More Secret Whistleblowing Reports at HSIB, Susan Newton Consulting Limited and implementation of the Kark Review

By Dr Minh Alexander retired consultant psychiatrist, 23 July 2022

Dysfunctional organisational dynamics affecting patient safety, at the Healthcare Safety Investigation Branch, were reviewed by the Kings Fund last year. NHS England hired the Kings Fund to undertake this review, but it did not openly announce that it had done so. Nor did it transparently publish the review report. The existence of the review only came to light because of whistleblowing to the press, and the review report had to be obtained via FOIA.

The King’s Fund report also revealed that there had been previous reviews about HSIB culture and leadership. The Kings Fund reported staff were mistrustful because these previous reviews had not been shared with staff and or had been altered before being shared with staff.

For context, NHS Improvement originally hosted HSIB, but NHS Improvement was officially absorbed as part of NHS England this month.

HSIB staff come under NHSE’s HR policies and processes.

I asked NHS England to share any previous undisclosed reports of reviews on HSIB, besides the King’s Fund review.

NHSE shared only one such report, an internal report which was critical of the HSIB maternity investigation programme set up in haste under pressure from Jeremy Hunt former Health Secretary.

However, in the public domain was evidence that another investigation had possibly been undertaken. Susan Newton a former Monitor HR manager had privately conducted whistleblowing investigations – possibly for NHS England – as part of work done through her company, Susan Newton Consulting Limited.

The timing of these investigations fitted with the known timeline of emergent whistleblowing at HSIB, which was first reported by the press in 2019.

Via FOI, NHS England disclosed that between 2017 to 2022 it had spent a total of £140,595.70 on Susan Newton’s services:

NHS England FOI disclosure 19 July 2022 Ref: FOI-2205-1762519) NHSE:0426711

These services included two specific investigations into whistleblowing in 2021 and 2022 respectively.

Investigations undertaken by Susan Newton the last five years, according to NHS England. are shown below:

The summary of recommendations provided by NHSE arising from Susan Newton’s investigations confirmed that she investigated whistleblowing at HSIB, and concluded that there were failures in the handling of conflicts of interest affecting HSIB investigators:

“Changes were made to the way HR cases were managed and a flowchart was created for staff raising concerns, complaints and issues, this means that all staff are aware of how we handle employee relations issues.

Conflicts of interest: recommendations were made to improve the management of declaring and mitigating conflicts of interest, including how work is allocated to investigators.

Teams now complete a declaration of Interest form annually and are in addition required to highlight situations which may present themselves where a conflict is identified. The team leaders have a record of all the conflicts within their team to ensure cases are allocated correctly. Improvements will be made to the Standards of Business Conduct Policy as Healthcare Safety Investigation Branch (HSIB) moves towards independence as the policy does not provide the level of detail the teams require.”

Conflicts of interests amongst HSIB investigators have the potential to be extremely serious and to pose a threat to patient safety. The greatest potential for conflicts of interest arises from the maternity investigation arm of HSIB, which is not centrally located but dispersed through the regions and drawn from local personnel:

HSIB has sent 152 letters of concern to NHS trusts about maternity safety, including 15 letters to one trust

The above FOI disclosure also suggests that NHSE – and specifically HSIB – so lacks competence at distinguishing between staff whistleblowing and complaints that a diagram is needed to help its managers understand and to apprise staff of the proper organisational response:

“Changes were made to the way HR cases were managed and a flowchart was created for staff raising concerns, complaints and issues, this means that all staff are aware of how we handle employee relations issues.”

NHSE’s FOI response also gives further confirmation of concern about HSIB’s culture, governance and leadership:

“Organisational culture: recommendations were made to review culture, leadership and governance of the organisation”

NHSE explained in its FOI response that following on from the investigation by Susan Newton, the King’s Fund were commissioned to undertake their review of HSIB.

Two shocking but unsurprising matters arising from NHSE’s FOI response are:

1. NHSE’s previous failure to disclose the existence of these investigations by Susan Newton when it was previously asked to disclose all unpublished reviews of HSIB.

If NHSE considered this information fell under an exemption of FOIA, it was under a legal duty to confirm that it held the data and to cite the specific exemptions to disclosure which it believed applied.

• The King’s Fund’s decision to only mention these highly significant whistleblowing investigations by Susan Newton in a single sentence in its report:

“At the beginning of the work, staff had been clear that they would not trust the report outcomes if they were first shared with the executive team, owing to a perception that the findings of previous reviews had been changed before publication, or not shared at all.”

This is especially so given that NHSE has now revealed that it was Susan Newton’s whistleblowing investigation which specifically paved the way for the King’s Fund review.

The King’s Fund was tightly supervised by NHSE and the DHSC during its conduct of the HSIB review, through a steering group. And due to redaction, we were unable to see what instructions the key supervising NHSE officer Aidan Fowler gave when he commented on the draft of the King’s Fund report.

Did the King’s Fund self-censor or was it asked to make minimal reference to highly relevant source material?

It is not a good look for an oversight body which regulates the whistleblowing governance of provider organisations to be less than candid and transparent about whistleblowing by staff under its care, or about whistleblowing investigations paid for out of the public purse.

Importantly, it is implied that the HSIB whistleblower(s) may have suffered detriment, because Susan Newton investigated a grievance related to whistleblowing.

However, we remain in the dark as NHSE’s secrecy about this affords putative abusers an escape route from accountability.

All the above emphasises that it is quite wrong that the legislation concerning Fit and Proper Persons in the NHS only applies to provider organisations. The misdeeds of those in oversight bodies are arguably much more serious and have much greater impact on patients, all the way up to the DHSC.

The Kark review recommendations sought to broaden the scope of the NHS Fit and Proper Person test, albeit stopping short of posing any threat to the incumbents of the DHSC.

I have now received confirmation from NHSE that ministerial approval has been given for the Kark implementation to proceed. The work since 2018 has been so slow that part of the current implementation is to decide on what will be implemented,

It has also been claimed that Terms of Reference have also been produced. A request for sight of these terms of reference has yet not borne fruit.

PETITION

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Replace weak UK whistleblowing law and protect whistleblowers and the public

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