CQC concedes. Four years on from ‘Complaints Matter’, CQC’s whistleblowing governance is still not right

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 23 September 2018

Summary: After much spin, lengthy evasion and denial, the CQC has admitted that its approach to whistleblowing requires improvement. Time will tell if the CQC will take the necessary, serious action.

Following the publication of the report of the public inquiry into MidStaffs and the conclusion of Raj Mattu’s long running case in the Employment Tribunal, the government was under pressure to improve the NHS’ response to whistleblowers.

It responded in 2014 by commissioning the controversial Freedom To Speak Up Review, the efficacy of which remains hotly disputed.

It was of course a little odd that Robert Francis as a CQC NED was in the position of reviewing his own organisation’s performance on whistleblowing as part of the Freedom To Speak Up Review. The potential conflict of interest was not formally acknowledged in his Review report or by the government. But he did at least acknowledge that system regulators could do more within their existing powers to protect whistleblowers, and he recommended that if necessary, they should seek a change in their regulations to better protect whistleblowers.

Complementing the government’s efforts with the Freedom To Speak Up Review, the CQC put on a show of reviewing its approach to whistleblowers. This culminated in its December 2014 report ‘Complaints Matter’, in which the CQC set out sketchy evidence and insubstantial recommendations on how it would approach whistleblowing in the future.

There was more emphasis on spin. A great CQC triumph was securing the endorsement of a high profile whistleblower. This glowing recommendation was tactically released by CQC within days of the publication of the Freedom To Speak Up report:

“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.”

But whistleblowers have continued to complain about CQC’s approach. In December 2014, when CQC’s “Complaints Matter” report was published, it was revealed that CQC had outed whistleblower surgeon Shiban Ahmed to his employer. CQC maintained that this was an error on its part.

CQC’s superficial governance of whistleblowing matters continued to be a bone of contention on matters such as:

Tracking of whistleblowing events and lack of action on serious concerns

NHS gagging

Complicity in reprisal

Holding senior managers to account for whistleblower reprisal

CQC treated concerns about these sort of matters as a nuisance. It even has containment strategies for whistleblowers, myself being one.

In June 2017 Helen Rochester a care home whistleblower attended CQC’s Board meeting to challenge the CQC about its behaviour towards her in two separate whistleblowing incidents, which involved breach of her confidentiality (admitted by CQC) and later complicity in a vexatious referral to the Disclosure and Barring Service. This is information about Helen Rochester’s case and her ordeal at the Employment Tribunal:

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

UK Whistleblowing Law is an Ass: Helen Rochester v Ingham House Ltd and the Complicit CQC

In July 2017, I asked the new CQC Chief Inspector of Hospitals to meet with me about CQC’s approach to whistleblowing. This was declined:

“Thank you for your offer of a meeting, but as I am sure that you will appreciate the coming months will be a very busy time for me and reluctantly I will have to decline the offer at present. I can, however, assure you that I am fully committed to listening to the views and experiences of people who use, and work within services as we develop our future approach.”

In October 2017 I alerted Ted Baker to some issues about CQC’s approach to workforce issues, and lack of attention to Employment Tribunal judgments that are relevant to its Well Led domain. This was curtly received:

“On behalf of Professor Ted Baker, Chief Inspector for Hospitals at the Care Quality Commission (CQC), thank you for your email of 20 October 2017.

CQC will keep the suggestions you make under consideration. We do not intend to engage in further correspondence with you on this matter.”

I had responses in a similar vein from CQC’s Chair and then CEO when corresponding respectively about CQC’s approach to whistleblower confidentiality and CQC’s handling of coroners’ warnings.

Peter Wyman 21 September 2017: “At the Care Quality Commission we routinely monitor compliance with our policies but have no plans at present to conduct an audit such as you propose. I do not intend to enter into further correspondence on this matter.”

David Behan 13 October 2017: “We do not intend to engage in further correspondence with you on this matter.”

However, in December 2017, the BBC reported on Helen Rochester’s case and CQC’s approach to whistleblowers.

Rather remarkably, the CQC claimed to the BBC:

“The CQC said it had encouraged Dr Minh Alexander to “share her evidence with us, so that we can look into her allegations further”.

In the light of this reversal, I repeated the request for a meeting.

This eventual took place on 5 June 2018, with Ted Baker and also Ursula Gallagher CQC Deputy Chief Inspector, who had been assigned the lead on CQC’s whistleblowing programme. We previously exchanged correspondence in November 2017, when she had held Peter Wyman’s line about audit.

The meeting in fairness was courteous and reasonably conducted. Ted Baker took on board the seriousness of any breaches of whistleblower confidentiality and agreed to re-visit the issue of audit.

It was agreed that I would produce brief bullet points of the meeting, which I submitted the same day. Almost four months later I reminded CQC to get back to me about the accuracy of the meeting record.

This is the final agreed meeting record, received on 19 September, which appears substantively unchanged from my original draft:

Brief summary notes of telephone meeting on 5 June 2018 about CQC’s approach to whistleblowing

Also, a CQC board paper of 18 July 2018 by Ursula Gallagher gave this report on the work in progress:

CM/07/18/07 Responding to Speaking Up and Whistle blowing – Assessment of current practice and Action Plan for Improvements

The work included a paper review of cases that examined amongst other things, looking at 11 whistleblowers’ complaints about such matters such as CQC’s observance of whistleblower confidentiality.

CQC’s board report of July 2018 revealed that:

CQC has revised its guidance to inspectors

CQC aims to gather feedback from whistleblowers in future

CQC aims to improve its tracking of whistleblowing matters

CQC aims in 2019 to review the success of any changes

Interestingly, Ursula Gallagher’s board paper acknowledges that due to the pattern of whistleblowing being concentrated in certain areas, some CQC inspectors may have little or no experience of whistleblowers:

‘Some of the variation may be linked to the fact that the volumes of concerns are concentrated in certain sectors. This means that some inspectors working will rarely receive a disclosure, and this has implications for the support they require when they do.’

Importantly, these changes represent a tacit concession by CQC, that despite all the puff in 2014, it had still not got its basic whistleblowing governance in order. This is progress, even if it has all been somewhat reluctant.

I have asked for clarification about some aspects, including CQC’s plans to consult whistleblowers and what routine audits CQC will undertake in future of its whistleblowing governance.

CQC is made of many parts and individuals, some more conscientious than others. It will be interesting to see what happens next given the tone set by the arrogance and hostility of some of its most senior officers.

I recently wrote to Ian Trenholm the new CQC CEO about CQC’s inappropriate use of containment protocols. These have the effect of a contagion, spreading hostility towards dissenting voices. Trenholm seemed to imply that I ought to be grateful to have had the meeting with Ted Baker et al in June:

Letter from Ian Trenholm 14 September 2018

“I note that my predecessor attempted to engage with you in a constructive way and corresponded extensively with you, and that you were given the opportunity to discuss your issues and concerns with Professor Edward Baker, Chief Inspector of Hospitals, and Professor Ursula Gallagher, Deputy Chief Inspector Primary Medical Services and Integrated Care, in June 2018. They listened to and noted your concerns.”

These sentiments in themselves would suffice for a thesis in historiography. I will return to the substantive contents of Trenholm’s response another time.

With even more charm, Trenholm ended his missive with a warning that I should expect a cool reception in future: