More CQC denial about collusion with employers against whistleblowers

By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist, 7 March 2021

Summary: The regulator the Care Quality Commission was implicated in a case of whistleblower reprisal by a private social care provider. An Employment Tribunal case revealed CQC emails exchanged with the provider in which Emma Hatfield a CQC inspector made critical comments about a care home whistleblower. The Employment Tribunal concluded that these comments showed a lack of impartiality. In addition, the ET severely criticised Pearl Jackson a director of the provider for harming and threatening the whistleblowers, behaving in a “dishonest” manner during proceedings and showing contempt for the ET. The provider company is part of a complex web of companies which according to Companies House, appear to lead back to the Cayman islands.   I drew the ET matters to the attention of Kate Terroni CQC’s Chief Inspector of Adult Social Care but she ignored the letter. I escalated matters to Peter Wyman CQC Chair. After this I received a troubling response from Mary Cridge CQC Deputy Chief Inspector of Adult Social Care. This response minimised the failure of regulatory impartiality by Emma Hatfield and even sought to cast more aspersions on the whistleblower based on what appeared to be employer hearsay. CQC has produced no evidence to show that it has taken action to prevent future failures of impartiality. Mary Cridge herself has made public overtures to the senior managers of providers which raise questions about boundaries.  She has been the CQC’s own Freedom To Speak Up Guardian since 2016.   The CQC declined to take any action against the whistleblowers’ employer under CQC Regulation 5 Fit and Proper Persons (FPPR) other than to ask if the provider was satisfied with Pearl Jackson’s fitness and expressing an intention to “monitor” services overseen by Pearl Jackson. Moreover, the CQC has declared that it will ignore any further correspondence from me on these matters because I was not directly affected. It has not taken this approach to other FPPR referrals in the past. One has to question why the CQC is so defensive in this particular case.   Charlton Court care home Pudsey Leeds, where the whistleblowers worked, is rated ‘Good’ across the board by the CQC, including on the Well Led domain. The CQC praised Charlton Court’s handling of complaints and concerns.   The public record in fact indicates that Pearl Jackson was apparently prosecuted for several counts of care home neglect and ill treatment in 2008, but the trial was halted due to CPS failure to disclose documents. I have now drawn CQC’s attention to the public record, assuming CQC is not already aware. I have asked CQC to show that it has taken action to ensure inspectors act impartially towards whistleblowers in future, and to ensure that a proper investigation is undertaken into the FPPR issues.

Background

On 11 December 2019 the Employment Tribunal found in favour of two care home whistleblowers Karen McGuire and Tracy Skitt, whom the Tribunal determined had been subject to detriment and unfair constructive dismissal. They were both forced to resign because their identities were revealed and their positions became untenable. They also suffered post-employment detriment such as employer intimidation. Ms Skitt was according to the ET additionally victimised through a “false” letter of dismissal.

The ET summarised as follows:

“The claimants were working in a home where they were both identified as the carers responsible for making disclosures to seniors/managers alleging neglect and complaining that the other carers were not doing their jobs properly. This was a home where gossip, division blame and bad feeling towards the claimants was openly expressed and condoned by management. Instead of following the whistleblowing procedures in place to protect those who alert the employer to suspected neglect/abuse they sided with the other carers.”

The named respondents were ADL PLC, Charlton Court Care Home Ltd and Pearl Jackson, a director of both companies.

I wrote about this strange and disturbing case after a Good Samaritan drew my attention to the judgment:

More CQC-Employer collusion against whistleblowers

The case echoes the story of Helen Rochester, who suffered detriment ultimately caused by the Care Quality Commission who should have held her employer to account, but sided with them.

Former senior police office recruited to intimidate one of the whistleblowers

The case was bizarre and included a strange tale of Bob Taylor, a former detective chief superintendent and occasional contractor to the whistleblowers’ employer, impersonating a CQC inspector in a phone call to one of the whistleblowers:

Ex Yorkshire Ripper cop ‘tried to silence whistleblower by posing as CQC boss’

He made the call to Karen McGuire at the request of the employer, and accused her of theft. The ET concluded that his actions were a detriment carried out on behalf of the employer.

Severe criticism of a senior manager who retaliated against the whistleblowers and whose evidence was not considered reliable by the Tribunal

Moreover, the Tribunal severely criticised Pearl Jackson a director representing the employer, for both retaliating against the whistleblowers and for her conduct during ET proceedings. The ET considered that Mrs Jackson had sent a threatening letter to one of the whistleblowers, and she instructed Bob Taylor to contact the whistleblowers:

“Mrs Jacksons intimidating and threatening letter to the claimant expressly refers to the disclosures made which she describes in her letter as ‘everyday occurrences” inflated by the claimant. Her letter was a deliberate angry retaliatory response to the disclosures made. Mrs Jackson had decided at the outset before any investigation was carried out by Mr Taylor, that the claimant in making these allegations was “evidently vindictive towards senior management”. She tells her so in the first paragraph of her letter. Mrs Jackson was materially influenced in her treatment of the claimant by the protected disclosures she had made. Her instruction to Mr Taylor to contact the claimant was given in that context of protecting the home and taking ‘whatever steps were necessary’. Mr Taylor’s call to Mrs McGuire was made with that purpose in mind. It was extremely intimidating and threatening.”

Pearl Jackson claimed to Karen McGuire that her whistleblowing disclosures were malicious:

“So far, my initial investigation reveals that you have indeed inflated many of the issues using every day occurrences to fuel what I believe to be malicious activity…”

The ET noted that Pearl Jackson had not in fact carried out an investigation as claimed in this letter:

“Mrs Jackson accepts she had carried out no investigation at all before sending the letter…”

The ET also concluded that Pearl Jackson’s motivation in sending the letter was to intimidate:

“Mrs Jackson intended the letter to frighten the claimant ‘off’ by telling the claimant she would ‘take whatever steps were necessary’ backed by the board of directors threatening legal action.”

The ET noted the following about Pearl Jackson’s conduct during proceedings:

“Her first approach was that no disclosures had been made by the claimants and there were no detriments. The claimants were telling lies because the home had been ‘exonerated’ in subsequent external inspections.”

“Mrs Jackson’s second approach was to allege that the claimants were the ‘wrongdoers’ in relation to any allegations made.”

The ET found that Pearl Jackson was not honest in presenting evidence and was not a reliable witness:

“Mrs Jackson, selectively and deliberately chose to disclose only the parts of documents that supported the respondents case that subsequent inspections had ‘completely exonerated’ the home. She only disclosed parts of a Leeds City Council Inspection Report following a visit to the home on 14 February 2019 and part of an Infection Prevention and Control Report, following an audit on 18 April 2019.”

“In an email of 2 October 2019, Ms Almzedi had raised with Mrs Jackson her request for full disclosure of documents, when it became clear to her that some pages were missing. She also requested that the original reports rotas and time sheets were produced at the hearing because she queried their authenticity. She had good grounds to believe the duty rota had been altered between exchange and the version produced in the bundle, because Mrs Jackson accepted that is what had happened. Despite being forewarned of this issue the original documents were only produced very late on in the hearing.”

Arising from this the ET concluded:

“She was not being open and transparent with the claimant’s representative or with the Tribunal and her conduct of these proceedings, does not go to her credit. There were other examples in our findings of fact that informed our view that Mrs Jackson was not a reliable witness. She was evasive and was not presenting evidence openly and honestly to the Tribunal.”

In a further judgment on 19 May 2020, the ET underlined the serious harm done to the whistleblowers, and made further serious criticisms of Pearl Jackson. For example:

“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.”

The ET also found that Pear Jackson’s conduct in proceedings amounted to contempt:

“Mrs. Jackson has chosen to continue to act as the representative until last week. For that reason, to accommodate her ‘unavailability’, the remedy hearing was delayed until 12 March 2020. It was unreasonable for Mrs. Jackson, a named respondent, to then decide not to ‘turn up’, or send any evidence or explain her absence. 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.”

A finding of lack of impartiality by a CQC inspector

The ET judgment also revealed that  Emma Hatfield a CQC inspector wrote emails to the whistleblowers’ employer which the ET concluded showed a lack of impartiality.

Emma Hatfield accepted “without question” counter allegations against the whistleblowers by Kelly Hopkinson care home manager, whom the ET found retaliated against the whistleblowers, revealed the whistleblowers’ identities, gave them bad references and concocted a false letter of dismissal against Tracy Skitt.

Importantly, by that point the CQC had received disclosures from Karen McGuire, and it should have been especially careful in weighing and filtering any counter allegations by her employer, not credulous.

The ET found that Kelly Hopkinson falsely claimed to have dismissed Tracy Skitt, who had in fact resigned:

“Miss Hopkinson’s evidence was that on 11 January 2019 before she supplied that reference she had dismissed the claimant. She relies upon a letter of dismissal (page 64). Miss Skitt never received that letter and was unaware of any ‘dismissal’. The letter in the bundle is signed by Miss Hopkinson. It states that Miss Skitt’s employment had been terminated during her trial/probationary period for not returning to work after the 9 January 2019.”

A negative reference and the false letter of dismissal by Kelly Hopkinson made it very difficult for Tracy Skitt to get further work, and reportedly affected her mental health.

The ET judgment gave this account of the email exchange between Emma Hatfield and Kelly Hopkinson, which the ET noted took place the day after Karen McGuire whistleblew to the CQC on 9 January 2019:   “External reporting to the CQC   170. Although it was not necessary to make any findings of fact about whether a protected disclosure was made to the CQC the evidence we saw produced by the respondent in the bundle (relied upon to support the ‘exoneration defence’) gave the Tribunal, some cause for concern.   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.”

A reluctant CQC response to these ET findings

On 8 October 2020 I wrote to Kate Terroni CQC’s Chief Inspector of Adult Social Care and I asked the Care Quality Commission to:

• Look into the work of Emma Hatfield the CQC inspector who was criticised by the Tribunal and to consider what further work CQC should do on ensuring that its inspectors understand the need for impartiality in whistleblower cases and their duties in responding to such cases.

• Review the employer under CQC Regulation 5, with particular respect to the ET’s criticism of Pearl Jackson

My letter to CQC’s Chief Inspector of Adult Social Care was ignored. I therefore wrote to Peter Wyman CQC chair two months later, on 12 December 2020 to press the issues.

On 23 December 2020 I received a response from Mary Cridge, CQC Deputy Chief Inspector of Adult Social Care.

Mary Cridge sent me two letters, respectively addressing the concerns about Emma Hatfield the CQC inspector and Pearl Jackson the director criticised by the ET:

Letter from Mary Cridge 23 December 2020 re Emma Hatfield CQC inspector & issues of objectivity

Letter from Mary Cridge 23 December 2020 re Pearl Jackson Fit and Proper Person issues

In brief, CQC claimed it had looked into both issues and satisfied itself there was no more to be done save for “monitoring” the organisations where Pearl Jackson was a director:

“We continue to monitor the providers where Mrs Jackson is a director and any new information that comes to us, as this will help us decide if we need to take further action in relation FPPR and plan for future inspections.”

Regarding Emma Hatfield, Mary Cridge characterised Emma Hatfield’s behaviour in the Charlton Court case as “support” for the employer, that was within the ambit of her responsibilities:

“Emma’s role as an inspector involves supporting whistle blowers to raise concerns they may have about the care people receive as well as supporting providers to improve care and support for people using their services.”

Mary Cridge seemed to imply that Emma Hatfield had reason to be critical of the whistleblower, based apparently solely on hearsay from the employer:

“Emma received a further email from the manager of the service who informed her that a previous staff member was contacting relatives by phone and they were coming to see the manager concerned and upset by what they were telling them. She told Emma that she had been able to reassure them and they were leaving happy and satisfied with what they were being told by her. Emma was concerned that contacting relatives may have caused them distress and was extremely unfortunate.”

There is no indication in Mary Cridge’s response that Emma Hatfield verified these claims by the employer.

A note of defensiveness about impartiality arises in the following comment by Mary Cridge:

“Emma feels her support throughout the process for the manager did not distract her from the core tasks as a CQC inspector given the safeguarding concerns that were raised at the time.”

This is an astonishing way to describe uncritical acceptance of allegations by a provider manager found by the ET to harmed whistleblowers and to have manufactured a dismissal letter about a dismissal that never occurred.

Mary Cridge notes that Emma Hatfield was not asked to give evidence to the ET but she did make referrals to the local safeguarding team and concluded:

“I am satisfied that Emma took all steps to ensure people living at Charlton Court were safeguarded in a timely way and in line with our policies and procedure.”

However, a question arises of what slant was put on the safeguarding discussions. Was the credibility of the whistleblowers was undermined in anyway as a result of Emma Hatfield appearing to accept a number of the employers’ assertions without evidence of critical analysis and independent verification?

Notably, Mary Cridge herself has made public comments to provider managers which raise further questions of impartiality. More information on this is provided in the appendix.

I firstly asked CQC to clarify some factual anomalies in the letters from Mary Cridge.

On 8 February 2021 I received a hostile letter signed by Mary Cridge.

The letter admitted that Mary Cridge had wrongly referred to a single comment by Emma Hatfield when several troubling comments had been singled out by the ET, and the letter confirmed that CQC had reviewed the ET judgments, which Mary Cridge had previously referred to as transcripts.

CQC went on to express the following sentiments:

“While we note your intention to reply substantively, we do not intend to enter into further communication on this issue having responded in detail already. We therefore consider the matter closed as you have not been directly affected by our actions and future communication from you regarding this will be read and filed without a reply.”

Unfinished business

I have written to the CQC again to raise concerns that there is no apparent organisational learning by CQC from the Charlton Court case and to ask for more action:

Letter to Peter Wyman 7 March 2021  failure of CQC impartiality against a whistleblower & Fit and Proper Person referral

CQC clearly wishes to shut down the issue of impartiality by its inspector Emma Hatfield but CQC has yet to demonstrate that its inspectors understand what regulatory impartiality requires.

Moreover, the FPPR decision is lamentable given the ET findings about Pearl Jackson’s extraordinary behaviour.

If harming and threatening whistleblowers, conspiracy to intimidate and manipulating evidence are not actionable, what is?

Integrity is essential in services that care for the extremely vulnerable who may be unable to speak up for themselves. A lack of meaningful CQC action is effectively a lack of respect for the rights of the vulnerable.

I leave it to readers to decide if CQC has acted properly in this case, or whether it has once again contributed to silence and harmed the public interest.

Alas, UK whistleblowing law does not currently recognise detriment to whistleblowers caused by regulators or any parties other than employers. This is key loophole that needs to be closed.

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

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

Many thanks

APPENDIX

Prosecution of Pearl Jackson in 2008

I have pointed out to the CQC that according to press reports combined with data published by Companies House, it appears that Pearl Jackson was prosecuted for neglect and ill treatment in 2008 but not convicted because of errors by the CPS in not disclosing all documents. The details are as follows.

According to Companies House, a Pearl Lorraine Jackson has been a director of Charlton Court Care Home Ltd since 2012.

Companies House also indicates the same individual was previously a director of Newsham House Ltd between 2004 and 2005, company address Newsham House, 262 Stroud Road Tuffley, Gloucester, Gloucestershire, GL4 0AX.

In 2008, local press reported unsanitary environment and poor care at Newsham House care home, Stroud Road, Gloucester:

“What the Crown say was found was a lack of information regarding care plans and in many cases the non-existance of care plans.

“Photographs revealed the disgusting state of toilets in residents’ rooms. They were old, damaged and there was penetrative moisture. There was a general hygiene risk.

“In one case faeces with mould growing on it was found.

“There was no plan to address the patients’ social needs, nor was there any stimulation or diversion therapy. There was no one-on-one activity.

“Thought was given to closing the home, but the service provider ADL Ltd gave assurances that the problem was being managed.

“William Davies is the Managing Director. Pearl Jackson is the Operations Director. Derek Youds the manager, and Heather Bolton a deputy manager.”

It was reported that Pearl Jackson was charged thus:

“Operations director Pearl Jackson, 49, of Woolley Mill Cottage, Woolley Mill Lane, Notton, Wakefield, West Yorks, faces eight charges of neglect and two of ill-treatment, between May 2 2004 and July 26 2004.”

A chief constable report at the time noted that there were five residents’ deaths of concern at Newsham House:

“Op Star

Operation Star is the investigation into the Newsham House Registered Care Home in Gloucester.

It is a joint investigation with the Commission for Social Care and Inspection (CSCI) with assistance from Gloucestershire Social Care Directorate.

In 2002 and 2003 CSCI received complaints by family members about the treatment of their relatives in Newsham House. In particular investigations revolved around the death of five patients.

Following a series of interviews with the Managing Director, Operations Director of ADL Plc, the Manager and Deputy Manager of Newsham House have been charged with a large number of offences relating to the alleged wilful neglect of a patient receiving treatment for a mental disorder. They await trial.”

The trial judge’s decision to halt proceedings was reported thus:

“In a 42-page ruling, Judge David Ticehurst said two employees at Newsham House, in Gloucester, and two directors of ADL Plc, owners of the care home, would not have a fair trial if the prosecution went ahead.

Judge Ticehurst said his decision to halt the prosecution was sorrowful and a matter of “considerable regret”, as those who resided at the home were “the most vulnerable in society”

Pearl Jackson remains listed as a director of several companies providing care.

Tracing the ultimate ownership of these companies through Companies House leads to a company that appears to be based in the Caymans – “Oakhurst Court Holdings (Cayman) Ltd”.

More about Mary Cridge CQC Deputy Chief Inspector of Adult Social Care

Mary Cridge is the CQC’s own Freedom To Speak Up Guardian, having been appointed to that position in 2016.

Prior to that she cleared David Behan in 2013 of any serious wrongdoing when I complained that he ignored serious patient safety concerns that I escalated to him after local CQC inspectors had simply ignored me in 2012. For good measure, Mary Cridge claimed that a CQC complaints manager tried repeatedly but could not get through to me on the telephone, when this individual did not have my phone number and this was a recorded fact.

After her promotion to CQC Deputy Chief Inspector of Adult Social Care, Mary Cridge wrote an article which extolled the importance of good whistleblowing governance:

Inside CQC by Mary Cridge

And here she is displaying questionable regulatory impartiality towards a director of Barts, an NHS Trust which has just been found guilty of gross whistleblower reprisal:

There have been other similar displays towards the powerful in various provider organisations, which perhaps give context to the lack of perturbation about Emma Hatfield’s boundaries.