More consultation on the regulatory response to whistleblowing in Health & Social Care (But government is keeping shtum on investigation of whistleblowers’ concerns)

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 22 August 2019

Last year the Health and Social Care watchdog the Care Quality Commission acknowledged that it had still not got whistleblowing governance right.

It agreed to consult again by the end of the year. I advised that this should be an open process.

To give due credit, Ted Baker Chief Inspector of Hospitals also agreed to revisit a request for audit of CQC’s handling of whistleblower confidentiality, despite Peter Wyman CQC Chair having arbitrarily dismissed the need for audit, after breaches.

CQC board minutes subsequently showed that CQC reviewed a series of cases and concluded that there had been no recent confidentiality breaches.

However, the general consultation on whistleblowing did not materialise.

CQC board papers from July this year revealed that CQC pressed on with internal review of its whistleblowing process.

The CQC has now sent out, at short notice, invitations to a national event on 2 September 2019 which includes consultation on how its whistleblowing process might be improved:

“We are also reviewing our policies and procedures as they relate to how we manage information from people who work in the services we regulate and how we communicate and use the information shared. We have listened and heard that we have not always been successful at managing information shared with us. As a result of this, and in line with our commitment to consult on how we can make improvements, we are bringing together people who can help us to determine what good looks like.”

The Department of Health and Social Care, GMC, NMC, NHS England/ Improvement and the National Guardian will be represented.

Some whistleblowers have been invited, but I do not know how many in total.

There also does not appear to be clear open access to the consultation process by correspondence, and I am not aware that the consultation has been advertised.

There is no agenda for the 2 September workshop yet, but the event is scheduled for a five hour slot.

It is led by Professor Ursula Gallagher CQC Deputy Deputy Chief Inspector for Primary Medical Services and Integrated Care, who is the CQC lead on whistleblowing.

I have asked for sight of the policies about which the CQC is consulting. I am advised that these are the two relevant policies:

Published 2013 guidance for providers on whistleblowing governance

Whistleblowing Guidance for providers who are registered with the Care Quality Commission

Internal CQC guidance for its inspectors produced in June 2019, and currently in use

Guidance: Handling concerns raised by workers of providers registered with CQC

The 2019 internal guidance document replaces a document produced last year:

Handling concerns raised by workers of providers registered with CQC

Apart from a different title and a curious new section on RIPA powers, the 2019 CQC guidance for its inspectors looks much the same as the 2018 guidance.

The new section in 2019 CQC guidance on whistleblowing for its staff:

10. The Regulation of Investigatory Powers Act 2000 (RIPA)

“CQC does not routinely as a matter of policy currently undertake or authorise providers or members of the public to undertake either directed covert surveillance or Covert Human Intelligence Sources (CHIS).

In addition, the Regulation of Investigatory Powers Act 2000 (RIPA) places restrictions upon the use of surveillance and covert intelligence sources by public bodies. Under RIPA, the Care Quality Commission does not have the power to undertake intrusive covert surveillance or to authorise providers or the public to undertake intrusive covert surveillance. This prohibits CQC from authorising the use of hidden cameras and listening devices in residential premises.

Therefore, CQC currently does not ask people to create recordings on its behalf. For further information about RIPA and covert activity including intrusive surveillance, directed surveillance or CHIS please visit the RIPA intranet page and RIPA awareness video in ED.”

Inevitably, the CQC guidance to its staff toes the government line: UK whistleblowing law is protective, the National Guardian is leading culture change, blah blah blah…

The key issue that is unspoken in these documents is the fact that the CQC declines to actually investigate whistleblowers’ concerns.

The government continues to avoid answering questions about whether CQC should do so under its current regulations, or whether new regulations will be drafted to ensure that CQC has clear powers to do so.

I have asked the DHSC to clarify its position in time for the event on 2 September 2019, but the correspondence fencing bout may well continue. The latest correspondence with the Department is copied below in the appendix.

The event on 2 September 2019 will be an expensive affair, and whilst CQC’s recent staff guidance documents are an improvement on past versions which were technically very rudimentary, little will be achieved until whistleblowers’ concerns are appropriately investigated.

If any Health or Social Care whistleblower who has not so far been invited to contribute wishes to send in comments on how CQC can improve its handling of whistleblowing, I would suggest sending written contributions to CQC FAO Professor Ursula Gallagaher.

UPDATE 24 AUGUST 2019

Some whistleblowers who have expressed interest in contributing to the consultation have received conflicting information about its scope. For clarity, this is the original correspondence from the CQC, sent on 14 August 2019: