By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 7 October 2020
Summary: A whistleblowing case of two care home staff, Karen McGuire and Miss T Skitt who were found to have been victimised by care home managers, has revealed correspondence in which the local Care Quality Commission inspector lacked impartiality. She appeared to accept without question derogatory employer claims about the whistleblowers. We previously saw a similar CQC response in the case of Helen Rochester, another care home whistleblower who was baselessly referred to the Disclosure and Barring Service upon CQC’s suggestion:
In this latest case the care home in question, Charlton Court Pudsey Leeds, is still rated by CQC as ‘Good’ including on the ‘Well Led’ domain. This is despite the ET discovering that one of the care home managers hired an ex Detective Chief Superintendent who posed as a CQC official to find out what one of the whistleblowers (Karen McGuire) had reported to the CQC. The ET accepted Karen McGuire’s evidence about this bizarre contact in its entirety. She told the ET via her witness statement that upon being discovered in his deception, the former senior police officer accused her of theft. UK whistleblowing law does not recognise detriment by regulators, only employers. It also does not compel regulators to investigate whistleblowers concerns. This case powerfully adds to the case for major reform of the law.
The whistleblowers at Charlton Court care home
A good Samaritan drew my attention to a highly significant Employment Tribunal (ET) judgment of 11 December 2019 in a whistleblowing case brought by two care home workers, Karen McGuire and Ms T Skitt, who were unfairly and constructively dismissed:
The whistleblowers achieved a rare ‘victory’ and the ET accepted that they had suffered detriment as a consequence of whistleblowing about neglect and abuse of vulnerable service users. More usually, detriment is found but ETs stop short of attributing it to whistleblowing.
According to the ET judgment , Karen McGuire made the following whistleblowing disclosures about events at Charlton Court care home, Pudsey, Leeds:
“13. We will deal with the 6 internal disclosures first in our findings as those disclosures are relied upon for all the alleged detriments complaints. Mrs McGuire alleges the following disclosures were made to her employer:
1. Telling Miss Lewis that a resident had been left unattended and that carers were not around in November 2018 (claim form paragraph 10).
2. Telling Miss Metcalfe that Carer B was taking photos in resident’s rooms on 27 December 2018 (claim form paragraph 12).
3. Telling Miss Lewis that a Carer P, had thrown porridge on a resident in late November/early December 2018.
4. Telling Miss Metcalfe that a resident had been left with soiled pads and only changed when he went to bed in late November/early 2018 (claim form paragraph 14).
5. Telling Miss Metcalfe that a resident had been taken outside wearing very little and raising more general concerns about neglect on 5 December 2018 (claim form paragraph 16).
6. Repeating those matters to Miss Metcalfe later in December 2018 (claim form paragraph 17).”
- “Mrs McGuire alleges she made her first ‘protected disclosure’ in November 2018, to Mrs Lewis. She told Mrs Lewis (senior registered nurse) that a resident (J) had been left unattended and that carers were not around to help residents. She “was concerned that residents were being left to wait to be changed and washed as a matter of course due to the fact that carers were often not around to help as they had gone for cigarettes or had gone to the shops. The claimant expressed her shock at the lack of pads and the length of time that many residents were having to wait to be changed and she said that she felt that this was neglect and she thought that something should be done about it.”
- “The claimant reported concerns about an incident where a vulnerable resident had reported to her that Carer P had thrown porridge over the resident and caused a mark to her chest. The claimant had been told by the resident that Carer P had thrown the porridge at her ‘in a mood’. The claimant reported this incident and advised Mrs Lewis that she was worried about this carer’s suitability to look after vulnerable residents.”
As ever, the whistleblowers were reported by the ET to have unblemished records prior to counter-allegations by their employer, after they raised concerns. For example:
“23. Mrs McGuire had not worked for 17 years while she had a career break to care for her children. This was her first job back to work in a care home setting. She had set herself high standards for the care she expected of the residents at the home. She was confirmed in ‘post’. No complaints were made about her work. She was considered, to be a good carer and received an award as “Carer of the Month” in December 2018.”
