The unfair sacking of Andrew Smith, NHS whistleblower and trade union representative. A heady cocktail of tainted ingredients. Or how CQC, NHS Improvement & Mid Essex Hospital Services NHS Trust worked together on FPPR.

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 7 February 2019

Summary

 The government and its arms length bodies continue to protect poor senior NHS managers. The Kark FPPR Review report was published yesterday, but is a curate’s egg. Matt Hancock has wasted no time in undermining its findings and recommendations, and has astonishingly delegated the response to Kark’s report to one of the most heavily conflicted bodies, NHS Improvement. On the same day as Kark’s report was published, CQC shut down yet another FPPR referral about a case of proven serious whistleblower reprisal. This related to Mid Essex Health Services NHS Trust. One of the trust managers criticised by the Employment Tribunal in this case is employed as an NHS Improvement Director. CQC also issued a puff piece in July 2018 extolling this individual’s virtues, after the critical ET ruling of whistleblower reprisal in March 2018. Whatever propaganda gushes from the National Guardian’s Office, Covering Up, not Speaking Up, is business as usual.

Background and the Kark FPPR Review

Yesterday, the government published the report of the review by Tom Kark QC on CQC Regulation 5 Fit and Proper Persons.

 A review of the Fit and Proper Person Test Commissioned by the Minister of State for Health by Tom Kark QC and Jane Russell (Barrister)

The review had been ordered by former Minister of Health Steve Barclay after mounting pressure about the continued recycling of poor NHS senior managers, and the CQC’s failure to take effective action under Regulation 5 to stop this. The recycling of failed directors of Liverpool Community Health NHS trust was one of the catalysts.

In January 2014 as part of the government’s attempts to manage the news on the MidStaffs deaths disaster, it claimed that FPPR would be trialled but if that was not successful, it would “legislate” to ensure that there was an effective barring mechanism:

Kark was of course, Counsel to the Mid Staffs Public Inquiry.

Kark’s FPPR review report was originally scheduled to be published in October 2018 but was delayed.

An FOI request by @JadeTaylor8  revealed that Kark’s report had been repeatedly revised and that ‘feedback’ was sought from many parties including the NHS managers’ union, Managers in Partnership.

However, whistleblower participants were not given the same opportunity to comment prior to publication. A specific request  for whistleblower participants to be allowed to comment before publication was ignored.

There is a lot to say about Kark’s report. In brief it provides some interesting insights such as a glimpse into CQC’s Well-Led inspections, but it ducks and dives, makes some excuses for the CQC despite recent criticism of CQC’s FPPR process by the PHSO which as far as I can see is not even mentioned by Kark. The report also gives the Department of Health and Social Care a pass, and strews about some lawyerly escape clauses.

Nevertheless Kark made some potentially interesting recommendations:

The trouble is, the government shows little sign of good faith in response. The Secretary of State paid lip service yesterday to preventing ‘morally abhorrent’ mistreatment of whistleblowers.

But according to the Health Service Journal (HSJ), Hancock has reportedly accepted  only two of Kark’s less threatening recommendations: 

1. Definition of core competencies for NHS directors

2. Establishment of a central database on NHS directors’ experience and previous employment, including disciplinary and grievance issues.

Moreover, the Department of Health and Social Care initially claimed to HSJ that the government’s proposals did not include striking off poor managers:

“However, a DHSC spokeswoman told HSJ the government’s proposals did not include the ability to “strike off” directors or managers.”

 A second HSJ article yesterday   stated:

“The government has delayed making a decision on whether to introduce a regulator for NHS managers, after a review recommended those guilty of misconduct should be banned from sitting on NHS boards”

and it reported that Hancock had washed his hands by passing these decisions to NHS Improvement.

This was an especially contemptuous touch by Hancock, given that Kark had acknowledged that bodies like NHS Improvement are a part of the problem by suggesting that the concept of Fit and Proper Persons should extend to such bodies.

Mid Essex Hospital Services NHS Trust and Andrew Smith

The CQC chose yesterday to demonstrate that it was very much business as usual, by responding in its usual fashion to an FPPR referral on the directors of Mid Essex Hospital Services NHS Trust, for their actions towards Andrew Smith.

Andrew Smith was an RCN steward at Mid Essex who raised concerns, some about patient safety, in the course of his duties as a trade union rep. The Employment Tribunal (ET) concluded that “he was doing no more than his job as a trade union representative”.

Alas, Mid Essex lacked the organisational integrity and maturity to deal with this fairly and reasonably. It suspended him in 2014 and then sacked him a year later in May 2015  – after the Freedom To Speak Up Review was published. The ET judgment referred to a “witch hunt” against Smith.

Mid Essex Hospital Services NHS Trust classically not only persecuted and unfairly sacked Smith as a whistleblower, but it wasted public money by futilely fighting an Employment Tribunal ruling on 5 March 2018 in his favour. It prolonged the immense stress that he suffered by not reasonably acknowledging fault. But the trust lost again, and the EAT sent the case back to the ET which decided once more in his favour.

EAT Judgment 5 March 2018, Mid Essex Hospital Services NHS Trust v Mr A Smith UKEAT/0239/17/JOJ 

ET judgment 16 July 2018, Mr A Smith v Mid Essex Hospital Services NHS Trust 3202272/2015

The trust persisted, through its appeal to the EAT, in claiming that Smith had been dismissed because he made a nuisance of himself, and not because he whistleblown. It contended that the ET had shown incomplete consideration of the case in this respect.

The EAT judge accepted that the ET had not shown all of its reasoning for its verdict, but did not consider that the omission invalidated the whole. He sent it back to the ET for a fuller judgement.

The ET subsequently concluded on 16 July 2018:

On this basis, I asked CQC to review the fitness of the trust directors responsible for causing detriment to Andrew Smith and for prolonging his ordeal in the courts at public expense. My request to CQC of 28 July 2018 is provided in the appendix below.

This is CQC’s FPPR decision letter yesterday from CQC Deputy Chief Inspector Ellen Armistead:

CQC FPPR outcome letter from Ellen Armistead on Andrew Smith v Mid Essex 6.02.2019

In short, CQC has taken nearly 7 months to tell me that it will not be taking action because:

1. The Trust has informed CQC that the directors of nursing most closely associated with the Smith case no longer work for any NHS provider:

“The Trust has informed us that the Director of Nursing and Deputy Director of nursing who were referenced in the employment tribunal are no longer working for an NHS provider and therefore as they are no longer employed in a director role, they are outside the scope of Fit and Proper Person Requirement (regulation 5).

2. The trust has told the CQC that it has pulled its whistleblowing governance socks up:

“ The local team engaged with the Trust again on the well-led inspection in October 2018 to follow up on the outcome of the employment tribunal. The Trust informed us they have undertaken work following the judgements including group work focus on the whistle blowing policy at the trust. The development of the policy has included all stakeholders including staff site representatives as well as non-union affiliated staff representatives. There has been the full implementation of the freedom to speak up network. The Trust has nominated a NED for FTSU. There has been a dignity and respect campaign in 2017 and a further raising of executive’s visibility. The inspection team received positive feedback at inspection, particularly about the daily staff briefings that are given by executives. There has been ongoing work against an action plan in response to the staff survey. The trust acknowledged an historic disconnect between staff side representatives and senior trust management. They were also aware that further work was required with staff side. There has been an increase in executive attendance at staff side meetings as well as a more formal approach to contact which the trust believes is working. The local team are continuing to engage with the Trust”

By focussing only on the nurse managers specifically cited by the ET, CQC glosses over who signed off the continuing mistreatment of Andrew Smith through the Employment Tribunal process.

The trust nurse managers who were explicitly criticised in the ET’s original judgment of 5 March 2018 on the Smith case were Cathy Geddes Chief Nurse and Deputy Chief Executive and Lyn Hinton, deputy chief nurse:

“293. The reason for dismissal was, we conclude, on the balance of probability, that Mr Smith had made the protected disclosures relied upon. This is what was in the mind of Ms Geddes and Ms Hinton in their decision making. It was not the content of any one disclosure in particular, it was the collective of the disclosures, the fact that he had made them at all, that was in the mind of Ms Hinton and Ms Geddes.”

If Kark’s FPPR review recommendations had been accepted in full by the government, this would have included his red lines that specify whistleblower reprisal as a form of serious misconduct. These managers above would be under serious scrutiny in such a system. But to all appearances, they have not been put through a proper process of accountability.

Worse still, what the slippery CQC failed to acknowledge to me yesterday was that Cathy Geddes, according to her LinkedIn page,  is currently an NHS Improvement Director of Improvement and Quality, NHS Midlands and East region.

So there we have it. The body to whom Hancock has handed the critical decision on which of Kark’s recommendations will be adopted is still brazenly sheltering those proven to have seriously harmed whistleblowers.

Ten days before the final ET verdict against Mid Essex in July 2018, CQC published a questionable report  which puffed various senior NHS managers for making a difference, including Cathy Geddes. CQC even picked out quotes by Geddes about the importance of building a culture in which it was possible for staff to safely challenge things:

Hand up, anyone who thinks NHS Improvement will volunteer its own directors, and those of other dubious bodies like CQC, for scrutiny under FPP?

