CQC secrecy about its Freedom To Speak Up Guardian reports, dubious denial of whistleblower detriment, lack of data on whether staff would speak up again and more detriment after speaking up

By Minh Alexander NHS whistleblower and Martin Morton Social Work whistleblower 22 March 2023

The Care Quality Commission is the quality regulator for health and social care in England. It is supposed to be an impartial guardian of care standards and accountable to the public.

In reality, CQC was created in the aftermath of government embarrassment by a previous health regulator which uncovered the MidStaffs disaster.

The CQC was not intended to repeat such embarrassment and its first CEO was in fact the former CEO of the West Midlands SHA, a body that was central in the Mid Staffs disaster.

CQC’s first chair Jo Williams was later censured by the Mid Staffs public inquiry and parliament for mistreating CQC whistleblowers who gave evidence about regulatory failure by the CQC.

Excerpt from Amanda Pollard CQC whistleblower’s oral evidence to the Mid Staffs public inquiry, given on 28 November 2011:

When Williams was recycled as an NHS trust Chair, CQC unsurprisingly passed her trust on the Regulation 5 Fit and Proper Person Test.

All told, the CQC has proven to be a politicised and suppressive organisation.

It has failed countless whistleblowers, including its own. This all the worse for the fact that CQC is a Prescribed Person under UK whistleblowing law and should at least not harm whistleblowers, whether by act or omission.

However, last year, the regulator was proven to have seriously harmed a CQC whistleblower in the ET case of Kumar v CQC.

The government has allowed the CQC to investigate and control investigations into itself regarding this spectacular failure.

At least one of these investigations, a barrister led review of the Kumar case and a mysterious, undisclosed sample of other whistleblower cases, should have reported by now, but nothing has been released into the public domain.

CQC’s whistleblowing governance reviews

Sparse terms of reference for the CQC reviews post Kumar v CQC were issued.

Terms of reference for review by Zoe Levental KC Matrix Chambers

Terms of reference for review by Scott Durairaj CQC Director of Integrated Care, Inequalities and Improvement

It was not disclosed how the additional whistleblower cases for review were chosen. CQC instructed a barrister from Matrix Chambers. FOI enquiries revealed that

CQC had instructed both the barrister and Matrix Chambers previously.

In the meantime, the CQC has shown itself to be disingenuous despite its glib claims that it would learn from the Kumar case.

In an internal briefing to CQC staff in September 2022, disclosed via FOI, CQC’s CEO Ian Trenholm claimed shortly after the ET loss that both the CQC and the National Freedom To Speak Up Guardian had good track records on supporting whistleblowers.

Trenholm also decried CQC’s critics.

Is denial a novel technique for creating a safe environment that helps staff to raise concerns?

CQC’s failure under FOIA to produce all of its Freedom To Speak Up Guardian reports

Parallel to this, CQC was.evasive and breached legal deadlines for responding to an FOI enquiry about its whistleblowing governance

CQC was asked to disclose all reports by its own Freedom To Speak Up Guardian but failed to do so.

Instead, CQC bizarrely pretended to misunderstand and directed one of this blog’s authors to published reports by the National Freedom To Speak Up Guardian.

When this obvious error was pointed out, CQC reverted to silence. It has still not properly responded to the FOI request.

Some of CQC’s internal Freedom To Speak Up Guardian reports were actually published via CQC board papers, but not all seem to have been released. There are gaps in the timeline of published reports, taken from archived CQC records.

According to CQC’s whistleblowing policy, the reports are meant to be produced twice a year:

“Board oversight

The chief executive and CQC board will be given high level information about all concerns raised by our staff through this policy and what we are doing to address any problems. The CQC Guardian will produce a report twice a year to the board setting out the volume and type of concerns that have been raised, without identifying individuals. The board supports staff raising concerns and wants you to feel free to speak up.”

The CQC’s silence in response to the request for all its Freedom To Speak Up Guardian’s reports is troubling. Are important matters being concealed? Were some of these reports produced for internal consumption only, and have they been improperly withheld from FOIA disclosure?

Of the so far published CQC Freedom To Speak Up Guardian rreports, these present superficial data which raise more questions than they answer. Links to these uploaded CQC reports and some examples of how limited data is presented in these reports is summarised here.

CQC denial of detriment and dissembling about feedback about its Freedom To Speak Up process

In the course of the above FOI correspondence about CQC’s whistleblowing governance, CQC implausibly denied that there had been any detriment suffered by employees in 131 recorded speaking up cases over five years:

“…we can inform you that nobody raised that they feel they have suffered detriment as a result of speaking up.”

Curiously, despite being adamant that there was no detriment in any of these 131 case, CQC claims it is unable to answer a question about its employees’ satisfaction with the CQC speaking up process.

This allegedly because it would have to manually review files and this would take too long.

CQC has claimed a slew of other FOIA exemptions as well, indicating how reluctant it is to answer this very basic question about whether its staff are satisfied by their speaking up experiences.

Several issues arise from this.

Firstly, the National Guardian requires all NHS Freedom to Speak Up Guardians to collate and produce routine speaking up data as follows:

Number of cases raised in reporting period
Number of cases raised anonymously
Number of cases raised with a patient safety element
Number of cases raised with an element of bullying or harassment
Number of cases in which detriment occurred
Professional background
Feedback: “Given your experience, would you speak up again?”

There is a published national dataset based on this reporting system.

The so far published CQC Freedom To Speak Up Guardian reports do not reveal most of this required transparency data.

CQC’s internal whistleblowing policy gives cursory guidance on what records are made:

“What will we do? We are committed to the principles of the Freedom to Speak Up review and its vision for raising concerns, and will respond in line with them. We anticipate that some concerns may be capable of being dealt with informally to the satisfaction of all concerned, without contacting the ambassadors. If you choose to go through one of our FTSU ambassadors, your concern will be recorded and you will receive an acknowledgement within two working days. The central database will record the date the concern was received, whether you have requested confidentiality, a summary of the concerns and dates when we have given you updates or feedback, and any lessons learned.”

The job description for CQC Freedom To Speak Up Guardians is based on this policy and is consequently also vague:

“To keep up to date records, recording contacts, concerns and outcomes in line with the CQC Freedom to Speak Up recording policy and process”

How did CQC know that no detriment has been reported via its Freedom To Speak Up arrangements? Was this a non-evidence based claim? Or is there collated data that is being withheld from the public, contrary to practice in the rest of the NHS?

If CQC is not collating data such as to whether its staff are satisfied with their experiences of the Freedom To Speak Up arrangements, through indicators such as whether they would speak up again, how can it claim to be learning?

CQC received the Kumar v CQC judgment in August 2022. The regulator has had over six months to reflect. The fact that it might be still failing to collect whistleblower feedback, ignoring the feedback or hiding the feedback is a very poor reflection on its intentions.

In fact, CQC’s Director of Engagement recently admitted in correspondence that CQC does NOT collect feedback from whistleblowers.

If so, why did CQC not simply admit this omission in its FOI response, instead of claiming that it would not produce the data due to an FOIA cost exemption?

Moreover, Ursula Gallagher another CQC senior manager pointed out to the CQC board in 2018 that CQC was failing to collect feedback from whistleblowers,

“…there is only limited feedback available from those who have raised concerns with us about their experience of those processes and, therefore, how this might be improved.”

And yet CQC did not act on this. This is more evidence of CQC’s failure to take whistleblowing seriously.

Overall, it seems likely from the above inconsistent facts and CQC claims that there is dissembling in some manner, in addition to probable competence deficits.

Lastly, one of the authors has received information which contradicts CQC’s claim of zero detriment in 131 speak up cases.

This is hardly surprising, especially when CQC’s 2021 staff survey showed that only 49% of staff thought that it was safe to challenge the way things are done at the CQC, and that 10% of the staff who did not think it was safe reported that they had experienced repercussions as a result of speaking up previously.

So whatever is reported in CQC’s forthcoming reviews of its own whistleblowing governance, it would be safe to conclude that the reality is worse.

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