The wilfully blind CQC and half a million pounds worth of conflict of interest

By Dr Minh Alexander retired consultant psychiatrist 29 June 2022

The government’s regulatory poodle, the Care Quality Commission (CQC) has a history of bending with whatever political winds are blowing.

CQC wrongly claimed that University Hospitals Birmingham NHS Foundation Trust arranged an “independent” FPPR review of its CEO David Rosser.

This FPPR review, instigated in 2020, was in fact conducted by a trust employee with help from Bevan Brittan LLP a law firm which was an existing supplier to the trust. Bevan Brittan’s own publicity material had named UHB as a “key client”:

Mr Tristan Reuser’s whistleblowing case: Scandalous employer and regulatory behaviour on FPPR

One imagines it is not good for business to upset key clients.

Auditors and conflicts of interest

As a general principle, there have been many corporate scandals related to failures of audit, and auditors have been fined vast sums of money.

It is generally considered bad practice for firms to audit clients to whom they provide non-audit services, because of the temptation to give good audit results in return for continued business.  

The Institute of Chartered Accountants in England and Wales’ code  frowns on the practice.  

The Financial Reporting Council introduced auditing standards in 2016 to prevent abuses and strengthened the standards again in 2019.  
 

Even if Bevan Brittan did a perfectly satisfactory and fair job on the 2020 Rosser FPPR review, justice needs to be seen to be done, and a conflict of interest is unacceptable.

The matters were compounded by the fact that the investigating UHB employee falsely told Mr Tristan Reuser, a whistleblower who was a centrally affected in this affair, that Bevan Brittan had no prior connection with UHB.

From email by Berit Reglar of 3.11.2020, answering questions by Mr Reuser about the trust’s proposed FPPR process

Clare Sardari @SardariClare NHS whistleblower recently asked UHB how much money it spent on Bevan Brittan’s services in the years leading up to the 2020 Rosser FPPR Review.

The trust was unresponsive. Clare Sardari had to complain to the ICO, who ordered the trust to respond. The data has now finally been released.

UHB’s FOI response Ref 2174 28 June 2022 shows that in the three years prior to Bevan Brittan being hired to undertake the 2020 Rosser review, UHB spent £497,000 on Bevan Brittan’s services.

It also shows that UHB has a contract with Bevan Brittan.

Some might see this as a possible conflict of interest.

Interestingly, UHB’s FOI response also shows that Bevan Brittan undertook an FPPR review for UHB sometime in the period 1 April 2017 – 31 March 2020.

So it appears that not only did the trust falsely inform Tristan Reuser in November 2020 that there was no previous link between Bevan Brittan and UHB, the trust omitted the significant fact that Bevan Brittan had undertaken a previous FPPR review for UHB.

Could this have been an earlier, undisclosed FPPR review on David Rosser?

In November 2020 Tristan Reuser specifically asked if UHB had previously reviewed Rosser under FPPR.

UHB refused to say whether there had been a previous FPPR review on David Rosser, claiming that it was undisclosable personal information:

From email by Berit Reglar of 3.11.2020, answering questions by Mr Reuser about the trust’s proposed FPPR process

It does seem odd that my FPPR referral on Rosser, made in October 2018 and shortly followed by other referrrals, did not apparently lead to an FPPR investigation until the autumn of 2020. Or so it seemed.

It is conceivable therefore, that there was a prior FPPR review on Rosser by Bevan Brittan, in the unexplained gap, which for whatever reason, was suppressed.

Supporting this possibility, I have seen a letter from Nadine Dorries of August 2020, who was then Minister of State for Mental Health, Suicide Prevention and Patient Safety, to Sheryll Murray MP. The letter related to concerns about David Rosser’s conduct, which had been raised by one of Murray’s constituent.

It stated that following the publication of the Employment Tribunal judgment in favour of Mr Tristan Reuser in 2018, “an independent review took place in 2018” at UHB.

The same letter of August 2020 went on to state that UHB had “since commissioned a further Fit and Proper Persons Regulations (FppR) review.”

The letter therefore seems to suggest that there was indeed an earlier FPPR review on David Rosser.

Additional supporting evidence for the existence of an earlier FPPR review comes from an FOI request by Martin Morton, social care whistleblower, made in 2019.

UHB admitted in the 2019 correspondence with Martin Morton that an FPPR review had been conducted at cost of £5,000, albeit the trust did not reveal the subject of the FPPR:

“The review was conducted with the support of external legal firm due to the context of the complaint”

The saga of UHB’s untruthful FOI response to Martin Morton

This detail is included as another example of UHB’s record as an unreliable historian.

An FOI request about FPPR referrals to UHB in 2019 by Martin Morton social care whistleblower was met with an untruthful initial response by UHB of 23 September 2019.

