Shopping for whistleblowing bodies: An Ombudsman doesn’t suffice for whistleblowing governance

By Dr Minh Alexander and Clare Sardari, 18 November 2020

The UK does not have a central whistleblowing body, like the long established US Office of Special Counsel (OSC) which has responsibility for protecting public sector (federal) whistleblowers. OSC has a wide range of powers and can help ensure redress. Instead, we have a vast, chaotic jigsaw of UK bodies who mostly have minimal duties and powers in niche areas. In the English NHS we have a harmful, toothless National Guardian’s Office for the NHS which serves mainly to mislead and pump out government propaganda. In Scotland, NHS whistleblowers can turn to the Independent National Whistleblowing Officer, who is part of the Scottish Public Services Ombudsman (SPSO). This has powers of investigation but not of enforcement of its recommendations. It is early days for this body but there is no reason to expect that its lack of necessary powers will lead to much change.

The UK Parliamentary and Health Service Ombudsman (PHSO) also lacks powers of enforcement and has shown itself incapable on many occasions of delivering justice to those complaining about UK government departments and public authorities, including the NHS. An example follows of an expensively unsatisfactory process in which PHSO made a finding of maladministration by the Care Quality Commission in a whistleblowing matter, but failed to ensure real learning and change. PHSO also failed to correct a factual inaccuracy in its report despite being warned before publication, and the Ombudsman himself ignored concerns about this for seven months. It also came to light that PHSO, unlike its Scottish counterpart the SPSO, had no process for dealing with complaints about the Ombudsman himself, a strong indicator of arbitrary power and lack of accountability.

There is ongoing debate about what form any central whistleblowing body should take, if we ever get that far. The strongest and safest offering out of three current candidates is the Bill by Dr Philippa Whitford: the Public Interest Disclosure (Protection) Bill, with the proviso that this needs to answer to parliament and not be conflicted by the political interests of any government.

The questionable Whistleblowing APPG (funded & linked to US bounty hunters) has fielded a suspiciously brief Bill. It gives us only a pig in a poke and has some important omissions:

The Whistleblowing APPG’s new Bill and unanswered questions about finances and potential conflicts of interest

Protect’s Bill gives us a whistleblowing body that does not investigate, despite a fallacious claim in a Protect blog that it does. This is correspondence exchanged with Protect’s CEO in which she declined to commit to changing Protect’s Bill (which merely amends rather than replacing PIDA), to give their proposed whistleblowing body powers of investigation. She merely undertook to correct the false claim in Protect’s blog.

Correspondence with Liz Gardiner Protect CEO about Protect’s intention to ensure effective investigation of whistleblowers’ concerns

Whistleblowers do not need endless window dressing and tortuous, ineffective processes that only re-traumatise them. The public needs real protection, not propaganda factories which waste our money in protection of the powerful. What is needed is a truly independent body with real powers to establish the truth and to act upon it.

If you have not already done so, please sign and share the petition for much safer UK whistleblowing law, which is strong enough to prevent cover ups and to ensure the public are protected:

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RELATED ITEMS

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

National Guardian’s gaslighting exclusion criteria: the never ending story

EVIDENCE SUBMISSION TO PUBLIC ADMINISTRATION AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE FOR THE PHSO SCRUTINY HEARING 2019-20

This submission was published in redacted form by parliament  to remove third party correspondence. Committee members will be provided with the unredacted submission so they can see the primary evidence underlying the submission.

This is an unredacted copy of the submission which includes the supporting correspondence:

BY EMAIL

Public Administration and Constitutional Affairs Committee

29 October 2020

Dear Mr Wragg and colleagues,

Evidence submission for PACAC scrutiny hearing on PHSO 2019-20

We write to submit evidence on a recent experience of the PHSO and policy issues raised by this experience.

PHSO investigated a complaint of a mishandled referral to the Care Quality Commission under Regulation 5 Fit and Proper Person, about an NHS trust director who had been found guilty of proven whistleblower reprisal and breach of the NHS managers code of conduct (an under-declared family interest), who was subsequently convicted of fraud and also criticised for her attempts to resist the proceeds of crime process.

