Shyam Kumar’s whistleblowing case and the CQC’s inconsistent claims on how it processes feedback data from Specialist Advisors

By Dr Minh Alexander retired consultant psychiatrist 8 October 2022

Summary: I write to share FOI data from the Care Quality Commission (CQC) which raises questions about CQC’s approach to its Specialist Advisors. According to the FOI response, the CQC excludes Specialist Advisors from its staff survey. A disclosed CQC document states that CQC regularly collates feedback from Specialist Advisors, and this is sent to Directorates for “continuous improvement”. However, the CQC claimed in its FOI response letter to me that it holds no analysed data from this feedback. CQC’s disclosed document shows that it collects data on whether Specialist Advisors decide to withdraw from its inspections. However, CQC claimed to me that it does not hold data on the number of Specialist Advisors who have resigned from their role. What are we to believe? That the CQC has not collated data despite its documented claims that it does? Or that CQC collated data but destroyed it? Or does CQC hold analysed data on Specialist Advisor feedback and resignations, despite its current denial? I have asked Ian Dilks CQC Chair to look into these anomalies.

Background:

The Care Quality Commission (CQC) is currently under pressure because it has been found by an Employment Tribunal to have seriously victimised one of its own whistleblowers, Mr Shyam Kumar, senior surgeon.

The Employment Tribunal determined that the CQC sacked Mr Kumar as a Specialist Advisor because of his whistleblowing, which included disclosures about CQC’s unsafe inspection methodology, Specialist Advisors being asked to act beyond their competency and under-staffing.

CQC Specialist Advisors CQC Specialist Advisors (SpAs) are a type of inspector. They are clinicians seconded from provider organisations for their specialist expertise in various areas.   Many clinicians are registered as SpAs.   They work on an ad hoc basis and are retained on a bank.   The CQC handbook for Specialist Advisors explains how CQC handles the SpA role:   Induction handbook for Specialist Advisors in the hospital directorate   Employing SpAs on this limited contract may save the CQC money, but it does add to the concerns about the closeness between CQC and regulated organisations.   Some SpAs maintain strict professionalism. A number of such individuals either leave CQC or whistleblow, or both.

Mr Kumar’s case is of serious political significance, because a regulator should be above reproach.

CQC fell into disrepute before, when it seriously victimised CQC staff who spoke out about its poor inspection methodology a decade ago.

It is clearly intolerable for an organisation which has a duty to enforce standards to behave so badly, and it is particularly reprehensible that an organisation which judges others’ failures of organisational learning has itself refused to learn.

A fully independent investigation is needed but the CQC is being allowed to control the process. CQC has hired a barrister to review its handling of whistleblowing, including issues of ethnicity. And one of CQC’s own directors will additionally review CQC’s approach to race equality issues, in light of the obvious questions raised by white staff CQC staff harming Mr Kumar, a BME SpA.

This is CQC’s announcement of these reviews:

“CQC’s Executive Team has appointed Zoë Leventhal KC of Matrix Chambers to lead an independent review into our handling of protected disclosures shared by Mr Shyam Kumar alongside a sample of other information of concern shared with us by health and care staff.

The aim of the review will be to determine whether we took appropriate action in response to this information. It will include consideration of whether the ethnicity of the people raising concerns impacted on decision making or outcomes.

The full terms of reference for the review will be published shortly. The review is expected to conclude by the end of this year, with Zoë reporting her findings and recommendations publicly to CQC’s Board.

Alongside this barrister-led review we will conduct a wider review, led by our new Director of Integrated Care, Inequalities and Improvement, Scott Durairaj, which will seek input from people using and working in health and social care and from our colleagues.

This will explore whether there are issues of culture, process or both within the organisation which need to be addressed so we are better able to listen and to act on what we hear when information of concern is shared with us. The review will have a focus on inclusivity, including understanding whether race or any other protected characteristic has any impact on how we treat information of concern. Terms of reference will be developed in consultation with internal and external partners and will be published once agreed.”

Mr Kumar is in fact not alone in his experience as a Specialist Advisor of being marginalised. Other doctors have experienced difficulties in the Specialist Advisor role. An important paper by another surgeon who also worked as a CQC Specialist Advisor, Hugh Cannell, gave a useful insight into working for the CQC:

The Care Quality Commission and specialist advisors in Surgery. Who shall inspect the inspectors?

