By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 26 June 2019
|Summary: The CQC suppressed a critical 2015 inspection report on Whorlton Hall which effectively described institutional abuse in the form of wide ranging, serious care failures.
CQC has now admitted via FOIA that it has a legal duty to publish an inspection report on every inspection, and that it has no policy which allows it to discard an entire inspection report. CQC has also admitted that where there is a concern about insufficient evidence to back up regulatory findings, normal procedure is for the same inspector to go back. In contrast, at Whorlton Hall the CQC sent a different team in several months later, which delivered an unrecognisably upbeat portrait of the service.
The CQC is suspiciously evading a question about whether CQC board members were involved in the decision not to publish the 2015 Whorlton Hall inspection report.
It also refused to disclose, on questionable grounds, the detailed evidence relied upon for the conclusion of the whitewash 2016 CQC inspection report that no unofficial seclusion was taking place at Whorlton Hall. A question arises about the sufficiency of this ‘evidence’.
Similarly, CQC refused to disclose on questionable grounds why its whitewash 2016 report was silent about the lack of an organisational rapid tranquillisation (forced medication) policy at Whorlton Hall, a serious failing, which was described in the suppressed 2015 inspection report but later conveniently omitted.
The stench grows stronger. The CQC is dangerous and needs to be abolished. In the meantime, parliament is duty bound to stop the DHSC/ CQC charade of an faux independent investigation controlled by the CQC. It should ensure a much more robust, wider investigation of whether the CQC is fit for purpose, as Barbara Keeley MP has called for.
On 22 May 2019 BBC Panorama broadcast an undercover investigation which revealed abuse of highly vulnerable adults at Whorlton Hall, a facility which used to be run by the company Castlebeck, which ran the notorious Winterbourne View.
Whorlton Hall was taken over by Danshell when Castlebeck ran into difficulties, and was the company responsible for Whorlton Hall when CQC last inspected and rated it ‘Good’.
After the Panorama broadcast about Whorlton Hall, Barry Stanley-Wilkinson a former CQC inspector came forward and accused the regulator of covering up abusive practices at Whorlton Hall four years ago.
CQC initially scoffed at these claims. Although it was forced to admit that there was an unpublished 2015 report, CQC flatly denied that the suppressed 2015 report contained any evidence of abusive practices.
Barry Stanley-Wilkinson accused the CQC of trying to discredit him with this denial:
On 10 Jun CQC was forced by the Joint Committee on Human Rights, to publish the hitherto suppressed 2015 report and this confirmed Barry Stanley-Wilkinson’s claims:
The report registered concerns about unofficial use of seclusion, administration of rapid tranquillisation (forced medication) without any organisational policy and the discovery of a care plan which stated that staff should ignore a patient’s allegations against staff.
The suppressed 2015 report described other serious problems such as understaffing, failure to carry out required observations on patients, very serious failures of risk management and care that was so poor and unskilled that it resulted in needless incidents and physical restraint.
On 28 May 2019 I asked CQC the following questions through a request under the Freedom of Information Act:
1) Please provide the relevant policy/ procedural document(s) which govern any decisions not to publish draft CQC inspection reports and the seniority of the CQC personnel involved in such decisions.
2) Please advise of the circumstances in which a draft CQC report might not be published in its entirety, as opposed to just edited.
3) Please advise how exceptional it is for CQC inspection reports not to be published and whether CQC can provide figures for the number of inspection reports that have not been published since CQC’s inception. Can CQC provide a rough proportion, to its best knowledge, of the inspection reports that have not been published if a precise figure cannot be given.
4) Please advise of the seniority of the most senior CQC personnel involved in the decision not to publish the draft report arising from the August 2015 inspection on Whorlton Hall. If a CQC board member(s) was involved in the decision not to publish, please disclose who they were.
5) As far as I can see, CQC’s June 2016 inspection report on Whorlton Hall fails to address the issue of rapid tranquillisation (forced medication).
This is despite the fact that the same report notes that there were 188 episodes of physical restraint in the six month period prior to CQC’s inspection visit:
“In the six months prior to our visit, there had been 188 episodes of restraint.”
In contrast, in two later 2017 inspection reports CQC addressed the issue of rapid tranquillisation. CQC noted failure by Whorlton Hall to monitor physical health following use of rapid tranquillisation.
Incongruously, CQC seemed to be visiting Whorlton Hall quite frequently for an establishment that it had designated as ‘Good’, which might suggest ambivalence:
– August 2015
– March 2016
– August 2016
– November 2016
– September 2017
– March 2018
CQC inspection reports on Whorlton Hall claimed that that the provider had no designated seclusion rooms and that seclusion had not taken place in other rooms. However, Panorama’s findings may question CQC’s conclusions about the absence of illicit use of seclusion.
CQC’s inspection reports remark that there was no evidence in case notes of illicit seclusion in non-designated areas. Abusers are not likely to create a record of their illicit activities.
Mr Barry Stanley Wilkinson former CQC lead inspector has made a statement that the draft CQC inspection report on Whorlton Hall from the 2015 inspection, which was never published, described unsafe and abusive practices:
“For those that watched the BBC news last night will have seen my interview. CQC have said in a statement that my report contained “no concerns regarding abusive practice”. This is to discredit me.
This is not true the report detailed how there was seclusion taking place without any policies or protocols in place, rapid tranquilisation was available without any policies in place, it was written in a care plan if people raised allegations of abuse they were to be ignored, it was also written that where patients raised concerns about the attitudes and behaviours of staff they did not feel listened too. It was written an external agency also made allegations about staff attitudes and behaviours. It also included information from another Government Department that stated the place was like something from the 1990’s it was so institutionalised.
They say the report went through a rigorous peer review! That peer review advised a change of ratings to inadequate for “effective”.
CQC have not detailed the provider at the time complained about us an an inspection team and meetings were had without my presence. The next I was told was it had been agreed the report would not be published. I was told it was down to the evidence. In a 9 year career I have never not had a report published.”
Can CQC please confirm if the unpublished CQC draft report from the August 2015 inspection of Whorlton Hall did indeed detail concerns about:
– the use of rapid tranquillisation outwith policies
– the use of seclusion outwith policies and protocols
– a care plan which stated that allegations of abuse should be ignored.
6) Mr Barry Stanley-Wilkinson has stated that he believes that the CQC destroyed the draft inspection report from the August 2015 inspection visit on Whorlton Hall.
“the report was deleted and never published”
Please confirm if this is the case. If not, please disclose a copy of the report.
After the CQC published the suppressed 2015 inspection report, I amended my request as follows:
“Further to my request of 28 May below, CQC’s publication yesterday of various previously unpublished drafts of the 2015 CQC inspection report on Whorlton Hall, the facility previously run by Danshell now owned by Cygnet, has addressed some of my original questions.
Obviously, I would be grateful if you would address the remaining questions.
I would also be glad if you could address two additional questions as follows.
Mr Barry Stanley-Wilkinson’s 14 December 2015 draft inspection report, after peer review and other preparation, concluded that Whorlton Hall staff had been using seclusion unofficially in a room not badged as a seclusion room. This was through removing and isolating patients in a low stimulus room, under physical restraint, if they were merely “distressed”, when seclusion should only be used as the last resort for managing significant of significant harm to others.
The subsequent 16 December 2015 draft of the Whorlton Hall inspection report, with annotations by an Inspection Manager, raised questions about Barry Stanley-Wilkinson’s conclusion that Whorlton Hall staff were using seclusion unofficially.
The inspection manager wanted to know if Whorlton Hall staff released restraint, or prevented patients from leaving the room:
Six months later in June 2016, CQC published an inspection report which simply asserted that CQC was satisfied that seclusion was not taking place at Whorlton Hall:
“The hospital did not have a seclusion room. Following discussions with staff and review of care records we were satisfied that seclusion was not taking place in any other rooms.”
1. In regards to the above, please can CQC provide the detailed evidence for its conclusion, in its June 2016 report, that the removal and isolation of distressed patients under physical restraint to a low stimulus room did not constitute seclusion.
It is now clear, despite CQC’s recent denial that Mr Stanley-Wilkinson’s unpublished inspection report described any abusive practices, that his report did describe the administration of rapid tranquillisation (forced medication) by nursing staff in the absence of any organisational policy and guidance. His 2015 unpublished report states:
“The organisation did not have a policy relating to rapid tranquilisation. This meant nurses administered drugs without any organisational guidance on the appropriate use.”
2. Please can CQC advise why its published report of June 2016 appears to be silent about the use of and presence or absence of policies about rapid tranquillisation at Whorlton Hall?”
The CQC’s response to these questions in summary
The CQC responded yesterday via two emails, as set out below in the appendix.
In short, the CQC admits that:
- It has a legal duty to publish a report for every inspection report
- It does not have a policy or procedural document which governs decisions NOT to publish a draft report
- Normal CQC procedure when there is insufficient evidence to support a regulatory judgment or conclude a rating is for the inspector to go back in, or for more information to be obtained by using other regulatory powers.
In other words, not the fishy events that unfolded at Whorlton Hall with CQC sending in a replacement inspection team, several months later.
The CQC claims in a heavily qualified manner that it is “so far” unable to say how often it has binned entire inspection reports, as it did the 2015 Whorlton Hall report.
“We have so far been unable to establish how often we have had circumstances where a draft report has not gone on to be published at all. This would be outside of our normal process and we have not identified a way in which we could track this from the management data that we hold. It is therefore our view that we do not hold the requested information.”
The last sentence of this paragraph is particularly suspicious. It is not a clear denial that CQC holds the requested data, only a slippery statement of CQC’s “view”.
Neither does the CQC give straight answer to whether CQC board members were involved in the decision not to publish the suppressed 2015 report. It side steps the question in the following manner:
“We have not identified any records which indicate that members of the CQC Board or Executive Team were involved in the decision not to publish the draft report.” [my emphasis]
As the deputy chief inspector Paul Lelliott has been shown to be implicated by internal CQC correspondence sent to the Joint Committee of Human Rights, it is highly unlikely that no board members were involved. If so, Lelliott will know who they are, and CQC has no need to rely on records. This latest CQC evasion almost certainly confirms that CQC board members were involved and aware of the suppression, whether or not they were the apparent decision makers.
CQC looks set to throw a less senior manager under the bus as the nominal decision maker, but conveniently declines to say who they were, using the current faux independent investigation, controlled by CQC, as a pretext:
“We do hold some information which indicates who made the decision not to publish the draft report, but pending the findings of the independent investigation we cannot say that this information is conclusive. In any case, we will not release information at this time that would be likely to lead to the identification of this person. We are concerned that making this information public (especially in advance of the full circumstances of that decision being investigated and reported upon) would be likely to expose that person to potential harassment. We consider that this person has a reasonable expectation that this information will not be disclosed publicly at this time. We therefore consider that the exemption from disclosure under section 40(2) of FOIA (“personal information”) is engaged.”
Shades of the Morecambe Bay affair perhaps, when the CQC board insinuated that some of their managers covered up, without naming them but clearly fingering them. That led to litigation, settlement and the CQC being forced to issue a grovelling apology:
“CQC settles case with former deputy chief executive Jill Finney
9 December 2014
Following the settlement of a case brought by former deputy chief executive Jill Finney, CQC’s chief executive David Behan said:
“In January 2014 the Care Quality Commission’s former deputy chief executive, Jill Finney, instigated legal action against CQC. This was following CQC’s publication of the Grant Thornton report into CQC’s regulatory oversight of University Hospitals of Morecambe Bay NHS Foundation Trust in June 2013. Ms Finney’s legal claim was based on two key elements: a libel action in respect of the Grant Thornton report; and a claim for damage to Ms Finney’s reputation resulting from the manner in which her name was released into the public domain. The total damages sought were £1.5m.
“Parties to high value litigation are encouraged to consider confidential mediation at an early stage before legal costs escalate for both sides. As a result of successful mediation, CQC has this afternoon issued a statement jointly agreed with Ms Finney. In addition, CQC has paid Ms Finney £60,000 in damages reflective of those matters set out in the statement, specifically the manner in which her name was released. This represents a full and final settlement with Ms Finney over all aspects of her claim. CQC has also made a contribution to Ms Finney’s legal costs.”
The parties have agreed the following statement.
“The CQC has settled the proceedings brought against it by Jill Finney, its former Deputy Chief Executive. The proceedings arose from the publication on 19 June 2013 of a report into the CQC’s regulation of the University Hospital Morecambe Bay NHS Foundation Trust (UHMB), produced by Grant Thornton LLP. The CQC had previously committed itself to publishing Grant Thornton’s report, which came to the conclusion that Ms Finney may have been party to a “cover up” of a report into the CQC’s regulation and oversight of UHMB, something she and others have always emphatically denied.
“From the interview stage, Ms Finney and others were highly critical of Grant Thornton’s fairness and processes including their interviewing, note-taking and record-keeping techniques. She complains that she was not even given advance notice of the allegations to be levelled at her in the interview.
“The CQC deeply regrets its decision, taken on legal advice, to withhold the names of individuals in the report, as promised to Ms Finney and others. It then had to reverse that decision after names, including Ms Finney’s, appeared in the media as a result of speculation by journalists. The consequences for Ms Finney were aggravated by the fact that some of the national media wrongly portrayed the internal report as being about maternity deaths at UHMB. Further, due to confusion caused by an IT failure, the CQC failed to inform Ms Finney that her name had been released until 18 hours later, by which time she had been summarily dismissed from her then employment.
