Calling whistleblowers, patients and families: Language matters. CQC dismisses concerns as “complaints” to give you the bum’s rush, but it has to investigate “incidents” if CQC Regulation 12 is engaged

By Dr Minh Alexander retired consultant psychiatrist 26 March 2023

My apologies for a late post. This is due to a combination of illness and an excess of commitments.

As many whistleblowers, patients and bereaved families will know, the Care Quality Commission is fond of fending off concerns by labelling them as “complaints”. This is because CQC claims that it has no remit to investigate individual “complaints”.

CQC’s refusal to investigate countless serious matters, using this ploy, has caused endless frustration and distress. Importantly, it has wasted many opportunities for learning and public protection.

However, the regulator does have a duty under CQC Regulation 12, 2014, to investigate incidents that tend to show a failure by a regulated provider to provide “safe care and treatment”.

The CQC has powers to prosecute under this regulation. Clearly, in order to do so, it must first investigate.

Baby Harry Richford’s death and Regulation 12

An example of CQC’s unreliability arose in the case of baby Harry Richford’s death at East Kent.

CQC initially told his family in 2018 that it was unable to investigate their concerns and also that his death did not fall under Regulation 12.

The details of this matter were previously summarised here.

CQC came to an initial conclusion that no organisational failings contributed to Harry’s death. This was despite:

1. The trust’s own internal incident analysis concluding explicitly that there were systemic failures which contributed to Harry’s death:

“This leads us to conclude that this incident occurred due to system failures.”

Some of this was echoed in external reports at the time.

2. A 2015 Royal College review which had also previously identified systemic failings in the maternity service.

The systems failings identified by the Royal College included:

There had also been other signs of organisational failure by that point. Bill Kirkup’s October 2022 report on East Kent noted that the CCGs had raised concerns about maternity safety. CQC also received a whistleblowing disclosure from a consultant obstetrician in 2015 about poor leadership in East Kent’s maternity services. CQC received other disclosures about the culture of the maternity service. CQC itself found issues of culture in maternity services in 2014 inspection, when it rated the whole trust “inadequate”.

Despite the above evidence from multiple sources, the CQC claimed to Harry Richford’s family in 2018 there was only evidence of failings by individuals and not by the trust, and this meant that CQC Regulation 12 did not apply:

“After an extensive review, we do not believe there has been a breach in regulation. The concerns raised in this incident are centred on an individual’s decision or error. The criminal offences CQC can prosecute against only apply to registered person failures.”

However, the regulator later admitted that it had a remit under Regulation 12 to investigate Harry’s death.

After the coroner ruled in January 2020 that Harry’s death was “wholly avoidable”, CQC eventually concluded that there had been a breach of regulation 12 and announced a prosecution of East Kent in October 2020.

The trust was found guilty and was issued with a fine of £733,000 in June 2021.

I asked CQC about its original assertion in 2018 that Section 12 was not engaged, and why CQC so often tells bereaved families that their concerns cannot be investigated, when this seems incompatible with Regulation 12.

The CQC replied defensively on 24 November 2022, acknowledging that it had erred only in respect of the fact that its local inspector had used “conclusive” language when informing Harry Richford’s family in 2018 that Regulation 12 had not been breached.

“When Emma Carroll drafted her email of 17 August 2018, the local team, based on the information they had available at that time could not establish all of these elements. However, in Emma’s email, she unfortunately used conclusive language. After the conclusion of our prosecution. we carried-out a learning review of the investigation and within that we highlighted Emma’s correspondence to the family in August 2018. The learning point was that, for any potential offence and after any initial assessment, further information can always come to light and therefore we should not use categorical language in our communication with victims and families which states a conclusive position.”

CQC focussed on the fact that she should have explained to the Richfords that new information might change CQC’s assessment.

This is the CQC’s response letter of 24 November 2022.

The CQC contended that because it was tracking Harry’s inquest, it had not closed its file, and was still investigating.

There was nothing in this response about the quality of the 2018 CQC appraisal of Harry’s case, or any admission or explanation of why CQC had bizarrely overlooked ample evidence of organisational failure that existed by 2018, or why it had failed by that point to obtain a copy of the Royal College report.

But then, neither did Bill Kirkup fully acknowledge CQC’s failings in his recent report on East Kent. His main, repeated focus was on denial by East Kent managers.

Kirkup did make limited references in his report to missed opportunities by the CQC, but it would not do to direct too much fire at the powerful.

A bit like the strange silences about senior managers at Frimley, contrasted with the heavy focus on cover ups by frontline staff in his report about baby Elizabeth Dixon’s death.

But coming to the main point, CQC conceded in November 2022 correspondence that if it receives information about a possible breach of Regulation 12, such disclosures would be considered as part of CQC’s “assessment” about the purported breach:

So, don’t let CQC kick your concern into the long grass by framing it as a “complaint”.

Rather, insist – if it is so – that your concern engages Regulation 12.

UPDATE 9 April 2023

A coroner’s inquest has revealed that the CQC badly failed very vulnerable older patients at a HC-One home, by failing to act on numerous concerns.

Three residents died in February and March 2019.

One family member contacted the CQC NINE times to raise concerns.

The CQC did not inspect the home until August 2019.

It has “apologised for not inspecting sooner, and to all three families for missing the opportunity to potentially launch a criminal investigation.“

https://www.bbc.co.uk/news/uk-england-cambridgeshire-64939698