Author: minhalexander

By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist, 7 March 2021

Summary: The regulator the Care Quality Commission was implicated in a case of whistleblower reprisal by a private social care provider. An Employment Tribunal case revealed CQC emails exchanged with the provider in which Emma Hatfield a CQC inspector made critical comments about a care home whistleblower. The Employment Tribunal concluded that these comments showed a lack of impartiality. In addition, the ET severely criticised Pearl Jackson a director of the provider for harming and threatening the whistleblowers, behaving in a “dishonest” manner during proceedings and showing contempt for the ET. The provider company is part of a complex web of companies which according to Companies House, appear to lead back to the Cayman islands.   I drew the ET matters to the attention of Kate Terroni CQC’s Chief Inspector of Adult Social Care but she ignored the letter. I escalated matters to Peter Wyman CQC Chair. After this I received a troubling response from Mary Cridge CQC Deputy Chief Inspector of Adult Social Care. This response minimised the failure of regulatory impartiality by Emma Hatfield and even sought to cast more aspersions on the whistleblower based on what appeared to be employer hearsay. CQC has produced no evidence to show that it has taken action to prevent future failures of impartiality. Mary Cridge herself has made public overtures to the senior managers of providers which raise questions about boundaries.  She has been the CQC’s own Freedom To Speak Up Guardian since 2016.   The CQC declined to take any action against the whistleblowers’ employer under CQC Regulation 5 Fit and Proper Persons (FPPR) other than to ask if the provider was satisfied with Pearl Jackson’s fitness and expressing an intention to “monitor” services overseen by Pearl Jackson. Moreover, the CQC has declared that it will ignore any further correspondence from me on these matters because I was not directly affected. It has not taken this approach to other FPPR referrals in the past. One has to question why the CQC is so defensive in this particular case.   Charlton Court care home Pudsey Leeds, where the whistleblowers worked, is rated ‘Good’ across the board by the CQC, including on the Well Led domain. The CQC praised Charlton Court’s handling of complaints and concerns.   The public record in fact indicates that Pearl Jackson was apparently prosecuted for several counts of care home neglect and ill treatment in 2008, but the trial was halted due to CPS failure to disclose documents. I have now drawn CQC’s attention to the public record, assuming CQC is not already aware. I have asked CQC to show that it has taken action to ensure inspectors act impartially towards whistleblowers in future, and to ensure that a proper investigation is undertaken into the FPPR issues.

Background

On 11 December 2019 the Employment Tribunal found in favour of two care home whistleblowers Karen McGuire and Tracy Skitt, whom the Tribunal determined had been subject to detriment and unfair constructive dismissal. They were both forced to resign because their identities were revealed and their positions became untenable. They also suffered post-employment detriment such as employer intimidation. Ms Skitt was according to the ET additionally victimised through a “false” letter of dismissal.

The ET summarised as follows:

“The claimants were working in a home where they were both identified as the carers responsible for making disclosures to seniors/managers alleging neglect and complaining that the other carers were not doing their jobs properly. This was a home where gossip, division blame and bad feeling towards the claimants was openly expressed and condoned by management. Instead of following the whistleblowing procedures in place to protect those who alert the employer to suspected neglect/abuse they sided with the other carers.”

The named respondents were ADL PLC, Charlton Court Care Home Ltd and Pearl Jackson, a director of both companies.

I wrote about this strange and disturbing case after a Good Samaritan drew my attention to the judgment:

More CQC-Employer collusion against whistleblowers

The case echoes the story of Helen Rochester, who suffered detriment ultimately caused by the Care Quality Commission who should have held her employer to account, but sided with them.

Former senior police office recruited to intimidate one of the whistleblowers

The case was bizarre and included a strange tale of Bob Taylor, a former detective chief superintendent and occasional contractor to the whistleblowers’ employer, impersonating a CQC inspector in a phone call to one of the whistleblowers:

Ex Yorkshire Ripper cop ‘tried to silence whistleblower by posing as CQC boss’

He made the call to Karen McGuire at the request of the employer, and accused her of theft. The ET concluded that his actions were a detriment carried out on behalf of the employer.

Severe criticism of a senior manager who retaliated against the whistleblowers and whose evidence was not considered reliable by the Tribunal

Moreover, the Tribunal severely criticised Pearl Jackson a director representing the employer, for both retaliating against the whistleblowers and for her conduct during ET proceedings. The ET considered that Mrs Jackson had sent a threatening letter to one of the whistleblowers, and she instructed Bob Taylor to contact the whistleblowers:

“Mrs Jacksons intimidating and threatening letter to the claimant expressly refers to the disclosures made which she describes in her letter as ‘everyday occurrences” inflated by the claimant. Her letter was a deliberate angry retaliatory response to the disclosures made. Mrs Jackson had decided at the outset before any investigation was carried out by Mr Taylor, that the claimant in making these allegations was “evidently vindictive towards senior management”. She tells her so in the first paragraph of her letter. Mrs Jackson was materially influenced in her treatment of the claimant by the protected disclosures she had made. Her instruction to Mr Taylor to contact the claimant was given in that context of protecting the home and taking ‘whatever steps were necessary’. Mr Taylor’s call to Mrs McGuire was made with that purpose in mind. It was extremely intimidating and threatening.”

Pearl Jackson claimed to Karen McGuire that her whistleblowing disclosures were malicious:

“So far, my initial investigation reveals that you have indeed inflated many of the issues using every day occurrences to fuel what I believe to be malicious activity…”

The ET noted that Pearl Jackson had not in fact carried out an investigation as claimed in this letter:

“Mrs Jackson accepts she had carried out no investigation at all before sending the letter…”

The ET also concluded that Pearl Jackson’s motivation in sending the letter was to intimidate:

“Mrs Jackson intended the letter to frighten the claimant ‘off’ by telling the claimant she would ‘take whatever steps were necessary’ backed by the board of directors threatening legal action.”

The ET noted the following about Pearl Jackson’s conduct during proceedings:

“Her first approach was that no disclosures had been made by the claimants and there were no detriments. The claimants were telling lies because the home had been ‘exonerated’ in subsequent external inspections.”

“Mrs Jackson’s second approach was to allege that the claimants were the ‘wrongdoers’ in relation to any allegations made.”

The ET found that Pearl Jackson was not honest in presenting evidence and was not a reliable witness:

“Mrs Jackson, selectively and deliberately chose to disclose only the parts of documents that supported the respondents case that subsequent inspections had ‘completely exonerated’ the home. She only disclosed parts of a Leeds City Council Inspection Report following a visit to the home on 14 February 2019 and part of an Infection Prevention and Control Report, following an audit on 18 April 2019.”

“In an email of 2 October 2019, Ms Almzedi had raised with Mrs Jackson her request for full disclosure of documents, when it became clear to her that some pages were missing. She also requested that the original reports rotas and time sheets were produced at the hearing because she queried their authenticity. She had good grounds to believe the duty rota had been altered between exchange and the version produced in the bundle, because Mrs Jackson accepted that is what had happened. Despite being forewarned of this issue the original documents were only produced very late on in the hearing.”

Arising from this the ET concluded:

“She was not being open and transparent with the claimant’s representative or with the Tribunal and her conduct of these proceedings, does not go to her credit. There were other examples in our findings of fact that informed our view that Mrs Jackson was not a reliable witness. She was evasive and was not presenting evidence openly and honestly to the Tribunal.”

In a further judgment on 19 May 2020, the ET underlined the serious harm done to the whistleblowers, and made further serious criticisms of Pearl Jackson. For example:

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

The ET also found that Pear Jackson’s conduct in proceedings amounted to contempt:

“Mrs. Jackson has chosen to continue to act as the representative until last week. For that reason, to accommodate her ‘unavailability’, the remedy hearing was delayed until 12 March 2020. It was unreasonable for Mrs. Jackson, a named respondent, to then decide not to ‘turn up’, or send any evidence or explain her absence. The conduct of the respondents since the last hearing shows complete disregard and contempt, not only towards these claimants, but also to the Tribunal and these proceedings.”

A finding of lack of impartiality by a CQC inspector

The ET judgment also revealed that  Emma Hatfield a CQC inspector wrote emails to the whistleblowers’ employer which the ET concluded showed a lack of impartiality.

Emma Hatfield accepted “without question” counter allegations against the whistleblowers by Kelly Hopkinson care home manager, whom the ET found retaliated against the whistleblowers, revealed the whistleblowers’ identities, gave them bad references and concocted a false letter of dismissal against Tracy Skitt.

Importantly, by that point the CQC had received disclosures from Karen McGuire, and it should have been especially careful in weighing and filtering any counter allegations by her employer, not credulous.

The ET found that Kelly Hopkinson falsely claimed to have dismissed Tracy Skitt, who had in fact resigned:

“Miss Hopkinson’s evidence was that on 11 January 2019 before she supplied that reference she had dismissed the claimant. She relies upon a letter of dismissal (page 64). Miss Skitt never received that letter and was unaware of any ‘dismissal’. The letter in the bundle is signed by Miss Hopkinson. It states that Miss Skitt’s employment had been terminated during her trial/probationary period for not returning to work after the 9 January 2019.”

A negative reference and the false letter of dismissal by Kelly Hopkinson made it very difficult for Tracy Skitt to get further work, and reportedly affected her mental health.

The ET judgment gave this account of the email exchange between Emma Hatfield and Kelly Hopkinson, which the ET noted took place the day after Karen McGuire whistleblew to the CQC on 9 January 2019:   “External reporting to the CQC   170. Although it was not necessary to make any findings of fact about whether a protected disclosure was made to the CQC the evidence we saw produced by the respondent in the bundle (relied upon to support the ‘exoneration defence’) gave the Tribunal, some cause for concern.   171. On 10 January 2019, after Mrs McGuire had resigned informing Miss Hopkinson she would be reporting the home to the CQC, Miss Hopkinson sent an email to Ms Hatfield. The email states: “Hi Emma I just wanted to make you aware that a staff member walked out of shift yesterday due to gossiping. She has since taken to social media with immature comments. She has telephoned Pearl Jackson, the director and made some accusations about the home which Pearl is investigating and I am telephoning safeguarding to make them aware.   172. On the same day Emma Hatfield replies by email: “No problem at all. As if you haven’t got enough to do”.   173. Miss Hopkinson immediately labels the claimant as the trouble maker in this email exchange and Miss Hatfield sympathises without question. In another email on 14 January 2019, Miss Hatfield is given an update of the situation by Miss Hopkinson. Her response on the same date is “That is appalling. What is wrong with her?”. Another update follows and Miss Hopkinson apologises for ‘going on’ about it. Miss Hatfield responds “No you are not going on. It is upsetting I just don’t know what she thinks she will achieve”. In another email sent by Miss Hopkinson dated 16 January 2019, Miss Hopkinson states “I appreciate you have a process you have to follow but I really feel this is all just malicious and vindictive”. Miss Hatfield in her response of the same date states: “I’m sorry that you had to deal with all of this”.   174. Mrs McGuire having seen these emails says in her statement “I am alarmed at the inappropriate degree of empathy between the CQC inspector and the care home manager and I feel this is worrying given the nature of what was being reported. I would have expected more impartiality”.   175. Unfortunately, from the email exchange we saw (disclosed and relied upon by the respondent), we can see why the claimant has those views of the relationship between Miss Hopkinson and Miss Hatfield. From the claimant’s perspective she expected the CQC interaction to demonstrate the impartiality she had received in her dealings with the home.”

A reluctant CQC response to these ET findings

On 8 October 2020 I wrote to Kate Terroni CQC’s Chief Inspector of Adult Social Care and I asked the Care Quality Commission to:

• Look into the work of Emma Hatfield the CQC inspector who was criticised by the Tribunal and to consider what further work CQC should do on ensuring that its inspectors understand the need for impartiality in whistleblower cases and their duties in responding to such cases.

• Review the employer under CQC Regulation 5, with particular respect to the ET’s criticism of Pearl Jackson

My letter to CQC’s Chief Inspector of Adult Social Care was ignored. I therefore wrote to Peter Wyman CQC chair two months later, on 12 December 2020 to press the issues.

On 23 December 2020 I received a response from Mary Cridge, CQC Deputy Chief Inspector of Adult Social Care.

Mary Cridge sent me two letters, respectively addressing the concerns about Emma Hatfield the CQC inspector and Pearl Jackson the director criticised by the ET:

Letter from Mary Cridge 23 December 2020 re Emma Hatfield CQC inspector & issues of objectivity

Letter from Mary Cridge 23 December 2020 re Pearl Jackson Fit and Proper Person issues

In brief, CQC claimed it had looked into both issues and satisfied itself there was no more to be done save for “monitoring” the organisations where Pearl Jackson was a director:

“We continue to monitor the providers where Mrs Jackson is a director and any new information that comes to us, as this will help us decide if we need to take further action in relation FPPR and plan for future inspections.”

Regarding Emma Hatfield, Mary Cridge characterised Emma Hatfield’s behaviour in the Charlton Court case as “support” for the employer, that was within the ambit of her responsibilities:

“Emma’s role as an inspector involves supporting whistle blowers to raise concerns they may have about the care people receive as well as supporting providers to improve care and support for people using their services.”

Mary Cridge seemed to imply that Emma Hatfield had reason to be critical of the whistleblower, based apparently solely on hearsay from the employer:

“Emma received a further email from the manager of the service who informed her that a previous staff member was contacting relatives by phone and they were coming to see the manager concerned and upset by what they were telling them. She told Emma that she had been able to reassure them and they were leaving happy and satisfied with what they were being told by her. Emma was concerned that contacting relatives may have caused them distress and was extremely unfortunate.”

There is no indication in Mary Cridge’s response that Emma Hatfield verified these claims by the employer.

A note of defensiveness about impartiality arises in the following comment by Mary Cridge:

“Emma feels her support throughout the process for the manager did not distract her from the core tasks as a CQC inspector given the safeguarding concerns that were raised at the time.”

This is an astonishing way to describe uncritical acceptance of allegations by a provider manager found by the ET to harmed whistleblowers and to have manufactured a dismissal letter about a dismissal that never occurred.

Mary Cridge notes that Emma Hatfield was not asked to give evidence to the ET but she did make referrals to the local safeguarding team and concluded:

“I am satisfied that Emma took all steps to ensure people living at Charlton Court were safeguarded in a timely way and in line with our policies and procedure.”

However, a question arises of what slant was put on the safeguarding discussions. Was the credibility of the whistleblowers was undermined in anyway as a result of Emma Hatfield appearing to accept a number of the employers’ assertions without evidence of critical analysis and independent verification?

Notably, Mary Cridge herself has made public comments to provider managers which raise further questions of impartiality. More information on this is provided in the appendix.

I firstly asked CQC to clarify some factual anomalies in the letters from Mary Cridge.

On 8 February 2021 I received a hostile letter signed by Mary Cridge.

The letter admitted that Mary Cridge had wrongly referred to a single comment by Emma Hatfield when several troubling comments had been singled out by the ET, and the letter confirmed that CQC had reviewed the ET judgments, which Mary Cridge had previously referred to as transcripts.

CQC went on to express the following sentiments:

“While we note your intention to reply substantively, we do not intend to enter into further communication on this issue having responded in detail already. We therefore consider the matter closed as you have not been directly affected by our actions and future communication from you regarding this will be read and filed without a reply.”

Unfinished business

I have written to the CQC again to raise concerns that there is no apparent organisational learning by CQC from the Charlton Court case and to ask for more action:

Letter to Peter Wyman 7 March 2021  failure of CQC impartiality against a whistleblower & Fit and Proper Person referral

CQC clearly wishes to shut down the issue of impartiality by its inspector Emma Hatfield but CQC has yet to demonstrate that its inspectors understand what regulatory impartiality requires.

Moreover, the FPPR decision is lamentable given the ET findings about Pearl Jackson’s extraordinary behaviour.

If harming and threatening whistleblowers, conspiracy to intimidate and manipulating evidence are not actionable, what is?

Integrity is essential in services that care for the extremely vulnerable who may be unable to speak up for themselves. A lack of meaningful CQC action is effectively a lack of respect for the rights of the vulnerable.

I leave it to readers to decide if CQC has acted properly in this case, or whether it has once again contributed to silence and harmed the public interest.

Alas, UK whistleblowing law does not currently recognise detriment to whistleblowers caused by regulators or any parties other than employers. This is key loophole that needs to be closed.

If you have not already done so, please help by signing and sharing this petition for reform of wholly inadequate UK whistleblowing law:

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

Many thanks

APPENDIX

Prosecution of Pearl Jackson in 2008

I have pointed out to the CQC that according to press reports combined with data published by Companies House, it appears that Pearl Jackson was prosecuted for neglect and ill treatment in 2008 but not convicted because of errors by the CPS in not disclosing all documents. The details are as follows.

According to Companies House, a Pearl Lorraine Jackson has been a director of Charlton Court Care Home Ltd since 2012.

Companies House also indicates the same individual was previously a director of Newsham House Ltd between 2004 and 2005, company address Newsham House, 262 Stroud Road Tuffley, Gloucester, Gloucestershire, GL4 0AX.

In 2008, local press reported unsanitary environment and poor care at Newsham House care home, Stroud Road, Gloucester:

“What the Crown say was found was a lack of information regarding care plans and in many cases the non-existance of care plans.

“Photographs revealed the disgusting state of toilets in residents’ rooms. They were old, damaged and there was penetrative moisture. There was a general hygiene risk.

“In one case faeces with mould growing on it was found.

“There was no plan to address the patients’ social needs, nor was there any stimulation or diversion therapy. There was no one-on-one activity.

“Thought was given to closing the home, but the service provider ADL Ltd gave assurances that the problem was being managed.

“William Davies is the Managing Director. Pearl Jackson is the Operations Director. Derek Youds the manager, and Heather Bolton a deputy manager.”

It was reported that Pearl Jackson was charged thus:

“Operations director Pearl Jackson, 49, of Woolley Mill Cottage, Woolley Mill Lane, Notton, Wakefield, West Yorks, faces eight charges of neglect and two of ill-treatment, between May 2 2004 and July 26 2004.”

A chief constable report at the time noted that there were five residents’ deaths of concern at Newsham House:

“Op Star

Operation Star is the investigation into the Newsham House Registered Care Home in Gloucester.

It is a joint investigation with the Commission for Social Care and Inspection (CSCI) with assistance from Gloucestershire Social Care Directorate.

In 2002 and 2003 CSCI received complaints by family members about the treatment of their relatives in Newsham House. In particular investigations revolved around the death of five patients.

Following a series of interviews with the Managing Director, Operations Director of ADL Plc, the Manager and Deputy Manager of Newsham House have been charged with a large number of offences relating to the alleged wilful neglect of a patient receiving treatment for a mental disorder. They await trial.”

The trial judge’s decision to halt proceedings was reported thus:

“In a 42-page ruling, Judge David Ticehurst said two employees at Newsham House, in Gloucester, and two directors of ADL Plc, owners of the care home, would not have a fair trial if the prosecution went ahead.

Judge Ticehurst said his decision to halt the prosecution was sorrowful and a matter of “considerable regret”, as those who resided at the home were “the most vulnerable in society”

Pearl Jackson remains listed as a director of several companies providing care.

Tracing the ultimate ownership of these companies through Companies House leads to a company that appears to be based in the Caymans – “Oakhurst Court Holdings (Cayman) Ltd”.

More about Mary Cridge CQC Deputy Chief Inspector of Adult Social Care

Mary Cridge is the CQC’s own Freedom To Speak Up Guardian, having been appointed to that position in 2016.

Prior to that she cleared David Behan in 2013 of any serious wrongdoing when I complained that he ignored serious patient safety concerns that I escalated to him after local CQC inspectors had simply ignored me in 2012. For good measure, Mary Cridge claimed that a CQC complaints manager tried repeatedly but could not get through to me on the telephone, when this individual did not have my phone number and this was a recorded fact.

After her promotion to CQC Deputy Chief Inspector of Adult Social Care, Mary Cridge wrote an article which extolled the importance of good whistleblowing governance:

Inside CQC by Mary Cridge

And here she is displaying questionable regulatory impartiality towards a director of Barts, an NHS Trust which has just been found guilty of gross whistleblower reprisal:

There have been other similar displays towards the powerful in various provider organisations, which perhaps give context to the lack of perturbation about Emma Hatfield’s boundaries.

By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist 3 March 2021

Summary: On 15 July 2020 Imperial College Healthcare NHS Trust issued a strange denial of wrongdoing or doubt about Revd Paula Vennells’ fitness to be chair of an NHS trust. The trust initially denied that Vennells herself helped to craft this statement. After further questions, disclosed correspondence between the Imperial director of communications and NHS Improvement throw doubts on Imperial’s claim that Vennells did not have a hand in the statement.  Moreover, Imperial admits that the statement was sent to all board members before it was released, so all had responsibility. Other information obtained through FOI shows that Imperial had not agreed any terms of reference for an external review under CQC Regulation 5 Fit and Proper Persons, which the trust promised to undertake after Care Quality Commission intervention, by the time that Vennells tendered her resignation on 30 November 2020. The trust previously claimed that external legal advice concluded that its FPPR governance was “robust”. It is now revealed that this advice was provided by Capsticks LLP in February 2020. The trust now admits that it in addition to the usual administrative checks, Capsticks urged Imperial to consider more widely if Vennells was of good character. The question is whether the Imperial trust board applied itself to this consideration with good faith and any meaningful rigour. CQC’s deliberations on Imperial’s compliance with Regulation 5 Fit and Proper Persons is still awaited.

Paula Vennells was a Post Office Ltd senior manager for ten years, and the company’s chief executive for seven of these years.

She was seriously criticised for her role in the Post Office’s protracted and flawed denial that it unsafely prosecuted and convicted hundreds of subpostmasters, based on its unreliable Horizon computer system.

Vennells left Post Office Ltd in 2019, becoming chair of Imperial College Healthcare NHS Trust, with Dido Harding Chair of NHS Improvement taking part in her selection.

I referred Vennells to the Care Quality Commission under CQC Regulation 5 Fit and Proper Persons in December 2019, following a damning High Court judgment against Post Office Ltd.

BEIS ministers later questioned Vennells’ leadership of the Post Office and importantly, her fitness for her current role as Imperial chair:

Business minister asks Dept for Health why Paula Vennells is still running an NHS Trust

BEIS ministers also formally referred Vennells to the Care Quality Commission under Regulation 5 Fit and Proper Persons (FPPR),

On 15 July 2020,  after the BEIS ministerial FPPR referral, Imperial College Healthcare NHS Trust issued a pre-prepared statement at its Annual General Meeting, read out by the deputy trust chair Nigel Acher, which was dismissive of the serious concerns about Vennells’ fitness.

Strangely, the trust’s statement claimed there were no new insights about her role in the Post Office Ltd scandal from when she was appointed as trust chair in Spring 2019:

“Sir Gerald: “Thank you, thank you very much indeed Paula. Mr Wilson, thank you for your question. [he reads] Indeed no one could follow what has happened to many of the Subpostmasters using the Horizon system without being profoundly moved, but when Paula was appointed by NHS Improvement, just over a year ago, she was open about the ongoing Horizon issues during her time at the Post Office. And following the Post Office legal ruling and settlement at the end of 2019, and subsequent developments. our board has reviewed the situation carefully and thoroughly. All of the information we have remains in line with what was understood by NHS Improvements at the time of Paula’s appointment in April 2019. And the board has no additional insight into the complexities of the Post Office issues over the past 20 years and we are only able to draw on our own direct experience of Paula’s conduct and contribution to this Trust, which has been entirely positive. Thank you Paula, back to you.”

This was very surprising given several excoriating court judgments that were issued after Vennells’ appointment as Imperial Chair. The High Court and Court of Appeal judgments lambasted Post Office Ltd’s denial of problems with the Horizon Computer system and its “mid Victorian factory owner’s” attitude towards and treatment of subpostmasters. Judges also criticised Post Office Ltd’s disreputable conduct and many incorrect claims in proceedings, aggressive litigation tactics and its extraordinary, baseless and unsuccessful attempt to boot the High Court trial judge off the case. Post Office Ltd’s behaviour during the trial helped to drive up costs, thus effectively robbing gravely harmed sub postmasters and their families of much needed compensation.

As Post Office Ltd’s CEO, it is hard to see how Vennells could reasonably escape criticism for many of these failings. She was surely either an active party to bad governance, or she did not have proper grip and failed to understand, recognise or correct bad governance. Moreover, as CEO she must have had a significant hand in shaping Post Office Ltd culture and corporate habits in her seven years as chief executive, leading up to the conclusion of the Post Office trial.

I asked Imperial College Healthcare NHS Trust which trust directors helped to draft the statement of denial issued at the 15 July 2020 AGM. The trust initially answered evasively on 14 January 2021 as follows:

“This particular outline response was developed with input from board members, though not the chair.” [My emphasis]

When challenged about this failure to answer my question, the trust remained opaque and claimed on 25 February that it could not tell me which directors were involved in the drafting because it held no records. But it did concede that the statement was shared with all directors before it was issued:

“The Trust does not hold recorded information in response to this request. The statement was drafted by the director of communications based on discussions with board members and previous responses. As is usual practice, it was shared with all board members in advance, along with other suggested responses to questions likely to arise at the AGM, including questions that may have been asked directly of the chair.”

The Imperial FOI response of 25 February 2021 can be found here.

Additionally, Imperial disclosed that it ran its statement on Vennells past the regulator NHS England/ Improvement. The trust disclosed its email correspondence with the regulator as part of the 25 February 2021 FOI response.

Significantly, despite the trust’s above claim of 14 January 2021 that Vennells had no part in drafting the 2020 AGM statement, the correspondence disclosed on 25 February 2021 suggests that Vennells (and the Imperial’s CEO Tim Orchard) may have been involved in preparing the trust’s AGM statement. An email by Michelle Dixon Imperial’s Director of Communications stated:

[date redacted but probably 14 July 2020] “I’ll send to Tim and Paula this evening too for any updated view.”

I have asked the Trust to clarify this apparent anomaly and explain why it originally denied that Vennells was party to drafting the denial.

Michelle Dixon like Vennells, has passed through the Cabinet Office.

Vennells got a seat at the Cabinet Office board table as a NED in February 2020 as she departed from the Post Office, but later resigned, after pressure on the government from MPs and peers mounted.

Although Imperial College Healthcare NHS Trust issued the defiant 15 July 2020 AGM statement about Vennells’ fitness, this was followed by the Criminal Cases Review Commission’s finding there had been a miscarriage of justice caused by the Post Office. CCRC referred unsafe sub-postmaster convictions to the Court of Appeal.

Imperial was then forced to agree to commission an external review of CQC Regulation Fit and Proper Person issues on Vennells, after intervention by the Care Quality Commission.

Imperial indicated in its FOI response of 14 January 2021 that it abandoned this external review of FPPR because of Vennells’ resignation from its board:

“Paula Vennells tendered her resignation from Imperial College Healthcare NHS Trust on 30 November 2020. In light of this, and bearing in mind the cost of the investigation and the fact that it is unlikely to report before 31 March, we propose to not go ahead with the review as planned.”

In the trust’s later response of 25 February 2021 it additionally admitted that it had not even agreed terms of reference for the external review by the time of Vennell’s resignation:

“The Trust approached a barrister who agreed to take on the work, but we had not agreed the terms of reference or entered into a contract at the time of Paula Vennell’s resignation. No work was commenced and we therefore do not hold any further recorded information in response to this.”

Additionally, in January 2021 Imperial claimed to Karl Flinders at Computer Weekly:

“We sought external legal advice to check our processes for reviewing our trust executive and non-executive directors’ compliance with the CQC’s Fit and Proper Persons Requirement (Regulation 5). The advice confirmed that our processes are robust.”  

The trust has now supplied additional information on this reported legal advice, showing that the advice came from Capsticks LLP in February 2020 and that it focussed mostly on narrow administrative definitions of Fit and Proper Persons:

“We sought advice from Capsticks Solicitors LLP in February 2020 upon receipt of a letter from the CQC about the application of Fit and Proper Persons Requirement (FPPR) to the Trust chair.

The advice received confirmed the Trust’s view that it has robust FPPR processes in place, specifically in relation to the issues raised by the CQC letter.

On the basis of the information provided by the CQC, the requirement of the FPPR in question was whether or not the Trust chair was of good character. In that regard, none of the specific considerations referred to in part 2 of Schedule 4 of the FPPR applied.

Specifically, it was not the case that Ms Vennells:

• did not have the qualifications, competence, skills and experience that are necessary for the position of chair (the CQC had confirmed at its last inspection of the Trust, that the senior leadership team had the appropriate range of skills, knowledge and experience)
• had health concerns
• had been responsible for, been privy to, contributed to or facilitated any serious misconduct or mismanagement in the course of carrying on a regulated activity.

The advice also noted that the regulations state that, in assessing a director’s character, the matters to be considered must include those in Schedule 4 part 2 though not exclusively. The Trust was advised to consider other matters in addition to those specified in Schedule 4 part 2 if they indicated that the chair may not be of good character, which we also endeavour to do.” [My emphasis]

A key question is whether trust directors took the last part of this legal advice seriously.

There is of course a serious flaw in the system. NHS Improvement appoints the chairs and non executive directors of non Foundation NHS trusts, but thereafter the subordinate trusts assume legal responsibility under CQC Regulation 5 Fit and Proper Persons for ensuring that directors continue to be Fit and Proper Persons. It is unfair to place trusts in this position of having to effectively overturn unsuitable appointments by the regulator.

But trust directors are nevertheless highly paid senior officials who should put their duty to the public above their self interest.

We await the outcome of the CQC’s deliberations on the FPPR referrals that it has received about Vennells’ role at Imperial.

The question that CQC must address is whether the trust’s FPPR governance is acceptable, regardless of whether Vennells is departing.

But any criticism of by CQC of FPPR issues at Imperial is a sensitive matter because it would effectively also be a criticism of NHS Improvement and Dido Harding NHSI Chair, who took part in Vennells’ selection as Imperial Chair.

UK whistleblowing law

Subpostmasters were not covered by existing weak UK whistleblowing law, so their countless disclosures to Post Office Ltd about flaws in the Horizon computer system and unsafe prosecutions were not recognised under the law as whistleblowing.

UK whistleblowing needs to be greatly strengthened to cover a wider range of whistleblowers, to prevent cover ups and to deter and sanction those who cover up.

If you have not already done so, please help by signing and sharing this petition to parliament to reform the law:

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

Many thanks

RELATED ITEMS

Replacing the Public Interest Disclosure Act (PIDA)

Post Office Horizon scandal: How Dido Harding helped to recycle Paula Vennells, FPPR and a suggestion

Is Paula Vennells a Fit and Proper Person?

After the Post Office Horizon Trial: Paula Vennells, Mammon and the bishops

Regulation 5, Fit and Proper Persons: Dissecting CQC’s Dissembling

Sorry is the hardest word: CQC, Paula Vasco-Knight and Regulation 5 Fit and Proper Persons

By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist 28 February 2021

Summary: A common experience amongst whistleblowers is to find that employers destroy important records in order to cover up.  This is a brief post about an example of poor whistleblowing record keeping by ‘Outstanding” West Midlands Ambulance Service NHS Foundation Trust (WMAS), brought to my attention by an NHS worker who prefers not to be named. An FOI request and a related complaint to the Information Commissioner revealed that the trust allegedly held almost no records of meetings on whistleblowing about racism, and a conclusion by the ICO that some of the related correspondence had possibly been destroyed. The trust does not recruit BME staff in proportion to the diversity of its local population. The trust’s workforce race equality data showed that BME staff are disadvantaged in terms of bullying and harassment, equality of opportunity and experience of discrimination. The trust’s Freedom To Speak Up Guardian is corporate – the Head of Organisational Development – and almost no staff concerns are raised with her. The trust’s denial that it held records of an important whistleblowing event calls into question whether the trust Freedom To Speak Up Guardian is keeping adequate records of disclosures made to her.

Background

WMAS was dubiously rated ‘Outstanding’ by the Care Quality Commission despite repeated criticism by the coroner for systemic failings and mediocre staff survey results. The 2016 staff survey, preceding CQC’s January 2017 ‘Outstanding’ rating, showed that 34% of WMAS staff had experienced bullying and harassment by other staff in the previous 12 months. It also showed that only 62% of WMAS would feel secure raising concerns about unsafe clinical practice.

The ICO’s decision on a complaint about whistleblowing records at WMAS

A decision notice by the Information Commissioner of 20 January 2021, kindly sent to me by an NHS employee who tellingly would prefer not to be named,  now reveals that WMAS claimed to have few records of important meetings about race discrimination concerns at the trust in 2017.

On 4 August 2019 the trust was asked for documents relating to whistleblowing meetings as follows:

“Please provide the agendas and minutes of meetings held with WMAS BME staff raising concerns about racist staff, primarily at Willenhall Hub, held on the following dates; 22/07/2017 – WMAS Chief Executive, Dr Anthony Marsh. 24/07/2017 – Meeting with WMAS Emergency Service Operations Delivery Director, Nathan Hudson. 28/09/2017 – WMAS Chief Executive, Dr Anthony Marsh. 09/10/2017 – Meeting with WMAS Chief Executive, Dr Anthony Marsh. Please provide all preceding and following email correspondence relating to the agendas and actions arising from the above meetings”

WMAS claimed that it held none of this information save for two emails, request reference FOI 2782:

“That information comprised two emails associated with Trust staff who were involved in facilitating the meetings, and in which actions had been noted.”

The trust was asked by the requestor to review its response, but still concluded that it held no other information.

The requestor complained to the Information Commissioner that there were other emails (already in his possession) which the trust had failed to disclose, that replies to the two disclosed emails would exist in his view and that he believed that meetings about such a serious whistleblowing matter would have necessitated more records.

The trust told the ICO that it had approached various managers during its search for disclosable documents, including the Head of Organisational Development who was also the Freedom To Speak Up Guardian:

“In its submission to the Commissioner the Trust has told her that an independent search for relevant information was conducted by its IT Department. The Director of Corporate & Clinical Services, the Emergency Service Operations Delivery Director, Head of Human Resources, Head of Organisational Development (Freedom to Speak up Guardian), Senior Operations Manager of Willenhall Hub and the Private Secretary to the Office of Chief Executive were also approached to confirm that no further information was held.”

Astonishingly, WMAS claimed that meeting papers were never generated because the meetings – about serious whistleblowing concerns – were not “formal”

“The Trust has stated that such information was never generated and was never held, because the meetings referred to in the request were not formal meetings.”

