Why has the National Guardian’s Office given conflicting information about quality assurance of its case records and protection of whistleblowers’ confidentiality?

Dr Minh Alexander retired consultant psychiatrist 29 November 2022

The National Freedom To Speak Guardian’s Office (NGO) was not designed to help whistleblowers and patients but to help the government control the narrative about quality issues in the NHS.

It has no powers and what narrow remit it has, has been implemented in a mean and cynical way to deprive whistleblowers of any real support.

For example, its exclusion criteria are designed to abandon whistleblowers at the height of their conflict with employers – it tells whistleblowers who are in a legal dispute with their employers to come back when it is all over. This often takes years.

For example, Dr Jasna Macanovic Portsmouth Hospitals whistleblower was unfairly dismissed in 2018 and filed a claim in the Employment Tribunal that year. Her remedy hearing was only held this month. She originally sought help from the National Guardian but was told to come back after her case had finished.

This is extraordinary cruelty and irresponsibility by the Office, which has been repeatedly meted out to highly distressed whistleblowers.

Through this withholding of help from NHS whistleblowers, the NGO has kicked many patients’ interests into the long grass

Patient safety matters should not wait for years at the National Guardian’s convenience.

For over two years now there have been incidents which call into question the National Guardian’s Office’s respect for whistleblower confidentiality and its diligence in keeping proper whistleblower cases files.

I had cause to challenge the Office twice this year.

Because of the NGO’s evasive and minimal answers, and failure to follow up on anomalies brought to its attention, I made an FOI request in September about its quality assurance processes.

In its responses, the NGO appears to have misled me about the existence of quality assurance processes for its whistleblower case records and protection of whistleblower confidentiality.

Bear in mind that failure to protect a whistleblower’s identity and confidentiality is now a criminal matter in some jurisdictions (for example, some EU countries, Australia, Ireland).

The National Guardian has personally also tried to prevent disclosure of accountability data by her Office through an implausible attempt to apply an exemption under FOIA that relates to prejudice to law enforcement.

The reasoning given is laughable. It claims that internal audits should not be published in case it puts people off audit.

This is also at complete variance to the National Guardian’s written guidance to NHS trusts, which advises regular audit of Freedom To Speak Up arrangements, and that audits should be“shared externally to support improvement elsewhere” !!!

The correspondence below gives the broad details of the National Guardian’s obfuscations.

BY EMAIL

Jayne Chidgey-Clarke

National Freedom To Speak Up Guardian

Care Quality Commission

28 November 2022

Dear Dr Chidgey-Clarke

Apparently misleading information provided by your Office and apparent lack of audit of case record keeping and confidentiality by your Office

I have received a response from your Office which suggests that it previously misled me by claiming that there had been two audits of the National Guardian’s case record handling and protection of whistleblowers’ confidentiality. It now appear these audits may not have taken place.

Time line of relevant events

On 13 September 2022, because of a number of events of concern, I asked you if your Office held data on audits undertaken about case record handling by your Office.

On 4 October your Office replied:

“Our office has had two audits since its inception in 2016, one in 2017/18 and one in 2020/21. We are due to undertake a further audit in the next financial year. Parts of these audits looked at risk management, including secure record management and confidentiality.”

On 7 October 2022 I asked you for copies of these two audits.

On 7 November your Office said it might not disclose the audit reports, and it was considering whether to apply Section 31 FOIA exemption (prejudice to law enforcement processes) on these grounds:

“We have determined that the exemption under section 31(1)(g) of FOIA applies as disclosure of the requested information would be likely to prejudice the exercise of the NGO’s statutory functions.” 

FOI response by National Guardian’s Office 7 November 2022   

I was puzzled as your Office has no powers and only one statutory function as far as I am aware. I asked you to clarify which Section 31 categories of law enforcement you claimed applied.

On 15 November 2022 your Office wrote to:

1.   Disclose what it claimed was the 2017/18 audit which included case records and confidentiality

What it disclosed was in fact a fragment from a document. The fragment contained no information about case record handling or confidentiality.

Fragment of document disclosed by National Guadian’s Office 15 November 2022

2.   Refuse disclosure of the 2020/21 audit.

Your Office claimed that this was because Section 31 FOIA law enforcement, category “Health and Safety” applied:

“Internal audits are a way for organisations to test and improve their processes and improve their effectiveness and efficiency in performing their roles. A disclosure that would prejudice the effectiveness of future internal audits would therefore prejudice the future effectiveness and efficiency of the NGO in delivering on its purposes.

These prejudices would be likely to arise where disclosure of internal audit reports resulted in concern about the likely impact of disclosure of similar reports in the future. This would be likely to have the effect of prejudicing the candid and open approach of colleagues in their future interactions with auditors, and prejudicing the candid and open reporting of auditors findings in future reports. These prejudices to the effectiveness of the internal audit process would therefore be likely to prejudice the overall effectiveness and efficiency of the NGO in supporting Guardians in their work for the ultimate purpose of protecting the health and safety of people who speak up and patients.”

Your Office indicated that it had been your decision to apply Section 31 FOIA.

My reading of this is that your Office is implausibly claiming that the publication of audits will lead to your staff not contributing candidly to future audits, and you claim that this will threaten the health and safety of staff who speak up, and of patients.

I rejected this argument in my response to you of 17 November 2022:

Letter to Jane Chidgey-Clark 17 November 2022 re FOI issues

Not least because your Office has issued written advice to NHS trusts, which urges them to regularly audit their Freedom To Speak Up arrangements, and that their audits should be “shared externally to support improvement elsewhere.”

I did not accept therefore that you genuinely believed there would be prejudice under Section 31 FOAI, as had been claimed.

On 25 November 2022 your Office wrote to say that the 2020/21 audit of record keeping and confidentiality practices which it claimed took place, did NOT take place.

It stated that the 2020/21 audit was about something else:

“However, please note that the 2021 audit was not around case handling and the handling of whistleblower confidentiality. The title of the audit is ‘Freedom to Speak Up Guardian role in arms-length bodies and regulators’.

It would therefore appear that your Office made an incorrect claim in its response of 4 October 2022, stating that there had been two audits of its case record keeping and handling of confidentiality, in 2017/18 and 2020/21.

1.    I would very much appreciate an explanation of why I have been given conflicting information about whether your Office’s core processes, of case record keeping and handling of whistleblower confidentiality, have been audited. Please clarify if any such audits have ever been undertaken.

Please disclose the NGO risk register that was audited in 2017/18 as part of your reply, given your Office’s contention that the risk areas managed included record keeping and confidentiality.

I copy this correspondence to Ian Trenholm with respect to the regular accountability meetings that I believe he holds with you, and to Andrew Morris and Robert Francis as members of the National Guardian’s Accountability and Liaison Board.

You will be aware that as result of the recent responses by your Office, I wrote to Andrew asking if the Accountability and Liaison Board should review the National Guardian’s published values and mission, and its operations, to ensure better adherence to Nolan Principles of Accountability and Transparency.

I understand that Andrew gave you a copy of my letter and has forwarded it to Ian Trenholm for investigation of the specific issues.

2.    I ask that the apparent inaccuracy of the 4 October 2022 response by your Office, claiming audits of case records and confidentiality had been undertaken – where none now appear to exist – be added as a matter for investigation.

3.    If it is the case that your Office has NEVER undertaken any audit of its case record keeping and protection of whistleblowers’ confidentiality, despite Dr Campbell’s case and despite the other concerns raised, please advise if you will put this right and put in place an ongoing audit cycle.

Yours sincerely,

Dr Minh Alexander

Cc

Ian Trenholm CEO CQC

Andrew Morris Deputy Chair NHS England and Chair of National Guardian’s Accountability and Liaison Board

Robert Francis CQC NED and member of National Guardian’s Accountability and Liaison Board

UPDATE 9 DECEMBER 2022

An exchange of correspondence with the National Guardian and her office has revealed that the claim that whistleblower case files had been audited on two occasions was not true.

The Office has now changed tack and ludicrously claims that it does not need to audit its whistleblower case files.

I have challenged this:

Correspondence 9 December 2022 about National Guardians Office’s claim that it does not need to audit its whistleblower case files

I have also repeated my request to Ian Trenholm CQC CEO for investigation of why the NGO gave me misleading and conflicting information.

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