The repeatedly sleazy behaviour of NHS regulators, and their master the Department of Health and Social Care, brings our long suffering NHS into disrepute. This is convenient for those who do not wish our NHS well.

But hark, do not despair entirely. Geddes is “passionate about working with others to improve care for our patients.”

UPDATE 9 JANUARY 2020

Andrew Smith asked the National Guardian’s Office last year to do a case review on his whistleblowing experience at Mid Essex Hospital Services NHS Trust.

His request was declined despite the fact that he had been vindicated by both the Employment Tribunal and the Employment Appeal Tribunal.

He believes he has been blacklisted and has suffered financial hardship. As is the usual turn of events, compensation received through the Employment Tribunal has not made up for all losses suffered as a result of being unfairly sacked.

He has asked the National Guardian to honour a 2017 promise to seek the reinstatement of unfairly sacked NHS whistleblowers. He has also repeated his request for a case review:

Andrew Smith, unfairly sacked NHS whistleblower and trade union rep, asks the National Guardian again for help

RELATED ITEMS

Letter 7 February 2019 to Dido Harding Chair of NHS Improvement

Dear Dido,

NHS Improvement’s role in recycling managers with a proven track record of whistleblower reprisal

I write following the publication of the Kark FPPR Review report yesterday, and the Secretary of State’s reported decision to put NHS Improvement in charge of deciding which of Tom Kark’s recommendations will be accepted.

I believe NHS Improvement still employs an NHS Director who was personally criticised by the Employment Tribunal for the unfair dismissal of a whistleblower and trade union representative at Mid Essex Hospital Services NHS Trust. Please follow the link below for the relevant evidence.

I wonder if NHS Improvement can advise what, if anything, it will do about this.

I ask you to bear in mind that falling across this matter is the terrible shadow of the Gosport War Memorial Hospital deaths disaster, in which hundreds of unnatural deaths followed the suppression of whistleblowers,

With best wishes,

Minh

Dr Minh Alexander

Cc Tom Kark QC

      Matt Hancock Secretary of State for Health

      Stephen Hammond Minister for Health

      Caroline Dinenage Minister for Social Care and MP for Gosport

Letter 8 February 2019 to Peter Wyman Chair of CQC:

BY EMAIL

Peter Wyman

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

Sorry is the hardest word: CQC, Paula Vasco-Knight and Regulation 5 Fit and Proper Persons

What could a new whistleblowing law look like? A discussion document

Whistleblowing in the NHS isn’t fixed yet, and this leaves patients exposed. An overview of unfinished policy business.

APPENDIX

FPPR referral to CQC about Mid Essex Health Services NHS Trust directors and the mistreatment of Andrew Smith, whistleblower:

BY EMAIL

Ian Trenholm

Chief Executive

Care Quality Commission

28 July 2018

Dear Mr Trenholm,

FPPR referral on directors of Mid Essex Hospital Services NHS Trust in regards to serious whistleblower reprisal

I understand that you have taken up or are about to shortly take up post at CQC.

I write to ask the CQC to look into the actions of the relevant directors of Mid Essex in respect to the unfair dismissal of an RCN steward for whistleblowing.

This is the relevant final ET judgment in the case of A Smith v Mid Essex:

https://minhalexander.files.wordpress.com/2018/07/a-smith-v-mid-essex-final-judgment-mr_a_smith_v_mid_essex_hospital_services_nhs_trust_32022722015_remission.pdf

This is the core of the matter from the ET’s perspective:

You will I imagine be aware that Robert Francis advised in his report of the Freedom To Speak Up Review that whistleblower reprisal should be considered an a matter of serious misconduct under FPPR.1

Also, the current Kark review on FPPR has been asked to specifically consider whether FPPR should henceforth explicitly consider “conduct which might inhibit or discourage appropriate whistleblowing” and “any conduct designed to conceal or disguise” such acts.

Mid Essex trust squandered public funds by unreasonably resisting Mr Smith’s justified claim and appealing to the EAT, which sent the case back to the ET. As well as wasting large amounts of public money, this will have added significantly to the suffering experienced by Mr Smith and his family.

The case of Mr Smith will not have reached the EAT without the complicity of several Board members. It is also likely that the appeal officers, and possibly the dismissing officers, who were criticised by the ET were trust directors.

I would be grateful if the CQC would therefore look into this matter under Regulation 5.

The CQC will of course already be aware of Mr Smith’s case as he made repeated disclosures to your organisation.

Yours sincerely,

Dr Minh Alexander

Cc Steve Barclay Minister of State for Health