The alternative of course is that meeting papers existed and the trust’s claims are untruthful, but that was not proven. Neither option is good.

West Midlands Ambulance Service NHS Foundation Trust’s whistleblowing policy   The trust’s policy emphasises that there must be a written audit trail of the response to concerns:   “Staff who have raised a concern will receive a written initial response, within 14 days of the stage meeting summarising the issues raised, how the matter will be dealt with and providing details of who will be handling it and how they may be contacted. The person raising the concern will be treated with dignity and respect at all times and kept updated as reasonably possible throughout the process. The member of staff raising the concern will be provided with written feedback at the close of the investigation, or within 28 days, whichever is the sooner advising what actions have been taken to address the concerns. There may be circumstances where it is not appropriate to provide full and detailed feedback where this may infringe a duty of confidence owed by the Trust to a patient or other third party.”

The ICO considered that some of the documents on this whistleblowing incident may have been destroyed by the trust:

“However, it might also be the case that any relevant email correspondence that one or more members of staff once held was routinely destroyed in line with the Trust’s retention schedule.”

The ICO explained that it must rule on whether organisations hold information, not whether they should hold information:

“The Commissioner’s role is not to consider whether a public authority should hold information that has been requested. She must decide, based on the balance of probabilities, whether a public authority did hold information at the time of a request for it.”

and decided in the trust’s favour:

“The Commissioner has therefore decided that, on the balance of probabilities, no information other than the two emails it has provided to the complainant was held at the time of the request. As such, she finds that the Trust has complied with section 1(1)(a) of the FOIA.”

What arises from this matter is that the Freedom To Speak Up Guardian at WMAS, according to the trust’s claims, may not have kept proper records of whistleblowing incidents, when it is part of the role to do so.

This is the national guidance on what records should be kept by Freedom To Speak Up Guardians:

Guidance for Freedom to Speak Up Guardians Recording Cases and Reporting Data

The guidance requires “brief factual summary of the case”, details of action taken and related failures of governance:

“It is important to record actions taken and when and to whom referrals are made, together with a record of how, when and how often the individual speaking up wishes to be contacted. This is also another place to note anything that is encountered as the case is progressed that indicates a barrier to speaking up, or that indicates that speaking up policies are not being followed, or that policies or processes need to be improved.”

I will ask the trust specifically what records are held by the Freedom To Speak Up Guardian in relation to the 2017 allegations of racism and the related meetings.

Other material raising concerns about racism at WMAS

Alongside the above complaint to the ICO, another FOI of 29 March 2020 evident from the What Do They Know website, suggests there may have been very serious problems of racism at WMAS. This FOI request implied that Hitler had been cited as model of leadership at a trust management training centre:

“Dear West Midlands Ambulance Service University NHS Foundation Trust,

1) Please provide the disciplinary policy that applies to allegations of racist behaviour against staff.

2) What disciplinary action would be considered appropriate where allegations of racist behaviour by a member of staff were proven, for example:
i) A muslim member of staff being referred to as a terrorist and having a bomb in their bag;
ii) A member of the public being referred to by a racist derogatory term;
iii) A member of staff declaring that they “don’t like muslims”;
iv) A member of staff the dismissing concerns of a BAME student about an offensive term with the phrase slavery ended two hundred years ago;
v) A member of staff telling a BAME member of staff that they only achieved because of the colour of their skin;
vi) The use of Adolf Hitler as an example of great leadership in a WMAS management training assessment centre;
vii) The posting of racist and white supremacist material on personal social media?

3) Does West Midlands Ambulance Service have a zero tolerance policy towards racist behaviour from staff?

4) If West Midlands Ambulance Service does have a zero tolerance policy towards racist behaviour from staff, what does that mean in practice?

5) Does West Midlands Ambulance Service consider that holding and sharing racist views is compatible with continued employment by West Midlands Ambulance Service?

6) Does West Midlands Ambulance Service consider that the employment of front line clinicians that hold racist views constitutes a risk to the BAME patients that they serve?

Yours faithfully,

Martin Waite”

WMAS’ response to this FOI request ignored the majority of the questions without indicating what legal exemption under FOIA was being applied. The trust merely supplied copies of two HR policy documents.

The Workforce Race Equality Standards for WMAS from the 2017 national NHS staff survey indicated that BME staff at WMAS were:

• More likely to suffer bullying and harassment by colleagues (40% v 30%)
• Less likely to feel there were equal opportunities at the trust (47% v 70%)
• More likely to experience discrimination (23% v 11%)

It emerged that a complaint was made about a senior trust manager blacking up at a Christmas party in 2018:

Ambulance boss apologises after pictures show him ‘blacking up’ for party

Whatever your views on the controversies surrounding blackface, this does seem insensitive behaviour in a senior public servant.

The Care Quality Commission

In an inspection report of 25 January 2017 the CQC noted that WMAS staff ethnicity did not reflect its highly diverse local population but it also concluded “The trust was actively involved in effective public engagement to recruit staff from Black and Minority Ethnicity (BME) population”. CQC concluded that the trust was Well-Led and Outstanding overall.

CQC also praised WMAS  managers for good handling of an incident of whistleblowing:

“Staff from PTS Stoke raised concerns about lack of mental health training and felt unsupported by local leadership. The CEO and senior leaders were extremely responsive and genuinely concerned. They visited the staff the same week, engaged in open discussions and put in place extra mental health training sessions”

Presumably records were available in order for CQC to evidence its claim of good whistleblowing practice, contrasting with the disputed affair over thornier issues of racism.

Freedom To Speak Up at the trust and the National Guardian

Perhaps not surprisingly given WMAS’ choice of a corporate figure as Freedom To Speak Up Guardian, a local democracy reporter noted on 6 November 2019 that only two concerns had been raised in the previous year.

The National Guardian’s  data on Speak Up incidents at NHS trusts shows little improvement: in quarters 1 and 2 of 2020/21, there were three cases reportedly raised with the WMAS Freedom to Speak Up Guardian.

And of course, where would we be without grinning government propaganda by the National Guardian to cheer us all up and fill us with confidence:

Poor whistleblowing governance and cover ups will continue for as long as robust standards are not backed with the full force of the law.

If you have not already done so, please help by signing and sharing this petition for reform of wholly inadequate UK whistleblowing law:

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

Many thanks

RELATED ITEMS

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

Replacing the Public Interest Disclosure Act (PIDA)

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

Maternity safety whistleblowers at Worcestershire Acute Hospitals NHS Trust had “concerns” with speaking to the Freedom To Speak Up Guardian….who was the Maternity Matron

Jeyran Panahian-Jand v Barts Health NHS Trust whistleblowing case. Head of People at Whipps Cross “misrepresented and diminished” findings of race discrimination by a whistleblowing investigation, ET finds

By Dr Minh Alexander, NHS whistleblower and retired consultant psychiatrist, 27 February 2021

Summary: Dr Julian Campbell a consultant anaesthetist raised concerns with the National Guardian’s Office about bullying management practices at Harrogate and District NHS Foundation and a conflict of interest arising from the fact that the trust Freedom To Speak Up Guardian was married to the medical director. An independent review vindicated his concerns about poor trust governance. Dr Campbell was told by his trust chief executive that the National Guardian contacted the trust Freedom To Speak Up Guardian. This breached Dr Campbell’s confidentiality because he had not given permission for the National Guardian and her Office to contact the Harrogate Freedom To Speak Up Guardian. He was very distressed by the breach. Robert Francis was later asked to urgently protect NHS staff from any other such confidentiality breaches by the National Guardian’s Office. Francis did not address this primary concern and instead kicked the matter into governance long grass by setting off an NHS Improvement complaint investigation. This investigation has been very slow and two key witnesses were not interviewed. NHS Improvement blamed the National Guardian’s former case review manager for the breach of Dr Campbell’s confidentiality. NHS Improvement initially resisted a challenge about its incomplete investigation. However, after Dido Harding was asked to intervene, NHS Improvement made a partial concession and agreed to interview one of the two witness that it failed to question. Most troubling of all, the National Guardian and her Office have not apologised to Dr Campbell nor provided evidence of any improvement in their safeguarding of whistleblowers’ identities.  The hubris and disrespect shown by the National Guardian’s Office is breath-taking. Outing a whistleblower is extremely serious. In some jurisdictions, revealing a whistleblower’s identity is a criminal matter. Current, weak UK whistleblowing law fails to specifically protect whistleblower anonymity. Law reform is badly needed.

In August 2018 Dr Julian Campbell a consultant anaesthetist made disclosures to the National Guardian’s Office (NGO) about management bullying at his workplace, Harrogate and District NHS Foundation Trust and a conflict of interest in that the trust Freedom to Speak Up Guardian was married to the medical director. He also informed the NGO that his trust Chair and Chief Executive refused to recognise this conflict of interest.

Dr Campbell was later vindicated by a Deloitte review which confirmed multiple staff reports of bullying management practices, including under the radar, arbitrary restriction of several clinicians’ practice, with management application of “informal capability plans”. The affected staff were sometimes denied representation.

Deloitte also criticised the fact that a lack of staff confidence in the trust’s Freedom To Speak Up arrangements was linked to perceived conflict of interest relating to the trust Freedom To Speak Up Guardian.  

The details of the Deloitte review and the later removal of the Harrogate Freedom To Speak Up Guardian can be found here:

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

The NGO was slow in responding to Dr Campbell’s request for help.

Appallingly, it was not until eight months after Dr Campbell’s original request that he received a substantive response from the NGO.

Simon Pook the then NGO case review manager wrote to Dr Campbell in March 2019, suggesting that he should either “ raise a formal complaint, or request an internal review of the handling of your case”.

Dr Campbell was shocked by this:

“I came to you as the last line of support. I have been treated abysmally by HDFT. Others have been treated abysmally too, but the courage and tenacity it takes to raise a complaint with external agencies is so great that most just want to bury themselves (some quite literally) and hope that it goes away.

To be offered support to raise the issues internally when I had understood that you would be an independent reviewer of the issues that I have raised is, quite frankly, devastating. Who will hold HDFT to account if the National Freedom to Speak Up Guardian won’t?”

Things got worse when Dr Campbell learned that his confidentiality had been breached by the NGO. His trust chief executive told him at a meeting on 11 June 2019 that the National Guardian herself had contacted Sylvia Wood, the trust Freedom To Speak Up Guardian.

Dr Campbell had not given the NGO permission to contact his trust Freedom To Speak Up Guardian.

He confronted the NGO case review manager about this, through an email of 13 June 2019.

“It has therefore caused me great distress to discover that the National Guardian did not contact the CEO, as your email indicated she would, but that she in fact contacted Sylvia Wood, who is now able to inform her husband.

Whilst I was happy to allow my identity to be known to the hospital in order to aid the quality of the investigation I did not expect that your first act would be to alert those whom I regard as my oppressors. I believe that the new Chief Executive would have been a more appropriate choice.”

Simon Pook’s reply of 14 June 2019 to the distressed email from Dr Campbell made no acknowledgment of the reported breach of confidentiality, offered no apology and merely stated that the National Guardian had made a telephone call to Steve Russell the Harrogate CEO that morning.

Since that time, Dr Campbell has received no satisfactory explanation for the apparent breach of his confidentiality.

I raised a concern about the reported breach with Robert Francis on 9 August 2020 in his capacity as a member of the National Guardian’s Accountability and Liaison Board, which provides scrutiny of the National Guardian’s work by her funders – the Care Quality Commission and NHS England/ Improvement.

Francis pushed the matter off his desk PDQ:

“Dear Dr Alexander

Thank you for raising for specific concerns about this case.  You asked me to enquire about it and I have.  I understand that this will now be treated as a complaint made by you, and no doubt you will be hearing further from the NGO.

As for the rest of your email I can only repeat what I have said before, and that I have no intention of withdrawing my support for the FTSU agenda

Kind regards

Robert Francis”

I responded to clarify that I was seeking to urgently make systems safer for NHS whistleblowers who might be forced to approach the National Guardian. I was not seeking to have the issues effectively kicked into the long grass of a complaints process which itself was marred by conflict of interest:

Letter to Robert Francis 11 August 2020, NGO handling of whistleblowers’ confidentiality, cc Matt Hancock, Dido Harding, Tom Grimes

But Francis persisted with kicking the urgent confidentiality issue into the long grass of a complaint process, mirroring what happens to whistleblowers whose concerns are sidelined and who are pushed into adversarial processes.

“Dear Dr Alexander

Thank you.

I will forward your further concerns about confidentiality for those who speak up to the NGO to be taken into account as this matter is considered in the complaint process.

Kind regards

Robert Francis”

Unsurprisingly, NHS Improvement’s complaint process has been unsatisfactory. It has been slow, missing deadlines, and key witnesses were not interviewed.

During the course of the investigation, NHS Improvement revealed the Harrogate Freedom To Speak Up Guardian had commented in correspondence to the NGO (not disclosed to Dr Campbell) that Dr Campbell was expected to retire:

“I have not been able to locate a note of such a call, but an email reply from the FTSU Guardian to the case review manager on 7 June said:

“I have spoken to Steve Russell (CEO) this morning. I believe Dr Campbell has decided to retire but has been in touch with Steve – who had already suggested meeting.”

This is a disturbing detail as Dr Campbell’s retirement should have had nothing to do with the proper handling of his concerns. It was also disturbing that the correspondence was not disclosed to Dr Campbell,

The final NHS Improvement complaint investigation report of 27 January 2021 into the apparent breach of Dr Campbell’s confidentiality was signed off and accepted in full by Andrew Morris, NHS Improvement Non Executive director and chair of the National Guardian’s Accountability and Liaison Board.

NHS Improvement’s carefully worded report blamed the NGO case review manager for the breach of Dr Campbell’s confidentiality:“That it is more likely than not that the NGO contacted the FTSU Guardian to discuss Dr Campbell’s concerns without his specific consent. This was inappropriate in the circumstances of the case and, in any event, the NGO should have notified Dr Campbell in advance of doing this. There is no evidence of the National Guardian, Dr Hughes, contacting contacted the trust’s FTSU Guardian about this case.”

“There is no primary evidence to demonstrate that the NGO contacted the trust’s FTSU Guardian to discuss Dr Campbell’s case without his specific consent. However, the trail of emails indicates to me that it is more likely than not that there was a telephone call between the case review manager and the FTSU Guardian between 3 and 7 June 2019 which discussed his case. I have not seen evidence that the NGO had specific consent to contact the FTSU Guardian in this way.”

Yet the NHSI investigation report was unclear regarding who had been interviewed as part of the investigation and what they had confirmed or denied.

The NHSI investigation was also silent as to whether the National Guardian was party to the flawed response to Dr Campbell’s concern that his confidentiality had been breached.

Also of concern, NHSI revealed that telephone contacts between the National Guardian and her Office and Harrogate District NHS Foundation Trust were not recorded in any detail, undermining accountability.

NHSI concluded that the NGO owed Dr Campbell an apology and that the NGO should improve its safeguarding of whistleblowers’ confidentiality:

“An apology from the NGO for the distress caused, and confirmation of an improved approach to such matters in future, would be an appropriate way of  resolving matters and addressing any distress caused to Dr Campbell as a result of this.”

I raised questions about NHSI’s investigation process, based on consultation with Dr Campbell and his wife:

Joint response 29 January 2021 to NHSI about its investigation process

NHSI later clarified that Simon Pook accepted that he had probably contacted the Harrogate Freedom To Speak Up Guardian:

“I have spoken to the case review manager and, although he did not specifically remember all the details, he accepted that the email trails indicate that he had spoken to the FTSU Guardian about Dr Campbell’s case.”

The facts of this case are simple. Dr Campbell flagged his fear that he could not disclose safely internally because his trust Freedom To Speak Up Guardian had a conflict of interest. He was then told by his trust chief executive that National Guardian had spoken to the trust Freedom to Speak Up Guardian without his permission, and he feared that this would have alerted her husband the medical director, with whom he was in conflict.

The key individuals in this affair were:

Simon Pook NGO case review manager – with whom Dr Campbell had negotiated the terms of any NGO contact with the trust – which did not include contacting the Freedom To Speak Up Guardian

Steve Russell CEO of Harrogate and District NHS Foundation Trust, who prior to taking up this post in April 2019 was Executive Regional Managing Director (London), NHS Improvement

Henrietta Hughes National Guardian whom Steve Russell reported had spoken to the Freedom To Speak Up Guardian about Dr Campbell’s case

Sylvia Wood the trust Freedom To Speak Up Guardian

It would have been logical to interview all four of these witnesses.

NHS Improvement clarified that it had questioned only Simon Pook and Henrietta Hughes in its complaint investigation.

Simon Pook, according to his LinkedIn CV, was promoted to pastures new in December 2019.

The issue of NHSI’s incomplete investigation was referred back to Andrew Morris, who reportedly declined to change course:

“I have discussed with Sir Andrew and he is content that the investigation was reasonable and proportionate.”

Two subsequent emails later to Dido Harding, NHS Improvement has conceded that it will now interview Steve Russell the Harrogate CEO:

“…given your continued concern about this, I have discussed with Sir Andrew again and agreed that I will speak to the Chief Executive at Harrogate in the first instance.”

But significantly, NHSI has not yet undertaken to speak to the former Harrogate Freedom To Speak Up Guardian, who is the one person who would know exactly who from the National Guardian’s Office did or did not telephone her.

NHSI’s reluctance to carry out a straightforward investigation shakes confidence in its process.

This is an unfinished story, and I will report back on the ultimate outcome in due course.

The National Guardian’s and NHS Improvement’s complaint policies   Until now, it was not clear if any appeal mechanism existed in either the National Guardian’s and NHS Improvement’s complaint policies.   It was implied that there is no appeal process, because both policies indicate that complainants may go the PHSO if they are unhappy with a complaint outcome.   This contrasts with other bodies as NHS Resolution, Public Health England and the Department of Health and Social Care, which all have a formal appeal mechanism explicitly built into their complaints process.   NHS Resolution complaints policy Public Health England complaints policy Department of Health and Social Care complaints policy   This seems like good practice in principle. It can potentially spare complainants the lengthy trauma of a PHSO process which may, based on track record, decide not to investigate. It also increases board accountability for complaint handling.   NHSI’s reconsideration and concession that at least the Harrogate CEO will now be reviewed establishes a principle of appeal.   It remains to be seen if NHSI and the National Guardian will formalise this in their respective policies.   The National Guardian failed to respond at all to a request for clarification of whether there was any appeal mechanism in her process, and therefore it seems unlikely that she would treat the matter seriously.

The unapologetic National Guardian’s Office

Meanwhile, Dr Campbell has astonishingly still not received an apology from the National Guardian’s Office.

The National Guardian has also not yet substantively replied to a question put to her on 22 December 2020, about whether she has made improvements to ensure that her Office does not breach whistleblowers’ confidentiality in the future.

“2 December 2020

Dear Henrietta,

The National Guardian & whistleblowers’ confidentiality

As NHS Improvement’s complaint investigation has been delayed several times and will drag on to the New Year at least, I write to ask the most pressing question: 

Has the National Guardian’s Office made the necessary policy and practice changes to ensure that it does not breach whistleblowers’ confidentiality in the future?

If it has, please could you advise what changes that have been made.

Yours sincerely,

Minh 

Dr Minh Alexander”

This lack of substantive response is despite further reminders.

The silence and the lack of apology are not reassuring of good governance by an agency, which given its stated purpose should be an exemplar. It is also a reflection on whether the National Guardian’s Office is – in the parlance of her employer – “Well-Led”.

I would advise any NHS whistleblowers who are forced to turn to the National Guardian’s Office to be extremely cautious, to get everything in writing and to consider making requests as needed for personal data under a Subject Access request, if they have concerns about any clandestine communication and or collusion between the National Guardian’s Office and their employer.

UK whistleblowing law and whistleblower anonymity

Current UK whistleblowing law is wholly ineffective and unlike EU whistleblowing law, it does not specifically protect whistleblowers’ rights to anonymity nor sanction those who fail to protect the identity of whistleblowers.

It is a very serious matter when whistleblowers’ identity is not protected. It is even more serious when confidentiality and anonymity are breached by an agency that is supposed to protect whistleblowers and to help ensure good whistleblowing governance. In some jurisdictions, there are criminal penalties for revealing a whistleblower’s identity without just cause.

If you have not done so already, please help by signing and sharing this petition to parliament for reform of UK whistleblowing law:

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

Many thanks

UPDATE:

I have written to the CQC chief executive, the National Guardian’s de facto line manager, to raise a concern that the National Guardian’s Office has failed to apologise for the breach of confidentiality or demonstrate learning. I have also asked the National Guardian’s funders, CQC and NHS England/ NHS Improvement to examine the effectiveness of the National Guardian’s Accountability and Liaison Board given that its two key members Robert Francis and Andrew Morris were both aware of the confidentiality breach but have not ensured an appropriate NGO response to this failure.

Letter 27.02.2021 to Ian Trenholm CQC CEO cc Peter Wyman CQC Chair and Dido Harding NHS Improvement Chair about the dysfunctional National Guardian’s Accountability & Liaison Board and failure to ensure apology and learning

RELATED ITEMS

Replacing the Public Interest Disclosure Act (PIDA)

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

Maternity safety whistleblowers at Worcestershire Acute Hospitals NHS Trust had “concerns” with speaking to the Freedom To Speak Up Guardian….who was the Maternity Matron

Jeyran Panahian-Jand v Barts Health NHS Trust whistleblowing case. Head of People at Whipps Cross “misrepresented and diminished” findings of race discrimination by a whistleblowing investigation, ET finds

Employment Tribunal describes a Cygnet medical director’s email to the GMC about a whistleblower as “venomous and dishonest”. Dr Ambreen Malik wins her whistleblowing case.

By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist, 23 February 2021 

Summary: Barts Health NHS Trust has been found guilty of victimising Jeyran Panahian-Jand a bona fide
whistleblower who raised concerns that the trust was discriminating against BME staff in unfavourable allocation of work. The Times covered this story today, but missed out the most serious aspect: the trust’s cover up of investigation findings that were in the whistleblower’s favour.

Most seriously, the ET concluded that a trust manager who is an associate trust director was part of a trust cover up of investigation findings that there was race discrimination at the trust: “…we are very concerned
here that the Trust went to the expense of an independent investigation but has then misrepresented and diminished the findings of that investigation to the complainant and the ward manager”.

 The trust has a predominantly white trust board (fourteen of eighteen directors) despite its catchment being one of the most diverse. The trust’s own documents show that based on 2011 data, only 41% of the trust’s catchment area is composed of white people.

Barts also relies on an outsourced Freedom To Speak Up Guardian, supplied by a private company, which carries a risk of reduced trust board accountability.

The details of the case and background issues about governance problems at Barts follow.

Ms Jeyran Panahian-Jand v Barts Health NHS Trust whistleblowing case

An Employment Tribunal has found that Jeyran Panahian-Jand a paediatric bank nurse at Barts was victimised after she made public interest disclosures on 14 May 2019 about staff racial segregation on a ward where she had worked, and raised a concern that white staff were being treated preferentially in terms of work allocation.

This is the full Employment Tribunal judgment:

Ms Jeyran Panahian-Jand v Barts Health NHS Trust Case Number: 3202418/2019 V

Just two weeks after whistleblowing, on 30 May 2019 she was banned from working on Acorn ward, Whipps Cross Hospital on insubstantial allegations of misconduct. She was accused of continuing to talk about her concerns after the ward manager claimed they were upsetting other staff and that she should stop airing them.

Ms Panahian-Jand was not allowed back to work on Acorn ward even after an investigation found there was no case against her. The trust failed to give her the findings of the investigation and astonishingly, she had to make a Subject Access Request to obtain the investigation report.

The trust dragged out her restriction wholly unreasonably, and the ET had to make a recommendation at the time of issuing its judgment on10 February 2021 that the trust should lift the ban against Ms Panahian-Jand working on Acorn ward within 4 weeks:

“Pursuant to section 124 of the Equality Act 2010, the Tribunal recommends that, no later than 4 weeks after this Judgment is sent to the parties, the restriction on the Claimant working at Acorn Ward and at Whipps Cross Hospital be removed.”

The Employment Tribunal concluded that the ward manager handled Ms Panahian-Jand’s whistleblowing concerns unfairly and had exaggerated claims that other staff were upset and did not want Ms Panahian-Jand to return to the ward.

The ET concluded that there was only a “loud minority” who were hostile to Ms Panahian-Jand and that this should not have stopped her return after the trust found no case to answer.

“We are not satisfied that there are any more than 4 members of staff on a ward of 60 who are concerned about the Claimant’s return. They have formed a loud minority.”

 The ET determined that the ward manager did not respond to Ms Panahian-Jand’s whistleblowing appropriately because she was concerned Ms Panahian-Jand’s disclosures reflected badly on her management of the ward.

“We acknowledge that Mrs Roberts was an inexperienced manager. We consider her memory of the staff response on Acorn ward is likely exaggerated because she herself was uncomfortable and upset by the allegations as a reflection on her own management. She had wanted a happy ward.”

“Mrs Roberts was plainly herself uncomfortable at hearing the allegations. She had not wished to deal with them in an informal way, contrary to both the Whistle-blowing procedure and the Dignity at Work procedure, and indeed had straightaway rejected the correctness of the allegation about allocation. We have concluded that Mrs Roberts saw them as a reflection on her management.”

The trust commissioned an internal investigation into the counter-allegations against Ms Panahian-Jand which the ET noted came to an “unambiguous” conclusion that there was no case to answer. The investigator reportedly concluded that Ms Panahian-Jand had been wrongly suspended on flimsy evidence.

The trust however delayed providing Ms Panahian-Jand with this investigation report despite several requests. Extraordinarily, Barts only gave her the report after she made a Subject Access Request for it.

“Despite the Claimant’s many, polite requests, Mrs Kara’s report was not provided to her until she made a subject access request for it.”

Barts commissioned a quasi-independent investigation into her public interest disclosures:

“The Claimant’s race discrimination complaint was investigated by Mrs Cooper-James, Head of Investigations Services at London Audit, which is hosted by the Trust and therefore to some extent independent of it.”

There was bias by the trust from the outset. The ET concluded that internal correspondence between Mrs Stephenson Associate Director of Nursing for Children and Simon Steward (then Head of Human Resources, and now Head of People at Whipps Cross) showed that Mr Steward was hoping that Ms Panahian-Jand’s allegations of race discrimination would fall apart:

“79. Mrs Stephenson asked Mr Steward whether a 6-8 week estimate was reasonable for the investigation. He answered: If a full-time investigator is on this, I think it is feasible to do this. Many of the points are at this stage, statements without evidence and we would need to clarify who witnessed them. I have added in complaints from patients and staff because if there are none, the allegations, begin to fall apart. (our emphasis) .

80. The Claimant suggests this shows Mr Steward’s wish to see the allegations fall apart. Mr Steward said he was simply adding in that complaints should be looked at as they would provide independent evidence.

81. While it may have been relevant to look for complaints, that there had been none in the past, does not necessarily suggest that this complaint would be without merit. We therefore agree with the Claimant that this wording does suggest a hope that the complaint would fall apart.”

Despite the trust’s biased approach to the investigation of Ms Panahian-Jand’s whistleblowing disclosures, the relatively independent investigator concluded there was evidence to support Ms Panahian-Jand’s concerns:

“Mrs Cooper-James did find evidence to support the three race discrimination allegations first raised informally with Mrs Roberts on 11 May 2019 (allocation; groups on the ward, and bullying)”

Ms Goldsmith the then Head of Midwifery and now commissioning manager was one of the managers handling Ms Panahian-Jand’s case.  According to the ET, she and Simon Steward minimised the investigation findings of race discrimination.

In their respective witness statements to the ET, they reportedly both used the phrase “‘no real evidence of discrimination’”. The ET described their claim as “patently incorrect” and castigated their distortion of the investigation findings:

“Why have both of these witnesses told the Tribunal there was no real evidence of discrimination, when on any fair reading of Mrs CooperJames’ report there was some? We are astonished by this. The Trust has sought to hide in its summary of the report, evidence of race discrimination found in the investigation. Mr Steward plainly did not want these findings aired and it supports us in our conclusion that he hoped the allegations would fail.”

Simon Steward drafted an outcome letter for Ms Goldsmith which falsely claimed that three of Ms Panahian-Jand’s central concerns had not been upheld:

“Mr Steward drafted a letter for Ms Goldsmith, which summarised Mrs CooperJames’ findings in a letter to the Claimant on 4 February 2020 (498). We have only looked at those 3 allegations that the Claimant raised initially, but the summary is not fair as Mr Steward accepted in his oral evidence:

84.1. Allegation 6: ‘If there is evidence of racial discrimination of staff members particularly those from non-white backgrounds’. Mr Steward’s summary says that ‘No evidence was found though divisions were expressed and diversity and inclusion training was recommended.’ Whereas Mrs Cooper-James reported ‘Evidence has been found of racial discrimination against staff. Non-White staff speak of a definite divide within the Ward according to race. It is indicative that all but one of the BME staff interviewed expressed that a divide was present. However, all white staff expressed there was no such divide.’

84.2. Allegation 23: ‘If patient allocation is equitable across the Team on duty regardless of race or colour.’ Mr Steward writes ‘In order that there is clarity around the allocation of patients, it is recommended that all staff are involved (where practicable) in the allocation of patients.’ Whereas Mrs Cooper-James plainly concludes there is evidence to substantiate the allegation because all but one of the BME staff stated they felt they were given the heavier workload (376-377).

84.3. Allegation 26: in relation to staff bullying. Mr Steward writes: ‘If staff believe there is bullying on Acorn Ward. Other members of staff should be invited to make complaints if they wish to do so.’ Whereas Mrs Cooper-James stated in terms that evidence had been found to substantiate that staff believed there was bullying on the ward.”

Ms Panahian-Jand experienced retaliatory intimidation from a nursing colleague who physically blocked her path on two occasions. The trust failed to investigate her grievance about this,

“The Trust did not investigate the incident with Miss Hook even though the Claimant reported it to HR promptly and was told it would be reported. That, too, was a disadvantage because the Claimant could reasonably view it to be the Trust not taking seriously a complaint of hostile behaviour towards a whistle-blower/someone who complained of race discrimination. This was contrary to the Trust’s whistle-blowing policy, which made it clear employees should be able to challenge inappropriate behaviour without fear of reprisal.“

Yet the trust speciously justified its hostile actions against Ms Panahian-Jand, claiming it was concerned about her safety. The ET treated this with the contempt it deserved:

“90.4. Mr Steward referred to the safety of the Claimant as an issue because of her complaint. If at that point it was felt she was unsafe, then it was for the Trust to consider suspending/restricting the individuals complained about. It was not within their procedures to suspend a complainant. In December when finally asked about this the Claimant did not have safety concerns.”

Instead of protecting Ms Panahian-Jand from victimisation for raising concerns about race discrimination, the trust effectively penalised her for filing a grievance about being physically intimidated in that it used the grievance to continue her ban from Acorn ward:

“Indeed Mr Steward’s initial email shows that the hold-up is all about the fact of the Claimant bringing her grievance (a protected act) and the potential upset of other staff members. The grievance would not have caused him to restrict the Claimant and should not have caused the continuation of the restriction.”

The ET judgment ended with the following damning comments:

“217. We are concerned that the approach of managers to this complaint seems to have taken little heed of the Trust’s whistleblowing policy. And no manager, even the Director of People, appears to have fully understood the victimisation provisions of the Equality Act. Complainants should not be treated as the problem.

218. Finally, we are very concerned here that the Trust went to the expense of an independent investigation but has then misrepresented and diminished the findings of that investigation to the complainant and the ward manager. Mrs Cooper-James’ found some evidence of potential race discrimination in work allocation and divisions on the ward. These findings were diminished by the Trust’s internal summary (and in witness statements to us) to a point where it hardly appeared that there may be a problem. There is plainly still much work to be done.”

The Times covered the case today but did not acknowledge the ET’s concern about a managerial cover up of investigation findings.

Ms Panahian-Jand may have ‘won’ her ET claim and been awarded £26,083.19 compensation for her pains,  but the matter has the potential to seriously affect her career, as the NHS can have a long, vindictive memory. She has also suffered a totally avoidable ordeal simply because a few individuals sought quite foolishly and unethically to manage individual and organisational reputation. There was no existing mechanism in law that she could trigger at early stage to challenge the mishandling of her case.

But will Barts’ misconduct matter? Will the managers involved be held to account, or will they be protected? Did they harm a whistleblower because they believed it was what trust senior leadership expected of them? If so, promotion may be more likely than disciplinary action, but we shall see. I will ask Barts what learning it has taken from this case.

I should say that I have found Barts to be one of the worst trusts in terms of unaccountability and blocking of FOI requests about whistleblowing governance, which points to senior leadership failure.

It is also worth noting that Barts have relied on the private services of a company which specialises in providing outsourced Freedom To Speak Up Guardians. This is a means by which some NHS boards can potentially reduce accountability.

Race at Barts

Barts also has a predominantly white trust board (14 of 18 directors)  despite a very diverse catchment area. Seven of eight executive directors are white.

These are Bart’s local catchment population race figures taken from a 2019 trust report on diversity, based on 2011 census data:

Lack of managerial regulation in the NHS

I am not sure if the Head of People for Whipps Cross would be seen as a director for the purposes of CQC Regulation Fit and Proper Persons (FPPR). He appears on the trust website as an associate director:

But CQC has in the past indicated that it would consider whether managers’ roles were effectively director posts whatever their titles.

A gap in the current system is that middle grade managers who harm whistleblowers fly under the radar of FPPR, but may at a future point be promoted to positions of greater power where they can potentially inflict more harm on subordinates.

It is cause for concern that the NHS establishment continues to resist proper managerial regulation.

Whistleblowers need the proper protection of law and strong enforcement systems.

If you have not done so, please sign and help share this petition to parliament for whistleblowing law reform.

Petition: Replace weak UKwhistleblowing law, and protect whistleblowers and the public

Many thanks

NHS establishment Propaganda

As ever, the National Guardian’s propaganda has given Barts a cloak of respectability, albeit somewhat threadbare and moth eaten:

Typical of many NHS organisaitions, Barts has a veneer of diversity propaganda, as evident from its public messaging. A gallery of hypocrisy and wishful thinking follows:

RELATED ITEMS

Delayed Kark Review implementation, NHS CV fraud and CQC’s woeful administrative checks under CQC Regulation 5 Fit and Proper Persons

Maternity safety whistleblowers at Worcestershire Acute Hospitals NHS Trust had “concerns” with speaking to the Freedom To Speak Up Guardian….who was the Maternity Matron

Employment Tribunal describes a Cygnet medical director’s email to the GMC about a whistleblower as “venomous and dishonest”. Dr Ambreen Malik wins her whistleblowing case.

