance of November 2014, the regulation arose from disasters and its intended purpose was to protect patients from harm:

“Regulation 5 has been introduced as a direct response to the failings at Winterbourne View Hospital and the Francis Inquiry report into Mid Staffordshire NHS Foundation Trust 3, which recommended that a statutory fit and proper persons requirement be imposed on health service bodies.” 

But CQC has applied inconsistent arguments and adopted various stratagems in order to avoid enforcing FPPR.

 

1.CQC has often claimed that under the regulation only providers, and ultimately the Chairs of providers, can determine whether their directors are Fit and Proper Persons.

This is nonsense of course, and it is merely CQC’s convenient interpretation of the regulations. There is nothing in the regulations which prevents CQC from taking a view on the fitness of regulated organisation’s directors. CQC chooses to wash its hands as a way of avoiding enforcement.

Moreover, CQC’s disingenuous claim falls if the Chair of a provider is referred under FPPR – as the logical conclusion is that CQC must take a view of a Chair’s fitness as there is no one else available in the hierarchy to do so.

Logically, CQC cannot possibly regulate FPPR, and assure itself that a provider has complied with the regulation, without making a judgment on whether a provider has made sound decisions on FPPR.

This point was conceded in CQC’s original 2014 guidance on FPPR:

 

“It is a breach of the regulation to have in place someone who does not satisfy the FPPR. Evidence of this could be if: 

• A director is unfit on a ‘mandatory’ ground, such as a relevant conviction or bankruptcy. The provider will determine this. 

• A provider does not have a proper process in place to enable it to make the assessments required by the FPPR.  

• On receipt of information about a director’s fitness, a decision is reached on the fitness of the director that is not in the range of decisions that a reasonable person would make.” 

 

So, CQC was saying here that it would take a view on whether a provider had made a reasonable decision about the fitness of a director. To do so, CQC would need to have a view on that director’s fitness.

CQC’s guidance of January 2018, produced after a purported review undertaken due to sustained criticism of CQC’s behaviour, additionally states:

“CQC does not determine what is and what is not misconduct or mismanagement. But, when we consider whether Regulation 5 has been breached, we will make a judgement about the provider’s decision; for example, whether or not the provider acted reasonably when it made its determination.” 

In reality, CQC has always known that it has the power to effectively veto any flawed decisions by providers about their directors’ fitness. At a teleconference with CQC attended by Mike Richards former CQC Chief Inspector of Hospitals and his entourage in December 2014, Richards indicated that CQC would be able to force trusts to remove unfit directors. He stated that whilst there was no direct power afforded by Regulation 5 itself to do so, CQC could lever compliance using other regulations. The fact is, CQC has chosen not to do so.

CQC hypocrisy in its handling of the fitness of the most powerful individuals is thrown into relief by its memoranda of understanding with professional regulators – in which CQC readily commits to referral of any lowly frontline staff if it has concerns that they are unfit to practice. For example, in CQC’s memorandum of understanding with the GMC states:

“8. In particular, the CQC will refer to the GMC: a. Any concerns and relevant information about a doctor which may call into question his or her fitness to practise.”

 

2.CQC has contradicted its claim that it cannot make judgments on fitness by refusing to present some FPPR referrals to the providers in question.

Although CQC has insisted that the judgment about directors’ fitness can only be made by the providers themselves, when it has suited, CQC has in fact made decisions that some referrals were meritless. It refused to present these cases to providers.

In doing so, CQC undermined its excuse that it has no remit for making determinations of fitness.

In some FPPR cases which it has refused to pass to providers, CQC has actively avoided evidence of unfitness despite being informed that such evidence exists.

CQC’s latest FPPR guidance of January 2018 ties itself up in contradictory knots. On the one hand the guidance admits that CQC may decide to take no further action in response to FPPR referrals:

“When we receive information about an individual director or a board of directors, we may need to respond by convening a management review meeting (MRM) to determine whether the information indicates a potential FPPR concern.”

“We will determine whether the information is concerning in the context of what we already know about the provider in respect of the quality and safety of care. If we do not consider the information to be significant, the MRM will conclude that no further action is required.” 

On the other hand, the guidance also states that CQC will act only as a passive recipient and transmitter of concerns about provider directors’ fitness:

“CQC makes no judgement about the information, or the fitness of the director. Once we have obtained consent, if applicable, we will send the information of concern regarding the fitness of a director to the provider.” 

This seems a strange position to take when CQC makes judgements about mismanagement of services all the time, with respect to its ‘Well Led’ inspection domain.

A formal complaint has been made to CQC about its arbitrary past failures to present FPPR referrals to providers, and the inconsistency inherent in its guidance and various claims

3.CQC has staged faux FPPR investigations and accepted manifestly flawed evidence from providers in support of their directors’ fitness

For example, CQC triggered an investigation on FPPR at Southport and Ormskirk Hospital NHS Trust. CQC allowed the trust to control the investigation, and CQC accepted the investigation’s findings as valid. In the relevant inspection report, CQC even claimed that the FPPR report was “thorough and comprehensive”.

A subsequent report by the National Guardian’s Office revealed that a cultural review of the trust had criticised the FPPR investigation lauded by CQC as “thorough and comprehensive”, because the investigators had not actually spoken to the whistleblowers whose concerns triggered the investigation.

It would seem that the triggering of the investigation at Southport and Ormskirk had more to do with spinning an appearance and undermining whistleblowers, than a genuine attempt to implement FPPR.

Similarly, at St Georges, Mike Richards CQC’s former Chief Inspector of Hospitals accepted questionable evidence from the trust which claimed that Paula Vasco-Knight, a chief executive who had been criticised by an Employment Tribunal for whistleblower reprisal, had learnt her lesson and was a reformed character.

FPPR closure letter by Mike Richards 16 February 2016

Whilst justice must allow for mitigation in order to call itself justice, upon what authority and evidence base did the CQC accept such improbable claims of reform? Vasco-Knight’s criminal offending and misconduct has been of a pre-meditated nature, with calculated deceit. She has shown attitudes of entitlement and repeatedly sought to blame others for her antisocial behaviour. In the whistleblower reprisal affair at Torbay, she claimed that she had been treated with ‘disrespect’ and implied that the whistleblowers had treated her less favourably because of her Race.

“on a personal level I found the allegations as nothing less than personal slander and I wonder if a white middle-class male chief executive officer would have been treated with such disrespect.”

In the criminal fraud proceedings she sought to blame a colleague from NHS England until a late stage.  Even after conviction and a suspended jail sentence, she resisted the authorities’ attempts to recover the proceeds of her crime.

Indeed, the Employment Tribunal judgment from the whistleblower scandal concluded that Vasco-Knight was not a reliable witness. 

Such a pattern of behaviour would normally raise questions about an individual’s fitness for working with children and vulnerable adults, let alone be in charge of organisation with thousands of lives in its hands.

So upon what grounds did St Georges, Mike Richards and the CQC consider themselves to be qualified to pronounce on the assessment of remorse, personality and its purported mutability in Vasco-Knight’s case?

Parole Board members must be qualified to serve and make highly complex risk management decisions about offenders. What competencies do CQC staff have to make equally serious decisions about providers’ compliance with FPPR?

Regulation 5 opens the door to mitigation in that it states that reasonable adjustment must be made for health issues that throw doubt on fitness. For example, misconduct could perhaps be mitigated by temporary loss of reason – such as an exceptional acute manic episode, when the illness is otherwise well controlled.

Regulation 5 does not state that an apparent apology and indication of regret is sufficient mitigation for past wilful misconduct and serious breaches of the NHS managers’ code of conduct.

The fact Richards et al accepted flimsy evidence of Vasco-Knight’s purported reform was a measure of their willingness to give her a pass, and not the merits of the case.

 

4.CQC has shown bad faith by triggering investigation of weak FPPR cases but in contrast has avoided doing so in much stronger cases, despite robust evidence from Courts.

CQC cynically triggered an FPPR investigation at Derbyshire Teaching Hospitals NHS Foundation Trust on a case which had already been rejected by the Employment Tribunal and the Employment Appeal Tribunal. Unsurprisingly, the FPPR referral was not upheld.

This led to a predictable outcry against the expenditure of massive public resource on the exercise,  and sympathy for the target of the FPPR referral.

In contrast, CQC did not trigger an equivalent investigation into an FPPR referral by fully vindicated whistleblower Dr Kevin Beatt, in whose case the ET judgment that gave very detailed findings on wrongdoing by trust directors, and by those who operated under their control. Dr Beatt is concerned that CQC did not properly explore his referral and that it failed to examine all relevant documents.  Similarly, CQC did not trigger an investigation about St George’s handling of Regulation 5 with respect to Vasco-Knight.

One interpretation of CQC’s inconsistency is that in arranging for selective investigation of a weak case, it sought to discredit whistleblowers and turn opinion against the usefulness of Regulation 5, thus laying the foundations for further inaction.

 

5.CQC has shown bad faith by refusing to account for its actions under FPPR and by misrepresenting its activities on FPPR

CQC has been ultra-secretive when handling many FPPR referrals. It came under criticism for ignoring referrers, taking excessive long to respond and giving little information to account for its decisions.

In the case of the Vasco-Knight referral, CQC crucially failed to inform me as the referrer of its decision, which removed the right of meaningful reply and allowed St Georges to promote Vasco-Knight from COO to CEO without any fuss and opposition.

After CQC was later caught in the glare of the scandal caused by revelations of Vasco-Knight’s fraud, it  claimed that it would it re-visit the FPPR process. It spun this line through the Health Service Journal:

Screen Shot 2018-03-27 at 13.02.01.png

This was a porkie because by that point, Vasco-Knight had been sacked by St Georges, and by CQC’s own previous claims, no longer fell under the jurisdiction of Regulation 5 because she was not a current director.

I informed Robert Francis about this irregularity by CQC:

 

“To Sir Robert Francis QC 30 July 2016

Dear Sir Robert,

Sanctions against NHS managers

Many thanks for getting back to me, it was much appreciated.

To keep you updated, I copy below a blog that I have written about CQC’s handling of FPPR to date, which was posted yesterday.

This follows a discovery that although St. Georges made public statements about “suspending” Paula Vasco-Knight, and CQC made related comments that it was examining St George’s process for appointing her with respect to FPPR, she actually appears to have been sacked by St. Georges on the day of the suspension

The blog contains links to uploaded documents, but for convenience I attach the disclosure by St. George’s, which was sent to me on 27July.

CQC had previously, on 16 February, shut down an FPPR referral on Paula Vasco-Knight.

As CQC had previously informed me that it can only apply FPPR process to current directors, and specifically advised me that it no intention or remit to operate a disclosure and barring service for ex NHS directors who might return, I was perplexed by CQC’s subsequent announcement of its intention to re-open its examination of the FPPR process relating to Paula Vasco-Knight, if she had in fact been sacked.

With best wishes

Dr Minh Alexander

cc Katherine Murphy Chief Executive Patients Association”

 

 

Subject Access Request data revealed that he too challenged CQC about its dissembling:

Screen Shot 2018-03-27 at 12.11.27

 

6.CQC has violated its own policies in not treating whistleblower reprisal as a serious form of misconduct under FPPR

CQC has generated endless hot air on the importance of fostering an open culture and of protecting whistleblowers. It tells providers that they must not victimise whistleblowers or put them in fear of reprisals: 

“The arrangements should reassure staff that their concerns will be received supportively and addressed appropriately without fear of reprisals of any kind.”

But is this is sincere? CQC itself is reluctant to listen to or support whistleblowers, and so tacitly condones such behaviours by provider bodies.

CQC regularly fails to act upon about 50% of whistleblower contacts, as repeatedly evidenced in CQC board papers

CQC FOI data shows that CQC fails to act on even the most serious whistleblower disclosures

CQC insists it cannot investigate individual cases, but largely fails to investigate whistleblower clusters, even though it has powers of thematic review it has powers of thematic review

CQC has breached whistleblowers’ confidentiality but refuses to audit its practice in this area

CQC refuses to systematically inspect gags imposed by providers on workers,  which organisations use to silence disclosures and to conceal evidence of whistleblower reprisal

 

Indeed, CQC is too close to providers to make genuinely impartial decisions. It recruits provider directors as inspection Chairs.  Enforcing FPPR would be the equivalent of chopping off a hand – something contemplated only if something more prized may be chopped off. Also, some senior managers know where the centre has buried its bodies.

