NHS England’s mental health commissioning failures and Dr Ambreen Malik’s whistleblowing case against Cygnet Health Care Ltd

By Dr Minh Alexander, NHS whistleblower and retired consultant psychiatrist, 9 March 2021

NHS mental health beds have been unsafely slashed over the years with little of the promised re-investment in intensive community services materialising. Deinstitutionalisation has merely meant neglect in the community.

Alongside this, unsatisfactory private mental healthcare services funded largely by the public purse have proliferated.

Vulnerable NHS patients are made even more vulnerable by being shipped out of area to private care, away from the support and scrutiny of family and friends.

The quality of such private services has often been poor, sometimes dire, with frank abuse.

NHS England as the lead commissioner has failed to ensure effective, proactive commissioner oversight of the care received by these isolated, exiled patients. Scandals keep recurring.

 AN EXAMPLE  

Multiple mental health units operated by the private healthcare company the Priory Group have been placed in special measures by the Care Quality Commission.  

CQC places two Priory Group hospitals in special measures  

The Priory mental health hospital in special measures after ‘Inadequate’ CQC rating

St Johns House, Palgrave, Norfolk, run by Partnerships in Care Ltd which is a subsidiary of the Priory Group, is the latest to enter special measures.   CQC’s inspection report of 5 March 2021 makes unbearable reading because it comprises a long, long list of serious care and governance failings. The findings amount to institutional abuse.  

This is a small selection of the failings detailed by CQC’s report:

“We reviewed a random selection of CCTV footage between 17 November and 12 December 2020 to observe how staff were managing patient observations. We found that in five out of five checks, staff were sleeping on duty.”

Managers were informed that some staff had been sleeping on duty but according to the CQC “ no action was set to address this”.

CQC reported “a staff member was seen to push a patient onto the floor”.

One incident of restraint led to staff suspensions and a report to the police, but only after CQC intervened.


Staffing was often inadequate, seclusion practice was poor, there was high use of force without de-escalation, failure to report safeguarding issues, failures to mitigate ligature risk and many incidents and injuries.   There were insufficient therapeutic interventions, leaving an emphasis on dreadful, custodial care.    

The appalling treatment of whistleblowers by such private providers, guarding their profits, is part of the problem.

Dr Ambreen Malik’s whistleblowing case against Cygnet Health Care Ltd gives a glimpse into how far some of these private providers will go in suppressing safety concerns and mistreating whistleblowers.

Employment Tribunal describes a Cygnet medical director’s email to the GMC about a whistleblower as “venomous and dishonest”. Dr Ambreen Malik wins her whistleblowing case.

Dr Malik’s case is not the first whistleblowing case at Cygnet and it will not be the last.

I have written to NHS England to ask that it:

  1. Increases the whistleblowing governance standards required of private providers who receive public funding through contractual means.

2. Exercises its commissioning power to stop Cygnet from going ahead with a threatened appeal against the Employment Tribunal judgment in Dr Malik’s favour, which will have a chilling effect on Cygnet’s workers.

3. Ensures that any final NHS standards for Fit and Proper managers in the NHS, arising from the Kark Review implementation, are applied to private providers who receive public funding.

At present there is a fig leaf applied by NHS England in the form of a contractual requirement that private providers should appoint Freedom To Speak Up Guardians.

Cygnet appointed a Freedom To Speak Up Guardian as part of managing adverse publicity about its serious care failures.

I have disabused NHS England of any claims that a contractual requirement for a Freedom To Speak Up Guardian suffices, and provided evidence that has accumulated about the deceptive and pernicious nature of the Freedom To Speak Up project.

The letter to NHS England follows:

BY EMAIL 

Noel Gordon

Non Executive Director

Chair of Specialised Services Commissioning Committee.

NHS England 

8 March 2021

Dear Mr Gordon,

Suppression of safety concerns and whistleblower reprisal by Cygnet Health Care Ltd, a private contractor which provides services to the NHS and policy issues which arise

I write to you in your capacity as chair of NHS England’s Specialised Services Commissioning Committee to ask that NHS England takes action to ensure that private contractors have better whistleblowing governance and Fit and Proper Directors.

An Employment Tribunal has decisively determined in favour of Dr Ambreen Malik consultant psychiatrist and whistleblower, that there has been serious whistleblower reprisal, “a litany of bad faith”, “dishonesty” and or “less than honest” behaviour by several Cygnet Health Care Ltd directors. This included the chief executive Dr Tony Romero. The Tribunal held Dr Tony Romero responsible for most of the acts by others:: 

Dr Romero was responsible in effect for nearly all of the actions taken by the other parties, through Jenny Gibson [Cygnet Director of Human Resources].”

The ET also described a retaliatory GMC referral by the then medical director as “venomous and dishonest” in tone. 

The incident which sparked this whistleblower reprisal was Dr Malik’s insistence on doing her duty and giving a coroner’s inquest the full truth about the circumstances of a patient’s death.

The ET judgment is linked and summarised here:

Employment Tribunal describes a Cygnet medical director’s email to the GMC about a whistleblower as “venomous and dishonest”. Dr Ambreen Malik wins her whistleblowing case.

The Times has picked up the story:

Doctor wins fight over heroin ‘cover-up’

Obvious issues of CQC Regulation 5 Fit and Proper Persons arise, and I have forwarded the ET findings to the CQC.

Cygnet relies largely on public funding, as confirmed by its 2019 annual report, and public accountability is therefore needed.

Cygnet reportedly informed the Times that it intends to appeal against the ET verdict. 

Yet the Tribunal demonstrated robustly how it came to its decision, and much of its conclusions are based on clearly recorded original evidence which contradicted Cygnet’s later witness evidence. 

It is hard to see how Cygnet will succeed, but an appeal will cause even more suffering to Dr Malik and her family. Very seriously, it will also have a chilling effect on any other Cygnet employee who is thinking about whistleblowing.

Dr Malik’s case is not the first Cygnet whistleblowing case in the public domain. There are also others that are not in the public domain.

NHS England has a particular duty to ensure that patients who are most vulnerable as a result of being sent out of their home area and isolated from normal sources of support are not left at the mercy of poor care and unscrupulous corporate practices.

There has been an abundance of scandals for years concerning private mental health care providers who derive most of their income from the public purse. 

It is time for NHS England to significantly improve its oversight of these services to ensure the safety and welfare of these most vulnerable and isolated patients.

Ensuring better whistleblowing governance is an important part of this.

My requests to NHS England are as follows:

1.     I would be grateful if NHS England could look into the ET findings of serious executive wrongdoing at Cygnet and ensure here on that any public contracts with private providers of healthcare contain robust enough standards to ensure better whistleblowing governance, and to punitively deter bad whistleblowing governance.

2.     Please can NHS England use its commissioning power to deter Cygnet from appealing against such a conclusively evidenced ET judgment,  and from causing Dr Malik and her family yet more suffering and intimidating other workers.

All whistleblowers are seriously harmed by the enormous stress of litigation and prolonged conflict. These processes take a substantial toll on health. 

It would be a great regret if NHS England does not show that it is willing to check employers’ excesses  and to protect the rights of all Cygnet’s workers to safeguard patients.

In the case of Dr Kevin Beatt another whistleblower who received a similarly decisive ET judgment in his favour, ministers and regulators all failed to restrain his former employer Croydon Health Services NHS Trust. Croydon  incurred millions in costs through repeatedly appealing  and then being ordered to pay about £1 million in compensation:

Dr Kevin Beatt v Croydon Health Services NHS Trust Remedy Judgment February 2020 Case No: 2359206/2012

Dr Kevin Beatt v Croydon Health Services NHS Trust judgment by consent 10 October 2020 Case No: 2359206 /2012

This was a gross waste and completely unjustified use of public money, as well as a severe injustice to Dr Beatt who suffered years of extremely stressful litigation.

I fear that if NHS England does not restrain Cygnet, yet more money that ultimately comes from the public purse will be recklessly wasted.

3.     May I also ask that NHS England/Improvement considers bringing the directors of private contractors within the scope of its Kark Review implementation on NHS Fit and Proper Persons, and reflecting any final Kark standards in NHS contracts with private providers. Where public money is spent, the same standards should be expected.

I am aware that NHS contracts with the private sector contain a requirement for organisations to employ a Freedom To Speak Up Guardian but this is frankly a tissue thin device. The Freedom To Speak Up project was a weak policy design that has been badly executed, failing many whistleblowers. I provide links to relevant evidence in the appendix. 

Bad employers merely exploit an appointment of a Freedom to Speak Up Guardian for cynical PR, whilst continuing with bad governance.

Cygnet announced it would employ a Freedom To Speak Up Guardian but this is in reality gives no assurance.

In general, I would urge NHS England to scrap the wasteful Freedom To Speak Up project because it adds no value where an employer is honest and only gives bad employers more tools for covering up and victimising whistleblowers, whilst maintaining a false façade of good governance.