Replacing the Public Interest Disclosure Act (PIDA)

By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist 21 February 2021

Summary: The government through NHS Improvement continues to be secretive about the much delayed implementation of the Kark review on Fit and Proper Persons in the NHS, whilst scandals continue. There is now a new scandal about possible CV fraud by Mason Fitzgerald, an NHS director who has worked at two mental health trusts and who was previously appointed to NHS Improvement’s Independent Panel advising NHS trust governors. However, CQC had claimed that all directors’ personnel files were in order at his current trust, Norfolk and Suffolk NHS Foundation Trust.

CQC’s published inspection material shows that the regulator does not produce standardised, complete evidence from its inspections. CQC does not reliably show that it checks that NHS trusts fulfil their Fit and Proper Person obligations. This includes verification of directors’ qualifications. Only in four of fifty three recent mental health inspections did CQC explicitly refer to checks of qualifications. In seventeen of the fifty three inspections CQC produced no evidence that it checked directors’ files for compliance with Regulation 5 Fit and Proper Persons (FPPR). Moreover CQC often checks only a selection rather than all directors’ files, and there appears to be variability in the level and frequency of disclosure and barring vetting required by different CQC teams. Even at a trust where a director had admitted CV fraud, Oxford University Hospitals NHS Foundation Trust, CQC produced no evidence in its inspection material of Fit and Proper Person checks of directors’ files.

In addition, Mason Fitzgerald would have been subject to an NHS Improvement Fit and Proper Person test by when the regulator previously appointed him to its Independent Panel to advise trust governors, and NHSI thus also has some questions to answer.

Background

Steve Barclay the former Minister of State at the Department of Health and Social  Care commissioned the Kark review on how the NHS fails to ensure that its senior managers are Fit and Proper Persons. This followed Bill Kirkup’s report on gross executive failures at Liverpool Community Health NHS Trust – sometimes referred to as Jeremy Hunt’s MidStaffs, because of similar themes of financial compliance dominance over care standards. The triggering of the Kark review followed many serious examples of CQC failing to respond appropriately to referrals of unfit NHS executives under Regulation 5.

Matt Hancock the Health Secretary cynically handed oversight of the implementation of the Kark review recommendations to NHS Improvement, a body centrally implicated in many serious FPPR failures. NHSI has helped shelter and recycle abusers and wrongdoers. Indeed, NHS Improvement appointed a director who was later convicted of fraud, and showed little inclination to learn after this was exposed:

Freedom to Speak Up Guardian jailed

Jon Andrewes fraud: NHS Improvement responds

NHS Improvement has done its best to seek dilution of the Kark recommendations,  and has grossly delayed action. It has populated a steering group with establishment figures and a single token whistleblower – who is actually employed as an NHS trust as a Freedom To Speak Up Guardian, raising issues about independence.

I pressed NHS Improvement to be transparent about progress on the Kark implementation, and received a farcically opaque response after much chasing and a complaint about NHSI’s Chief People Officer’s repeated failure to respond to enquiries. The documents obtained from NHSI were redacted to the point of absurdity:

NHS Improvement FOI response Kark review implememtation

NHS FOI disclosure Kark reference group minutes 23 September 2019 

NHS FOI disclosure Kark reference group minutes 4 November 2019

NHS FOI disclosure Kark reference group minutes 16 December 2019

NHSI FOI disclosure Kark reference group slides, undated

NHSI had previously disclosed earlier minutes from the steering group without redaction, so one wonders what unpalatable plans may be hidden by redaction of these later minutes.

And now we have an additional fit and proper person scandal in that there are concerns Mason Fitzgerald the Deputy Chief Executive of Norfolk and Suffolk NHS Foundation Trust (who had been scheduled to take up post as trust Chief Executive) may have misled employers about whether he possessed a Master of Laws, LLM.

This is Mason Fitzgerald’s biog, as reported in East London NHS Foundation Trust’s annual report 2018-19:

A look at his LinkedIn CV shows some unaccounted for gaps. Under CQC’s Fit and Proper guidance, CV gaps should be interrogated.

Arising from these concerns, reviews will be undertaken by Norfolk and Suffolk NHS Foundation Trust and East London NHS Foundation regarding their HR practice and governance.

NHS Improvement should also perhaps review its practices because Fitzgerald was on its Independent Panel for advising NHS trust governors.

The members of this NHSI panel were purportedly subjected to a Fit and Proper Person Test by NHSI:

NHS Improvement’s Fit and Proper Person Test for members of the Independent Panel advising NHS trust governors

Records of CQC checks on NHS trust directors’ credentials under Regulation 5 Fit and Proper Persons

The Care Quality Commission also has questions to answer. It is supposed to ensure that providers comply with CQC Regulation 5 Fit and Proper Persons.

In the evidence appendix for CQC’s last inspection report on Norfolk and Suffolk NHS Foundation Trust published 15 January 2020, after Fitzgerald joined NSFT full time in November 2019 (NSFT records from a trust board meeting in fact indicated that he was NSFT’s deputy chief executive and director of strategic partnerships from 1 October 2019), CQC claimed:

“Recruitment files demonstrated all appointments to the board had been completed in line with fit and proper person guidelines. More recent appointments demonstrated the improved involvement of governors in recruitment and there had been efforts to involve people who use services in the recruitment process more recently.”

Was this claim true? Did there appear to be documentary proof of the law degree in Fitzgerald’s personnel file? Or did this inspection cut corners and falsely claim that it had checked everything?

The CQC inspection team which claimed that all Norfolk and Suffolk board appointments complied with Regulation 5 comprised:

“Julie Meikle, Head of Hospital Inspection, CQC and Jane Crolley, Inspection Manager, CQC led this inspection. One executive reviewer and two specialist professional advisor with board experience and knowledge of governance supported our inspection of well-led for the trust overall. The team for the eight core service inspections included three inspection managers, 17 further inspectors,16 specialist advisors and 10 experts by experience.”

A quick look at CQC’s recent inspection reports and supporting evidence appendices reveals that CQC does not demonstrate in any reliable, standardised way that it carries out comprehensive checks of trust directors’ credentials.

A spreadsheet collating my findings can be found here.

I found seventeen out of fifty three (32%) recent CQC inspections of trusts which provide mental health services, did not produce evidence that Fit and Proper Person checks were made on trust directors’ personnel files:

Some of these seventeen trusts, where CQC failed to provide evidence of FPPR checks, have directors about whom whistleblowers had raised concerns with the CQC.

Where CQC made reference to Fit and Proper Person checks in inspection records, there was great variability in the level of detail given. The evidence produced by CQC could be as terse as:

“Fit and Proper Person checks were in place.”

Strikingly, in the context of the current concerns about possible CV fraud by Mason Fitzgerald, only four of the fifty three (7.5%) CQC mental health inspections referred to specific checks of trust directors’ qualifications.

Some CQC inspections teams checked all directors’ personnel files. But many inspection teams checked only a “selection” of directors’ personnel files, leaving it open to fraudsters and chancers to roll the dice.

The duty for providers under Regulation 5 is not only to carry out checks at appointment, but to ensure that directors continue to be Fit and Proper Persons:

“The provider must regularly review the fitness of directors to ensure that they remain fit for the role they are in.”

However, CQC’s inspection records show that many inspection teams are only checking the files of the most recently appointed trust directors, implying that inspectors take the dubious view that appointment checks suffice on their own.

There is also variability in what CQC tolerates in terms of how trusts seek vetting by the Disclosure and Barring Scheme. Some inspection teams seemed to accept lack of refreshment of DBS checks, or lower levels of DBS checks than others.

Not all inspection teams gave evidence that they had checked directors’ files for declarations of interest or information on health.

CQC findings on Fit and Proper Persons were sometimes only found in the evidence appendices, and not the substantive CQC inspection reports. Evidence appendices were not published for all inspections.

An unattractive aspect of the NHS is protectionism and club culture, particularly where the over-promoted defend their interests – and inflated salaries – by any desperate means available.

CQC has institutionalised some of this club culture in that it has invited trust directors to take part in inspections of their peers – surely an invitation to backscratching:

Is there a ‘club culture’ at the heart of the NHS’s quality regulator?

I looked at the teams behind the seventeen CQC mental health inspections which did not produce any evidence of Fit and Proper Person checks.

CQC does not always name the senior staff responsible for its inspections. But where names were given, these were the CQC staff associated with the seventeen inspections that did not produce evidence of Fit and Proper Person checks:

Kathryn Mason Head of Hospital Inspection x 3 inspections

Jane Ray Head of Hospital Inspection x 3 inspections

Serena Coleman Inspection Manager x 2 inspections

Helen Rawlings Head of Hospital Inspection x 1 inspection

Karen Bennett-Wilson Head of Hospital Inspection x 1 inspection

Emma Bekefi Inspection Manager x 1 inspection

Surinder Kaur Inspection Manager x 1 inspection

Natasha Sloman Head of Inspection x 1 inspection

Evan Humphries Inspection Manager x 1 inspection

The “executive Reviewers” (senior managers whom CQC recruits to “support inspections of the leadership of trusts”) who took part in the seventeen inspections of concern were:

Samantha Allen CEO Sussex Partnership NHS Foundation Trust x 1 inspection

Beverly Murphy Director of Nursing West London NHS Trust x 1 inspection

Jagtar Singh Chair of Coventry and Warwickshire NHS Trust x 1 inspection

Aidan Thomas former CEO of Norfolk and Suffolk NHS Foundation Trust and Cambridgeshire and Peterborough NHS Foundation Trust x 1 inspection

David Rogers Chair of North Staffordshire Combined Healthcare NHS trust x 1 inspection

Paul Devlin Chair of Lincolnshire Partnership NHS Trust x 1 inspection

Martin Gower Chair of Midlands Partnership NHS Foundation Trust x 1 inspection

John Vaughan Director of Strategy and Performance, Central and North West London NHS Foundation Trust x 1 inspection

David Rogers and Paul Devlin were on the same CQC inspection team which inspected Oxleas NHS Foundation Trust in 2019, the trust where Paul Lelliott the former CQC Deputy Chief Inspector of Hospitals was formerly based.

In addition to trusts which provide mental health services, I also looked at a selection of other types of trusts.

A particularly detailed CQC entry was made on the Fit and Proper Person checks at West Suffolk NHS Foundation Trust, where Matt Hancock was implicated in a whistleblower scandal but is currently sitting on an investigation into the affair. CQC’s identified missing references for some directors.

At North Lincolnshire and Goole NHS Foundation where the trust Chair was criticised for derogatory comments about a whistleblower, CQC “found gaps in some files including lack of qualification and professional body checks, and interview notes.”

Peter Knight a director of the powerful Oxford University Hospitals NHS Foundation Trust admitted CV fraud in August 2018, after the trust received an anonymous warning. He was later convicted in December 2019 for CV fraud, and received a suspended prison sentence in January 2020.

However, prior to Knight’s admission of CV fraud, a CQC inspection report of March 2018 concluded that the trust was compliant with Regulation 5 Fit and Proper Persons based on checking only three directors’ personnel files:

“We reviewed a random sample of three board level director’s personnel files and found all the necessary fit and proper person checks had been undertaken.”

Worryingly, CQC’s 2019 inspection records on OUH gave no evidence that the regulator had performed Fit and Proper checks of directors’ files, when one would have thought this would have been an important issue.

See: NHS CV fraud, Peter Knight & CQC’s failure to safely implement Regulation 5 Fit and Proper Persons at Oxford University Hospitals NHS Foundation Trust

The CQC inspection team behind the 2019 inspection report of OUH included Amanda Williams, CQC Head of Hospital Inspections, and Sarah Connery, who is currently acting CEO at Lincolnshire Partnership NHS Foundation Trust.

“Amanda Williams Head of Hospital Inspections led this inspection. An executive reviewer, Sarah Connery, Director of Finance and Information supported our inspection of well-led for the trust overall. The team included two inspection managers, 15 inspectors and one assistant inspector and 18 specialist advisers.”

Similarly, CQC did not demonstrate that it carried out Fit and Person file checks in an inspection of Devon Partnership NHS in 2019, even though Jon Andrewes a trust director been jailed for CV fraud in 2017.

The 2019 CQC inspection team at Devon Partnership comprised:

“Karen Bennett-Wilson, Head of Hospital Inspection for South West Mental Health chaired this inspection and Evan Humphries, Inspection Manager, led it. Executive reviewers supported our inspection of well-led for the trust overall. The team included inspectors, executive reviewers, specialist advisers and experts by experience.”

I will send this data on CQC’s variable reporting about Fit and Proper Person checks to the CQC, and I have asked for details of CQC’s official policies and procedures in this area.

The poor governance on FPPR is an important part of the failure to protect NHS whistleblowers, because of impunity for corrupt senior managers who cover up and victimise whistleblowers.

We need much stronger UK whistleblowing law to enforce greater accountability and to deter dishonest and abusive practices.

If you have not done so, please sign and help share this petition to parliament for law reform.

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

Many thanks

UPDATE 22 FEB 2021

I have written again to Prerana Issar Chief People Officer for the NHS about the delay in the Kark review implementation and other matters, chiefly NHS Improvement’s continuing failure to properly check the qualifications of all NHS directors whom it appoints to non-Foundation NHS trusts:

Letter to Prerana Issar NHS Chief People Officer 22 February 2021 Kark, Fit and Proper Persons, NHSI failure to check the qualifications of all NHS directors whom it appoints

RELATED ITEMS

Replacing the Public Interest Disclosure Act (PIDA)

Postscripts on Paula. NHS England’s apologia & regulatory reticence

Sorry is the hardest word: CQC, Paula Vasco-Knight and Regulation 5 Fit and Proper Persons

Regulation 5, Fit and Proper Persons: Dissecting CQC’s Dissembling

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 20 February 2021

On 19 February 2021 the Care Quality Commission published a local inspection report about Worcestershire Royal Hospital, which is run by Worcestershire Acute Hospitals NHS Trust.

Maternity service safety was criticised, as was poor culture and the trust’s response to maternity whistleblowers.

In consequence, CQC issued improvement notices to the trust on grounds of unsafe staffing and poor governance:

CQC Chief Inspector of Hospitals Ted Baker set the tone with the comment:

“Staff should never feel that their concerns are not listened to…”

Background

The trust has long been troubled. It has struggled for years with massive PFI debt, which was written off by the government only last year because of the pandemic. Alongside scraping around to make ends meet, the trust had problems with poor care quality and governance scandals such as several cases of whistleblower  suppression and reprisal.

Worcestershire Acute Hospitals NHS Trust was placed into special measures for five years, finally exiting in 2020.

Very controversially, David Nicholson – of MidStaffs Public Inquiry notoriety – was appointed as Chair in 2018:

Disgraced former NHS boss Sir David Nicholson RETURNS to a health service job four years after retiring with a £1.9million pension pot

NHS Improvement also allocated as Improvement Director to the trust an NHS manager who had been criticised by an Employment Tribunal for whistleblower reprisal, in the unfair sacking of Andrew Smith a trade union rep at Mid Essex Hospital Services NHS Trust.

Andrew Smith was awarded £127K compensation by the Employment Tribunal.

Maternity safety at Worcestershire Acute NHS Trust and the CQC’s criticisms

On 8 October 2020 local media reported concerns by a maternity whistleblower who asked to be anonymous, about unsafe staffing:

“Whistleblower midwife says staff are exhausted and ‘working like dogs'”

Trust board papers claimed that maternity staffing in September 2020 was safe:

“Nursing and Midwifery staffing levels are reported as safe for Aug – September 2020 with mitigations having been taken for challenged areas identified – Maternity department and Alexandra site.”

Trust board papers later referred to challenges in October and November 2020, but the trust claimed that safe staffing incidents had not caused patient harm:

“Achievement of safe staffing in maternity has been challenging. Whilst minimum safe staffing levels have been maintained in October and November there has been a reliance on the support of the escalation policy when acuity is high”.

“The main areas that were challenged were maternity services and speciality medicine wards at Alexandra Hospital and Avon 2 on the Worcester Royal site due to vacancies. There has been no harm to patients reported from staffing incidents.”

However, an internal trust report of 26 January 2021 admitted that there had been two fatal serious incidents in maternity services during Quarter 3:

The two deaths were reported as follows in the trust’s document:

“Case 1

Incident category – Neonatal Death

Woman in her 1st pregnancy booked late at 25 weeks gestation and appropriately booked for consultant led care. Antenatal care – no concerns identified. At term, the mother called triage , reporting bleeding with spontaneous rupture of membranes. Immediately seen on arrival and a fetal bradycardia was noted, a category 1 lower segment caesarean section (LSCS) was called and a baby girl was born within 30 minutes. Birthweight 3232grams on the 30th centile, requiring extensive resuscitation – which was unsuccessful and therefore a neonatal death was confirmed. The Immediate Case Review was discussed at the Divisional Quality and Safety Review Meeting (QSRM ) on 09.12.20 further information requested before a decision on how the case should proceed. Presented again at QSRM on 16.12. 20 agreed to escalate as an SI – escalated to corporate team & reported via S tEIS on 21.12.20

Terms of reference agreed:

Investigate all aspects of maternity care in the antepartum, intrapartum and postpartum period, with specific focus on:

– The review at 38 weeks in triage and decision making in the intrapartum period.

– The process around the decision for induction

– The resuscitation and care of the baby up to the point of CPR being stopped.

– Ensure that the perception of events is captured from the family, the Trust and staff directly involved in the care of the mother and the baby

Immediate learning & review of guidance

· If the woman presents at or after 37+0 weeks of gestation, it is important to establish if the bleeding is an Antepartum Haemorrhage (APH ) or blood stained ‘show’. In the event of a minor or major APH, national guidance recommends induction of labour with the aim of achieving a vaginal birth to avoid adverse consequences potentially associated with a placental abruption. (R oyal College of Obstetricians & Gynaecologists Green Top Guideline, No 63, page 12, Nov 2011)

· In cases of recurrent unclassified APH , induction of labour should be considered at or near term even if fetal growth is satisfactory. (WHAT -TP -094, 15/11/19). Duty of Candour was completed by the Consultant Obstetrician . Case was immediately referred to:

– Coroners

– HSIB; however this case did not meet the criteria (as the woman not in labour ) .

Case 2

Incident Category – Maternal Death

A woman in her 3rd pregnancy attended maternity triage at Worcestershire Royal Hospital with a history of left sided lower abdominal pain. After assessment and treatment she was discharged with a plan for follow up in the Maternity Day Assessment Unit (DAU ) . She was reviewed the following day at maternity DAU complaining of frontal headache, screening for pre -eclampsia test undertaken and test result suggested that woman was low risk for developing pre -eclampsia. A plan was made for further follow up in 1 week. She attended as per plan and was complained of worsening symptoms. Admission was recommended to enable further investigations to be completed and she then had regular reviews, further blood tests and chest x -rays. During her inpatient stay the woman was reviewed by the consultant and noted to have a mild headache, visual disturbances and epigastric pain. The woman was found collapsed and unresponsive at her bedside. Cardiopulmonary Resuscitation (CPR) was commenced and a peri -mortem caesarean section was undertaken within the recommended 5 -7 minutes. A live baby was born and transferred to the neonatal unit for CPAP. Ongoing maternal resuscitation continue however following an extensive period of resuscitation and further surgical intervention resuscitation ceased following agreement with the attending team. Immediate learning & review of guidance

· VTE assessment was completed; however there has been discussion about whether the most appropriate dose of LMWH was prescribed.

 · Duty of Candour completed with partner by Matron and letter provided. Family supported by bereavement specialist midwives.

· Staff supported by Trust Clinical Psychologist, OH advice provided and support from clinical leads, Matrons and wider DMT.

· Referred to HSIB – Investigation ongoing. Investigation within reporting deadlines (6 months HSIB)

· Referred to MBRRACE and Coroner

· Escalated to corporate patient safety team and reported via S tEIS. Initial postmortem – no cause of death identified.”

Maternal deaths are very rare and may indicate poor care quality.

The MBRRACE study reported there were 217 maternal death in the UK 2016-18:

According to the CQC, Worcestershire Acute NHS Trust has reported four maternal deaths over a two year period:

“Four maternal deaths were reported to the Healthcare Service Investigation Branch (HSIB) since the start of 2018 (2 in 2019; 2 in 2020). [July 19, Nov 19, Mar 20, Dec 20]”

CQC’s inspection report of 19 February 2021 on Worcester Royal Hospital severely criticised the management of the maternity service. This comes on top of previous criticism from an inspection in 2018.

CQC’s recent inspection was unannounced, reflecting the level of concern about intelligence received.

CQC concluded that:

• The maternity service was not sufficiently safe
• Not all maternity patients were adequately risk assessed
• Managers did not audit swab counts
• Safety incidents were not well managed and downgraded with suspected failures of Duty of Candour 
• There was risk of baby abduction and other suboptimal safeguarding practice.

Echoing themes from the MidStaffs Public Inquiry, CQC noted:

“Staff did not always contribute to decision-making to help avoid potential financial pressures compromising the quality of care”

 Most strikingly, the CQC stated:

 “The service did not have an open culture staff felt they could raise concerns without fear”.

Whistleblowers told the CQC of delays in induction:

“Whistle-blowers reported that there were delays in induction of labour with some women waiting up to a week instead of one to two days. Managers told us that there had been delayed inductions of up to six women.”

Whistleblowers also complained to the CQC that managers ignored their concerns about safe staffing, and CQC was concerned about the trust’s inadequate levels of planned staffing:

“Between July and September 2020, we received four whistleblowing enquiries relating to maternity services. Staffing levels were the main area of concern reported. The whistle-blowers reported the introduction of the CoC model had negatively impacted on staffing levels,yet was a management priority. We spoke to staff of all disciplines throughout the unit who unanimously raised concerns about safe midwifery staffing levels and reported they did not feel their concerns were always considered by managers. Midwives told us that the service was always short staffed and that they were moved frequently within the department. We had concerns about planned staffing levels throughout the unit. Following the four whistleblowing concerns, managers had instigated meetings to listen to staff concerns and take actions to address them. A further planned introduction of another CoC team in December 2020 had been deferred until 2021 as new staff were expected to start in December and were delayed until January 2021.”

This is a list of key concerns about maternity services that were flagged by CQC’s report:

“Our rating of safe went down. We rated it as requires improvement because:

• Not all staff were up to date with their training.

• We were not assured that all medical staff had current knowledge relating to Mental Capacity Act 2005 and Deprivation of Liberty Safeguards due to poor training compliance.

• Risk to women was not always identified appropriately. Staff did not always complete and update risk assessments for each woman or act to remove or minimise risks. Staff did not always identify and act quickly when women were at risk of deterioration.

• Whilst staffing levels were often lower than planned, managers regularly reviewed and adjusted staffing levels and skill mix. Actions were taken to meet patient acuity, however, these were not robustly documented. Staff were redeployed within the unit when needed, to keep patients safe from avoidable harm and to provide the right care and treatment but records of this were weak.

• The service did not always manage safety incidents well. Staff recognised but did not report all incidents and near misses. Managers investigated incidents and shared lessons learned with the whole team and the wider service. However, staff did not always have time to check emails to find updated incident information. When things went wrong, staff apologised and gave patients honest information and suitable support.

• Staff did not always monitor the effectiveness of care and treatment. When care and treatment was monitored, they used the findings to make improvements and achieved good outcomes for women.

• Training compliance had fallen during the COVID-19 pandemic but a plan was in place to improve this. However, the service generally made sure staff were competent for their roles.

• Although leaders mostly had the skills and abilities to run the service and understood the priorities and issues the service faced, they did not always take timely action to address the concerns identified. They were visible in the service for women and staff.

• Staff did not always feel respected, supported and valued by all managers. They were focused on the needs of women receiving care. The service did not have an open culture staff felt they could raise concerns without fear.

• Although leaders and teams used systems to manage performance they did not always identify and escalate relevant risks and issues or identify actions to reduce their impact. They did not have plans to cope with unexpected events. Staff did not always contribute to decision-making to help avoid potential financial pressures compromising the quality of care.

• Whilst governance processes were in place leaders did not always operate these effectively throughout the service. Leaders liaised with partner organisations. Staff at all levels were not always clear about their roles and accountabilities and did not all have regular opportunities to meet, discuss and learn from the performance of the service.

• The service did not always collect reliable data and analyse it. Staff could not always find the data they needed, in easily accessible formats, to understand performance, make decisions and improvements. The information systems were integrated and secure. Data or notifications were consistently submitted to external organisations as required.

• Leaders did not always engage with staff effectively. However, staff actively and openly engaged with women, equality groups, the public and local organisations to plan and manage services. They collaborated with partner organisations to help improve services for women.

• Although all staff were committed to providing good quality care timely action was not always taken to improve.

“The labour ward and delivery suite posed a risk for baby abduction. Most staff were aware of the baby abduction policy but there were no baby abduction drills included in maternity specific training. This meant some staff may not know what to do in such circumstances. Managers told us that abducted baby procedures would be included in the next skills and drills courses.”

“The service did not always adequately risk assess all women in the ante-natal unit.”

“Managers were not auditing swab counts following vaginal or instrumental births.”

“We reviewed incidents reported on the National Reporting and Learning System by the trust from July to September 2020 which identified that term babies admitted to the neonatal unit were graded as no or low harm. This meant that incorrectly graded incidents may not be investigated and there was a risk that women were not informed of the significance of harm caused to them or their baby, or that appropriate action was taken to prevent further occurrences. We were not assured that incidents that were moderate, in line with definitions in Regulation 20 Duty of Candour guidance 2015, were always graded correctly according to the level of harm. We also saw that there were 11 incidents reported where safeguarding information was not transferred to all medical records. This meant that babies and young children may be at significant risk of harm if information was not shared appropriately.”

Worcestershire Acute Hospitals NHS Trust’s Freedom To Speak Up Guardian

The poor whistleblowing governance found by the CQC represents a serious embarrassment for the government’s woeful Freedom To Speak Up project, six years on from commencement of the project.

This is particularly because an examination of publicly available records shows that Worcestershire Acute Hospitals NHS Trust’s Lead Freedom To Speak Up Guardian is the Maternity Matron:

“Melanie Hurdman, Freedom to Speak Up Guardian at the Trust, who is also Matron for Maternity Inpatients and Intrapartum Care, said: “Freedom To Speak Up is vital in healthcare – it can be a matter of life or death”

The small print of the CQC report noted that maternity staff had “concerns” with speaking with the trust Freedom To Speak Up  Guardian:

“We met with members of the senior leadership team who demonstrated an awareness of the service’s performance and the challenges they faced, including staffing issues and the concerns staff had with speaking with the freedom to speak up guardian.”

The events at the trust lead to questions about whether the Guardian was part of the culture failure, or was unable to discharge her duty effectively due to the weakness of the Freedom To Speak Up model.

It was certainly awkward for maternity staff to be faced with whistleblowing to a senior member of the department, who potentially had conflicts of interest.

Whatever, the usual puffery has abounded.

The trust made the most of a small blessing – a finding that it had improved from an abysmal level on the national NHS staff survey questions about raising concerns:

– with a local media splash:

And Henrietta Hughes the National Guardian has continued to aid and abet smiley government propapanda on the illusory success of the Freedom To Speak Up project.

With an unerring instinct to laud failure, she and her Office produced this happy image of whistleblowing at Worcester just weeks before the publication of CQC’s damning report:

We are literally going round in circles when a centrally criticised figure from the Midstaffs scandal involving unsafe staffing and suppression, returns to a chair a trust which is then criticised for unsafe staffing and ignoring whistleblowers.

We badly need reform of very weak UK whistleblowing law to sweep away pretences such the Freedom To Speak Up Potemkin village, and to genuinely protect UK whistleblowers and the public.

If you have not already done so, please sign and share this petition for whistleblowing law reform amongst your circle and across social media:

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

Many thanks

RELATED ITEMS

NHS Improvement was previously warned about its assignment of an Improvement Director to Worcestershire Acute Hospitals NHS Trust who had been criticised by an Employment Tribunal for whistleblower reprisal. As the recent CQC report indicated that trust managers were aware that staff had concerns about speaking with the Freedom To Speak Up Guardian, I have asked NHS Improvement to review its oversight of the trust and to establish whether managers acted appropriately on this staff concern.

Letter 20 February 2021 to Tom Grimes NHS Improvement head of whistleblowing, cc Dido Harding

Freedom to Speak Up Guardian jailed

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

Replacing the Public Interest Disclosure Act (PIDA)

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

The government’s Freedom To Speak Up project in an image:

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 19 February 2021

Summary: Dr Ambreen Malik a consultant psychiatrist employed by the private provider Cygnet Health Care, has been found on 1 February 2021 by the Employment Tribunal to have suffered multiple whistleblower detriments and unfair dismissal over a baseless allegation of gross misconduct. She had insisted on telling a coroner’s inquest of the full facts about a Cygnet inpatient death, in which staff failed to search a patient after a visit, but then discovered what appeared to be an illicit drug in his hospital room after he died. The Employment Tribunal criticised several Cygnet managers for their part in reprisal against Dr Malik as a whistleblower, including several directors. The ET determined that the CEO, the director of human resources, the then medical director and the regional operations director (now listed as Managing Director, Healthcare Division North and a board member), had variously acted in “bad faith” and/or were “less than honest” or not truthful in the prosecution of a case against Dr Malik or were untruthful in evidence to the ET. The ET was critical of Cygnet’s referral of Dr Malik to the General Medical Council, which it determined was a detriment for whistleblowing. The ET concluded that Cygnet managers had seized an opportunity to dismiss Dr Malik after her whistleblowing:“It is clear that this was however the general background to the respondent’s senior managers disliking her, and later seizing an opportunity to dismiss her.” But puzzlingly, the ET stopped short of finding that Dr Malik was dismissed because of her whistleblowing. The case is yet more evidence in support of UK whistleblowing law reform.

On 31 December 2019 the Care Quality Commission rated the unit where Dr Malik worked, Cygnet Fountains Blackburn, as ‘Outstanding’ overall and outstandingly well led. This is despite the CQC also finding from a specific well led review undertaken in July/August 2019 that there were leadership failures at Cygnet.

NHS England commissions specialist  mental health services such as those provided by Cygnet. There are serious questions about NHS England’s performance as a commissioner, especially given that commissioning failures were previously identified by an independent investigation of a homicide of a patient by a fellow patient on a Cygnet unit.

Cygnet was the provider operating Whorlton Hall and Newbus Grange care facilities, when patients were abused in 2019.

Background

Whistleblower mistreatment is a problem across all sectors, but perhaps is particularly likely to occur in profit driven care environments.

The full extent of the whistleblowing governance problems in private healthcare is hidden by ruthless suppression and a fearful workforce.

These problems are likely to affect the future health landscape more as the government seizes greater control of the NHS, and looks to be preparing for de-regulation.

Cygnet is a UK based company, providing private mental health services, that  since 2014 has been owned by the US private health giant Universal Health Services.

Cygnet is a very large provider of mental health and learning disability services, with over 113 sites in England, Scotland and Wales.

The CEO of Universal Health Services reportedly “earned £39.5 million in 2016” and Tony Romero the CEO of Cygnet reportedly earned £625,000 in 2019.

Cygnet has been mired in scandals, regarding care failings, avoidable deaths, patient abuse and excessive executive pay.

Some of the Cygnet scandals are listed below:

Cygnet Bierly, Bradford “Inquest due after woman strangled to death by fellow patient atsecure psychiatric unit. Linda Goswell was suffocated and the hearing will look at a series of damning failures”   Cygnet Yew Trees hospital “Staff abused women at learning disability unit, finds CQC”   Cygnet Appletree “Women at risk of harm in mental health hospital”   Cygnet Acer clinic “Sixth Cygnet-run facility placed in ‘special measures’ by CQC”   Provider has 10th hospital rated ‘inadequate’ in under two years   Cygnet hospital Colchester “Cygnet Hospital still inadequate according to CQC”   Cygnet Hospital Coventry ‘Inadequate’ private mental health hospital closes to adults to focus on children’s treatment”   Cygnet Woodside in special measures over ‘patient safety risks’.   Cygnet Woodside “Two arrests at mental health hospital in Bradford following allegations of assault” “The members of staff had been “immediately suspended”   Cygnet Clifton “Nottingham hospital placed in special measures as staff ‘did not always provide safe care'”   Cygnet Kew Stoke: Failures in care for man who took his life at private mental health unit   Cygnet Hospital Woking “Damning inspection report reveals serious self-harm and other failings at Woking mental health hospital”   Cygnet Woking “‘Vindictive’ hospital staff ‘taunted’ young psychiatric patients”   Cygnet Chesterholme and Oaklands ‘Inadequate’ hospital in Hexham closes after Care Quality Commission criticism   Cygnet CAMHS “A Chain Of Private Psychiatric Hospitals Has Been Accused Of Failing Vulnerable Young Patients”   Cygnet Maidstone “Investigation launched into Maidstone Cygnet Hospital psychiatric ward after patient assaults”   Cygnet Derby “Derby hospital criticised over death of ‘severely anorexic’ woman”   Cygnet Thors Park Thors Park “slammed over safety”   Cygnet Stevenage “Stevenage nurse sexually harassed colleague while mental health patient slept”   Cygnet Ealing “Staff caught falling asleep on duty at Ealing mental health hospital”   Cygnet Godden Green ” Hospital issued with two warning notices after CQC finds ‘deep-seated cultural issues’”

Importantly, Cygnet owns Whorlton Hall and Newbus Grange. Patients were abused at both facilities under Cygnet’s ownership. In May 2019 BBC Panorama exposed serious abuse of vulnerable patients at Whorlton Hall. This led to the NMC issuing interim suspension orders against three members of Whorlton Hall nursing staff, arrests and a police investigation.

Alongside this, a worker at Newbus Grange was caught assaulting residents from March 2019 onwards, and eventually received a prison sentence:

‘Sadistic bully’ from Darlington assaulted Newbus Grange residents

On 28 February 2019 the Care Quality Commission dubiously rated Newbus Grange as ‘Outstanding’:

The spreading CQC Whorlton Hall scandal – emerging allegations at ‘Outstanding’ Newbus Grange. Another CQC deception?

Eight months later on 24 October 2019, CQC had drastically downgraded the rating to ‘Inadequate’.

CQC were forced to undertake a review of Cygnet’s leadership in response to the multiple care scandals, much as they had been forced to review the provider Castlebeck after the 2011 Winterbourne View scandal. The CQC review of Cygnet’s leadership, undertaken in July/August 2019 but not published until January 2020, concluded there were problems with accountability:

“Governance structures and processes were not effective in supporting good quality and sustainable services… A clear line of accountability from the “ward to board” could not be established across all of Cygnet Health Care’s locations. Governance systems and processes had not prevented or identified significant issues within locations to allow effective intervention by the executive team.”

“Governance systems and processes were not effective in maintaining sustainable and high-quality care. The systems and processes in place had not prevented or identified significant issues in locations which have resulted in breaches of regulation and hospitals being placed into special measures due to inadequate ratings.”

“Not all the required checks had been carried out to ensure that directors and members of the executive board were “fit and proper”.

But incongruously, CQC glossed over Cygnet’s suppression of staff concerns and praised its culture:

“A culture of openness was encouraged by leaders and embedded within policy. Most staff knew what should be reported and felt able to do so.”

And despite the slew of scandals, many Cygnet facilities are currently rated ‘Good’ or ‘Outstanding’ by CQC.

One of these ‘Outstanding’ psychiatric facilities, Cygnet Fountains in Blackburn Lancashire, has been found guilty by an Employment Tribunal, through a judgment issued on 1 February 2021, of serious whistleblower reprisal and the unfair dismissal of a whistleblowing doctor.

Cygnet’s CEO, the then medical director (now reportedly retired), Human Resources Director and the then regional operations director (now managing director, Healthcare Division North) were criticised for malpractice and reprisal.

The ET remarked of Cygnet’s CEO: “We found Dr Romero’s actions to be less than honest.”

The CEO and human resources director were criticised for bad faith. The ET found that the medical director made an “untrue” referral of the whistleblower to the General Medical Council. It also found that the regional operations director and other Cygnet staff were untruthful in their evidence to an internal investigation. The ET rejected some of the evidence given by the regional operations director during proceedings:

“101. We do not find that Mr Ruffley’s evidence with regard to asserting that a legal opinion be sought was actually said to the claimant at the time. We have found this to be a back-covering comment inserted with hindsight.”

Other whistleblowers have raised concerns about Cygnet’s care standards. For example, in 2019, it emerged from an inquest that Taffy Mandizha, ward manager at Cygnet Coventry had repeatedly raised concerns about safe staffing. This included a concern raised a week before Claire Greaves, a detained inpatient took her life:

“…emailed managers a week before Ms Greaves’ death saying he was “really concerned” about staffing levels which he, “together with the entire staff team”, believed to be “very unsafe”.”

Poor governance by private providers such as Cygnet is especially important because they provide specialist locked facilities for patients with very special needs. These special needs are largely no longer catered for by the NHS. That is to say, private providers look after particularly vulnerable patients, isolated by detention and usually located out of area and far away from their families.

The whistleblower case of Dr Ambreen Malik

I will only summarise this complex case broadly. The full Employment Tribunal judgment about the facts of the case can be found here:

Dr Ambreen Malik v Cygnet Health Case No. 2403141/2018

Dr Ambreen Malik was a consultant psychiatrist employed at Cygnet Fountains hospital, in Blackburn Lancashire. She attracted the wrath of Cygnet management because she refused to look the other way over a failure of risk management by Cygnet.

In 2015, a patient died the day after receiving visitors. He was not searched by staff after the visit. After his death, a foil wrap of what appeared to be an illicit substance was found in his room. Dr Malik informed the medical director and the regional operations manager of the issue. She became increasingly concerned that the organisation was covering up the matter.

When she sought advice from Cygnet’s CEO ( who trained in psychiatry), he responded in a manner which she found threatening:

“43. The claimant then, on the same day, attempted to contact her line manager, Dr Leslie Burton, to raise her concerns. He was on leave and unavailable, as was the person who covered for him. She then made a disclosure by email to the Assistant Medical Director, Dr Bari, and to the CEO, Dr Tony Romero. Dr Romero’s reply the following day by email was to start with, “Are you telling me you will go to the police?” and ended with, “Do you know the implications of what you are saying?”. The claimant felt intimidated and bullied.”

An internal investigation was set up by Cygnet, which excluded Dr Malik and failed to involve the police or the family. The ET noted that Cygnet’s regional operations manager misled Dr Malik on these issues:

“44. Dr Romero did, however, set up an enquiry panel and 20 staff members were interviewed. The claimant was not one of them, nor were the police contacted, nor the deceased’s family. In spite of this Mr Ruffley advised the claimant that staff on duty, police and the deceased’s relatives had been interviewed, and no-one corroborated her observations. On three occasions the claimant was asked to apologise to members of staff. She refused because she knew what she had seen.”

Cygnet’s CEO later advised Dr Malik not to make her life “complicated”, with regards to her evidence to the coroner’s inquest:

“45. In March 2016 the claimant was called to attend the coroner’s inquest into the patient’s death. She had previously discussed the evidence that she would be giving to the coroner with Dr Romero, and asked for advice on how to proceed over the drugs found (as she believed it). His reply was that she should “do not make your life complicated” (bundle A pages 345-346).

Dr Malik was advised by Cygnet’s solicitor not to mention the discovery of drugs to the coroner, but she stood her ground and gave evidence about the discovery:

“46. The day before the inquest on 8 March 2016 the claimant met with Mr Parsons, a solicitor, at a briefing arranged for staff members due to give evidence the following day. The claimant asked him when and how to mention her discovery of the drugs. Mr Parsons indicated that it was not relevant to the patient’s death (bundle A pages 357-360). The claimant was left believing that the respondent was trying to cover up the discovery of drugs.

47. Prior to the start of the inquest on 9 March 2016 Mr Parsons and Ms Ngaaseke had a conversation with the claimant in which Mr Parsons advised the claimant that if she mentioned the discovery it would affect her credibility and that she must have mis-remembered the event. He went on to indicate that if she told the court about it, it would affect Mr Parsons’ credibility. The claimant approached the coroner’s clerk to ensure the coroner was asked to raise this issue with her. When asked about it by the coroner she narrated the sequence of events and her observations, including explaining that the subsequent internal enquiry did not corroborate her claim.”

Twelve days after giving the above evidence to the coroner, Dr Malik was suspended by the regional operations director on grounds of loss of trust. One of the accusations against her was that her evidence reportedly triggered a police investigation against Cygnet, and led the coroner to threaten Cygnet’s solicitor with a regulatory referral:

“49. On 21 March 2016 the claimant met the Group Medical Director, Dr Burton, and the Regional Operations Director, Mr Ruffley. She was advised there had been a breakdown of trust and she was being suspended because of the evidence she had given at the coroner’s inquest. She was told that the coroner had threatened to refer Mr Parsons to his regulator, and that Fountains was to be investigated by the police for hiding evidence and ‘higher ups were very upset by it’. This was confirmed in writing by a letter on the same date, which stated that she was suspended pending an investigation into the evidence she gave at the inquest and the effect it had had on relationships at Fountains.”

The ET determined that this suspension was a detriment against Dr Malik for making protected public interest disclosures.

It also concluded that other detriments followed, including:

a) Punitive publicising of her suspension by the medical director:

“On her return to work she discovered that an email had been sent about her by the Group Medical Director to all of the doctors within the organisation. It was admitted by Dr Romero that this had not been done before.”

b) Excessive, punitive supervision, established by the assistant medical director, medical director and CEO:

“56. Before the claimant returned to work, Drs Bari, Burton and Romero met and agreed a course of action. On her return, Dr Burton increased her supervision from six monthly to twice weekly”

c). Undermining of Dr Malik’s role by the hospital manager, through excluding her from important admission and discharge decisions, removing support for clinics, criticising her for being late and introducing a new deadline for reports.

d) The assistant medical director asked staff to covertly report on Dr Malik. For instance, a cleaner accused her of leaving a screen open in her office whilst she saw patient.

e) Removal of Dr Malik’s role as Clinical Appraisal Lead, by the medical director, against her wishes

f)  Failure to ensure that a grievance by Dr Malik about whistleblower reprisal was progressed.

g) Being subjected to ostracisation such as hostile behaviour when she raised a concern about contributory organisational failings related to a patient suicide, and not being invited to clinical board meetings as previously agreed.

Cygnet additionally conceded that Dr Malik was subject to another detriment when the medical director later referred her to the General Medical Council. This referral was based on false allegations that she had failed to follow protocol on covert medication:

“79. The respondent referred the claimant to the GMC on 18 October 2017 after an incident, which is described in more detail below, led to her dismissal for gross misconduct.

80. The respondent denied in evidence referring the claimant to the GMC maliciously or without justifiable reason, but did accept the referral to the GMC is a detriment.”

The ET condemned the “defamatory” GMC referral by Dr Leslie Burton the medical director, which it considered was linked to Dr Malik’s protected disclosures:

“398. Dr Burton subsequently thought that the claimant was dishonest and told the GMC – a defamatory comment and one questions the motive behind that. He suggested that she had used the word “useless” about her line manager when she had never said any such thing.”

“418. We do, however, find that the additional detriment, of Dr Burton’s reference to the GMC on the day of dismissal was a detriment and is in time. The features contained within that referral and the note that he sent to the GMC link, were unpleasant and untrue, and formed a second detriment. They clearly reflected his view of the claimant following the earlier public interest disclosures. These were detriments because of an earlier public interest disclosure, and we find this to be both in time and made out. We note that the claimant’s appraisal did not reflect his damning assertions about the claimant.”

The ET described the tone of the medical director’s correspondence to the GMC as “venomous and dishonest” and it concluded that he had been “waiting” for a chance to make a referral:

“170. Mr Burton’s assessment of the situation with the GMC could not be regarded as honest and objective. An email sent by him on 13 October to Kate Harrison (Liaison Officer for the GMC) suggests a far from impartial stance. He described the claimant as “an opinionated woman”, and alleged there were rumours of bullying (contradicting her glowing appraisal from 17 July). None of her past actions which had caused concern would have merited a referral to the GMC, suggesting he had been waiting for this chance.”

Regarding the false allegations which led to the GMC referral and Dr Malik’s dismissal by Cygnet for gross misconduct, these related to her implementing a care plan of covert medication in an extreme case with risk of violence. This is a rare practice, but permitted and ethical in certain circumstances, with safeguards.

The ET found that the covert medication care plan implemented by Dr Malik was based on full multi-disciplinary  consultation, including with Cygnet senior managers and the patient’s family, and it complied with policy. However, Cygnet manufactured a disciplinary case against her, with false claims by several individuals that she failed to follow procedure and did not consult adequately. Cygnet additionally accused her of bullying, a claim rejected by the ET.

The ET noted that Cygnet’s disciplinary case was very obviously flawed and contradicted by a mass of records which showed her to be innocent of the charges. It stated:

“423. We find that the investigation and disciplinary procedure were fatally flawed. In particular Mr Ruffley, who was dishonest in his information to the investigation and to the Tribunal. The decision making process was disreputable.”

The brother of the patient who was covertly medicated, who supported the care plan, gave evidence at the ET in Dr Malik’s favour.

The ET concluded there had been no gross misconduct by Dr Malik:

“434. We do not find the claimant guilty of gross misconduct in the light of our findings above. We therefore find that the respondent was in breach of contract in dismissing the claimant for gross misconduct. We find that the claimant followed the hospital’s policy and took note of the other policies. The policy of her employer was noted to be signed by Dr Burton but he appeared to have little or no knowledge of its content. We find it more likely than not that the hospital’s own policy was not actually read by the investigators, the dismissing offer or the appeal officer, and we are sure that Dr Burton was unaware of the contents of the policy that was signed off in his name. The reason for the dismissal was adequately explained in the venomous and dishonest tone of the email to the GMC link. A careful analysis of the steps she took showed that she had complied with every step required of her under the respondent’s own policy in the particular circumstances of M. Prudence may have suggested that other steps could be taken, taking legal advice for instance, but there was no requirement on her to do so. There was no evidence of wilfulness, or of gross negligence. The evidence suggested she was doing the best she could for her patient, as her contract required, and within the policies and statutes under which she was required to work The claimant was thus dismissed without notice in breach of contract.”

The ET criticised Cygnet managers responsible for the blatantly unfair disciplinary action against Dr Malik and her unwarranted dismissal. 

The ET concluded that the interim hospital manager and the regional operations manager were dishonest about the case against Dr Malik:

“The investigators were not helped by the dishonesty of Serena Birtwhistle and Mr Ruffley.”

“We found Mr Ruffley to be less than truthful, and noted that there was evidence that he had lied in the investigation in that he denied he knew about the covert plan, and there was clear evidence in the emails that he did.”

The ET criticised the fact that Cygnet appointed an inexperienced peer of Dr Malik’s to hear her disciplinary case. It concluded that the decision to dismiss was in reality one of bad faith and had in fact been made by the CEO and the director of Human Resources.

“430. The matter was then compounded by Jenny Gibson’s involvement. She appears to have written both the dismissal letter and the appeal letter, and we find it more likely than not that she did both make the decision and write the decisions with Dr Romero. That cannot be within the range of reasonable responses, and shows a litany of bad faith.

431. The claimant was unable to attend her appeal because she was unwell. Dr Romero allegedly heard the appeal in her absence. He made a decision with regard to the administration of the drug O which had not been discussed with the claimant and was never put to her before the decision was taken. Jenny Gibson was again involved. There are no file notes at all of any discussions between her and any of the other people involved in the investigation, dismissal or appeal. We find that to be quite extraordinary for a senior HR manager. There were no notes either from Dr Romero of his part in the appeal, simply the letter we believe was prepared by Jenny Gibson which was signed by him. We do not say he played no part in that decision, but we find it to be a collaboration between Jenny Gibson and Dr Romero. The claimant, as she believed, did not stand a chance of the dismissal being overturned.”

Cygnet’s CEO heard Dr Malik’s appeal against dismissal even though there was an outstanding grievance by Dr Malik against him. The ET commented:

“We noted he [Dr Romero] chose to undertake the appeal himself, which he could have delegated to a manager immediately below him. We noted that the grievance was never heard – and is still outstanding to this day – and that Dr Romero was responsible in effect for nearly all of the actions taken by the other parties, through Jenny Gibson.”

The director of HR composed an outcome letter for the dismissing officer:

“Jenny Gibson sent an email to Dr Burton, Mr Ruffley, Dr Romero and Mr McQuaid in which she created some wording to send to Dr Malik in terms of why “we” had decided to dismiss her. She also sent a copy to Mr Boyapati “so that he is aware”.

162. Jenny Gibson was not the HR representative at the disciplinary hearing and did not credibly explain her intervention at this point, when given the opportunity. The rough notes of the reasons to dismiss were produced by Ms Gibson and sent to Dr Boyapati to approve. She selected very few issues and ignored the balance of the allegations and evidence. She gave a very partial account. The letter made no mention of the policy of the hospital, the NICE guidelines or the CQC (presumably because they could not say that she had failed to comply with them).”

The ET noted that the director of human resources’ draft letter of dismissal received the medical director’s approval:

“165. Dr Burton on receipt of the draft thanked Ms Gibson for “a good email. Dr Boyapati on receipt made a few minor changes. It is however completely clear that Dr Boyapati did not provide the wording as suggested by Ms Gibson, and that in fact the wording was hers.”

Illustrating how arbitrary Dr Malik’s treatment by Cygnet was, the medical director criticised her despite her adherence to Cygnet’s covert medication policy, which he himself had personally signed off the previous year:

“122. This policy was approved specifically by Dr L Burton who later appeared to be a serious critic of the claimant’s actions when she followed his policy.”

“The policy of her employer was noted to be signed by Dr Burton but he appeared to have little or no knowledge of its content. We find it more likely than not that the hospital’s own policy was not actually read by the investigators, the dismissing offer or the appeal officer, and we are sure that Dr Burton was unaware of the contents of the policy that was signed off in his name.”

In short, the ET concluded that Cygnet effectively commissioned “lies” and came to a predetermined decision to dismiss Dr Malik:

“It was done by only interviewing those who sided against the claimant, telling lies to the investigation and the tribunal, and by Drs Romero, Jenny Gibson and Dr Burton ensuring that the script for the dismissal and appeal was theirs.”

Sadly, as often seen, the ET stopped short of concluding that Dr Malik was dismissed for whistleblowing, even though it appeared to acknowledge that Cygnet had been waiting for an opportunity to dismiss her because of her previous whistleblowing:

“433. We do not therefore find that the respondent has proved on the balance of probabilities that there was a potentially fair reason for the dismissal or further that a fair procedure was followed. There may be an argument to follow on the issue of contribution. We do not find that the claimant was dismissed because she made public interest disclosures i.e. automatically. It is clear that this was however the general background to the respondent’s senior managers disliking her, and later seizing an opportunity to dismiss her.”

So there you have it, a case of proven conspiracy against a whistleblower which will seriously affect her career, but with no legal linkage made between the disclosures and the dismissal. This will mean as usual that any compensation will likely not reflect the real losses suffered by Dr Malik nor truly compensate for blacklisting that she may suffer.