In our view:

  • The PHSO process was too protracted
  • The Ombudsman himself was unaccountable with regard to a PHSO failure to correct a factual error in its final report, despite this inaccuracy being pointed out prior to publication. He failed for seven months to respond to correspondence which pointed out the pre-publication failure to correct the inaccuracy.
  • Concerns raised about this lack of accountability led to the discovery that PHSO has no special procedure for complaints about the Ombudsman himself, causing inherent conflicts in the PHSO’s response to any complaints about the Ombudsman himself. This is an astonishing failure by a body which is supposed to be a specialist on complaints handling and it raises underlying issues of culture and organisational hubris.
  • There was a lack of rigour by the PHSO in pursuing compliance with its recommendations for corrective action by the CQC, notwithstanding its lack of enforcement powers. It seemed to us that a procedural box had been ticked and thereafter, the PHSO was not interested in enough in ensuring that there was learning or genuine remedy of injustice. The CQC CEO undermined an official apology given as part of the PHSO process, and to our knowledge, PHSO did not challenge this, contrary to its stated aims:

“We do not have legal powers to enforce our recommendations, but where an organisation is reluctant to implement them, we will try our best to persuade it to do so.”

https://www.ombudsman.org.uk/organisations-we-investigate/putting-things-right

Requests

  1. We do not consider that the PHSO model is robust enough to deliver accountability and good governance in public life, because of insufficient powers and the lack of a duty on the PHSO to enforce improvements and corrections. It does not seem good value for money (budget 2019-20: £25.942 million) and we ask parliament to consider an alternative model of conflict resolution.
  • We ask parliament to ensure that PHSO establishes a specific complaint procedure about complaints about the Ombudsman himself, which introduces an element of independence and external scrutiny. It would be unsafe and unjust to leave complaints about the Ombudsman in his own hands or the hands of his subordinates. In contrast, the Scottish Public Services Ombudsman has a policy for addressing conflicts of interest.
  • We suggest that the PHSO should have a process for handling self-evident factual inaccuracies in its final reports. It should be required to issue post-publication clarification, so that false narratives are not allowed to lie on the record without countervailing facts. The suggested process for acknowledging factual errors in PHSO’s final reports should be published and transparent to the public.

Please see in the appendix below the following items:

  1. Copy of email by Mandy Campbell which admitted that PHSO has no specific process for responding to complaints about the Ombudsman himself.
  • Copy of relevant section from the Scottish Public Services Ombudsman’s complaint policy, about their arrangements for impartiality in the handling complaints about the Ombudsman herself.
  • A more detailed account by Clare Sardari of her experience of the impact of the PHSO process.

Yours sincerely,

Dr Minh Alexander

Clare Sardari

APPENDIX

  1. Email by Mandy Campbell PHSO Chief Executive about lack of process for complaints about the Ombudsman himself:

From: Campbell Amanda <REDACTED>

Subject: RE: PHSO’s handling of a factual inaccuracy in investigation report HC 1815 of 13 December 2018, “Blowing the Whistle: An investigation into the Care Quality Commission’s regulation of the Fit and Proper Person Requirement”

Date: 30 August 2019 at 14:00:52 BST

To: Minh Alexander <REDACTED>, InformationRights <REDACTED>

Dear Dr Alexander

There is no policy that deals with complaints about the Ombudsman himself which is why I, as the Chief Executive, have taken a personal interest in your complaint and ensured that it has been responded to in an appropriate way.

I have copied this correspondence to the Information Rights team who will take forward your data disclosure request.

Yours sincerely

Amanda Campbell

Amanda Campbell CBE

Chief Executive Officer

Parliamentary and Health Service Ombudsman

  • Excerpt from SPSO complaints policy on handling complaints about senior staff and the Ombudsman herself:

“CSCs about senior staff and the Ombudsman

  • CSCs about senior staff (staff on the Leadership Team) can be challenging to handle, as there may be a conflict of interest for the staff investigating the CSC. When serious CSCs are raised against senior staff, it is particularly important that the investigation is conducted by an individual who is independent of the situation. Serious complaints include those types of complaints that pose significant operational, reputational, safety or financial risk to SPSO or its customers. Such CSCs must be immediately escalated to the Head of ISE and depending on the seriousness of the complaint in their view, to the Ombudsman. We must ensure we have strong governance arrangements in place that set out clear procedures for handling such CSCs.
  • Generally, it will be acceptable for the Ombudsman to investigate a CSC about a member of the Leadership Team where there is a segregation of duties and clearly no conflict of interest. This would include where the investigation officer has had no involvement in the matter complained about. In such instances, the Ombudsman should be consulted on the response to the complaint and make the final decision on the complaint based on the evidence identified by the investigation.
  • In relation to CSCs about the Ombudsman, a judgement needs to be made about whether the complaint relates to specific conduct or action by the Ombudsman or whether it relates to actions taken by the Ombudsman’s staff in their name (i.e. about the organisation). Where the complaint specifically relates to the conduct, behaviours or actions by the Ombudsman, the Head of ISE will assess the merits of the case and decide if the complaint should be referred immediately to the ICRS, or considered initially by a member of the Leadership Team. The ICRS will consider complaints about the Ombudsman’s conduct, behaviours or actions when referred by SPSO.”
  • Evidence for PACAC Scrutiny Session 2020 with PHSO by Clare Sardari

In 2014 when I raised a concern regarding nepotism at Chief Executive level in South Devon NHS Trust, little did I know that my future – emotionally, economically, socially, mentally, career-wise and in just about every possible way imaginable, would be harmed so dramatically. Little did I know that the processes and structures in place in the NHS and under UK law to ‘protect’ and care for those who were carrying out their responsibilities and duties as laid down by organisational and national policies, and the law, would be on the whole, useless or corrupt in their own way.

Concerns/complaints are the same thing – they are expressions of discontent or worry and particularly, from my experience, the NHS says one thing and acts in quite a different way when addressing these complaints/concerns. The Department of Health and Social Care has set up regulators – CQC, NHSE, NHSI etc, an Ombudsman and a Freedom To Speak Up service. But, what is now completely apparent, is that none of these bodies have been given the authority or powers to take responsibility for even the most heinous of behaviour within the NHS or Social Care.  Either they have fobbed me off with their denials of responsibility or they actually don’t have the powers to take action despite supposedly offering supportive services; either way, this situation is completely untenable. With every issue I have raised post winning at ET (if you can call it that!), the response has been ‘we don’t deal with that’ or ‘that is not our responsibility’. As a service user of the NHS, I have been thwarted at every stage in my pursuit of justice.

So today the issue of COMPLAINT is the area I’d like to pursue with regards to my contact with the PHSO and their investigation into CQC’s regulation and administration of the Fit and Proper Persons Requirement (FPPR).

In 2017, I complained to the PHSO, supported by my then MP and Chair of the Commons Health Select Committee Sarah Wollaston, about CQC’s involvement in the recycling of Paula Vasco Knight to the position of interim Chief Executive at St Georges Hospital in London.

After investigation the PHSO found that CQC’s handling of FPPR was not transparent, fair or proportionate and this amounted to maladministration. (a link to the ‘Blowing the whistle: an investigation into the Care Quality Commission’s regulation of the Fit and Proper Persons Requirement’)

Subsequently, the PHSO recommended that CQC, within 8 weeks of the report should:

  1. apologise for the injustice (loss of opportunity, frustration and distress) their actions have caused me
  1. offer me £500 in recognition of the injustice caused;
  2. review their learning from this case and report back about improvements they have made to demonstrate rigour in their FPPR considerations in future.

Below, I have cut and paste the ‘apology’ letter I received from Professor Edward Baker – Chief Inspector of Hospitals. I was most disappointed and distressed by the tokenistic and very grudging apology he gave me on behalf of the CQC. It was the height of condescension and certainly did not reassure me that the CQC meant to learn anything from this process.  I am in complete agreement with the Ombudsman’s Principles of Good Administration but cannot identify the part in Professor Baker’s letter which adheres to the general principle of ‘Putting things right…’ What he does successfully is he puts the words in the right order but there is no sincerity, thus he is not putting things right! He is doing the bare minimum that has been asked of him and he makes that very clear.

Dear Ms Sardari,

14 December 2018

I write further to the Parliamentary and Health Service Ombudsman (PHSO) investigation of your complaint regarding the Care Quality Commission’s (CQC) application of the Fit and Proper Persons Requirement (FPPR) in relation to the appointment of a Chief Executive to Trust P in 2016. I understand that a copy of the final PHSO report has been shared you.

The PHSO has partially upheld your complaint overall and set out a number of recommendations for CQC.

We are sympathetic to your experience, and are sorry for the frustration and distress caused to you through CQC’s application of the FPPR process. In recognition of this, the PHSO has asked us to offer you a consolatory payment of £500. Please can you email your relevant bank details including the sort code and bank account details to ……………. upon receipt we will make arrangements to make a BACS transfer to you.

In respect of the final recommendation outlined by the PHSO, CQC will undertake a review on how to make improvement to the current FPPR process and will update the PHSO in due course.

Yours sincerely,

Professor Edward Baker Chief Inspector for Hospitals

page1image48706560

This apology coincided with a press release from Ian Trenholm CQC CEO

“We recognise that the handling of this case – both by CQC and by wider NHS organisations – did not meet Ms Sardari’s expectations of how the Fit Proper Persons Requirement (FPPR) should operate, and acknowledge her frustration and distress. We take the treatment of whistleblowers very seriously and are wholly committed to the Speak Up agenda.

“This was a challenging case which clearly demonstrates the difficulties faced by NHS bodies who are required to operate the FPPR system and for CQC operating under the current regulatory framework. The current framework needs reform if it is to meet the needs of people, providers and regulators. 

“Those difficulties have been acknowledged for some time and they are the subject of an independent Review by Tom Kark QC, who is due to report to the Department of Health and Social Care shortly. 

“We do have concerns about the approach adopted by the Parliamentary and Health Service Ombudsman (PHSO) which led to some of the findings of maladministration.  There was a considerable amount of contradictory evidence for the Trust to assess.  This included an Employment Tribunal decision, which was not consistent with other pieces of evidence.  Under existing FPPR regulation our role is to consider whether the Trust acted reasonably in coming to their conclusions about the weight that should be attached to various pieces of evidence, rather than whether we would have reached the same conclusions. We judged the Trust had performed its obligations reasonably when faced with this difficult situation.  We are disappointed that the PHSO came to a different conclusion. We have made these concerns clear in our response to the report.”

As a result of the ‘apology’ letter and Ian Trenholm’s press release I decided to complain to Peter Wyman – Chairman CQC– see below:

Dear Mr Wyman,

Complaint about Ian Trenholm’s actions in response to PHSO report on the Paula Vasco-knight FPPR

It is with regret that I would like to make a complaint about the actions of Ian Trenholm, CEO of CQC.

His press release statement following the publishing of the PHSO’s Blowing the Whistle: an investigation into the Care Quality Commission’s regulation of the Fit and Proper Persons Requirement, is insulting, distressing and patronising.  He does not accept responsibility for CQC’s errors and he continues to promote  the strong message that  those who victimise whistleblowers should escape accountability. 

I don’t want him to recognise that CQC did not meet my expectations, I want him to recognise that accountability is vital in protecting the public interest. 

My complaint also lies with his and CQC’s ability to determine the importance and weighting of evidence. It is not a question of numbers of pieces of evidence it is about the weight of each individual piece. The ET decision was the weightiest piece of evidence in this assessment of FPPR, because, in law, it evidenced several aspects of discrimination and reprisal against me. 

The fact is that neither St Georges nor CQC acted reasonably in coming to any of their conclusions, and such governance failure is putting Trusts, their staff and patients at serious risk of harm.

I am seriously concerned that Mr Ian Trenholm’s press statement and comments in the Health Service Journal today contradicted and totally undermined the apology that I received from the CQC via Prof Ted Baker CQC Chief Inspector of Hospitals.

I had been disappointed by the limited concessions made in Prof Baker’s letter of ‘apology’. I was amazed and very distressed when even that was effectively taken away by Mr Trenholm’s defiant comments and denials that CQC had erred.

It makes a farce out of the PHSO process, which itself has been prolonged and stressful for me, and forced me to re-live unpleasant experiences.

Mr Trenholm’s actions disrespected me and they disrespected the basic principles of justice which underlie the PHSO process.

He should not have cocked a snoot at a long, significant investigation nor brushed aside my concerns about injustice in such a manner. To me, that is just more maladministration.

Rather, he should be reflecting much more seriously on how CQC got it so wrong. 

Justice demands that such frailties having been exposed in CQC’s processes, the regulator should now ensure that there is meaningful review of all the FPPR referrals that CQC has rejected. 

The likelihood is that CQC has allowed unfit directors to continue working in the NHS, and this is a serious patient safety and Safeguarding issue.

I await your earliest response.

Yours sincerely,

Clare

Clare Sardari

 Cc Matt Hancock Secretary of State 

Please find below a copy of the reply I received from Peter Wyman:

page1image48666512
page2image48689968

The third and final recommendation the PHSO report made was that the CQC would:

Review their learning from this case and report back about improvements they have made to demonstrate rigour in their FPPR considerations in future.

From this statement, I was under the impression that I would receive details of CQC’s learning and improvements. Apparently, this information is not generally provided as a matter of course to the complainant. I find this obscure as the main reason for complaining is to bring about change. I also need to see the evidence that the changes have actually occurred or will be made.

I did receive this from PHSO when I asked for evidence of compliance:

Many thanks for your patience regarding the compliance in relation to our investigation about the CQC.  As you know, we have been liaising with the CQC in relation to action we recommended they take on your case – that they review their learning and report back on improvements they have made to demonstrate rigour in their FPPR considerations.  We consider that we have seen evidence to show that they have completed that action. 