Mr Cannell set out concerns about whether the CQC values its SpAs, or whether CQC employs them to give surface legitimacy, but does not actually listen to what SpAs have to say:

“The CQC, however, is hardly encouraging or valuing the work of SpAs in the way it should. Ad hoc SpAs too often appear to be regarded by the CQC’s core staff as a distraction from the important work of box ticking. Sometimes SpAs are treated as little more than window dressing.”

Importantly, Mr Cannell reported that instances of NHS trust staff whistleblowing were not always reflected in CQC inspection reports.

This chimes perfectly with Mr Kumar’s experience of being discouraged by a CQC manager from following up on NHS trust whistleblowers’ concerns, when he participated in a CQC inspection in 2015:

Disclosure letter 10 May 2015 by Mr Kumar to Mike Richards CQC Chief Inspector of Hospitals cc to David Prior CQC Chair and David Behan CQC CEO

CQC’s FOI disclosure on its management of Specialist Advisors

I asked the CQC about its governance relating to Specialist Advisors, including their feedback to the organisation.

This is CQC’s FOI response:

CQC FOI response 7 October 2022 Ref Response CQC IAT 2223 0419

This CQC response contains extracts of a letter from CQC to Matt Hancock Health Secretary in 2019 about Shyam Kumar’s case. This includes an assertion that SpAs are meant to provide expert input “in a broad sense”:

“SpAs provide expert input on the quality of the service from a clinical perspective in a broad sense across the service, as well as on particularly [sic] specialties within the service. There are many different surgical and medical specialties, and it would not be possible or appropriate to bring SpAs to inspect every one of those specialities in detail on inspections.”

This is at variance to evidence by Mike Zeiderman CQC National Professional Advisor during Mr Kumar’s Employment Tribunal. Mike Zeiderman stated that he agreed with Mr Kumar’s concerns that CQC did not do enough to match Specialist Advisors to the Specialties inspected.

Surely the clue is in the name, “Specialist Advisor”?

As to inclusivity, the CQC has clarified that it does NOT include Specialist Advisors in its regular staff survey:

“Colleagues eligible to participate in our people surveys (also referred to as staff surveys) include permanent staff, fixed term and/or temporary staff, National Professional Advisors and Clinical Fellows. Contractors, bank staff, or SPAs are not eligible to participate.” [My emphasis]

This seems a questionable approach.

I asked CQC to disclose a copy of the feedback form that SpAs fill in after CQC inspections, and for analyses carried out by the CQC of the data gathered.

This is a copy of the online SpA feedback questionnaire:

CQC disclosure 7 October 2022: SpA inspection review form

This questionnaire asks important questions about how CQC inspections are conducted and whether CQC staff demonstrate CQC’s values of Excellence, Caring, Integrity and Teamwork during inspections:

The SpA feedback form implies that somebody in CQC actually reads these feedback forms, because it states:

“If concerns are raised by you the Flexible Workforce Team will contact you to discuss these”.

Even though CQC asks SpAs for this feedback, and it claims that it will respond, when Mr Kumar whistleblew in 2015 to CQC’s Chief Inspector of Hospitals about bullying and suppression during an inspection, he was repeatedly stonewalled by CQC.

Astonishingly, the CQC has claimed that it holds no analysed data from the SpA feedback questionnaires:

“We do not hold any analysis of this data.”

Has CQC never analysed this data?

Is public money spent gathering the data that is not then used?

It is hard to believe that CQC has never analysed the data.

Judging from the SpA feedback questionnaire form disclosed by the CQC, the questionnaire appears to be filled online.

How is it possible that large bank of highly accessible digital data has never been analysed by the CQC?

Or is that CQC has analysed this data, but decided that it was better to keep any analyses under wraps?

Within the SpA questionnaire form disclosed by the CQC, it actually says that the SpA feedback data is “collated and shared with the Directorate on a monthly basis”:

The options are:

– CQC did not collate data as promised

– CQC collated but shredded the analysed data

– CQC does hold the analysed data, despite its denial

Moreover, where is the employer’s duty of care to CQC’s Specialist Advisors?

CQC should transparently share analysed data with its workforce and provide proof that it is acting on concerns and difficulties.

I asked the CQC how many SpAs have resigned from CQC since 2018.

The regulator replied:

“We do not hold this information centrally and so a manual review of each personal record would be required to ascertain why they exited CQC. Therefore, we are unable to provide you with the requested information as we believe the cost of doing so would exceed the cost limit as defined by s12 of the FOIA.”

This is curious as during Mr Kumar’s Employment Tribunal it became clear that CQC has some form of database on SpAs.

How does CQC manage staffing demand if it holds no central data on leavers and resignations?