Mike Richards confirmed at the meeting in 2014 that CQC would treat whistleblower reprisal as a form of misconduct under FPPR, but added that it would depend on the seriousness of the reprisal.

But CQC has rejected FPPR referrals which raised whistleblower reprisal as an issue, even when Courts have made findings of serious reprisal. For example, in the cases of Clare sardari and Dr Kevin Beatt, both fully vindicated whistleblowers.

This is a disastrous betrayal of the public interest and of justice.

Serious whistleblower reprisal is essentially a refined form of psychological imprisonment and torture.  There are no physical walls but whistleblowers and their families are subjected to intense fear and uncertainty, usually for years. People live in fear of the next letter, phone call, false allegation or petty punishment. They are trapped in endless processes. In some cases, whistleblowers may be suspended and physically barred from access to the workplace and forbidden from contacting colleagues. The consequences of living under prolonged attack are often life changing.

The CQC is perfectly aware of the seriousness of these matters. It conducted a charade of listening to whistleblowers’ stories, which it spun with insincere sentimentality.

CQC’s trivialisation of reprisal, in its lack of action on FPPR, is therefore a wilful act.

Most seriously of all, whistleblower reprisal is a signal to others not to speak up. The CQC knows this, as demonstrated in all its copious statements acknowledging that a positive culture is needed to encourage disclosures and openness.

In “Complaints Matter” (2014) , CQC’s formal report on complaints and whistleblowing, Mike Richards made these fine sounding claims:

“We will hold health and social care services to a high standard of listening and acting on people’s concerns. We are committed to apply the same standards to ourselves and we know we need to do more to explain to people what we will do with their information if they tell us about their experience of care.”

It’s time for all of us – regulators, providers, professionals and commissioners – to make the shift to a listening and learning culture that encourages and embraces complaints and concerns as opportunities to improve the quality of care.”

In 2015 Ellen Armistead, who took over the Chair of CQC’s FPPR panel in 2016, wrote a blog on the importance of ‘Speaking Up for Whistleblowers’. 

The result of CQC improperly dismissing FPPR referrals from harmed whistleblowers is that it has made whistleblower reprisal acceptable, and CQC must be fully aware of this.

This is deplorable behaviour by a regulator which should be upholding standards.

CQC’s behaviour is further questioned by another body’s robust action over the Winterbourne View scandal. The Insolvency Service disqualified Mr Cruickshank the managing director of Castlebeck, the company which ran Winterbourne View Hospital, for not listening to whistleblowers. And that’s just for failing to listen to whistleblowers, not grossly victimising them.

CQC has acknowledged Regulation 5 was in part prompted by the failures at Winterbourne View. But what would have happened if CQC, and not the Insolvency Service, had presided over the Winterbourne View FPP issues? Mr Cruickshank  would probably have been recycled, promoted and invited to chair CQC inspections by now.

Most recently, the Public Accounts Committee noted that the number of whistleblowing disclosures to CQC had fallen, and the Committee Chair has urged CQC to investigate this.

“Even then, it must ensure the information feeding those systems is adequate to flag the early signs of poor care. That means investing time in building relationships at the frontline with Healthwatch groups, CCGs and others.

The recent decline in whistleblower numbers requires investigation; the Commission must act to understand why this has happened and ensure people can feel confident coming forward with what is often critical information.”

Comments by Meg Hillier MP 9 March 2018

 

But is it really surprising if health and care staff are becoming more reluctant to disclose to a regulator who may betray them?

In February 2015 Robert Francis advised that FPPR should be trialled as part of the mechanisms for protecting whistleblowers, in lieu of managerial regulation. 

By October 2016 he was reported to be having second thoughts and suggesting that FPPR might need to be abandoned.

Screen Shot 2018-03-27 at 15.55.53.png

Although CQC has put on a show of reviewing its application of FPPR, the culture of the organisation and its master the Department of Health and Social Care is such that measures short of formal regulation will continue to be gamed.

It is time to re-visit managerial regulation and rein in political abuses of a public service.

 

RELATED ITEMS

Open letter by Clare Sardari, whistleblower, to the governors of St Georges

A Chief Inspector Doesn’t Call

FPPR: CQC has lost all moral authority but what will the National Guardian do?

 

 

 

 

 

 

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