Unusually, the whistleblowers named an individual (Mrs P Jackson, manager) as a respondent in addition to suing their employing organisations. This is traditionally frowned up and may count against claimants, but in this case the judge was very critical of Mrs P Jackson and upheld some of the claims against her.
A bizarre twist in this grim tale is the fact that a former senior police office, former Detective Chief Superintendent Bob Taylor hired by the care home as an investigator, phoned one of the whistleblowers, Karen McGuire and he reportedly posed as a CQC official. According to a report by the Daily Mirror in June 2020, he reportedly “fished” for information about what she had disclosed to the CQC. But his voice was recognisable and the ruse failed:
“He pretended to be from the CQC but Mrs Maguire recognised his voice from fire safety training he had given at the home.”
The ET judgment itself makes these observations about the detriment involving Mr Taylor:
“Detriment involving Mr Taylor
125.This then leads to the detriment alleged against Mrs Jackson involving Mr Taylor. The claimant alleges that Mrs Jackson instructed Mr Taylor to approach her and question her purporting to be from the CQC, accusing her of theft, insisting she had to attend a meeting with him and texting her (the events described in paragraphs 44 to 47 of the claim form). Those paragraphs are repeated in the witness statement in which the claimant gives a very detailed account of her telephone call with Mr Taylor. The respondents were fully aware of the allegations from the claim form and knew the telephone call was pleaded as a detriment.
126.In those circumstances you would expect that Mrs Jackson would ensure that Mr Taylor’s witness statement provided some detail about the instructions he received from Mrs Jackson, the ambit of his authority and the call he made to the claimant following those instructions. His witness statement makes no reference at all to the call made by him to the claimant and was in our view deliberately misleading. He says at paragraph 8: “I was informed that she would not talk to me but nevertheless I sent her a text on the number I had been provided. I was asked to carry out a safeguarding investigation in January 2019. I was made aware that the allegations were being made by Karen McGuire a carer who had walked out of work on 9 January 2019”.
127.Mr Taylor made a correction to his statement at the beginning of his evidence by adding a sentence to his paragraph 6 to say: “I contacted her by telephone on 10 January 2019”. In his witness statement he did not offer any details of that conversation. We found Mr Taylor was being deliberately evasive about the telephone call, firstly by not referring to it at all in his witness statement, implying he was ‘informed’ that the claimant would not talk to him, when he had spoken to her directly and knew exactly what had happened. Secondly by only including the fact of the call at all as a ‘correction’ to his statement when he knew it was the reason he was called to give evidence.
128.Mr Taylor has 31 years of experience as a police officer rising to the rank of Detective Chief Superintendent before retiring. He tells the tribunal he has a law degree. He has worked for ‘ADL Care Plc’ for the last 5 years when ‘they’ commission work from him ‘usually through Pearl Jackson the Operations Director of ADL Plc’. He was fully aware of the importance of that telephone call prior to this hearing because it was the only alleged detriment that involved him, yet he chose not to deal with it at all in his statement. The statement prepared for these proceedings ends with a ‘statement of truth’ signed on 18 September 2019.
129.We were surprised given Mr Taylor’s long experience in the police force, which would have included taking statements, that he was unable to provide a statement dealing truthfully with the matters he was required to address, to assist the Tribunal.
130.Given the conversation that had taken place between Mrs Jackson and the claimant prior to her call with Mr Taylor and the tone of the letter that followed, it is likely that Mr Taylor would have understood that Mrs Jackson was angry with the claimant and wanted to protect the home at any cost. She had taken against the claimant and wanted his help given the allegations made and CQC’s involvement. His instructions would have included Mrs Jacksons expressing her views about the claimant in the same tone as her letter.
131.The claimant’s witness statement accurately reflects what was said to her by Mr Taylor in that call and we set it out in full because we accept it in its entirety.
“I received a phone call from a man who called and introduced himself as the head of the whistle blowing team at CQC. However, when he was talking to me I felt that something was not quite right. I was taken aback by the tone that the caller adopted and became more suspicious of him as the call carried on.
