By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 6 May 2018
There are considerable concerns about whether the National Guardian’s Office is fulfilling its original, core function of helping NHS whistleblowers who have been ignored and harmed.
There is controversy about the National Guardian’s exclusion criteria. For example, these criteria have resulted in whistleblowers being rejected if there are any outstanding processes in their cases. This is bizarre and potentially leaves whistleblowers in harm’s way for years.
The National Guardian’s office has been secretive and selective in what information it reveals about case review activity, but an FOI request has shown that the most frequent reason given so far for declining case referrals is that there would be insufficient learning from case review:
This could hardly be true of Dr Chris Day’s whistleblowing case which has implications for 54,000 other junior doctors. But astonishingly, his case was rejected:
It now transpires that the National Guardian has also disappointed many staff at the extremely troubled Brighton and Sussex University Hospitals NHS Trust (BSUH).
BSUH has been a governance disaster for years. Repeated coroners’ warning reports have shown very basic failings that have continued recurring.
Brighton and Sussex University Hospitals NHS Trust has generated one of the highest numbers of coroners’ warnings.
There were 21 published coroners’ reports to Prevent Future Deaths (PFDs) which related to BSUH between February 2014 and April 2017.
Nineteen of these reports had been copied to the Secretary of State.
The Care Quality Commission (CQC) placed BSUH trust into special measures after the fifteenth PFD report.
Two cases – those of Evelyn Kennedy and Jack Molyneux – are especially illustrative of the governance dysfunction. Due to the degree of patient neglect, one team in a hospital made a Safeguarding referral about another area, and a care home made a Safeguarding referral about a hospital after a patient was discharged to its care.
This is the full list of the 21 BSUH PFDs
It will be evident that 62% (13 of 21) of responses by BSUH to the PFDs are missing from the Chief Coroner’s website, assuming that responses were ever sent. There is no published BSUH response for the PFD on even Jack Molyneux’s death.
This apparent gap in the audit cycle is a widespread, national problem. Parliament was informed in January 2018, but as yet has given no indication of whether and how it will address this grave failure of accountability and transparency in public protection.
Stephen Palmer 25/02/14, 2014-0072 – copied to Secretary of State for Health
Herta Woods 26/02/14, 2014-0081 – copied to Secretary of State for Health
John Adams, 1/07/14, 2014-0293 – copied to Secretary of State for Health
Martin Hill, 22/08/14, 2014-0382 – copied to Secretary of State for Health
Linda Rignall, 19/09/14, 2014-0414 – copied to Secretary of State for Health
Isaac Bahar, 15/06/15, 2015-0229 – copied to Secretary of State for Health
Evelyn Kennedy7/05/15, 2015-0178 – copied to Secretary of State for Health
Anthony Geerts, 24/06/15, 2015-0240 – copied to Secretary of State for Health
Thelma Jones, 12/08/15, 2015-0318 – copied to Secretary of State for Health
Marion Howes, 11/02/16, 2016-0046 – copied to Secretary of State for Health
Geoffrey Moyse, 20/02/16, 2016-0067- copied to Secretary of State for Health
Graham Watts, 3/04/16, 2014-0149 – copied to Secretary of State for Health
Jack Molyneux 29/04/16, 2016 – 0168 – copied to Secretary of State for Health
Christine Street, 10/05/16, 2016 – 0177- copied to Secretary of State for Health
Jean Stockley, 12/08/16, 2016 – 0286
[17 August 2016 CQC placed the trust into special measures]
Diana Ritchie, 18/08/16, 2016 – 0296 – copied to Secretary of State for Health
Leslie Lerner, 28/10/16, 2016-0487 – copied to Secretary of State for Health
Mary Muldowney, 8/12/16, 2016-0440
Raymond Pollard, 25/01/17, 2017-0023 – copied to Secretary of State for Health
Ronald Bennett, 5/04/17, 2017-0097 – copied to Secretary of State for Health
Patricia Webb, 20/04/17, 2017-0130 – copied to Secretary of State for Health
In addition, a police investigation started after an 85 year old patient died after ingesting bleach last September.
BSUH was placed in special measure in August 2016. Its CQC ratings are largely painted in red:
There have been high profile employment disputes, with a prominent Race component. After years of struggle, two senior BME staff won Employment Tribunals against the trust.
There are concerns about whether CQC has been proactive enough in regulating Diversity and Equality matters. The trust BME Network is concerned that the CQC inappropriately washed its hands. Related to this, there are also questions about CQC’s application of Regulation 5 Fit and Proper Persons, and whether delays by CQC resulted in a lack of accountability for discriminatory practices by individuals.
BSUH was effectively taken over by the board of a neighbouring trust, Western Sussex Hospitals NHS Foundation Trust in November 2016.
This is the current BSUH board:
But there is limited evidence that the serious governance problems have abated. Most recently, the BSUH BME Staff Network published criticism of the trust CEO for arranging a Race Equality event without involving them.
This picture of troubled governance is all the more remarkable given that BSUH has effectively had a Freedom To Speak Up Guardian for years. A prototype post was established with the appointment of a ‘Patient Safety Ombudsman’ in 2010. During the years when this post operated, there was no significant governance improvement and many staff still had to take their concerns outside of the organisation, for example by whistleblowing to the CQC:
Not only is there is no evidence base for Robert Francis’ model of Freedom To Speak Up Guardians, but BSUH is an example of the model’s inefficacy.
Whistleblower suppression at Brighton
Most recently, I received information that 24 current and former BSUH staff made a formal request on 4 December 2017 to the National Guardian for help and for case review. The referral related to a range of governance and patient safety issues.
I have seen the detailed referral form that was sent to the National Guardian. I am not sharing detailed information because the situation at Brighton and Sussex is fraught and current staff are vulnerable to victimisation, save to say that the matters are serious. Broadly, the matters include patient safety issues across several departments which staff are concerned have not been fully resolved, and also issues such as an alleged pattern of victimisation for raising Race Equality concerns.
On 19 December 2017 the National Guardian’s Office (NGO) advised BSUH staff:
“We have looked at the information you have provided in your referral and have decided that your case is suitable for us to review.
We are currently undertaking case review work in other trusts and once we have completed this we will make a decision regarding when can begin work on your case. Because of our workload and limited resources it will be a few weeks before we can do this, but we will contact you to let you know when we are able to start.”
Email from Case Review and Governance Manager, National Guardian’s Office 19 December 2017
BSUH staff chased for a progress update on 17 January 2018, and were told that work was unlikely to start until Easter.
“I cannot yet give you a date as to when we will be in a position to start; given our current workload on existing reviews we are unlikely to be able to begin before Easter, but I will, of course, inform you as soon as we are ready to begin.”
Email from Case Review and Governance Manager, National Guardian’s Office 17 January 2018
BSUH staff chased again on 12 March 2018 and were told:
“The NGO will shortly contact the trust to discuss how we can provide support to improve its speaking up culture, procedures and policies through our case review process. Once this discussion has taken place I will be able to give you more information about timescales.”
This implied that no action had been taken for almost three months following referral.
On the 6 April 2018, BSUH staff received this extraordinary response from the NGO:
“Following a recent conversation between Dr. Hughes and the trust CEO regarding our intention to undertake a review we have decided to undertake this in a few months’ time. This is to give time for improvement work at the trust, including in relation to speaking up arrangements, to take effect and so allow our review to obtain a more accurate picture of whether any necessary improvements are happening.
This is particularly important because our review will wish to compare any such developments with how the speaking up culture, policies and procedures were operating at the time of your referral.
The purpose of our reviews is not only to highlight the need for any improvements and make recommendations to that effect, but also to commend any good practice we find. Therefore, if positive changes have begun by the time a review commences we will seek to highlight them to help ensure that they continue.
We will continue to closely monitor the speaking up culture at the trust; if you have any additional information in relation to your referral please pass this to us. Also, should you or any of your colleagues have new issues that arise in relation to speaking up at the trust we would advise that you bring these to the attention of the Freedom to Speak Up Guardian.”
The deeply unhappy BSUH staff protested to the National Guardian and expressed the view that the NGO had ‘colluded’ with their employer and that this treatment was additional indication of ‘institutional racism’.
On 18 April 2018 BSUH staff received an even more extraordinary letter from the National Guardian herself, which asserted that case review “could inhibit the organisation from making the improvements we understand are currently underway at the trust”.
Applying this stunning logic to the criminal justice system, to Safeguarding of children, or to Safeguarding of vulnerable adults would save taxpayers a fortune. Just ask suspects to do better and give them a chance to shine up their story. And don’t worry about the putative victims, because they can still whistleblow to the same ineffective internal structures that they drove them to an external agency. Sorted.
Clearly, this situation is very wrong. Robert Francis emphasised in his report of the Freedom To Speak Up Review that:
“The officer [National Guardian] would need to operate in a timely, non-bureaucratic way. He/she would not take on the investigation of cases themselves, but would challenge or invite others to look again at cases and would need sufficient authority to ensure that any recommendations made were taken seriously and acted upon. The office should be more nimble…”
Nowhere is it written anywhere in the Review that ‘Ye shall dangle distressed whistleblowers on a string and then ye shall additionally harm them with delay upon delay”.
But why might the National Guardian make such a remarkable decision and such striking claims?
Is it because Marianne Griffiths the CEO of Western Sussex and BSUH’s sister trust, Western Sussex Hospitals NHS Foundation Trust, are political sacred cows?
Griffiths was one of the NHS managers who drank deeply of Jeremy Hunt’s Virginia Mason collaboration :
“Four years ago, the leadership team of Western Sussex Hospitals visited one of the safest and best performing hospitals in the world to learn the secrets of their success.
At the Virginia Mason Institute in Seattle, USA, they discovered a hospital where staff were highly engaged and empowered to make improvements every day with expert training and support.
For Marianne Griffiths, chief executive of Western Sussex Hospitals, the visit was a “professional epiphany” and inspired the development of the trust’s leading Patient First programme.”
Hunt has repeatedly held Griffiths up as an exemplar when proclaiming his patient safety pretensions:
|“Or Marianne Griffiths at Western Sussex who created the strongest learning culture I have seen anywhere in the NHS by modelling her Trust on Virginia Mason hospital in Seattle.”
Jeremy Hunt’s speech at NHS Providers conference 30 November 2016
Jeremy Hunt’s speech to Conservative Party conference 2 October 2017
Jeremy Hunt in a parliamentary debate on clinical leadership 20 December 2016, Hansard
Some might see a sub-text of spinning about private sector quality and efficiency. What Hunt never mentions, when implicitly denigrating the NHS by unfairly comparing it to Virginia Mason, is that the NHS delivers proportionately far more care on starvation rations.
It would undoubtedly be embarrassing for Hunt, after all the propaganda, if a trust under Griffiths’ control was reviewed by the National Guardian. This is would be on top of a previous embarrassment that arose when Virginia Mason failed a safety inspection:
The serious and persisting failures of whistleblowing governance at BSUH are also embarrassing to Hunt because they are heavyweight evidence that his Freedom To Speak Up Guardian model simply does not work in the most dysfunctional organisations, and it leaves patients exposed.
Delay by the National Guardian allows for a damage limitation exercise. Typically in whistleblowing cases, delays allow employers to get their stories straight. Delays allow employers to to intimidate and wear staff out. Delays allow employers to sprinkle some gags around. And delays allow employers to cultivate a few tame individuals who can be used to undermine whistleblowers.
The Freedom To Speak Up debacle is dreadful but by no means unique. It follows a very familiar pattern of government behaviour across many jurisdictions, in which elaborate political theatre is staged to give a semblance of good governance and protection, when in reality the suppression and neglect continues. Law may be deliberately poorly drafted, or shiny, promising law is enacted but crippled because no effective enforcement infrastructure is provided.
Governments will always seek political advantage in handling whistleblowing, and it is parliament’s job to ensure that there are better checks and balances to safeguard the public interest against this self-interest.
Much, much better whistleblowing law is needed , as is a genuinely independent enforcement infrastructure, that is not under the control of governments with interests to protect.
As for the National Guardian, she ought to stop beating about the BSUH and prove her purported independence by reviewing the trust without any further delay.
UPDATE 8 JUNE 2018
After the National Guardian’s decision not to keep a promise to progress a case review at Brighton & Sussex was revealed as above, the Health Service Journal looked further into the matter. When it questioned the NGO, the National Guardian reportedly stated:
“We have subsequently sought to expedite the timeframe, but the trust has indicated that it is unable to accommodate this request. Currently, therefore, we are looking to carry out the case review later in the year.”