By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist 21 February 2021
Summary: The government through NHS Improvement continues to be secretive about the much delayed implementation of the Kark review on Fit and Proper Persons in the NHS, whilst scandals continue. There is now a new scandal about possible CV fraud by Mason Fitzgerald, an NHS director who has worked at two mental health trusts and who was previously appointed to NHS Improvement’s Independent Panel advising NHS trust governors. However, CQC had claimed that all directors’ personnel files were in order at his current trust, Norfolk and Suffolk NHS Foundation Trust.
CQC’s published inspection material shows that the regulator does not produce standardised, complete evidence from its inspections. CQC does not reliably show that it checks that NHS trusts fulfil their Fit and Proper Person obligations. This includes verification of directors’ qualifications. Only in four of fifty three recent mental health inspections did CQC explicitly refer to checks of qualifications. In seventeen of the fifty three inspections CQC produced no evidence that it checked directors’ files for compliance with Regulation 5 Fit and Proper Persons (FPPR). Moreover CQC often checks only a selection rather than all directors’ files, and there appears to be variability in the level and frequency of disclosure and barring vetting required by different CQC teams. Even at a trust where a director had admitted CV fraud, Oxford University Hospitals NHS Foundation Trust, CQC produced no evidence in its inspection material of Fit and Proper Person checks of directors’ files.
In addition, Mason Fitzgerald would have been subject to an NHS Improvement Fit and Proper Person test by when the regulator previously appointed him to its Independent Panel to advise trust governors, and NHSI thus also has some questions to answer.
Steve Barclay the former Minister of State at the Department of Health and Social Care commissioned the Kark review on how the NHS fails to ensure that its senior managers are Fit and Proper Persons. This followed Bill Kirkup’s report on gross executive failures at Liverpool Community Health NHS Trust – sometimes referred to as Jeremy Hunt’s MidStaffs, because of similar themes of financial compliance dominance over care standards. The triggering of the Kark review followed many serious examples of CQC failing to respond appropriately to referrals of unfit NHS executives under Regulation 5.
Matt Hancock the Health Secretary cynically handed oversight of the implementation of the Kark review recommendations to NHS Improvement, a body centrally implicated in many serious FPPR failures. NHSI has helped shelter and recycle abusers and wrongdoers. Indeed, NHS Improvement appointed a director who was later convicted of fraud, and showed little inclination to learn after this was exposed:
Freedom to Speak Up Guardian jailed
Jon Andrewes fraud: NHS Improvement responds
NHS Improvement has done its best to seek dilution of the Kark recommendations, and has grossly delayed action. It has populated a steering group with establishment figures and a single token whistleblower – who is actually employed as an NHS trust as a Freedom To Speak Up Guardian, raising issues about independence.
I pressed NHS Improvement to be transparent about progress on the Kark implementation, and received a farcically opaque response after much chasing and a complaint about NHSI’s Chief People Officer’s repeated failure to respond to enquiries. The documents obtained from NHSI were redacted to the point of absurdity:
NHS Improvement FOI response Kark review implememtation
NHS FOI disclosure Kark reference group minutes 23 September 2019
NHS FOI disclosure Kark reference group minutes 4 November 2019
NHS FOI disclosure Kark reference group minutes 16 December 2019
NHSI FOI disclosure Kark reference group slides, undated
NHSI had previously disclosed earlier minutes from the steering group without redaction, so one wonders what unpalatable plans may be hidden by redaction of these later minutes.
And now we have an additional fit and proper person scandal in that there are concerns Mason Fitzgerald the Deputy Chief Executive of Norfolk and Suffolk NHS Foundation Trust (who had been scheduled to take up post as trust Chief Executive) may have misled employers about whether he possessed a Master of Laws, LLM.
This is Mason Fitzgerald’s biog, as reported in East London NHS Foundation Trust’s annual report 2018-19:
A look at his LinkedIn CV shows some unaccounted for gaps. Under CQC’s Fit and Proper guidance, CV gaps should be interrogated.
Arising from these concerns, reviews will be undertaken by Norfolk and Suffolk NHS Foundation Trust and East London NHS Foundation regarding their HR practice and governance.
NHS Improvement should also perhaps review its practices because Fitzgerald was on its Independent Panel for advising NHS trust governors.
The members of this NHSI panel were purportedly subjected to a Fit and Proper Person Test by NHSI:
NHS Improvement’s Fit and Proper Person Test for members of the Independent Panel advising NHS trust governors
Records of CQC checks on NHS trust directors’ credentials under Regulation 5 Fit and Proper Persons
The Care Quality Commission also has questions to answer. It is supposed to ensure that providers comply with CQC Regulation 5 Fit and Proper Persons.
In the evidence appendix for CQC’s last inspection report on Norfolk and Suffolk NHS Foundation Trust published 15 January 2020, after Fitzgerald joined NSFT full time in November 2019 (NSFT records from a trust board meeting in fact indicated that he was NSFT’s deputy chief executive and director of strategic partnerships from 1 October 2019), CQC claimed:
“Recruitment files demonstrated all appointments to the board had been completed in line with fit and proper person guidelines. More recent appointments demonstrated the improved involvement of governors in recruitment and there had been efforts to involve people who use services in the recruitment process more recently.”
Was this claim true? Did there appear to be documentary proof of the law degree in Fitzgerald’s personnel file? Or did this inspection cut corners and falsely claim that it had checked everything?
The CQC inspection team which claimed that all Norfolk and Suffolk board appointments complied with Regulation 5 comprised:
“Julie Meikle, Head of Hospital Inspection, CQC and Jane Crolley, Inspection Manager, CQC led this inspection. One executive reviewer and two specialist professional advisor with board experience and knowledge of governance supported our inspection of well-led for the trust overall. The team for the eight core service inspections included three inspection managers, 17 further inspectors,16 specialist advisors and 10 experts by experience.”
A quick look at CQC’s recent inspection reports and supporting evidence appendices reveals that CQC does not demonstrate in any reliable, standardised way that it carries out comprehensive checks of trust directors’ credentials.
A spreadsheet collating my findings can be found here.
I found seventeen out of fifty three (32%) recent CQC inspections of trusts which provide mental health services, did not produce evidence that Fit and Proper Person checks were made on trust directors’ personnel files:
Some of these seventeen trusts, where CQC failed to provide evidence of FPPR checks, have directors about whom whistleblowers had raised concerns with the CQC.
Where CQC made reference to Fit and Proper Person checks in inspection records, there was great variability in the level of detail given. The evidence produced by CQC could be as terse as:
“Fit and Proper Person checks were in place.”
Strikingly, in the context of the current concerns about possible CV fraud by Mason Fitzgerald, only four of the fifty three (7.5%) CQC mental health inspections referred to specific checks of trust directors’ qualifications.
Some CQC inspections teams checked all directors’ personnel files. But many inspection teams checked only a “selection” of directors’ personnel files, leaving it open to fraudsters and chancers to roll the dice.
The duty for providers under Regulation 5 is not only to carry out checks at appointment, but to ensure that directors continue to be Fit and Proper Persons:
“The provider must regularly review the fitness of directors to ensure that they remain fit for the role they are in.”
However, CQC’s inspection records show that many inspection teams are only checking the files of the most recently appointed trust directors, implying that inspectors take the dubious view that appointment checks suffice on their own.
There is also variability in what CQC tolerates in terms of how trusts seek vetting by the Disclosure and Barring Scheme. Some inspection teams seemed to accept lack of refreshment of DBS checks, or lower levels of DBS checks than others.
Not all inspection teams gave evidence that they had checked directors’ files for declarations of interest or information on health.
CQC findings on Fit and Proper Persons were sometimes only found in the evidence appendices, and not the substantive CQC inspection reports. Evidence appendices were not published for all inspections.
An unattractive aspect of the NHS is protectionism and club culture, particularly where the over-promoted defend their interests – and inflated salaries – by any desperate means available.
CQC has institutionalised some of this club culture in that it has invited trust directors to take part in inspections of their peers – surely an invitation to backscratching:
Is there a ‘club culture’ at the heart of the NHS’s quality regulator?
I looked at the teams behind the seventeen CQC mental health inspections which did not produce any evidence of Fit and Proper Person checks.
CQC does not always name the senior staff responsible for its inspections. But where names were given, these were the CQC staff associated with the seventeen inspections that did not produce evidence of Fit and Proper Person checks:
Kathryn Mason Head of Hospital Inspection x 3 inspections
Jane Ray Head of Hospital Inspection x 3 inspections
Serena Coleman Inspection Manager x 2 inspections
Helen Rawlings Head of Hospital Inspection x 1 inspection
Karen Bennett-Wilson Head of Hospital Inspection x 1 inspection
Emma Bekefi Inspection Manager x 1 inspection
Surinder Kaur Inspection Manager x 1 inspection
Natasha Sloman Head of Inspection x 1 inspection
Evan Humphries Inspection Manager x 1 inspection
The “executive Reviewers” (senior managers whom CQC recruits to “support inspections of the leadership of trusts”) who took part in the seventeen inspections of concern were:
Samantha Allen CEO Sussex Partnership NHS Foundation Trust x 1 inspection
Beverly Murphy Director of Nursing West London NHS Trust x 1 inspection
Jagtar Singh Chair of Coventry and Warwickshire NHS Trust x 1 inspection
Aidan Thomas former CEO of Norfolk and Suffolk NHS Foundation Trust and Cambridgeshire and Peterborough NHS Foundation Trust x 1 inspection
David Rogers Chair of North Staffordshire Combined Healthcare NHS trust x 1 inspection
Paul Devlin Chair of Lincolnshire Partnership NHS Trust x 1 inspection
Martin Gower Chair of Midlands Partnership NHS Foundation Trust x 1 inspection
John Vaughan Director of Strategy and Performance, Central and North West London NHS Foundation Trust x 1 inspection
David Rogers and Paul Devlin were on the same CQC inspection team which inspected Oxleas NHS Foundation Trust in 2019, the trust where Paul Lelliott the former CQC Deputy Chief Inspector of Hospitals was formerly based.
In addition to trusts which provide mental health services, I also looked at a selection of other types of trusts.
A particularly detailed CQC entry was made on the Fit and Proper Person checks at West Suffolk NHS Foundation Trust, where Matt Hancock was implicated in a whistleblower scandal but is currently sitting on an investigation into the affair. CQC’s identified missing references for some directors.
At North Lincolnshire and Goole NHS Foundation where the trust Chair was criticised for derogatory comments about a whistleblower, CQC “found gaps in some files including lack of qualification and professional body checks, and interview notes.”
Peter Knight a director of the powerful Oxford University Hospitals NHS Foundation Trust admitted CV fraud in August 2018, after the trust received an anonymous warning. He was later convicted in December 2019 for CV fraud, and received a suspended prison sentence in January 2020.
However, prior to Knight’s admission of CV fraud, a CQC inspection report of March 2018 concluded that the trust was compliant with Regulation 5 Fit and Proper Persons based on checking only three directors’ personnel files:
“We reviewed a random sample of three board level director’s personnel files and found all the necessary fit and proper person checks had been undertaken.”
Worryingly, CQC’s 2019 inspection records on OUH gave no evidence that the regulator had performed Fit and Proper checks of directors’ files, when one would have thought this would have been an important issue.
See: NHS CV fraud, Peter Knight & CQC’s failure to safely implement Regulation 5 Fit and Proper Persons at Oxford University Hospitals NHS Foundation Trust
The CQC inspection team behind the 2019 inspection report of OUH included Amanda Williams, CQC Head of Hospital Inspections, and Sarah Connery, who is currently acting CEO at Lincolnshire Partnership NHS Foundation Trust.
“Amanda Williams Head of Hospital Inspections led this inspection. An executive reviewer, Sarah Connery, Director of Finance and Information supported our inspection of well-led for the trust overall. The team included two inspection managers, 15 inspectors and one assistant inspector and 18 specialist advisers.”
Similarly, CQC did not demonstrate that it carried out Fit and Person file checks in an inspection of Devon Partnership NHS in 2019, even though Jon Andrewes a trust director been jailed for CV fraud in 2017.
The 2019 CQC inspection team at Devon Partnership comprised:
“Karen Bennett-Wilson, Head of Hospital Inspection for South West Mental Health chaired this inspection and Evan Humphries, Inspection Manager, led it. Executive reviewers supported our inspection of well-led for the trust overall. The team included inspectors, executive reviewers, specialist advisers and experts by experience.”
I will send this data on CQC’s variable reporting about Fit and Proper Person checks to the CQC, and I have asked for details of CQC’s official policies and procedures in this area.
The poor governance on FPPR is an important part of the failure to protect NHS whistleblowers, because of impunity for corrupt senior managers who cover up and victimise whistleblowers.
We need much stronger UK whistleblowing law to enforce greater accountability and to deter dishonest and abusive practices.
If you have not done so, please sign and help share this petition to parliament for law reform.
Petition: Replace weak UK whistleblowing law, and protect whistleblowers and the public
UPDATE 22 FEB 2021
I have written again to Prerana Issar Chief People Officer for the NHS about the delay in the Kark review implementation and other matters, chiefly NHS Improvement’s continuing failure to properly check the qualifications of all NHS directors whom it appoints to non-Foundation NHS trusts:
Letter to Prerana Issar NHS Chief People Officer 22 February 2021 Kark, Fit and Proper Persons, NHSI failure to check the qualifications of all NHS directors whom it appoints
Replacing the Public Interest Disclosure Act (PIDA)
Postscripts on Paula. NHS England’s apologia & regulatory reticence
Sorry is the hardest word: CQC, Paula Vasco-Knight and Regulation 5 Fit and Proper Persons
Regulation 5, Fit and Proper Persons: Dissecting CQC’s Dissembling