The SpA feedback questionnaire in fact includes the questions:

“Would you like to be involved in future inspections? [YES/NO]”

“Please explain why you would not like to be involved in future inspections? [FREE TEXT]

So again, a question arises of whether or not CQC has answered truthfully when it claims that it cannot say how many SpAs have resigned, and that it could only carry out a manual search which would breach FOI cost exemptions.

I have questioned, via Ian Dilks CQC Chair, CQC’s denial that it holds any analysed data on SpA feedback or data on the number of SpAs who have resigned.

LETTER TO IAN DILKS:

BY EMAIL

Ian Dilks, CQC Chair

7 October 2022

Dear Mr Dilks,

Analysis of CQC Specialist Advisor feedback and the number of Specialist Advisors who decide not to take part in further CQC inspections

Thank you for ensuring that there was no excessive further delay in the CQC answering my FOI request for information on CQC’s governance with respect to Specialist Advisors.

I received CQC’s response today – please see the attached.

I originally asked the CQC:

“4) Please disclose any analysis since 1 January 2018 of the routine feedback questionnaires completed by CQC Specialist Advisors after inspections Please disclose a copy of the questionnaire itself”

In its response, the CQC has claimed that it holds no analysed data from the Specialist Advisor feedback questionnaires:

“We do not hold any analysis of this data.”

I have to question whether this CQC claim is a factual inaccuracy.

This is because the feedback questionnaire is an online form and CQC should therefore hold a large amount of accessible digital data, no doubt with analysis in mind.

I also question CQC’s claim that it does not hold analysed data on Specialist Advisors’ feedback questionnaire because the form itself states the questionnaire data is: “collated and shared with the Directorate on a monthly basis”:

In light of this evidence that CQC does collate Specialist Advisors’ feedback data centrally and disseminate it to Directorates, please could CQC provide me with all the collated data reports that it has sent to Directorates on Specialist Advisor questionnaire feedback since 1 January 2018.

Also, I asked CQC:

5) How many Specialist Advisors have resigned from the CQC since 1 January 2018?”

CQC responded:

“We do not hold this information centrally and so a manual review of each personal record would be required to ascertain why they exited CQC. Therefore, we are unable to provide you with the requested information as we believe the cost of doing so would exceed the cost limit as defined by s12 of the FOIA.”

I struggle to see how this can be correct, because the CQC’s online Specialist Advisor feedback questionnaire gathers information about how many Specialist Advisors decide not to take part in future inspections. It asks the question:

“Would you like to be involved in future inspections? [YES/NO]”

To be more precise, can the CQC say on how many occasions have Specialist Advisors ticked the ‘NO’ box since 1 January 2018?

Many thanks,

Minh

Dr Minh Alexander

PETITION

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RELATED ITEMS:

Ted Baker former CQC Chief Inspector of Hospitals failed to protect Mr Kumar as a whistleblower. When Mr Kumar sought help from him regarding his experience of reprisal, Ted Baker maintained the CQC line that Mr Kumar had been sacked for inappropriate behaviour, a position that was later comprehensively rejected by the Employment Tribunal.

Ted Baker retired from the CQC but has recently been appointed Chair of the Healthcare Safety Investigation Branch, a position which one presumes requires sharp analysis and sound judgment.

The CQC’s dreadful history of handling whistleblowing within both its own organisation and provider bodies speaks for itself.

The Tulloch review into orthpaedics safety issues at UHMBT – see page 60 onwards

Royal College Surgeons November 2021 Universiy Hospitals of Morecambe Bay NHS FT Invited Clinical Records Review (Trauma and Orthopaedics)

Serious Case Review into Winterbourne Hospital Abuse

Witness statement of Amanda Pollard CQC whistleblower, to the Mid Staffs Public Inquiry

Resignation letter 26 January 2016 and disclosures by Barry Stanley Wilkinson, CQC whistleblower

Counting the cost of the CQC: Abuse, Whorlton Hall and CQC spin doctors

The spreading CQC Whorlton Hall scandal – emerging allegations at ‘Outstanding’ Newbus Grange. Another CQC deception?

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

CQC’s Victimisation of Whistleblowers: Failure to Investigate Concerns

Breach of confidentiality by CQC and complicity in referring a whistleblower to the Disclosure and Barring Service

Whistleblowers Unheard by CQC

More CQC denial about collusion with employers against whistleblowers

Carl Beech, CQC inspector, convicted child sex offender and fraudster: Activities at the CQC

CQC’s Asleep on the Night Shift

CQC case study. Snooping. Briefing. Porkies. And vexatiously applied ‘vexatious’ protocols.