After Grenfell: Home Office FOI disclosure on prison fire safety

I was amongst other things a whistleblower about very poor care and conditions for exquisitely vulnerable mentally disordered offenders in prisons.

My thoughts turned to the prison estate after the revelations that flammable cladding had been used across our UK social housing stock despite bans in the US, especially with increasing privatisation of our prison estate.

If our prisons have also been unsafely constructed due to de-regulation, austerity and the pursuit of profit, prisoners may obviously be at grave risk in the event of fire. The security restrictions make evacuation of prisons all the more difficult in the event of fires.

I made enquiries to the relevant authorities to find out more.

An FOI to HM Inspector of Prisons led to claims that there were very few whistleblowing disclosures by prison staff to the inspectorate and that there were no recent self inflicted deaths from fire setting. However, HMIP also indicated it did not track whistleblowing disclosures properly because it did not keep a database:

HMIP FOI response Whistleblowing disclosures to HMIP_Dr Minh Alexander

An FOI enquiry to the Home Office’s Crown Premises Fire Inspection Group has revealed that eleven enforcement notices relating to fire safety have been issued to prisons:

Home Office FOI disclosure Prison Fire Safety 21 July 2017 44320 response-3

Of immense concern, the Home Office has failed to comply with its legal duties under FOIA by simply ignoring three key questions in its response:

“6) Does the Crown Premises Fire Inspection Group hold central information on the proportion of the crown prison estate (in terms of the number of establishments) that is fully fitted with sprinkler systems? If so, please advise how many prison establishments are fully fitted with sprinkler systems.

7) Does the Crown Premises Fire Inspection Group hold central information on the proportion of the crown prison estate (in terms of the number of establishments) that is fitted with flammable cladding? If so, please advise how many prison establishments are fitted with flammable cladding.

8) Does the Crown Premises Fire Inspection Group hold central information on the proportion of the crown prison estate (in terms of the number of establishments) that is fully fitted with smoke alarms? If so, please advise how many prison establishments are fully fitted with smoke alarms.”

A question arises of why the Home Office should avoid answering these questions in this manner, which does not comply with the requirements of FOIA.

I have challenged the Home Office’s FOI response.

I will also be raising a concern with the Health and Safety Executive and the Justice Committee.

CORRECTION 17.30 21.07.2017 Apologies to the Home Office which did provide an appropriate denial in its FOI response that it did not hold data for questions 6 to 8, which I missed.

RELATED ITEMS

Letter to Justice Committee re prison fire safety 22 July 2017

Further FOI disclosure by the Home Office 9 August 2017: 

Home Office Prison Fire Safety FOI 9 August 2017 44729 final response

 

 

 

 

 

Letter to the Health Service Journal’s Patient Safety Correspondent

BY EMAIL

Shaun Lintern

Patient Safety Correspondent

Health Service Journal

10 July 2017

 

Dear Shaun,

Next year’s HSJ patient safety conference and NHS whistleblowing policy

At your suggestion, I write with suggestions on NHS whistleblowing policy for next year’s HSJ patient safety conference.

Firstly though, I will address two assumptions that arose during our recent twitter exchange:

  1. You seemed to suggest that the criticisms of this year’s choice of speakers and lack of balance regarding whistleblowing matters stemmed from critics not being included. 1

I should clarify that I was very kindly offered a ticket but decided not to go, particularly after you informed me that the whistleblowing session had been cancelled. 2

  1. You seemed to imply that whistleblowers might attend in order to air grievances. 3

Whilst the DH and its organs frequently spin this line to discredit whistleblowers, it is in fact faulty policy (including policy on enforcement) that is at issue.

I think we all now know the typical NHS whistleblower 4 story by heart, and there is little use in endless reiteration. What is needed is action on the underlying failures of governance and policy.

As many whistleblowers and other interested parties see it, these are some of the key policy issues:

  1. The current UK whistleblowing law, the Public Interest Disclosure Act (PIDA), pays little attention to whistleblowers’ disclosures and does not compel employers to investigate them. 5  In a safety critical sector like the NHS, this puts lives at risk.

 

  1. NHS policy does not provide any failsafe for investigation of individual whistleblowers’ concerns where employers fail to conduct or commission local investigations at all, or properly. 5

Robert Francis emphasised in his report of the Freedom To Speak Up Review that this arrangement should continue. 6

 

  1. NHS regulators rarely use their discretionary powers to conduct thematic reviews or wider investigations even when there are clusters of whistleblowers. 7

 

  1. UK whistleblowing law provides only a post detriment right to claim compensation. What is needed is pre-detriment protection from the point of disclosure. There are numerous other weaknesses in UK whistleblowing law that were recently summarised by a 2016 review. 8

 

  1. There is no single UK agency that protects whistleblowers. There are only a huge number of Prescribed Persons under PIDA, who have no defined responsibilities under the Act other than to receive disclosures 9, and since this April, to publish relatively superficial data about this. 10

Many of these bodies are under the line management of government departments and there is a conflict of interest if whistleblowers raise concerns that relate to failure of government policy or performance, such as the consequences of the current cuts in the NHS.

In the NHS, whistleblowers frequently perceive that regulators and oversight bodies close ranks to suppress their concerns.

There is even evidence that bodies such as the CQC breach whistleblowers’ confidentiality to their employers 11 and are in some cases complicit in reprisal. 12 In one case this happened to a whistleblower after he criticised the CQC’s failures, so some very serious questions arise from that case.  13

 

  1. Whistleblowers rarely succeed in the courts. They may be priced out of court or beaten by inequality of arms. By the point at which litigation commences, there will usually have been a serious failure of governance.

This is data on recent and current NHS Employment Tribunal litigation including whistleblowing claims:

https://minhalexander.com/2017/07/06/the-nhs-in-the-employment-tribunal-a-five-month-sample/

 

  1. Government policy should refocus away from litigation on employment issues, to resolving concerns, and preventing the detriment that leads to wasteful, destructive and often futile litigation. Resolving concerns is clearly of utmost importance in safety critical sectors.

Where litigation is unavoidable, the current inequality of arms needs to be addressed through the way in which future law is drafted. More of the litigation burden also needs to be lifted away from individuals, with some of it borne by the State, in recognition of the public service performed by whistleblowers.

 

  1. The National Freedom To Speak Up Guardian’s office has been established without any of the necessary powers to properly protect whistleblowers. 14 It has been further compromised by being made subordinate to the CQC. 15 It is additionally refusing to fully exercise the limited remit that it was given.

For example, the National Guardian’s office was intended to review cases and challenge others to remedy detriment to patients and whistleblowers 14 but it is refusing to intervene early enough. 16

There is now written confirmation from the National Guardian’s office that it will not review cases until all processes are concluded, including Employment Tribunal claims.  17

This means that whistleblowers will as usual be hung out to dry and that by the time the National Guardian may deign to review a case, the whistleblower will most likely be in poor health, broke, de-skilled, unemployable and blacklisted.

The National Guardian has been asked to clarify what exactly her refusal to intervene in a timely manner, potentially for years, means for unresolved patient safety risks that whistleblowers are concerned about.

Despite assurance given by Robert Francis in his report of the Freedom to Speak Review that the office would act “quickly” in the event of serious safety issues coming to light, 18 the National Guardian has not so far responded to this question.

The National Guardian has also declined to actively seek reform of whistleblowing law, although there is wide recognition that PIDA is inadequate. 18b

She also has no plans to seek statutory independence. 18c

 

  1. No effective deterrence is currently provided against whistleblower reprisal. In most cases, there are few consequences for the culprits. Where there are consequences, abusers are often recycled with the help of regulators. 19  The implementation of CQC Regulation 5 Fit and Proper Persons has largely been inadequate, with a number of very perverse decisions by the CQC which has chosen to merely rubber stamp bureaucratic processes, rather than to weigh the validity of trusts’ decision making. 20 21

Effective sanctions are needed, including criminal sanctions, and justice needs to be seen to be done to re-set culture. Indeed, this is the advice of the employment law and whistleblowing expert Professor Lewis who led the research team that supported the Freedom to Speak Up Review:

http://www.ier.org.uk/blog/what-should-political-parties-be-offering-whistleblowers-work#.WTGZimXu8WU.twitter

  As I am sure you will be aware from your coverage of the Mid Staffs disaster and the interviews that you have conducted with Robert Francis, Francis originally recommended criminal sanctions for whistleblower reprisal. However, he has since U-turned on this recommendation. 22

  1. The current Department of Health (DH) policy of Speak Up Guardians who are employed by trusts is not evidenced based. 23 Robert Francis, the CQC and National Guardian have all conceded that this is so. 23b  This breaches all good practice in healthcare and there is already evidence that some local Speak Up Guardians have failed current whistleblowers. There has been a haphazard approach to appointments and lack of reliable quality control. Indeed, one former Freedom To Speak Up Guardian was jailed. 24

 

11. These issues have been brought to the attention of the National Guardian, and although she has a stated a responsibility for maintaining the integrity of the Freedom To Speak Up Guardian network 25, she has indicated that it is the responsibility of trusts to make appropriate appointments. 26 This further illustrates the weakness of the model.

Whistleblowing to the press continues, even in trusts with Speak Up Guardians, confirming the redundancy of these posts. 23 27  Indeed, the chair of the latest trust in question has felt comfortable to make a public attack on the author of a whistleblowing letter:

“This person is part of the reason the trust is in special measures. This individual is disappointing and is clearly frustrated.”

 http://www.grimsbytelegraph.co.uk/news/grimsby-news/grimsby-hospital-trust-chair-launches-175112.amp

 The recommendations of the Freedom To Speak Up Review were essentially based on appealing to people’s better nature and the power of persuasion. This is clearly not enough, but it provides the DH with a convenient means of claiming that it has taken action whilst still allowing the suppression of whistleblowers.

In the last NHS Staff Survey only 70% of the staff who were surveyed reported that they felt secure to raise concerns about unsafe clinical care, and only 58% felt confident that their organisations would address their concerns. 28  This translates into hundreds of thousands of NHS staff who do not feel safe to raise concerns about unsafe clinical care.

And as the above data shows, NHS staff continue to make claims in the Employment Tribunal for unfair dismissal after whistleblowing.

I would suggest two core elements are needed to drive better culture:

1)    Substantive law reform

2)    A fit for purpose, properly resourced central body with powers that is independent of government departments, and that can support whistleblowers and enforce good governance. This body should have powers to direct investigations, conduct investigations itself and order remedy of detriment. A power to correct detriment should help reduce the need for damaging and costly litigation and there are international precedents for such a model. 29

I see that at this year’s patient safety conference on 5 and 6 July there were observations by Robert Francis that it is still not safe for staff to speak up, comments by the CQC that whistleblowers should be better treated, and a video appearance by the Secretary of State making claims that under his stewardship that the NHS is “enthusiastically open about issues”. 30

It would improve the quality of debate at next year’s conference if specific policy issues such as those that I have laid out above could be placed on the agenda, with an element of debate.

I think it is reasonable to ask Robert Francis, the DH and NHS regulators to account properly for their ongoing policy failures on whistleblowing on a level playing field, with presentation of opposing evidence and proper time allocated for discussion, and not just a few questions from the audience at the end of set pieces.

The relevant experts could be invited to take part. For example, experts and researchers in whistleblowing like Professor Lewis, experienced lawyers who have represented NHS whistleblowers and who are critics of weak NHS disciplinary procedures which are integral to whistleblower persecution such as John Hendy QC and of course, experts by experience.

If you are agreeable to more meaningful content and format, I am sure whistleblower campaigners would be happy to contribute.

The NHS is an important and high profile test bed for government policy on whistleblowing.

However, at present the superficial and wasteful NHS Freedom To Speak Up project is in effect functioning as a bottleneck to reform across the wider system.

I am sure that many public interest journalists and campaigners from other sectors would be much obliged if you would help to pick up this important baton.

Moreover, given the DH et al’s reluctance to genuinely act upon on evidence of ongoing failures, whistleblower campaigners will inevitably have more relevant evidence to share with you by the time of next year’s conference.

I look forward to your reply and an indication of whether any of these elements may be accepted for next year’s patient safety conference.

I copy this to Norman Lamb whom I understand is in touch with an NHS whistleblower who has reported both local and National Guardian failures.

I copy it to Keith Conradi regarding the unresolved systemic issue of unsafe NHS arrangements for investigating whistleblowers’ concerns.

I also copy it to the relevant parliamentary committee chairs as an update on the National Guardian’s refusal to review cases where whistleblowers make a claim to the Employment Tribunal.

With best wishes,

Minh

Dr Minh Alexander

Cc Norman Lamb

Keith Conradi, Chief Inspector Healthcare Safety Investigation Branch

Meg Hillier

Bernard Jenkin

Sarah Wollaston

 

RELATED ITEMS

1.National Guardian reprieves NHS Employers but condemns whistleblowers and patients

https://minhalexander.com/2017/05/18/national-guardian-reprieves-nhs-employers-but-condemns-whistleblowers-and-patients/

2. Breach of confidentiality by CQC and complicity in referring a whistleblower to the disclosure and barring service

https://minhalexander.com/2017/06/22/cqc-involved-in-a-whistleblowers-referral-to-the-disclosure-barring-service/

 

REFERENCES

 

1 https://twitter.com/ShaunLintern/status/883248831663681536

 

2 Your email to me of 14 June 2017:

 

“Hi,

The programme was in draft form when that was issued and still hasn’t quite been finalised but that session isn’t going ahead. It was only an intial idea.

The final programme will be published soon.

Shaun”

 

3 https://twitter.com/ShaunLintern/status/883250540343328768

 

4 21 Ways to skin a whistleblower. Private Eye 2011

http://medicalharm.org/wp-content/uploads/2011/12/21-Ways.pdf

 

5 Engineered failure to investigate NHS whistleblowers’ concerns

https://minhalexander.com/2017/04/08/engineered-failure-to-investigate-nhs-whistleblowers-concerns/

6 Robert Francis’ report of the Freedom To Speak Up Review, 11 February 2015

 

7.6.13 I want to emphasise that I am not proposing an office to take over the investigation of concerns. As I have already said, this needs to remain the responsibility of the local organisations.”

 

http://webarchive.nationalarchives.gov.uk/20150218150953/https://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf

 

 

7 The CQC and Monitor published a single joint investigation into a a whistleblowing cluster at the Christie. I am not aware of any other such investigation.

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/379803/Christie_Review.pdf

 

8 Protecting whistleblowers in the UK, Blueprint for free speech, May 2016

https://blueprintforfreespeech.net/wp-content/uploads/2016/05/Report-Protecting-Whistleblowers-In-The-UK.pdf

 

9 The Role of Prescribed Persons, National Audit Office, 27 February 2015

 

It is not clear what is expected from the prescribed persons community. The Department is responsible for the legislation that enables whistleblowers to claim compensation for detriment or dismissal. This legislation includes the list of prescribed persons. However, it does not specify the expectations of the role. For example, prescribed persons are not required to investigate every concern or to give feedback. The Department has recognised the need to act and has recently established a working group to develop best practice for prescribed persons.”

https://www.nao.org.uk/wp-content/uploads/2015/02/The-role-of-prescribed-persons.pdf

 

10 Prescribed Persons guidance, BEIS, April 2017

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/604935/whistleblowing-prescribed-persons-guidance.pdf

 

11 On 6 July 2017 the campaigning charity Compassion in Care disclosed that it knew of 47 whistleblower cases in which CQC has revealed whistleblowers’ identities to employers.

https://twitter.com/alexander_minh/status/882943648052248581

 

12 CQC breach of whistleblower confidentiality and complicity in referring a whistleblower to the Disclosure and Barring Service

https://minhalexander.com/2017/06/22/cqc-involved-in-a-whistleblowers-referral-to-the-disclosure-barring-service/

 

13 NHS is allowing babies to be maimed, Sunday Times 21 December 2014

https://minhalexander.files.wordpress.com/2016/10/cqc-sunday-times-re-shiban-ahmed-confidentiality-21-dec-2014.pdf

 

14 In his report of the Freedom to Speak Review, Robert Francis gave the following justification for not recommending a whistleblowing body with powers:

 

“74 I considered whether there is a case for establishing an independent body with powers to review staff concerns. I concluded that it would be wrong to take responsibility for dealing with concerns away from trusts, and would be more likely to lead to delays and additional layers of bureaucracy.”

 

http://webarchive.nationalarchives.gov.uk/20150218150953/https://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf

 

15 National Guardian Independence: The CQC denies some more….

https://minhalexander.com/2017/01/19/national-guardian-independence-the-cqc-denies-some-more/

 

14 The National Guardian’s job description indicates clearly that she should borrow powers from regulators and from NHS England:

 

“The National Guardian, whilst not having specific statutory powers, will have sufficient authority from CQC, Monitor, the NHS Trust Development Authority (NTDA) and NHS England to ensure recommendations are taken seriously and acted upon.”

 

https://minhalexander.files.wordpress.com/2016/10/cqc-national-guardian-specification-final-760085.pdf

 

These are some of Robert Francis’ key statements in his report of the Freedom to Speak Up Review about how the National Guardian should operate:

 

“78 The INO [National Guardian] will have discretion to consider how an existing case is being or has been handled, and to advise an organisation on any actions they should take to deal with the issues raised. The officer would need to operate in a timely, non-bureaucratic way. He/she would not take on the investigation of cases themselves, but would challenge or invite others to look again at cases and would need sufficient authority to ensure that any recommendations made were taken seriously and acted upon. The office should be more nimble and less bound by legalistic process than a statutory body, with wide discretion to decide whether it is appropriate to get involved in a particular case. In essence the INO [National Guardian] would fulfil, at a national level, a role similar to that played by Freedom to Speak Up Guardians locally and provide national leadership for these issues.”

 

“There should be an Independent National Officer resourced jointly by national systems regulators and oversight bodies and authorised by them to carry out the functions described in this report, namely:

 

  • review the handling of concerns raised by NHS workers, and/or the treatment of the person or people who spoke up where there is cause for believing that this has not been in accordance with good practice
  • advise NHS organisations to take appropriate action where they have failed to follow good practice, or advise the relevant systems regulator to make a direction to that effect
  • act as a support for Freedom to Speak Up Guardians
  • provide national leadership on issues relating to raising concerns by NHS workers
  • offer guidance on good practice about handling concerns
  • publish reports on the activities of this office”

 

“76 Rather than establish yet another new body, which would require legislation as well as new funding, I propose that an Independent National Officer (INO) should be jointly established and resourced by the CQC, Monitor, the NHS TDA and NHS England, to operate under the combined aegis of these bodies. The INO would be authorised by these bodies to:

 

  • review the handling of concerns raised by NHS workers where there is reason to believe that there has been failure to follow good practice, particularly failing to address dangers to patient safety or causing injustice to staff
  • where this has occurred, to advise the relevant NHS organisation 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
  • offer guidance on good practice
  • act as a support for Freedom to Speak Up Guardians
  • publish reports on common themes, developments and progress towards the creation of a safe and open culture in the NHS.”

 

“97 I believe that the Principles and Actions in this report should together make it safe for people to speak up, and provide redress if injustice does occur. The creation of Freedom to Speak Up Guardians and an Independent National Officer in particular are key components of this, to provide support and ensure the patient safety issue is always addressed.”

 

16 National Guardian reprieves NHS employers but condemns whistleblowers and patients

https://minhalexander.com/2017/05/18/national-guardian-reprieves-nhs-employers-but-condemns-whistleblowers-and-patients/

 

17 Email 4 July 2017 by the National Guardian’s Case Review manager to a current NHS whistleblower:

“…I can confirm that outstanding decisions relating to a particular case include those to be made by an employment tribunal…Therefore, as you have informed us that you have submitted your case for consideration by an employment tribunal, I can confirm that we are unable to currently consider your case for review.” 

 

18 Robert Francis’ report of the Freedom To Speak Up Review, 11 February 2015

 

“7.6.15 It is not my intention that the INO [National Guardian] should have binding powers. I do not see this role as strictly comparable to that of an Ombudsman. Instead they would advise relevant organisations on any actions that should be taken to deal with the issues raised. The officer would need to operate in a timely, non-bureaucratic fashion, with the capacity to act quickly in the event of serious safety issues coming to light. He or she would need to have sufficient authority to ensure that reviews and any recommendations coming from them are taken seriously and acted upon quickly.”

 

“97 I believe that the Principles and Actions in this report should together make it safe for people to speak up, and provide redress if injustice does occur. The creation of Freedom to Speak Up Guardians and an Independent National Officer in particular are key components of this, to provide support and ensure the patient safety issue is always addressed.”

 

18b Letter from Henrietta Hughes National Guardian 16 February 2017:

 

However, we are not currently seeking to campaign for changes to the law.”

 

Letter from National Guardian’s Head of Office 18 April 2017:

 

There are many potential barriers to speaking up and, working with Freedom to Speak Up Guardians in trusts and organisations within and around the NHS, we want to take action to bring a wide ranging and long lasting change. Law reform may be part of this but, in itself, we do not see that as providing an enduring solution.” 

 

18c Letter from Henrietta Hughes National Guardian 16 February 2017 in response to a suggestion that there should be a properly independent whistleblowing body:

 

“Whilst the National Guardian’s Office does not have powers overseen by parliament, its thinking and the recommendations it makes are independent from any other body or organisation.  Naturally, whilst preserving our independence, it is important that we do not work in isolation so partnership working with other organisations within and around the NHS is vital – this is an approach we would take whether we held statutory powers of our own or not.”

 

19 An example of recycling of managers who bullied staff and suppressed safety concerns is given by Rosie Cooper MP in this parliamentary debate on Liverpool Community Health NHS Trust of 13 July 2016:

 

https://hansard.parliament.uk/commons/2016-07-13/debates/1DEAEDE8-BA1C-4BF7-A16A-7CFB9831CFB2/CapsticksReportAndNHSWhistleblowing

 

20 CQC: A Chief Inspector doesn’t call

https://minhalexander.com/2017/01/27/cqc-a-chief-inspector-doesnt-call/

 

21 FPPR: CQC has lost all moral authority, but what will the National Guardian do?

https://minhalexander.com/2017/05/23/fppr-cqc-has-lost-all-moral-authority-but-what-will-the-national-guardian-do/

 

22 Sir Robert’s Flip Flops

https://minhalexander.com/2016/09/26/sir-roberts-flip-flops/

 

 

23 These are articles summarising the lack of evidence for Robert Francis’ Speak Up Guardian model:

 

https://minhalexander.com/2017/05/28/ssotp-robert-francis-exemplar-trust-has-feet-of-clay-and-jeremy-hunts-safety-claims-are-un-evidenced/

 

 

https://minhalexander.com/2016/09/24/critique-of-francis-model-of-trust-appointed-guardians/

 

23b

 

  1. Robert Francis reportedly conceded at a conference on 8 March 2017 that his model was not evidence based, in the form of a comment that Speak Up Guardians were “pioneers, there’s not another model like this in the world”:

 

https://twitter.com/WhistleUK/status/839502184370876416

 

  1. The National Guardian acknowledged at a meeting on 2 February 2017 that there was no evidence for the Speak Up Guardian model.

 

https://minhalexander.files.wordpress.com/2017/02/hh-meeting-records-23-01-2017-and-2-02-2017.pdf

 

  1. The CQC and National Guardian agreed to remove a misleading claim in an official CQC publication, the National Guardian’s final case process guidance, which held that all of Robert Francis’ “principles” from the Freedom to Speak Up Review were evidence based, after it was pointed out that the Speak Up Guardian model was not evidence based.

 

24 Freedom To Speak Up Guardian jailed

https://minhalexander.com/2017/03/07/freedom-to-speak-up-guardian-jailed/

 

25 National Guardian’s job description September 2015:

 

Key Responsibilities:

 

To provide support and advice for the Local Guardians: The National Guardian will support the Local Guardians, building a strong national network, for example through convening regular meetings and sharing learning. The National Guardian will have a key role in designing the consistent framework within which Local Guardians operate, and the training they receive. While Local Guardians will report to the Chief Executive of their organisation to ensure local ownership, the National Guardian should be there to provide professional support and advice.”

 

https://minhalexander.files.wordpress.com/2016/10/cqc-national-guardian-specification-final-760085.pdf

 

 

26 Email from National Guardian 9 March 2017:

 

… it is important that trusts appoint Freedom to Speak Up Guardians that meet the needs of their staff and the expectations that we have set out in the example job description for the role.  This is a new and important role and, although we are not involved in the recruitment process in providers we will monitor how it is being implemented.  Where we are aware of situations that indicate that a Freedom to Speak Up Guardian is not supporting staff in the way we would expect we will, in the first instance, raise this with the Chief Executive of the trust in question.”

 

27 In full the whistle-blower’s letter about Northern Lincolnshire and Goole NHS Trust, Grimbsy Telegraph 5 July 2017

 

http://www.grimsbytelegraph.co.uk/news/health/full-whistle-blowers-letter-northern-164740#ICID=sharebar_twitter

 

28 NHS Staff Survey 2016

 

Findings on unsafe clinical practice were similar, with 70% of staff feeling secure in raising any concerns they may have regarding clinical practice. Fifty-eight percent of staff had confidence that their organisation would address their concerns if they were raised.”

 

http://www.nhsstaffsurveys.com/Caches/Files/20170306_ST16_National%20Briefing_v6.0.pdf

 

29 US Office of Special Counsel https://osc.gov/

 

Netherlands House of the Whistleblower http://www.osborneclarke.com/insights/are-you-ready-for-the-new-dutch-house-for-whistleblowers-act/

 

 

30 Reported comments from the patient safety conference 5 July 2017:

 

Robert Francis:

 

“I’m not yet satisfied that staff in the NHS can speak up without fear”

 

https://twitter.com/JamesTitcombe/status/882261289107685376

 

Jeremy Hunt:

 

“The NHS has changed from sweeping problems under the carpet to being enthusiastically open about issues”

 

https://twitter.com/ShaunLintern/status/882550426326925312

 

Ted Baker:

 

“We don’t have a system where people can raise concerns and get them looked into without it becoming a big issue and a big concern all round”

 

“He [Ted Baker] said the “challenge” for the NHS and the CQC was to “create a culture” where staff feel confident in raising worries”

 

 

The NHS in the Employment Tribunal: A five month sample

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 6 July 2017

 

From time to time, NHS workforce crises make retention a fashionable issue, as it is now. 1

Because of the established relationship between staff well being and patient care and safety, 2 much lip service is given to NHS staff engagement.

Nevertheless, bullying rates remain high 3 and NHS whistleblowers continue to be sacked. Employers with deep pockets, filled with taxpayers’ money, outgun staff in the courts.

An additional hurdle for staff arose in July 2013 when Employment Tribunal (ET) fees were introduced. A recent analysis revealed that unfair dismissal claims have fallen by three quarters (73%) since ET fees were introduced. 4 

Complete data on ET claims against the NHS, and specifically NHS whistleblowing claims, has hitherto been hard to come by as government reports have not given specific stats on sector. They have only given bland data on numbers of cases, heads of claim, and disposal.

Numbers of whistleblowing claims in the last 10 years are as follows:

Screen Shot 2017-07-06 at 08.44.54 Source: Main tables, Tribunal and gender recognitions certificates certificates statistics quarterly: January to March 2017 and 2016 to 2017, https://www.gov.uk/government/statistics/tribunals-and-gender-recognitions-certificates-statistics-quarterly-january-to-march-2017-and-2016-to-2017

I asked ACAS if it kept records on NHS whistleblowing claims but it reported that it only kept data by the broad category of ‘Health and Social Care’:

acas-pida-claims-in-health-and-social-care-foi-2017-006-2-review-alexander

Alongside this, the whistleblowing organisation Public Concern at Work has not revealed exactly how many of its calls come from the NHS – and instead refers to the broader ‘Health’ sector. 5

A series of 100 NHS ET claims collated by employment lawyers previously suggested that unfair dismissal, Race and Disability claims were common, but this was a small group and the method of sampling was unclear.

http://www.xperthr.co.uk/blogs/employment-tribunal-watch/2012/05/employment-tribunal-cases-against-the-nhs-what-are-the-most-common-claims-faced-by-the-nhs/

Since February this year, the government has started publishing ET decisions.

This piece reports this data and is a snap shot of ET decisions about claims against NHS bodies, published between 8 February 2017 and 4 July 2017.

The ET decisions in question were made between 19 August 2016 and 20 June 2017. It is not clear what accounts for the variable gap between decisions being made and published.

This sample shows that not many claims succeed and questions arise about what happens to staff who withdraw their claims.

It also provides some information on recent and current whistleblowing claims.

Longer follow up will be needed for a more meaningful picture.

 

1.Broad summary

There were 610 Employment Tribunal decisions about the NHS published between 8 February and 4 July 2017, distributed as follows:

Screen Shot 2017-07-06 at 08.48.38

There is a small amount of missing data about some cases, but decisions were made by 84 judges and related to at least 673 claimants (671 individuals and 2 organisations). The claimants comprised at least 116 men and at least 543 women.

There were 459 Equal Pay claims, 424 of which were made by women.

Bar 12 cases, the Equal Pay claims all related to the Scottish and Welsh NHS.

Almost all of the Equal Pay claims were struck out because the Claimants made no active efforts to progress their claims, or withdrew them.

A single judge handled all the Scottish Equal Pay claims.

In March 2016, it was reported that 3,000 female Scottish NHS workers would benefit because an Equal Pay claim was settled. 6 It is possible that the above struck out and withdrawn claims are related to this earlier settlement.

 

2. NHS organisations subject to ET claims

A total of 128 NHS organisations were subject to ET claims.

Screen Shot 2017-07-08 at 05.51.29

This is the full supporting data including links to the ET decisions:

ET decisions on NHS bodies

This is summary data on the number of ET claims for each of the NHS bodies in question:

Number of ET claims per NHS body

These are the 10 English NHS bodies that received the highest number of ET claims:

Screen Shot 2017-07-06 at 08.54.39 
3. ET outcomes

The ET decisions related to cases that were at various stages, and not all cases had concluded. In addition to substantive judgments, there were case management decisions and decisions on miscellaneous matters,

Some cases were struck out at an early stage because of flawed claims, or because claimants failed to comply with the ET’s procedural requirements.

Few cases succeeded.

At least 182 claimants withdrew; it is not known how many of these settled.

Screen Shot 2017-07-06 at 08.56.22

4. Discrimination

147 NHS workers claimed one or more types of discrimination.

With the exception of 32 Welsh and 3 Scottish NHS workers, most of the claims of discrimination related to the English NHS.

Screen Shot 2017-07-06 at 08.57.38

5. Unfair dismissal

There were unfair dismissal claims by 103 workers (4 of which related to Welsh NHS bodies, and 3 to Scottish NHS bodies)

55 of the workers who claimed unfair dismissal contended that they had been subject to one or more forms of discrimination.

Disability discrimination and whistleblowing detriment were most commonly claimed:

Screen Shot 2017-07-06 at 08.58.56

6.Upheld claims

All the upheld claims related to the English NHS apart from one Welsh case.

22 ET decisions upheld claims by 32 individuals against 17 NHS trusts and 2 GP practices.

The ET found:

  • 11 instances of dismissal to be unfair and one dismissal wrongful.
  • 13 instances of failure to pay workers properly (wages, holiday pay, notice pay, redundancy pay and pension contributions)
  • 5 instances of breach of the Equal Pay Act
  • 2 instances of disability discrimination and one instance of harrassment

This is the list of the 22 NHS bodies which the ET found against:

22 Employment Tribunal decisions upholding or partly upholding claims against NHS bodies

It is important to stress that just because some workers lose their legal cases in the ET, this did not necessarily mean that they did not have a point.

For example, in case 2208141/2016 the ET was moved to point out that although it had no choice but to find in the employer’s favour, it thought that the employer ought to consider its moral duty.

A healthcare assistant who worked for Central and North West London for 14 years, booking shifts as a bank worker, found himself unable to get any further work with the trust after a psychiatric inpatient made serious allegations against him. The ET concluded that he had been very badly treated:

On 8 June 2016 and thereafter he has found himself blocked from working further shifts, after a patient on the ward, one of three for adults suffering acute stages of mental illness, complained to the police that a member of staff had taken him from the ward to a hotel, raped him, and then brought him back.

This is a serious charge. Nothing in the evidence today suggests that the claimant was responsible. The Claimant says he has never been interviewed about this allegation, either by the police or by the Respondent. It is not said that the Respondent has investigated this allegation. A recent exchange of emails between the police and the Respondent’s solicitors shows that the police are unaware of Claimant’s identity. Nevertheless, the Claimant remains blocked from booking further shifts and so unable to work for the Trust.

On the particular facts of this case, on the face of it the Claimant has suffered an injustice, because after long and constant hours of hard work for the Respondent, washing and feeding some very challenging patients, he has been left dangling and without work in the face of an allegation by a patient which, while very serious if true, appears not to have taken seriously by either the police or the Respondent. The apparent lack of investigation suggests that neither the police nor the Respondent think the allegation is any more than the fantasy of a mentally disturbed person; if the Respondent has not reached that conclusion, then it is astonishing that they have not investigated a serious breach of its duty to care for the safety of patients, whether looking at the conduct of individual staff members or at their systems of work.”

So, it would appear that this trust is either guilty of a gross Safeguarding failure, or more likely, a gross injustice to a member of staff who has been treated as a disposable commodity.

The claim of unfair dismissal failed in law because there was no employment relationship but the judge commented:

It is to be hoped that these Reasons will be read by members of the Trust Board, who may conclude that although the Claimant was not their employee, they owe a moral obligation to him, as a long serving, hard- working, and apparently blameless bank worker, regularly undertaking care of very difficult patients at unsocial hours, to check if there is in fact any reason why he cannot be permitted to book shifts and continue working for them. At the very least they should inform him of the progress of the investigation of the allegation leading to his blocking which they are to carry out under the bank worker’s Conduct and Capability procedure.”

 

7. Whistleblowing (public interest disclosure) claims

30 people claimed whistleblowing detriment against 29 English NHS bodies and 1 Welsh NHS body.

This is the list of cases and NHS bodies involved:

30 Employment Tribunal Decisions published between 8 February 2017 to 4 July 2017 on whistleblowing claims against NHS bodies

 Some Claimants were not allowed to proceed with the whole of their claim, and in three cases, the ET had ordered Claimants to pay a deposit in order to proceed, because it considered that they had little prospect of success.

10 individuals withdrew their claims.

10 cases were not upheld.

The ET concluded in some cases that claimants had made protected disclosures but that this was not the reason for dismissal.

For example, in case 2302743/2015 against Epsom and St Helier NHS Trust, the ET determined that some of the detriments were due to simple management incompetence and not whistleblower discrimation: lacklustre management…poor management and inertia”, which is scant comfort.

Two cases were partly upheld:

Case No. 1801050/2016 against Rotherham Doncaster and South Humber NHS Foundation Trust : the whistleblowing element failed, and the Claimant succeeded only in proving ordinary unfair dismissal.

Case No. 2300440/2016 against Sussex Community NHS Trust: the whistleblowing element failed, and the claimant only succeeded in proving unrelated unfair dismissal. The ET determined 75% contributory fault by the claimant and ordered that compensation be accordingly reduced.

In two cases, the Claimants were ordered to pay some of the costs to the Respondents.

In a high profile case 2407072/2015 in which a whistleblower had proven unfair dismissal but not succeeded on the whistleblowing element, provisional compensation of £24,441.87

had been agreed without prejudice to a pending appeal by the whistleblower. This is a very modest figure given the real long term losses for Aditya Agrawal, the consultant surgeon in question.

Whilst it is clear that some whistleblowing claims are better founded than others, this data adds to the impression that whistleblowers do not fare well in the current legal system.

There is also a risk that whistleblowers’ concerns are lost in the scrum.

The current legislation is such that the ET barely concerns itself with disclosures, save to establish if they are technically qualifying disclosures that allow whistleblowers to make a claim for post detriment compensation.

Even where the ET may cast aspersions on whistleblowers’ motives for claiming detriment, perhaps with justification, as long as it is established that a worker has made protected disclosures, regulators should take notice of the issues and their potential implication for patients.

NHS regulators and oversight bodies should track both the routine notifications of claims that they receive from the ET at the outset of whistleblowing cases (ET1 forms) and the outcome of cases. 

They should follow up on both the specific concerns raised by whistleblowers, and the governance issues arising from such cases.

At present there is no mechanism for NHS regulators to systematically track whistleblowing case outcomes, but there is no longer any excuse now that ET decisions are routinely published.

I have written to NHS Improvement and the other regulators and the National Guardian regarding this, and have asked for sight of any action plan.

There is an argument for regulatory monitoring of the outcome of ET claims in general, as a part of assessing whether or not NHS bodies are well governed and whether the workforce is decently treated.

Specifically, regulators should also look carefully at withdrawn claims and any related settlements, to see how many staff end up gagged.

Lastly, the much derided National Guardian’s Office has confirmed its refusal to review NHS whistleblower cases until Employment Tribunal claims are concluded.

Email 4 July 2017 by the National Guardian’s Case Review manager to a current NHS whistleblower:

“…I can confirm that outstanding decisions relating to a particular case include those to be made by an employment tribunal…Therefore, as you have informed us that you have submitted your case for consideration by an employment tribunal, I can confirm that we are unable to currently consider your case for review.” 

Obviously, this can drag things out for years.

So, the “nimble” office that Francis promised us would ensure confidence in speaking up by both preventing reprisal and quickly correcting detriment, proves to be nothing but a tailor’s dummy that stands meekly by whilst whistleblowers get a thorough thrashing.

This is not unexpected but very bad news for patient safety, as is the National Guardian’s refusal to actively pursue whistleblowing law reform, despite expert consensus that this is needed.

Robert Francis should revisit his recommendations given the gap between his promises and the predictably woeful delivery by the DH and its organs.

 

Robert Francis, report of the Freedom To Speak Up Review, 11 February 2015

“97 I believe that the Principles and Actions in this report should together make it safe for people to speak up, and provide redress if injustice does occur. The creation of Freedom to Speak Up Guardians and an Independent National Officer in particular are key components of this, to provide support and ensure the patient safety issue is always addressed.”

 

RELATED ITEMS

1. National Guardian reprieves employers but condemns whistleblowers and patients

https://minhalexander.com/2017/05/18/national-guardian-reprieves-nhs-employers-but-condemns-whistleblowers-and-patients/

2. East Lancashire NHS Trust: Triumph CQC style

https://minhalexander.com/2017/06/14/east-lancashire-hospitals-nhs-trust-triumph-cqc-style/

3. Protecting whistleblowers in the UK. A damning critique of current UK whistleblowing law by Blueprint for free speech, May 2016

https://blueprintforfreespeech.net/wp-content/uploads/2016/05/Report-Protecting-Whistleblowers-In-The-UK.pdf

 

delay-deny

 

REFERENCES

1 Securing a sustainable NHS workforce for the future, NHS Improvement 29 June 2017

https://improvement.nhs.uk/news-alerts/securing-sustainable-nhs-workforce-future/

 

2 Understanding staff wellbeing, its impact on patient experience and healthcare quality, Giuseppe Paparella, Picker Institute and Centre for Mental Health June 2015

http://www.picker.org/wp-content/uploads/2015/06/2015-06-10-StaffWellbeingBriefing.pdf

 

3 In 2016, 24.1% of NHS staff reported bullying and harassment from other staff in the previous twelve months

 

INSERT

 

http://www.nhsstaffsurveys.com/Caches/Files/20170306_ST16_National%20Briefing_v6.0.pdf

 

4 Discrimination allowed to “flourish unchecked” as employment tribunal claims fall by 9,000 a month, TUC, 2 November 2016

https://www.tuc.org.uk/equality-issues/industrial-issues/discrimination-work-allowed-%E2%80%9Cflourish-unchecked%E2%80%9D-employment

 

Unfair dismissal cases slump under tribunal fee system, study shows, Guardian 4 November 2016

 

https://www.theguardian.com/money/2016/nov/04/unfair-dismissal-cases-slump-under-tribunal-fee-system-study-shows

 

5 Time for change, Public Concern at Work, July 2016

http://www.pcaw.org.uk/content/6-campaigns/2-time-for-change-review/pcaw_5yr-review_final.pdf?1480418791

 

Inside Story, Public Concern at Work, May 2013

http://www.pcaw.org.uk/files/Whistleblowing%20%20the%20inside%20story%20FINAL.pdf

 

6 3000 female workers to benefit as NHS Scotland equal pay claims settled, Herald, 23 March 2016

http://www.heraldscotland.com/news/14378554.3_000_female_workers_to_benefit_as_NHS_Scotland_equal_pay_claims_settled/

 

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

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 22 June 2017

Summary: CQC has been repeatedly criticised for failing to detect serious care failure and for failing to take warnings seriously. This article reports an important example of serious CQC failure towards whistleblowers. The regulator seriously breached a whistleblower’s confidentiality to their employer. The CQC compounded this failure by complicity with reprisal in a later incident, by suggesting that another employer should refer the whistleblower to the Disclosure and Barring Service. Far from being an honest broker, there are serious questions about CQC’s role in causing detriment to whistleblowers.

Background

Earlier this week a report by Channel 4 Dispatches placed the troubled Care Quality Commission in the frame yet again, over care home abuses that it had failed to detect – or report. 1 2

The Channel 4 investigation took place on Crawfords Walk 3, a Bupa care home in Chester, and revealed shocking neglect, unkindness and abusive attitudes and behaviour by staff towards elderly patients, which clearly amounted to institutional abuse. Unacceptable practice was normalised and a very dysfunctional culture was evident.

During the programme, CQC inspections were criticised as not fit for purpose because the inspection process can be manipulated, for instance by over-staffing in preparation for inspections.

CQC has been repeatedly criticised since its inception for failures to detect serious care home failures and for not taking adequate action when it is made aware of failures. 4

CQC has also been criticised by campaigners for being too close to the care industry.

There is little evidence of learning by CQC, as evidenced by the stock responses it has issued about care scandals over the years. Unreliable assurances are given each time, and the same failings keep recurring:

CQC statements after undercover investigations of poor care

CQC receives disclosures from health and social care whistleblowers every day.

But by CQC’s own admissions via FOI, it often simply puts the most serious whistleblower disclosures in a drawer, as information noted for future inspection. Where CQC acts, it may simply make superficial enquiries to employers and seems easily satisfied with assurances that many whistleblowers know are false.5

In 2011 CQC came under immense pressure with the undercover media exposure of abuse at Winterbourne View, because it was shown that CQC failed to act on repeated whistleblower warnings. The Serious Case Review concluded frankly:

The Review confirms that the apparatus of oversight across sectors was unequal to the task of uncovering the fact and extent of abuses and crimes at the hospital.” 6

CQC has gone through the motions of ‘reform’ since then, and even hired a high profile whistleblower who gave it the seal of approval 7, which was gratifying for the CQC comms department but provided little challenge to CQC’s complacency.

In reality, little has changed. The stream of whistleblowers who complain about CQC failure is undiminished.

Whistleblowers continue to be sacked. Whilst writing this, I heard from a whistleblower who was sacked that same day.

In his 2015 report of the Freedom To Speak Up Review, Robert Francis made over-optimistic observations about CQC’s improved attitudes to whistleblowers. 8

However, he has started expressing disquiet again about CQC’s continuing failures in this area, including at the Board meeting on 20 June 2017.9

Media exposure of care failures has continued, with undercover investigations triggered by the regulator’s failure to listen to service users, families and whistleblowers.

CQC has also been exposed for dirty tricks against whistleblower campaigners.10

Despite all this, CQC is entrusted with stewardship of the National Guardian’s office, which is supposed to ensure good whistleblowing governance.

This speaks volumes about the government’s intentions towards whistleblowers.

 

CQC’s bias towards employers and role in causing detriment to whistleblowers

Two days ago, Helen Rochester a care home whistleblower attended CQC’s board meeting as a member of the public, to confront CQC about its failures towards whistleblowers, using her own case to illustrate the issues.

Rochester was asked to submit her questions to the CQC board in advance, and on the day, she found that a CQC press officer was present at the board meeting.

This is a transcript of the CQC board meeting section on 20 June 2017 where Rochester put her concerns to the board:

Helen Rochester CQC Board meeting transcript 20 June 2017

Rochester is 55 year old experienced former nurse, from an emergency care background, who has in recent years worked part time as a carer in Adult Social Care.

Rochester accuses the CQC of letting her down on two separate occasions, four years apart.

On the first occasion in 2013 she had resigned from a care home after three months, because of concerns about safety at the home, and she reported these concerns to CQC.

Rochester did not give CQC permission to reveal her identity to her former employer, but later received disclosure of documents which showed that the CQC inspector had discussed her whistleblowing case with the employer, and that her employer was hostile and sought to minimise the seriousness of her concerns.

There is also evidence that CQC and this employer discussed the approach to Rochester’s Employment Tribunal claim. This is not only highly irregular, but fascinating when contrasted with CQC’s standard stonewalling to whistleblowers, through claims that it cannot get involved in any employment matters whatsoever.

In addition, the relationship between her employer and the local Adult Safeguarding unit was questionable.

Not all the electronic records are available, but Rochester still has some hard copies and reports the following revealing correspondence from the care home to the local Adult Safeguarding unit:

Email 24 April 2013:

” Adrian from the CQC rang me yesterday and I got the impression Ms
Rochester was not very pleased that he had closed his file (along with
everyone else) goodness knows what she will attempt next but hopefully she
has exhausted every avenue now”

Email 3 May 2013:

“Just a quickie, as we thought Helen Rochester has not gone away
quietly………she is now taking us to an employment tribunal…….”

“After discussion with our lawyers I spoke with Adrian at the CQC today and
asked if it were possible to confirm that the referral HR made in relation
to MC was not taken to safeguarding but documented as an incident and that
no further action was being taken. He said he thought this may have to come
from you, also he is on holiday for a week. If it is possible to have a
written response (by email is fine) that would be very helpful as we have to
submit our formal response to the employment tribunal”

Rochester believes CQC allowed itself to be swayed by the employer’s allegations, and failed to take her seriously or act upon her concerns because of this.

Rochester was vindicated because CQC subsequently found failings in three areas which she had highlighted in her disclosures.

Initially, CQC rated the care home as fully compliant with care standards in May 2013 despite Rochester’s disclosures, but by April 2014, CQC rated the care home as non-compliant on three out of five care domains, with enforcement action on those domains. 11

By April 2015, the home was given ratings of ‘Inadequate’ across the whole board and was served with warning notices 12:

Screen Shot 2017-06-22 at 08.19.42

Also supporting Rochester’s concerns, a comment apparently left by a relative in 2014 on a petition by the charity Compassion in Care noted poor reporting culture at the care home:

Screen Shot 2017-06-22 at 02.37.10

The care home remains under the same ownership but has since changed its name.

Rochester complained that CQC took no action in response to her disclosures for nine months. She believes CQC re-inspected the care home in question only because it was forced to, due to receiving a referral from another regulator.

Rochester reports that she eventually received an apology from Gale Stirling CQC Head of Inspection, who came to her home and claimed that lessons had been learned and measures had been into place to ensure that CQC would not similarly fail other whistleblowers in future.

Rochester could hardly believe it when a similar chain of events took place in April this year. She worked for another care home for only four nights because she was so concerned at what she witnessed in terms of patient harm such as pressure sores, under-staffing, unsafe physical environment, lack of vital equipment needed for both residents’ and staff health and safety, unsafe medicines management, inadequately trained and unsupported staff and various instances of neglect and abuse. She also found that some staff were too frightened to report problems.

After only four night shifts in April, Rochester resigned with immediate effect, citing her concerns about the numerous safety risks, and she also made disclosures to the CQC about these matters.

To her dismay, she discovered that after she resigned, her employer claimed to CQC that it dismissed her for gross misconduct, which she disputed.

These matters are now subject to an Employment Tribunal claim (ET), and the ET has rejected the employer’s post hoc claim that it dismissed Rochester, and made a finding that Rochester resigned.

Of huge concern, Rochester reports that she discovered from a document disclosed by her latest employer that a CQC inspector seemed to accept the employer’s claims, and suggested to the care home manager that she might be under a duty to refer Rochester to the DBS, as a potential risk to vulnerable service users.

The CQC made this suggestion despite having been made aware beforehand that Rochester was a whistleblower.

As far as Rochester is aware, the CQC took no action to verify the care home’s counter allegations against her.

CQC certainly did not bother to discuss the issues with Rochester herself or allow her an opportunity to respond to the counter-allegations before it took the hugely damaging step of suggesting a DBS referral.

Her employer referred her to the DBS as CQC suggested.

Rochester contends that there were no grounds for referral because she her circumstances did not meet the DBS criteria for referral.

The DBS took a similar view and also decided not to add her to their barred list.

However, the referral having been made, the DBS has informed Rochester that the information will be retained in her DBS record for at least the next 10 years and that the DBS may take it into account if we receive any further information in the future”.

Hardly a just reward for being a good citizen.

Rochester also reports that she has received no feedback from the CQC about whether it has actually taken any action regarding her safety concerns. There is no published evidence of an inspection since Rochester made disclosures to CQC over two months ago.

This lack of feedback is a very common complaint by whistleblowers about CQC’s behaviour.

Of particular concern, Rochester feels that the CQC is reluctant to take the trouble to inspect care homes at night. She has asked the CQC to inspect at night but says she has received no confirmation from the CQC that it will do so, despite the special risks posed by under-staffed and less supervised night shifts.

 

Action required

The CQC must now urgently review its approach to whistleblowers and ensure that it will not keep repeating these harmful behaviours.

Over two years ago the General Medical Council accepted recommendations that it must look circumspectly at allegations against whistleblowers and ensure that it is not supporting reprisal by uncritically accepting vexatious referrals. 13

The CQC must now give a similar undertaking and ensure that there are safeguards in its processes to prevent any CQC complicity with reprisal against whistleblowers, inadvertently or otherwise.

The CQC must also track whether particular inspectors are repeatedly letting whistleblowers down, and it must effectively manage any potential issues of capture and inappropriate relationships between local inspectors and providers.

According to Rochester, if the CQC had bothered to carry out the most cursory of checks, it would have soon realised that her former employer’s allegations were contradicted by the evidence.

Questions arise about how many times CQC staff have been instrumental in detriment to whistleblowers who have had the courage and decency to risk all by reporting concerns.

CQC failed to disclose to Rochester that it had suggested that she should be referred to the DBS.

How many times has CQC taken similar covert action against other whistleblowers?

How many whistleblowing cases are actively undermined due to frank CQC hostility?

Is CQC partly liable for detriment from mishandled cases?

Do the negative attitudes by CQC inspection staff towards whistleblowers stem from the top of the organisation?

In November 2013 David Behan CQC chief executive made a public claim that he had tightened up CQC practice after the CQC failed to maintain a whistleblower’s confidentiality. 14

And yet a year later, Shiban Ahmed a whistleblower was referred to the GMC by his employer as a result of CQC breaching confidentiality and making false claims to the employer that he had breached patients’ confidentiality. 15

There have also been other cases in which CQC breached whistleblowers’ confidentiality.

With the revelations in the Rochester case, Behan must now account for the action that he claimed he took in 2013, and reveal whether he made arrangements for proper audit of CQC’s practice in relation to whistleblower confidentiality and ensuring that CQC does not contribute to detriment.

CQC made very few concessions to Rochester at the Board meeting on 20 June 2017. All they offered to do was talk about it, to her and amongst themselves.

That is the type of superficial, dysfunctional response that has led to countless whistleblowing governance failures by CQC.

Talk is cheap and the CQC must now not only act, but provide ongoing proof that it acts.

The National Guardian must also hold CQC to account over these matters, but given her subordinate position as CQC’s employee, it is hard to have any confidence in the arrangement.

Lives depend on effective oversight of health and care services, as amply illustrated by the distressing scenes filmed by Channel 4 at Crawfords Walk.

Good whistleblowing governance is a vital part of this, but reform is many years overdue.

For the public interest to be guarded, we need whistleblowing law reform and a fit for purpose infrastructure with powers to ensure compliance.

RELATED ITEMS:

1)‘CQC an ongoing concern’ a highly revealing report on repeated CQC failure by the charity Compassion in Care:

http://www.compassionincare.com/node/229

2)CQC’s broken promises to act on coroners’ warnings:

https://minhalexander.com/2016/10/08/care-home-deaths-and-more-broken-cqc-promised/

3)CQC, Department of Health and National Guardian failure to help individual whistleblowers:

https://minhalexander.com/2017/05/06/cqc-and-national-guardian-defend-fortress-dh/

4)Data on CQC’s failure to listen to or act upon whistleblowers’ concerns:

https://minhalexander.com/2016/12/05/whistleblowers-unheard-by-cqc/

chateau-cqc

REFERENCES

1 Channel 4 Dispatches 19 June 2017

http://www.channel4.com/programmes/dispatches

2 Exposed: ‘Horror of institutional abuse’ in Bupa care homes as secret filming reveals shocking catalogue of abuse towards elderly dementia victims, Nick Craven, Daily Mail 17 June 2017

http://www.dailymail.co.uk/news/article-4614310/horror-institutional-abuse-Bupa-care-homes-undercover.html

3 CQC reports on Crawfords Walk care home

http://www.cqc.org.uk/location/1-127503548

4 Public Accounts Committee report on the CQC December 2015

https://www.publications.parliament.uk/pa/cm201516/cmselect/cmpubacc/501/501.pdf

5 An FOI disclosure by CQC on the very trouble North Cumbria NHS Trust revealed that CQC repeatedly just noted grave whistleblower disclosures about management fiddling on safety issues as information for future inspection.

https://minhalexander.com/2016/12/05/whistleblowers-unheard-by-cqc/

There has been similar evidence from other FOIs.

CQC previously failed to publish any data about whistleblowing.

It started doing so in recent months, and the data reveals that CQC is still failing to keep complete records of its responses to whistleblower disclosures. For example, 6.3% (32 out of 504) contacts in April this year had no recorded outcome:

Screen Shot 2017-06-21 at 13.04.43

Source: CQC Chief Executive report to the Board 20 June 2017

6 Serious Case Review on Winterbourne View, by Margaret Flynn for South Gloucestershire Safeguarding Adults Board, 2012

South Glos Serious Case Review Winterbourne View

7 “Although my secondment ended last year, I was involved in the evaluation of the work once the trials had been completed. I have been keeping a close eye on things as they develop at CQC; I have every faith in them – and that perhaps things can change for the better.”

Kim Holt blog for CQC 16 Feb 2015

8 Report by Robert Francis of the Freedom To Speak Up Review 11 February 2015

71 It is the responsibility of boards to ensure that there is no victimisation of or retaliation against whistleblowers, and they should be held to account for it. This will require them to maintain constant vigilance, and effective systems to enable them to keep track of what is happening within an organisation where so many people are under pressure to deliver a service. System regulators should look for evidence that this is being taken seriously. I was encouraged to hear optimism about the impact of the CQC’s new inspection regime.”

http://webarchive.nationalarchives.gov.uk/20150218150343/https://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf

9 Remarks by Robert Francis at CQC Board meeting 20 June 2017

“I’d like to just to register a welcome some figures on what is done about whistleblowing information

And I think it’s potentially significant that we receive 500 or 600 a month from members of staff

What comes out of it, unless I’ve got it wrong, is that there are a number of different categories many of which might be interpreted as – If I can put it in a colloquial sense – nothing much happening about the information apart from it being stored.

Now that might be entirely the right action. 

When I see a category for the ‘information is missing’ – I’m no sure what ‘unqualified whistleblowing, no outcome expected’ is – I presume there are a number of different things there which are different ways of saying: “We received a telephone call, nothing happened”.

That may be an over simplification. If it is I’d like to be corrected.

But it is important I think that we continue to keep an eye on the quality of the information that comes through and more importantly the quality of what we do about it”

https://cqc.public-i.tv/core/portal/webcast_interactive/291254

10 Subject Access Requests by whistleblowing campaigners have revealed surveillance of social media activity, negative internal briefings and denigratory comments, and coordination of comms responses about criticisms of the CQC. An example is provided by the CQC’s internal correspondence about the charity Compassion In Care and coverage by Private Eye:

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http://compassionincare.com/sites/default/files/breakingsilence/The%20Internal%20Web%20of%20Deceit%20Continues%20SAR%20cqc%20report%20two_0.pdf

11 CQC inspection records on Manor Gardens care home 11 April 2014 (click on headings on the left of the page)

Screen Shot 2017-06-22 at 13.29.46.png

Screen Shot 2017-06-22 at 13.29.32

Screen Shot 2017-06-22 at 13.29.56

http://www.cqc.org.uk/location/1-118973975/inspection-report/INS1-1172629661/04#report-top

12 CQC inspection report on Manor Gardens care home April 2015

http://www.cqc.org.uk/sites/default/files/new_reports/AAAB9437.pdf

13 Report by Sir Anthony Hooper on GMC’s handling of whistleblower cases, March 2015

http://www.gmc-uk.org/Hooper_review_final_60267393.pdf

14 CQC chief promises to keep identity of whistleblowers secret, Care Home UK, 28 November 2013

Screen Shot 2017-06-21 at 14.39.40

https://www.carehome.co.uk/news/article.cfm/id/1561759/cqc-chief-promises-to-keep-identity-whistleblowers-secret

15  ‘NHS is allowing babies to be maimed’. Sunday Times 21 December 2014

https://minhalexander.files.wordpress.com/2016/10/cqc-sunday-times-re-shiban-ahmed-confidentiality-21-dec-2014.pdf

 

East Lancashire Hospitals NHS Trust: Triumph CQC style

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 14 June 2017

The Care Quality Commission is parading East Lancashire Hospitals NHS Trust as an example of success and improvement.

CQC has issued a glossy report, Driving Improvement, to bang its drum and spread good news:

CQC 20170614_drivingimprovement June 2017

The foreword by Mike Richards Chief Inspector, complete with beaming photo, starts with these assertions:

“Drawing on findings from inspection reports, CQC’s 2016 State of Care report concluded that effective leadership and a positive, open culture are important drivers of change. In hospitals rated as good or outstanding, the trust boards had worked hard to create a culture where staff felt valued and empowered to suggest improvements and question poor practice.”

The report says: “We set out to explore what eight trusts had done to become ‘well-led’ trusts.”. East Lancashire was one of these eight trusts.

Screen Shot 2017-06-14 at 11.56.13

East Lancashire was one of fourteen so-called ‘Keogh’ trusts and was placed into special measures in 2013 due to high mortality rates.

East Lancashire was rated ‘Good’ overall, and ‘Good’ on Well Led by CQC on 4 January 2017.

Screen Shot 2017-06-14 at 11.52.13

This is despite the following facts:

  • East Lancashire sacked and referred NHS surgeon whistleblower Aditya Agrawal to the GMC, with great scandal and many questions in parliament, some as recently as September 2016.

Screen Shot 2017-06-14 at 10.20.19

http://www.thisislancashire.co.uk/news/14296992.___One_patient_died___it_was_complete_and_utter_chaos______senior_surgeon_claims_he_was_sacked_for_blowing_the_whistle/

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-07-20/43643/

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-07-20/43730/

 

  • East Lancashire super-gagged 109 of its staff with settlement agreements that prevented staff from revealing the very existence of these agreements, also leading to questions in parliament.

https://www.theyworkforyou.com/debates/?id=2016-05-18a.6.0&s=speaker%3A10057#g71.0

East Lancashire Hospitals Compromise Agreements FOI 18.05.2016

 

  • East Lancashire helped to recycle the now convicted fraudster, Paula Vasco-Knight, a former NHS CEO whom an Employment Tribunal found had victimised whistleblowers, with much scandal and also criticism by Robert Francis as “oppressive behaviour” to which no tolerance should be afforded.

The local media reported that Vasco-Knight was hired at a rate of £1000 per day

http://www.lancashiretelegraph.co.uk/news/13573334.Management_consultant___s___1_000_a_day____slap_in_face____for_Lancashire_NHS_staff/

East Lancashire disclosed via FOI that the total cost incurred by the taxpayer from the trust giving Vasco-Knight a leg up, over 2014/15 and 2015/16, was £248K.

East Lancs Paula Vasco-Knight FOI I Alexander 230516

 

There is not one word in CQC’s glowing report on East Lancashire about learning from the Agrawal whistleblower case, the 109 super-gags or East Lancashire’s role in recycling Vasco-Knight.

But then, the Health Service Journal listed East Lancashire’s CEO Kevin Mc Gee as a finalist in its Chief Executive of The Year awards in November 2016, so all must be well:

https://www.hsj.co.uk/more/awards/hsj-awards/hsj-awards-2016-chief-executive-of-the-year/7013475.article

Readers may remember that Paula Vasco-Knight was previously much feted by the NHS establishment and also received a CBE in the 2014 New Year’s honour list:

https://healthwatchdevon.co.uk/cbe-celebration-nhs-englands-national-lead-equality/

Screen Shot 2017-06-14 at 10.54.41

Screen Shot 2017-06-14 at 10.54.25

Screen Shot 2017-06-14 at 10.48.51Screen Shot 2017-06-14 at 10.48.09

RELATED ITEMS

https://minhalexander.com/2017/05/23/fppr-cqc-has-lost-all-moral-authority-but-what-will-the-national-guardian-do/

https://minhalexander.com/2017/01/27/cqc-a-chief-inspector-doesnt-call/

 

Healthcare Safety Investigation Branch: Brief update

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 7 June 2017

The establishment of the Healthcare Safety Investigation Branch has been controversial, as has its location within NHS Improvement.

There has been little apparent engagement with patients, families and staff beyond a comfortable small circle, and little transparency about HSIB’s consultation process.

There is limited information issued on the HSIB website, although this has expanded a little since it was launched on 1 April 2017:

http://www.hsib.org.uk/

Full details of HSIB’s staffing and structure has had to be obtained by FOI.

This is the HSIB organogram disclosed by NHS Improvement:

Organogram 2

So far, the unit appears to wholly or largely white. This in an NHS that has an over-representation of BME staff compared to the general population:

HSIB staff diversity

Source: Copy of HSIB Staff List as at 22 May 2017

Potential blind spots are obviously a worry in an organisation that lacks diversity and is not informed by the perspective of some of the most disadvantaged staff and patients.

£2.6 million of HSIB’s £3.6 million budget is accounted for by staffing costs.

There are thirteen HSIB investigators so far (Keith Conradi the Chief Investigator, three ‘Principal National Investigators’ at band 9 and nine ‘National Investigators’ at band 8d), with a plan to recruit three more investigators at band 8d.

NHS Improvement confirms again as previously noted that HSIB’s Director of Corporate Affairs is on secondment from the Department of Health.

Depressingly, there is a full time comms manager, and there will be a full time comms officer. Line managed of course by the Department of Health Deputy Director who has been seconded to HSIB.

Curiously, NHS Improvement states that HSIB does not yet have any memoranda of understanding with other bodies, including its employer NHS Improvement.

This is the main HSIB disclosure:

NHS Improvement FOI disclosure about HSIB 6 June 2017

It is also worth mentioning that HSIB reluctantly indicated in March, after lengthy correspondence, that it would consider a formal engagement process with whistleblowers. However, there is no sign yet of positive action.

 

RELATED ITEMS

https://minhalexander.com/2017/03/03/white-elephants/

https://minhalexander.com/2017/04/08/engineered-failure-to-investigate-nhs-whistleblowers-concerns/

Ian Paterson and failure by oversight bodies

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 1 June 2017

Ian Paterson the surgeon at the centre of a colossal NHS governance failure was yesterday sentenced to 15 years imprisonment. 1

These are the judge’s sentencing remarks:

r-v-paterson-sentencing-remarks-mr-justice-jeremy-baker-20170531

Both Paterson’s NHS and private practice has been subject to hundreds of negligence claims.

For years, he carried out so-called cleavage sparing mastectomies for breast cancer without patients’ consent, which were not accepted practice, and which raised concerns that he had left patients at greater risk of cancer recurrence. He was also found to have fraudulently carried out unnecessary surgery by deceiving patients and colleagues.

Paterson was made subject to restrictions on his practice, which included GMC restrictions introduced in 2011.

A 2013 review by Sir Ian Kennedy into Paterson’s NHS practice at the Heart of England NHS Foundation trust found that weak management failed to challenge Paterson or to ensure that he adhered to restrictions on his practice and that whistleblowers were repeatedly ignored: 2

3.41 For the future, and reflecting on the past history of the NHS, Dr Stockdale’s dilemma could not be more challenging. He had taken what he, and contemporaries in the NHS, would see as a risk: he had drawn attention to the practice of a senior colleague, outside his specific area of expertise, and criticised it. He had blown a whistle. Whistleblowers do not fare well in the NHS. This is one of the major indictments of management in the NHS: that it is inwards-looking, over-defensive, and prone to destroy, by a variety of means, those who suggest that the Emperor has no clothes. This is not unique to this Review. It is a blight on the NHS and is one of the principal areas where lessons must be learned. This was the context in which Dr Stockdale and his colleagues had to wrestle with what to do.”

Kennedy also noted that Rex Polson Consultant Physician, who had been asked to investigate allegations against Paterson in 2007, 2b had made these comments about raising concerns in the NHS:

Dr Polson, who was asked by the Trust to conduct a parallel investigation with Mr Hennessy in 2007, told me that he did not explore the challenge of raising concerns when he spoke to the oncologists. But, he told me, the prevailing culture at the time was that raising the issue “was probably as much as you were able to do, or you looked to move and change job”. It would be difficult to imagine a bleaker indictment of the reality of the time. And, he added, the patients were not complaining, because “they did not know that they should be complaining”, which made it that much more difficult for one professional to rock the boat by accusing another.” 2

A Verita report about Paterson’s private practice at Spire Parkway resulted in similar findings to Kennedy’s. 3

It was evident that concerns about Paterson’s breast surgery were raised from at least 2003 and other concerns were raised before that. 2 3 4

The trust was woefully slow in recalling patients 2 and there are doubts about whether HEFT has really come clean. The trust has given conflicting information on some occasions. Also, HEFT only recalled Paterson’s mastectomy patients but not those who had wide local excisions and lumpectomies. 5 10

This is data from HEFT 10 on the numbers of Paterson’s NHS patients who attended HEFT’s recall clinic by year:

HEFT recall table

Debate continues about whether HEFT was correct to assert on some occasions that the cancer recurrence rate from Paterson’s cleavage sparing mastectomies was within the expected range.

Shockingly, Paterson’s private patients have been denied compensation as the private provider and Paterson’s former medical defence body the MDU have denied liability.6

Arguments have been made that the NHS may be liable for compensating Paterson’s private patients because it took insufficient action to warn private providers.

Some of the issues, FOI disclosures and other source documents are collated below.

 

Chief Executives at Heart of England throughout the period of interest

Mark Goldman 2001 to 2010

Mark Newbold 2010 to 2014

Andrew Foster January to October 2015

Julie Moore 2015 to present

 

 

What HEFT says about Paterson’s NHS patients

As of 30 May 2017, HEFT maintained via FOI 5224 7 that :

  • 1207 trust patients had received a cleavage sparing mastectomy from Ian Paterson.

 

  • At the time the trust recalls started, 387 of these 1207 patients had already died. (In FOI disclosure 5157 of 6 April 2017, HEFT advised that by 31 March 2017 an additional 288 of Paterson’s mastectomy patients had died. 8)

 

  • Of the remaining patients who were still alive when recalls started, 697 were invited to a recall clinic, and 564 of these individuals attended.

 

  • To HEFT’s knowledge so far 68 of as HEFT puts it, the ‘alive mastectomy cohort’, have experienced recurrence of breast cancer.

 

Verita reported that in September 2009:

HEFT’s medical director writes to Ruth Paulin [Spire Health hospital director] to tell her that West Midlands Cancer Intelligence audit found that the five-year recurrence rates for invasive cancer for Mr Paterson’s patients were within acceptable limits. At the time these findings were accepted by Spire as assurance that Mr Paterson’s practice was safe.” 3

Crucially however, Kennedy and Verita noted that this was only half the story:

“1.24 In Sir Ian Kennedy’s Review of the response of HEFT to concerns about Mr Ian Paterson’s surgical practice (2013) he reported that HEFT’s medical director had been advised by the director of the West Midlands Cancer Intelligence Unit (WMCIU) on a number of occasions before 2009 that Mr Paterson’s rates of recurrence were not accurate because the WMCIU did not have all of Mr Paterson’s data.” 2 3

The Kennedy report detailed the warnings to HEFT from the WMCIU and Kennedy observed: Mr Paterson was an outlier in terms of his general rate of recurrence and evidence was emerging that patients undergoing at least one particular procedure and, perhaps, others were at a high risk of suffering a recurrence.” 2

HEFT later produced a report on Paterson’s outcomes which conceded:

The analysis suggests that in patients who underwent the unapproved procedure (CSM) there is an increased risk of the cancer returning to the same site (local recurrence) in the long term, requiring further treatment.” 9

BUT HEFT claimed on 6 April 2017 that:

 “The figures suggest that the outcomes for Mr Paterson’s patients are not outside the expected norms” 8

 On 11 April 2017, via FOI 5138, HEFT also incongruously claimed:

The Trust is unable to provide any statistically meaningful interpretation of these recurrence figures. Mr Paterson’s first operations occurred in the early 1990s and he was not excluded from the Trust until 2011. National breast cancer survival figures have changed over this period.” 10

Moreover, HEFT now indicates that there has been no analysis of the cases of CSM patients who had died and whether their deaths were related to recurrence of breast cancer:

There has not been an analysis of the deceased patients to determine who may have had a CSM or other type of incomplete mastectomy; the Trust’s efforts have been to focus on reviewing the patients who are alive to ensure that they are having the best individualised care and advice possible in these distressing circumstances.” 7

(This is despite a previous claim that it had undertaken A review of all NHS patients believed to have had a mastectomy under the care of Mr. Paterson – 1071”. 9)

If no analysis has been conducted of the deaths, it is difficult to see how HEFT was able to conclude that Paterson’s outcomes were within the expected range.

HEFT now also admits that it did not inform its trust governors of the Paterson issues until 2010. 7

In terms of action taken to protect Paterson’s private patients, HEFT wrote to the private provider Spire Healthcare in 2007, but has refused to place the contents of the correspondence into the public domain. 11

 

Whistleblowing at HEFT

HEFT has a poor reputation in general for whistleblowing governance.

There have been numerous whistleblowers, who have raised concerns about Paterson’s practice but also other matters, some of whom have reported experiencing reprisal. 12 13

This was despite HEFT’s then chief executive Mark Newbold jumping onto the Speak Out Safely bandwagon in 2013, with an accompanying publicity splash in the Nursing Times. 15

Since CQC started publishing its so-called ‘intelligent monitoring’ reports, all five of the CQC intelligent monitoring reports on HEFT have flagged whistleblowing alerts (21 October 2013, 13 March 2014, July 2014, December 2014, May 2015). 16

The CQC holds data about concerns that it received from HEFT whistleblowers, but claims that it is unable to account for whistleblowing contacts from HEFT staff before 2011, as it did not keep central records before 2011. 17

In other words, the CQC has apparently not bothered to pull this vital pre-2011 whistleblowing information from its records, despite the great scandal and grave patient harm.

The CQC has disclosed that since 2011 it has received 51 whistleblowing contacts from HEFT staff. This number of external whistleblowing disclosures flags issues of troubled institutional culture. 17b

Financial year Number of whistleblowing contacts to CQC by HEFT staff
2011/12 1
2012/13 9
2013/14 15
2014/15 12
2015/16 11
2016/17 year to date 3
Total 51

Source: CQC database on whistleblowing by HEFT staff

 

The concerns raised with CQC about HEFT since 2011 have been diverse and included unsafe discharges, anomalies in recording of cancer waiting times, prioritisation of targets over quality, overcrowding to achieve targets, staffing levels and staff stress, nepotism and conflicts of interest.

According to CQC’s recorded outcomes on these whistleblowing incidents, CQC mostly either just noted whistleblowers’ concerns as information for future inspection, or accepted trust assurance that matters were in hand. This seems unacceptably lax given HEFT’s past failures.

HEFT itself responded incompletely to my FOI request about whistleblowing events at the trust by omitting data about the nature of whistleblowing concerns by staff and about its compliance with government standards.

Moreover, HEFT ignored a follow up request to disclose all of the requested data. 18

However, the trust admitted to at least 29 whistleblowing incidents between 2010/11 and 2014/15.

This figure includes only cases raised formally under HEFT’s whistleblowing policy, and is an underestimate of the real number.

HEFT whistleblowing table.png

In June 2014 HEFT appeared to mislead another FOI requester, informing the requester that there had been only three recorded whistleblowing events in 2013/14. 19 This contradicted what HEFT told me in 2015, as per the table above.

HEFT also appeared to incorrectly answer some questions that I asked about its use of compromise agreements between 2011 and 2015.

HEFT claimed to me that it could not disclose any data at all as the numbers were too small and might lead to identification of individuals: 

Q1-4 The Trust does hold the information you have requested. However, we are withholding this information under section 40(2) of the Freedom of Information Act 2000 as the numbers involved are so small that there is a high risk that disclosing the numbers would lead to identifying individuals.” 20

This was self-evidently not the case as HEFT had previously disclosed the following information in response to another FOI request on 21 May 2015, ref. 3754:

HEFT confidentiality agreements FOI 3754 screenshot

http://www.heartofengland.nhs.uk/foi-3754-confidentiality-agreements/

I questioned the anomaly but HEFT has continued evading clarity about this matter. No explanation has so far been provided, despite correspondence to the current chief executive and assurances from the trust that it would respond.

HEFT has attracted ICO attention previously for poor data handling and was the subject of a recent ICO audit. 21

 

The financial cost and NHS Resolution’s (formerly the NHS Litigation Authority’s) role

Approximately £18 million has been paid out to Paterson’s NHS patients in damages and legal costs. 22

In April 2017 HEFT disclosed in response to an FOI request by the Press Association 8 17  that there had been a total of 281 claims against the trust by Paterson’s patients, 256 of which had been resolved and that a total of £9,499,458 compensation had been paid to Paterson’s NHS patients.

NHSR has disclosed that it started receiving claims about treatment by Paterson seven years ago, in July 2010. 23

NHSR reported that it had received 281 claims about Paterson’s NHS patients, and

Of the 281 claims received, 237 have resolved with a payment of damages and 19 discontinued with 25 outstanding”.

NHSR places the total legal costs at “£8,314,142.90 (combined claimant and defence costs)” and broke this down to £4,550,733.90 claimant costs and £3,763,409 defence costs. 24

NHSR gave a similar overall total to HEFT in terms of compensation paid out on Paterson’s NHS patients – £9,538,458. The biggest reported award was £320,000. 24

According to NHSR, this is how the compensation payments were distributed by financial year:

NHSR Paterson damages paid by year

A question arises about what steps since July 2010 NHSR has taken to flag concerns about Paterson’s practice to the rest of the system, and if it took such steps, what the system response was.

NHSR’s operating frameworks claim that it works closely with the DH and other bodies 25, and that the NHSR should ensure that the DH is “sighted” on NHSR’s work and not subject to any unpleasant surprises 26 :

Ensure that DH is sighted on issues affecting NHSLA [NHSR] and share information to ensure that both organisations work together to form a ‘no surprises’ culture”.

Whatever the DH’s precise role in the Paterson business, it has refused to learn one of the key lessons from Paterson’s unchecked malpractice – that there must be real whistleblower protection. The DH remains inimical to whistleblowers:

https://minhalexander.com/2017/05/06/cqc-and-national-guardian-defend-fortress-dh/

As for NHSR, seven years after it first received claims about Paterson’s practice, it says:

 NHS Resolution are very sorry for the distress experienced by any patients affected by this case and remain committed to ensuring that any lessons are learnt in the interests of protecting patients in the future.” 27

The latest NHSR board papers of 17 May 2017 note that the NHS is facing claims by private patients on the basis that:

“The generic allegations against HEFT suggest a duty of care owed by the Trust to private patients; failing to stop the inappropriate and negligent surgery earlier; allowing IP to remain in post when it was known he was not competent to continue to treat “in and after 2004” when it was known he was performing incomplete mastectomies at Spire and Solihull; failure to monitor IP’s activities after December 2007 to ensure no CSM’s were carried out; knowing Spire relied on appraisals and monitoring from HEFT to ensure IP’s competency.”  27

 

The GMC and NCAS

The GMC has been tight-lipped about its role in the Paterson governance failures, and recently implausibly claimed that it could not answer any questions at all until the prosecution had concluded.

I can confirm that we do hold the information that you have requested. However, the judicial process concerning Mr Paterson is ongoing. When that has concluded the GMC procedures will recommence. It is possible that once the criminal process and the GMC/MPTS process have ended, we will be able to disclose more information about Mr Paterson. At this time, however, I consider that the following FOI exemptions apply to the release of the information that you have requested [Section 40 and 41 FOIA exemptions]”  28

 The Kennedy report noted that Paterson was referred to the National Clinical Assessment Service (NCAS) in 2007. NCAS has a remit for assessing doctors’ clinical performance and conduct in response to referrals about concerns.  In Kennedy’s view, NCAS focused on re-integrating Paterson and failed to give sufficient weight to the patient’s perspective. 29

Kennedy and Verita reported that the GMC received the first complaint about Paterson’s practice in 2010.  2 3

The GMC did not impose conditions on Paterson’s registration until July 2011, and he was not suspended from practice by the GMC until October 2012.

Yesterday, immediately after Paterson’s sentencing, the GMC chair released a statement effectively blaming health professionals for not reporting the problems sooner:

As soon as we were made aware of these issues we took action to curb his practice and then suspend him, but his practice went unchecked for so long because some of those in the health system – managers but also his colleagues – had their concerns but failed to report them to us.” 30

This is somewhat rich as the GMC has been criticised for not adequately protecting medical whistleblowers. Sir Anthony Hooper observed in his report about the GMC’s handling of whistleblowing matters that:

“26. In the context of this review, my concern is that employers may use the process of making an allegation to the GMC about a doctor’s fitness to practise as an act of retaliation against a doctor because he or she has raised concerns or, simply, as an inappropriate alternative to dealing with the matter in-house. If that happens, the GMC unwittingly becomes the instrument of the employer in its campaign against the doctor. If the doctor is then subject to an interim suspension order and, as it later turns out, he or she ought not to have been, the damage to the doctor can be lifelong.” 31

Moreover, the GMC has faced awkward questions about its role in ensuring that registrants have proper indemnity, following the Medical Defence Union’s refusal to indemnify Paterson’s illicit procedures. 31

 

The Care Quality Commission

According to the Kennedy report, in 2009 HEFT’s then chief executive Mark Goldman wrote to the CQC about the planned recall of some of Paterson’s patients, and the trust later updated the CQC, Monitor, SHA and NHSLA (now NHS Resolution) in 2011. 2

Kennedy reported that there was no evidence of a response from these central bodies:

10.23 Outside the Trust, the Chief Executive had written to the Chief Executive of the Care Quality Commission (CQC) on July 1, 2009 advising her of the proposed recall of 12 patients and the possibility that this may attract the attention of the media. A subsequent letter from the new Medical Director, Dr Anwar on May 19, 2011 provided CQC with an update, with copies sent to Monitor, the Strategic Health Authority and the NHS Litigation Authority. I have not seen any evidence of a response from any of these bodies.” 2

The CQC carried out a review of HEFT’s serious untoward incidents in 2009. A letter from the CQC copied to Andrea Gordon, now a CQC Deputy Chief Inspector of Hospitals, about the CQC’s 2009 review suggests that the CQC carried out a box ticking exercise based on the trust’s paper trail. 32 There is no mention of Paterson or the harm that he had caused to patients.

CQC’s letter concludes thus:

Andrea Gordon CQC letter to Mark Goldman HEFT 8 Jan 2010

There are two published CQC inspection reports on HEFT, of 14 January 2014 and 1 June 2015, both of which rated HEFT overall as ‘requires improvement’. 33

Neither report mentions Paterson or the patient harm that he caused, or the progress made in response to the recommendations of the Kennedy report.

In contrast to these CQC inspection reports on HEFT, CQC’s inspection report of 23 December 2015 on Spire Healthcare does acknowledge Paterson’s malpractice and the governance issues arising:

Staff were aware of the duty of candour and a robust Duty of Candour Policy was in place for staff to access electronically and in paper form. Senior hospital staff recalled more than 600 patients at Spire Parkway Hospital relating to historic operations performed by a former breast care surgeon. The recall of patients was to provide a full explanation and apology for care and treatment which had gone wrong. The recall register was in place and the recall process was completed in June 2015.”

“Historical complaints relating to a former breast care surgeon had generated a significant volume of issues during the past few years. The hospital had reviewed its complaints’ procedure and the complaints’ policy and process was robust. Staff at all levels were aware of their responsibilities as to the management of service specific and hospital level complaints.”

“During the inspection we reviewed the 15 recommendations made by an independent review body as a result of a review commissioned by Spire Healthcare and completed in March 2014. The review had been commissioned in April 2013 to report on the governance arrangements at Spire Parkway and Spire Little Aston hospitals in the light of concerns raised about the surgical practice of a consultant surgeon who operated at those two locations.The consultant’s practice led to the Requires improvement ––– Summary of findings 6 Spire Parkway Hospital Quality Report 23/12/2015 consultant’s ultimate dismissal and the recall of more than 600 patients at Spire Parkway Hospital. We found evidence at this inspection to demonstrate that the majority of the recommendations made by the independent review had been implemented at the hospital. In addition to the 15 recommendations made by Verita, Corporate Spire had adopted a further eight actions across the Spire hospital network to improve governance and monitoring arrangements. We were assured all eight had been completed at Spire Parkway”

http://www.cqc.org.uk/sites/default/files/new_reports/AAAD6951.pdf

One has to ask why CQC has not used its powers under Section 48 of the Health and Social Care Act 2008 to investigate the large scale patient harm and governance failures arising from the Paterson case.

CQC’s role in mitigating the harm and risk related to the Paterson affair, especially with regards to CQC’s action or inaction over HEFT, remains to be fully elucidated.

Given the circumstances, it is not at all appropriate for CQC to draw a veil over the whistleblowing disclosures that it received about Paterson’s activities at HEFT prior to 2011.

In addition to CQC, GMC, NCAS and NHSR’s roles, unanswered questions remain about the role of commissioners, the notorious West Midlands Strategic Health Authority which allowed the failures at Mid Staffs and other regulators such as Monitor.

 

Public Inquiry

The Royal College of Surgeons has offered the services of its Invited Review Service. 34

A public inquiry is clearly needed, particularly in the light of continuing obfuscations by HEFT, and there have been repeated calls for such.

Hunt has stated that he intends to launch a “comprehensive and focused inquiry” if he is returned to power after the election, but he has not indicated that he will seek a public inquiry. 35

Even a public inquiry may not reveal all the important facts, given that past public inquiries have been criticised for protecting the most senior culprits:

http://drphilhammond.com/blog/wp-content/uploads/2013/03/Private-Eye-mid-staffs-final.pdf

The further handling of this scandal will help clarify the degree to which politicians and senior officials are willing to allow transparency about NHS failure and to stop the suppression of whistleblowers – or not.

 

UPDATE 2 JUNE 2017:

Heart of England NHS Foundation Trust has now admitted that it has super-gagged two whistleblowers (settled with confidentiality clauses that prevent signatories from even revealing the existence of the settlements, and non-disparagement clauses which prevent former employees from criticising the trust).

HEFT FOI response on compromise agreements 4561Review 2.06.2017

 

 

RELATED ITEMS

https://minhalexander.com/2017/01/06/national-clinical-assessment-disservice/

https://minhalexander.com/2016/09/27/cqc-foi-disclosure-15-january-2016-about-section-48-investigations-conducted-since-inception-in-2009/

 

REFERENCES

1 Disgraced surgeon Ian Paterson jailed for 15 years. BBC 31 May 2017

http://www.bbc.co.uk/news/uk-england-birmingham-40108558

2 Kennedy report on the Review of the Response of Heart of England NHS Foundation Trust to Concerns about Mr Ian Paterson’s Surgical Practice; Lessons to be Learned; and Recommendations, 13 December 2013

https://minhalexander.files.wordpress.com/2016/09/kennedy-report-final.pdf

2b Dr Rex Polson’s investigation report on Ian Paterson, 29 April 2008

https://minhalexander.files.wordpress.com/2016/09/dr-polsons-report1.pdf

3 Verita Independent review of the governance arrangements at Spire Parkway and Little Aston hospitals, March 2014

https://minhalexander.files.wordpress.com/2016/09/verita-ndependent-review-of-the-governance-arrangements-at-spire-parkway-and-little-aston-hospitals-spire-healthcare-march-2014.pdf

4 Ian Paterson timeline of missed opportunities to uncover and stop him. Solihull Observer, editorial 4 March 2015

https://solihullobserver.co.uk/news/ian-paterson-timeline-of-missed-opportunities-to-uncover-and-stop-him-3365/

5 Ian Paterson case: disgraced surgeon’s patients ‘airbrushed’. BBC 3 May 2017

http://www.bbc.co.uk/news/uk-england-birmingham-39779438

6 Private patients to miss out on compensation from God complex breast surgeon as Spire and union refuse to cover costs , Robert Mendick, Telegraph 29 April 2017

http://www.telegraph.co.uk/news/2017/04/29/private-patients-miss-compensation-god-complex-breast-surgeon/

7 HEFT FOI disclosure ref 5224, on 30 May 2017, about Paterson’s breast surgery and clinical outcomes

https://minhalexander.files.wordpress.com/2016/09/heft-disclosure-30-05-2017-foi-5224.pdf

8 HEFT FOI disclosure ref 5157, on 6 April 2017, about Paterson’s breast surgery and outcomes

https://minhalexander.files.wordpress.com/2016/09/heft-disclosure-foi-5157-breast-surgery.docx

9 HEFT paper on Paterson’s breast cancer surgical outcomes

https://minhalexander.files.wordpress.com/2016/09/heft-surgical-outcomes-and-practice-final.pdf

10 HEFT FOI disclosure ref 5138, on 11 April 2017, about Paterson’s breast surgery and outcomes

https://minhalexander.files.wordpress.com/2016/09/heft-disclosure-foi5138.pdf

11 HEFT FOI disclosure ref 2551, 27 February 2014, about Paterson and communication with Spire Healthcare

https://minhalexander.files.wordpress.com/2016/09/heft-disclosure-foi-2651-two-others.docx

12 Petition of HEFT whistleblower Shazada Hussain, Hansard 22 October 2014

https://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm141022/petntext/141022p0001.htm

13 Account of Michael John HEFT whistleblower, 26 March 2017

https://antibullyingnhs.wordpress.com/2017/03/26/michael-andrews-story/

15 Staff must be free to raise safety concerns, says Heart of England chief exec, Shaun Lintern, Nursing Times 9 April 2013

https://www.nursingtimes.net/clinical-archive/whistleblowing/staff-must-be-free-to-raise-safety-concerns-says-heart-of-england-chief-exec/5057073.article

16 CQC intelligent monitoring reports on HEFT:

21 October 2013

http://www.cqc.org.uk/sites/default/files/old_reports/RR1_101_WV.pdf

13 March 2014

http://www.cqc.org.uk/sites/default/files/old_reports/RR1_102v2_WV.pdf

July 2014

http://www.cqc.org.uk/sites/default/files/RR1_103v3_WV.pdf

December 2014

http://www.cqc.org.uk/sites/default/files/RR1_104v3_WV.pdf

May 2015

http://www.cqc.org.uk/sites/default/files/RR1_105v3_WV.pdf

17 CQC FOI disclosure 30 May 2017, ref.  IAT 1718 0065

https://minhalexander.files.wordpress.com/2016/09/cqc-foi-response-heft-whistleblowing-iat-1718-0065.pdf

17b CQC FOI disclosure 30 May 2017, ref.  IAT 1718 0065, spreadsheet:

https://minhalexander.files.wordpress.com/2016/09/cqc-20161019-final-information-for-disclosure-cqc-iat-1617-0427.xlsx

18 HEFT FOI disclosure 11 September 2015, ref. 4008, about whistleblowing governance

https://minhalexander.files.wordpress.com/2016/09/heft-whistleblowing-governance-foi-response-11-09-2015.pdf

19 HEFT FOI disclosure 20 June 2015, ref. 3124

https://minhalexander.files.wordpress.com/2016/09/heft-disclosure-foi-3124-whistleblowing.docx

20 HEFT FOI response of 15 July 2016 to FOI 4561

21 ICO audit of HEFT’s data handling February 2017

https://minhalexander.files.wordpress.com/2016/09/ico-heart-of-england-nhs-audit-201702.pdf

22 Hundreds seeking compensation over ops by convicted breast surgeon, York Press 29 April 2017

http://www.yorkpress.co.uk/news/15255330.Hundreds_seeking_compensation_over_ops_by_convicted_breast_surgeon/

23 NHSR (formerly NHSLA) FOI disclosure 2970 on HEFT, 18 May 2017

https://minhalexander.files.wordpress.com/2016/09/nhsla-foi-disclosure-heft-2970-response.pdf

24 NHSR (formerly NHSLA) FOI disclosure 2953 on HEFT, 27 April 2017

https://minhalexander.files.wordpress.com/2016/09/nhsla-heft-foi-disclosure-foi-2953-response1.pdf

25 Framework agreement between the DH and NHSLA (now NHSR) 2013. Annex D: Relationships with other bodies

http://www.nhsla.com/aboutus/Documents/NHS%20LA%20-%20Framework%20Agreement%20-%20Annex%20D%20-%20%20Relationships%20with%20other%20bodies%20-%202013.pdf

26 Protocol for public and parliamentary accountability. Between the DH and NHSLA (now NHSR). February 2014

http://www.nhsla.com/aboutus/Documents/NHS%20LA%20-%20Framework%20Document%20-%20Annex%20E%20-%20Protocol%20for%20public%20and%20parliamentary%20Accountability.pdf

27 NHSR Board papers 17 May 2017

http://www.nhsla.com/aboutus/Documents/Master%20Board%20Papers%20May%202017%20-%20Part%201.pdf

28 GMC FOI response IAT/ME/F17/8858, of 12 May 2017 to Clare Sardari NHS whistleblower, @Sardari_Clare

29 Kennedy report page 6:

“21 The second important implication of pursuing an investigation through the disciplinary procedures was that senior managers worked within the approach adopted by the Department of Health’s National Clinical Assessment Service (NCAS). This approach concentrated on identifying the measures necessary to reintegrate Mr Paterson into the team and make sure that his surgery met appropriate standards. The perspective, therefore, was that of the clinician and his needs, all set out in an Action Plan.

22 There was another perspective which could and should have been adopted: that of the patient. Had that perspective been adopted, the question would have been: how can we act in the best interests of patients. This may have caused senior managers to require Mr Paterson to cease operating on women with breast cancer until the concerns that had been swirling around for several years could be calmly analysed. This perspective did not appear to be understood, far less adopted.”

https://minhalexander.files.wordpress.com/2016/09/kennedy-report-final.pdf

30 GMC statement about Paterson 31 May 2017

http://www.gmc-uk.org/news/30724.asp

31 Report by Sir Anthony Hooper on the handling by the GMC of cases involving whistleblowers

http://www.gmc-uk.org/Hooper_review_final_60267393.pdf

31 GMC FOI disclosure 24 February 2015, ref. IAT/F15/6854

5. We do not check registrants indemnity arrangements when they pay their annual retention fee. 

However, since August 2014, all new applications for registration, with a licence to practise, and restoration of a licence to practise do require the applicant to make a declaration that they will have, at the point of practise, appropriate cover under an indemnity arrangement. 

In addition we have recently consulted on changes to the licence to practise and revalidation regulations which will provide the Registrar of the GMC with powers to:

  1. Request information from a doctor or third party about a doctor’s indemnity arrangements
    b. Require a doctor to inform us if they cease to have appropriate indemnity or insurance cover or if their cover is provided by their employer
    c. Refuse to grant or to withdraw a doctor’s licence to practise for failure to have appropriate cover or to comply with our requirements to complete the declaration or provide any further information”

https://www.whatdotheyknow.com/request/private_gmc_registered_doctor_in

32 CQC review closure letter to HEFT chief executive 8 January 2010

https://minhalexander.files.wordpress.com/2016/09/cqc-review-20100108-heart-of-england-closure-letter-cqc-iat-1718-0065-with-scanned-redactions.pdf

33 CQC inspection reports on HEFT:

14 January 2014

http://www.cqc.org.uk/sites/default/files/new_reports/AAAA0787.pdf

1 July 2015

http://www.cqc.org.uk/sites/default/files/new_reports/AAAD4967.pdf

34 Royal College of Surgeons statement 31 May 2017

https://www.rcseng.ac.uk/news-and-events/media-centre/press-releases/updated-ian-paterson-sentencing/

35 Hunt announces plans for inquiry into rogue surgeon Ian Paterson, Frances Perraudin, Guardian 4 May 2017

https://www.theguardian.com/society/2017/may/04/hunt-announces-plans-for-inquiry-into-rogue-surgeon-ian-paterson

 

SSOTP: Robert Francis’ exemplar trust has feet of clay, and Jeremy Hunt’s safety claims are un-evidenced

 By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 28 May 2017

Staffordshire and Stoke on Trent Partnership NHS Trust (SSOTP) was held up as an example of good whistleblowing practice by Robert Francis in his report of the Freedom to Speak Up Review 1, but there is now evidence that the trust has withheld evidence of whistleblowing failures.

After the publication of Francis’ report of the Mid Staffs Public Inquiry in 2013, it was announced that SSOTP would employ Helene Donnelly, who was formerly a nurse at Mid Staffs, as a Cultural Ambassador to facilitate the positive resolution of staff concerns. 2

Donnelly gave evidence to Francis’ Public Inquiry about falsified A&E waiting times at Mid Staffs, and reported that she suffered reprisal as a result of raising concerns:

Donnelly falsification

Helen Donnelly witness statement to Mid Staffs Public Inquiry

Donnelly gave a detailed interview to the local press about how she intended to approach the Cultural Ambassador role:

“I’m not a corporate person who’s just going to tell the Trust what they want to hear,” she says. “I’m not going to help them sweep things under the carpet. And I think, given my history, they know I’m not going to do that! I hope that message gets out to staff, that I’m not just a tick box, I’m real and I’m here and I’m trying to highlight issues and promote the importance of people speaking out.” 3

In June 2013, Donnelly wrote positively about her role in the Nursing Times, and reported:

My chief executive has been very positive about wanting to know if things are not right for staff, especially if patients could suffer as a result.” 4

In December 2013 the local press reported that she had been awarded an OBE for her role as Cultural Ambassador. 5

Donnelly was later listed as an advisor to the Freedom To Speak Up Review 6, and accompanied Francis on the day that the Freedom to Speak Up Review was launched. She has maintained a high profile and features in a promotional video that the National Freedom to Speak Up Guardian has asked local Speak Up Guardians to promulgate. 7

 

Transcript of some of Donnelly’s comments from the promotional video:

“Throughout all that experience, it became very clear to me just how difficult it is for people to speak up and how unsupported they are when they do and also how intimidating it is and how vulnerable you are.

So through that I developed the ‘Ambassador for Cultural Change’ role which is essentially a Freedom to Speak Up Guardian.”

“Whilst the trust will employ the individual Freedom to Speak Up Guardian, they still do have a responsibility to act independently of the trust, and they will have an accountability to take concerns outside of the organisation if necessary.”

“…it just takes one person to be brave and step forward and others will follow.”

“…you want to know that things have been put right as a result and what the learning is.”

“Culture change does take a long time but you’ve got to start somewhere. I think these Guardian roles are a very good place to start.”

“I remember when I was giving evidence at the public inquiry, Sir Robert actually asked me why did I speak up and was it my awareness of my professional duty. And actually I said as my evidence: Of course I was aware that I had a professional duty to speak up as a registered nurse, but it was much more than that. It was a moral duty and it was my moral code that was telling me you can’t let patients suffer.”

Francis claimed in his Speak Up Review report and at the report’s launch that SSOTP’s employment of a Cultural Ambassador was a success. This was despite the fact that there had been no evaluation and there was in fact no evidence of success other than a reported rise in staff contacts.

I have previously described this lack of evidence of effectiveness:

https://minhalexander.com/2016/09/24/critique-of-francis-model-of-trust-appointed-guardians/

But as we know, the NHS establishment has a fetish for hype and fads. Other trusts rushed to copy SSOTP’s model on the basis of SSOTP’s of un-evaluated claims. 8

Despite the lack of evidence, Francis relied on SSOTP’s example to propose a national network of Speak Up Guardians. 9

The National Freedom to Speak Up Guardian herself acknowledged at a meeting in February this year that there was no evidence base for the Speak Up Guardians. 10

Despite this, her office later claimed in a publication that Francis’ Speak Up Review recommendations were all evidence-based. 11

When I objected 12, the National Guardian conceded that the use of the term ‘evidence-based’ (generally accepted to mean medical practice based on good quality research and meta-analysis) had been inappropriate and agreed to withdraw the claim. 13

That is, there is effectively an official admission that Francis did not base his proposal for Speak Up Guardians on much more than anecdote and opinion.

Moreover, it is now clear that not only is there lack of evidence that Francis’ exemplar is effective but that there is evidence to suggest that SSOTP’s model is unreliable.

In 2014/2015, SSOTP staff made external whistleblowing disclosures about unsafe staffing and patient safety to the media and to the Care Quality Commission (CQC), claiming that trust managers had failed to act on warnings.

The whistleblowing was reported by the local press in April 2015. 14 15

Donnelly Stoke Sentinel leaks

 

Extensive information was available from a leaked trust dossier about the strains that staff were subjected to, and the harm and risk that befell patients. For example:

…. finished a shift with dying patients in Werrington, Endon, Biddulph, Newcastle and Woore still waiting for pain relief”

“…diabetics have been left without medication to control their illnesses”

“…patients receiving incorrect drug doses and people being woken up at midnight for their medication”

“I felt unwell most of the day because of an increased workload. I felt stressed and anxious and was worried my work would not be completed during my shift. I went to A&E and was advised to rest to decrease my stress levels and reduce anxiety and stress at work.”

The trust staff who raised concerns were vindicated when the CQC later confirmed that staffing levels were inadequate and issued the trust with a warning, which included a need to improve compliance with the Duty of Candour:

“…we issued the trust with a warning notice served under Section 29A of the Health and Social Care Act 2008. The warning notice related to consent, systems to assess, monitor and mitigate risk, systems to assess, monitor and improve the quality and safety of services and Duty of Candour.” 16

Arising from this inspection – carried out in November 2015, a mere seven months after the publication of Francis’ report of the Freedom to Speak Up Review – the CQC also rated SSOTP as ‘Inadequate’ on the well-led domain. 16

Donnelly SSTOP inadequate

The CQC reported:

In 2014, three whistle-blowers independently contacted the Care Quality Commission (CQC) to share concerns about the trust. Specifically, they raised concerns about a poor leadership culture; unsafe staffing levels and, resulting from this, patient safety.” 16

Far from being the listening organisation that it was painted to be, staff felt let down by the trust:

Staff morale in community adult nursing services was low. Staff told us they felt despondent, demoralised, frustrated and let down by senior managers”. 16

Importantly, the CQC noted that there was negative feedback from some staff about the Cultural Ambassador service:

“The Staffordshire and Stoke on Trent Partnership NHS Trust created a role of ‘Ambassador for Cultural Change’. This innovative role was designed to allow the staff voice to be heard and concerns from staff to surface in a way that focused on the topic rather than the individual, protecting the identity of any staff member wanting to remain anonymous. This initiative received significant national attention. We saw that not all staff were happy with this role. They were often guarded and concerned they might not have the full protection promised. While some staff engaged with the Ambassador for Cultural Change many felt that the actions from this did not follow on as expected.” 16

When I asked SSOTP for data on staff disclosures to the trust’s Cultural Ambassador since she has been in post, the trust responded partially, arbitrarily omitting data for part of the period December 2014 to May 2015. This period for which SSOTP failed to supply the data in fact covered the months in which staff concerns about unsafe staffing escalated.

SSOTP breached its legal requirements under the FOIA by giving no valid reason for withholding this data. The trust, including the chief executive, did not reply to two reminders to provide the missing data.

I made an update request about staff disclosures to SSOTP’s Cultural Ambassador and again asked the trust to provide the data which it withheld. The trust finally disclosed the missing information.

This is correspondence with the trust CEO and disclosures by the trust:

Correspondence with CEO of SSTOP June 2015

SSOTP FOI 326 Response July 2015 staff contacts with Cultural Ambassador

SSOTP FOI 780 Response V1 contacts with cultural ambassador May 2017

 

SSOTP FOI 370 Response Aug 2015 general whistleblowing governance

 

Overall, the data shows that a total of 629 concerns have been raised with the Cultural Ambassador since she took up post in April 2013, and that 110 of these concerns related to staffing levels.

The trust disclosed data in irregular tranches but it is possible to see that there was a steady escalation in the level of staff concern about safe staffing throughout the period in which the Cultural Ambassador had been in post, until staff could stand it no longer and some of them whistleblew externally.

After the issues were exposed and regulatory action was taken, there was a reduction in the number of concerns about staffing:

Donnelly table of disclosures

 

Yet in June 2015, the SSTOP newsletter 17 simply reported:

Donnelly district nursing concern

Many questions arise from this matter. Why did the trust withhold data for the crucial period from December 2014 to May 2015?

How did the Cultural Ambassador deal with the 110 concerns about staffing levels that were raised with her? Were the concerns appropriately escalated? Did she escalate the concerns externally after managers failed to act on the concerns, (which she affirmed above was her duty)?

Did the staff who disclosed to the CQC and press raise their concerns with the Cultural Ambassador first? If so, how did the Cultural Ambassador deal with those disclosures?

The trust has indicated that the Cultural Ambassador keeps a database about concerns raised with her. Has this information been effectively tracked? If the rise in concerns about staffing was detected, what was done about it?

SSOTP has maintained that its Cultural Ambassador has direct access to the chief executive. Was the chief executive informed of the concerns?  How did trust management respond? What was the chief executive’s role?

How did the Cultural Ambassador satisfy herself that the correct processes had been followed? What steps did she take to ensure, in her own words, that staff received feedback that “things have been put right as a result and what the learning is”?

Why did SSOTP staff need to resort to external disclosures to the media and the regulator? Given that the trust has been less than open about these disclosures, have any of the staff who raised concerns suffered reprisal? If so, how has the Cultural Ambassador responded to that? Has the Cultural Ambassador herself experienced any obstruction or reprisal that limited her effectiveness?

These matters are important because they go to the heart of the Freedom To Speak Up Review.

Francis left employers in control of the whistleblowing process and of Speak Up Guardians.

Some might view this as handing prospective burglars your house keys.

It simply does not work if employers are not minded to behave accountably.

I asked SSOTP in 2015 if it had carried out any evaluation of the Cultural Ambassador role. The trust replied that it had not but that evaluation was planned. Upon further enquiry, it admitted that it had no formulated plans to share. Two years on, SSOTP now discloses that no evaluation has been implemented.

The national staff survey results for SSOTP also remain mediocre. 18  Last year, the trust was below national average for community trusts on staff security and confidence in raising concerns.

SSOTP 2016 staff survey result on confidence to speak up

Only 74% of SSOTP staff reported feeling secure to raise concerns about unsafe practice, and only 59% were confident that the trust would act upon the concerns raised. 19

Yet despite a complete lack of substance, Jeremy Hunt has repeatedly used the Freedom To Speak Up Review for public relations purposes, claiming it as part of the evidence that he is building the safest and most transparent health service in the world. A Department of Health statement to that effect in March was reproduced by the National Guardian:

Since the tragic events of Mid Staffs we have made considerable progress to making the NHS the safest healthcare system in the world including appointing a National Guardian and making sure every NHS organisation has a Freedom to Speak Up Guardian.” 20  

Over two years on from Francis’ Freedom to Speak Up Review, there is no shortage of new whistleblower cases, with tales of continuing suppression and reprisal by the NHS.

The latest case to come into the public domain only yesterday is that of David Phelan a governor at Kettering General Hospital NHS Foundation Trust. Squaring the circle, his case like Donnelly’s,  is ironically about fiddling of waiting times. 21

So over four years after the Mid Staffs Public Inquiry where the bottom line mattered more than safe staffing and performance was fiddled to hide falling quality, it seems reasonable to conclude that the NHS has learnt nothing.

Francis’ strategy of appealing to people’s better nature – instead of rigorous enforcement of whistleblowing governance – has not succeeded.

All that has been generated is a whistleblowing industry full of hot air and manufactured figureheads, that is primarily a public relations and political tool for the Department of Health.

I have asked the National Guardian to exercise her remit for identifying obstacles to safe speaking up, and for challenging the system, by reviewing what exactly went wrong at SSOTP.

Letter to Henrietta Hughes re SSOTP

I have also asked her to stop promoting the SSOTP model as an example of good practice.

Whistleblowers need real reform and genuinely safe harbour, not sound bites and gimmicks.

 

RELATED ITEMS

https://minhalexander.com/2017/03/22/25-best-and-25-worst-nhs-trusts-for-speaking-up-allegedly/

https://minhalexander.com/2017/04/21/health-education-england-hasnt-done-its-whistleblowing-homework/

STFU not FTSU

 

REFERENCES

1 Robert Francis’ report of the Freedom To Speak Up Review 11 February 2015, page 145

“Case study: An ambassador for cultural change

 A trust has established a new role which they have called an ‘Ambassador for Cultural Change’. The post was established in response to the very low usage by staff of an external advice line for those considering raising concerns. The trust knew that it had to do something differently to encourage people to speak up. The purpose of the role is to support and help drive a programme of change in the trust so that it becomes an open and supportive place to work. The Ambassador works independently and reports directly to the Chief Executive on a very broad range of matters that staff bring to her attention, such as safety, quality, welfare and process. Importantly, if she doesn’t think that the trust is living up to its values, she is able to hold them to account. She supports staff in raising concerns, offers reassurance to those reluctant to speak up, helps develop training and works across organisational boundaries to make the trust a safer place to be treated and a more open place to work. Since taking up the post, the number of incidents that have been reported and concerns that have been raised has increased dramatically”

http://webarchive.nationalarchives.gov.uk/20150218150343/https://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf

2 This is information about the Cultural Ambassador on the SSOTP trust website:

https://www.staffordshireandstokeontrent.nhs.uk/About-Us/ambassador-for-cultural-change.htm

This was the job description for SSOTP’s Cultural Ambassador role:

https://minhalexander.files.wordpress.com/2017/03/ssotp-jd-ambassador-to-cultural-change.pdf

3 Stafford hospital whistleblower comes out of the shadows, Charlotte Littlejones, Stoke Sentinel 29 April 2013

http://www.stokesentinel.co.uk/stafford-hospital-whistleblower-comes-shadows/story-18838037-detail/story.html

4 Helene Donnelly: ‘Every trust should appoint an ambassador for cultural change’

https://www.nursingtimes.net/helene-donnelly-every-trust-should-appoint-an-ambassador-for-cultural-change/5060123.article

5 Dedicated nurse Helene Donnelly earns OBE for NHS support role. Stoke Sentinel, 31 December 2013

http://www.stokesentinel.co.uk/dedicated-nurse-earns-praise-nhs-support-role/story-20382202-detail/story.html

6 Page 35 of the report of the Freedom to Speak Up Review

Donnelly advisor

http://webarchive.nationalarchives.gov.uk/20150218150343/https://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf

7 The National Guardian has asked Speak Up Guardians to distribute a promotional video about the Freedom to Speak Up project, as noted in the National Guardian’s newsletter of March 2017

Donnelly video

https://minhalexander.files.wordpress.com/2017/04/201703_ngo-newsletter_march2017.pdf

The video can be viewed here:

https://drive.google.com/file/d/0B6YC8LPXL9HsR29IaHgxUTBjR1E/view

8 a) Birmingham Childrens’ Hospital NHS Foundation Trust created an ambassador role, with mentoring by Donnelly:

Second trust creates role to support staff raise concerns, Jo Stephenson, Nursing Times, 25 June 2014

https://www.nursingtimes.net/clinical-archive/patient-safety/exclusive-second-trust-creates-role-to-support-staff-raise-concerns/5072312.article

b) It was reported that other trusts also followed SSOTP’s lead:

Growing interest in NHS cultural ambassadors, Sarah Calkin Nursing Times 17 September 2013

https://www.nursingtimes.net/clinical-archive/patient-safety/nurse-cultural-change-role-catching-on/5063214.article

9 Page 145 report of the Freedom To Speak Up Review

“7.2.15 I am persuaded that there would be advantages to the creation of a local ‘champion’ role in every NHS organisation or group of organisations. Consistency over at least the name would mean that staff who moved between different establishments would always know where to go for support. I have considered a number of potential names for this role including Safety or Speaking Up Advisor/Champion/ Guardian/Ambassador, Openness Advocate and Whistleblower/Raising Concerns Support Officer. What name is chosen matters less than a shared understanding of what it signifies. The role I envisage bears some, although not complete comparison to the well-established function of the Caldicott Guardians. Accordingly my tentative view is that an appropriate name would be Freedom to Speak Up Guardian.”

http://webarchive.nationalarchives.gov.uk/20150218150343/https://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf

10 Agreed records of meeting with the National Guardian on 2 February 2017

https://minhalexander.files.wordpress.com/2017/02/hh-meeting-records-23-01-2017-and-2-02-2017.pdf

11 National Guardian case review process, CQC, May 2017

The Francis Freedom to Speak Up (FTSU) review sets out how the freedom of NHS staff to speak up about their concerns should be supported. The review’s 20 principles set out how this support should be provided and additional examples of good practice to do this are given in Annex A of the FTSU review.

3 Those principles, actions and examples of good practice establish an authoritative and evidence-based set of standards that state how NHS trusts should support their staff to raise concerns and how they should respond to them.”

https://minhalexander.files.wordpress.com/2016/09/national-guardian-20170428_ngo_case_review_process_0.pdf

12 Letter to David Behan CQC chief executive, 5 May 2017

https://minhalexander.files.wordpress.com/2016/09/letter-to-behan-re-ng-employers-ignoring-whistleblowers-5-05-2017.pdf

13 Letter from Henrietta Hughes National Guardian 17 May 2017

https://minhalexander.files.wordpress.com/2017/05/letter-from-henrietta-hughes-evidence-base-17-may-2017.pdf

14 Leaked NHS dossier. Nurses log concerns over care. D Blackhurst, Stoke Sentinel, 2 April 2015

http://www.stokesentinel.co.uk/nhs/story-26274522-detail/story.html

15 Leaked NHS report reveals dying patients left alone and in pain. D Blackhurst, Stoke Sentinel 2 April 2015

http://www.stokesentinel.co.uk/exclusive-leaked-nhs-report-reveals-dying/story-26274491-detail/story.html

16 CQC inspection report May 2016 on SSOTP, from an inspection in November 2015

https://minhalexander.files.wordpress.com/2017/05/cqc-report-ssotp-may-2016-aaae6547.pdf

17 SSOTP staff newsletter June 2015

https://minhalexander.files.wordpress.com/2017/05/sstop-newsletter-june-2015-the-word-327.pdf

18 NHS 2016 staff survey results for SSOTP

https://minhalexander.files.wordpress.com/2017/05/cqc-report-ssotp-may-2016-aaae6547.pdf

19 NHS 2016 staff survey question level data: errors and incidents

https://minhalexander.files.wordpress.com/2017/05/nhs-staff-survey-2016-unweighted-question-level-data-reporting-errors-etc.xls

20 Department of Health press statement of 17 March 2017

https://minhalexander.files.wordpress.com/2017/03/dh-email-re-whistleblower-discrimination-17-03-2017.pdf

21 Kettering General Hospital ‘fiddled’ waiting time records, Matt Precey, BBC 26 May 2017

http://www.bbc.co.uk/news/uk-england-northamptonshire-40014896

 

Steve Trenchard, NHS regulators & FPPR

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 26 May 2017

The Department of Health and senior NHS officials often close ranks when things go wrong, and this includes the protection and recycling of NHS managers after wrongdoing.

Following a serious case of sexual harassment and a subsequent cover up by a mental health trust, Derbyshire Healthcare 1, two of the trust’s former directors were recycled.

Mick Martin a former trust NED and acting trust chair was appointed as Executive Director of Operations and Deputy Ombudsman by PHSO, only to later step down after the scandal over his appointment. 2

It transpired that the Ombudsman had been twice warned about Martin’s background, and acknowledged these communications. An investigation concluded that she made a ‘mistake’ in not looking further into the matter. 3

Steve Trenchard the former trust chief executive was also hired again by the NHS as a consultant, five months after resigning from Derbyshire Healthcare, also amidst much scandal. 4

Tracing the events around Steve Trenchard’s recycling reveals, according to FOI disclosures, that the NMC and a CCG lent a hand, and that CQC took little action to enforce FPPR. The details are provided below.

 

Background

This is the Employment Tribunal judgment which describes the sexual harassment in the case of Marks v Derbyshire Healthcare NHS Foundation Trust, and its cover up by the trust:

Helen Marks ET judgment

Steve Trenchard was the chief executive of Derbyshire Healthcare when a female fellow director – Helen Marks Director of Human Resources –  was sexually harassed and then victimised by Alan Baines the trust’s chair, for rejecting his advances.

The Employment Tribunal upheld all of Marks’ claims of unfair (constructive) dismissal, sex discrimination, harassment and victimisation.

In series of complicated events, Baines subjected Marks to degrading treatment and called her a “whore” and “you stupid woman”.

The Employment Tribunal noted that Marks and Baines formed an inappropriately close personal relationship. The ET also took the view that there was “duplicity” by Marks in that it found that she had used her relationship with Baines to secure favours. For example, agitating for the departure of another director whom she disliked.

However the ET noted that Baines was equally “happy to participate in the behaviour”, and concluded that he was culpable by reason of his position of great power. The ET rejected a suggestion from the trust’s barrister that Marks had led Baines on as regards the possibility of a sexual relationship:

“There is not a shred of evidence that at any stage she had indicated that she would be willing to enter into a sexual relationship with him [Baines]”

The ET concluded that Baines sought a sexual relationship despite Marks giving indications that she did not want this, and that he “engineered” allegations of bullying against her after she repeatedly resisted his sexual advances, with a view to her dismissal.

Trenchard Marks relationship with Baines.png

The ET also concluded that the trust treated Marks less favourably by suspending her but not Baines or Trenchard, when all three had been subject to allegations.

The ET also concluded that the trust failed to follow a fair procedure in that it ended Marks’ suspension and halted an investigation into allegations against her, but never explained the reasons for this. Equally, it refused to exonerate her, reneging on an earlier undertaking to apologise for its poor treatment of her.

The trust also failed to investigate her allegations that Baines had sexually harassed her.

Trenchard no investigation

In addition to upholding Marks’ claim of constructive dismissal, the ET also made other findings of repeated unfairness by the trust.

This included an extraordinary review of Marks’ grievance against Baines, by Lee O’Bryan interim Director of Workforce, which consisted of looking at documents and having a coffee with Trenchard:

Trenchard Lee OBryan review

O’Bryan concluded based on this ‘review’ that Trenchard was a “credible and sincere person”.

He also concluded that Marks’ suspension was reasonable, that there had been no wrongdoing by Baines and that there was no evidence of sexual harassment.

Of interest is the fact that O’Bryan was until his resignation in October 2015 also a non executive director at Avon and Wiltshire Partnership trust, where he was the lead director for whistleblowing. 5 6

The ET found that Derbyshire Healthcare inflicted detriment on Marks because she was woman.

Trenchard covered up

 

The Employment Tribunal’s findings with respect to Steve Trenchard 

Steve Trenchard is by background a nurse. Prior to his appointment as chief executive of Derbyshire Healthcare, he was the Director of Nursing at the very troubled West London Mental Health NHS Trust.

Trenchard’s LinkedIn account states: I am an accomplished, mature and skilled leader with a track record in people development and service delivery through establishing compassionate, appreciative and performance informed cultures and systems.” 7

The ET concluded that Steve Trenchard accepted Baines’ vexatious allegations against Marks “without question”, even though they tended to be non-specific, contained “sweeping statements” and were at times even “incoherent”.

The ET concluded that Trenchard allowed himself to be used by Baines, and that he decided through an irregular process, that Marks was guilty. This was despite the fact that he had not even spoken to her:

Trenchard Marks guilty

The ET also found that Trenchard willingly participated in Baines’ decision to sack Marks, without due process:

Trenchard complicit

Trenchard getting rid of Marks.png

The ET found unfairness in the manner in which Trenchard suspended Marks and denied her appropriate information about the allegations against her.

The ET found that Trenchard failed to check Baines or properly satisfy himself as to the reasons for Baines actions against Marks, despite the fact that Baines’ allegations against Marks were in the ET’s view obviously “trumped up”:

Trenchard colluded

Baines’ behaviour complicated matters further in that he tried to engineer Marks’ departure by settlement, and the ET concluded that this was to prevent his own behaviour coming to light.

Baines urged Trenchard to “bury” the matter:

Trenchard bury

However, in September 2013 Marks complained about Baines’ sexual harassment to Monitor’s regional director Adam Cayley and to the trust governors, and she submitted a grievance regarding the sexual harassment by Baines.

Trenchard Monitor

Importantly, AFTER Trenchard became thus aware of Baines’ real motives in pursuing Marks’ dismissal, Baines was allowed to leave the trust without a stain on his reputation.

The ET noted that Trenchard wrote to trust staff that Baines had decided to retire and had been a great ambassador for the trust.

Mick Martin was reportedly even more effusive:

Trenchard wrote to staff.png

The ET concluded that the trust protected Baines:

Trenchard Baines protected

In contrast, the trust repeatedly treated Marks in a hostile and unfair manner until she resigned due to loss of trust and confidence, and took legal action, eventually winning her claim to the ET.

Trenchard was suspended by the trust following the ET judgment in June 2015, and resigned in February 2016.

 

The system response to the Employment Tribunal Judgment, and Steve Trenchard’s appointment by Pennine Care NHS Foundation Trust

Unusually, the scandal arising from the ET judgment was such that Monitor conceded that there would need to be an investigation into the trust.

Two investigations were commissioned by the trust.

One investigation was by Deloittes, which “…assumed that the information provided to us and management’s representations are complete, accurate and reliable”. 8  This was the methodology applied in Deloitte’s much criticised governance review of Royal Wolverhampton and David Loughton. 9

The other investigation was conducted by a panel of three, including Alan Yates, whom Monitor previously installed as improvement director at the still struggling Norfolk and Suffolk NHS Foundation trust. NHS Improvement later appointed Yates as improvement director at Southern Health, and then promoted him to interim chair of Southern Health. Under Yates’ chairmanship, Southern Health recently told the media that it had apologised to a bereaved family, which the family disputed. 10 Yates has today been replaced by new chair. 11

The main report by Yates et al was published in Derbyshire Healthcare’s March 2016 board papers 8, but the Fit and Proper assessment on Trenchard has not been made public.

I found the main Yates report very different in tone to the ET judgment. It refers to the trust being so “overwhelmed” by the situation facing it that it “unconsciously or culturally” deviated from normal procedures:

“The Trust seemed to be overwhelmed by the nature of the challenge and decided perhaps sometimes unconsciously or culturally that its machinery would not work in the circumstances.”

The report also comments on the fact that “suspicion” was caused by the failure to follow accepted procedures, which could be understood to imply that Yates et al did not conclude that there was deliberate obscuration by the trust:

The Trust’s failure to use its standard reporting machinery, approach to risk management and normal approaches to escalation resulted in an approach which was not supported by the whole Board and denied those involved the protection as well as the support good governance offers. It also led to the suspicion that an issue which affected Board members was treated differently to other issues of governance.”

There is less emphasis in the Yates report on weighing the credibility of witnesses and their evidence than in some past FPPR investigation reports.

Derbyshire Healthcare currently refuses to even disclose whether Trenchard was found to be a Fit and Proper Person. 12

However, it seems the above Fit and Proper Person investigation report may have later featured in Trenchard’s subsequent and controversial appointment as a consultant at Pennine Care.

The appointment at Pennine Care was not a board position and not subject to FPPR, but the trust has indicated that a report about Trenchard’s fitness was considered as part of Pennine’s appointment process.

Pennine Care was reluctant to be fully transparent about the details of Trenchard’s appointment, but provided the following information:

  • Trenchard’s post at Pennine Care was not externally advertised:

Professor Trenchard’s consultancy services were commissioned in line with Trust processes for engaging external consultants.  It did not require external advertisement.”

  • Trenchard was interviewed by Pennine Care’s chief executive Michael McCourt and Medical Director Henry Ticehurst

 

  • Trenchard had been referred to the NMC which was reportedly satisfied of Trenchard’s good character and integrity:

The matter had also been referred to the Nursing and Midwifery Council (NMC).  The Trust reviewed the details of the NMC investigation which found there was no case to answer and noted there was no ‘evidence such that could be said to bring into question Professor Trenchard’s good character or alternatively his integrity or honesty.’ 

 

  • Pennine Care also indicated that a Derbyshire CCG provided Trenchard with a verbal reference, given to Pennine Care’s CEO, but that there was no further record of this.

South Derbyshire CCG advised me that it did not provide the reference.

North Derbyshire was evasive and claimed it did not hold a record about a reference, but did at least clarify that no reference was provided by its most senior officials. 

  • Pennine Care stated that it reviewed a report which concluded that Trenchard was a fit and proper person: 

Additional assurance was sought from reviewing an independent report, which found him to be fit and proper and no evidence of misconduct or wrongdoing.”

Of note, Pennine Care misled me by initially claiming that there were no communications with regulators about Trenchard to disclose.

Several exchanges later, the trust coughed up a letter from CQC, which revealed that CQC took no further action after examining FPPR issues at Derbyshire Healthcare.

This was despite the fact that CQC concluded from an inspection in January 2016 that Derbyshire Healthcare’s FPPR paperwork was not in order, and whilst Trenchard had been suspended by that point, there was no documented rationale as to why other managers named in the Marks ET judgment had been allowed to continue in their roles. CQC noted that no investigations had been mounted into the other managers named in the ET judgment.13

This is the information and CQC correspondence disclosed by Pennine Care:

Pennine Care Trenchard FOI 1 March 2017

Pennine Care Trenchard FOI – CQC letter to Pennine Care

Pennine Care Letter to CQC re Trenchard FOI 2017-0416

It is also worth noting that Trenchard had previously been a CQC insider, acting as an inspection chair for CQC. For example at Cambridgeshire and Peterborough NHS Foundation Trust:

Trenchard CQC inspection team.png

 

CPFT CQC inspection report 2015 AAAE1951

 

But as Trenchard has reportedly been found Fit and Proper, and the NMC has apparently vouched for his integrity, no doubts in that direction are likely to be countenanced.

 

REFERENCES

1 Helen Marks awarded £832,711by Employment Tribunal, BBC 16 February 2016

http://www.bbc.co.uk/news/uk-england-derbyshire-35581737

2 NHS watchdog faces new blow as deputy stands down

http://www.independent.co.uk/news/uk/politics/nhs-complaints-watchdog-deputy-quits-over-sexual-harassment-cover-up-a6970301.html

3 Report of investigation into the PHSO’s appointment of Mick Martin, by Sir Alex Allen, 13 September 2016

 

PHSO Helen Marks Report_of_a_review_into_issues_concerning_the_PHSO_0

4 Disgraced NHS boss lands a job – at the trust next door. Jennifer Williams. Manchester Evening News. 13 February 2017

http://www.manchestereveningnews.co.uk/news/greater-manchester-news/disgraced-nhs-boss-lands-new-12599826

5 Three AWP mental health chiefs resign. Eve Buckland, Swindon Advertiser, 28 October 2015

http://www.swindonadvertiser.co.uk/news/13902377.Three_AWP_mental_health_chiefs_resign/

6 Lee O’Bryan’s LinkedIn data:

Trenchard OBryan LinkedIn

https://www.linkedin.com/in/lee-o-bryan-a69ab533/?ppe=1

7 Steve Trenchard’s LinkedIn data:

Trenchard LinkedIn

https://www.linkedin.com/in/steve-trenchard-52354544/?ppe=1

8 The report of the Deloitte governance review on Derbyshire Healthcare, and the Yates investigation on Derbyshire Healthcare, were published in the trust’s board papers of 30 March 2016:

Derbyshire Healthcare Agenda Pack Public Board 30 MAR 2016 Update2

9 Report of Deloitte governance review on the Royal Wolverhampton NHS Trust

RWT_Governance Review_Deloitte_29112016 (1)

10 A missing ‘apology’ in five parts. Sara Ryan, 11 May 2017

https://mydaftlife.com/2017/05/11/a-missing-apology-in-four-parts/

11 http://www.southernhealth.nhs.uk/news/new-chair-announcement/

12 FOI disclosure 24 May 2017 by Derbyshire Healthcare NHS Foundation Trust, ref. 4147_001

Derbushire Healthcare FOI response 4147_001

13 CQC inspection report February 2016 on Derbyshire Healthcare NHS Foundation Trust

CQC Inspection report on Derbyshire Healthcare February 2016 AAAF1142

 

FPPR: CQC has lost all moral authority, but what will the National Guardian do?

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 23 May 2017

It was as expected, but still shocking.

The CQC has finally produced its responses to Regulation 5 Fit and Proper Person (FPPR) referrals that were made over a year ago, on two NHS directors found to have mistreated whistleblowers.

The referred directors were David Loughton CEO of the Royal Wolverhampton NHS trust – who needs little introduction amongst whistleblowers 1 2 3 4 – and Adrienne Murphy Director of Human Resources at Cornwall Partnership NHS Foundation Trust, and former Director of Workforce at South Devon.

Loughton was referred for a longstanding pattern of behaviour towards whistleblowers, and related Verita findings from an investigation of Loughton’s trust, in which Loughton’s conduct was specifically criticised. 5

Murphy was referred after she was recycled by the NHS, despite being criticised by an Employment Tribunal (ET) for bullying whistleblowers. 6

Murphy’s attempt to silence whistleblowers is described by the South Devon ET Judgment7:

Adrienne Murphy ET.png

The ET concluded that Murphy had subjected the whistleblowers to detriment, and that this detriment was due to the fact that they had blown the whistle.

However, the CQC has now cemented its appalling record on FPPR through disingenuous claims that the demands of FPPR have been satisfied in both Loughton and Murphy’s cases:

CQC 20170522 Minh Alexander FPPR (3)

CQC 20161114 FPPR closure letter to referrer no breach Cornwall Partnership ….pdf Muprhy

The NHS establishment’s protection of David Loughton has been quite extraordinary. It is exemplified by the Deloitte report commissioned by NHS Improvement, it seems, to clean up the embarrassment caused by Verita’s frankness. Deloitte did not even manage a slap on the wrist for Loughton – just a mild suggestion that he should ‘reflect’ on his ‘style’:

“However, there is undoubtedly scope for the CEO to give further reflection to the impact his personal style can occasionally have on those around him.”8

In its above FPPR closure letter about about Loughton, the CQC clings to this Deloitte report. A question arises about whether CQC delayed in its response to the FPPR referral on Loughton in order to benefit from Deloitte’s very convenient findings.

CQC’s FPPR closure letter about Murphy reveals that the CQC relied on the trust’s own investigations.

This is not only laughable, but inconsistent. The CQC has in the past rejected another trust’s internal FPPR review and demanded external, independent review – but perhaps because they knew that particular case was weak and would be damaging to whistleblowers.

In contrast in the Murphy case, it is hard not to conclude that the CQC resisted sunlight because they knew they were dealing with a genuine, proven case of whistleblower reprisal.

And wouldn’t you know it, but the CQC ‘forgot’ to send me both the outcomes to the Loughton and Murphy FPPRs – the former concluded in February this year, and the latter in November last year. They have only responded now because of a complaint about the delay.

That makes it a total of THREE times on which the CQC has skulked about in the shadows and ‘forgotten’ to send me FPPR outcomes.  Last year, CQC ‘forgot’ to declare that Mike Richards Chief Inspector of Hospitals had closed an FPPR referral on Paula Vasco-Knight – shortly before she had to be sacked by the NHS due to charges of fraud. 9

And it is said sometimes that three makes a pattern.

Unfortunately, I do not expect any better from the CQC. It is a laughing stock and a failure on all fronts.

What now remains to be seen is how the National Guardian responds to this continuing failure on FPPR.

When I last spoke to her, she seemed reluctant to confront the ugly side of whistleblowing failures, and preferred to speak instead of ‘improvement culture’ and ‘support’ for organisations to do better. 10

Nevertheless, she recently published written answers to questions raised at a national conference for Speak Up Guardians on 8 March 2017, in which she finally acknowledged indelicate terms such as ‘serious misconduct’:

20170428_ngo_conference_responses_to_submitted_questions

In response to questions about how she would handle serious misconduct by those who mistreat whistleblowers, she gave this assurance:

Where evidence of serious misconduct is identified, for example through the case review process, this information will be shared with regulators who are able to take appropriate actions as a result.”

Given the now all too familiar and well known regulatory failures to hold abusers to account, I wrote to Henrietta Hughes to ask what provision she has made for instances in which regulators defy her, and resist appropriate action.

It is part of the National Guardian’s job description to hold the whole system to account including implausibly, the central bodies that fund her office, employ her and line manage her.

I don’t expect to be reassured, but whatever the answer, it will be interesting.

In truth, the National Guardian’s office is simply a government device for delaying what needs to be done. Current UK whistleblowing structures and law are designed to be ineffective and need to be replaced, but this is fiercely resisted.

I leave you with two quotes from whistleblowers who have suffered under Loughton and Murphy’s management:

Prof David Ferry, Royal Wolverhampton whistleblower, to BBC File on Four, broadcast 7 February 2017:

“Things were deteriorating, and after a particularly difficult day in the department, there was a lot of upset and that night, when I went to my car, there was a sticker on my car that said ‘Death to the bastard Geordie whistle-blower.’” 11

It should be noted that CQC have ridden to Loughton’s rescue before, by falsely claiming in a CQC inspection report that controversial oncology treatment provided by Loughton’s trust was standard when it was not. When David Ferry challenged CQC’s inspection report, Mike Richards claimed that CQC had merely made a typographical error. 11

Clare Sardari South Devon whistleblower , who along with Penny Gates raised the alarm about Paula Vasco-Knight’s nepotism. This is Clare Sardari’s response to the CQC FPPR closure letter:

So, the ET Judge and panel got it all wrong and Adrienne Murphy is as pure as driven snow! And, of course, CQC are happy with that – all done and dusted. We have one totally Fit and Proper HR and Org Development Director who is now off scot-free.”

“ She had Penny’s and my life in her hands and she literally stuck the dagger in our back”

Clare Sardari tweets at @SardariClare

But then, according to the CQC, ruining perfectly innocent people’s lives, placing patients in harm’s way and wasting public resources through totally unnecessary litigation and discarding expensively trained staff is NOT serious misconduct.

I wonder what is.

 

RELATED ITEMS

https://minhalexander.com/2017/01/27/cqc-a-chief-inspector-doesnt-call/

https://minhalexander.com/2017/03/15/just-culture-sanctions-for-whistleblower-suppression-and-reprisal/

 

REFERENCES

1 Raj Mattu and the death of whistleblowing. Dr Phil Hammond, Private Eye issue 1364 May 2014

http://www.drphilhammond.com/blog/2014/05/07/private-eye/medicine-balls-private-eye-issue-1364-2/

2 Branded a rapist for daring to be a whistleblower: How brave cardiologist sacked for exposing needless deaths was smeared as sex attacker by bosses. Rebecca Hardy Daily Mail 11 February 2016

http://www.dailymail.co.uk/news/article-3443311/Branded-rapist-daring-NHS-whistleblower-brave-surgeon-sacked-exposing-needless-deaths-smeared-sex-attacker-bosses.html

3 Probe launched into NHS chief who blew £6m to get rid of whistleblowers as minister pledges to protect workers who speak out, Paul Bentley and Daniel Martin Daily Mail, 8 March 2014

http://www.dailymail.co.uk/news/article-2576096/Probe-launched-NHS-chief-blew-6m-rid-whistleblowers-minister-pledges-protect-workers-speak-out.html

4 Wolverhampton’s New Cross Hospital Cancer scandal: Cleared after four year fight! Victory for NHS whistleblower, Express and Star 18 January 2016

https://www.expressandstar.com/news/2016/01/18/cleared-after-four-year-fight-victory-for-nhs-whistle-blower/

5 Verita report Royal Wolverhampton Trust -FINAL-21-Jan-16

6 Senior hospital manager resigns following ex-Plymouth health chief ‘nepotism’ storm. Plymouth Herald. 22 August 2014.

http://www.plymouthherald.co.uk/senior-hospital-manager-resigns-following-ex/story-22803404-detail/story.html

7 ET Judgment Sardari and Gates v South Devon Healthcare NHS Foundation Trust and Torbay and Southern Devon Health and Care NHS Trust

https://www.dropbox.com/home?preview=Vasco-Knight+Tribunal+judgment+003-1.pdf

8 Deloitte report of review on leadership and governance at Royal Wolverhampton NHS Trust, 9 November 2016

RWT_Governance Review_Deloitte_29112016 (1)

9  CQC: A Chief Inspector doesn’t call, Minh Alexander 27 January 2017

https://minhalexander.com/2017/01/27/cqc-a-chief-inspector-doesnt-call/

10 Agreed records of meetings with National Guardian 23 January 2017 and 2 February 2017

https://minhalexander.files.wordpress.com/2017/02/hh-meeting-records-23-01-2017-and-2-02-2017.pdf

11 Transcript of BBC File on Four broadcast on whistleblowing, 7 February 2017

https://minhalexander.files.wordpress.com/2017/02/file-on-four-nhs-wb-transcript-07_02_17_fo4_speakingup.pdf