By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 15 January 2020
Summary: In 2016 whistleblowers highlighted Care Quality Commission (CQC) secrecy about whistleblowing activity by the staff of regulated health and social care organisations. CQC blustered but began to reluctantly publish cursory whistleblowing data in 2017. Under the Freedom of Information Act CQC also provided two years’ of national whistleblowing data on specific health and social care providers from 1 April 2015 to 31 March 2017. The same FOI request was submitted again last November for update whistleblowing data from 2017/18 and 2018/19. CQC unlawfully delayed in its response to this request for no good reason. The data is easily retrievable from a central computer database. The data should have been released before the general election on 12 December 2019 but was not released until 10 January 2020, despite CQC being repeatedly chased. When the data arrived, it had been censored to remove the identities of specific provider organisations. CQC failed to argue clearly why it had done so. The missing data on specific provider organisations allows the government to hide a multitude of sins, including regulatory failure by CQC and ineffectiveness by the National Guardian for whistleblowing. CQC will be pursued for the missing data. Parallel to this the government has fought an FOI request for sub-departmental staff survey data. The Department of Transport has so far been overruled by the ICO, the Information Tribunal and the Upper Tribunal. It will be illuminating to see if the government continues to resist accountability and appeals again. We are likely to see more abuses and government failures of transparency. Our Prime Minister and his inner circle have expressed amity and admiration for Viktor Orban the Hungarian Prime Minister and his administration, who amongst other unpleasantness have been busy neutering their judiciary, controlling information and disempowering the free press.
UK government’s praise of an authoritarian regime
The political back drop to debate about the UK government’s transparency and whistleblowing governance includes its links with the much criticised Hungarian government.
Why whistleblowing data matters and gaps in the system
In order to properly learn from whistleblowing, organisations should track and examine themes from whistleblowing data. The government is a great repository of whistleblowing information, as whistleblowers often end up whistleblowing to many agencies on their long and lonely journeys, and are forced to repeatedly escalate through layers of unresponsive government bodies.
Under the ineffective UK Public Interest Disclosure Act, some public bodies are designated as Prescribed Persons to whom whistleblowers can disclose concerns. The Prescribed Persons system is ramshackle and ineffective, with some Prescribed Persons that are blissfully ignorant of their statutory status and responsibilities. Not that there are any real responsibilities that are conferred under current whistleblowing law. There is only an obligation on Prescribed Persons to receive and record concerns, and latterly to report annually in a very cursory manner. There is no obligation under current UK whistleblowing law for Prescribed Persons to investigate nor act upon whistleblowers’ disclosures.
The Care Quality Commission (CQC) is a Prescribed Person but is not compelled to investigate any individual whistleblower’s concerns. The government has refused for over a year to answer a question on whether it will change CQC’s regulations so that CQC has the power and duty to investigate individual whistleblowers’ concerns. The obvious inference is that the government vehemently opposes any such investigation.
This is all extremely unsafe because external whistleblowing to the CQC by the staff of regulated bodies usually reflects some failure by employers. Whether it is failure to create a safe and receptive environment in which staff know about and feel confident in whistleblowing systems, or receive helpful organisational responses to their whistleblowing. Many whistleblowers turn to the CQC after lengthy attempts to raise concerns internally are obstructed by their employers. For the CQC to disrespect and brush off such significant disclosures is negligent and harmful to patients and social care service users, and to safety culture.
Data on whistleblowing to the CQC is in fact very precious, and an important barometer of problems in the system.
CQC’s whistleblowing data cover up
The CQC is steadily cutting down on the transparency about whistleblowing into which it forced in 2017, and an example is given below.
In 2017 CQC revealed under the Freedom of Information Act the extent of whistleblowing disclosures that it received from specific health and social care provider organisations over a two year period. This allowed some comparisons.
Granted, these comparisons are very broad and consideration should be given to the varying size of regulated organisations and their different roles. Nevertheless, there was marked variation in levels of reporting about organisations. In the NHS, the trusts which generated the most whistleblowing incidents to CQC were as follows:
An FOI request shouldn’t have been necessary. The CQC should have made such data public as a matter of routine. But it didn’t take the hint, and it did not publish proactively even after the FOI request.
Accordingly, in November 2019, I asked the CQC for an update of the same data, for the period 1 April 2017 to 31 March 2019.
The CQC dragged its feet and was unusually late by its standards in replying to the FOI request. It should have responded before the general election on 12 December 2019 but did not respond until 10 January 2020, despite being repeatedly chased.
Moreover, the data provided was excised of specific health and social care provider organisation’s details:
CQC claimed some FOIA exemptions that it had not claimed before, listing these in a very generic manner, not matching specific exemptions to specified, omitted data.
CQC listed privacy considerations (FOIA Section 40 exemption on personal data) amongst its defensive excuses for not relinquishing the data requested. This is nonsense. The CQC is only allowed to withhold data that might identify individuals. There are no grounds to argue that anonymised data over a long period could identify individuals, except at a stretch where numbers are very low (five is the commonly accepted threshold).
CQC has also claimed FOIA Section 41 and 44 exemptions on information given in confidence are applicable. Again, flawed, over-blown claims which are undermined by the fact that:
- CQC used to regularly publish whistleblowing alerts for specified organisations in its “intelligent monitoring” data (this stopped because CQC binned its unreliable intelligent monitoring initiative).
- CQC continues to report on provider staff whistleblowing in its inspection reports.
Similar arguments apply to a claim by CQC that FOIA Section 31, law enforcement, is relevant and justifies withholding the requested data. The CQC argument in this aspect is very thin and speculative. It claims that transparency might deter provider staff from whistleblowing. This is pure fantasy and a misrepresentation of information that is of legitimate public interest. Whistleblowers whom I have known and worked with usually desperately scour the public record to find out if others have raised concerns about their organisations. The general public and harmed patients and families also take interest in whether there have been whistleblowing concerns about specific providers.
Moreover, the CQC advances improbable arguments that release of data could prejudice its Safeguarding investigations and regulatory assessments. One suspects this part would be more correctly phrased: “The CQC does not want the public to know about instances in which CQC has taken inadequate regulatory and Safeguarding action, in the face of considerable whistleblowing intelligence”.
The net effect of CQC’s clumsy censorship is that the data provided tells me little more than the superficial, headline whistleblowing statistics that CQC already publishes in its corporate material.
Why should CQC hide specific provider organisations’ whistleblowing data?
Is CQC hiding evidence of failure of government’s Freedom To Speak Up scam?
Is there embarrassing data about NHS trusts that the National Freedom To Speak Up Guardian has endorsed, or reviewed without any resulting improvement?
Is the CQC helping to cover up whistleblowing by staff at ‘Outstanding’ West Suffolk NHS Foundation, which demonstrated its excellence by demanding fingerprints and handwriting samples from staff as part of a whistleblower witch hunt?
Is the CQC trying to cover up whistleblowing about severe NHS strain, such as whistleblowing by ambulance service staff, which tends to be a weather vane for insufficient hospital beds and dangerously stretched acute services?
The CQC is certainly still dumping the majority of whistleblowing contacts in a drawer, labelled as either ‘no further action’ or ‘information noted for the next routine inspection’.
In CQC’s hospital directorate, a shocking 76.7% (1473 of 1918) whistleblowing disclosures are treated in this manner.
Is the CQC trying to protect itself after the Whorlton Hall scandal, in which a very serious cover up and whistleblower suppression by CQC was exposed?
Colin Groombridge Winterbourne View whistleblower on the Whorlton Hall scandal:
Is the CQC covering up embarrassing information on whistleblowing by staff of the provider company in question, Cygnet?
CQC has just issued a carefully worded “Well-Led” inspection report on the Cygnet estate, which whilst conceding failures, has the distinct look of half truths. In fact, it is a re-run of CQC’s carefully crafted review of Castlebeck facilities after the Winterbourne View abuse scandal.
With supreme irony, CQC’s report criticises Cygnet because its “Data was not presented to allow trends in whistleblowing to be identified by location over a period.”
Crucially, CQC gives a selective account of whistleblowing by Cygnet staff, restricted only to the year up to April 2019:
This selectivity, and CQC’s severe restriction of the whistleblowing data that it has just disclosed to me, avoids scrutiny of the scale of whistleblowing disclosures that CQC received about Whorlton Hall in the run up to its clearly nonsensical ‘Good’ rating in May 2018, In fact, patients were being abused as revealed by Panorama.
Is the CQC also trying to hide whistleblowing about other highly controversial private providers, who soak up millions in public money, like St Andrews Healthcare which has been an abusive employer, and has in the region of 1,000 workers on zero hours contracts.
What other embarrassment for the government lurks in the withheld data?
I will pursue CQC for the withheld data, and in particular the 2017/18 whistleblowing data for Cygnet and Whorlton Hall. I will try to further elucidate the anatomy of this latest cover up, but anticipate a great deal of obstruction.
Parallel to all this, I have encountered extraordinary government resistance to an FOI request for Air Accident Investigation Branch staff survey data, a branch of the Department for Transport. The DfT was overruled by the ICO. It has since appealed against this ICO decision to the Information Tribunal and then the Upper Tribunal. The DfT has been unsuccessful on both occasions. I am waiting with curiosity to see if the government will attempt yet another appeal.
Buckle up. Expect official deception of all sorts to proliferate. Lies of omission and concealment, outright porkies, lies of distortion, manipulation and sleight of hand, and lies by carefully sculpted implication.
And don’t be surprised either if the UK government makes another attempt to nobble the public’s FOI rights.
After all, that’s what Viktor did in happy, sunny Hungary:
UPDATE 20 JANUARY 2020
Meanwhile in a parallel universe, a kind person has sent me a 17 January 2020 report by Ridouts the law firm which often acts for NHS bodies, which says that the CQC has been been expensively but quietly binning inspection reports , purportedly because of concerns that they are “unsound”. The affected providers are not identified.
Barbara Keeley’s letter to Ian Trenholm CQC CEO about CQC’s whistleblower suppression and cover up of care failures at Whorlton Hall: