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.
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.
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.
“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.”
“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?
“…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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Under a new Chair, UHB has now released all five years of hidden spending data in response to an FOI request. It has done so late, and only after an indication that a referral would be made to the ICO if there was any further delay.
The data still contains items that were not asked for, in terms of spending amounts under £25K, but if desired, these can be excluded using the “filter” option on Excel.
There was no indication from UHB on whether all transactions under £25K had been included in the released data.
For the purposes of a quick and dirty look at the data, I am including all items of expenditure in the five year period, even in the knowledge that UHB may not have released all items of spending under £25K.
The data seems to be missing some items of expenditure currently under investigation by BBC Newsnight. It may well be incomplete in other respects.
We already know that UHB released inaccurate information about GMC referral outcomes, and has so far failed to correct this despite several approaches to the interim trust Chair Yve Buckland.
We have also seen UHB excoriated by the Employment Tribunal for withholding such a large number of significant documents in the Reuser whistleblowing case that the judge determined that he could not rule out deliberate dishonesty by UHB or similar future failures by trust management.
Litigation continued after March 2020 as Tristan Reuser’s case in the EAT and ET rumbled on, there was an FPPR investigation involving a Bevan Brittan partner and David Rosser’s GMC defence was, according to an observer at a trust meeting, picked up by the trust. These alone would have incurred substantial costs.
University of Birmingham
As a teaching hospital trust, UHB is closely linked to the university.
According to the disclosed spending data, UHB spent a total of £50,286,941.81 on 247 transactions with UHB in the five year period.
A spreadsheet giving details of the transactions can be found here.
Alongside this financial relationship, the University was asked about whether it should now withdraw its award of an honorary professorship from David Rosser in the light of ET, GMC and other findings. It has not so far responded.
Purchase of “Healthcare Non NHS”
Under this category, UHB made a total purchase of £86,081,036.99 in the five years covered by the FOI.
The largest ten payments were as follows:
Cumulatively, UHB paid the most to Diaverum and Fresenius Medical Care.
There were 1396 payments to Diaverum UK ltd and Diaverum Facilities Management, totalling £33,938,705.2
There were 1383 payments to “FRESENIUS MEDICAL CARE RENAL”, totalling £22,743,634.4
A spreadsheet of all transactions listed under “Healthcare NON NHS” can be found here.
UHB Facilities Limited
In 2013 UHB set up a subsidiary company, UHB Facilities Ltd, reportedly for the purposes of VAT advantages.
The company’s current officers/directors include David Burbridge UHB Chief Legal Officer, Mike Sexton Chief Finance Officer, Peter Hirons UHB Facilities Manager,
UHB Facilities Ltd has a Financial Controller, Karen Cutler, and a commercial director Alan Ewan, for whom I cannot identify roles at UHB.
In the five years covered by the FOI, UHB paid UHB Facilities Limited a total of £14,067,213.71.
A spreadsheet with the details of the transactions can be found here.
Assure Dialysis Services Ltd
UHB set up another company in 2013, UHB Satellite Dialysis Limited.
“Assure Dialysis Services is a venture providing dialysis care for the patients of the Queen Elizabeth Hospital Birmingham (QEHB) and we therefore have an extensive partnership with University Hospitals Birmingham NHS Foundation Trust, which manages QEHB.”
Another part of the website stated:
“Smethwick Dialysis Centre (SDC) is a satellite dialysis unit of the Queen Elizabeth Hospital Birmingham. It functions like all other satellite units and a QEHB consultant manages patient care alongside the staff at Smethwick Dialysis Centre.”
The current company officers/ directors are David Burbridge UHB Chief Legal Officer, Dr Mike Hallissey, UHB Medical Director of Education, Robert Watkins Senior Finance Manager UHB.
David Rosser was previously a director of Assure Dialysis Services Ltd between 2014 and 2018.
Dr Clara Day was previously listed as one of the doctors who worked at Assure Dialysis Services Ltd.
Clara Day is now Chief Medical Officer of the ICB which is controlling the reviews of UHB.
In the five years covered by the FOI, UHB reportedly paid the company a total of £4,670,604.76.
A spreadsheet with details of all disclosed transactions can be found here.
UHB set up this company in 2011.
Current company officers/directors include David Burbridge UHB Chief Legal Officer, Yma Choudhury UHB Managing Director Division 1, Mike Sexton UHB Chief Finance Officer and Inderjit Singh UHB Chief Pharmacist.
In the five years covered by the FOI, UHB reportedly paid Pharmacy@QEHB LTD a total of £265,122,325.5.
Details of the transactions can be found in a spreadsheet uploaded here.
Circle Health Group
Cardiology and cardiac surgery services have been controversial at UHB, with critics citing the trust’s scapegoating of cardiac surgeon Ian Wilson, whom they believe was unfairly vilified through the trust’s alleged manipulation of the media and irregular use of data.
Moreover, the BBC revealed in January that UHB has a cardiac surgeon – Neil Howell – who has been paid for five years but has not operated;
UHB seems to have purchased significant services from Circle Health Group relating to its cardiac directorate.
Payments to Circle Health Group in the five years totalled £2,858,365.
Of the total paid of £2,858,365, £2,800,693 of this was accounted for by expenses areas “cardiac directorate” and “cardiac surgery”, including £1,359,461 expenses described as “management consultancy fees”.
Also, BBC Newsnight has revealed that the ICB CEO wrongly told the Joint Health Overview and Scrutiny Committee that Parliamentary and Health Service Ombudsman’s concerns about UHB had been resolved, when this was anything but the case.
The PHSO continues to be vocally concerned about UHB. His public intervention amounts in my view to a thinly veiled accusation of a high-level cover up, and with some face validity.
Astonishingly, PHSO shared correspondence with Newsnight and gave an interview to Newsnight about his concerns, which featured in a broadcast of 14 March 2023.
Extraordinary times when agencies are “whistleblowing” about each other.
My transcript of the relevant sections of the programme and screenshots of disclosed correspondence to Ruth May NHS England CNO and the current UHB chief executive Jonathan Brotherton is provided below.
Scandalous though recent events have been, NHS England is by its opacity and incompetence actually helping to make the case for a properly independent judge led inquiry, with powers to protect witnesses.
EXCERPT FROM 14 MARCH 2023 BBC NEWSNIGHT BROADCAST
“Kirsty Wark BBC: In an exclusive interview safety investigator the Parliamentary and Health Service Ombudsman the last port of call for people who are unhappy with the NHS in England tells Newsnight of his serious concerns about the different roles and his difficulties investigating University Hospitals Birmingham. Here’s David.
David Grossman BBC: For the past six months Newsnight has been investigating one of England’s worst performing health trusts. We were repeatedly told it had a toxic culture. We heard from a governor of the trust who said he resigned after his warnings were ignored.
We heard allegations that patient safety warnings were ignored. And from doctors who feared that if they spoke up they’d be punished. Despite strenuous denials from UHB, NHS England took action. From the very moment that these reviews were announced, we were warned by insiders in the health service that they wouldn’t be rigourous or independent enough to get to the truth.
And now, in an unprecedented move, the most senior health service investigator in England the Parliamentary Health Service Ombudsman has complained to us that he has been excluded from giving evidence to the review.
He says he won’t be able to share the wealth of information that he’s gathered about repeated patient safety issues at UHB.
Rob Behrens Parliamentary and Health Service Ombudsman: By law and practice I’m the last resort for people who believe they’ve had either poor service or have been subject to some some clinical failure in the health service.
David Grossman BBC: Rob Behrens is the last chance investigator for health service complaints in England. If you’re unhappy with how your complaint has been treated, the Parliamentary Health Service Ombudsman and his team may look at it. He says they have to examine hundreds of complaints at UHB in the last three years, more than any other trust.
Rob Behrens Parliamentary and Health Service Ombudsman Some are about avoidable deaths, where unfortunately , sadly, tragically people have died on the balance of probability as a result of the failures of the clinicians to address the issues at the time.
David Grossman BBC: What’s been happening when you approach them?
Rob Behrens Parliamentary and Health Service Ombudsman A number of things. A lack of cooperation, a failure to engage with the Ombudsman in order to resolve cases and to learn from them.
The trust is continuously late or has been continuously late in providing us with the evidence which we’ve requested.
They have rejected our draft findings.
When we’ve had meetings to take the issues forward, under their previous leadership they were aggressive.
They failed to understand the seriousness of the issues and there was no learning culture in the organisation that we could see at all.
And that is very serious indeed because the issues are about patient safety.
David Grossman BBC: The Ombudsman was so worried about what was happening at UHB that last summer he took the extremely unusual step of issuing what’s called an Emerging Concerns Protocol to alert NHS England.
Rob Behrens Parliamentary and Health Service Ombudsman This is the first time that I have done it, so that represents the seriousness with which we regard these issues. So when the reviews into UHB triggered by Newsnight’s investigation were announced, Rob Behrens and his team fully expected to turn over their huge body of evidence of serious failings at UHB to those inquiries.
Rob Behrens Parliamentary and Health Service Ombudsman In those early days we figured our concerns we were told by NHS England that we would be invited to participate into the second of the reviews and subsequently that invitation was withdrawn.
And my concern, general concern that the NHS is not good about commissioning independent reviews to make sure there’s proper learning from what has happened. I need to be reassured that in this case, that is not also the case. But I’m sceptical.
David Grossman BBC: The Parliamentary Health Service Ombudsman and his team have written to NHS England have written to NHS England to protest about being excluded.
You’re sceptical about whether this is going to be the thorough job that you said needs to happen?
Rob Behrens Parliamentary and Health Service Ombudsman: Yes
David Grossman BBC: How serious is that?
Rob Behrens Parliamentary and Health Service Ombudsman: Well, it’s a serious issue for a patient safety organisation not to want to involve Ombudsmen, leaders and regulators in giving evidence to try and address the operational that have caused the inquiry to be commissioned.
To me, it doesn’t make sense.
David Grossman BBC: The reviews are being run by the Integrated Care Board in Birmingham and Solihull, part of NHS England. Even though the reviews haven’t been completed, the chief executive of the Integrated Care Board recently suggested to councillors that they wouldn’t find anything seriously wrong that would affect patient safety.
[At this point Newsnight showed footage of David Melbourne reporting to Birmingham and Solihull Joint Health Overview and Scrutiny Committee as follows:
“I did want to update you on where we were with the review commissioned following the allegations in Newsnight”
“All three of the reviewers were very clear that they would be happy for their families to be treated at University Hospitals Birmingham.”]
Rob Behrens Parliamentary and Health Service Ombudsman It does not chime with my experience. I’m surprised that at this stage someone would make a statement like that when the first review has taken place entirely in private. We don’t know what evidence has been taken.
I would need to see evidence documented before I accepted that view.
David Grossman BBC: The Ombudsman is so concerned about what’s happening at UHB that at the end of last week he wrote to trust management.
These concerns are entirely at odds with what the chief executive of the Integrated Care Board told local councillors.
He reassured them that any issues that the Ombudsman may have had, had quote “been resolved”.
[At this point Newsnight showed footage of David Melbourne ICB CEO telling the Joint Health and Overview Scrutiny Committee:
“What has happened is that has been… the issues Parliamentary Ombudsman raised have now been resolved through that process”]
David Grossman BBC: Is that your understanding?
Rob Behrens Parliamentary and Health Service Ombudsman It’s not my understanding. The issues in broad terms have not been resolved. A small number of issues have been addressed. But the reason I wrote to the new chief executive was to express my concerns that there was still a lot to do, and we needed convincing that change of culture was going to take place that was going to impact on operational practice.
David Grossman BBC: UHB told us that they’d responded to the Ombudsman’s letter to provide reassurances that his concerns were being taken seriously. They’d previously told us that patient safety is always their primary concern. The Integrated Care Board in Birmingham and Solihull they hadn’t heard from the Ombudsman, they would welcome the opportunity to provide assurances to the Ombudsman. A spokesman for NHS England Midlands told us that the three reviews have been commissioned to rigorously to scrutinise leadership and culture in the organisation to ensure they are providing safe care for patients, and that they welcome the offer of support from the Ombudsman’s Office.
The stated purpose of these reviews is to learn lessons and restore confidence in one of England’s biggest and most trouble health trusts.
But with such a significant voice as the Parliamentary Health Service Ombudsman questioning their rigour, that job looks harder than ever.”
Regarding Mike Bewick’s and other’s honorary professorships:
“There is a real danger this could be seen as “grace and favor” or “quid pro quo” when an honorary award is made to someone in a senior position in an organisation that provides a service to, or is a “customer” of, the awarding university.”
Then there is the moot issue of whether such titles are misused by some, unwittingly or intentionally in some cases to polish their CV and personal presentation.
His trust University Hospitals Birmingham NHS Foundation Trust disclosed that this was based on an honorary professorship.
The awarding body was the University of Birmingham.
The University was asked if it condones his use of the title in day-to-day life. It has not yet replied.
2. Steve Field GP and former Chief Inspector of primary care Care Quality Commission, then Chair of Royal Wolverhampton NHS trust and later also Chair of Walsall Healthcare NHS Trust.
Field styles himself as “Professor”
A biog about Field, announcing his appointment to the organisation Policy Connect, stated that he held two honorary professorships at University of Warwick and University of Birmingham:
3. Mike Bewick GP and former Deputy Medical Director NHS England, who set up a private consultancy firm IQ4U Consultants Ltd after leaving NHS England, styles himself as “Professor” on his current LinkedIn profile.
Mike Bewick is of course currently in the public eye as he has been hired to conduct reviews on University Hospitals Birmingham NHS Foundation Trust after a scandal, exposed by BBC Newsnight.
He is represented on reports by his company IQ4U Consultants Ltd as “Professor Mike Bewick”.
I asked Mike Bewick about his use of the title “professor”.
“I hold an honorary chair at UCLan only not a substantial professional one”.
I asked him why he used the title of “professor” in day-to-day life if it was an honorary title.
I have not yet received a response.
NHS England, the ICB, Preet Gill MP and Richard Burden Chair of Healthwatch (the latter two had agreed to chair and be part of external reference group on the conduct of Bewick’s reviews on UHB) all refer to Bewick as “professor”.
No doubt the title confers confidence in some people’s eyes.
But is it right that this title is used?
UCLAN, the body which awarded the honorary professorship to Bewick, says that it would not condone the day-to-day use of an honorary title.
See the UCLAN letter of 7 March 2023, copied below:
7 March 2023
Ref: FOI 2940
I am writing in response to your request for information regarding honorary titles (Ref FOI 2940).
No, the University does not condone this use of honorary titles.
If we became aware that the recipient of an honorary doctorate was styling themselves as “Doctor” inappropriately, we would inform them that this was not condoned.
If you are unhappy with the way we have handled your request for information, you are entitled to ask for an internal review; however, you must do so within 40 working days of the date of this response. Any internal review will be carried out by a senior member of staff who was not involved with your original request. To ask for an internal review, contact DPFOIA@uclan.ac.uk in the first instance.
If you are unhappy with the outcome of any internal review, you are entitled to complain to the Information Commissioner. To do so, contact:
Mr Peter Seaby was a vulnerable resident, with a diagnosis of Down’s Syndrome, at the Oaks and Woodcroft care home in Norfolk. The care home is run by Conquest Care Homes (Norfolk) Limited, which is owned by the Priory Group.
Mr Seaby was at risk of choking and of aspirating food into his lungs (which causes serious infection). He required a special diet and supervision at mealtimes. These needs were reflected in his care plan.
However, according to a recent coroner’s inquest, the care plan was not reliably carried out.
In December 2020 the CQC made the following observations about risk assessment and care plan management, which seemed to rely mostly on scanning documentation, as opposed to checking that care plans were actually delivered:
“There was good oversight and management of risk. We found however that at least one person had regularly refused blood tests due to high anxiety levels. This was now being addressed through a desensitization programme but previous barriers to accessing health care had not been addressed in a timely way.”
“Both care plans and risk assessments for people were clearly written and reviewed in line with changing need and risk. Although a key worker system meant all staff had responsibility to oversee people’s care, most of the documentation had been written by the deputy manager. Not all the documentation demonstrated a collaborative approach or showed who had been involved in collating information or who was involved in best interest decisions.”
The CQC inspection report did refer glancingly to audit, but again relied on audit data produced by the provider:
“Audits helped ensure policies were being followed and regular checks were carried out to ensure the environment remained safe and free from hazards. We sampled some health and safety records, and these were in order.”
The CQC was glowing about the unit’s good governance and learning from incidents:
“Since the last inspection a manager had been appointed to work solely at this location whereas previously one manager oversaw two separate locations. There were good overarching governance processes and the registered manager was well supported. Audits helped to identify any areas for development and there was a robust action and development plan in place. There was oversight of accidents, incidents, safeguarding and near misses. These were reported and analysed to help identify actions taken at the time and to ensure these were appropriate so lessons could be learnt. The outcome of which were shared with staff.”
It is hard to square this with the coroner’s discovery that the provider had not even internally reviewed Mr Seaby’s possibly avoidable death.
Alarmingly, it appears that CQC had been warned of problems at the care home prior to its November 2020 inspection:
“Concerns were received about this service which meant we brought the inspection forward and looked at three key questions where we had previously identified breaches of regulation.”
So in context, there should have been special diligence in carrying out the November 2020 inspection of The Oaks and Woodcroft, with proper verification of the provider’s claims.
“People had documented dietary needs, but some information was contradictory, and staff also gave us contradictory information which could increase the risk for people at the service not getting their dietary needs met or risks of choking fully mitigated. A recent incident had been referred to the safeguarding team and we are waiting for the outcome which is linked to people’s dietary needs and changing care needs.”
So if aware, the regulator should have been actively tracking the provider’s handling of the serious untoward incident, and it should have picked up any failures to carry out an internal review or to genuinely mitigate risks to other service users.
We are a decade on from the death of Connor Sparrowhawk and ensuing scandal over Southern Health.
CQC also failed badly on that previous occasion. CQC failed to either identify or report that hundreds of deaths of mental health and learning disabled people had not been investigated, as later revealed by the 2015 Mazars report.
How much longer should the public wait for a reliable regulator?
By Dr Minh Alexander retired Consultant Psychiatrist 7 March 2022
A controversy rumbles on about the cardiac surgery service at St Georges, where some allege that NHS England/ Improvement took a very heavy handed approach to mortality alerts. Mortality alerts do not prove that a service is unsafe, but they signal a need for review.
Several investigations took place of the St George’s cardiac surgery service, which was a specialist centre caring for patients with more complex needs, that sometimes presented greater surgical challenges.
This culminated in the so-called Lewis review by NHSE/I, which ended with 67 cases being referred to the coroner with allegations of poor care. The senior coroner dealing with these cases has so far rejected the vast majority of the Lewis review’s findings and criticised the review’s methodology. Some of the inquests remain to be heard.
These are some of the comments by the senior coroner on the St Georges affair:
However, a whole team of cardiac surgeons was also referred to the General Medical Council following NHS England’s “Lewis” review, but I understand all referrals ended with a “no case to answer” outcome.
“The surgeons and referring cardiologists had full visibility of the SJRs for cases where they were involved and were able to collate significant responses and material that was submitted to the panel. This was initially a 2 week period for response, but extensions were granted where requested. As mentioned above, full consideration of their opinions and additional information provided was given over a number of days across a 3 month period. This resulted in updates made to the SJRs, factual accuracy checks and reconsideration of opinion where appropriate. We do not agree with the suggestion in the PFD that this feedback “was mostly ignored”.
A recent “Lewis” inquest into the death of Mrs Maureen Brett, which I observed, gave rise to conflicting evidence. First hand evidence from clinicians and from Mr Mike Lewis himself (the chair of NHSE’s review) revealed that not all parties were given sight of the draft Lewis report or a right of reply.
Mike Lewis himself told the inquest that he asked for Salmon letters to be sent to relevant individuals, but he was not responsible for overseeing the process. If he received no responses, he assumed that the individuals had no comment to make.
I wrote to both Amanda Pritchard CEO of NHS England and to Stephen Powis about the concerns regarding NHSE’ Salmon process. Neither have replied.
I have also contacted a senior medical manager from NHS England, who was a contact point for St. Georges, to ask for information on who was responsible for NHS England’s Salmon process. He has not responded either.
The Bewick report on cardiac surgery at St Georges
The Lewis review was preceded by the briefer Bewick review on cardiac surgery at St. Georges.
Bewick’s 2018 report on cardiac surgery can be found here.
An FOI request has revealed that the review by Mike Bewick GP and former Deputy Medical Director of NHSE England, was commissioned by the trust with the “support and guidance” of NHS Improvement, a predecessor body of NHS England.
The FOI response from St Georges can be found here.
St. Georges stated in its FOI response:
“The Trust appointed Professor Bewick, a former Deputy Chief Medical Officer at NHS England, to lead the independent external review because he had specific experience of conducting similar reviews into cardiac surgery at NHS trusts in both Leeds and Bristol.”
“The Trust’s commissioning of the independent external review and the appointment of Professor Bewick was with the support and guidance of NHS Improvement.” [my emphasis]
In response to a question about the tendering process for this review, St Georges replied:
“Direct award, as provided for under the Trust’s Standing Financial Instructions.”
The Bewick review of cardiac surgery cost St Georges £47,410.14, as noted in trust board papers:
It is perhaps relevant to mention that St. Georges dragged its feet on the above FOI about NHSE’s involvement in the Bewick review, despite several reminders. The trust only issued a response after the matter was referred to the Information Commissioner.
All eyes are on Mike Bewick again, as he was recently commissioned by the Birmingham and Solihull ICB to carry out an urgent review, one of three, of University Hospitals Birmingham NHSFT (UHB) after revelations by BBC Newsnight of alleged bullying, safety concerns and governance failures by the trust.
This cannot be reassuring at all for the many staff who have been brave enough to come forward, and I repeat my general advice that it is probably safest to disclose directly to the media at present, either anonymously or with agreement that identity will be protected. But do take personalised advice first.
Was Bewick appointed to review UHB with “support and guidance” to the ICB from NHS England?
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.
NHS England has to date failed to give a straight answer on whether it has checked that there are no ongoing matters at Sussex that might call into question Griffiths’ suitability to investigate the NEAS affair.
Her former trust University Hospitals Sussex NHS Foundation Trust has been resistive to recent FOIs about its recent whistleblowing and HR governance.
Sussex claimed that it was unable to give any details about Employment Tribunal claims filed against the trust, including those filed under the jurisdiction code of public interest disclosure (whistleblowing). This was on the unlikely basis that there was no central file and that it would cost too much to retrieve the data manually.
The trust also claimed that it had no central data on settlement agreements and could provide no data on confidentiality clauses used.
I wrote to Griffith’s successor George Findlay CEO (who like David Rosser ex CEO of UHB was the former medical director of the trust) to question the claim that the trust could not even tell me about current Employment Tribunal claims against the trust.
I also suggested that if Findlay was following the recommendations of the 2015 Freedom to Speak Up Review and personally taking responsibility as CEO for the contents of the trust’s settlement agreements, he should be able to give me some idea of the trust’s approach.
I did not receive a reply from Findlay, but a further FOI response was issued by the trust which reveals that there are currently FOURTEEN live employment tribunal claims against the trust. The trust refuses to say if any of these cases include whistleblowing claims:
“There are currently 14 employment tribunal cases in progress. We are unable to provide any further information relevant to these cases (e.g. those that include a PID as per your request) due to the small number of staff involved and the risk of identification.”
Moreover, the trust discloses that it has dismissed staff by professional group in the three years 1 April 2019 to 31 March 2022 as follows:
(The total here is different from that given in the previous trust FOI response)
The trust claims the total number of medical staff dismissed in this period is six. Also, that six doctors were referred to the General Medical Council in this period.
The trust claimed that this is its current template for confidentiality requirements in settlement agreements:
The Employee understands and accepts that she/he/they will remain bound by any pre- existing confidentiality obligations in her/his/their contract of employment, including the obligation to keep confidential any patient confidential information and all confidential information and know how that the Trust may have disclosed to the Employee, whether orally, in writing or digitally which includes but is not limited to data, financial information, financial projections, financial records, spreadsheets, computer software, patient information and any information which has been given to the Trust in confidence and any other information which the Employee is told is confidential which the Employee has obtained about the Trust or its patients or its employees and its officers during the currency of the Employee’s employment, however obtained, and whether held on document, computer disc, tape or otherwise and not to publish that information to any third party without the prior written consent of the Trust.”
Sussex’s above confidentiality requirement purportedly contains no restriction on disparagement or disclosing the existence of the agreement or its contents, but it is otherwise more exhaustively drafted than NHS Employer’s template for confidentiality about past employment.
So, is it a sustainable argument for George Findlay and University Hospitals of Sussex NHS Foundation Trust to claim that the trust cannot disclose if it is facing any whistleblower detriment claims on grounds of privacy?
I hope that journalists will be testing this and exploring further, for the sake of patients at both North East Ambulance Service and at Sussex, and any Sussex whistleblowers currently suffering in the obscurity imposed by the processes that are inflicted upon them.
It seems NHS England, which allegedly has a conflict of interest through mismanagement of the original NEAS whistleblower disclosures, seems disinclined to ask hard questions.
This is a brief post to draw attention to an important case of proven whistleblower detriment by an NHS regulator.
Following on the heels of the Care Quality Commission’s disgrace in Kumar v CQC, and ongoing failures to learn (more of this to come shortly), NHS England has stepped in to take a bow.
NHS England is the National Commissioning Board for the NHS, and it is also a regulator for NHS trusts. Under UK whistleblowing law, it is a so called Prescribed Person with responsibility for receiving whistleblowing disclosures and publishing periodic data about these disclosures.
It is therefore supposed to be an exemplar of good governance and a safe harbour for whistleblowers, but experience shows that it is anything but.
The current case is that of a Ms Cox, who remains an NHS England employee, so her privacy and future employment needs to be respected and protected.
I do not currently have the capacity to do the case justice but will post a summary of the case below.
Ms Cox, “The Claimant”, worked as Continuing Healthcare Manager in the NHSE North West Region. At the time, she was reportedly “the only black nurse in the respondent’s north region”. She was also part of the CNO’s BME Strategic Advisory Group and had a regional lead role on BME issues.
In the course of her work, she had cause to make several protected disclosures to her immediate line manager, Gill Paxton, regional Head of Continuing Healthcare. These concerned breaches of equality practice by NHS England and also a very important breach of neutrality by NHS England in deploying its staff to sit on Independent Review Panels which decide on the funding of continuing care.
The ET described a breach of internal HR procedure in which a member of the Claimant’s team was earmarked for promotion by Marie Boles the then NHSE Deputy Chief Nurse, and duly promoted by the Claimant’s line manager, placing her on the same grade as the Claimant. The individual also later received a new job title. These actions were without reference to the Claimant as her line manager.
There were other instances of marginalisation and exclusion cited in the ET’s findings of fact.
The ET was critical of the treatment on grounds of Race:
“Ms Paxton created an intimidating and hostile and humiliating environment for the claimant at work; her actions in excluding the claimant were intentional in many regards, and her actions had that effect. The claimant reasonably perceived that she was suffering poor treatment amounting to harassment because of race. She became aware of Ms Paxton’s conduct in early course and sought to challenge it directly but this failed to prevent the conduct continuing. The Tribunal also took account of the fact that being excluded or side-lined in the workplace had a serious effect on the claimant. It led to her being off work, sick, and latterly seconded to work elsewhere in the respondent.”
The ET also criticised NHSE’s witnesses’ and Gill Paxton’s evidence in particular on several occasions. The Tribunal described some of NHSE’s responses to the Claimant’s claim as “excuses”. For example:
“The respondent’s witnesses sought to explain the exclusion of the claimant in terms of matters of pay being confidential. However, the Tribunal takes account of the fact that the NHS is a public sector employer, with agreed and published pay bands. There was no mention of the amount of money involved for any individual and managers ordinarily are expected to know the banding of the staff they manage. In those circumstances, the Tribunal considered that the suggestion of confidentiality amounted to an excuse, given with hindsight, for the actions of Ms Paxton and Ms Boles in excluding the claimant from discussions.”
The Tribunal described Gill Paxton’s evidence as follows:
“When questioned about her actions and the factual allegations, Ms Paxton gave a number of convoluted and at times unsubstantiated explanations. The Tribunal considered that these explanations had been developed with the benefit of hindsight and did not accord with contemporaneous documentation.”
The Tribunal noted that there was no evidence for a claim by Gill Paxton that she had clearance from the legal department to allow NHSE staff to sit on IRP panels, in violation of the rules on neutrality:
“On 28 August 2019, at a monthly 1-2-1 meeting with Ms Paxton, the claimant raised an issue about the respondent’s staff who were sitting on IRP panels. The claimant told Ms Paxton that her team members sitting on IRPs was a breach of independence and legal obligations. The respondent has accepted that this conversation constituted a protected disclosure for the purposes of the whistleblowing complaint (see list of issues 9(ii)). Employees of the respondent had raised the issue with the claimant and some had declined to sit on the panels due to a conflict. Ms Paxton dismissed the claimant’s concern. When another employee queried the practice, Ms Paxton told them that she had “cleared it with legal”. There was no evidence that Ms Paxton had in fact done so.” [my emphasis]
The Tribunal noted that when the Claimant simply carried out her job as BME lead in advising on breaches of equality practice, Gill Paxton found this “difficult”:
“Importantly for the claimant, this development meant that Ms Fletcher, whom the claimant managed, was placed on the same grade as the claimant. When the claimant eventually learned of the matter, she told Ms Paxton that the desire to promote/upgrade Ms Fletcher fell outside of the respondent’s recruitment processes, breached principles of fairness and was contrary to anti-discrimination recruitment practices. The respondent has accepted that this conversation constituted a protected act for the purposes of the Victimisation complaint (see the list of issues, 6(i)) and also a protected disclosure for the purposes of the whistleblowing complaint (see list of issues 9(i)). The Tribunal considered that the conversation between the claimant and Ms Paxton was an example of the claimant fulfilling her brief as regional lead for BME employees and noted that Ms Paxton described this and other interactions with the claimant as “difficult”.” [my emphasis]
The Tribunal also concluded that Gill Paxton had most likely tried to encourage an adverse report of some sort about the claimant’s health:
“On 7 October 2019, while the claimant was on annual leave, Ms Paxton had a conversation with Chrissy Luff, a junior member of the team, about the claimant. Ms Paxton said to Ms Luff that she was concerned about the claimant and asked Ms Luff, “is [the claimant] OK?” In evidence, Ms Paxton was adamant that this was not a question about the claimant’s state of health or mental health and that she did not mention health. However, when asked by the Tribunal to explain what it was about, if not the claimant’s health, Ms Paxton admitted that she was referring to the claimant’s health. In the course of the conversation, Ms Paxton reminded Ms Luff of her status as a nurse, and encouraged Ms Luff to report any concerns she might have about the claimant. Despite this, Ms Paxton, herself a registered nurse, took no action about her own concerns and did not report them nor did she refer the claimant to occupational health. The respondent’s grievance appeal found this to be an inappropriate conversation between a manager and junior staff. The Tribunal agreed with that view. In evidence, Ms Paxton sought to play the matter down, framing her approach to Ms Luff as a general enquiry as to whether the claimant was alright, but the Tribunal considered it was more than that and concluded on a balance of probabilities that Ms Paxton was seeking an opportunity to encourage a member of staff to report the claimant.” [my emphasis]
Perhaps one of the most extraordinary aspects of this case is NHS England’s institutional handling of the response.
The initial grievance failed to uphold the Claimant’s concerns and shied away from issues of Race.
It woefully relied on a purported lack of intent to harm, when this is no defence at all.
The grievance appeal process recognised that the Claimant had been poorly treated, and it concluded that Gill Paxton had been untruthful:
“The Tribunal noted and agreed with the appeal’s conclusions on the matter (bundle page 695) that the episode showed evidence of Paxton being misleading and untruthful.”
Yet it still resisted the final step of joining up the dots and recognising a pattern of actions comprising discrimination on grounds on race.
Astonishingly, no one fed back the outcome of the grievance appeal to Gill Paxton.
The Tribunal considered that this “negated” the grievance process:
“The Tribunal considered that, as a result, the grievance outcome was not effectively actioned and this failure by the respondent negated the purpose of the grievance process.”
“When asked to explain this omission, Ms Grainger told the Tribunal that it was not within her remit and that feedback to Ms Paxton was the responsibility of HR. It was apparent from the evidence that such feedback had never taken place.”
Very seriously, the Tribunal noted that Tracey Grainger failed to examine the “lawlessness of the IRP panels as constituted by Mrs Paxton”. This is another classic example of a whistleblower’s concerns being ignored:
It should not have ended in a contested and now lost Employment Tribunal claim.
It was breath-taking arrogance and incompetence that led to this conclusion.
And who would feel safe to whistleblow to this lot?
We should also remember that NHS England is in ultimate control of both the investigation into the deaths and whistleblowing scandal at North East Ambulance Service and the whistleblowing and Mid Staffs type allegations at University Hospitals Birmingham NHS Foundation Trust.
A Fit and Proper organisation that can be trusted with such tasks?
I will send this latest judgment to all Healthwatch organisations in the North West region with respect to potentially unsafe Independent Review Panel decisions, and to the parliamentary Health and Social Care Committee.
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 and it is a threat to public safety
By Minh Alexander and Pam Linton, NHS whistleblowers 7 February 2023
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.
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.
CQC disclosed total payments to Matrix Chambers in the past five years as follows:
“2022-23 to date: £5,173
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.”
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.
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”.
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.
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,
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.
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.
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.
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
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.
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.
By Dr Minh Alexander retired consultant psychiatrist 2 February 2023
Dame Marianne Griffiths is the former trust CEO and NHS insider picked by NHS England to conduct the investigation into the North East Ambulance service (NEAS) deaths scandal. It has been alleged that there have been breaches of coronial law, an extremely serious matter. It has also been alleged that NHS England has a conflict of interest because it did not respond appropriately to the whistleblowers who raised the concerns about NEAS.
A just published report by the Care Quality Commission from a recent inspection has acknowledged that NEAS crews were so pressurised they did not have time to restock between calls. This meant that they were attending some emergencies without all necessary life-saving drugs. BBC Newsnight has reported on this further scandal:
“Although staff were focused on the needs of patients receiving care, they did not always feel respected, supported and valued. Some staff told us they did not feel they could raise concerns without fear of blame or reprisal and the trust did not have effective systems to seek and act upon feedback from staff and other relevant persons.”
“Following this inspection, we served the trust with a notice under Section 29A of the Health and Social Care Act 2008. We told the trust it needed to make the following significant improvements: (1) to ensure governance systems operated effectively; (2) in listening, responding, and acting upon feedback from staff and other relevant persons”
Do CQC’s latest findings restrict NHS England’s and Griffiths’ room for manouevre?
There have been questions about Griffiths’ suitability.
Griffiths’ former trust at Sussex (an organisation arising from the merger of her trust Western Sussex Hospitals NHS Foundation Trust and Brighton and Sussex University Hospitals NHS Trust) was previously protected by the National Freedom To Speak Up Guardian who bizarrely and extraordinarily gave the trust board a free pass when trust whistleblowers asked for the National Guardian’s help. The then National Guardian Henrietta Hughes made up new rules by allowing Griffiths and her board a grace period to improve before conducting a review, and unsurprisingly later concluded that improvements had been made.
Recent requests for information to University Hospitals Sussex NHS Foundation Trust have been met with resistance as to the number of recent whistleblowing cases at the trust.
Sussex claimed that it was unable to give any details about Employment Tribunal claims filed against the trust, including those filed under the jurisdiction code of public interest disclosure (whistleblowing). This was on the unlikely basis that there was no central file and that it would cost too much to retrieve the data manually.
“3-4. The specific information you are seeking relevant to qualifying public interest disclosures and employment tribunal claims is not held on a central administration system. Information related to this activity is recorded in a number of spreadsheet registers, but not to the level of detail that is required to answer these questions. Any effort to compile this information would require the manual audit of all individual claim files relevant to the periods outlined in your request.”
The trust even claimed that it could not tell me how many of the ongoing ET cases were whistleblowing cases. I have written to the current trust CEO, formerly the Medical Director, to request at least this information.
A possible corollary of all this is that the trust has poor whistleblowing governance, by not troubling to learn from sentinel events such as being sued in the Employment Tribunal for whistleblowing detriment.
More likely in my view, University Hospitals Sussex NHS Foundation Trust is trying to draw a veil over sensitive and embarrassing matters whilst it gambles on settling and gagging its way out of current trouble.
But the trust did admit to dismissing 145 staff over financial years 2019/20 to 2021/22.
I have asked for a breakdown of dismissals by staff group and of doctors in particular. I have also asked for the number of GMC referrals by the trust in the same period to see if there is internal consistency between decisions to dismiss and to refer.
University Hospitals Sussex NHS Foundation Trust uses the specialist employment law firm, Cater Leydon Millard, who are also used by Oxford University Hospitals.
Sussex has now admitted to spending at least £1,354500.13 on their services relating to 36 ET cases in the last five years:
“As at 04/01/2023, the Trust processed invoices dated between the following periods from Cater Leydon Millard:
For the period between 2017/18 – 2020/21 for legacy Brighton and Sussex University Hospitals NHS Trust = £825,293.63
For the period from 01/04/2021 to 30/11/2022 for University Hospitals Sussex NHS Foundation Trust = £529,206.50”
The trust refused to say how many settlement agreements Cater Leydon and Millard have handled for the trust and how many of the settlements contained gags, super-gags and non-disparagement clauses because – you’ve guessed it – there is no central record and it would cost too much to collate.
The trust CEO is supposed as a matter of good practice, under the terms of the Freedom To Speak Up Review, to take personal responsibility for reviewing and ensuring that settlement agreements are not excessively restrictive. I have asked him about the trust’s use of agreements.
I hope that journalists will keep a close eye on comings and goings at Sussex and ET listings.
And perhaps join the dots up, as appropriate, with proceedings at North East Ambulance Service.
I previously asked NHS England if it had carried out due diligence in appointing Griffiths to investigate the NEAS affair, including by checking that there were no ongoing whistleblowing matters spilling over from her time as CEO of Sussex. I asked:
“May I ask if NHS England has undertaken full due diligence into Marianne Griffiths’ past record on whistleblowing governance before appointing her to lead the NEAS investigation?
Has it satisfied itself that she is a Fit and Proper Person to adjudicate on matters of whistleblowing governance, and that there are no outstanding serious matters of alleged whistleblower suppression, failure to protect whistleblowers or harm to whistleblowers, that relate to her role as CEO of University Hospitals Sussex NHS Foundation Trust and its predecessor organisations?
For example, has NHSE satisfied itself that there are no formal, current internal trust processes such as grievances by whistleblowers or current litigation against the trust for whistleblower detriment, which relate to her tenure as trust CEO?
I ask as this seems a critical issue given that NEAS is accused of harming and trying to silence whistleblowers, and is proven to have attempted to gag them with unlawful NDAs.”
I received a non-reply on 8 December 2022:
“Dame Marianne is a retired NHS Chief Executive. Having never worked in the region, but with extensive knowledge of the NHS, Dame Marianne has the relevant experience to Chair this independent investigation.”
What might this tell us?
LETTER 2 FEBRUARY 2023 TO GEORGE FINDLAY CEO OF UNIVERSITY HOSPITALS SUSSEX NHSFT AND FORMER MEDICAL DIRECTOR
CEO University Hospitals Sussex NHS Foundation Trust
2 February 2023
Dear Dr Findlay,
FOI request – whistleblowing governance at University Hospitals Sussex NHS Foundation Trust
I write to ask how many active Employment Tribunal cases are in progress against the trust, and how many of these include a claim filed under the jurisdiction code of Public Interest Disclosure (whistleblowing). I asked this previously as part of a wider FOI request, but the trust advised that checking files for details of ET claims would be too time consuming.
I am sure that checking files on just a few active cases would be a much quicker task.
I would also be grateful if the trust could also disclose, drawing from the digital data submitted to NHS Digital:
The number of dismissals for any reason by staff group for each of the financial years
The total number of medical staff dismissed in the period 1 April 2019 to 31 March 2022.
The total number of doctors referred to the GMC by the trust in the period 1 April 2019 to 31 March 2022.
I understand that the trust does not keep a central record of its settlement agreements and cannot give an exact overview of how many non-disclosure agreements and non-disparagement clauses that it has applied.
One of the recommendations of the report of the NHS Freedom To Speak Up Review was that NHS Trust Chief Executives should take personal responsibility for reviewing all settlement agreements made by their trusts. This is to ensure that they are not excessively restrictive.
If you are personally overseeing settlement agreements, could you possibly give a brief overview as CEO of the settlement agreements used by your trust and whether they typically contain:
Clauses which require signatories to keep the existence of settlements agreements secret
Clauses which require signatories to keep the contents of settlement agreements secret
Clauses which require signatories not to disparage each other
And could you kindly supply a template of the settlement agreement commonly used by your trust, or better still, a redacted copy of the most recently applied settlement agreement which shows the restrictive clauses used?
Many thanks and best wishes,
Tom Grimes NHS England Lead for Whistleblowing
Past lack of transparency by University Hospitals Sussex NHS Foundation Trust
University Hospitals Sussex NHS Foundation Trust was previously criticised for not releasing the unredacted version of a 2019 Royal College of Surgeon’s report, which was conducted during Marianne Griffith’s tenure as Chief Executive.
It was only released under FOI in heavily redacted form.
Reportedly, “All issues and recommendations were obscured, with only positive feedback disclosed.”
“The trust chose to reveal the number of incidents resulting in “no harm” and “low” harm, but redacted the number of incidents resulting in “moderate” and “severe” harm.”
Let us hope that this will not be the approach taken to NEAS.
But journalists may wish to further probe the trust’s denial: “The trust said the review of its neurosurgery department “did not highlight any safety concerns”, given the above propensity to selective comms.