Dr Minh Alexander retired consultant psychiatrist 22 September 2022
Summary: The Care Quality Commission has downgraded North Teed and Hartlepool NHS trust which was found by the Employment Tribunal to be responsible for severe whistleblower reprisal against two of its staff, with the Well Led domain now rated “Requires Improvement”. However, this does not change the fact that CQC failed to find any breach of CQC Regulation 5 Fit and Proper Persons (FPPR) in these cases. Nor does it seem likely that it will deter future whistleblower reprisal, as individual and not organisational sanctions are needed. Moreover, the CQC’s inspection report describes cultural issues which would make whistleblowing substantially more difficult at the trust, but CQC did not seem to weigh these factors when assessing the trust’s whistleblowing governance.
I have on several occasions criticised the CQC’s failure to hold any erring NHS senior managers to account under CQC Regulation 5 Fit and Proper Persons (FPPR), even for very serious breaches such as whistleblower reprisal. For example:
CQC has not found any breach of FPPR by North Tees and Hartlepool NHS Trust in response to my referrals on two trust directors criticised by the Employment Tribunal for their actions against trust whistleblowers Linda Fairhall senior nurse and Mr Manuf Kassem, surgeon. The trust managers whom I referred were Lynne Taylor Director of Planning and Performance, now retired, and Dr Deepak Dwarakanath the Medical Director who remains in post.
CQC unusually wrote to me, unprompted, to say that it was inspecting North Tees:
Also, and most unusually, CQC sent me the North Tees 16 September 2022 inspection report:
The inspection report makes some unfavourable observations about North Tees’ senior management; and downgrades the rating on the Well Led domain to “requires improvement”:
“Due to the ratings given at this inspection, the trust’s overall ratings of good across all domains changed to requires improvement in safe, effective and well-led. This meant that the trust’s overall rating changed from good to requires improvement.”
“Our rating of services went down. We rated them as requires improvement because:
• The trust had interim arrangements in place for several key roles, and there was a lack of united leadership and succession planning. Most strategies were in draft, incomplete and not complementary.
• Senior and executive leaders did not always operate effective governance systems to manage risks and issues within the service. Governance arrangements were complex and the board did not always have sufficient oversight and focus on operational risks.
• The trust did not have enough medical and midwifery staff in the areas we inspected to care for patients and keep them safe. Medical staff did not all have regular, up to date appraisals.
• The trust had not engaged with its local community to find out what people wanted and needed. Engagement strategies were not existent, or in development, and had not included consultation with the wider community, equality groups, the public or other local organisations.
• The trust did not always discharge its responsibilities fully under Duty of Candour regulations and did not audit compliance. Complaints were not being handled in line with the trust’s complaints policy”
However, despite two recent Employment Tribunal judgments against the trust for severe whistleblower detriment, the CQC gave only a bureaucratic account of the trust’s whistleblowing governance:
“Staff we spoke to said that they did feel able to speak up and raise concerns, and in midwifery, staff told us they had seen the Freedom to Speak Up Guardian (FTSUG) in their department. The FTSUG reported to the board yearly through an annual report and prepared a monthly report for the executive team. The FTSUG was appointed in August 2021, with an increase in hours to a full time role.
There were also 10 freedom to speak up champions across the trust and NTH Solutions. All could be contacted by email, and the FTSUG could also be contacted by telephone, however the trust’s speak up policy, associated flowchart and poster were confusing and did not clearly state that a member of staff with patient safety concerns could directly contact the FTSUG.
The FTSUG formed part of the formal induction process for new starters and had also attended some volunteer induction sessions. In 2021, the FTSUG had received no cases in quarter one, two in quarter two, 34 in quarter three, and 14 in quarter four. The main themes were around senior management and culture, staffing, patient safety and the working environment. No more detail was presented to board on these themes or any action taken as a result and there was no documentation of any discussion around the sudden increase in Q3.”
Remarkably, CQC sought to portray the trust as victims of publicity following the Employment Tribunal’s findings in favour of whistleblowers:
“The trust had experienced departures of some well-known staff, had been ruled against in two recent employment tribunals with some media interest in these. Leaders spoke about the challenges these had posed, the toll that they had taken on staff, and a wish to ‘move on’ with culture work.”
That is surely a very special way of looking at whistleblower reprisal and accountability.
Also, CQC’s anodyne account of North Tees’ whistleblowing governance seems to be contradicted by its acknowledgment of a “disconnect” between the frontline and the trust board:
“During our inspection front line staff did not describe leaders as visible and approachable and morale was not always positive in the two core services we visited.
There was a clear disconnect and difference in views around the board leadership, with the executive team talking incredibly positively about leadership and the changes they had made for the better. However, others we spoke with did not share this view and were less positive about the direction of leadership, describing challenges and differences of opinion.
Staff working ‘on the ground’ in frontline services did not describe any of these benefits and some told us they didn’t feel senior leaders were visible or approachable.”
How does CQC imagine whistleblowing works if the trust board signals that it does not like bad news, and the frontline don’t feel that the trust board are approachable?
But then the CQC Hospital Inspections Team for North Region, responsible for the North Tees inspection report, was also the team at the centre of CQC whistleblower Mr Shyam Kumar’s victimisation.
Moreover, CQC ticked its boxes on its inspection of FPPR:
“We found that the Fit and Proper Person Procedure was fit for purpose and the files were predominantly in line with the requirements of the regulation.
There is a requirement for providers to ensure that directors are fit and proper to carry out their role. This included checks on their character, health, qualifications, skills, and experience. During the inspection we carried out checks to determine if the trust was compliant with the requirements of the Fit and Proper Persons Requirement (FPPR)
(Regulation 5 of the Health and Social Care Act (Regulated Activities) Regulations 2014).
We reviewed four executive and non-executive director files in total. Our review included checks for the newest executive and non-executive appointments. All files included references and signatures saying copies of original documents such as degree certificates had been seen.
We also looked at the trust’s Fit and Proper Person Procedure and spoke to the company secretary who was responsible for oversight and compliance with the FPPR procedure.
We reviewed the six-monthly self-declarations, made by the directors, to confirm that they remained fit and proper and saw that these were consistently completed.”
The issues of malice raised by the two whistleblowing Employment Tribunal judgments against the trust are minimised by CQC’s failure to acknowledge them.
Perhaps CQC believes it has discharged its duty by downgrading the trust’s rating.
But if the managers responsible for whistleblower reprisal experience no personal consequences, what is there to stop them from harming future whistleblowers?
Meanwhile, NHS England’s tortoise-like implementation on the Kark Review recommendations for Fit and Proper Persons in the NHS crawls on.
Alarmingly, NHS England maintains that it still has no finalised terms of reference for this work.
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