Dr Minh Alexander retired consultant psychiatrist 25 August 2022
Henrietta Hughes the former NHS National Freedom To Speak Up Guardian is a non executive director at South Central Ambulance Service NHS Foundation Trust. She took up this role in January 2022, after leaving the National Guardian’s Office at the end of 2021.
SCAS has been rated ‘Inadequate’ on Safety and the Well Led domain:
The trust board was criticised for insightlessnes, out of touch, “extreme positivity”:
“The board saw the culture as a strength of the organisation. It was sold with positivity, with many examples of forward thinking, innovation and high profile projects. There was undoubtedly much good work taking place and a genuine desire to be the very best. The risk of such extreme positivity was that this could feel dismissive of reality to the frontline staff and limit the feeling that raising or reporting concerns was a good thing to do.” [my emphasis]
A trademark of Hughes’ style is her “extreme positivity”. This was ridiculed from the outset of her tenure as National Guardian when she gave an interview to the Times in which she said the highly complex and engrained issues of poor NHS culture would be improved if only staff were more cheerful.
Most people with basic analytic capacity and emotional intelligence would more likely say that the NHS has a serious leadership problem, not that it was staff’s fault for being grumpy.
If that’s not overbearing intrusiveness and out of touch “positivity”, what is?
The CQC itself has form for over-rating trusts. It has fought a valiant battle against ambulance service reality for some years now. CQC insisted on rating West Midlands Ambulance Service as ‘Outstanding’ despite coroners’ warnings, other service failures and staff suicides.
Only in February this year CQC conducted an inspection triggered by whistleblowers and rated South Central Ambulance as ‘Good’ overall and ‘Good’ across all domains despite the whistleblowers’ concerns, although that rating seems to have now been removed from the CQC’s website. There are still some digital traces of the February ‘Good’ rating:
“We were contacted by a member of staff who had raised serious concerns during the inspection. They agreed for us to reveal their identity so that we could address the concerns.”
The CQC has also reportedly noted issues of very poor whistleblowing governance, with management smearing of the named whistleblower. Other SCAS whistleblowers who were not willing to be identified expressed understandable fears of retribution:
“It was suggested that the whistle blower had acted maliciously and was not behaving in line with their professional code of conduct. This was untrue and the whistle blower was able to produce documentary evidence that they had repeatedly raised concerns internally, although there was no requirement for them to do so. This aligns with information from others who shared concerns with the Commission but wanted their identities protected because they were afraid there would be retribution.”
CQC reported failure to act on concerns about the treatment of female staff, especially trainees:
“We received information from someone raising concerns about some women’s negative experiences at the trust; they said that this applied especially to student paramedics. The whistle blower said that concerns had been raised with senior leaders, the Freedom to Speak up Guardian and the organisational development team, but there was no evidence the concerns were being addressed. This correlates with reports from staff across the organisation who felt that the Freedom to Speak up Guardian was solely about patient safety issues and that other concerns were not recognised by leaders as being within the Freedom to Speak up Guardian’s remit, even though the role was created in line with national guidance. “
CQC reported that there were generally gross organisational culture issues.
This is especially embarrassing for the government given that one of its anointed figureheads for patient safety, Henrietta Hughes, was also SCAS’ Workforce Wellbeing Guardian.
“Henrietta Hughes acknowledged that staff were likely to be exhausted given the sustained pressures and highlighted how she would be delighted to support from the perspective of her new role as Workforce Well-Being Guardian.”
From SCAS board papers 26 May 2022
These are some of the adverse CQC findings about culture and staff experience at SC AS:
“Review of investigation reports and discussions with leaders and staff showed that organisational learning was not an embedded part of the culture. Incident investigations resulted in apportioning or suggesting where blame lay rather than focusing on the potential learning across the organisation. The actions tended to be around retraining for individuals rather than wider dissemination to mitigate future risks. Some reports blamed the patients for not providing accurate information to crews and many were judgmental about patients in their reporting.”
“Some staff felt the organisation’s leadership were visible, but others were concerned about the lack of recognition at senior level of the situation frontline staff were facing. Data provided by the trust showed two key executives, the CEO and the Director of Operations had visited sites and spoken with staff throughout the pandemic, but other executives and non-executive staff had not. Visible leadership is vital to support staff and could be achieved in a safe and pragmatic way either virtually or in person with appropriate PPE, meeting outside and other safety measures. Following receipt of the draft report, the trust shared details of additional visits by executives. It is acknowledged that face-to-face visits were reduced in line with national guidance to limit footfall and reduce the risk of viral transmission.”
“The trust had appointed a freedom to speak up guardian. However, several staff told us they could only access this service in their own time, which made this less accessible to those who had already worked a long day and needed a break. After the inspection the trust said that they freedom to speak up guardian worked flexibly to support staff, however this was not the experience of the staff which we spoke with. No impact on ratings.”
“The organisation employed in excess of 4,500 staff, but only had one Freedom to Speak up Guardian. They reported to the Interim Director of Patient Care and Service transformation; some staff said that they felt uncomfortable raising concerns that would be reported to someone in their own line management structure and worried that they could be identified.”
“Following the inspection, the provider said that there was a process in place for when the FtSUG felt there was a conflict of interest in the management structure; an alternative route for speaking up was in place. However, the staff we spoke with were not aware of this and said that they did not feel comfortable raising concerns because they felt there was a conflict of interest.”
“Our CQC survey had several comments made relating to harassment and bullying. One said, “When sexual harassment is reported it seems to be brushed under the carpet and the person is given a second chance. In the eyes of the law sexual harassment and abuse is never given a second chance and as a result people are reprimanded for their actions.”
Henrietta Hughes is not of course responsible for all the failures at SCAS.
However, in addition to sitting on its board for the last seven months, she was the National Guardian for over five years and shaped the insulting, happy clappy, PR approach to NHS whistleblowing.
As the good ship Freedom To Speak Up slowly sinks, and is exposed for the sad charade that it is, Henrietta Hughes has stepped into a air-sea rescue helicopter.
It is also fitting that ambulance trusts, which she neglected in her tenure as National Freedom To Speak Up Guardian, are helping to torpedo the government’s lies about progress in NHS whistleblowing.
But be positive.
Smile.
PETITION
Please click and add your signature to this petition to reform UK whistleblowing law – whistleblowers protect us all but weak UK law leaves them wholly exposed, lets abusers off the hook and it is a threat to public safety.
Dr Minh Alexander retired consultant psychiatrist 23 August 2022
This is a post to share data extracted from the. Chief Coroner’s website on coroners’ safety warnings related to NHS ambulance trusts in England.
Emergency services have recently collapsed due to a confluence of many disastrous factors.
Some have suggested that thousands are now dying because of NHS ambulance delays.
The Times reported on 21 August 2022 that there has been a spike in non COVID deaths and that the South West is most affected by excess deaths:
“Since the start of May, about 7,400 more people have died of non-Covid reasons than would be expected in the same period, an analysis of data from the government’s Office for Health Improvement and Disparities suggests.
The increase in deaths has been highest in southwest England, where about 8 per cent more people have died than expected. The region’s ambulance services are also suffering the worst handover delays of any region, with nearly a third of all patients in July being forced to wait more than an hour to get into A&E, a report by the Association of Ambulance Chief Executives (AACE) suggests.”
The Department of Health and Social Care is reportedly investigating:
“Early enquiries suggest most of the excess deaths in recent months have been in heart attack, stroke and diabetes patients, officials said.”
The database is not user friendly and there is no search function. This obscures patterns from public view, and therefore reduces accountability to the public.
Previously, it was necessary to laboriously search the whole database manually in order to extract data for analysis. In recent years, cases have been loosely grouped under a few categories, which allows greater public access. This is not fool proof as the indexing sometimes does not capture all cases that belong in a particular category. Nevertheless, it is now possible to manually sift each category.
The NHS ambulance trust related PFDS published since 2019 relate mostly to deaths which occurred in 2018 and 2019:
These PFD reports therefore give a snapshot of some of the problems that were building up in our emergency services in these years, before the final, current collapse.
This is a spreadsheet of the 59 ambulance trust related PFD reports that I found:
The coroners dealing with North West Ambulance Service seem most vocal in this regard.
When I previously looked at coroners’ PFDs, ambulance trusts were already noticeable for an escalating number of PFDs and findings of unsafe service pressure and problems with hospital handover.
A striking an example of a recent coroner’s PFD warning about unsafe pressures relates to the death of William Oliver on 1 November 2018, in which the coroner highlighted the severe problems for ambulance trusts facing long hospital handovers:
“An emergency call was placed to NWAS at 06.00…Mr Oliver thought he may have had two strokes in the night and he thought he had fractured his hip. In addition he was struggling to breathe and was sweating. The call was graded as requiring a Category 3 response. Subsequent calls at 06.26 between NWAS and Mr Oliver) and 06.44 (between Anchorcall and NWAS) were dealt with inappropriately and Mr Oliver’s deteriorating condition was not re-triaged. The Court found on the balance of probabilities that the response would have been increased to at least a Category 2 response…at 07.44 hrs a further call was received from Anchorcall who by this time could not make contact with Mr Oliver and the call was escalated at 07.50. At 07.51 an emergency ambulance was allocated and arrived on the scene at 08.05 when Mr Oliver was found deceased”.
“Another contributing factor to the unavailability of ambulances on the 31st October – 1st November 2018 was the turnaround times at Manchester Royal Infirmary, North Manchester General Hospital, Royal Oldham, Salford Royal and Stepping Hill were all particularly higher than anticipated with numerous ambulances delayed for over one hour. In total from the commencement of the nightshift on 31st October 2018 more than 273 hours of ambulance availability were spent at hospital sites handing over patients. The evidence from NWAS did not suggest this was significantly different to other nights or uncommon.” [my emphasis]
Concerns were also raised in the, death of Diane Gudgeon in May 2018, that the ambulance service protocol for mobilising extra resources in response to demand was set at too high a threshold and also was not always implemented when needed:
“Although EMAS was in a Capacity Management Plan (CMP) status (initially 2 and escalated to 3 at 10.35pm on 21st May 2018) this did not lead to the deployment of any additional vehicular resource. EMAS say that additional financial resources have now been made available”.
“The effectiveness of the EMAS Capacity Management & Escalation Plan (CMP) including, inter alia, the fact that:‐
a) CMP status 1 – 3 does not trigger the deployment of additional vehicular resources.
b) CMP 4 is only triggered when 200 calls are holding (this was previously 150) – this is a high threshold.
c) A Technical Commander can overrule a CMP status e.g. even if 200 calls are holding (CMP 4), this can simply be downgraded to CMP 3 by the Technical Commander.”
Generally, the PFD reports give a harrowing sense of routine, excessive pressure on the ambulance service. The delays are wasteful in that substantial resource is dedicated to precariously keeping all plates spinning – such as checks that have to be made on patients waiting for delayed ambulances. Inevitably, some of the deaths related to failures to keep all plates spinning.
“She called the emergency services on the 11th Nov 2018 to report she was feeling suicidal and threating to take an overdose. Reviews were supposedly undertaken at 22.39, 00.30 and 03.43 hours but these did not occur due to pressure at work. The paramedics eventually attended at 04.34 hours some 6 hours and 35 minutes after the initial call was made. The deceased was pronounced dead at her home on 12th November 2018 at 4 Bexon Court, Louth”
“Mr Jepson suffered stomach pain and called 999. The evidence was that the initial call was made at 15.32. That call was initially triaged as Category 5 but when the paramedic telephoned an hour later the matter was re classified at category 3. The ambulance arrived at 19.31….During the inquest, evidence showed:-
1. that the pressure on resources was high that day.
2. that a review at the two hour point should have taken place to ascertain if the matter needed re categorisation.
3. Such a review didn’t happen.
4. Whilst the evidence at inquest was that this is unlikely to have changed the outcome in this case, it was a concern to me that it could be in another case”.
Extreme service pressure may also lead to unprepared staff making mistakes. In the death of Sean Mansell, a paramedic who had not been trained was asked to assist with call handling due to severe service pressure, and made an error:
“Sean Mansell had a medical history of alcohol dependence syndrome. On the 5th July 2021, the West Midlands Ambulance Service received a 999 call at 19.23 hours from a neighbour of the deceased who reported that the deceased couldn’t walk. The call was allocated a category 3 disposition which had a target response time frame of 120 minutes. An ambulance arrived on scene at 03.38 on the 6th July which was 8 hours and 15 minutes later and not within the response time frame. This was due to the fact that demand outstripped available resources. A welfare call was undertaken at 21.28 hours by a paramedic who had been asked to go into the control room to assist with welfare calls due to the high volume of 999 calls outstanding. The paramedic had not received prior training on how to complete these calls.The welfare call was conducted with the neighbour. No contact was made directly with the deceased during the 8 hour delay which led to a missed opportunity to identify a change in his condition. When the ambulance arrived, the deceased had passed away on the sofa in his front room”
In addition to the handover at hospitals due to hospital bed shortages and delayed discharges due to social care shortages, there is also an example of another safety net that has been withdrawn by at least one local authority – the local Falls service, which might normally allow a welfare check and care whilst an ambulance was en route, had been axed. Death of 93 year old Douglas Minns:
“4 CIRCUMSTANCES OF THE DEATH
The deceased suffered a fall at home, [REDACTED] on 21st August 2018 at 8.30pm in the evening and he made an emergency call to the ambulance service. He was attended to by the ambulance service at 00.25 on 22nd August 2018 and he was eventually conveyed to Milton Keynes University Hospital arriving at 02.08. A CT scan revealed a large subarachnoid and subdural bleed caused by the fall. He died at the hospital at 15.50 on 22nd August 2018. The delay in the ambulance attending was due to high operational demand.
5 CORONER’S CONCERNS The MATTERS OF CONCERNS are as follows:
During the course of the evidence it was explained to me that the provision of a falls service was withdrawn some years ago, the service would provide for someone to attend the home of the person who had fallen, get them on their feet, assess their wellbeing, serve a cup of tea and get them back into bed if required. If they required more urgent treatment, they would report to the ambulance service. The withdrawal of the service puts patient’s lives at risk and, in view of the strains on the ambulance service, consideration should be given to reintroducing it. It is unacceptable for a 93 year old man to be left lying on the floor for four hours before someone responds.”
How many other cash strapped local authorities are in this position?
Indirectly related to resource levels, the PFDs also showed recurrent problems with ambulance service algorithms/ protocols for assessing need and priority. The fact that NHS ambulance call handlers are not clinically qualified means that if there is a flaw in an algorithm, or even if an appropriate algorithm has not been created, matters can very easily become unsafe for patients. The death of Christopher Williams in January 2019:
“His GP attended and requested an urgent ambulance since she was concerned about cauda equina. She also arranged for him to be admitted directly to the ward at the NNUH. She called the ambulance at 14.17 hrs, she was told it may take up to four hours, a pick up time of 15.17 was entered. At 15.20 the trust called the patient back his condition was worsening however the call handler did not escalate this information within the call centre and thus no one else was aware. It is understood the call handler used an incorrect algorithm (haemorrhage)….a further welfare call was made at 17.40 but no answer was received so this was escalated to the Duty Officer who subsequently upgraded the call to category 3. At 19.41 [redacted] made an 999 call describing Mr Williams as not being alert and having difficulty in breathing and the call was upgraded to a category 1. A RRV and DSA were dispatched at 19.45 hrs and arrived on the scene at 19.58. Mr Williams was conveyed to the NNUH arriving at 20.59 hrs. He was then kept in the ambulance until 23.56 hrs when he finally entered the Emergency Department….despite intensive treatment he died on 26 January 2019.”
“The trust’s Business Continuity Manager was unaware until the inquest that the call handler had erred in failing to escalate and in using the wrong algorithm….He gave evidence that the trust does not have an algorithm dealing with neurological deficits only.
This obviously costs more, but could it reduce waste and error? It is not only deaths that arise from the collapse of our emergency services, but also there will be increased morbidity and disability from failure to treat promptly, which all has a cost.
A number of coroners sent their PFDs to national ambulance organisations such as the Association of Ambulance Chief Executive (AACE) to raise concerns about flaws in algorithms or other systems issues.
One key concern was about the allocation of suspected heart attacks to Category 2 responses – within 18 to 40 minutes.
East Midlands Ambulance Service informed the coroner that they had an adjunct protocol, on top of the national protocol, for giving cases of chest pain and suspected heart attacks top priority in their call Category, but that this sometimes failed because of service pressure.
“The 999 call was triaged in line with national protocol for a primary complaint of chest pain and graded as a Category 2 response. Due to the overwhelming demand on the ambulance service that night, the ambulance did not attend Mrs Woods within the prescribed time of 18 to 40 minutes for a Category 2 call. At 01.26 hrs a further 999 call was made by the neighbour and Mrs Woods went into cardiac arrest during that call. Paramedics attended promptly but failed to administer Amiodarone contrary to National Rescuscitation guidance and without good reason. The delay in dispatching an ambulance and the failure to administer medication represent failings that prevented Mrs Wood from having the best possible chances of survival….Both EMAS witnesses agreed that 40 minutes appears too long to wait for an ambulance/ solo responder when the complaint is chest related and most likely a cardiac event….
The MATTERS OF CONCERN are as follows: 1) Patients requiring an emergency ambulance response reporting symptoms consistent with a cardiac event, but who are not yet in cardiac arrest, may wait for up to 40 minutes for a category 2 response in line with current national response times. 2) To combat this perceived inadequacy in nationally agreed response times, the East Midlands Ambulance Service NHS trust has developed an adjunct to the protocol by triaging all non Category 1 calls to upgrade calls such as Mrs Woods for a priority response. However, resources do not permit each and every call to be triaged, and Mrs Woods’ call was not triaged before she went into cardiac arrest.”
The coroner was concerned that ambulance standards were not necessarily based on clinical need:
“If the system for national response times is having to be supported by local adjuncts to the system, this rather suggests that the allocation of these calls in Category 2 lies outside clinical need.”
Some of the PFDs raised issues of leadership and organisational learning. After highlighting several concerns about East of England Ambulance Service’s handling of Christopher Williams’ case, the coroner remarked:
“This is not an isolated incident and it appears there are systemic failures in your organisation which should be addressed”.
It does appear that ambulance trusts and their staff have not been adequately supported and have been taken for granted for years, without adequate action by the government and without care for public safety. This is despite many warning signs, including the above explicit warnings by coroners.
It is not hard to see how covers up arise. Or that whistleblowers are suppressed. Or how staff welfare is impacted by the daily grind of juggling inadequate resources and knowing that patients have been avoidably harmed despite their best efforts.
NHS England too has been warned for years now by coroners of problems. The NEAS review is unlikely to be sufficiently rigorous in view of the conflicts of interest in the situation.
Given the gravity of the threat to public safety from the ambulance service collapse nationally, and how we arrived at this terrible mess, surely it should be a properly independent judge-led inquiry, with statutory force? And should its remit should be widened to include risks that are common to all NHS ambulance trusts?
Dr Minh Alexander retired consultant psychiatrist 20 August 2022
We have a perfect storm of collapsed emergency services. Years of under investment in the NHS and social care, loss of safe capacity, bed cutting, delayed discharges, loss of NHS staff from Brexit, a pandemic that has been allowed to run wild and wreak havoc, COVID related NHS staff sickness, and dangerous waiting lists. Not a storm, a tsunami.
Nevertheless, it is useful for context to this investigation to glance at relevant indicators that may shed light on NEAS’ workforce practices and governance.
Firstly, NEAS has been caught out trying to silence whistleblowers with highly inappropriate and unlawful secrecy clauses, to prevent them from pursuing public interest disclosures and requiring them to destroy evidence of wrongdoing.
NEAS’ past FOI disclosures and other information show following outlay on settlement agreements:
The settlement in 2021/22 is of special interest given what is known about the trust’s attempts to silence whistleblowers in the current deaths scandal, and the timeline of the scandal.
Based on NHS Digital data, NEAS has a trend towards increasing numbers of staff leaving in recent years. It shares this in common with other ambulance trusts.
Between 2011 and 2019, 1,395 NEAS staff resigned. The trust’s establishment is about 3,000 staff.
Between 2011 and 2019, a total of 42,350 NHS ambulance trust staff in England left:
Between 2011 and 2019 a total of 27,205 NHS ambulance trust staff in England resigned:
The NHS staff survey is another source of data on workforce relations. The overall response rate for the NHS is poor. Amongst ambulance trusts there is great variation in the response rate, raising some questions about the validity of the data and staff engagement in some of the trusts. Alternatively, it may also reflect the management approach to staff “compliance” with the survey:
From NHS Staff Survey 2021
The 2021 NHS staff survey confirmed that ambulance trust operational staff experience the highest levels of burnout:
The 2021 NHS staff survey revealed that ambulance staff are the group most likely to report detrimental understaffing:
From NHS Staff Survey 2021
This table shows how this metric on the NHS staff survey plummeted at ambulance trusts between 2020 and 2021. The most shockingly low score was at East of England Ambulance Service, where only 12.2% of staff thought there was sufficient staffing:
From NHS staff survey 2021
In recent years, roughly only a quarter of NEAS staff thought that there was safe staffing:
From NHS Staff Survey 2021
Ambulance trusts used to be gross outliers for bullying. This has improved in recent years, but most ambulance trusts still have levels of bullying above the national average. East of England Ambulance Service remains a gross outlier. This was the rate of reported bullying for each ambulance trust in 2021:
From NHS Staff Survey 2021
Ambulance trust staff gave mixed messages on the 2021 staff survey questions about whistleblowing, in common with the rest of the NHS. There is higher scoring on feeling able to report unsafe care, but a decrease in the perception that staff can speak out about anything. As has consistently been the case, staff are less likely to think that concerns will be addressed:
From NHS Staff Survey 2021From NHS Staff Survey 2021
The above are hypothetical questions about what might happen.
On a question about what actually happened, Ambulance trust staff said they under-reported bullying to the following degrees, which raises questions of engagement and trust. Ambulance trusts are all below the national NHS average for reporting bullying:
From NHS Staff Survey 2021
But that might not be so surprising given that the NHS staff survey composite scores on “compassionate leadership” is the lowest overall for ambulance trusts:
From NHS Staff Survey 2021
We shall see how the Dame handles the deaths scandal at NEAS.
It is worth bearing in mind that she had a whistleblowing scandal of her own, which the former National Freedom To Speak Up Guardian helped to suppress by breaching her own procedures in a most arbitrary and extraordinary way:
Please click and add your signature to this petition to reform UK whistleblowing law – whistleblowers protect us all but weak UK law leaves them wholly exposed, lets abusers off the hook and it is a threat to public safety.
Dr Minh Alexander retired consultant psychiatrist 19 August 2022
The Employment Tribunal was meant to provide accessible justice but in reality claimants who are unrepresented are much disadvantaged, as reported by this Cardiff University paper which looked at family courts and other civil cases::
“8. Unrepresented litigants participated at a lower intensity but made more mistakes. Problems faced by unrepresented litigants demonstrated struggles with substantive law and procedure. There was other evidence of prejudice to their interests.
9. There was at best only modest evidence that cases involving unrepresented litigants took longer, though cases with unrepresented parties were less likely to be settled.”
Employment Tribunal (ET) claimants, unfamiliar with the legal bear traps, tend to be over-optimistic about their chances of success:
“Claimants’ expectations about the outcome of the case at the point of initiating their claim were generally positive (Table 7.1). Nearly all claimants (92 per cent) thought that they had at least an even chance, and this included 53 per cent who thought that they were very likely to be successful. These positive views were widespread, even where the outcome turned out to be unsuccessful. For example, only 2 per cent of those whose claim turned out to be unsuccessful at tribunal, expected this to be the outcome at the start of the claim”
In the ET, only those who can match employer’s firepower with equal quality of legal representation have much chance of success and even then, many are only partly successful.
A guide written by a lawyer for lawyers facing unrepresented claimants or “litigants in person” in personal injury cases, , gives an example of how the other side might think:
In the ET, discrimination and whistleblowing cases have particularly poor outcomes for claimants, because the legal tests favour employers.
Many whistleblowers who go to Court are unrepresented.
A 2020 Greenwich University study found that half of whistleblowers are unrepresented in the Employment Tribunal:
A thorny issue is the price of justice.
Lay people may not understand how much justice costs.
The Courts have to manage this cost with fairness and the public purse in mind, and also the list of waiting cases. The Court backlog has grown as a result of the pandemic. Case management hearings are an opportunity for Tribunals to ensure the most efficient handling of cases.
But claimants who represent themselves, are at special risk of driving up the cost of cases and exposing themselves to a cost claim by the other side (the “Respondent”).
If Claimants are deemed to have caused unreasonable and unacceptable costs, possibly because of insufficient objectivity or perhaps because they do not fully understand the cost implications of the way in which they conduct their claim, they may have to pay the other side’s costs.
“Employers were more likely than claimants to be aware that costs could be awarded against a party if they unreasonably pursued and employment tribunal case. While 67 per cent of employers said they were aware of this, this applied to only 54 per cent of claimants”
“When a costs order or a preparation time order may or shall be made
76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—
(a)a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or
(b)any claim or response had no reasonable prospect of success.
(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.
(3) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal shall order the respondent to pay the costs incurred as a result of the postponement or adjournment if—
(a)the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing; and
(b)the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment.
(4) A Tribunal may make a costs order of the kind described in rule 75(1)(b) where a party has paid a Tribunal fee in respect of a claim, employer’s contract claim or application and that claim, counterclaim or application is decided in whole, or in part, in favour of that party.
(5) A Tribunal may make a costs order of the kind described in rule 75(1)(c) on the application of a party or the witness in question, or on its own initiative, where a witness has attended or has been ordered to attend to give oral evidence at a hearing.”
“Ability to pay84. In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.”
It is held that it is harder for employers to win costs against unrepresented claimants,
But most private individuals can ill afford costs of any sort.
Particularly sacked whistleblowers who face the prospect of blacklisting and loss of livelihood.
An interesting ET judgment has been published in which the Court ruled that a claimant conducted her case unreasonably, racking up costs with little understanding that she was doing so. BUT it has decided not to make her pay costs because her former employer, Kings, failed to give her a cost warning:
“Although the claim had no prospects of success and notwithstanding the Claimant was told this, she continued with it up to the hearing, she seemed genuinely perplexed by the legal complexities involved. The Tribunal considers that she would have had no understanding of the costs implications of what she was doing. The Tribunal considers that the Claimant ought to have received a costs warning to make her appreciate the implications of what she was doing. It was not enough to state the legal position to her on three occasions. In these circumstances, the application is refused.”
So it seems ignorance can be a defence sometimes.
Going to the other extreme, some employers make aggressive cost applications as a means of intimidating claimants, and if they are represented, running up the claimant’s legal bill.
A costs warning letter can in certain circumstances be a useful tool in persuading claimants to settle or drop a matter before a final hearing. The content of a good costs warning letter should include a detailed overview of why the claimant’s claim is legally flawed and, in no uncertain terms, set out the consequences of a claimant going on to pursue his or her claim to a final hearing. Careful thought does however need to be put into the content, timing and tone of a costs warning letter. Not every case is right for a costs warning letter, and Tribunals often take unkindly to overly aggressive costs letters against unrepresented claimants.” [my emphasis]
Regardless of any possible leniency and considerations by the Court for unrepresented claimants, do be very circumspect if as a whistleblower you are forced into the Courts. No matter how provoked you are, do your utmost to be reasonable and try to ensure that your conduct cannot be criticised. Otherwise it could be expensive.
Better still, try and avoid an employment dispute altogether, as few whistleblowers walk away from such disputes without emotional, professional and financial loss. There is also huge impact on families, especially where there are dependants.
In these days of great unreliability and corruption in government and captured regulators, it is worth considering whistleblowing directly to the press either anonymously or with agreed protection of your identity. Take careful advice before doing so.
Obviously there will be circumstances when some whistleblowers feel that such whistleblowing will not be sufficient to resolve their concerns, and they must go on the record.
In which case, prepare as much as you can for all eventualities, and again, take careful advice.
Dr Minh Alexander retired consultant psychiatrist 12 August 2022
Very important new evidence has arisen from hard-won FOI data that the US government bounty hunting programme has been tainted by cronyism and a revolving door between regulators and industry, and all facilitated by secrecy.
Alexander Platt an Associate Professor of Law at the University of Kansas has succeeded, after a two year battle, in uncovering the dominance of a small number of specialist law firms. Under cover of great secrecy, these “repeat players” have been hoovering up the bounty cash. It also seems that there is a revolving door and that law firms with ex-regulatory staff have been more favoured. Eye watering amounts of public cash have been involved, with law firms taking upwards of 30-40% contingency fees from hundreds of millions dollars of bounties.
Platt reported that one former senior Securities and Exchange Commission (SEC) lawyer, now a bounty hunter, was:
“…responsible for 10 awards in my [his] dataset, accounting for $152,575,000 – about 20% of all dollars awarded.”
The terrible mess described by this study is the very system that the lamentable Whistleblowing APPG and its troubling secretariat WhistleblowersUK want to introduce to the UK.
It is hardly surprising that monetising a core public function would lead to such a situation. This is a key reason why so many genuine whistleblowers oppose the appalling proposals.
I have been exchanging correspondence with the government department which currently controls UK whistleblowing law, BEIS, to raise concerns about the Whistleblowing APPG’s proposals.
As per usual, the government’s responses have been deflective and impenetrable. But I have now sent through the Platt paper as further evidence of concern. Given the high risk of misuse of public funds if the US bounty hunting model is replicated in the UK, I have copied my correspondence to the Public Accounts Committee, the Standards Committee and to Lord Evans, Chair of the Committee on Standards in Public Life.
Minister for Business, Energy and Corporate Responsibility
12 August 2022
Dear Lord Callanan,
University of Kansas: Evidence that the US bounty hunting model of whistleblowing sets up perverse incentives and wastes public funds on an industry that massively profits lawyers
Thank you for the letter from your department of 30 June 2022, attached, which is a reply to my letter to you of 30 May 2022, copied below.
In my letter I raised serious concerns about the nature of the Whistleblowing APPG, the APPG’s legislative ambitions, the PM’s Anti Corruption Champion John Penrose MP’s support of these ambitions and the conduct of its secretariat the private organisation WhistleblowersUK.
My reading of your department’s response to me is that it has not truly engaged with widespread whistleblowers’ concerns about those who would replace very weak existing UK law with something that is no better, and is in fact arguably worse in its exploitativeness.
I write now to pass on an item of academic research from Kansas University which has found cronyism and highly questionable practices at the heart of the US bounty hunting model, that some wish to import to the UK.
This is a link to the substantive report by Alexander Platt, Associate Professor of Law at Kansas:
It concludes that the US Securities and Exchange Commission and the US Commodity Futures Trading Commission have operated their whistleblower reward programmes in such a way that:
“…private whistleblower lawyers operate free from virtually all public accountability, transparency, or regulation”
A press report by Kansas University sums up the findings thus:
“the CFTC has awarded nearly two-thirds of all money to tipsters represented by a single law firm and the SEC had disproportionately favored tipsters represented by former SEC officials”
“About one-quarter of dollars awarded by the SEC have gone to clients of lawyers who formerly worked for the agency. Platt estimates that means as much as $70 million has been paid by the SEC to its own alumni.”
These revelations came only after a two year FOI battle by Professor Platt with the Securities and Exchange Commission and Commodity Futures Trading Commission, with improper secrecy being another criticised aspect of the matter.
The relevant tables from Professor Platt’s paper are copied below.
These tables show that a huge proportion of the monies paid out from the public purse go to the lawyers, and that a small number of law firms (“repeat players”) dominate the scene.
Astonishingly, Professor Platt also established from the FOI data that Jordan Thomas the former US official, who established SEC’s whistleblower programme but went into private practice, was:
“…responsible for 10 awards in my [his] dataset, accounting for $152,575,000 – about 20% of all dollars awarded.”
I hope all this illustrates graphically how ill-advised monetisation of whistleblowing will introduce all sorts of perverse incentives practices, that have nothing to do with the public interest whatsoever.
It would serve only to enrich a tiny few, whilst large tranches of socially important but unprofitable whistleblowing will be pushed aside by those who primarily seek to extract money from whistleblowing. The repeated scandals in the health and care sectors will not be improved by adopting this very flawed US model, as it rests only on financial recovery of looted money from scams in the financial sector.
I really do urge the government not to follow the US down this rabbit hole of injustice and highly questionable use of public money.
I should point out that the much-criticised Whistleblowing APPG and its even more troubling secretariat have received funds from the US bounty hunting law firm Constantine Cannon.
In December 2021, Constantine Cannon was open about its recruitment of a former SEC official:
I would be grateful to know where the government currently stands on adoption of the Whistleblowing APPG’s proposals for an Office of the Whistleblower as set out in the Robinson/Kramer Bills:
I copy this to Public Accounts Committee, the Standards Committee and Lord Evans of the Committee for Standards in Public Life with reference to the high risk of misuse of public funds if the Whistleblowing APPG’s proposals are adopted.
Yours sincerely,
Dr Minh Alexander
Public Accounts Committee
Standards Committee
Lord Evans, CSPL
From: “BEIS Correspondence” [address redacted]
Subject: A response to your recent enquiry – Ref: TOB2022/13299
Date: 30 June 2022 at 14:44:53 BST
To: Minh Alexander [address redacted]
Reply-To: BEIS Correspondence
Dear minh alexander,
Please find attached our response to your recent enquiry.
Subject: Concerns about lobbying by various parties to add flawed whistleblowing provisions to the Economic Crime Bill
BY EMAIL
Lord Callanan
Minister for Business, Energy and Corporate Responsibility
30 May 2022
Dear Lord Callanan,
Concerns about lobbying by various parties to add flawed whistleblowing provisions to the Economic Crime Bill
I write to raise a concern about the proposals by a number of parties to insert whistleblowing clauses into the Economic Crime Bill (ECB), which will not serve the public interest.
1) The organisation Protect has petitioned to piggyback the creation of its version of a Whistleblowing Commission onto the ECB.
Protect’s Whistleblowing Commission ultimately does not compel investigation of and follow up on whistleblowers’ concerns, thereby replicating the core weakness of existing UK whistleblowing legislation which has been failing whistleblowers for over twenty years.
2) The controversial Whistleblowing APPG, established with funding from US bounty hunting lawyers, has lobbied to piggyback the creation of an even worse US style “Office of the Whistleblower” onto the ECB.
Shockingly, WhistleblowersUK has approached bereaved people on social media to proffer legal services. I see this as part of a campaign to broaden the UK definition of whistleblower, to create the conditions for US style bounty hunting, where any informant can claim a bounty, even criminals.
Some members of the Whistleblowing APPG have also called for whistleblowers to be “rewarded” and “incentivised”.
The majority of genuine whistleblowers do not support such a US bounty model. Apart from conflicting with public sector Nolan principles, conflating genuine whistleblowing with the use of paid informants brings the good name of whistleblowers and whistleblowing into jeopardy. Whistleblowers already struggle to be heard and believed. They do not need to be further stigmatised.
Any Office set up primarily to retrieve money will also neglect whistleblowers from non-financial sectors and those whose disclosures are concerned with protecting people and not property.
If those lobbying in the interests of the bounty hunting industry succeed in massively widening the UK definition of a whistleblower, in order to recoup maximum profit for the industry, this dilutes the availability of finite protection resources for workers who are the real whistleblowers, and who need protection from severe detriment such as job loss.
The recent ten minute Bill put forward by the Whistleblowing APPG on 26 April 2022 has many worrying features. It can be understood as a bounty hunters’ Bill. The Bill proposes a scheme for whistleblower “recognition” which appears to mean financial recognition. The Bill also proposes massive fine of up to £18 million or more, which would cause great harm if levied against a public service. Whistleblower colleagues and I have prepared a formal critique to point out numerous areas of concern in the Whistleblowing APPG’s Bill, and the ways in which it gives comfort to bounty hunters:
I ask that if the government makes any whistleblowing provision within the Economic Crime Bill,
1) That it does not create any Whistleblowing Office or Commission under government control. Independence is key and the majority of whistleblowers see full independence of a whistleblowing agency as a key issue.
2) That the list of those protected is restricted to workers, close relatives who may be equally affected by detriment and a number of relevant non-workers such as listed by the EU Whistleblowing Directive (contractors etc…)
3) That it ensures that any whistleblowing body created has a remit and powers to investigate whistleblowers’ concerns if employers and regulators fail to investigate or fail to investigate appropriately
4) That financial rewards for whistleblowing are explicitly prohibited, and that fair compensation for loss and non-financial redress are the remedies
5) That any whistleblowing body created has powers to litigate to protect the interests of whistleblowers, for example by making relevant third party interventions
6) That any whistleblowing body created does NOT have the power to impose fines on public bodies, only against individuals, in recognition that public services should not suffer because of wrongdoing by senior managers.
7) That any whistleblowing body created is tasked with ensuring maximal early protection, conflict resolution and minimisation of wasteful litigation. The Whistleblowing APPG’s Bill fails to provide these elements, and perhaps unsurprisingly so, as it is not in the bounty hunting industry’s interest for conflict and litigation to be reduced.
8) That criminal offences are created in line with the full range of dissuasive penalties specified in the EU Whistleblowing Directive, and that any new whistleblowing body has powers of prosecution and to refer for prosecution.
9) That there are no legal barriers inserted which could be abused in order to persecute whistleblowers. For example, the Whistleblowing APPG Bill proposes, without definitions, that its Office of the Whistleblower may reject “frivolous, malicious or vexatious” whistleblower complaints. Given that the ‘good faith’ test of the Public Interest Disclosure Act was much abused before it was abolished, it would be seriously retrograde to re-introduce a means by which whistleblowers could be smeared as a legal technique for undermining their cases.
Lastly, please find below a link to an FOI disclosure by the Home Office which reveals email correspondence between the Whistleblowing APPG Chair and the Prime Minister’s Anti Corruption Champion. This confirms that the intention was to use a ten minute rule Bill by the APPG to target the Economic Crime Bill:
Former Health Secretary Sajid Javid announced that an independent investigation would take place into these matters, but not a public inquiry as requested by NEAS whistleblowers and bereaved families. The terms of reference are still awaited. The following written exchange took place in parliament on 1 August 2022:
To ask the Secretary of State for Health and Social Care, when he expects the independent review into the North East Ambulance Service (NEAS) to be completed; if he will publish the report of that review; and what steps he plans to take to help ensure that the standard of service provided by NEAS improves as quickly as possible.
NHS England is establishing governance arrangements for an independent review to formally commence as soon as is practicable. The families and staff affected will have an opportunity to contribute to the review’s Terms of Reference in due course. Once the review is completed, its report will be published independently of the National Health Service. Local commissioners and the NHS will support the implementation of any recommendations to improve the culture within and the quality of service provided by the North East Ambulance Service as soon as possible. Further details will be available shortly.
NHS England advises that the North East Ambulance Service NHS Foundation Trust has measures in place to improve the standards of service it provides. An investment of £38 million has been agreed for 2022/23 to improve clinical care, recover ambulance response times, increase the operational and Emergency Operations Centre (EOC) workforce and the establishment of an additional EOC in the south of the Trust’s area.
This revealed that trust managers failed to heed legal advice from the trust’s own solicitors about complying with coronial law.
The trust initially claimed in response to a recent FOI request, for an earlier and more clinically detailed interim AuditOne report of March 2020, that disclosure was exempt due to prejudice to the conduct of public affairs. It is currently responding to a request to internally review this refusal.
Alongside the 2020 AuditOne investigation of coronial process at NEAS, the trust also commissioned an external investigation into governance and workforce issues, including whistleblowing governance and bullying.
This was reportedly carried out by external investigators, Jennie Stanley (nee Fecitt) and Tracy Boylin.
NEAS was asked about the number of external whistleblowing and bullying and harassment investigations that it has commissioned in the last three years. It declined to answer on grounds that the numbers were too small and that disclosure might breach privacy through identifiability.
Asked why it opted to pay for private investigative services instead of seeking a review by the National Guardian’s Office, NEAS replied that it held no information about this.
NEAS refused to give even a summary of the recommendations arising from the Stanley report on whistleblowing and bullying.
It wriggled out of this with the implied claim that there are no existing summaries to disclose, and that it is not required under FOIA to generate new information:
“The Freedom of Information Act states that public authorities are not required to create new information to comply with a request for information under the act.”
Whilst this may be technically correct, assuming that NEAS is telling the truth that it has no existing summary of the recommendations to disclose, it seems a poor return for public expenditure.
Surely the public are entitled to at least a short explanation of why an investigation was needed, and what now needs to be done?
NEAS also contended that the information requested constituted personal data, and claimed this as a further exemption.
In the circumstances, given that bullying seems inked with poor whistleblowing governance, NEAS whistleblowers’ claims that the trust tried to apply unlawful gagging clauses to stop them raising public interest concerns and requiring whistleblowers to destroy evidence of wrongdoing, serious breaches of coronial law and apparent cover up of fatal care failures, the public interest arguably overrides the privacy exemption by NEAS.
NEAS has been asked to:
Clarify whether it has an existing summary of the Stanley report recommendations and to disclose if so;
The seniority of the individuals whose privacy NEAS claims would allegedly be breached – are of them any directors? This has a bearing on the public interest test in favour of disclosure.
Disclose the original recommendations of the Stanley report.
Local MPs have been informed of NEAS’ withholding of what appears to be significant data from public scrutiny.
Perhaps NEAS would be wise to think on this principle.
PETITION
Please click and add your signature to this petition to reform UK whistleblowing law – whistleblowers protect us all but weak UK law leaves them wholly exposed and it is a threat to public safety
Recent examples of NHS whistleblowers who were unprotected and unfairly dismissed despite the introduction of the ineffective Freedom To Speak Up model include Nephrologist Dr Macanovic and Jane Archibald Senior Nurse. Both of these blameless professionals have had to suffer years long ordeals and legal battles that are still not concluded:
Dr Minh Alexander retired consultant psychiatrist 1 August 2022
This is a brief post to share FOI data for anyone interested in events at BCUHB
Lack of NHS safe staffing and the linked issue of chronic NHS underfunding are unresolved issues that seem likely to remain with us for the foreseeable future, given our economic woes and troubled politics.
A cycle of politically driven suppression and bullying trail in their wake.
The same story plays out time and gain, and the same care scandals recur, despite investigations and inquiries such as the Mid Staffs public inquiry. The latter was politically awkward in that it advised that care should be driven by fundamental standards (ie. not resource driven). The inquiry laid a heavy emphasis on ensuring safe staffing levels, after cost-cutting, unsafe staffing levels were uncovered as a pivotal failure in the Mid Staffs disaster.
But then Robert Francis was knighted and appointed to the Care Quality Commission’s board and Jeremy Hunt the then Health Secretary scrapped NICE’s work on safe staffing standards and refused to introduce legislation on mandatory safe staffing.
On the frontline, a vicious cycle is set up of forced errors from thinly spread, stressed staff making inevitable errors and omissions and then being harshly scapegoated and punished for what are primarily system failings. Or they may not report incidents for fear of blame. Or if they raise concerns about system faults, they are bullied for that too.
Unsafe staffing is brutalising for both staff and patients. Burnt out staff cannot give of their best.
BCUHB consequently announced an investigation into these matters. The investigation should have concluded in July.
Via an FOI response of 19 July 2022, the health board has disclosed that staff raised a total of 3006 adverse events affecting staff levels over a three year period:
“From 1st April 2019 to 31st March 2022, there have been 3006 adverse events that affected staffing levels, please note this figure includes staff reporting positive COVID-19 statuses.”
The investigation was reportedly overseen by an external party, but my reading of the terms of reference is that an internal “review support team” assisted the external investigator:
Royal College of Nursing
This is a link to the RCN’s ongoing work on safe staffing:
By Dr Minh Alexander retired consultant psychiatrist 30 July 2022
Earlier this month I submitted evidence to parliament via Public Accounts Committee (PAC), one of the more rigorous committees in holding the Care Quality Commission to account.
I asked PAC to consider CQC’s track record of failure in the last eight years to properly apply Regulation 5 Fit and Proper Persons (FPPR). This is supposed to ensure that service providers have suitable directors who have not been guilty of or privy to serious misconduct or mismanagement.
Unsurprisingly, it was recently confirmed by FOI that CQC has NEVER found any NHS trust to be in breach of FPPR.
Unusually, the Committee has advised that it has passed the evidence to the National Audit Office, “who may be able to look into your [my] concerns”.
I have no idea if anything will come of this.
The NAO does solid work most of the time, but it had a touch of the vapours when dealing with an issue of whistleblowing policy and the CQC some years ago. It examined itself and the CQC amongst some other bodies, as examples of Prescribed Persons under our woeful whistleblowing legislation, and came to some surprisingly sunny conclusions.
In the meantime, the correspondence exchange with PAC is provided below.
CORRESPONDENCE WITH PUBLIC ACCOUNTS COMMITTEE
—–Original Message—– From: NATHOO, Heather <REDACTED> To: Minh Alexander <REDACTED> Sent: Thu, 21 Jul 2022 12:10 Subject: RE: Almost non-existent regulation of failing NHS managers is still the norm – gagging
Dear Dr Alexander
Thank you for your email to the Public Accounts Committee and for sharing the information below. I have forwarded this to my colleagues at the National Audit Office who will be able to look into the details of your concerns. They will be in touch if they have any questions.
If the PAC have any upcoming inquiries related to CQC then there is also the opportunity to submit written evidence. Evidence can be submitted anonymously.
The committee is currently agreeing on its future programme. Whilst I am not aware of any plans to look into the CQC in the near future, our website will be kept up to date so it’s worth checking intermittently to see what we have open.
Thank you again for writing to the PAC, and all the best
This covers an important additional detail in the case of whistleblower surgeon Mr Tristan Reuser.
His trust, University Hospitals Birmingham NHS Foundation Trust tried to settle with him in the latter stages of the Employment Tribunal litigation. The trust explicitly sought to gag him and to arrange settlement entirely outside of the ET process.
The effect of this would have been to conceal the damning reasons issued by the ET for its cost order against the trust, in which it criticised the trust severely for failure to disclose documents, from which the ET could not rule out “deliberate dishonesty”.
Settlement was not reached but the trust was reportedly willing to pay almost £100K for silence, which in the circumstances seems a serious misuse of public funds.
There has been no accountable [sic] for this conduct by trust managers, illustrating the general point that regulation of failing NHS managers is still almost non existent.
Yours sincerely,
Dr Minh Alexander
—–Original Message—– From: Minh Alexander To: [Public Accounts Committee and others, email addresses redacted] Sent: Mon, 4 Jul 2022 15:13 Subject: Re: Almost non-existent regulation of failing NHS managers is still the norm
BY EMAIL
Dame Meg Hillier MP and Public Accounts Committee colleagues
Health and Social Care Committee
4 July 2022
Dear Dame Meg and colleagues,
Re: Almost non-existent regulation of failing NHS managers is still the norm
I write to raise a serious concern that the Care Quality Commission and others are continuing to fail to protect the public and NHS staff from failing NHS managers.
As far as I can see, there has been no real learning from the MidStaffs disaster or the related public inquiry which concluded that a key contributory factor was serious failure by the trust board.
CQC AND REGULATION 5 FIT AND PROPER PERSONS
The government has gone through the motions of enacting a recommendation of the 2013 MidStaffs Public Inquiry report by amending the CQC’s regulations in 2014 and giving the CQC the responsibility of regulating whether service providers have Fit and Proper directors.
However, the CQC has now admitted that it has NEVER found any NHS trust to be in breach of CQC Regulation 5 Fit and Proper Persons since 2014:
CQC weakly contends that it might have done, had some individuals not resigned or been sacked before the FPPR process concluded.
However, as CQC has not ever breached any trusts even in the face of gross evidence of unethical conduct, such as Employment Tribunal-tested evidence of whistleblower reprisal or being party to manipulation of evidence, it is arguable as to whether CQC’s contention is credible.
CQC has claimed on many occasions to the public (patients, families and whistleblowers) that it has no responsibility for determining whether providers’ directors are Fit and Proper Persons.
It has instead typically claimed that its remit is limited to regulating the soundness of providers’ processes for ensuring their directors’ fitness.
Usually, the CQC gives no account of how it achieves this. Referrers are faced with a black box into which they insert a referral, from which they then receive the briefest of letters from the CQC telling them that the regulator has been satisfied that the providers’ process is satisfactory and that there is no breach of Regulation 5.
Very seriously, I discovered that the CQC failed even to ensure a sound FPPR process with any diligence. This arose from an FPPR process concerning the CEO of University Hospitals Birmingham NHS Foundation Trust. I asked for confirmation that the CQC had reviewed original assurance documents, as some parties were concerned that this had not happened. In replying to me, the CQC misled me by claiming that an “independent” FPPR review had been arranged by the trust.
This was untrue. It became evident that a subordinate trust employee and a lawyer from a firm previously retained by the trust, which had undertaken almost £500K worth of work for the trust in the previous three years, had conducted the FPPR review.
A trust non executive director who had been a party to related
disciplinary processes criticised by an Employment Tribunal was also involved in the FPPR review, creating another conflict of interest.
It now appears that the same retained law firm also conducted a previous FPPR review for the trust, which may have been an FPPR review on the same director. I am waiting for the trust’s clarification.
A question arises of how many times has the CQC accepted such compromised FPPR evidence?
The CQC dug itself in deeper by claiming that it had no say over how trusts conducted FPPR reviews, despite its published and internal material making it plain that its regulatory process includes assessing whether providers have “robust” FPPR process.
As a late development in the case, the Employment Tribunal published reasons for a cost order issued against University Hospitals Birmingham NHS Foundation Trust on 5 May 2022, which were damning:
There were serious criticisms of the trust for failures to disclose highly relevant documents either to the Tribunal or to the whistleblower Mr Tristan Reuser surgeon under GDPR. The Tribunal concluded that it could not rule out “deliberate dishonesty” by the trust and also observed that it considered that there could be future failings of governance by the trust.
I sent the above ET reasons document to Rosie Benneyworth the CQC Chief Inspector for Primary Care and current Chair of CQCs FPPR panel. She did not respond.
The truth is that the CQC admitted to whistleblowers in 2014, and again in its internal guidance to its own staff, that:
1) CQC can make a determination of whether providers directors are unfit, if it so wishes
2) CQC does not have direct powers to remove an unfit director, but can indirectly pressure a provider to remove an unfit director by using other powers
“It is not the responsibility of CQC to ensure fitness although we can take action against the provider if we believe an unfit person to be in a directorship position.”
The internal CQC guidance which makes this clear can be found here:
It appears that CQC simply does not have either the political will or the permission to act.
Disclosed correspondence of 4 May 2022 from the CQC to the Health Secretary about CQC’s failures in regulating maternity safety at Shrewsbury and Telford Hospital NHS Trust, reveals renewed CQC promises that the organisation has purportedly – yet again – revamped its processes:
This seems an empty claim when set against the reality of how CQC actually responds when asked to take action under Regulation 5 Fit and Proper Persons.
NHSENGLAND/IMPROVEMENT, DHSC AND THE KARK REVIEW
As a result of concerns about the disappointing lack of action under Regulation 5 Fit and Proper Persons and in view of very similar governance failures at Liverpool Community Health NHS Trust as were seen at MidStaffs, the government in 2018 commissioned the Kark Review on addressing failures of NHS management:
The review stopped short of recommending full regulation for NHS managers but it did consider a range of structured measures, including creation of a database to help track findings of misconduct and unethical behaviour, and a disbarring mechanism.
This too has simply not been acted upon.
NHS England/Improvement set up a steering group – the so called Kark Reference Group – but this was not transparent and minutes were not public. The majority of the minutes remain withheld.
A recent meeting with NHSE/I revealed that the NHS was still waiting for permission from Ministers to implement the Kark review recommendations in some form:
It is not even clear if a Kark register on NHS managers, if approved, will be retroactive. So it is possible that the longer the delay in implementation drags on, the more historical misconduct will be omitted from any register that is eventually set up.
NHS whistleblowers continue to be seriously harmed all the time.
Some of these whistleblowers are falsely promised that CQC will protect them and will hold erring NHS directors to account with Regulation 5. I have recently seen text correspondence from the CQC to this effect. The reality is the opposite.
A cabal of senior NHS managers, operating through a revolving door between providers and regulators, and sometimes the Department of Health and Social Care, more often than not acts with impunity. Failure is rewarded, cronyism and cover ups are the norm, faux governance and questionable investigations are arranged time and again, thus wasting public money to protect senior individuals’ reputations.
Only today, I received news that NHS England/Improvement is proposing effectively to investigate itself in an extremely serious matter of covered up deaths, exposed by whistleblowers who made futile attempts to seek help from NHSE/I.
This self-serving behaviour and impunity contrasts with the arbitrary, harsh discipline that is meted out to frontline staff when it suits abusive managers to do so, in the name of control or cover up. The panoply of abuse includes wholly unnecessary or even malicious suspensions, engineered dismissals through employer-provoked breakdown of relationships and vexatious referrals to professional regulators.
Some NHS boards refuse to accept the enormous impact of their harsh disciplinary actions against frontline staff. The Chair of University Hospitals Birmingham NHS Foundation Trust astonishingly stated in correspondence that GMC referrals should not be seen as punitive, despite the well-publicised deaths of and illness in doctors who are referred.
This is all the more remarkable because this trust admitted that of 26 GMC referrals made by the trust over a ten year period, none resulted in any further action against the referred doctors by the GMC. This raised questions about the quality of this trust’s referrals and whether the trust referred the right doctors.
The failure by the government and the NHS to act on NAO 2003 recommendations to track NHS staff suspensions rather says it all about poor NHS managers being allowed to flourish:
This normalised abuse represents an unaffordable waste of precious and very expensively trained and developed personnel, especially at a time when the workforce has been strained and depleted by the pandemic and socioeconomic factors.
We also see the cost, human and economic, in the continuing trail of NHS-related public inquiries and external reviews into serious care failings.
The prospect of being referred to a professional regulator is something that does not currently constrain NHS managers.
If it were, this might perhaps inject more accountability to the public, as opposed to the downwards pressure from the Department of Health and Social Care that has so often been identified as an unhelpful factor in care failings.
REQUEST
I would be very grateful if PAC could turn its attention to the poor regulation of failing NHS managers, and in particular the CQC’s poor performance, NHSE’I’s failure to implement the Kark review and the DHSC’s reported failure to give NHSE/I permission to implement Kark.
I would also be grateful if PAC and HSCC would take this evidence submission into account whenever they next hold their respective CQC accountability hearings.
Yours sincerely,
Dr Minh Alexander
Retired consultant psychiatrist and NHS whistleblower
PETITION
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University Hospitals Birmingham NHS Foundation Trust also made the headlines on 5 June 2022 because of reportedly poor treatment of doctors in training in obstetrics and gynaecology, requiring regulatory intervention:
Based on Tristan Reuser’s case and others, NHS Resolution agreed that NCAS’ successor body will consider safeguards against being fed false information by unscrupulous employers:
“We know that most people get good care in the NHS, but sometimes they don’t get the outcomes they need or things go wrong. In these circumstances, it is vital that as a system we reflect and learn from these events to improve the safety of care”
“Rosie takes up her post with HSIB on 1 August 2022.”
Let us hope that Benneyworth does not take to tearing up any rule books at HSIB.
A particularly gross example of CQC conflict of interest and failure on FPPR was when it passed its notorious former Chair Jo Williams as a Fit and Proper Person, removing obstacles to her recycling back into the NHS fold:
Jane Archibald’s shocking whistleblowing case about a cover up of an unqualified assistant being allowed to run epilepsy clinics and vary complex epilepsy medication featured a failure by her former CEO Stephen Eames to respond to her disclosures. He simply did not respond to her correspondence. NHSE/I has been asked to review his suitability for his current post as CEO of the Humber region ICS.
Dr Jasna Macanovic’s recent NHS whistleblowing case adds to the pile of managerial recycling scandals. John Knighton the medical director found by the ET to be centrally involved in her premeditated unfair dismissal has been protected by the trust and Mark Cubbon the trust CEO who failed to ensure her protection as a whistleblower has been promoted to a senior post at NHS England.
An FPPR referral has now been made arising from the executive failures in this matter.
By Dr Minh Alexander retired consultant psychiatrist 27 July 2022
This is a brief post to share correspondence.
The National Guardian’s Office previously signalled an intention to carry out a thematic case review of ambulance services, with no details provided.
In March of this year I asked for more information.
By correspondence of 6 April 2022, the National Guardian’s Office informed me that it first discussed the idea of reviewing speak up culture in ambulance trusts in June 2020.
The NGO refused to disclose any relevant correspondence with ambulance trusts, along with other requested documents, on grounds that these were all intended for publication.
The NGO later published some cursory plans for the review without publishing the withheld correspondence.
After prompting, the NGO has now reluctantly disclosed a single item of correspondence to ambulance trusts dated 13 April 2022.
This letter by the National Guardian announces an initially desk based review of information already in the public domain. The NGO also seeks access to reviews previously conducted by individual ambulance service trusts.
That is to say, the National Guardian’s work on the ambulance review did not begin until almost TWO YEARS after it was planned, and only after I made enquiries in March.
This is despite the obvious governance mess and great distress of ambulance service staff over several years and the much-publicised staff suicides at East of England Ambulance service.
The letter, which is signed by the National Guardian herself, claims that the ambulance service review was first decided in “early 2020” and that it did not go ahead because of the pandemic:
“In early 2020, the National Guardian’s Office (NGO) proposed a speak up review of NHS Ambulance Trusts.”
“During the pandemic, with ambulance trusts facing unprecedented pressures, it was not possible to undertake a review.”
In my view, this makes it sound like the ambulance review was planned before the pandemic got underway and was then parked because of the pandemic.
The truth is the ambulance review was planned in June 2020, when the pandemic was established. The UK had only just emerged from its first lockdown. As the NGO previously informed me:
“As you have indicated, the piece of work we are about to undertake was triggered as we seek to better understand the relationship between the FTSU Index and CQC ratings. This was first discussed with our Advisory and Liaison Board in June 2020.” [my emphasis]
Why was it not possible to at least undertake the desk based element of the review?
Tone deaf to the signs of emergency care collapse in recent months, the National Guardian’s letter maintains its self-justifying narrative for not acting until now with the following argument:
“However, as the pressures ease to some degree, we would like to commence the review.”
The NGO’s flexible approach to history aside, this is the letter to ambulance trusts:
My reading of this letter is that trust managers have little to fear and that ambulance whistleblowers have little reason to expect much from this exercise.
PETITION
Please click and add your signature to this petition to reform UK whistleblowing law – whistleblowers protect us all but weak UK law leaves them wholly exposed and it is a threat to public safety
Whilst the National Guardian’s Office sat on its hands, ambulance whistleblowers continued to suffer very serious detriment and patients and families suffered along with them:
Paul Calvert one of the NEAS whistleblowers gave an interview to the Northern Echo revealing disclosures to NHSE England/Improvement in 2021. In his disclosure correspondence he reported that NEAS’ internal whistleblowing arrangements – the Freedom To Speak Up structure – was used to delay and prevent transparency:
I have asked NHSE/I if it has looked into this extremely serious concern. The regulator has indicated that it will get back to me on this issue.
There was a conflict of interest in NEAS’ freedom to speak up arrangements in that the Freedom To Speak Up Guardian held a corporate role and reported directly to the Executive Nurse on a number of matters.
By Dr Minh Alexander retired consultant psychiatrist, 23 July 2022
Dysfunctional organisational dynamics affecting patient safety, at the Healthcare Safety Investigation Branch, were reviewed by the Kings Fund last year. NHS England hired the Kings Fund to undertake this review, but it did not openly announce that it had done so. Nor did it transparently publish the review report. The existence of the review only came to light because of whistleblowing to the press, and the review report had to be obtained via FOIA.
The King’s Fund report also revealed that there had been previous reviews about HSIB culture and leadership. The Kings Fund reported staff were mistrustful because these previous reviews had not been shared with staff and or had been altered before being shared with staff.
However, in the public domain was evidence that another investigation had possibly been undertaken. Susan Newton a former Monitor HR manager had privately conducted whistleblowing investigations – possibly for NHS England – as part of work done through her company, Susan Newton Consulting Limited.
Taken from Susan Newton’s LinkedIn entry
The timing of these investigations fitted with the known timeline of emergent whistleblowing at HSIB, which was first reported by the press in 2019.
Via FOI, NHS England disclosed that between 2017 to 2022 it had spent a total of £140,595.70 on Susan Newton’s services:
These services included two specific investigations into whistleblowing in 2021 and 2022 respectively.
Investigations undertaken by Susan Newton the last five years, according to NHS England. are shown below:
Table from NHS England FOI disclosure 19 July 2022
The summary of recommendations provided by NHSE arising from Susan Newton’s investigations confirmed that she investigated whistleblowing at HSIB, and concluded that there were failures in the handling of conflicts of interest affecting HSIB investigators:
“Changes were made to the way HR cases were managed and a flowchart was created for staff raising concerns, complaints and issues, this means that all staff are aware of how we handle employee relations issues.
Conflicts of interest: recommendations were made to improve the management of declaring and mitigating conflicts of interest, including how work is allocated to investigators.
Teams now complete a declaration of Interest form annually and are in addition required to highlight situations which may present themselves where a conflict is identified. The team leaders have a record of all the conflicts within their team to ensure cases are allocated correctly. Improvements will be made to the Standards of Business Conduct Policy as Healthcare Safety Investigation Branch (HSIB) moves towards independence as the policy does not provide the level of detail the teams require.”
Conflicts of interests amongst HSIB investigators have the potential to be extremely serious and to pose a threat to patient safety. The greatest potential for conflicts of interest arises from the maternity investigation arm of HSIB, which is not centrally located but dispersed through the regions and drawn from local personnel:
The above FOI disclosure also suggests that NHSE – and specifically HSIB – so lacks competence at distinguishing between staff whistleblowing and complaints that a diagram is needed to help its managers understand and to apprise staff of the proper organisational response:
“Changes were made to the way HR cases were managed and a flowchart was created for staff raising concerns, complaints and issues, this means that all staff are aware of how we handle employee relations issues.”
NHSE’s FOI response also gives further confirmation of concern about HSIB’s culture, governance and leadership:
“Organisational culture: recommendations were made to review culture, leadership and governance of the organisation”
NHSE explained in its FOI response that following on from the investigation by Susan Newton, the King’s Fund were commissioned to undertake their review of HSIB.
Two shocking but unsurprising matters arising from NHSE’s FOI response are:
NHSE’s previous failure to disclose the existence of these investigations by Susan Newton when it was previously asked to disclose all unpublished reviews of HSIB.
If NHSE considered this information fell under an exemption of FOIA, it was under a legal duty to confirm that it held the data and to cite the specific exemptions to disclosure which it believed applied.
The King’s Fund’s decision to only mention these highly significant whistleblowing investigations by Susan Newton in a single sentence in its report:
“At the beginning of the work, staff had been clear that they would not trust the report outcomes if they were first shared with the executive team, owing to a perception that the findings of previous reviews had been changed before publication, or not shared at all.”
This is especially so given that NHSE has now revealed that it was Susan Newton’s whistleblowing investigation which specifically paved the way for the King’s Fund review.
The King’s Fund was tightly supervised by NHSE and the DHSC during its conduct of the HSIB review, through a steering group. And due to redaction, we were unable to see what instructions the key supervising NHSE officer Aidan Fowler gave when he commented on the draft of the King’s Fund report.
Did the King’s Fund self-censor or was it asked to make minimal reference to highly relevant source material?
It is not a good look for an oversight body which regulates the whistleblowing governance of provider organisations to be less than candid and transparent about whistleblowing by staff under its care, or about whistleblowing investigations paid for out of the public purse.
Importantly, it is implied that the HSIB whistleblower(s) may have suffered detriment, because Susan Newton investigated a grievance related to whistleblowing.
However, we remain in the dark as NHSE’s secrecy about this affords putative abusers an escape route from accountability.
All the above emphasises that it is quite wrong that the legislation concerning Fit and Proper Persons in the NHS only applies to provider organisations. The misdeeds of those in oversight bodies are arguably much more serious and have much greater impact on patients, all the way up to the DHSC.
The Kark review recommendations sought to broaden the scope of the NHS Fit and Proper Person test, albeit stopping short of posing any threat to the incumbents of the DHSC.
I have now received confirmation from NHSE that ministerial approval has been given for the Kark implementation to proceed. The work since 2018 has been so slow that part of the current implementation is to decide on what will be implemented,
It has also been claimed that Terms of Reference have also been produced. A request for sight of these terms of reference has yet not borne fruit.
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Alexander's Excavations 