More CQC-Employer collusion against whistleblowers

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 7 October 2020

Summary: A whistleblowing case of two care home staff, Karen McGuire and Miss T Skitt who were found to have been victimised by care home managers, has revealed correspondence in which the local Care Quality Commission inspector lacked impartiality. She appeared to accept without question derogatory employer claims about the whistleblowers. We previously saw a similar CQC response in the case of Helen Rochester, another care home whistleblower who was baselessly referred to the Disclosure and Barring Service upon CQC’s suggestion:

Breach of confidentiality by CQC and complicity in referring a whistleblower to the Disclosure and Barring Service

In this latest case the care home in question, Charlton Court Pudsey Leeds, is still rated by CQC as ‘Good’ including on the ‘Well Led’ domain. This is despite the ET discovering that one of the care home managers hired an ex Detective Chief Superintendent who posed as a CQC official to find out what one of the whistleblowers (Karen McGuire) had reported to the CQC. The ET accepted Karen McGuire’s evidence about this bizarre contact in its entirety. She told the ET via her witness statement that upon being discovered in his deception, the former senior police officer accused her of theft. UK whistleblowing law does not recognise detriment by regulators, only employers. It also does not compel regulators to investigate whistleblowers concerns. This case powerfully adds to the case for major reform of the law.

The whistleblowers at Charlton Court care home

A good Samaritan drew my attention to a highly significant Employment Tribunal (ET) judgment of 11 December 2019 in a whistleblowing case brought by two care home workers, Karen McGuire and Ms T Skitt, who were unfairly and constructively dismissed:

Case numbers 1801731/2019 and 1801734/2019 K McGuire & T Skitt v ADL plc, Mrs P Jackson, Charlton Court Care Home Ltd

The whistleblowers achieved a rare ‘victory’ and the ET accepted that they had suffered detriment as a consequence of whistleblowing about neglect and abuse of vulnerable service users. More usually, detriment is found but ETs stop short of attributing it to whistleblowing.

According to the ET judgment , Karen McGuire made the following whistleblowing disclosures about events at Charlton Court care home, Pudsey, Leeds:

“13. We will deal with the 6 internal disclosures first in our findings as those disclosures are relied upon for all the alleged detriments complaints. Mrs McGuire alleges the following disclosures were made to her employer:

1. Telling Miss Lewis that a resident had been left unattended and that carers were not around in November 2018 (claim form paragraph 10).

2. Telling Miss Metcalfe that Carer B was taking photos in resident’s rooms on 27 December 2018 (claim form paragraph 12).

3. Telling Miss Lewis that a Carer P, had thrown porridge on a resident in late November/early December 2018.

4. Telling Miss Metcalfe that a resident had been left with soiled pads and only changed when he went to bed in late November/early 2018 (claim form paragraph 14).

5. Telling Miss Metcalfe that a resident had been taken outside wearing very little and raising more general concerns about neglect on 5 December 2018 (claim form paragraph 16).

6. Repeating those matters to Miss Metcalfe later in December 2018 (claim form paragraph 17).”

  • “Mrs McGuire alleges she made her first ‘protected disclosure’ in November 2018, to Mrs Lewis. She told Mrs Lewis (senior registered nurse) that a resident (J) had been left unattended and that carers were not around to help residents. She “was concerned that residents were being left to wait to be changed and washed as a matter of course due to the fact that carers were often not around to help as they had gone for cigarettes or had gone to the shops. The claimant expressed her shock at the lack of pads and the length of time that many residents were having to wait to be changed and she said that she felt that this was neglect and she thought that something should be done about it.”
  • “The claimant reported concerns about an incident where a vulnerable resident had reported to her that Carer P had thrown porridge over the resident and caused a mark to her chest. The claimant had been told by the resident that Carer P had thrown the porridge at her ‘in a mood’. The claimant reported this incident and advised Mrs Lewis that she was worried about this carer’s suitability to look after vulnerable residents.”

As ever, the whistleblowers were reported by the ET to have unblemished records prior to counter-allegations by their employer, after they raised concerns. For example:

“23. Mrs McGuire had not worked for 17 years while she had a career break to care for her children. This was her first job back to work in a care home setting. She had set herself high standards for the care she expected of the residents at the home. She was confirmed in ‘post’. No complaints were made about her work. She was considered, to be a good carer and received an award as “Carer of the Month” in December 2018.”

Unusually, the whistleblowers named an individual (Mrs P Jackson, manager) as a respondent in addition to suing their employing organisations. This is traditionally frowned up and may count against claimants, but in this case the judge was very critical of Mrs P Jackson and upheld some of the claims against her.

A bizarre twist in this grim tale is the fact that a former senior police office, former Detective Chief Superintendent Bob Taylor hired by the care home as an investigator, phoned one of the whistleblowers, Karen McGuire and he reportedly posed as a CQC official. According to a report by the Daily Mirror in June 2020, he reportedly “fished” for information about what she had disclosed to the CQC. But his voice was recognisable and the ruse failed:

“He pretended to be from the CQC but Mrs Maguire recognised his voice from fire safety training he had given at the home.”

The ET judgment itself makes these observations about the detriment involving Mr Taylor:

Detriment involving Mr Taylor

125.This then leads to the detriment alleged against Mrs Jackson involving Mr Taylor. The claimant alleges that Mrs Jackson instructed Mr Taylor to approach her and question her purporting to be from the CQC, accusing her of theft, insisting she had to attend a meeting with him and texting her (the events described in paragraphs 44 to 47 of the claim form). Those paragraphs are repeated in the witness statement in which the claimant gives a very detailed account of her telephone call with Mr Taylor. The respondents were fully aware of the allegations from the claim form and knew the telephone call was pleaded as a detriment.

126.In those circumstances you would expect that Mrs Jackson would ensure that Mr Taylor’s witness statement provided some detail about the instructions he received from Mrs Jackson, the ambit of his authority and the call he made to the claimant following those instructions. His witness statement makes no reference at all to the call made by him to the claimant and was in our view deliberately misleading. He says at paragraph 8: “I was informed that she would not talk to me but nevertheless I sent her a text on the number I had been provided. I was asked to carry out a safeguarding investigation in January 2019. I was made aware that the allegations were being made by Karen McGuire a carer who had walked out of work on 9 January 2019”.

127.Mr Taylor made a correction to his statement at the beginning of his evidence by adding a sentence to his paragraph 6 to say: “I contacted her by telephone on 10 January 2019”. In his witness statement he did not offer any details of that conversation. We found Mr Taylor was being deliberately evasive about the telephone call, firstly by not referring to it at all in his witness statement, implying he was ‘informed’ that the claimant would not talk to him, when he had spoken to her directly and knew exactly what had happened. Secondly by only including the fact of the call at all as a ‘correction’ to his statement when he knew it was the reason he was called to give evidence.

128.Mr Taylor has 31 years of experience as a police officer rising to the rank of Detective Chief Superintendent before retiring. He tells the tribunal he has a law degree. He has worked for ‘ADL Care Plc’ for the last 5 years when ‘they’ commission work from him ‘usually through Pearl Jackson the Operations Director of ADL Plc’. He was fully aware of the importance of that telephone call prior to this hearing because it was the only alleged detriment that involved him, yet he chose not to deal with it at all in his statement. The statement prepared for these proceedings ends with a ‘statement of truth’ signed on 18 September 2019.

129.We were surprised given Mr Taylor’s long experience in the police force, which would have included taking statements, that he was unable to provide a statement dealing truthfully with the matters he was required to address, to assist the Tribunal.

130.Given the conversation that had taken place between Mrs Jackson and the claimant prior to her call with Mr Taylor and the tone of the letter that followed, it is likely that Mr Taylor would have understood that Mrs Jackson was angry with the claimant and wanted to protect the home at any cost. She had taken against the claimant and wanted his help given the allegations made and CQC’s involvement. His instructions would have included Mrs Jacksons expressing her views about the claimant in the same tone as her letter.

131.The claimant’s witness statement accurately reflects what was said to her by Mr Taylor in that call and we set it out in full because we accept it in its entirety.

“I received a phone call from a man who called and introduced himself as the head of the whistle blowing team at CQC. However, when he was talking to me I felt that something was not quite right. I was taken aback by the tone that the caller adopted and became more suspicious of him as the call carried on.

He was very forceful in the way that he spoke to me not professional or calm. He was telling me that I needed to tell him everything about what I’d reported and leave nothing out and that if I didn’t tell him everything that there would be consequences. This made me smell a rat to be honest, I’d not encountered this kind of attitude from CQC before. I just felt that the caller was acting in a manner that no professional organisation representative would. As the male voice carried on speaking I thought that I recognised it, and then realised that this was the voice of the man who worked for Charlton Court and who had in the past carried out the fire training. As soon as I realised this I said to him I know who you are, you aren’t from CQC you work for Charlton Court. You carry on the fire training for Pearl and his name came to me and I said your Bob Taylor. Mr Taylor stopped talking and seemed shocked to be challenged and I again said to him you don’t work for the CQC. Mr Taylor then admitted he didn’t work for the CQC but then proceeded to tell me it was the same thing in that he was a private investigator and he was conducting an investigation into matters. Mr Taylor told me that I had to tell him what I’d reported to the CQC. I was also told by Mr Taylor that I had to attend at Charlton Court to be interviewed. I said to Mr Taylor I didn’t have to attend Charlton Court to be interviewed. It was wrong for him to suggest that I had to do this and make out it was compulsory. I was very unhappy about how he was speaking to me and thought that it was utterly outrageous that he’d pretended to be from the CQC in the first place. I didn’t want to carry on the conversation with him and I told him that I didn’t care for how I was being spoken to and advised that I’d reported my concerns to the home and to the CQC already and the CQC would deal with the matter now. Mr Taylor shocked me he would not take no for an answer. I found the call to be extremely intimidating and threatening when Mr Taylor saying a number of times that the home was going to take steps needed to protect the home and directors and that I must tell him everything that I’d reported. Mr Taylor seemed very annoyed when I advised him that I would not coming in to be interviewed and then he proceeded to accuse me of stealing confidential documents to which I said don’t be ridiculous I’ve done no such thing. You’re just trying to intimidate me don’t call me again”.

The ET remedy judgment of 12 March 2020 was very seriously critical of the care home’s managers, including a finding that Mrs P Jackson had been “dishonest”:

Conduct of these Proceedings

7. At the liability hearing, we had found Mrs. Jackson on behalf of the respondents, had improperly conducted these proceedings in the following ways:

6.1 She deliberately misled the Tribunal about her previous experience of Tribunal hearings to avoid any censure for her failures (paragraph 4).

6.2 Her approach in defending these proceedings was inflammatory, ignoring any guidance given by the Tribunal. Case No: 1801731/2019 1801734/2019 10.7 Judgment with reasons – rule 62 March 2017 She accused the claimants of lying, then of the wrongdoing they had reported, and then of wasting time by bringing these proceedings (paragraph 5, 6 21).

6.3 Evidence was deliberately concealed and records were altered to mislead the Tribunal and to try to discredit the claimants. Mrs. Jackson deliberately concealed parts of an inspection report only disclosing parts that were helpful to the respondents’ case and to corroborate her statement. She asserted that home had been ‘completely exonerated’ and therefore the claimants were lying, when she knew that to be untrue.

6.4 She was dishonest and was prepared to go to any lengths to try and portray the claimants in the worse possible light concealing evidence that went in their favor.

6.5 Mrs. Jackson, Miss Hopkinson and the witnesses that attended the hearing were openly hostile towards the claimants during the liability hearing, making it a difficult and unpleasant hearing for them. As we note in paragraph 21 of the judgment, while that kind of reaction might have been expected by more junior staff (given their hostility towards the claimants in the workplace), we expected better behavior from the senior management representing the respondents in these proceedings.

6.6 The hostility and anger towards the claimants was clearly visible throughout the hearing. 2 notable examples were the angry response of Mrs. Hopkinson who accused the claimants of ‘wasting 2 weeks” of her life by bringing these proceedings and Mrs. Jackson (in the context of the letter she sent to Mrs. McGuire) confirming it was a deliberate act that had failed to achieve the desired outcome of preventing her from bringing these proceedings.”

The ET concluded that the respondents, represented by Mrs P Jackson, had shown “contempt” towards the Tribunal itself:

“The conduct of the respondents since the last hearing shows complete disregard and contempt, not only towards these claimants, but also to the Tribunal and these proceedings.”

Both claimants were awarded aggravated damages.

THE CQC INSPECTOR’S LACK OF IMPARTIALITY

The most important and truly astonishing governance issue arising from this ET case is that the ET criticised a local CQC inspector, Emma Hatfield, for her relationship with the provider which led to her accepting without question derogatory claims and comments against the whistleblowers, made by one of the care home managers, Miss Hopkinson. The relevant passages from the ET judgment are as follows:

“171. On 10 January 2019, after Mrs McGuire had resigned informing Miss Hopkinson she would be reporting the home to the CQC, Miss Hopkinson sent an email to Ms Hatfield. The email states: “Hi Emma I just wanted to make you aware that a staff member walked out of shift yesterday due to gossiping. She has since taken to social media with immature comments. She has telephoned Pearl Jackson, the director and made some accusations about the home which Pearl is investigating and I am telephoning safeguarding to make them aware.

172. On the same day Emma Hatfield replies by email: “No problem at all. As if you haven’t got enough to do”.

173. Miss Hopkinson immediately labels the claimant as the trouble maker in this email exchange and Miss Hatfield sympathises without question. In another email on 14 January 2019, Miss Hatfield is given an update of the situation by Miss Hopkinson. Her response on the same date is “That is appalling. What is wrong with her?”. Another update follows and Miss Hopkinson apologises for ‘going on’ about it. Miss Hatfield responds “No you are not going on. It is upsetting I just don’t know what she thinks she will achieve”. In another email sent by Miss Hopkinson dated 16 January 2019, Miss Hopkinson states “I appreciate you have a process you have to follow but I really feel this is all just malicious and vindictive”. Miss Hatfield in her response of the same date states: “I’m sorry that you had to deal with all of this”.

174. Mrs McGuire having seen these emails says in her statement “I am alarmed at the inappropriate degree of empathy between the CQC inspector and the care home manager and I feel this is worrying given the nature of what was being reported. I would have expected more impartiality”.

175. Unfortunately, from the email exchange we saw (disclosed and relied upon by the respondent), we can see why the claimant has those views of the relationship between Miss Hopkinson and Miss Hatfield. From the claimant’s perspective she expected the CQC interaction to demonstrate the impartiality she had received in her dealings with the home.”

The moral of this story is that whistleblowing remains perilous partly because those with a duty to protect the public interest, to Safeguard the vulnerable and to enforce good governance may be on the side of employers, and are too ready to believe counter-allegations instead of acting impartially.

UK whistleblowing law does not recognise detriment caused by regulators and it does not compel regulators to investigate whistleblowers’ concerns. The CQC by policy refuses to investigate individual whistleblowers’ concerns, claiming tenuously that their regulations do not permit them to do so. The UK government refuses to do anything about this.

The CQC’s central concern should be for patients and service users. They should not be cosying up to service providers who profit from vulnerability.

Law reform is desperately needed, as this above case shows.

If you have not done so already, please sign and share the petition for vital reform of UK whistleblowing law to protect us all and ensure better standards in public life.

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

Other information in the public domain which may be of relevance in the above case:

There is a CQC record of inspections on a Charlton Court nursing home, 477-479 Bradford Road Pudsey Leeds West Yorkshire LS28 8ED, which is rated ‘Good’ by the CQC including on the well led domain:

There is also a Pearl Lorraine Jackson who is listed by Companies House as a director of 16 companiesincluding ADL PLC and Charlton Court Care Home Ltd.

Thirteen of these companies are listed as active. Amongst them are companies which run care home services:

Woodlands of Woolley Limited runs Woodlands Residential Home currently rated by CQC as “Good” and “Good” on the well led domain

Woodlands Healthcare Limited runs Sunnymede care home which is  currently rated by CQC as ‘Requires Improvement’ and ‘Inadequate’ on the well led domain.

Solutions (Yorkshire) Limited runs Harewood Court Nursing Home currently rated by CQC as ‘Good’ and ‘Good’ on the well led domain.  CQC lists a Pearl Lorraine Jackson as the ‘nominated individual’ for this home:

A person named Emma Hatfield is identified as a CQC inspector of adult social care services based in Leeds on the professional networking website, LinkedIn:

https://www.linkedin.com/in/emma-hatfield-527bba130/?originalSubdomain=uk

There is another LinkedIn account for a Yorkshire based Emma Hatfield, who is described as “Senior Forensic Nurse Examiner at Mountain Healthcare Limited”:

https://www.linkedin.com/in/emma-hatfield-2974841b3/?originalSubdomain=uk

Another National Guardian NHS whistleblowing failure: Nottinghamshire Healthcare NHS Foundation Trust

By Dr Minh Alexander NHS whistleblower and former consultant psychiatry, 30 September 2020

Summary: This is a brief post chiefly for the benefit of any trust staff currently suffering at Nottinghamshire Healthcare NHS Foundation Trust following an ineffective case review by the National Guardian two years ago. Since the National Guardian’s review, 19 Employment Tribunal claims have been made against the trust, including claims for whistleblowing detriment. One of the employees concerned has been gagged, but the trust denies gagging whistleblowers. I have asked the trust CEO to personally verify this and I have asked NHSI to independently audit the trust’s use of non disclosure agreements. In this period, a vast number of requests have also been made to the trust for personal data, by 4556 patients and 58 staff, suggestive of unresolved issues of poor culture. Moreover, nine complaints have been made to the Information Commissioner about the trust’s handling of requests for personal data, seven of which resulted in follow up action by the Commissioner.

Background

The National Guardian neither has the powers nor appetite to do what her Office was primarily established for: To provide independent review of NHS whistleblowers cases which had been handled badly by their employers and ensure corrective action.

The original vision set out in the Freedom To Speak Up Review report of 2015 included a role for the National Guardian to ensure redress for mistreated whistleblowers:

“….to advise the relevant NHS organisation, where any failure to follow good practice has been found, to take appropriate and proportionate action, or to recommend to the relevant systems regulator or oversight body that it make a direction requiring such action. This may include:….offering redress to any patients or staff harmed by any failure to address the safety risk”

“suggesting support and remedies for former employees”

The National Guardian and her funders (the Care Quality Commission and NHS England/ Improvement) have since washed their hands of this crucial duty to help ensure redress, and the chilling effect of gibbeting remains.

Neither does the National Guardian investigate whistleblowers’ original concerns – she merely superficially reviews how they have been handled.

The National Guardian has no enforcement powers. She only hands evidence of failings onto NHS Improvement for action. From whistleblowers’ experiences, NHS Improvement does very little with the intelligence.

Some whistleblowers whose cases have been the subject of National Guardian reviews have complained of continuing cover ups and of being abandoned.

A recent Byline Times investigation reported such a case.

In truth, the National Guardian’s main contribution has been propaganda for the government, pumping out a false narrative that it is safer to speak up than it really is.

The Unbearable Lightness of the National Guardian’s Office. Or how the National Guardian spends our money on publicity for the government’s Freedom To Speak Up Scam. A Night at the HSJ Awards

One particularly distasteful aspect of the relentless spinning is the annual October “Speak Up Month”, when the National Guardian leads intensified PR by her Office and by local trust guardians. The purpose is to give a superficial impression that speaking up is joyous, just before NHS staff complete the annual staff survey which includes questions about how they perceive the risk of speaking up in the NHS.

Speak Up Month is a sad spectacle of wasted public resources, manipulation, self-promotion, selfies and empty gestures. A million miles from the wreckage of lost jobs, ill health and long term unemployment of whistleblowers whom the National Guardian has failed to help in her four years in post.

The disrespectful and cynical Speak Up Month is going ahead this year too, starting tomorrow. This is despite the COVID-19 crisis and draconian suppression of NHS staff’s concerns about PPE and other serious infection control issues that has been so plain to all.

Meanwhile, FOI data about one of the trusts that the National Guardian reviewed shows serious continuing problems, as follows below.

Nottinghamshire Healthcare NHS Foundation Trust

Nottinghamshire Healthcare NHS Foundation Trust was reviewed by the National Guardian in May and June 2018, following complaints that whistleblowers had been ignored and punished.

An FOI disclosure by the trust  has now revealed a large number of Employment Tribunal (ET) claims against the trust since the publication of the National Guardian’s review report in 2018.

There have been a total of 19 such ET claims.

Of huge concern, these claims included whistleblowing detriment:

“Response to the information requested

1) How many Employment Tribunal claims have been made against the trust? 19

2) Please give the numbers of ET claims under each heading of claim, including:

– Unfair dismissal –10

– Unlawful Deduction from Wages – 6

Public Interest Disclosure < 3

– Sex Discrimination < 3

Age Discrimination < 3

Race Discrimination < 3

Religion or Belief Discrimination < 3

– Marital/Civil Partnership Status < 3

– Other < 3

Also of concern, the FOI disclosure revealed that one of these ET claims was settled and that the employee was gagged with confidentiality and non-disparagement clauses:

“3) How many of the total number of ET claims, for the period 1 April 2018 to the present time, have been settled? 1

4) How many of these settlements relating to ET claims received since 1 April 2018 have contained confidentiality clauses such as:

a) clauses which prevent signatories from disclosing the existence of the settlement 0

b) clauses which prevent signatories from disclosing the contents of the settlement 1

c) clauses which prevent signatories from disparaging the other party? – 1”

The trust has specifically denied gagging any whistleblowers, but is this to be believed?

“5) Since 1 April 2018, has the Trust entered into any settlements with workers who have made an ET claim under the Public Interest Disclosure jurisdiction? – 0

I have asked the Trust CEO to personally confirm if this is correct. I have also asked NHS Improvement to audit Nottinghamshire Healthcare’s use of gags and the above gag in particular.

Moreover, there have been an extraordinarily large number of subject access requests to the trust by both staff and patients for their personal data. This is usually a sign of dispute and conflict.

FOI ref 5070 29 September 2020 by another party shows a total of 4614 subject access requests to the trust since 1 April 2018:

1. How many subject access requests for personal data has the trust received since 1 April 2018?

4614 requests received since April 2018.

2. How many of these subject access requests for personal data, since 1 April 2018, were made by patients or on behalf of patients?

Patients – 4556.

3. How many of these subject access requests for personal data, since 1 April 2018, were made by trust staff?

Staff – 58.

4. What was the average length of time taken by the trust to respond to the subject access requests for personal data the trust has received since 1 April 2018?

The data recorded for the average length of time taken includes requests from the following directorates – General Health, Mental Health and Forensics. The average length of time taken, by these directorates to process and respond to a subject access request is 44 days.”

I will send this evidence to the CQC, particularly because it raises questions about the trust’s communication and rapport with patients.

An FOI disclosure by the Information Commissioner’s Office showed that since 1 April 2018, nine complaints were made to the ICO about Nottinghamshire Healthcare’s responses to subject access requests, with 6 complaints made since 2019:

So overall, it looks like business as usual.

Will such continuing evidence of failure curb the insulting Speak Up Month?

Nope,  judging by the last two years’ shameless spinning by the National Guardian.

Public office just isn’t what it used to be.

Henrietta Hughes National Guardian collecting an OBE on 3 March 2020

For real change and safer whistleblowing governance, please sign and share the petition for reform of UK whistleblowing law. It matters to all of us, and is important for all sectors.

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RELATED ITEMS

Bullying and harassment at Harrogate and District NHS Foundation Trust & a concern about the National Freedom To Speak Up Guardian

Replacing the Public Interest Disclosure Act (PIDA)

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

The Disinterested National Guardian & Robert Francis’ Unworkable Freedom To Speak Up Project

The toothlessness of the National Guardian’s Office: Why it cannot be a model for protecting whistleblowers

An important investigation by Byline Times about serious failure of the government’s whistleblowing policy in the NHS

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 24 September 2020

It is now very clear that the government’s five year old Freedom To Speak Up project, on culture change in the NHS, is an an expensive flop.

It is expensive not only in terms of direct costs of

  • Operating a National Guardian’s Office that has neither powers nor appetite to challenge power and to genuinely protect frontline whistleblowers
  • Employing hundreds of frontline staff as local Freedom To Speak Up Guardians in NHS trusts, when good trusts do not need them and bad trusts will ignore and or victimise them
  • Running glossy campaigns, events and conferences to promote a false narrative that it is safe to whistleblow in the NHS

but most importantly, the Freedom To Speak Up project is unaffordably expensive in terms of lives avoidably lost, avoidable harm suffered by patients and the cruel persecution of whistleblowers to silence them.

Byline Times, part of our much needed independent media, is running a series on whistlebowing.

It started with this rare and precious coverage of why UK whistleblowing policy is so poor, the inconceivably dangerous gaps in our whistleblowing legislation and the fact that we will not benefit from the EU Whistleblowing Directive after Brexit:

ALONE AND EXPOSED Don’t Let Brexit Stop Whistleblowing

Today, Byline Times has published a damning investigation of a serious failure by the National Guardian’s Office and NHS regulators to act on intelligence that NHS trust managers tampered with an investigation report and other matters:

‘Perversion of justice’. The abandoned NHS whistleblower

A diligent NHS whistleblower ended up with a cardiac pacemaker after an ordeal in which he received no real help from the National Guardian’s Office (NGO) , NHS Improvement, the Care Quality Commission and the General Medical Council, despite raising such serious concerns.

In contrast, the National Guardian got an OBE in the New Years Honours list.

Henrietta Hughes at Buckingham Palace on 3 March 2020, receiving her OBE

In essence, the NGO bent its own rules and procedures in order to keep a lid on whistleblower reprisal and cover up by an NHS trust that it had previously reviewed. NGO arbitrarily allowed the erring managers of the trust extra time to improve, despite being made aware by the whistleblower of continuing corrupt practices.

Most likely, this was a self interested manoeuvre because to publicly acknowledge this particular whistleblower case and conduct a further case review would have revealed that the National Guardian had failed to make any difference with her original review of the NHS trust.

The omission was reminiscent of the National Guardian’s personal decision at Brighton and Sussex University Hospitals NHS Trust to arbitrarily delay a review to allow a favoured trust CEO and board time to get their story straight.

A Study in Delay: The National Guardian & Brighton and Sussex University Hospitals NHS Trust

It is bad enough that the National Guardian’s Office has no powers and no real authority. It is additionally deplorable that it makes up the rules as it goes along, at major cost to frontline staff and patients.

The NHS is a critical public service. Staff must be free to raise issues of unmet need and risks to patient safety, whether or not this is embarrassing for ministers.

It is completely unacceptable for vulnerable NHS whistleblowers’ fates to be left in the control of politicised processes and bodies, and for them to suffer serious personal injury because of oversight bodies’ negligence and collusion with employers.

If you have not done so already, please sign and share the petition calling for reform of UK whistleblowing law, and real enforcement structure to protect whistleblowers and the public.

We need a central whistleblowing agency, free from political interference by any government, which operates fully in the spirit of public service and Nolan standards of objectivity and selflessness.

All of us depend on whistleblowers all the time, whether or not we know it.

Please help them in return.

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RELATED ITEMS

Bullying and harassment at Harrogate and District NHS Foundation Trust & a concern about the National Freedom To Speak Up Guardian

Replacing the Public Interest Disclosure Act (PIDA)

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

The Disinterested National Guardian & Robert Francis’ Unworkable Freedom To Speak Up Project

The toothlessness of the National Guardian’s Office: Why it cannot be a model for protecting whistleblowers

An NHS whistleblower’s conversation with the Minister: BEIS needs to take reform of UK whistleblowing law much more seriously

Morecambe Bay trust frontline worker Russell Dunkeld @RussellDunkeld whistleblew on several patient safety issues, including concerns that a nurse colleague was ending stroke patients’ lives early by turning off drips:

Ignored: whistleblower’s claim of nurse who ‘sped up deaths’

He has been followed by several more whistleblowers at the trust, not all of whom are yet in the public domain, who have suffered and found their concerns ignored or trivialised.

Very weak and unfit UK whistleblowing law allows these serious abuses against the public interest to continue.

Russell Dunkeld recently wrote to his MP David Morris about the weaknesses of the law, and he in turn raised them with the government department that is currently in control of whistleblowing law, the Department for Business, Energy and Industrial Strategy.

Paul Scully responded as the relevant government minister, giving an unusually more detailed response than usual, and a more positive appraisal of UK whistleblowing law than is merited. Mr Scully may be well intentioned – he recently sent concerns about the disgraced former Post Office CEO to the Care Quality Commission, under the mistaken understanding that CQC investigates and determines whether NHS directors are Fit and Proper Persons. (CQC stubbornly does not take responsibility for this and he was advised of this). But nevertheless, he is entirely wrong about the strength of current whistleblowing law.

At least he did not wheel out the woeful Freedom To Speak Up project as an excuse not to reform the law. Perhaps a subliminal ministerial slip, as it must be patently obvious to all by now how toothless the Freedom To Speak Up project is.

But be assured that the same type government claims about the merits of current whistleblowing law will be wheeled out tomorrow in opposition to Dr Philippa Whitford MP’s bid to make the government do more, and to improve the law.

Russell Dunkeld has responded to rebut the government’s baseless claims that it has done enough so far to improve whistleblowing law. In his reply to Paul Scully, he points out the urgency of the matter and life and death implications of not correcting law so weak that it does not ensure the investigation of whistleblowers’ concerns.

The important exchange of correspondence is provided below.

If you have not already done so, please sign and share the petition calling for reform of UK whistleblowing law:

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RUSSELL DUNKELD’S EXCHANGE OF CORRESPONDENCE WITH PAUL SCULLY, BEIS MINISTER

BY EMAIL
Paul Scully

Minister for Small Business, Consumers and Labour Markets Minister for London

Department for Business, Energy and Industrial Strategy

24th October [sic – September] 2020

Dear Mr Scully,

Urgent need for whistleblowing law reform to save lives

Thank you for your letter of 7 September, copied below in the appendix.

I believe you have been misled about the strength of whistleblower protection in the UK.

Our whistleblowing law now lags far behind that in many other countries.

The central weakness is that it does not ensure that whistleblowers’ concerns are investigated and acted upon.

This is a longstanding, disastrous failing of UK law which has allowed recurrent mass failures of governance, such as in the Ian Paterson rogue surgeon scandal and the Mid Staffs hospital scandal.

I address below, in turn, several key passages from your letter.

1.“The Employment Rights Act 1996, amended by the PIDA, gives legal protection to those who speak up in the public interest.”

PIDA does not provide any pre-detriment protection.

It does not ensure that reprisal is actively prevented.

For example, PIDA does not oblige employers to carry out risk assessments and to provide protection plans for individual whistleblowers.

Whistleblowers experiencing reprisal by their employer cannot access and activate any mechanism to make it stop.

PIDA only acts after the fact.

Whistleblowers can only make a claim to an Employment Tribunal at a very late stage after suffering serious harm and being made unemployable due to stigma, blacklisting, maliciously manufactured disciplinary or capability record and ill health.

The process of litigation itself is very harmful to whistleblowers and presents more opportunities for employers to abuse them.

Some people suffer not only broken health but are ruined by the highly risky litigation that UK whistleblowing law forces them to take, as the only chance of redress after serious harm.

Some employers make vexatious appeals after losing Employment Tribunals, wasting public money and punitively keeping the whistleblower in a state of fear for several more years.

2. “the legislation provides a remedy for claimants who suffer detrimental treatment by their employer. An Employment Tribunal is the right body to make judgements on the facts of a given case and on the evidence it considers. The compensation that can be awarded by a Tribunal in a whistleblowing case reflects the detriment that the worker has suffered.”

The compensation you cite is very hard to win.

Only 3% of cases succeed at hearing.

The vast majority of whistleblower claimants are forced to withdraw and or accept a substandard settlement because unions will not support cases all the way and most whistleblowers cannot afford to continue.

Where whistleblowers ‘win’, compensation never fully reflects the real long term financial losses.

Compensation may also be swallowed up by legal expenses.

Employers may whittle away compensation by constructing an argument of contributory fault by claimants, which results in compensation being docked.

Claimants may also be threatened and punished with cost applications by employers.

UK whistleblowing [law] only thinks in terms of pounds and shillings.

It does not provide vital non-financial redress such as the wiping of malicious, manufactured disciplinary records.

3. “The most recent change introduced in 2017 was a new legislative requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers. It aims to increase confidence that prescribed persons are taking whistleblowing disclosures seriously through greater transparency about how disclosures are handled, in particular, that they investigate where appropriate and take action where necessary.”

The 2017 changes did nothing to ensure that Prescribed Persons investigate and act upon concerns.

The law still does not compel anyone to investigate or act upon UK whistleblowers’ concerns.

This is at the core of why UK whistleblowing governance is ineffective.

Most whistleblowers’ disclosures to Prescribed Persons are not investigated.

Prescribed Persons are a disparate group of bodies and individuals, some have no power to act.

Regulators who are Prescribed Persons have powers, but are under no legal compulsion to investigate and act upon whistleblowers’ disclosures.

Some regulators who are Prescribed Persons refuse to investigate as a matter of policy, for example, the Care Quality Commission (CQC).

At the very most, the CQC will only review a general theme, not a whistleblower’s specific concern. CQC’s own statistics show that in the majority of cases, CQC takes no further action or merely notes disclosures as information for a future inspection. Even very serious disclosures of corruption

I believe your department’s composite Prescribed Persons’ report 2018/19 relating to 23 bodies revealed that only eight of these bodies explicitly reported that they conducted investigations of some (usually a minority) of the whistleblowers’ concerns received:

·      NHS Counter Fraud Authority

·      Scottish Social Services Council

·      NHS Improvement

·      Office of Nuclear Regulation

·      Scottish Charity Regulator

·      Public Services Ombudsman for Wales

·      Scottish Housing Regulator

·      Scottish Social Services Council

Some Prescribed Persons reported taking “further action” without clearly indicating whether this included investigation.

NHS Improvement received 190 whistleblower disclosures in 2018/19 of which it deemed 100 were qualifying disclosures. Only 16 investigations arose from these disclosures.

NHS England reported receiving 70 whistleblower disclosures, of which only 3 had been investigated. It claimed that others were still ‘under investigation’.

Some bodies such as the IOPC reported that they referred most whistleblowers’ concerns back to their employer:

“Most of the reports we received in 2018/19 25 were suitable to be dealt with by the relevant force and so we provided them with the relevant information.”

Similarly, Ofqual did not investigate the whistleblower concerns that it received but referred them back to awarding organisations.

Several Prescribed Persons reported that they received no disclosures at all, such as Ofcom, Registers of Scotland, Revenue Scotland, Water Industry Commission for Wales, Welsh Revenue Authority and Scottish Information Commissioner raising questions about whether the system is sufficiently publicised.

It is significant and of concern that your department presented only 23 vignettes  instead of systematic analysis, when there are in fact thousands of Prescribed Persons. Local authorities and MPs are Prescribed Persons.

If the aim of the recently introduced publication requirement is as you say to provide reassurance that whistleblowers’ concerns are investigated by Prescribed Persons, it is surely vital that the government undertakes proper audit and analysis instead of cherry picking a tiny proportion of examples.

Your department’s report did not for instance, feature the Care Quality Commission, the single most important regulator with regard to oversight of vital, safety critical health and social care services.

Indeed, if as the government claims, it wanted Prescribed Persons to investigate, it should change the law and compel investigation.

4. “It is right and proper that the Government reviews the whistleblowing framework once we have had sufficient time to build the necessary evidence of the impact of the most recent reforms.”

The changes to whistleblowing law in recent years have all been superficial.

Because the government has not ensured that whistleblowers’ concerns are reliably investigated and acted upon, serious harm continues, including deaths.

In conclusion

I hope the above demonstrates to you why UK whistleblowing law is deeply ineffective and fails to defend the public’s right to know about unsafe services and corruption, and to be protected from such risks and malfeasance.

I request that the government treats the persisting gap in investigation of UK whistleblowers’ concerns as a matter of great urgency.

It cannot be right to continue for several more years without addressing this matter of life and death.

Yours sincerely,

Russell Dunkeld

NHS whistleblower

Cc Davis Morris MP

APPENDIX: YOUR LETTER OF 7 SEPTEMBER 2020

David Morris MP House of Commons London
SW1A 0AA

Dear David,

Department for Business, Energy & Industrial Strategy 1 Victoria Street
London
SW1H 0ET

T +44 (0) 20 7215 5000 E enquiries@beis.gov.uk W www.gov.uk

Our ref: MCB2020/28784
7 September 2020

Thank you for your email dated 20 August, enclosing correspondence from your constituent, Mr Russell Dunkeld of 1 Richmond Farm, Heaton Bottom Road, Heaton with Oxcliffe, Morecambe LA3 3EU, regarding the Public Interest Disclosure Act (PIDA) 1998. I am replying as this matter falls within my ministerial portfolio.

I would like to reassure Mr Dunkeld that the Government believes that whistleblowers play an important role in bringing to light wrongdoing in the workplace. The Employment Rights Act 1996, amended by the PIDA, gives legal protection to those who speak up in the public interest. The legislation is intended to build openness and trust in workplaces by ensuring that workers who hold their employers to account are treated fairly.

The purpose of Part IVA of the Employment Rights Act is to provide means of redress for a worker who suffers detriment at the hands of their employer after ‘blowing the whistle’. In many cases, employers respond appropriately when concerns are raised by their employees. Where they do not, the legislation provides a remedy for claimants who suffer detrimental treatment by their employer. An Employment Tribunal is the right body to make judgements on the facts of a given case and on the evidence it considers. The compensation that can be awarded by a Tribunal in a whistleblowing case reflects the detriment that the worker has suffered.

Over recent years the Government has made improvements to the whistleblowing framework to make it more robust and increase support for whistleblowers. This includes guidance for whistleblowers on how to make disclosures while preserving their employment protections, and guidance for employers, including a non-statutory code of practice. We have added student nurses and student midwives into the scope of the legislation and introduced whistleblowing protections for job applicants in the health sector. We have also fulfilled the commitment to keep the prescribed persons list up to date.

The most recent change introduced in 2017 was a new legislative requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers. It aims to increase confidence that prescribed persons are taking whistleblowing disclosures seriously through greater transparency about how disclosures are handled, in particular, that they investigate where appropriate and take action where necessary. The reporting duty should also improve consistency across different bodies in the way they respond to disclosures. These bodies are due to publish their third set of annual reports, for 2019/20, by the end of September.

It is right and proper that the Government reviews the whistleblowing framework once we have had sufficient time to build the necessary evidence of the impact of the most recent reforms.

Thank you once again for taking the time to raise Mr Dunkeld’s concerns on this matter. I hope that the information above is helpful to you in your response to him.

PAUL SCULLY MP

Minister for Small Business, Consumers and Labour Markets Minister for London

Professional regulators fail to protect frontline health and care staff from rogue employers: The HCPC and NHS ambulance trusts

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 22 September 2020

Summary: Professional regulators are not doing enough to identify, track and manage abusive employers who maliciously refer their staff to their professional regulators. Last month I reported that the Health and Care Professions Council had no systems at all for dealing with these issues, and that the regulators’ regulator, the Professional Standards Authority indicated to me that it would welcome evidence of malicious referrals. Since then, staff who have suffered malicious referrals or witnessed them have been sending in evidence. I provide here more detailed evidence on the HCPC’s systemic failings in respect to whistleblower registrants and to NHS ambulance trusts. There is an astonishing laxity by both the HCPC and employers on assuring the quality and probity of referrals. NHS staff may suffer severe personal injury as a result of oppressive workforce management. Several NHS whistleblowers have reported that they have experienced heart problems in the last year. These organisations are not holding themselves to the same professional and ethical standards that are so sternly heaped on the frontline. It is time for the unions and the PSA to do more to protect frontline staff from abuse. I have written to both.

Background

Professional regulators are supposed to keep the public safe by managing practitioners’ impaired fitness to practice and also to be fair to frontline health and care staff.

It is a challenging balancing act, and there have been failings in both directions.

There have been egregious examples of professional regulators’ failure to keep the public safe. For example, the repeated failures by the General Medical Council to stop Jane Barton the doctor associated with the suspicious opioid deaths at Gosport, Ian Paterson the breast surgeon who was eventually jailed and Zholia Alemi the fake doctor who was allowed to masquerade as a consultant psychiatrist despite not even having a basic medical degree, also jailed and expected in court again today on further charges. Whistleblowers repeatedly tried to raise the alarm on all three of these cases, but insufficient regulatory action resulted.

Juxtaposed against this is a serious failure to track rogue employers who misuse the professional revalidation and Fitness to Practice procedures as a tool for coercing staff and silencing whistleblowers. Professional regulators have very little in the way of systematic approaches to deter employer abuse. Their institutional focus is on erring staff, and as Mark Twain once said: “To a man with a hammer, everything looks like a nail”.

The HCPC

HCPC lets rogue employers off and does not track whistleblowers who are referred

I reported previously that the Health and Care Professions Council has no system whatsoever for tracking and tacking action against rogue employers, even though I am aware that whistleblowers have been vexatiously referred to the HCPC.

I contacted the Professional Standards Authority about this. PSA indicated that it would “welcome” evidence about vexatious referrals to professional regulators. I have since seen some of the submissions that affected whistleblowers and other workers have been sending in about professional regulators.

I will now report further on the HCPC’s handling of referrals by NHS ambulance trusts and its approach to whistleblowers.

In an FOI disclosure of 17 September 2020, the HCPC showed a lack of care and understanding about employers’ vexatious referrals on whistleblower registrants.

When I asked if HCPC had a policy on handling employers’ referrals on whistleblowers, it merely directed me to a generic policy for workers who wish to whistleblow to HCPC – a completely different issue.

Moreover, HCPC admitted that:

  • It had not been aware of the 2015 Hooper report for the GMC on good practice in cases of whistleblower registrants who are referred
  • It did not ask senior registrants who make referrals to declare whether the practitioner being referred is a whistleblower
  • It held no central record of whistleblowers who are referred: “we do not hold a central record on whistleblowers who are referred to the HCPC”

Indeed, the HCPC previously admitted that it keeps no central register of malicious referrals.

I have seen recent correspondence from the HCPC to a vexatiously referred registrant in which HCPC declined to log a referral as malicious.

On 20 August 2020 I asked Christine Elliott Chair HCPC and her colleagues to do more to deter malicious referrals in general:

I wonder if the HCPC can consider this very serious issue of power imbalance and unfairness and let me know whether and how it might be prepared to correct its omission.”

There has so far been silence in response to this request.

Shockingly, the HCPC has also been failing to fully meet its public sector equality duty under the Equality Act, to track how it is responding to people with different protected characteristics. An FOI disclosure to another party showed that HCPC bizarrely only collects data on age and gender. Nothing on other protected characteristics such as Race and Disability. Its board also looks distinctly white. This serious failure adds to the concerns about whether HCPC is protecting the workforce from unfairness by referring employers.

I have raised this major failure with the Professional Standards Authority, which responded to say that it recently added a requirement for professional regulators about diversity and equality. The correspondence with PSA can be found here.

Ambulance trusts

I am aware of vexatious referrals by NHS ambulance trusts to the HCPC, on whistleblowers and other staff.

One referred individual who has had a terrible ordeal commented that the HCPC’s handling of referrals can be a huge part of the problem:

“The HCPC are, without a doubt the most unprofessional organisation I have ever had to deal with.”

There are 10 English NHS ambulance trusts, which form a subculture of their own, with the highest levels of bullying in any category of NHS trusts.

Yet their workers carry out high pressure emergency work, sometimes in dangerous conditions, facing abuse or even assault by the public, and witness terrible, traumatic scenes. They need the best quality employer support.

The last NHS staff survey continued to show what a difficult employment environment ambulance trust workers face.

Ambulance trusts have by far the lowest levels of staff engagement:

Ambulance trust staff report the highest levels of bullying:

These high levels of disclosed bullying are despite ambulance trust staff being less ready than other groups to report bullying:

Ambulance trust staff are also less likely to report safety incidents:

Ambulance workers are also the least likely to feel secure when raising concerns about unsafe care:

TYPE OF NHS TRUST% of staff who agreed with the statement: “I would feel secure raising concerns about unsafe clinical practice.”  
All trusts72%
Acute trusts70%
Combined acute and community trusts72%
Acute specialist trusts74%
Mental health and learning disability trusts72%
Combined mental health, learning disability and community trusts74%
Community trusts78%
Ambulance trusts68%

Source: NHS Staff Survey 2019, detailed results https://minhalexander.files.wordpress.com/2020/08/nhs-staff-survey-2019-detailed-results-st19-detailed-spreadsheets_final.xlsx

Ambulance trust workers are the least confident that their employer would address concerns:

TYPE OF NHS TRUST% of staff who agreed with the statement: “I am confident that my organisation would address my concern.”  
All trusts60%
Acute trusts58%
Combined acute and community trusts60%
Acute specialist trusts67%
Mental health and learning disability trusts59%
Combined mental health, learning disability and community trusts63%
Community trusts67%
Ambulance trusts55%

Source: NHS Staff Survey 2019, detailed results https://minhalexander.files.wordpress.com/2020/08/nhs-staff-survey-2019-detailed-results-st19-detailed-spreadsheets_final.xlsx

To get some idea of the scale of meritless and or frankly abusive referrals to HCPC by ambulance trusts, I asked both the HCPC and ambulance trusts for data.

The HCPC response was very poor and claimed that the regulator held no central data by ambulance organisation on numbers and outcomes. This implied that HCPC fails to track referrals by individual organisations and is not actively assessing whether employers may be misapplying or abusing Fitness to Practice procedures. Alternatively, HCPC may be able to call up the data, but wishes to shield employers from scrutiny. HCPC decisions quite often refer to paramedic’s employing organisations, so it is surprising that the HCPC cannot produce the data.

This is the full FOI correspondence with HCPC:

HCPC FOI Numbers and outcomes of referrals to HCPC by NHS ambulance trusts

HCPC’s poor approach is of particular concern because concerns had already been raised that some groups of registrants, such as paramedics, are referred at disproportionately higher levels. The concerns had resulted in research being commissioned from Surrey University, reporting in 2017:

People like us? Understanding complaints about paramedics and social workers1

This report by Surrey noted that paramedics faced a “blame focussed” work environment.

Ambulance trusts’ FOI responses to my enquiries about HCPC referrals since 1 April 2018 showed:

  • South Central Ambulance Service NHS Foundation Trust has not responded despite reminders
  • Three ambulance trusts have not bothered at all to oversee and evaluate how they make HCPC referrals (South Western Ambulance Service NHS Foundation Trust, which had major bullying issues, and West Midlands Ambulance Service NHS Foundation Trust, dubiously rated ‘Outstanding’ by CQC, and Yorkshire Ambulance Service NHS Trust)
  • Two trusts (North East Ambulance Service NHS Foundation Trust and London Ambulance Service NHS Trust) held numbers on referrals but not outcomes
  • There was a great range in the numbers of referrals. South East Coast Ambulance Service NHS Foundation Trust had not referred any staff to HCPC in the period.
  • North West Ambulance NHS Trust – a whistleblowing and severe bullying hotspot known to both regulators and the National Guardian – made 20 ‘personal misconduct’ referrals, with 4 ending in a “No case to answer” finding by the HCPC, and 9 ‘clinical practice/ patient care concerns’ referrals, with 3 ending in a “No case to answer” finding by the HCPC. Whistleblowers at this trust have continued to be harmed after an ineffective review by the National Guardian.
  • East of England Ambulance Service Trust – which has had recent paramedic suicides answered in a muddled way, giving all sources of referral and thus obscuring the number of ‘no case to answer’ outcomes arising specifically from referrals by the trust

The FOI responses from ambulance trusts can be found linked below. I will add the overdue response from South Central as it arrives.

North West Ambulance Service NHS Foundation Trust

East of England Ambulance Service NHS Trust

West Midlands Ambulance Service NHS Foundation Trust

South Western Ambulance Service NHS Foundation Trust

Yorkshire Ambulance Service NHS Trust

East Midlands Ambulance Service NHS Trust

North East Ambulance Service NHS Foundation Trust

London Ambulance Service NHS Trust

South East Coast Ambulance Service NHS Foundation Trust

NHS Trusts and the HCPC should in particular actively track the ‘no case to answer’ referral outcomes for possible learning, and it is a concern that this is not happening most of the time.

This all paints a picture of neglect and casual abuse of the frontline. People who save lives, who work so hard and under such pressure, yet are so easily discarded upon employer whim, with regulatory complicity through lack of duty of care.

Alongside this is the still casual way in which NHS staff can be suspended with very few safeguards and no central tracking, despite a 2003 National Audit Office recommendation for substantial systemic improvements to be made.

The mistreatment of staff in these summary ways is extremely serious and causes personal injury, sometimes life threatening. I am in touch with several NHS whistleblowers who have experienced heart problems just in the last year. It is also not just staff but their family who suffer.  Linda Faircliffe, North Tees and Hartlepool NHS Foundation Trust whistleblower, tragically lost her partner to a heart attack whilst the trust suspended her.

Innocent staff can be pinned down by vexatious referrals for years, especially where a professional regulator is especially incompetent.

It is inconceivable that a safety critical sector can lurch on in this dangerous way, with lazy tolerance of poor culture.

The NHS Chief People Office Prerana Issar’s office promised on 7 September 2020 that Issar would shortly respond to a prompt on 26 August 2020  about the much delayed implementation of the Kark Review on unfit NHS senior managers and continuing impunity for whistleblower reprisal but she has not done so yet.

The unions should be cracking down harder on these failures and so should PSA.

I have written to the PSA cc the unions, to forward the above further evidence of professional regulatory failure to deter employers’ abuses of power.

All the above is a glimpse into the weak systems that favour employers and allow whistleblowers to be silenced.

If you have not done so already, please sign and share the petition to reform UK whistleblowing law, so that there is a legal duty on bodies to protect whistleblowers and to deter reprisal with effective penalties.

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

APPENDIX

CORRESPONDENCE WITH PSA

BY EMAIL

David Martin, Concerns and Appointments Officer, Professional Standards Authority 

22 September 2020 

Dear David,

More examples of professional regulatory failure to deter vexatious Fitness to Practice referrals on frontline workers, as a means of intimidation and punishment

To follow up on my concerns about the Health and Care Professions Council admitting to having no systems whatsoever for identifying, tracking and managing rogue employers and its failure to fully track protected groups of registrants (it only tracks age and gender), please find via this link more evidence of HCPC failure to address employer abuses of the Fitness To Practice process as an improper means of punishment:

https://minhalexander.com/2020/09/22/professional-regulators-fail-to-protect-frontline-health-and-care-staff-from-rogue-employers-the-hcpc-and-nhs-ambulance-trusts/

This additional evidence focuses on ambulance services, which have troubled culture and whose staff suffer the highest levels of bullying in the NHS. 

Importantly, please note that as part of HCPC’s failures, it has little understanding of the importance of ensuring that whistleblower registrants who are referred need to be properly protected and that vexatious referrals on such registrants need to be identified and robustly deterred.

Thank you again for picking up the general issue of how professional regulators should manage vexatious/ malicious/ dishonest referrals.

I hope some improvements can be made in due course. 

You will note amongst this latest evidence the fact that I have heard from several NHS whistleblowers who have suffered from heart problems in the last year relating to the immense stress of employer reprisals. There is the terrible case of Linda Fairhall, North Tees and Hartlepool NHS Foundation Trust whistleblower, whose partner died of a heart attack when she was suspended by her employer.

The problem is of course relevant to all workers, whistleblowers or not.

I hope this helps to illustrate the gravity of system and professional regulators allowing employers to get away with seriously abusive behaviour and coercing the workforce through this means.

With best wishes,

Minh

Dr Minh Alexander

Cc 

Alan Clamp CEO PSA

Secretaries of TUC, Unison, Unite, GMB, HCSA, BMA, RCN, DAUK

NMCWatch Registrant Care

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The only real question about whistleblowing in the UK

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 21 September 2020

Summary: The UK does not investigate and act upon whistleblowers’ concerns as a matter of policy. This is the central failure at the heart of UK whistleblowing governance. The only question that really matters is ‘When will this be put right?’. The organisation Protect, which raises funds on the purported basis that it champions whistleblowers, is failing in its mission by not meaningfully challenging this critical failure. Moreover, it has made a misleading public claim that its whistleblowing Bill will ensure the investigation of whistleblowers’ concerns, when it does NOT. Protect intends to brief parliament shortly. It cannot be allowed to mislead or to undermine real attempts at law reform. The CEO of Protect has been asked to account for the organisation’s behaviour.

Protect the “leading experts” and a factual inaccuracy

The UK does not investigate and act upon whistleblowers’ concerns as a matter of policy.

The unsuspecting majority would surely be amazed and horrified by this.

The UK introduced sham whistleblowing law over twenty years ago which formalised the policy of cover up, whilst deftly making it look as if something had been done. This law, the Public Interest Disclosure Act (PIDA) was criticised very early on by the Bristol Heart public inquiry, but the government admitted that it did nothing. See BEIS FOI response.

The organisation Protect (formerly known as Public Concern at Work) was chief midwife to this useless legislation.

It has spent the last two decades embedding itself into the establishment machinery, sitting on the national Employment Tribunal user group and cornering the market in public sector contracts for training, consultancy services and advice lines. It is reluctant to be fully transparent about its customers, but always quick to self-promote and tout itself as the “leading” whistleblowing charity. Its humble strapline is ” Whistleblowing Charity – The Leading Experts”.

Commensurate with this pattern of behaviour, Protect has frequently flattered power, including by supporting the government’s deeply flawed and frankly dangerous Freedom to Speak Up project. It got contracts off the back of the initiative and its head of legal went to work at the NHS National Guardian’s Office.

Protect. A View from the Fence.

Protect helped tinker with PIDA in 2013 when the Act was superficially reviewed. The government-friendly organisation made no move to redress the yawning failure to ensure that whistleblowers’ concerns are investigated and acted upon. Indeed, in 2012 Protect (then Public Concern at Work) arrogantly claimed in a submission to Transparency International that: “The UK’s Public Interest Disclosure Act, 1998 offers strong and comprehensive protection for workplace whistleblowing.”

The net result of the 2013 government review exercise was more window dressing.

In the last two years, Protect surfed a wave of grassroots campaigning by whistleblowers for real reform of the law. It has tried to hijack and undermine attempts at real reform by offering a Bill that STILL fails to ensure investigation of whistleblowers’ concerns,  ignoring everything that  whistleblowers have said.

Protect’s Bill is yet more tinkering with existing whistleblowing law.

The Bill strangely does not compel employers to investigate whistleblowers’ concerns. It only leaves the door open for a new regulator to introduce a duty in the regulatory small print.

Protect’s Bill gives Prescribed Persons (authorities legally responsible for receiving whistleblower disclosures under current law) a new duty to investigate whistleblowers’ concerns “as appropriate”:

“follow up on disclosures by taking the necessary measures and investigate, as appropriate, the subject-matter of the concerns. Where the prescribed person is not competent to investigate, they shall inform the person making the protected disclosure of their intention to pass the concern to the appropriate body.” [my emphasis]

UK regulators are Prescribed Persons but they have so far resisted investigation of whistleblowers’ concerns. . Will they exploit the “as appropriate” escape clause in Protect’s Bill to continue their failure?

Protect’s Bill creates a new Whistleblowing Commission but only provides for investigation by a proposed Whistleblowing Commission of how whistleblowers’ concerns are handled, and NOT of the concerns themselves:

(3) The Whistleblowing Commissioner shall have the following functions: a) to act as an investigator of alleged maladministration or a failure to investigate a protected disclosure either by an employer or by a prescribed person”

Thus by sleight of hand, Protect’s Bill gives no ultimate means of investigating whistleblowers’ concerns where employers and regulators fail to do so, as currently happens all the time.

Of concern, Protect set out to spin about its Bill in a blog of 27 August 2020 which compared three Bills in play at present: its own Bill and two Bills going through parliament proposed respectively by Dr Philippa Whitford MP and by Baroness Susan Kramer. The latter is co-Chair of the suspect whistleblowing APPG which is a in essence a shop window set up on behalf of bounty hunters. Protect’s blog took some unjustified swipes, such as claiming that Dr Philippa Whitford’s important bid to introduce criminal sanctions for reprisal and cover up is ill advised. Perhaps because Protect knows criminalisation is one of the most powerful measures against undesirable behaviours – cf. seatbelt and drink driving law.

In its blog, Protect also bizarrely and misleadingly claimed that its proposed Whistleblowing Commission would investigate whistleblowers’ concerns:

“A Whistleblowing Commissioner – a new independent body to investigate a concern, or unfavourable treatment of the whistleblower, set standards and administer penalties.”

Was it because Protect knew that this is the heart of the matter, and that its Bill would not be acceptable to most people if shown for what it really is?

I have written to the CEO of Protect to seek clarification of Protect’s position on ensuring the investigation of whistleblowers’ concerns. The correspondence is provided in the appendix. Protect should retract its major factual inaccuracy. Alternatively, Protect can always listen to whistleblowers and amend its Bill to ensure that its Commission has direct investigative powers, like the forty year old US Office of Special Counsel which has a duty to protect federal whistleblowers.

Will Protect finally step up or will it continue as enabler in chief of the powerful and of corporate interests?

Protect grandiosely announced in its blog that it would be “briefing” parliament in the run up to the second reading of Dr Philippa Whitford’s Bill on 25 September 2020.

Does this mean Protect will spam MPs with more misleading claims about its Bill?

If you have not yet done so, please support this petition to reform UK whistleblowing law so that the proper handling of whistleblowers’ concerns is given centre stage, and not swept under the carpet with legislative trickery:

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

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Prescribed Persons or the Pretence of PIDA. How UK whistleblowers are ignored.

APPENDIX

Correspondence to Protect

From: minh alexander <REDACTED>

Subject: Protect’s blog – accuracy

Date: 18 September 2020 at 12:56:24 BST

To: Elizabeth Gardiner <REDACTED>

Hi Elizabeth,

I noticed that in Protect’s blog of 27 August 2020  “Unpacked: The 3 bids to transform whistleblowing law PIDA” in which Protect gives its view of the three whistleblowing Bills in play, that Protect stated its proposed Whistleblowing Commission would investigate whistleblowers’ concerns:

“What are the stand out asks of each Bill?

All the Bills are united in that they want to see PIDA reviewed but vary in what they call for. The ‘headlines’ for each are as follows

         Protect’s Bill:

            • Wider protection of more people e.g. Non-executive Directors (NEDs), volunteers, self-employed workers and job applicants

            • A duty on employers to prevent victimisation

            • A Whistleblowing Commissioner – a new independent body to investigate a concern, or unfavourable treatment of the whistleblower, set standards and administer penalties.”

Aa far as I can see, this is an inaccurate representation of Protect’s Bill. The Bill only proposes that its Whistleblowing Commission should investigate the HANDLING of concerns:

“(3) The Whistleblowing Commissioner shall have the following functions: 

a) to act as an investigator of alleged maladministration or a failure to investigate a protected disclosure either by an employer or by a prescribed person 

b) to set standards about protected disclosures expected of prescribed persons and employers and issue guidance of such standards 

c) to improve public awareness and education of individual’s rights regarding protected disclosures 

d) to administer civil penalties where they judge appropriate against employer or prescribed persons for breaches of function (a) or (b) above.”

The majority of whistleblowers, whose prime focus is the public interest, consider that PIDA’s central failing is the fact it ignores their disclosures and thus allows them to be covered up.

Obviously it would be very disappointing if this central fault remains in our whistleblowing legislation.

I’d be grateful if you could clarify whether the claim in Protect’s blog of 27 August 2020 that Protect’s proposed Commission will investigate concerns means that Protect will amend its draft Bill to give the proposed Commission powers to investigate whistleblowers’ concerns per se, or is it Protect’s intention still to restrict the role of the proposed Commission to just examining the process of how whistleblowers’ concerns are handled?

Many thanks,

Minh

Dr Minh Alexander

‘Regulator’ isn’t a dirty word if you say it right. Watergate, the US Office of Special Counsel and designing models of whistleblowing regulation to reduce political interference

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 17 September 2020

There is an understandable temptation in whistleblowing to abandon hope of constructive reform. However, hard though the road is, the focus needs to be on possible solutions.

UK regulators currently fail whistleblowers but that is not a reason to discount in entirety the regulatory model for whistleblowing. Afterall, someone has to oversee the process.

Regulation can only be as good as the legal regulations and frameworks which govern regulators’ operation and powers and most importantly, which protect them from political interference. And of course, this is all dependent on any given government’s respect for the rule of law. Our current political climate is hardly fertile ground, but paradoxically whistleblowers are needed more than ever.

The UK public is very badly served by current whistleblowing law. No UK regulator is currently compelled by law to act upon whistleblowers’ disclosures. Some regulators do not even fully understand their responsibilities under the law, because of poor government leadership.

Indeed, ineffective regulation can in fact serve governments’ political interests.

Political interference is the major threat to the effective functioning of any official whistleblowing body.

The whistleblowing All Party Parliamentary Group (a special interest group of MPs without any official status) made a bizarre suggestion in June 2019 that the Home Office or Ministry of Justice could be in control of a new whistleblowing agency, or as the APPG put it, an “Office for the Whistleblower”. It is hard to think of two worse current government departments for abuses of power, racism, extremism and secrecy.

Others have suggested that the police, an organ of the Home Office, should control UK whistleblowing governance. This is equally of concern given the long and notorious history of UK political policing against even peaceful and legitimate dissent:

Spycops: A brief History of political policing

To give an illustrative example of political policing from the above study,  the Home Secretary & Metropolitan Police Commissioner met press barons to suggest the press avert their eyes from police violence against Vietnam war protestors, who were instead cast as the guilty parties by police briefing:

The terrible Hillsborough scandal, with decades of cruel official lies and silenced police whistleblowers is another example of the serious unfitness of the Home Office and its police instruments to be controllers of whistleblowing governance:

‘The patronising disposition of unaccountable power’ A report to ensure the pain and suffering of the Hillsborough families is not repeated

Institutions which control, conceal and deceive as a political habit are not whistleblowers’ friends.

I will briefly describe below a long established regulatory precedent in the US: The Office of Special Counsel, which has a range of powers that can potentially be adopted and built upon when designing systems of whistleblower protection.

The US Office of Special Counsel

The US Office of Special Counsel (OSC) is in essence a forty year old central whistleblowing agency, established in 1979 after the Watergate scandal broke and after related legislation was passed to reform the US civil service. OSC has responsibility to protect public sector (federal) whistleblowers, offer a channel of reporting for federal whistleblowers raising concerns about wrongdoing and to help remedy corruption and abuses of power in public office. It has investigative, prosecutorial and regulatory powers and also has powers to direct other federal agencies to investigate and provide evidence of corrective action.

These are some FAQs about the OSC:

 US Office of Special Counsel: Know Your Rights

OSC’s strong points are its range of powers and its jurisdiction over a wide range of federal bodies. It is in principle independent but one of its key weaknesses is that the Special Counsel is appointed by the executive and can be removed by the executive, albeit this is tempered by Senate oversight of appointment, and legal limitations on the range of reasons under which a President can remove a Special Counsel.

The UK government’s recent interference with even the Criminal Cases Review Commission by abusing its appointment powers, shows what a threat any government leverage can be.

OSC has an imperfect history, and for a number of years was paralysed by the appointment of a poor Special Counsel, who was mired in scandal and allegations of cover ups. But that will always be the story of whistleblowing – all schemes to protect whistleblowers are at high risk of being subverted and captured. The important thing is to be fully prepared for this and to continue working on and adapting to weaknesses and threats.

Nevertheless, in principle, the OSC has some of the most powers ascribed to date to any whistleblowing agency.

The main laws governing the establishment and operation of the OSC are:

  • The 1939 Hatch Act, sought to maintain the neutrality of public servants and to prohibit their participation in any “pernicious political activities” by misusing public office or resources.

provide the people of the United States with a competent, honest, and productive Federal work force reflective of the Nation’s diversity, and to improve the quality of public service, Federal personnel management should be implemented consistent with merit system principles and free from prohibited personnel practices”

“the authority and power of the Special Counsel should be increased so that the Special Counsel may investigate allegations involving prohibited personnel practices (PPP) and reprisals against Federal employees for the lawful disclosure of certain information and may file complaints against agency officials and employees who engage in such conduct;”

This strengthened the OSC’s role and made its prime duty the protection of federal employees, especially whistleblowers, from prohibited personnel practices

  • Whistleblower Protection Enhancement Act of 2007
  • The Uniformed Services Employment & Reemployment Rights Act 

The 1978 Civil Service Reform Act provided for appointment of the Special Counsel only by consent and confirmation of the Senate, with limitations on removal by the President:

“The Special Counsel of the Merit Systems Protection Board shall be appointed by the President from attorneys, by and with the advice and consent of the Senate, for a term of 5 years. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of his predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.

Under Section 1206 of the 1978 Act, the Special Counsel was given wide powers to investigate any allegations of prohibited personnel practices against any “employee or former employee or applicant for employment’, including reprisal against federal workers making public interest disclosures, to compel the heads of federal agencies to locally investigate any such allegations, to require agency heads to report to OSC in writing certain specified findings of local investigations within 60 days, including evidence of corrective action:

“”(E) a description of any corrective action taken or planned as a result of the investigation, such as –, “(i) changes in agency rules, regulations, or practices; “(ii) the restoration of any aggrieved employee; “(iii) disciplinary action against any employee; and “(iv) referral to the Attorney General of any evidence of a criminal violation.”

Barring some circumstances of state security and secrets, the Act required the majority of such investigation reports to be submitted to Congress and to the President, as well as shared with complainants.

The Act gave OSC the power to determine if such investigation reports were complete and made “reasonable” findings, and to take further action if not.

The OSC has powers to petition for stays of harmful prohibited personnel actions and to seek extensions:

“(a)(1) The Special Counsel may request any member of the Merit Systems Protection Board to order a stay of any personnel action for 15 calendar days if the Special Counsel determines that there are reasonable grounds to believe that the personnel action was taken, or is to be taken, as a result of a prohibited personnel practice.”

OSC can ensure redress for harmed whistleblowers, importantly, including of a non-financial nature.

OSC also has powers to investigate directly and to require confirmation of corrective action by agency heads,

“(B) In any case in which the Special Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken, the Special Counsel may proceed with any investigation or proceeding instituted under this section notwithstanding that the alleged violation has been reported to the Attorney General. “(3) If, in connection with any investigation under this section, the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred which is not referred to in paragraph (1) or (2) of this subsection, the violation shall be reported to the head of the agency involved. The Special Counsel shall require, within 30 days of the receipt of the report by the agency, a certification by the head of the agency which states –, “(A) that the head of the agency has personally reviewed the report; and “(B) what action has been, or is to be, taken, and when the action will be completed.

OSC was given regulatory powers:

“”(k) The Special Counsel may prescribe regulations relating to the receipt and investigation of matters under the jurisdiction of the Special Counsel. Such regulations shall be published in the Federal Register.”

OSC may refer cases to the Merit Systems Protection Board MSPB – the adjudicating body on employee claims of prohibited personnel practices in federal agencies, which can discipline those guilty of violations, including by removal, reduction in grade, debarment from federal employment for up to five years, suspension, or reprimand.

OSC was given powers to litigate, to prosecute cases before the MSPB and intervene in proceedings of the MSPB:

“(i) The Special Counsel may as a matter of right intervene or otherwise participate in any proceeding before the Merit Systems Protection Board, except that the Special Counsel shall comply with the rules of the Board and the Special Counsel shall not have any right of judicial review in connection with such intervention.

(j)(1) The Special Counsel may appoint the legal, administrative, and support personnel necessary to perform the functions of the Special Counsel.”

OSC has also filed third party or amicus briefs (“friend of the court”) in other courts, all the way up to the Supreme Court.

How does this help?

There will never be perfection in whistleblower protection.

No one could claim that the US is an exemplar of whistleblower protection.

There are many US whistleblowers who would say that the systems in place have failed them.

But the OSC can also fairly claim some wins, which is more than can be said for current UK regulators and the toothless NHS National Guardian’s Office. In fiscal year 2017, OSC helped 323 federal employees prove their cases of mistreatment, of which three quarters were about whistleblower reprisal. More cases should probably have been proven, and the OSC model could be improved.

The vital process of learning and refining needs to continue in the design of whistleblowing agencies and systems, whilst maintaining healthy scepticism, robustly testing any progress and keeping in reserve unofficial channels whenever official channels prove totally unfit.

In the UK, we currently have almost zero protections and useless infrastructure. We need effective law to compel regulatory action in response to whistleblowing and correction of harm and risk. We also need law to establish a specialist regulator that has the expertise and powers to ensure compliance by other regulators with good practice standards of whistleblowing governance.

This is not an impossible aim nor should it be discounted based on the experience of poor regulation to date. It is a question of political will and of carefully and painstakingly understanding how failures have occurred, learning from other jurisdictions and addressing the gaps.

What can be done?

A formal review of the law is essential to trigger the necessary public discourse to find solutions and take all views into consideration.

The government will not agree to a formal law review without pressure.

In order to help apply this pressure, please sign the petition to reform UK whistleblowing law and establish a properly independent whistleblowing agency:

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

This is more background information about the petition and a new Public Interest Disclosures (Protection) Bill by Dr Philippa Whitford MP and supporting MPs:

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

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Breach of confidentiality by CQC and complicity in referring a whistleblower to the Disclosure and Barring Service

Call for evidence: Regulators’ Regulator welcomes evidence from health and social care staff who have been vexatiously referred to professional regulators

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist

 

Please sign the petition for reform of UK whistleblowing law

Replace UK whistleblowing law, and protect whistleblowers and the public

 

Many employers will set out to deliberately hurt whistleblowers in any way they can, if they believe they pose a threat to an organisation’s senior leaders.

In health and social care, a classic weapon is to make trumped up Fitness to Practice referrals to professional regulators. This is a nuclear option as it is a threat to long term career and livelihood. For often conscientious whistleblowers, the stigma and worry causes immense distress. A malicious referral to a professional regulator is especially ‘good value’ from an employer’s point of view as it incurs little cost compared to litigation but inflicts a very harmful process that can be protracted, sometimes taking years. This eats people up and can contribute to serious mental and physical ill health.

Indeed, it is not just whistleblowers who can be harmed this way but any staff who fall foul of employers for any reason.

There is little evidence that professional regulators take a systematic approach to managing abuse by employers of the Fitness To Practice system. Abuse of process recurs repeatedly and there is no sign of deterrence by the regulators. A recent FOI response by the Health and Care Professionals Council (HCPC) showed that the regulator did not even track or analyse cases of potential abuse by employers. And yet I am aware of malicious referrals by employers on whistleblowers to the HCPC.

Following the revelation of this negligence from the HCPC, I asked the professional regulators’ regulator, the Professional Standards Authority (PSA) what it expected professional regulators to have in place.

The PSA has given a considered response which acknowledges the difficulty that professional regulators may have in establishing whether referrals are vexatious, but it nevertheless acknowledges that such referrals are a grave matter of the “utmost seriousness”:

“…we would consider any instance when a regulator establishes that a referral by an employer was malicious to be of the utmost seriousness. We would expect the regulator to fulfil its duty to share information with the appropriate systems regulator on each occasion, for example in England with the CQC. They should also consider if the individuals concerned with the referral should be subject to its own fitness to practise process or that of another regulator and make any necessary referral in order that any malicious behaviour is fully investigated.”

Importantly, the PSA has indicated that it would welcome evidence of abuses in order to support its oversight of the professional regulators:

I will share your concerns as feedback to my colleagues within the performance review team and this will give us the opportunity to consider the approach taken across the regulators. We would welcome seeing evidence from any party at any time about employers using the fitness to practise process to victimise staff. The regulators’ handling of such cases would certainly be of interest to us for our reviews of their performance. I also note your reference to the GMC’s procedural safeguards to protect whistleblowers. How well this is working is something we may consider through our performance review.”

If you have been the victim of a vexatious and or self-evidently untruthful referral to your  professional regulator, or are aware of any such referrals, please consider sharing your evidence with the PSA to support its work and to help build the case for change.

HOW TO CONTACT THE PSA:

Professional Standards Authority
157 -197 Buckingham Palace Road
London
SW1W 9SP

Telephone: 020 7389 8030
Fax: 020 7389 8040
Email: info@professionalstandards.org.uk

 

With regard to an assertion  by the PSA that professional regulators cannot take action unless a hostile referral can be proven to be malicious, I have suggested that the least that can be done is that a record is kept of referrals to regulators that result in no further action, and that employers are given feedback on their overall performance. I have suggested that such employers should be reviewed if they do not improve. I have also asked that data on outcomes of referral by specific employers should be tracked and available. If an organisation has a higher than average proportion of referrals that result in no further action, this fact should be public and transparently available to registrants.

The correspondence with the PSA is provided below in the appendix.

Better UK whistleblowing law would also help stop laxity by regulators in managing reprisal.

 

Please sign the petition for reform of UK whistleblowing law:

Replace UK whistleblowing law, and protect whistleblowers and the public

 

 

APPENDIX

CORRESPONDENCE WITH PROFESSIONAL STANDARDS AUTHORITY ON ROGUE EMPLOYERS

From: minh alexander <REDACTED>

Subject: Identification and tracking of rogue employers who make vexatious, malicious and or dishonest referrals to professional regulators

Date: 2 September 2020 at 11:39:13 BST

To: David Martin <REDACTED>

Cc: Alan Clamp <REDACTED.

 

BY EMAIL

David Martin

Concerns and Appointments Officer

Professional Standards Authority

 

2 September 2020

Dear David,

Identification and tracking of rogue employers who make vexatious, malicious and or dishonest referrals to professional regulators

Many thanks for your helpful reply, and for welcoming any evidence from health and care professionals who have been subject to abusive referrals for the purposes of victimisation.

I write with respect to one point arising.

I understand your arguments that proving maliciousness is hard:

“We can also understand if regulators were cautious about definitively labelling referrals/referrers as malicious as it is not always easy to determine whether a referral has been made in good or bad faith. Regulators would also not wish to place barriers to concerns being raised. Moreover, establishing whether a referral is malicious is not the regulator’s main function when carrying out their duty to investigate concerns about fitness to practise. If they find there is no case to answer about a registrant their investigation will cease and while they may have doubts about the referral, the reasons for it and even communicate these doubts to the referrer, this may stop short of proof. The regulators have no remit to pursue such concerns further.”

However, I do think more could be done by professional regulators on a systemic level .

If regulators tracked referral outcomes by referring employer, that would show variation in outcomes. I think the least that could be done is for professional regulators to feedback to employers who may be outliers, and question them about their governance. Arguably, persistent outliers should be subject to formal review. Indeed, I thought that was partly the role of local liaison officers who work with employers to reduce the number of unwarranted referrals.

I accept that you do not wish to discourage employers from raising concerns. However, a balance is needed in not allowing so many unwarranted referrals that frontline staff work in an atmosphere of intimidation, which itself prevents just culture and the raising of concerns. I am aware of so many frontline staff who have described the highly traumatic experience of being referred without just cause.

If the PSA is not already aware of it, even when NHS employers cannot make something stick on an employee, they will sometimes rid themselves of unwanted staff through a loophole known as SOSR:

The Dismissal of over Ten Thousand NHS Staff via ‘Some Other Substantial Reason

Some NHS organisations will go as far victimising those with a duty to be independent, such as Freedom To Speak Up Guardians and investigators, if they do not dance to an employer’s tune.

I think it is important that data on the outcomes of Fitness to Practice referrals by employing organisation should be published and transparent to registrants, especially those who have the misfortune of being referred without good cause.

Would the PSA help ensure that such data is available to frontline staff?

At present, I am aware that some employers claim not to even hold collated data on the outcomes of their referrals. If that is true, they cannot be reflecting much about their practices or trying to improve.

With best wishes,

Minh

Dr Minh Alexander

Cc Alan Clamp

 

From: David Martin <REDACTED.

Subject: RE: Professional Standards Authority

Date: 2 September 2020 at 09:59:29 BST

To: Minh Alexander <REDACTED>

 

Dear Dr Alexander

Thank you again for your email to Alan Clamp, Chief Executive of the Professional Standards Authority (the Authority).

You wrote to raise your concerns about whether professional regulators are doing enough to deter employers from using the fitness to practise process to make malicious, vexatious or dishonest referrals. In particular you were concerned when such referrals are made to silence whistleblowers. You were further concerned following the response of the Health and Care Professions Council (the HCPC) to your FOI request. In this request you asked if the HCPC had a policy for dealing with vexatious referrals from employers and was able to track how many such referrals it received. The HCPC informed you that it did not have a policy and could not tell you how many referrals of this type it received.

You asked the Authority what we expect regulators to have in place to manage employers who make malicious referrals.

We acknowledge it is important that regulators take into account contextual factors when considering concerns raised about registrants, including the status of a registrant as a whistleblower. Whistleblowers play a vital role in protecting the public from harm and should themselves be protected from the effects of such retaliatory actions.

We also recognise that regulators receiving referrals may have a difficult task ensuring that they act at all times in line with their overarching duty of public protection. That duty requires they must thoroughly investigate any issues of concern brought to them, including those about whistleblowers. To do so with due fairness requires them to recognise those contextual factors, in particular the status of a whistleblower.

We can also understand if regulators were cautious about definitively labelling referrals/referrers as malicious as it is not always easy to determine whether a referral has been made in good or bad faith. Regulators would also not wish to place barriers to concerns being raised. Moreover, establishing whether a referral is malicious is not the regulator’s main function when carrying out their duty to investigate concerns about fitness to practise. If they find there is no case to answer about a registrant their investigation will cease and while they may have doubts about the referral, the reasons for it and even communicate these doubts to the referrer, this may stop short of proof. The regulators have no remit to pursue such concerns further.

Nevertheless, we would consider any instance when a regulator establishes that a referral by an employer was malicious to be of the utmost seriousness. We would expect the regulator to fulfil its duty to share information with the appropriate systems regulator on each occasion, for example in England with the CQC. They should also consider if the individuals concerned with the referral should be subject to its own fitness to practise process or that of another regulator and make any necessary referral in order that any malicious behaviour is fully investigated.

Our focus is also on how well the regulators fulfil their role to protect the public. In doing so we expect regulators to carry out their own independent consideration of the material referred to them. In the past we have been critical when we considered regulators were relying too much on employers’ own investigations. I should say this has also been in circumstances where the evidence provided by the employer has been in favour of its registrants who have concerns raised about them by other parties.

I will share your concerns as feedback to my colleagues within the performance review team and this will give us the opportunity to consider the approach taken across the regulators. We would welcome seeing evidence from any party at any time about employers using the fitness to practise process to victimise staff. The regulators’ handling of such cases would certainly be of interest to us for our reviews of their performance. I also note your reference to the GMC’s procedural safeguards to protect whistleblowers. How well this is working is something we may consider through our performance review.

I hope this reply is helpful, but please do not hesitate to let me know if you would like any further information about our role and approach.

Yours sincerely

David Martin

Concerns and Appointments Officer


Professional Standards Authority

157-197 Buckingham Palace Road

London SW1W 9SP

www.professionalstandards.org.uk

Switchboard: 020 7389 8030
Fax: 020 7389 8040

For information regarding the Authority’s privacy policies please see our privacy notice here

https://www.professionalstandards.org.uk/docs/default-source/publications/privacy-notice.pdf?sfvrsn=ee1f7220_2

 

From: David Martin
Sent: 28 August 2020 17:14
To: Minh Alexander <REDACTED>
Subject: Professional Standards Authority

Dear Dr Alexander

Thank you for your email to Alan Clamp, Chief Executive of the Professional Standards Authority, concerning employers who make malicious referrals of whistleblowers to the professional regulators.

Alan has asked me to reply on his behalf and I will write with our full response early next week.

Yours sincerely

David Martin

Concerns and Appointments OfficerProfessional Standards Authority

157-197 Buckingham Palace Road

London SW1W 9SP

www.professionalstandards.org.uk

Switchboard: 020 7389 8030
Fax: 020 7389 8040

For information regarding the Authority’s privacy policies please see our privacy notice here

https://www.professionalstandards.org.uk/docs/default-source/publications/privacy-notice.pdf?sfvrsn=ee1f7220_2

All reasonable precautions have been taken to ensure that this e-mail is virus free. As we accept no responsibility for loss or damage arising from the use of this e-mail or attachments, we recommend that you subject these to your own virus checking procedures prior to use.

 

LETTER 21 AUGUST 2020:

BY EMAIL

Alan Clamp

Professional Standards Authority

21 August 2020

Dear Alan,

Identification and tracking of rogue employers who make vexatious, malicious and or dishonest referrals to professional regulators

I previously exchanged correspondence with your predecessor Harry Cayton after Sir Antony Hooper reported on his review for the GMC. This review was on how to fairly treat and better Safeguard whistleblowers who may be unjustly ignored, referred or have their re-validation threatened by employers as a negotiating tool and or punishment:

The handling by the General Medical Council of cases involving whistleblowers. Report by the Right Honourable Sir Anthony Hooper to the General Medical Council presented on the 19th March 2015

As I am sure you know, the GMC has now introduced some procedural safeguards to make referrers – senior doctors – declare whether the doctor being referred to the GMC is a whistleblower.

I am uncertain of how effectively the GMC is using its new procedures and the intelligence derived from these procedures.

I am certainly concerned that the GMC remains too remote/ passive and not proactive enough in responding to complaints about whistleblower victimisation by senior registrants such as Medical Directors.

I now write on a broad issue of whether professional regulators are doing enough to deter bad employers from abusing process by making malicious, vexatious and or dishonest referrals.

If registrants are scrutinised, it only seems fair to ensure the integrity of the processes of scrutiny, especially given the great power imbalance between employers and workers.

I was very concerned to receive an FOI response from the Health and Care Professions Council (HCPC) reference FR06782, today, which indicated:

Question 4
We do not collate and track data on vexatious, malicious and/or dishonest referrals by employers.

Question 5
We do not have a policy or equivalent for handling employer referrals which we find are vexatious, malicious and/or dishonest.

Question 6
To determine if the HCPC had ever taken action against registrants who have made vexatious, malicious or dishonest referrals would require us to manually review each fitness to practise case. This would exceed the appropriate cost limit under Section 12 of the FOIA, that being £450.”

I made the above FOI enquiry partly because I am aware that whistleblowers have been maliciously referred to the HCPC.

I cannot see from the above response how the HCPC could hope to identify and manage rogue employers who repeatedly bully and abuse power.

If there is no system in place whatsoever to spot, sanction and deter serious abuse of professional registration mechanisms by employers, that seems in effect to amount to carte blanche for arbitrary employer behaviour and misconduct.

Any injustice and bullying is toxic to safety culture, but it is particularly serious when such behaviour is tolerated against whistleblowers.

I wonder if the PSA could advise on what it expects to be in place by professional regulators to manage rogue employers and their toxic effect on just culture and safety culture.

Many thanks and best wishes,

Minh

Dr Minh Alexander

NHS whistleblower and former consultant psychiatrist

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Shadows

 

 

 

 

 

 

 

Think whistleblowing in the NHS is confidential? Think again

Please sign and share:

Petition to replace weak UK whistleblowing law to protect whistleblowers and the public

 

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 24 August 2020

 Summary: NHS whistleblowers’ confidential case files, kept by NHS trust Freedom To Speak Up Guardians are being stored on insecure IT systems, an investigation by Computer Weekly has concluded. I am aware of evidence of NHS managers’ unauthorised access to such files and Computer Weekly gives an example. Some NHS staff are placing themselves at serious risk by whistleblowing when their confidentiality is not guaranteed, or may be actively undermined with hostile intent. Freedom To Speak Up Guardians may be vulnerable as whistleblowers in their own right, as part of their role in pressing organisations to act on poor whistleblowing governance. They should be aware that their confidential files may not be secure, and that the advice they give to whistleblowers may lead to their own victimisation by employers. The National Guardian should do much more to prevent abuses by employers, but in its real role as a political firewall, it is very unlikely that it will genuinely protect whistleblowers and Freedom To Speak Up Guardians. In fact, the National Guardian herself breached the confidentiality of a doctor who sought her help, and whose concerns were subsequently vindicated by external review. NHS regulators have also been known to breach whistleblower confidentiality.

NHS whistleblowers need to weigh all the risks very carefully, and consider if they should make direct disclosures to the media on an unnamed basis, to avoid reprisal and cover ups of their concerns and consequent risks to the public.

UK whistleblowing urgently needs to be reformed to put an end to this unsafe mess.

 

After learning of instances of breached NHS whistleblower confidentiality, including unauthorised access by senior managers to whistleblowers’ digital files kept by local NHS trust Freedom To Speak Up Guardians, Karl Flinders, a journalist at Computer Weekly has investigated.

As a specialist IT journalist, Karl Flinders has  looked into the matter and approached the National Freedom To Speak Up Guardian’s Office, NHS Improvement and relevant tech insiders.

He has concluded that highly sensitive whistleblower personal data is being held insecurely by NHS organisations.

This is his report on the issues:

NHS whistleblowers’ anonymity at mercy of inadequate trust IT policies and processes

His report covers the case of a former trust Freedom To Speak Up Guardian who shockingly discovered that their confidential files on whistleblowers had been improperly accessed by trust management: a senior manager under investigation very improperly looked at confidential whistleblowing files about herself.

Deplorably, the National Guardian’s Office is not proactive in ensuring that employers adhere to the standards that it issues, including standards on whistleblower confidentiality.

The NHS already has a record of personal data breaches related to unauthorised access by its staff.

Big Brother Watch found that these were the worst NHS trusts for all personal data breaches 2011 to 2014:

Screenshot 2020-08-24 at 12.22.50

All this has massive implications and it only throws more serious doubt on the weak internal NHS whistleblowing mechanisms, the misnamed Freedom To Speak Up mechanism,  that the government wants to palm off onto NHS workers.

Several whistleblowers had already complained to me about breach of confidentiality by the National Guardian’s Office including by the National Guardian herself.

Bullying and harassment at Harrogate and District NHS Foundation Trust & a concern about the National Freedom To Speak Up Guardian

There have also been cases of breach of confidentiality by regulators:

Breach of confidentiality by CQC and complicity in referring a whistleblower to the Disclosure and Barring Service

Handshake

Whistleblowers all too often learn that one of the first things that employers do when they put a whistleblower on ‘gardening leave’ or suspend them, is that employers:

  1. Shut off the individual’s access to email;
  2. Scour the whistleblower’s emails for any information about their whistleblowing, to identify any allies who need to be dealt with, or information which can be abused for manufacturing trumped up charges

In the case of Addenbrookes neuropsychologist Narinder Kapur, who raised safe staffing issues, the employing NHS trust covertly cloned his computer for interrogation:

“Hospital bosses ordered search of whistleblowing doctor’s computer”

The tribunal at Bury St Edmunds, Suffolk, heard that Addenbrooke’s management ordered his computer hard drives be “cloned” in an investigation carried out “behind Dr Kapur’s back”.”

It is therefore horrifying but not surprising to learn that some managers will snoop electronically on whistleblowers’ case files.

Such snooping poses all sorts of dangers to both whistleblowers and the public, increasing the chances of victimisation, cover ups and corrupt destruction of evidence.

During the COVID-19 pandemic the levels of suppression and reprisal against staff have been so bad, and the government has behaved in such a bullying and corrupt way, I have felt concerned that conventional routes of whistling would be too unsafe for both staff and the public.

The concerns about confidentiality, possible management snooping and insecure IT add to this.

Each whistleblower’s circumstances, preferences and personal risk assessment are unique. The decision to whistleblow externally is not taken lightly as the legal tests for doing so are more exacting, especially if the disclosures are made to non-prescribed bodies. They are summarised here.

But all told, in my view the safest looking route of disclosure for whistleblowers at present is to disclose on an unnamed basis directly to the media. If you decide to do this after weighing everything up, it is also important to choose your media outlet carefully. Research any biases and look for objectivity and professionalism.

Lastly, this further, major scandal brings us back to the desperate need for reform of UK whistleblowing law, to prevent such grave abuses.

Please sign and share the petition for law reform if you have not done so already.

With thanks and best wishes.

Please sign and share:

Petition to replace weak UK whistleblowing law to protect whistleblowers and the public

 

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Coronavirus: CQC, care workers’ Safeguarding concerns and COVID-19 deaths of vulnerable people receiving domiciliary care services

 

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Petition to replace weak UK whistleblowing law to protect whistleblowers and the public

 

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 25 August 2020

The CQC has shamed itself deeply once more in its failure to raise the alarm quickly enough on COVID-19 deaths of highly vulnerable people in residential care or who receive care in their own homes from domiciliary care services.

CQC is by law notified of the deaths of all users receiving care from regulated providers:

CQC Regulation 16: Notification of death of service user

CQC should have proactively anticipated the risks posed by the pandemic to vulnerable people and raised the alarm about any failures to protect them from COVID-19.

CQC certainly received a much elevated number of Safeguarding concerns from care workers during the pandemic  (2,043 Safeguarding referrals by care workers to the CQC 1 March -21 May 2020 compared to 1,230 in the prior year period).

Instead, it took CQC months after the World Health Organisation warnings of COVID-19 threat to even ask care home and domiciliary care providers to report whether COVID-19 was a factor in service user deaths – the regulator only did so on 9 April 2020, and the reporting obligation has only been in force since 10 April 2020.

There has been a great deal of media coverage on the COVID-19 devastation in our care homes resulting from gross UK government negligence, its much damned herd immunity strategy, and its lies that it threw a protective ring around care homes.

There has been less coverage of the failure to protect domiciliary care service users, even though peripatetic care staff pose an obvious virus transmission risk.

I asked the CQC to provide statistics on COVID-19 deaths of people who receive care at home, and evidence that the CQC is actively tracking and learning from these events.

A delayed FOI response has been issued which reveals that as of 20 August 2020:

 

  • There have been 892 confirmed or suspected COVID-19 service user deaths

 

  • 474 domiciliary care providers had notified CQC of at least one confirmed or suspected COVID-19 death

 

  • Some care providers did not report any such deaths

 

  • One care provider reported 17 confirmed or suspected COVID-19 service user deaths, which is the highest number

 

Of great concern, the CQC has not produced actual written evidence of analysis of trends and lessons learned. It only says that it is working with ONS.

The regulator cannot or will not even say if any domiciliary care service users died or may have died of COVID-19 as a result transmission from care workers.

The FOI response is reproduced below in the appendix.

I will pass the information to parliament to feed into both scrutiny of the government’s response to the COVID-19 crisis and the CQC’s regular accountability hearings with the Health and Social Care Committee and the Public Accounts Committee.

The CQC is an example of UK regulatory capture and failure to properly champion the public interest, or importantly, to defend the rights of vulnerable people.

It continues to ignore and silence whistleblowers, including its own whistleblowers, with impunity partly because UK whistleblowing law is so weak.

Please sign the petition and share to call for law reform to make UK whistleblowing law fit for purpose and to serve the interests of the public and not the powerful.

Thank you

 

Please sign and share:

Petition to replace weak UK whistleblowing law to protect whistleblowers and the public

 

UPDATE 27 AUGUST 2020

The Healthcare Safety Investigation Branch has today published an intelligence report which reveals that it was informed of a case of a vulnerable service user being fatally infected with COVID-19 by domiciliary care workers who did not wear PPE during the pandemic:

National Intelligence Report Personal protective equipment (PPE): care workers delivering homecare during the Covid-19 response

Screenshot 2020-08-27 at 10.51.10

This raises very serious questions about CQC’s above claim in its FOI response that it held no data on transmission from domiciliary care workers to vulnerable clients.

HSIB and CQC have a memorandum of understanding which includes sharing risk and safeguarding information. It is very hard to believe that information was not shared on the above issues.

Screenshot 2020-08-27 at 10.52.17

However, if there was a failure to share information, that too would be very serious.

I will pursue more answers from HSIB and CQC.

 

 

APPENDIX

CQC FOI response

From: Information Access <REDACTED>

Subject: CQC IAT 2021 0126

Date: 25 August 2020 at 11:21:16 BST

To: Minh Alexander <REDACTED>

Dear Dr Alexander

Our Ref: CQC IAT 2021 0126

I write in response to your request under the Freedom of Information Act 2000 (FOIA) of 3 July 2020. I apologise again for the delay in this response.

You asked:

  1. What data does CQC hold on COVID-19 deaths of service users who receive domiciliary care services (home care)?

Does CQC collate such data on a database/ spreadsheet? If so, what data fields does CQC operate on this database/spreadsheet (column and row titles)?

Regulation 16 of the Care Quality Commission (Registration) Regulations 2009 requires that care providers must notify CQC of the death of a service user.

You can access the notification form on our website at:

www.cqc.org.uk/guidance-providers/notifications/death-person-using-service-%E2%80%93-notification-form

We are able to run reports from the information we receive in the notifications, however we don’t have a standing spreadsheet containing the information at any one time.  We would however be able to pull a report to collate the specific data on numbers of notifications that we required for a particular purpose.

Providers are only required under the regulation to submit a notification to CQC where:

  • the person died while a regulated activity was being provided
  • their death may have been a result of the regulated activity or how it was provided

Therefore CQC will not be notified of all deaths of people who use domiciliary care services.

2/ The total number of COVID-19 deaths of service users who receive domiciliary care services that have been notified to CQC since the start of the pandemic

Since 10 April 2020, providers submitting notifications under regulation 16 have been required to state whether the death was confirmed or suspected as being a result of coronavirus.

On 3 July, the ONS published data on deaths of recipients of domiciliary care in England. See section 8 of this report –

https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/articles/deathsinvolvingcovid19inthecaresectorenglandandwales/deathsoccurringupto12june2020andregisteredupto20june2020provisional#deaths-of-recipients-of-domiciliary-care-in-england

This report is based upon regulation 16 notifications received by CQC between 10 April and 19 June.  As of that date, 819 deaths of people who use domiciliary care service had been reported to CQC as being confirmed or suspected to have resulted from coronavirus.

Since that data was published, we have been reviewing how we register hospices which provide community services (to support people with end-of-life care in their own homes). This work is ongoing but three of these services are no longer reported as domiciliary care services in the figures provided in this response.

As of 20 August, 892 deaths of people who use domiciliary care services had been notified by providers to CQC as being confirmed or suspected to have resulted from coronavirus.

3/ The total number of domiciliary care providers who have reported COVID-19 deaths of service users to CQC since the start of the pandemic

As of 20 August, 474 domiciliary care providers had notified CQC of at least one death that they recorded as being either confirmed or suspected of resulting from coronavirus.

4/ The lowest and the highest number of COVID-19 deaths of service users notified to CQC by individual domiciliary care providers since the start of the pandemic (ie. the range in number of COVID-19 deaths reported by domiciliary care providers)

As of 20 August, the lowest number of notifications received from any individual domiciliary care services is 0.

308 providers had each notified CQC of a single death.

The highest number (other than for a hospice that provides community services) is 17. This figure relates to a provider that has a number of services (locations) in different areas. The highest number for a single service is 8.

The majority of deaths reported by domiciliary care services as being related to Covid-19 occurred in hospital.

5/ Has CQC reviewed the pattern of notified COVID-19 deaths of service users who receive domiciliary care?

If so, please share a copy of any related report and or findings

CQC has supported ONS in publication of the report linked above. We are monitoring notification data on an ongoing basis and are working with provider organisations and with other organisations to understand the data. CQC has not produced findings or a report.

6/ What evidence does CQC hold on actual or potential COVID-19 transmission by domiciliary care workers to vulnerable service users?

7/ Please advice in summary of the number of confirmed or suspected instances of transmission of COVID-19 by domicilary care staff to domiciliary care service users, of which CQC is aware

CQC does not hold the information requested in questions 6 and 7.

Kind regards

Information Access Team

Governance and Legal Services

Customer & Corporate Services Directorate

Care Quality Commission

 

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