“The CQC accepts that Ms Finney was thereby disadvantaged in protecting her reputation and giving her public defence to an allegation which she has always denied; in addition, she suffered considerable distress. The CQC wishes to take this opportunity to apologise to her and is happy to repeat what its Chief Executive Mr Behan wrote to her at the time of her departure in February 2013: ‘you have been a rock of stability in CQC leading with passion, energy and dedication. You have given much, and people have testified to this.’”
Lastly, CQC refuses to answer the request for the detailed evidence underlying its whitewash 2016 report’s conclusion that no illicit seclusion was taking place at Whorlton Hall, despite Barry Stanley-Wilkinson’s clear report of such activities in his suppressed 2015 inspection report.
Laughably, the CQC is so desperate to avoid this question, which goes to the heart of its cover up at Whorlton Hall, that it claims this question does not constitute an FOI request:
“Answering these questions would require analysis and interpretation of information held by CQC, to decide which evidence within our records was the basis for specific decisions or omissions. We therefore do not consider these to be requests for recorded information subject to the Freedom of Information Act 2000.”
Similarly, on the same basis, the CQC refuses to answer why the whitewash 2016 was completely silent about the lack of any organisational rapid tranquillisation policy at Whorlton Hall despite Barry Stanley Wilkinson rightly identifying this as a serious matter in 2015.
The stench has only got a whole lot stronger.
The CQC is riddled with almost a decade of rotten culture and engrained misdeeds. Its senior leaders for the main part cannot tell wrong from right, and it seems they do not even want to. CQC was created as a tame regulator by Labour, in response to the embarrassment of MidStaffs and other disasters.
Under a longer stretch of Tory rule, in the dark shadow of austerity and the need to disguise the ferocious attack on civil society, CQC has fungated. It has done so whilst cynically spinning about squeaky clean reform under David Behan 2012-2018.
Robert Francis, a CQC NED even wrote me a patronising letter telling me that CQC was going straight under Behan’s leadership and…wait for it…that CQC’s critics should be careful not play into the hands of those who profit from vulnerability.
From Robert Francis 16 January 2017, after being sent a copy of the report
‘What’s Wrong with the CQC’ by the Centre for Welfare Reform:
“Dear Dr Alexander
I must apologise for not replying before now to your earlier request for a meeting but I have of course followed your correspondence with Dr Hughes. As you may be aware I am in full time practice as a barrister and have a limited amount of time to devote to the aftermath of Mid Stafford, the FTSU review and subsequent developments.and the contribution I can make in my spare time is therefore limited. I have noted that you are in dialogue with Dr Hughes and it seems to me that pursuing that is likely to be more fruitful for you than a meeting with me, Your views are well known to me, and I respect them even if I do not always agree with them.
Thank you for alerting me to the Burton essay giving his view of CQC’s performance in the regulation of adult social care. I do not accept that it is a fair characterisation of its work. In particular my own experience of observing the inspection of a care home is very different from that he describes. The same applies to his view of the function of the Board. Of course nothing is t perfect and the organisation recognises this: under the leadership of David Behan, it is constantly – and openly – striving to improve the way it regulates the sector. I note that Mr Burton gives no credit to CQC for the way in which it speaks truth to power in the State of Care Report in relation to the dangers caused by the under funding of the sector and its concern that the sector is approaching a tipping point, a view based on evidence gathered in the course of its work. I do think those who criticise CQC in the way Mr Burton does should be wary if getting what they ask for. No regulator is popular with those it regulates. and it is not difficult to pick holes in the work it does. However I believe that to do away with national regulator as he suggests would play into the hands of those who would exploit vulnerable service users for their own profit.
We have already seen one CQC NED trying, not terribly convincingly, to put blue water between himself and CQC. One wonders what it will take for Francis to stop his vain defence of the putrid CQC.
Behan of course has since shown his true colours by skipping off to the board of the care home giant HC-One. As a HC-One NED he shamelessly advocated for radical policy changes to compulsorily impoverish the public in order to fund their future care in old age. On 10 May 2019 the Financial Times reported on HC-One’s tax avoidance – zero corporation tax paid since 2011 – and the fact that it has paid £48.5m in dividends whilst crying that the care sector was in danger of financial crisis due to underfunding.
CQC is not only unfit for purpose, but dangerous.
It is parliament’s duty to put a stop to the pointless faux investigation on Whorlton Hall that CQC and DHSC have offered up as a sop, and ensure a much wider, more robust investigation, free from government interference.
Barbara Keeley Shadow Minister for Mental Health and Social Care, JCHR, and Public Accounts Committee have all tried to hold CQC to account over the years, but the sticking point is Health and Social Care Committee and its until recently Tory Chair. Health and Social Care Committee has the lead responsibility for CQC but has done little to truly probe, challenge and follow up.
Appendix: Full CQC response FOI 25 June 2019
“Our Ref: CQC IAT 1920 0148
Dear Dr Alexander
I write in response to your correspondence of the 28 May in which you made a request for information.
We will respond to each part of your request in turn.
“FOI request re Non-publication of CQC inspection reports and Whorlton Hall
1) Please provide the relevant policy/ procedural document(s) which govern any decisions not to publish draft CQC inspection reports and the seniority of the CQC personnel involved in such decisions.”
We have a legal obligation to publish a report for every regulatory inspection we carry out. We do not have a specific policy or procedural document which governs decisions not to publish a draft report.
We have a process for quality assurance of reports which means that we will often produce several versions of a draft report. In circumstances where we have insufficient evidence to support a judgement or conclude a rating, our usual process would be for the Inspector to return to the service or use our other powers to obtain more information from the provider and amend the report accordingly on the basis of this further evidence.
However, the documents relating to this quality assurance process do not include instructions or guidance on making a decision to not publish a draft report. Therefore we do not hold the requested information.
“2) Please advise of the circumstances in which a draft CQC report might not be published in its entirety, as opposed to just edited.”
For the reasons set out above, we do not hold this information.
“3) Please advise how exceptional it is for CQC inspection reports not to be published and whether CQC can provide figures for the number of inspection reports that have not been published since CQC’s inception. Can CQC provide a rough proportion, to its best knowledge, of the inspection reports that have not been published if a precise figure cannot be given.”
We have a legal obligation to publish a report for every regulatory inspection we carry out. The report of the March 2016 inspection stated that it covered the main findings of the August 2015 inspection.
We have so far been unable to establish how often we have had circumstances where a draft report has not gone on to be published at all. This would be outside of our normal process and we have not identified a way in which we could track this from the management data that we hold. It is therefore our view that we do not hold the requested information.
“4) Please advise of the seniority of the most senior CQC personnel involved in the decision not to publish the draft report arising from the August 2015 inspection on Whorlton Hall. If a CQC board member(s) was involved in the decision not to publish, please disclose who they were.”
We have not identified any records which indicate that members of the CQC Board or Executive Team were involved in the decision not to publish the draft report. We have commissioned two independent reviews of our regulation of Whorlton Hall [www.cqc.org.uk/news/stories/update-independent-review-regulation-whorlton-hall] both of which are expected to look in detail at the decision making process that resulted in this draft report not being published.
We do hold some information which indicates who made the decision not to publish the draft report, but pending the findings of the independent investigation we cannot say that this information is conclusive. In any case, we will not release information at this time that would be likely to lead to the identification of this person. We are concerned that making this information public (especially in advance of the full circumstances of that decision being investigated and reported upon) would be likely to expose that person to potential harassment. We consider that this person has a reasonable expectation that this information will not be disclosed publicly at this time. We therefore consider that the exemption from disclosure under section 40(2) of FOIA (“personal information”) is engaged.
I hope that you have found this response helpful. If you are not satisfied with our handling of your request, then you may request an internal review.
Please clearly indicate that you wish for a review to be conducted and state the reason(s) for requesting the review.”
“Our Ref: CQC IAT 1920 0213
Dear Dr Alexander
I write in response to your correspondence of the 11 June in which you stated:
“1. In regards to the above, please can CQC provide the detailed evidence for its conclusion, in its June 2016 report, that the removal and isolation of distressed patients under physical restraint to a low stimulus room did not constitute seclusion.
2.Please can CQC advise why its published report of June 2016 appears to be silent about the use of and presence or absence of policies about rapid tranquillisation at Whorlton Hall?”
Answering these questions would require analysis and interpretation of information held by CQC, to decide which evidence within our records was the basis for specific decisions or omissions. We therefore do not consider these to be requests for recorded information subject to the Freedom of Information Act 2000.
CQC has announced an independent investigation into our regulation of Whorlton Hall between 2015 and 2019, which will include recommendations for how our regulation of similar services can be improved, in the context of a raised level of risk of abuse and harm. You can find more information here:
Our expectation is that these investigations will review and publicly report on the decision making process.
I hope that you have found this response helpful. If you are not satisfied with our handling of your request, then you may request an internal review.”