He was very forceful in the way that he spoke to me not professional or calm. He was telling me that I needed to tell him everything about what I’d reported and leave nothing out and that if I didn’t tell him everything that there would be consequences. This made me smell a rat to be honest, I’d not encountered this kind of attitude from CQC before. I just felt that the caller was acting in a manner that no professional organisation representative would. As the male voice carried on speaking I thought that I recognised it, and then realised that this was the voice of the man who worked for Charlton Court and who had in the past carried out the fire training. As soon as I realised this I said to him I know who you are, you aren’t from CQC you work for Charlton Court. You carry on the fire training for Pearl and his name came to me and I said your Bob Taylor. Mr Taylor stopped talking and seemed shocked to be challenged and I again said to him you don’t work for the CQC. Mr Taylor then admitted he didn’t work for the CQC but then proceeded to tell me it was the same thing in that he was a private investigator and he was conducting an investigation into matters. Mr Taylor told me that I had to tell him what I’d reported to the CQC. I was also told by Mr Taylor that I had to attend at Charlton Court to be interviewed. I said to Mr Taylor I didn’t have to attend Charlton Court to be interviewed. It was wrong for him to suggest that I had to do this and make out it was compulsory. I was very unhappy about how he was speaking to me and thought that it was utterly outrageous that he’d pretended to be from the CQC in the first place. I didn’t want to carry on the conversation with him and I told him that I didn’t care for how I was being spoken to and advised that I’d reported my concerns to the home and to the CQC already and the CQC would deal with the matter now. Mr Taylor shocked me he would not take no for an answer. I found the call to be extremely intimidating and threatening when Mr Taylor saying a number of times that the home was going to take steps needed to protect the home and directors and that I must tell him everything that I’d reported. Mr Taylor seemed very annoyed when I advised him that I would not coming in to be interviewed and then he proceeded to accuse me of stealing confidential documents to which I said don’t be ridiculous I’ve done no such thing. You’re just trying to intimidate me don’t call me again”.
The ET remedy judgment of 12 March 2020 was very seriously critical of the care home’s managers, including a finding that Mrs P Jackson had been “dishonest”:
“Conduct of these Proceedings
7. At the liability hearing, we had found Mrs. Jackson on behalf of the respondents, had improperly conducted these proceedings in the following ways:
6.1 She deliberately misled the Tribunal about her previous experience of Tribunal hearings to avoid any censure for her failures (paragraph 4).
6.2 Her approach in defending these proceedings was inflammatory, ignoring any guidance given by the Tribunal. Case No: 1801731/2019 1801734/2019 10.7 Judgment with reasons – rule 62 March 2017 She accused the claimants of lying, then of the wrongdoing they had reported, and then of wasting time by bringing these proceedings (paragraph 5, 6 21).
6.3 Evidence was deliberately concealed and records were altered to mislead the Tribunal and to try to discredit the claimants. Mrs. Jackson deliberately concealed parts of an inspection report only disclosing parts that were helpful to the respondents’ case and to corroborate her statement. She asserted that home had been ‘completely exonerated’ and therefore the claimants were lying, when she knew that to be untrue.
6.4 She was dishonest and was prepared to go to any lengths to try and portray the claimants in the worse possible light concealing evidence that went in their favor.
6.5 Mrs. Jackson, Miss Hopkinson and the witnesses that attended the hearing were openly hostile towards the claimants during the liability hearing, making it a difficult and unpleasant hearing for them. As we note in paragraph 21 of the judgment, while that kind of reaction might have been expected by more junior staff (given their hostility towards the claimants in the workplace), we expected better behavior from the senior management representing the respondents in these proceedings.
6.6 The hostility and anger towards the claimants was clearly visible throughout the hearing. 2 notable examples were the angry response of Mrs. Hopkinson who accused the claimants of ‘wasting 2 weeks” of her life by bringing these proceedings and Mrs. Jackson (in the context of the letter she sent to Mrs. McGuire) confirming it was a deliberate act that had failed to achieve the desired outcome of preventing her from bringing these proceedings.”
The ET concluded that the respondents, represented by Mrs P Jackson, had shown “contempt” towards the Tribunal itself:
“The conduct of the respondents since the last hearing shows complete disregard and contempt, not only towards these claimants, but also to the Tribunal and these proceedings.”
Both claimants were awarded aggravated damages.
THE CQC INSPECTOR’S LACK OF IMPARTIALITY
The most important and truly astonishing governance issue arising from this ET case is that the ET criticised a local CQC inspector, Emma Hatfield, for her relationship with the provider which led to her accepting without question derogatory claims and comments against the whistleblowers, made by one of the care home managers, Miss Hopkinson. The relevant passages from the ET judgment are as follows:
“171. On 10 January 2019, after Mrs McGuire had resigned informing Miss Hopkinson she would be reporting the home to the CQC, Miss Hopkinson sent an email to Ms Hatfield. The email states: “Hi Emma I just wanted to make you aware that a staff member walked out of shift yesterday due to gossiping. She has since taken to social media with immature comments. She has telephoned Pearl Jackson, the director and made some accusations about the home which Pearl is investigating and I am telephoning safeguarding to make them aware.
172. On the same day Emma Hatfield replies by email: “No problem at all. As if you haven’t got enough to do”.
173. Miss Hopkinson immediately labels the claimant as the trouble maker in this email exchange and Miss Hatfield sympathises without question. In another email on 14 January 2019, Miss Hatfield is given an update of the situation by Miss Hopkinson. Her response on the same date is “That is appalling. What is wrong with her?”. Another update follows and Miss Hopkinson apologises for ‘going on’ about it. Miss Hatfield responds “No you are not going on. It is upsetting I just don’t know what she thinks she will achieve”. In another email sent by Miss Hopkinson dated 16 January 2019, Miss Hopkinson states “I appreciate you have a process you have to follow but I really feel this is all just malicious and vindictive”. Miss Hatfield in her response of the same date states: “I’m sorry that you had to deal with all of this”.
174. Mrs McGuire having seen these emails says in her statement “I am alarmed at the inappropriate degree of empathy between the CQC inspector and the care home manager and I feel this is worrying given the nature of what was being reported. I would have expected more impartiality”.
175. Unfortunately, from the email exchange we saw (disclosed and relied upon by the respondent), we can see why the claimant has those views of the relationship between Miss Hopkinson and Miss Hatfield. From the claimant’s perspective she expected the CQC interaction to demonstrate the impartiality she had received in her dealings with the home.”
The moral of this story is that whistleblowing remains perilous partly because those with a duty to protect the public interest, to Safeguard the vulnerable and to enforce good governance may be on the side of employers, and are too ready to believe counter-allegations instead of acting impartially.
UK whistleblowing law does not recognise detriment caused by regulators and it does not compel regulators to investigate whistleblowers’ concerns. The CQC by policy refuses to investigate individual whistleblowers’ concerns, claiming tenuously that their regulations do not permit them to do so. The UK government refuses to do anything about this.
The CQC’s central concern should be for patients and service users. They should not be cosying up to service providers who profit from vulnerability.
Law reform is desperately needed, as this above case shows.
If you have not done so already, please sign and share the petition for vital reform of UK whistleblowing law to protect us all and ensure better standards in public life.
Other information in the public domain which may be of relevance in the above case:
There is a CQC record of inspections on a Charlton Court nursing home, 477-479 Bradford Road Pudsey Leeds West Yorkshire LS28 8ED, which is rated ‘Good’ by the CQC including on the well led domain:
There is also a Pearl Lorraine Jackson who is listed by Companies House as a director of 16 companiesincluding ADL PLC and Charlton Court Care Home Ltd.
Thirteen of these companies are listed as active. Amongst them are companies which run care home services:
Woodlands of Woolley Limited runs Woodlands Residential Home currently rated by CQC as “Good” and “Good” on the well led domain
Woodlands Healthcare Limited runs Sunnymede care home which is currently rated by CQC as ‘Requires Improvement’ and ‘Inadequate’ on the well led domain.
Solutions (Yorkshire) Limited runs Harewood Court Nursing Home currently rated by CQC as ‘Good’ and ‘Good’ on the well led domain. CQC lists a Pearl Lorraine Jackson as the ‘nominated individual’ for this home:
A person named Emma Hatfield is identified as a CQC inspector of adult social care services based in Leeds on the professional networking website, LinkedIn:
There is another LinkedIn account for a Yorkshire based Emma Hatfield, who is described as “Senior Forensic Nurse Examiner at Mountain Healthcare Limited”: