By Minh Alexander and Pam Linton, NHS whistleblowers 7 February 2023
| Summary The Care Quality Commission reluctantly donned sackcloth and ashes after an Employment Tribunal found that it unfairly dismissed a whistleblower. However, CQC has been allowed to direct investigations of its wrongdoing. One of the investigations is being conducted by a barrister and Chambers previously instructed by CQC. Tribunal proceedings revealed that CQC wrongly accused the whistleblower of bullying as grounds for dismissal and that it looked for adverse information against him for the purpose of defending the ET claim. Despite the ET outcome and despite other evidence to the contrary, CQC’s chief executive made claims to CQC staff that CQC and the National Guardian had good track records on supporting whistleblowers. However, the whistleblowing case of Dr Jasna Macanovic shows that CQC made flawed promises of protection that it did not keep. Not only that, CQC accepted the trust’s claims that the medical director involved in her unfair sacking was a Fit and Proper Person, and it rated the trust ‘Good’ on the Well Led domain. The National Guardian’s Office was similarly unhelpful to Dr Macanovic. It told her to come back after her Employment Tribunal concluded. The Tribunal process took five years to conclude. Ian Trenholm also claimed that all the individuals who whistleblew to the CQC the previous year would have seen CQC act in the public interest when no supporting evidence has been produced, and there is in fact evidence to the contrary. A comment by Ian Trenholm raised concerns about a breach of whistleblower confidentiality by the National Guardian’s Office to the CQC, but both CQC and the NGO deny this. |
On 14 August 2022 the Care Quality Commission was found by an Employment Tribunal to have unlawfully sacked Mr Shyam Kumar a surgical specialist advisor whom It had employed on a seconded basis from his NHS trust, expressly because he had made whistleblowing disclosures to the CQC.
Mr Kumar’s disclosures were made to CQC inspection staff and to a senior figure in the CQC, Mike Zeiderman, surgeon at Southport and Ormskirk and a CQC National Professional Advisor.
Mr Kumar raised concerns not only about unsafe clinical care about a surgeon at his trust (concerns which were shared by his consultant colleagues) but also about CQC’s inspection methodology such as not covering specialties properly, which he had witnessed. He was concerned that CQC was not inspecting some services with the right clinical expertise. He raised the latter with Mike Zeiderman. The criticisms of CQC’s operations were clearly much more threatening disclosures from CQC’s point of view.
The CQC concocted a means of dismissing Mr Kumar by claiming that he had bullied a doctor who supported the surgeon about whom he had raised clinical concerns. CQC dismissed Mr Kumar without a fair process and with little investigation of his concerns or any real examination of inappropriate behaviour by the surgeon whom Mr Kumar was accused of bullying. In fact, some of Mr Kumar’s whistleblowing concerns were baselessly and falsely denigrated by CQC officials as self-interested rivalry against another surgeon, an incredibly serious allegation. This was despite Mr Kumar reporting the retaliatory behaviour against himself to the CQC at an earlier stage.
Astonishingly, after Mr Kumar filed a claim to the Employment Tribunal about CQC’s mistreatment and unfair dismissal, the CQC inspector to whom he had raised concerns tried to dig for dirt against him. She contacted his NHS trust in an attempt to find adverse information against him, explicitly for the purpose of CQC’s legal response to the ET claim, which we believe most people would characterise as a gross misuse of regulatory power.
The CQC resisted the ET claim and throughout the ET proceedings, the regulator denied that it had erred. The CQC’s barrister and witnesses maintained that Mr Kumar had acted in a bullying manner and had breached CQC’s values so egregiously that this merited dismissal, right up to the resounding judgment in Mr Kumar’s favour.
The ET rejected the CQC’s claims of bullying.
After the judgment, the CQC accepted the findings.
CQC grudgingly and unconvincingly put on “learning the lessons” sackcloth and ashes.
CQC’s investigations into its disgraceful behaviour in Shyam Kumar’s case and matters arising
Kumar v CQC represents very serious regulatory failures to act on whistleblower disclosures, serious whistleblower reprisal and attempts to smear a whistleblower in the interests of corporate self-preservation. The CQC is a body that sits in judgment of others and is supposed to hold a high level of public trust. CQC answers only to the Department of Health and parliament, and has been allowed to mark its own homework by directing investigations into its whistleblowing governance arising from the Kumar case.
One investigation is to be conducted by a barrister from Matrix Chambers, Zoe Leventhal. Another is to be conducted by Scott Durairaj, a CQC insider. The latter was such bad optics that CQC eventually drafted in some additional external assistance, but it is still essentially an insider investigation.
With respect to the investigation by Matrix Chambers, CQC has indicated via FOI that it has instructed Matrix Chambers in the past.
CQC disclosed total payments to Matrix Chambers in the past five years as follows:
“2022-23 to date: £5,173
2021-2022: £225.00
2020-2021: £7,035
2019-2020: £0
2018-2019: £17,975
2017-2018: £37,941”
CQC indicated that Zoe Leventhal has done other work for CQC in the past, which comprised “First-tier tribunal and other civil law activity”.
CQC advised that it appointed Leventhal to undertake the investigation into its whistleblowing governance because: “CQC chose to appoint Zoë Leventhal based on her skills and experience.”
CQC refused to divulge its letter to the headmaster at the Department of Health about its proposed investigations into its own misdeeds, relying on a most unexpected law enforcement exemption:
“CQC are not in a position to respond to this request and will aim to respond by 7 November 2022. CQC are currently considering the public interest test in regard to an exemption under s31 FOIA – Law Enforcement.”
Several exchanges of correspondence with CQC followed, in which CQC shifted its grounds of objection and found new ones. It eventually conceded one small item of correspondence with the Department as below, showing that it conferred about terms of reference:
We formed the impression that the real objection to disclosure was grounds of embarrassment.
Ian Trenholm’s comments to CQC staff about Shyam Kumar’s case
CQC has disclosed via FOI the content of a strange internal briefing by Ian Trenholm CQC chief executive to CQC staff on 8 September 2022. Trenholm’s call to CQC staff that day reportedly covered other matters as well, and only the part of the call relating to Shyam Kumar’s case was disclosed:
“We have interpreted your request as for the parts of that call which relate to the Employment Tribunal case of Mr Kumar. The call did cover some other issues which are unrelated to that case. I attach a transcript of the comments made by Mr Trenholm on that call.”
CQC FOI disclosure CQC IAT 2223-0717: Text of all staff briefing by Ian Trenholm 8 September 2022
In this briefing, Trenholm complained about CQC’s critics with respect to Kumar v CQC.
“I’ve heard examples of some inconsiderate comments to colleagues about decision making – decisions that were made some years ago….I am concerned though that these comments that are on social media and so forth could cast doubt….how we both support whistleblowers”
Bizarrely, Trenholm claimed that both CQC and the National Freedom To Speak Up Guardian, which is a part of the CQC, both have good track records on supporting whistleblowers.
“…we both support whistleblowers when we both have a good track record of supporting people in some very complex circumstances.”
There are so many harmed health and social care whistleblowers who would vehemently disagree with this.
CQC’s false promises to protect whistleblowers
There are occasions when CQC falsely promises to protect whistleblowers but then does not.
One of the authors of this blog has first-hand experience of this.
A more recent experience is that of whistleblower Dr Jasna Macanovic, consultant nephrologist.
CQC inspection staff told her that if she experienced reprisal as a result of making disclosures, CQC would act upon this by reviewing her trust under CQC Regulation 5 Fit and Proper Persons.
There is a record of this promise in the form of a text message in 2016, from Claire Purse CQC Inspector:
This text message stated:
“You are protected under PIDA (Public Interest Disclosure Act) and therefore will not be able to be abused or lose your job. We will outline this to the trust and would not be expecting any action which contradicts the act. Any such action would be reviewed under our fit and proper persons regulations.”
This was of course a hollow promise.
It was also highly misleading as whistleblowers lose their jobs all the time because of the weakness of PIDA, the UK’s whistleblowing law.
CQC was forced to review Dr Macanovic’s trust under FPPR after her medical director was referred under Regulation 5. But CQC found her former trust to be compliant with Regulation 5 even though her former Medical Director was centrally involved in her unfair and predetermined dismissal, explicitly for whistleblowing, as found by the Employment Tribunal.
That is to say, CQC concluded that the trust’s evidence that the Medical Director was a Fit and Proper Person was reasonable.
In July 2022, CQC rated Portsmouth Hospitals University NHS Trust, Dr Macanovic’s former employer, as “Good” on the Well Led domain.
CQC did not step in when Dr Macanovic suffered severe reprisal.
CQC admitted via FOI that it had never found any NHS trust to be in breach of Regulation 5.
Dr Macanovic endured a terrible ordeal of ostracisation, described by the Employment Tribunal as a campaign of harassment, suffered personal disruption and losses and had to relocate to another part of the country. Her resilience and professional standing were such that she found alternative employment quickly, but her health was for a time affected and she has lost several years of her life defending herself from an unwarranted attack. Her family have suffered along with her. And so have the patients whom she tried so hard to protect.
CQC’s boasts and promises of protection are not worth very much at all.
As has been previously reported, the National Guardian’s Office was also of no support to Dr Macanovic. When she contacted the National Guardian for help, she was told to come back when her Employment Tribunal had concluded. It only finally concluded in January 2023 when remedy judgment was issued. Perhaps the National Guardian’s Office believes it is reasonable for whistleblowers to wait five years to receive its help. Public opinion is likely to differ.
Trenholm’s claim that CQC acts on all whistleblowers’ disclosures
Trenholm also made other defensive and somewhat disingenuous comments in his 8 September 2022 briefing which were not supported by the evidence, such as:
“Last year we received over 18,000 concerns about poor practice from people who work in services right across health and social care organisations…18,000 people last year will have seen us act clearly and in the public interest”.
This was a disingenuous claim because CQC takes no further action in a great number of these cases, as documented in its board documents, and as we and other colleagues originally reported to parliament in 2016.
After the 2016 report to parliament, CQC started publishing whistleblowing activity stats. But CQC performance deteriorated to the point where it took no action in the majority of cases.
CQC either filed the cases as information merely noted for a future, scheduled inspection, or it took no action at all, much to the bewilderment of whistleblowers. Where it took other “action”, this might simply be a cursory telephone call to the provider organisation for reassurance rather than an investigation of the relevant areas of governance.
Latterly, CQC has not even published the above scant detail on how it disposes of whistleblowing contacts. It only publishes data on the percentage of cases in which a record is made within five days of any action taken by the CQC, without differentiating the types of action taken.
CQC now simply expects the public to take on trust its facile claim that: “Review of records have shown that appropriate action is taken in relation to whistleblowing concerns…”. If the CQC is so confident that this is true, why has it stopped publishing the details?
Also, as CQC does not measure the experience of those who whistleblow to it, whether as staff of provider organisations or as its own staff, it is very hard to see how Trenholm could possibly imply that all provider staff who whistleblow to CQC are satisfied. Indeed, much of the evidence in known cases suggests otherwise.
Trenholm’s briefing to CQC staff about Kumar v CQC was at best tin-eared, if not defiant and misleading, and not at all consistent with learning lessons from a serious ET defeat.
Information sharing between CQC and the National Guardian’s Office
Very importantly, Trenholm’s staff briefing suggested that the National Guardian Jayne Chidgey Clarke or her Office had shared confidential information about Mr Kumar’s case with the CQC:
“…the National Guardians [sic] Office, who are completely unrelated to this case”
This was incorrect because Mr Kumar had sought help from the National Guardian’s Office. He and the BMA asked the National Guardian for a case review, but none ever materialised.
Trenholm was asked why he had incorrectly claimed that the National Guardian had nothing to do with Mr Kumar’s case.
Trenholm did not respond to the query about the incorrect claim in his CQC staff briefing.
Chidgey Clarke was also asked about the matter. She was slow to respond but after chasing eventually denied that her Office had shared any information with the CQC. Indeed, she showed herself to be conscious of the fact that any sharing of information would have been a breach of confidentiality:
“Dear Dr Alexander,
I can confirm that neither I nor the NGO were asked by Ian Trenholm for a briefing about, or to comment on, Mr Kumar’s case.
When Ian Trenholm made a statement about the NGO, it was in relation to having no involvement with the Industrial Tribunal and not related to interactions Mr Kumar had with the office. It appears that the comment by Ian Trenholm may have been taken out of context. As with all correspondence to the NGO, we adhere to confidentiality processes and do not discuss details of individual concerns with other bodies, unless specifically given consent by that individual to do so.
I hope this answers your question.
With Kind Regards,
Jayne
Dr Jayne Chidgey-Clark”
But if there had been a breach of confidentiality by the National Guardian’s Office, it would not of course have been the first time a whistleblower’s confidentiality had been breached.
A prior confidentiality breach by the NGO and subsequent lack of learning from this was previously documented.
However, as Chidgey-Clarke denied a breach of confidentiality, Trenholm was asked on what basis he had made the comment that the National Guardian had nothing to do with Shyam Kumar’s case.
Trenholm did not reply.
After chasing, CQC’s Director of Engagement replied on Trenholm’s behalf. Echoing Chidgey-Clarke’s response, he stated that when Trenholm said that the National Guardian had nothing to do with Mr Kumar’s case, he was talking specifically about the Employment Tribunal case:
“The reference to the National Guardians Office (NGO) being unrelated to Mr Kumar’s case is in relation to the Employment Tribunal proceedings and not a wider comment about any contact between Mr Kumar and the NGO.”
Some might think this sounds like word stretching, to protect a boss.
It might also suggest coordination of responses between the CQC and the NGO.
Why would Trenholm even say that the National Guardian had nothing to do with the ET case when no one had claimed that she had, and when everyone knows that the National Guardian by policy never gets involved in Employment Tribunal cases?
Ian Trenholm was asked for an answer to these questions, copied to Zoe Leventhal. He did not answer himself. Instead, his office dispatched a curt reply to the effect that CQC had nothing further to add: “We now consider this matter closed.”
We leave readers and would-be whistleblowers to form their own views on what Trenholm’s original comment really meant, and on whether there really is strict separation between the CQC and the National Guardian’s Office, when the latter is part funded by and reports to the former.
Past experience suggests that a bubble forms around the CQC village, in which an alternate reality thrives, where boundaries warp, and where whistleblowers are all too easily monsterised for the comfort of the needy and insightless villagers.
| CQC’s claims about its internal whistleblowing governance Reflecting on the CQC board’s insightlessness and propaganda tendencies an annual report from 2020/21 made these claims whilst the Kumar ET case was ongoing: “We have three Freedom to Speak Up guardians, supported by around 70 speak up ambassadors. We champion the importance of speaking up across the organisation and support a culture of openness where staff are encouraged and supported to speak up. In 2020/21 there were 40 recorded concerns/cases reported through the speak up route. Of these, 50% were enquiries to Ambassadors or Guardians which were resolved by advice, signposting and/or informal routes for mediation. The remaining 50% were either informally investigated by the Guardians or joint work was undertaken with HR where there was either a formal process followed or advice given. One contact resulted in a whistleblowing investigation. Our Guardians regularly report to the CQC Board on their work. In 2021/22 they plan to focus more on the outcomes from speaking up to ensure any learning or change that comes from speaking up is embedded and sustained.” It seems a major omission by the CQC board not to mention that their organisation was being sued for whistleblower detriment. What else has been and is being omitted from their accountability reports? |
CQC’s failure to measure feedback from whistleblowers
In the meantime, CQC’s Director of Engagement has offered a small concession in the form of a recognition that CQC is failing to measure feedback from whistleblowers:
“In terms of how we collect feedback from whistleblowers for assurance on CQC’s whistleblowing governance, I agree….We don’t currently routinely ask for feedback, and this is something we are looking to change going forward. We are exploring how well we listen to colleagues when they raise concerns about providers registered with CQC, as part of the review. This will include listening to whistleblowers experience of talking to us and the results will shape changes to our practice.”
Better late than never, but firm evidence of implementation will be needed.
UPDATE
The Secretary Of State has been asked to reconsider a decision by the Department of Health not to accept a Kark recommendation for a means to disbar unfit NHS managers, based on the above and other evidence of the ineffectiveness of NHS Fit and Proper Person arrangements.
BY EMAIL
Steve Barclay
Secretary of State
Department of Health and Social Care
7 February 2023
Dear Mr Barclay,
Disbarring unfit NHS senior managers
I write as NHS England have informed me that the Department is not currently implementing the recommendation from Tom Kark’s review of the Fit and Proper Persons test in the NHS for a disbarring mechanism.
I was deeply concerned at how we have arrived at this ten years on from the Mid Staffs public inquiry, following which you campaigned for David Nicholson’s removal.
Suppression and related patient harm in the NHS continue and I do not see how they can be less important today than they were ten years ago.
As an example of a blameless whistleblower, Dr Jasna Macanovic was found by an Employment Tribunal to be have been the victim of a campaign of harassment by her employing trust, Portsmouth Hospitals University NHS Trust. Her evidence has been accepted as credible by the Tribunal. She was found to have been unfairly dismissed as a predetermined act, expressly because she had made protected disclosures about serious patient safety issues. Her employer not only failed to recognise that her disclosures to the GMC were protected, and that they were made as part of her professional duty as a doctor, but punished her for making the disclosures. The Tribunal found that her medical director was centrally involved in her predetermined unfair dismissal. The Tribunal found no contributory fault by Dr Macanovic.
But when a Regulation 5 Fit and Proper Persons (FPPR) referral was later made to the Care Quality Commission on the above medical director, the CQC concluded that the trust was not in breach of the regulation. This is in the context of the CQC previously promising Dr Macanovic, at the outset of her whistleblowing journey, that it would protect her by warning the trust against attempts at reprisal. It also promised her that it would review the trust under Regulation 5 if reprisal occurred. However, the CQC reneged and did not step in when gross reprisal occurred, and it only conducted the FPPR review when it received a formal referral. All this illustrates plainly the ineffectiveness of current arrangements for protecting staff and patients from failing managers.
Without a disbarring mechanism, erring managers will simply continue to be protected and recycled,and be free to repeat harms.
I would be grateful if you would reconsider the Department’s decision not to implement this aspect of the Kark recommendations.
The details of CQC’s false promise of protection to Dr Macanovic can be found here:
I do not consider conventional routes of disclosure (employers, regulators, other designated whistleblowing mechanisms) for NHS whistleblowers reliable at present.
With best wishes,
Dr Minh Alexander
Retired consultant psychiatrist
Cc Health and Social Care Committee
Public Accounts Committee
PETITION
Please click and add your signature to this petition to reform UK whistleblowing law – whistleblowers protect us all but weak UK law leaves them wholly exposed, lets abusers off the hook and it is a threat to public safety.
Replace weak UK whistleblowing law and protect whistleblowers and the public
RELATED ITEMS
Sorry is the hardest word: CQC, Paula Vasco-Knight and Regulation 5 Fit and Proper Persons
Mr Tristan Reuser’s whistleblowing case: Scandalous employer and regulatory behaviour on FPPR
There is past evidence of a former National Guardian casually asking the CQC for a “briefing” about a whistleblower, one of the blog authors, revealed by Subject Access Request. Not so many scruples there about personal data rights.
Alexander's Excavations 
Thank you for reporting, and therefore recording for posterity, a scandalous event and, IMO, an attendant, inadequate follow-up.
Regrettably, it is difficult to find evidence that we are not running down our institutions in preparation for takeovers that will unlikely benefit the taxpayer and/or customer.
Below is an item from today’s Daily Mail. It seems the NHS will do anything to avoid tackling its fundamental problems. Pigs and lipstick spring to mind.
“The NHS has come under fire for hiring a branding agency to help ‘cultivate the right personality’ and ‘rebuild lost trust’ amid record waits for care.”
https://www.dailymail.co.uk/news/article-11724597/NHS-fire-hiring-branding-agency-improve-image-amid-strikes-waiting-list-crisis.html?ito=email_share_article-image-share
LikeLike