In particular, the CQC have appointed an independent legal adviser, whose role is to consider all the evidence on FPPR cases and then submit advice to the FPPR Panel.  The FPPR Panel have also taken steps to ensure that their discussions and decisions on FPPR matters are detailed and recorded.  We believe that this provides an added layer of robustness to the decision-making process and an improved audit trail.  Therefore, we are satisfied that the CQC have adequately addressed the failings we found and compliance is complete.

I then asked the CQC for the name and contact details of the newly appointed legal adviser

I am writing in response to your query about the CQC’s compliance with our recommendation following out publication of our investigation report into your complaint.  You said that the CQC had refused to release the name of the legal adviser who provides independent advice.  You said that you were concerned that this showed that the CQC were not complying with our recommendation to ensure rigour in their handling of FPPR. 

As we explained in July 2019, we are satisfied that the CQC has complied with our recommendation on your case.  The CQC have appointed an independent legal adviser, whose role is to consider all the evidence on FPPR cases and then submit advice to the FPPR Panel. The FPPR Panel have also taken steps to ensure that their discussions and decisions on FPPR matters are detailed and recorded. We believe that this provides an added layer of robustness to the decision-making process and an improved audit trail. In other words, the CQC provided evidence of added rigour in the FPPR process, which delivered what we asked of them in our recommendation.

That said, we wanted to give you additional confidence about the present FPPR process followed by the CQC.  For that reason, we made enquiries to the CQC to see if they would be able to provide further evidence about the legal adviser’s actions in present FPPR cases.  The CQC said that they were concerned about sharing information with us which is unrelated to your particular complaint and includes personal information about others.  Therefore, they felt unable to provide more information to us.  

We are not a regulator. It is not our role to monitor the CQC’s ongoing actions.  We cannot compel the CQC to provide us with evidence once our investigation is closed. For these reasons, we propose to take no further action on your case.  The only way we may be able to intervene further is if we receive a fresh complaint which has completed the complaints process.

I recognise that you may be disappointed with our response, however, I hope you are reassured that we have taken it seriously.  Our involvement in your case is at an end and it is difficult to see how we might be of further assistance in the absence of a fresh complaint.

I am regularly advised that as a whistleblower my views, information, concerns, experiences etc are valued and respected (see communications above) but still the disrespect, and disregard continues and remains a consistent part in the way that power responds to me – a much harmed whistleblower that the system purports to want to protect!

I now return to the general heading of this evidence relating to the PHSO’s investigation into CQC’s administration of FPPR – COMPLAINT

As you will see throughout, there is no one taking responsibility for ensuring that action takes place for change. Everyone is telling everyone what they should be doing but no-one is ensuring it is done because none of the regulators are being held to account to provide evidence.

PHSO ‘recommended’ that CQC apologise to me. As I mentioned above, the word ‘sorry’ was used but not in a way that anyone could possibly believe was genuinely meant. The context, and the giving with one hand and the taking away with the other resulted in more frustration on my part and further raising of concerns or complaints.

The specific evidence of meaningful change and improvements were not shared and although I understand that confidentiality should be maintained, why can I not know the name and contact details of a legal adviser? Where does transparency figure in all of this? To me, this smacks of secretive behaviour, of fear of retribution or discovery instead of openness and transparency. Transparency is about seeing things clearly, the first step towards inspecting and adapting, or changing things for the better!

The financial remedy is tokenistic, I accepted it as my current income is limited and every little helps, but does it really compensate for the emotional and mental damage of the harm caused by the recycling and subsequent validation of Paula Vasco Knight? It does, however affect my own perception of my value to society – £500!

Where does my pain end? Is it when I have been brow beaten into defeat by the NHS because I dared to raise a concern/complaint against one of their rising stars?

So at the end of the day do I think that the stress of the PHSO investigation and the outcomes as a result, represent good value for money, and good value for the personal stress involved in the process and the added stress at the end?   No, I don’t. The only way change will happen is when those who can hold others to account on their behaviour have the power to do so, until then the status quo remains. Effective complaint handling could make all the difference, but it must go hand in hand with the power to take action and create change. Additionally, new legislation which properly protects whistleblowers from detriment from the moment a concern or issue is raised, is probably the only way forward for a more equal, open and transparent NHS and society!

One thought on “Shopping for whistleblowing bodies: An Ombudsman doesn’t suffice for whistleblowing governance

  1. Unfortunately, I haven’t had time to study this report to the degree it deserves but, just a cursory glance compels me to simply thank you for reporting and highlighting such a grave matter.

    My sincerest good wishes to the victims. May justice eventually prevail.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s