The trust claimed that there had never been any FPPR referrals on trust directors. In fact, there had been several FPPR referrals.

This untruth by UHB was reported to the CQC. UHB corrected its FOI response on 26 September 2019 to a half truth, claiming that there had been a single FPPR referral.
UHB claimed that the correct information had been prepared (with the involvement of its legal officer David Burbridge) but had not been sent to the trust’s FOI team in “error”.

If there was an early FPPR investigation on David Rosser by Bevan Brittan, it would make a mockery of the ‘official’ FPPR review that was instigated in autumn 2020.

The latter could not be said to be a fresh, independent and untainted review, despite by the CQC’s claims that the external element by Bevan Brittan was “independent”.

It would also reflect even more badly on the trust’s claim that Bevan Brittan had no prior link with the trust.

I have asked the trust Chair for answers.

And exactly how much of this did CQC know?

CQC claimed that the trust’s explanations for its 2020 FPPR process were “reasonable”

“The trust gave their reasons for carrying out the review lead by a member of UHB staff (who is a qualified and practising solicitor) supported by an independent HR lawyer. The panel accepted that their decision was reasonable.” [my emphasis]

How does CQC define independence?

How does CQC assess whether an FPPR reviewer is independent?

Does CCQ even make an assessment, or does it simply accept what a trust claims?

Is the CQC happy to look the other way even if knows that an FPPR reviewer is not independent at all?

In a letter of 26 April 2022, Rosie Benneyworth the CQC Chief Inspector of Primary Care and Chair of CQC’s FPPR panel went so far as to claim that :

“It is not for CQC to determine the process on how the CQC carries out the review of the FPPR.”

Based on the Rosser/ Reuser example, one is left with a most unfavourable impression.

Rosie Benneyworth has not responded to my last letter challenging CQC’s actions in this matter. She is off to be the next Chief Investigator of the Healthcare Safety Investigation Branch.

Therefore, I will now pass the evidence of CQC’s failings directly to parliament.

PETITION

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RELATED ITEMS

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Disclosed: CQC’s internal technical guidance on Regulation 5 Fit and Proper Persons and an internal audit on CQC’s woeful handling of FPPR

Whistleblowers have continued to emerge at UHB:

Multiple whistleblowers flag ‘heartbreaking’ incidents at major trust

A FIFTH never event of the wrong type of blood given has just been reported at UHB:

Major trust records fifth never event at troubled department

University Hospitals Birmingham NHS Foundation Trust also made the headlines on 5 June 2022 because of reportedly poor treatment of doctors in training in obstetrics and gynaecology, requiring regulatory intervention:

Trainee doctors in ‘meltdown’ at major hospital maternity department

Based on Tristan Reuser’s case and others, NHS Resolution agreed that NCAS’ successor body will consider safeguards against being fed false information by unscrupulous employers:

Will the Practitioner Performance Advice(formerly NCAS) do more to deter referring employers’ untruths about medical whistleblowers? Perhaps.

A particularly gross example of CQC conflict of interest and failure on FPPR was when it passed its notorious former Chair Jo Williams as a Fit and Proper Person, removing obstacles to her recycling back into the NHS fold:

Jane Archibald’s shocking whistleblowing case about a cover up of an unqualified assistant being allowed to run epilepsy clinics and vary complex epilepsy medication featured a failure by her former CEO Stephen Eames to respond to her disclosures. He simply did not respond to her correspondence. NHSE/I has been asked to review his suitability for his current post as CEO of the Humber region ICS.

Whistleblower Jane Archibald’s unfair dismissal by North Cumbria Integrated Care NHS Foundation Trust, and a “nurse” who was not qualified but ran epilepsy clinics and advised on epilepsy medication

Dr Jasna Macanovic’s recent NHS whistleblowing case adds to the pile of managerial recycling scandals. John Knighton the medical director found by the ET to be centrally involved in her premeditated unfair dismissal has been protected by the trust and Mark Cubbon the trust CEO who failed to ensure her protection as a whistleblower has been promoted to a senior post at NHS England.

An FPPR referral has now been made arising from the executive failures in this matter.

Portsmouth Hospitals University NHS Trust sacked Dr Jasna Macanovic consultant nephrologist for whistleblowing to the General Medical Council

Sir Robert’s Flip Flops

The Flexible CQC, FPPR & Kettering General Hospital NHS Foundation Trust\

Post Office Horizon scandal: How Dido Harding helped to recycle Paula Vennells, FPPR and a suggestion for the BEIS Minister

Sorry is the hardest word: CQC, Paula Vasco-Knight and Regulation 5 Fit and Proper Persons

Steve Trenchard, NHS regulators & FPPR

FPPR: CQC has lost all moral authority, but what will the National Guardian do?

Postscripts on Paula. NHS England’s apologia & regulatory reticence

National Guardian ‘Expects’

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