An unsatisfactory complaint investigation by NHS Improvement into breach of confidentiality by the National Guardian’s Office

By Dr Minh Alexander, NHS whistleblower and retired consultant psychiatrist, 27 February 2021

Summary: Dr Julian Campbell a consultant anaesthetist raised concerns with the National Guardian’s Office about bullying management practices at Harrogate and District NHS Foundation and a conflict of interest arising from the fact that the trust Freedom To Speak Up Guardian was married to the medical director. An independent review vindicated his concerns about poor trust governance. Dr Campbell was told by his trust chief executive that the National Guardian contacted the trust Freedom To Speak Up Guardian. This breached Dr Campbell’s confidentiality because he had not given permission for the National Guardian and her Office to contact the Harrogate Freedom To Speak Up Guardian. He was very distressed by the breach. Robert Francis was later asked to urgently protect NHS staff from any other such confidentiality breaches by the National Guardian’s Office. Francis did not address this primary concern and instead kicked the matter into governance long grass by setting off an NHS Improvement complaint investigation. This investigation has been very slow and two key witnesses were not interviewed. NHS Improvement blamed the National Guardian’s former case review manager for the breach of Dr Campbell’s confidentiality. NHS Improvement initially resisted a challenge about its incomplete investigation. However, after Dido Harding was asked to intervene, NHS Improvement made a partial concession and agreed to interview one of the two witness that it failed to question. Most troubling of all, the National Guardian and her Office have not apologised to Dr Campbell nor provided evidence of any improvement in their safeguarding of whistleblowers’ identities.  The hubris and disrespect shown by the National Guardian’s Office is breath-taking. Outing a whistleblower is extremely serious. In some jurisdictions, revealing a whistleblower’s identity is a criminal matter. Current, weak UK whistleblowing law fails to specifically protect whistleblower anonymity. Law reform is badly needed.

In August 2018 Dr Julian Campbell a consultant anaesthetist made disclosures to the National Guardian’s Office (NGO) about management bullying at his workplace, Harrogate and District NHS Foundation Trust and a conflict of interest in that the trust Freedom to Speak Up Guardian was married to the medical director. He also informed the NGO that his trust Chair and Chief Executive refused to recognise this conflict of interest.

Dr Campbell was later vindicated by a Deloitte review which confirmed multiple staff reports of bullying management practices, including under the radar, arbitrary restriction of several clinicians’ practice, with management application of “informal capability plans”. The affected staff were sometimes denied representation.

Deloitte also criticised the fact that a lack of staff confidence in the trust’s Freedom To Speak Up arrangements was linked to perceived conflict of interest relating to the trust Freedom To Speak Up Guardian.  

The details of the Deloitte review and the later removal of the Harrogate Freedom To Speak Up Guardian can be found here:

Bullying and harassment at Harrogate and District NHS Foundation Trust & a concern about the National Freedom To Speak Up Guardian

The NGO was slow in responding to Dr Campbell’s request for help.

Appallingly, it was not until eight months after Dr Campbell’s original request that he received a substantive response from the NGO.

Simon Pook the then NGO case review manager wrote to Dr Campbell in March 2019, suggesting that he should either “ raise a formal complaint, or request an internal review of the handling of your case”.

Dr Campbell was shocked by this:

I came to you as the last line of support. I have been treated abysmally by HDFT. Others have been treated abysmally too, but the courage and tenacity it takes to raise a complaint with external agencies is so great that most just want to bury themselves (some quite literally) and hope that it goes away.

To be offered support to raise the issues internally when I had understood that you would be an independent reviewer of the issues that I have raised is, quite frankly, devastating. Who will hold HDFT to account if the National Freedom to Speak Up Guardian won’t?”

Things got worse when Dr Campbell learned that his confidentiality had been breached by the NGO. His trust chief executive told him at a meeting on 11 June 2019 that the National Guardian herself had contacted Sylvia Wood, the trust Freedom To Speak Up Guardian.

Dr Campbell had not given the NGO permission to contact his trust Freedom To Speak Up Guardian.

He confronted the NGO case review manager about this, through an email of 13 June 2019.

“It has therefore caused me great distress to discover that the National Guardian did not contact the CEO, as your email indicated she would, but that she in fact contacted Sylvia Wood, who is now able to inform her husband.

Whilst I was happy to allow my identity to be known to the hospital in order to aid the quality of the investigation I did not expect that your first act would be to alert those whom I regard as my oppressors. I believe that the new Chief Executive would have been a more appropriate choice.”

Simon Pook’s reply of 14 June 2019 to the distressed email from Dr Campbell made no acknowledgment of the reported breach of confidentiality, offered no apology and merely stated that the National Guardian had made a telephone call to Steve Russell the Harrogate CEO that morning.

Since that time, Dr Campbell has received no satisfactory explanation for the apparent breach of his confidentiality.

I raised a concern about the reported breach with Robert Francis on 9 August 2020 in his capacity as a member of the National Guardian’s Accountability and Liaison Board, which provides scrutiny of the National Guardian’s work by her funders – the Care Quality Commission and NHS England/ Improvement.

Francis pushed the matter off his desk PDQ:

“Dear Dr Alexander

Thank you for raising for specific concerns about this case.  You asked me to enquire about it and I have.  I understand that this will now be treated as a complaint made by you, and no doubt you will be hearing further from the NGO.

As for the rest of your email I can only repeat what I have said before, and that I have no intention of withdrawing my support for the FTSU agenda

Kind regards

Robert Francis”

I responded to clarify that I was seeking to urgently make systems safer for NHS whistleblowers who might be forced to approach the National Guardian. I was not seeking to have the issues effectively kicked into the long grass of a complaints process which itself was marred by conflict of interest:

Letter to Robert Francis 11 August 2020, NGO handling of whistleblowers’ confidentiality, cc Matt Hancock, Dido Harding, Tom Grimes

But Francis persisted with kicking the urgent confidentiality issue into the long grass of a complaint process, mirroring what happens to whistleblowers whose concerns are sidelined and who are pushed into adversarial processes.

“Dear Dr Alexander

Thank you.

I will forward your further concerns about confidentiality for those who speak up to the NGO to be taken into account as this matter is considered in the complaint process.

Kind regards

Robert Francis”

Unsurprisingly, NHS Improvement’s complaint process has been unsatisfactory. It has been slow, missing deadlines, and key witnesses were not interviewed.

During the course of the investigation, NHS Improvement revealed the Harrogate Freedom To Speak Up Guardian had commented in correspondence to the NGO (not disclosed to Dr Campbell) that Dr Campbell was expected to retire:

“I have not been able to locate a note of such a call, but an email reply from the FTSU Guardian to the case review manager on 7 June said:

“I have spoken to Steve Russell (CEO) this morning. I believe Dr Campbell has decided to retire but has been in touch with Steve – who had already suggested meeting.”

This is a disturbing detail as Dr Campbell’s retirement should have had nothing to do with the proper handling of his concerns. It was also disturbing that the correspondence was not disclosed to Dr Campbell,

The final NHS Improvement complaint investigation report of 27 January 2021 into the apparent breach of Dr Campbell’s confidentiality was signed off and accepted in full by Andrew Morris, NHS Improvement Non Executive director and chair of the National Guardian’s Accountability and Liaison Board.

NHS Improvement’s carefully worded report blamed the NGO case review manager for the breach of Dr Campbell’s confidentiality:“That it is more likely than not that the NGO contacted the FTSU Guardian to discuss Dr Campbell’s concerns without his specific consent. This was inappropriate in the circumstances of the case and, in any event, the NGO should have notified Dr Campbell in advance of doing this. There is no evidence of the National Guardian, Dr Hughes, contacting contacted the trust’s FTSU Guardian about this case.”

“There is no primary evidence to demonstrate that the NGO contacted the trust’s FTSU Guardian to discuss Dr Campbell’s case without his specific consent. However, the trail of emails indicates to me that it is more likely than not that there was a telephone call between the case review manager and the FTSU Guardian between 3 and 7 June 2019 which discussed his case. I have not seen evidence that the NGO had specific consent to contact the FTSU Guardian in this way.”

Yet the NHSI investigation report was unclear regarding who had been interviewed as part of the investigation and what they had confirmed or denied.

The NHSI investigation was also silent as to whether the National Guardian was party to the flawed response to Dr Campbell’s concern that his confidentiality had been breached.

Also of concern, NHSI revealed that telephone contacts between the National Guardian and her Office and Harrogate District NHS Foundation Trust were not recorded in any detail, undermining accountability.

NHSI concluded that the NGO owed Dr Campbell an apology and that the NGO should improve its safeguarding of whistleblowers’ confidentiality:

“An apology from the NGO for the distress caused, and confirmation of an improved approach to such matters in future, would be an appropriate way of  resolving matters and addressing any distress caused to Dr Campbell as a result of this.”

I raised questions about NHSI’s investigation process, based on consultation with Dr Campbell and his wife:

Joint response 29 January 2021 to NHSI about its investigation process

NHSI later clarified that Simon Pook accepted that he had probably contacted the Harrogate Freedom To Speak Up Guardian:

“I have spoken to the case review manager and, although he did not specifically remember all the details, he accepted that the email trails indicate that he had spoken to the FTSU Guardian about Dr Campbell’s case.”

The facts of this case are simple. Dr Campbell flagged his fear that he could not disclose safely internally because his trust Freedom To Speak Up Guardian had a conflict of interest. He was then told by his trust chief executive that National Guardian had spoken to the trust Freedom to Speak Up Guardian without his permission, and he feared that this would have alerted her husband the medical director, with whom he was in conflict.

The key individuals in this affair were:

Simon Pook NGO case review manager – with whom Dr Campbell had negotiated the terms of any NGO contact with the trust – which did not include contacting the Freedom To Speak Up Guardian

Steve Russell CEO of Harrogate and District NHS Foundation Trust, who prior to taking up this post in April 2019 was Executive Regional Managing Director (London), NHS Improvement

Henrietta Hughes National Guardian whom Steve Russell reported had spoken to the Freedom To Speak Up Guardian about Dr Campbell’s case

Sylvia Wood the trust Freedom To Speak Up Guardian

It would have been logical to interview all four of these witnesses.

NHS Improvement clarified that it had questioned only Simon Pook and Henrietta Hughes in its complaint investigation.

Simon Pook, according to his LinkedIn CV, was promoted to pastures new in December 2019.

The issue of NHSI’s incomplete investigation was referred back to Andrew Morris, who reportedly declined to change course:

I have discussed with Sir Andrew and he is content that the investigation was reasonable and proportionate.”

Two subsequent emails later to Dido Harding, NHS Improvement has conceded that it will now interview Steve Russell the Harrogate CEO:

“…given your continued concern about this, I have discussed with Sir Andrew again and agreed that I will speak to the Chief Executive at Harrogate in the first instance.”

But significantly, NHSI has not yet undertaken to speak to the former Harrogate Freedom To Speak Up Guardian, who is the one person who would know exactly who from the National Guardian’s Office did or did not telephone her.

NHSI’s reluctance to carry out a straightforward investigation shakes confidence in its process.

This is an unfinished story, and I will report back on the ultimate outcome in due course.

 The National Guardian’s and NHS Improvement’s complaint policies  

Until now, it was not clear if any appeal mechanism existed in either the National Guardian’s and NHS Improvement’s complaint policies.   It was implied that there is no appeal process, because both policies indicate that complainants may go the PHSO if they are unhappy with a complaint outcome.  

This contrasts with other bodies as NHS Resolution, Public Health England and the Department of Health and Social Care, which all have a formal appeal mechanism explicitly built into their complaints process.  

NHS Resolution complaints policy
Public Health England complaints policy
Department of Health and Social Care complaints policy  

This seems like good practice in principle. It can potentially spare complainants the lengthy trauma of a PHSO process which may, based on track record, decide not to investigate. It also increases board accountability for complaint handling.  

NHSI’s reconsideration and concession that at least the Harrogate CEO will now be reviewed establishes a principle of appeal.  

It remains to be seen if NHSI and the National Guardian will formalise this in their respective policies.  

The National Guardian failed to respond at all to a request for clarification of whether there was any appeal mechanism in her process, and therefore it seems unlikely that she would treat the matter seriously.    

The unapologetic National Guardian’s Office

Meanwhile, Dr Campbell has astonishingly still not received an apology from the National Guardian’s Office.

The National Guardian has also not yet substantively replied to a question put to her on 22 December 2020, about whether she has made improvements to ensure that her Office does not breach whistleblowers’ confidentiality in the future.

“2 December 2020

Dear Henrietta,

The National Guardian & whistleblowers’ confidentiality

As NHS Improvement’s complaint investigation has been delayed several times and will drag on to the New Year at least, I write to ask the most pressing question: 

Has the National Guardian’s Office made the necessary policy and practice changes to ensure that it does not breach whistleblowers’ confidentiality in the future?

If it has, please could you advise what changes that have been made.

Yours sincerely,

Minh 

Dr Minh Alexander”

This lack of substantive response is despite further reminders.

The silence and the lack of apology are not reassuring of good governance by an agency, which given its stated purpose should be an exemplar. It is also a reflection on whether the National Guardian’s Office is – in the parlance of her employer – “Well-Led”.

I would advise any NHS whistleblowers who are forced to turn to the National Guardian’s Office to be extremely cautious, to get everything in writing and to consider making requests as needed for personal data under a Subject Access request, if they have concerns about any clandestine communication and or collusion between the National Guardian’s Office and their employer.

UK whistleblowing law and whistleblower anonymity

Current UK whistleblowing law is wholly ineffective and unlike EU whistleblowing law, it does not specifically protect whistleblowers’ rights to anonymity nor sanction those who fail to protect the identity of whistleblowers.

It is a very serious matter when whistleblowers’ identity is not protected. It is even more serious when confidentiality and anonymity are breached by an agency that is supposed to protect whistleblowers and to help ensure good whistleblowing governance. In some jurisdictions, there are criminal penalties for revealing a whistleblower’s identity without just cause.

If you have not done so already, please help by signing and sharing this petition to parliament for reform of UK whistleblowing law:

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

Many thanks

UPDATE:

I have written to the CQC chief executive, the National Guardian’s de facto line manager, to raise a concern that the National Guardian’s Office has failed to apologise for the breach of confidentiality or demonstrate learning. I have also asked the National Guardian’s funders, CQC and NHS England/ NHS Improvement to examine the effectiveness of the National Guardian’s Accountability and Liaison Board given that its two key members Robert Francis and Andrew Morris were both aware of the confidentiality breach but have not ensured an appropriate NGO response to this failure.

Letter 27.02.2021 to Ian Trenholm CQC CEO cc Peter Wyman CQC Chair and Dido Harding NHS Improvement Chair about the dysfunctional National Guardian’s Accountability & Liaison Board and failure to ensure apology and learning

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