In the meantime, I would also be grateful for information as follows:

1.     Does NHS England have a system in place to track employment tribunal claims against private healthcare providers with whom it holds national contracts for specialised services?

2.     What standards of whistleblowing governance does NHS England require of private healthcare providers from whom it contracts services? Please disclose or point me to the relevant documents.

3.     What standards of whistleblowing governance does NHS England expect CCGs to require from healthcare providers from whom they contract services? Please disclose or point me to the relevant documents.

4.     Does NHS England hold central data on complaints received about care provided by Cygnet Health Care Ltd? If so, please disclose the number and details of complaints about care provided by Cygnet Health Care Ltd in the last two years.

I copy my letter to the Joint Committee on Human Rights which held an inquiry into serious and systemic breaches of patients’ rights by private mental healthcare providers, including Cygnet.

Letter by Harriet Harman Chair of Joint Select Committee on Human Rights re abuse at Whorlton Hall

I also copy this letter to Dido Harding, Simon Stevens and other members of NHS England’s Specialised Services Commissioning Committee, and to Tom Kark QC and Claire Murdoch NHS England’s Mental Health Tsar.

I would be grateful if this correspondence could be passed to those for whom I have no direct email address

Yours sincerely,

Dr Minh Alexander

Cc Harriet Harman Chair of JCHR

     Dido Harding Chair NHS Improvement

     Simon Steven CEO NHS England

     John Stewart NHS England Director of Specialised Commissioning

     Michelle Mitchell NHS England Non Executive Director

     Moira Gibb NHS England Non Executive Director

     Ian Dodge NHS England National Director of Strategy

     Stephen Powis National Medical Director NHS England

     Tom Kark QC

     Claire Murdoch National Mental Health Director NHS England

APPENDIX

Evidence of failures of the government’s Freedom To Speak Up project

The Freedom To Speak Up model was not evidence based:

SSOTP: Robert Francis’ exemplar trust has feet of clay, and Jeremy Hunt’s safety claims are un-evidenced

And yet millions have been wasted on this project.

The Freedom To Speak Up model is unworkable due to the central conflict of interest that it relies on employees to hold erring employers to account, and because it gives no genuinely independent channel for whistleblowers concerns to be investigated. By design, employers are left in sole control of the investigation of whistleblowers’ concerns. 

The National Guardian fails to track the outcomes of concerns raised with NHS trust Freedom To Speak Up Guardians and whether NHS trust staff’s concerns are addressed:

UK government does not track whether whistleblowers’ concerns are addressed

How can National Guardian’s Office say workers ‘know that the right actions will be taken’ if they speak up? Another health check on quality of the National Guardian’s data

The National Guardian has failed to carry out enough case reviews. Her Office gives poor value for the funding it receives at an average of two case reviews a year.

The National Guardian has declined to adopt the role recommended by the original Freedom To Speak Up Review of helping to ensure that harm to whistleblowers and patients is redressed. Her case reviews only make bland general recommendations:

The Greasy Freedom To Speak Up Review is Stuck. More Tales of Silence about Silence.

The National Guardian has not made sufficient efforts to track victimisation of Freedom To Speak Upp Guardians:

The Disinterested National Guardian & Robert Francis’ Unworkable Freedom To Speak Up Project

The National Guardian has declined to help even Freedom To Speak Up Guardians who are victimised by their employers for pursuing issues:

National Guardian looks set to throw Freedom To Speak Up Guardians under the government’s bus too

The National Guardian and her Office are applying arbitrary exclusion criteria which block whistleblowers’ access to case reviews:

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

There is little meaningful oversight and enforcement of recommendations from the National Guardian’s case reviews:

The toothlessness of the National Guardian’s Office: Why it cannot be a model for protecting whistleblowers

The National Guardian and her Office havr sometimes colluded with employers and the Office has sometimes acted with the effect of covering up its failures to effect improvement as a result of case reviews:

A Study in Delay: The National Guardian & Brighton and Sussex University Hospitals NHS Trust

Another National Guardian NHS whistleblowing failure: Nottinghamshire Healthcare NHS Foundation Trust

Is the National Guardian’s Office covering up its failure?

The National Guardian’s Office has breached confidentiality and been found to have had clandestine, undisclosed communication with an employer:

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

Other whistleblowers have suspected that this has happened to them.

If you have not done so already, please help stop abuses by supporting this petition to parliament for reform of UK whistleblowing law:

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

Many thanks

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