Once again, Dr Malik’s case reveals graphically what a sustained ordeal whistleblowers may face, only to be failed again by weak whistleblowing law when they seek redress years later.

At present, highly paid executives often see unfairly sacking whistleblowers as a worthwhile risk, and the paltry compensation they have to pay harmed whistleblowers as simply the very reasonable price of doing unethical business.

There is often a chasm between corporate rhetoric and the reality of what happens behind closed doors. In a rapid response of 14 January 2020 to a BMJ article about Cygnet’s governance failings, Dr Tony Romero Cygnet CEO wrote:

“The board take any concerns raised very seriously and as a leadership team we promote honesty and transparency. The report cites a culture of openness and initiatives to encourage reporting of issues, including a whistleblowing line. It acknowledges most staff feel able to report incidents and raise any concerns, which demonstrates our lines of accountability are clearly understood. We are also appointing a freedom to speak up guardian.”

Whistleblowing law reform

The Malik case shows yet again why we need much stronger, proactive whistleblowing law that compels protection, a proper, timely response to whistleblowers’ protected disclosures and much stronger deterrence of cover ups and reprisal.

A Westminster petition  was previously set up seeking reform of  and gathered only 1,462 signatures by the time of the six month expiry date on 17 February 2021.   A new non time-limited petition has been set up: Replace weak UK whistleblowing law, and protect whistleblowers and the public   Your help in signing and sharing this petition would be much appreciated.

Commissioners and regulators

It is also vital that NHS commissioning oversight of high risk services such as those operated by Cygnet is improved, to protect vulnerable patients and to ensure best value for the public purse. There is currently a standard clause in NHS purchased private care, which requires private providers to have a basic level of whistleblowing governance. But does anyone really bother to track instances of whistleblower reprisal?

The local CCG, East Lancashire, seems to have been cheerleading instead of interrogating:

The NHS England-commissioned statutory independent homicide investigation under HSG (94)27  of an inpatient killing at Cygnet Bradford identified issues with NHS England’s oversight of outsourced mental health care. The homicide investigation report made the following recommendations:

CQC also has responsibility to check whether providers have safe culture, including good whistleblowing governance.

In an inspection report of 31 December 2019 CQC waxed lyrical about the leadership of Cygnet Fountains hospital:

“There was compassionate, inclusive and effective leadership at all levels. Leaders at all levels demonstrate the high levels of experience, capacity and capability needed to deliver excellent and sustainable care.

Comprehensive and successful leadership strategies were in place to ensure and sustain delivery and to develop the desired culture. Leaders had a deep understanding of issues, challenges and priorities in their service, and beyond.”

“Staff knew and understood the provider’s vision and values and how they were applied in the work of their team.

Staff were proud of the organisation as a place to work and spoke highly of the culture. Staff at all levels were actively encouraged to speak up and raise concerns, and all policies and procedures positively support this process.

Staff felt respected, supported and valued.”

The CQC inspection team responsible for this finding are not named:

Questions of regulatory capture arise, especially bearing in mind that a CQC manager ran away from the CQC circus in 2016, to join Danshell, one of Cygnet’s predecessor firms.

The managing director of Castlebeck Care, one of Cygnet’s predecessor organisations was banned by the Insolvency Service for eight years because he failed to act appropriately on whistleblowing disclosures about patient abuse at Winterbourne View hospital:

“Neil Cruickshank, the Managing Director of Castlebeck Care (Teesdale) Ltd, has been disqualified for 8 years for failing to follow proper company procedures regarding Quality of Care, after he was sent information from a whistleblower regarding the behaviour of staff at the Winterbourne View Nursing Home, near Bristol.”

Notoriously, the system regulator Care Quality Commission also failed the Winterbourne View whistleblowers:

Serious Case Review on Winterbourne View Hospital, Margaret Flynn, South Gloucestershire Safeguarding Adults Board 2012

The CQC is now responsible for operating CQC Regulation 5 Fit and Proper Persons (FPPR), under which providers must ensure their directors are fit and proper persons.

Will the CQC now break its habits of wilful blindness and inaction on FPPR, and act upon not just the suppression of protected disclosures but orchestrated whistleblower reprisal in Dr Malik’s case?

But perhaps there is nothing to worry about. Cygnet have appointed a Freedom To Speak Up Guardian, and speaking up will be “celebrated” henceforth.

Declaration of interest: Nick Ruffley was service director when I whistleblew about care and governance failings at St Andrews Healthcare, another private mental health provider.

RELATED ITEMS

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

Contract Failures in Mental Health Services

Counting the cost of the CQC: Abuse, Whorlton Hall and CQC spin doctors

CQC Whorlton Hall Cover Up: More CQC responses & culpability

St. Andrews Healthcare, Whistleblowing, Safeguarding and Public Protection

Replacing the Public Interest Disclosure Act (PIDA)

Summary: North Tees and Hartlepool NHS Foundation Trust has once more been comprehensively rebuked by the Employment Tribunal for serious whistleblower detriment. It is an illustrative case of how organisations close ranks and collude. The trust has been found to have racially discriminated against surgeon Mr Manuf Kassem, and to have punished him for whistleblowing. The ET has determined that the trust medical director threatened him with disciplinary action, that a clinical director revealed his identity as a whistleblower – including to other doctors about whom he had whistleblown, and that doctors about whom he had raised concerns filed retaliatory Datix incident reports. The ET found that Mr Kassem was subjected to a retaliatory disciplinary investigation and punitively removed from emergency out of hours duties for whistleblowing. Care Quality Commission Regulation 5 Fit and Proper Person issues arise about the board of this trust, this being the second recent and serious whistleblower case. The earlier case of North Tees whistleblower Linda Fairhall drags on because the trust is vindictively pursuing an appeal after she won her ET claim and despite the fact that her partner died of a heart attack whilst she was suspended.

It is also relevant to note that Mr Kassem’s patient safety concerns were reviewed by North Tee’s deputy medical director, who was also called in by University Hospitals of Morecambe Bay NHS Foundation Trust to review whistleblowers’ concerns about orthopaedic services. The orthopaedic safety matters at UHMBT drag on and local members of parliament are now involved.

Background

North Tees and Hartlepool NHS Foundation Trust has already been in the spotlight because of its proven victimisation of NHS whistleblower Linda Fairhall, a senior nurse who raised safe staffing concerns. Her partner died of a heart attack whilst she was suspended from her duties in an act of detriment. Linda Fairhall won her Employment Claim but the trust has been vindictive in defeat and seeks to inflict more suffering by appealing. The case was also particularly notable because the trust head of Human Resources was at one point the lead Freedom To Speak Up Guardian. See:

Safe staffing and North Tees’ unfair sacking of ‘unblemished’ whistleblower nurse Linda Fairhall. HR Director was also the Freedom To Speak Up Guardian

Mr Manuf Kassem’s whistleblowing case

Another whistleblower at North Tees Mr Manuf Kassem Associate Specialist in Urology has now had an Employment Tribunal judgment in his favour, remarkably after representing himself. It is rare for whistleblowers to win ET claims, rarer still for them to establish a specific finding of whistleblower detriment and very rare for them to succeed as litigants in person.

I am unable to do the case justice due to very limited time at present, but am reporting briefly on the ET judgment  to raise awareness of North Tees’ recidivism:

Mr Manuf Kassem v North Tees and Hartlepool NHS Foundation Trust Case Number: 2502292/2019 Judgment 17 January 2021

In essence, Mr Kassem has established that North Tees racially discriminated against him and also retaliated against him because he made protected disclosures in the public interest, about patient safety.

This is the ET’s summary of Mr Kassem’s protected disclosures:

“The second investigation meeting into the claimant’s grievance took place on 4 August 2017 (260). While this is the second meeting that had been arranged to discuss the grievance it has additional significance in that at this meeting the claimant presented to Mr Tulloch details of 25 patients whom he alleged had “suffered complications, negligence, delayed treatment and avoidable deaths.” In this respect the Tribunal records that the respondent accepted that the claimant raising these concerns amounted to a protected disclosure. Additionally, at this meeting, unlike the first investigation meeting, the claimant made express reference to issues of ethnicity and race. Having named five surgeons whom he described as being “untouchable” the claimant is recorded as having said, “it was dependent upon nationality if you are white or from India you would receive different treatment”. In this regard, the claimant referred to a Turkish surgeon who had received treatment similar to him, a doctor from Pakistan “who had put a complaint in about how AA had treated her” and a colleague from Nigeria who was “shouted at by one of AA close friends” (265).”

Very significantly, the ET found that those who retaliated against him included Dr Dwarakanath the trust’s medical director. Dr Dwarakanath set up a panel to look at Mr Kassem’s patient safety concerns. The ET noted that the medical director had given inconsistent accounts about this process and its objectivity as regards the involvement of Mr Kassem’s clinical director, Mr Agarwal:

“Returning to the chronological order of events, as mentioned above at the second grievance investigation meeting with Mr Tulloch the claimant had raised concerns in respect of 25 patients. Dr Dwarakanath was made aware of this by Mr Sheppard and Ms Johnson in early February whereupon he established a panel to consider the concerns the claimant had raised in relation to these patients. The individuals whom Dr Dwarakanath invited to join him on the panel were Mr C, consultant urologist and medical director with a neighbouring NHS Foundation Trust and Mrs C (no relation to Mr C) who was employed by the respondent and had expertise in governance and safety. The evidence of Dr Dwarakanath was that Mr Agarwal and a colleague provided access to the patients’ records and other relevant information but neither “played any role in the review” but that is contrary to the letter he wrote to consultant surgeons and urologists dated 25 June 2018 in which he stated that the cases “were critically reviewed by [Mr C], myself, Mr Agarwal and [Mrs C]” (381); that clearly indicating Mr Agarwal’s position within the review panel.”

The ET considered that a letter from the medical director to Mr Kassem amounted to a threat of disciplinary action and was a detriment for whistleblowing:

“10.111 Ms Johnson wrote to Dr Dwarakanath on 27 November to draw these matters to his attention (477). He then wrote to the claimant on 13 December 2018 (500) informing him that so as to ensure that any reconvened meeting was productive and conclusive he had instructed Prof M to facilitate the job plan discussion along with a member of HR who would provide expert advice. Dr Dwarakanath concluded his letter, “May I remind you also that any further incidents of this nature may result in formal action being undertaken in accordance with Trust HR policy.”

“f. The letter Dr Dwarakanath wrote to the claimant on 13 December 2018 is considered at paragraph 10.111 above. The Tribunal is satisfied that such a strongly worded letter written by someone of such seniority and authority in the respondent’s organisation did constitute a threat of disciplinary action and that was a detriment. The letter therefore amounted to a detriment to which the claimant was subjected by the respondent (in the shape of Dr Dwarakanath). The Tribunal is satisfied that Dr Dwarakanath’s motivation in writing this letter was bound up with the claimant having raised his concerns in respect of the 25 patients as a result of which Mr Shanmugam and Mr Bhaskar were no longer willing to work with him on the emergency on-call rota and Ms Dean, Mr Agarwal and Dr Dwarakanath then agreed that the claimant should be removed from that rota, all of which is set out in more detail in the Tribunal’s findings of fact above. For those reasons, and having considered the mental processes of Dr Dwarakanath, the Tribunal is not satisfied that the respondent has discharged the burden of proof upon it to show that the letter was not written on the ground that the claimant had made a protected disclosure.”

Moreover, the ET found that Dr Dwarakanath inappropriately placed himself on a disciplinary panel against Mr Kassem despite prior involvement in the case, and that this constituted a detriment for whistleblowing:

“In his letter of 7 March 2019 Dr Dwarakanath informed the claimant that he would be one of the three members of the disciplinary hearing panel; indeed he was to be its chair. Given Dr Dwarakanath’s previous involvement the Tribunal is satisfied that that was to the claimant’s detriment, which is reinforced by Ms MT having explained in her letter to the claimant of 15 May 2019 that due to that involvement she considered it appropriate that an alternative chair should be appointed. Thus, there is again the protected disclosure and detriment to which the respondent submitted the claimant. Once more on the evidence available to it and again having focused upon the mental processes of Dr Dwarakanath, the Tribunal is not satisfied that the respondent has discharged the burden of proof to show that Dr Dwarakanath appointing himself as chair of the disciplinary panel was not on the ground that the claimant had made a protected disclosure.”

The ET judged that Mr Kassem was removed from some duties, emergency on call, as an act of whistleblower detriment:

“As also explained above, the Tribunal is satisfied that the outcome of the job plan review meeting on 2 January 2019 that the claimant would no longer undertake out of hours or emergency on-call duties as part of the middle grade rota was undoubtedly a detriment to which the claimant was subject by the respondent. Having focused primarily on the minds of Mr Agarwal and Ms Dean who had conduct of that meeting but more generally upon the mental processes of all those referred to above who had sought to have the claimant removed from the on-call rota, on the evidence available to it as summarised above, the Tribunal is satisfied that the respondent has failed to discharge the burden of proof to show that the claimant no longer undertaking such duties was not on the ground that he had made a protected disclosure.”

The ET concluded that the three key individuals behind this act of detriment were Dr Dwarakanath medical director, Mr Agarwal clinical director and Ms Dean Care Group Manager:

“The Tribunal has explained above its findings in relation to the email exchanges on 4 September 2018 and being satisfied that the purpose of that email exchange was to stop the claimant’s oncall emergency duties. The claimant had made a protected disclosure and, having focused on the minds of Ms Dean, Mr Agarwal and Dr Dwarakanath, the Tribunal is satisfied that he was subjected to detriment by the respondent, in the shape of those three individuals. As such, in accordance with section 48(2) of the 1996 Act the burden of proof shifts to the respondent to prove, on balance of probabilities, that the claimant was not subjected to detriment on the ground that he made the protected disclosure. Again having focused on the minds of those three individuals, on the evidence available to the Tribunal (again as set out at some length above in relation to the email exchanges) it is not satisfied that the respondent has discharged that burden of proof.”

The ET indicated that it was not satisfied with the clinical director’s evidence:

“The Tribunal did not find Mr Agarwal’s evidence on this issue to be satisfactory. At paragraphs 43 and 44 of his witness statement he had conflated what were clearly two conversations between him and Mr Q some seven months apart. He did not make it clear that in the first of their conversations Mr Q had denied that the claimant had telephoned him (that only coming to light in the course of the investigation carried out by Mr Tulloch into the claimant’s grievance in July and August 2017) or make it clear that it was only in their second conversation that Mr Q had told Mr Agarwal that the claimant had in fact telephoned him. Further, Mr Agarwal’s evidence was that at the consultant’s meeting on 9 December he did not mention names or criticise anyone. That, however, is contrary to, first, Mr CH having told the claimant that he had been identified at the meeting and, secondly, to the discussion between the claimant and Mr Agarwal in the corridor having been witnessed by others. Notwithstanding this change in Mr Q’s account of the incident (and therefore Mr Agarwal’s understanding of what had actually occurred between Mr Q and the claimant) the minutes of the meeting on 9 December were never revisited or clarified.”

The ET also concluded that the clinical director had revealed Mr Kassem’s identity as a whistleblower to other doctors at a meeting where Mr Kassem’s patient safety concerns were discussed:

“The oral evidence of the respondent’s witnesses in relation to this meeting was to suggest that the claimant was not named by Mr Agarwal as being the person who had raised the concerns but that is contradictory to the evidence in Mr Bhaskar’s witness statement that at this meeting in April he was given details of two cases pertaining to his treatment, “In one of the cases discussed it states that Mr Kassem had been told by another consultant that I had performed an experimental operation on a patient ….. This incident occurred in 2012 so there had been plenty of time for Dr Kassem to have approached me to express his concerns.” That witness statement was presumably produced in a considered way and with the benefit of legal advice and the opportunity for discussions with colleagues, for example Mr Agarwal. That being so, the Tribunal accepts that evidence that at the meeting in April the identity of the claimant as the individual who had raised the patient safety concerns was revealed by Mr Agarwal.”

Related to the punitive, retaliatory removal of Mr Kassem from emergency out of hours work, the ET determined that two doctors, who had been criticised in Mr Kassem’s protected disclosures, submitted unfavourable Datix incident reports against Mr Kassem as an act of whistleblower reprisal:

“The Tribunal has found above that the claimant made a protected disclosure when, at the second grievance meeting on 4 August 2017, he provided to Mr Tulloch a list of 25 patients whom he considered had suffered morbidity, harm and unnecessary death; this being carried forward into the consultants’ meeting in April 2018. Additionally, having focused on the minds of Mr Shanmugam and Mr Bhaskar, the Tribunal has made a specific finding at paragraph 10.88 above that they respectively submitted their Datixes with the express purpose of removing the claimant from the emergency on-call rota; further, that their reason for that was that he had criticised their clinical practice when he raised his concerns in respect of the 25 patients.

Thus, the claimant made a protected disclosure and was subjected to detriment by the respondent; in the shape of Mr Shanmugam and Mr Bhaskar. As such, in accordance with section 48(2) of the 1996 Act the burden of proof shifts to the respondent to prove, on balance of probabilities, that the claimant Case Number: 2502292/2019 79 was not subjected to detriment on the ground that he made the protected disclosure. On the evidence available to the Tribunal as considered above it is not satisfied that the respondent has discharged that burden of proof. On the contrary, the Tribunal is satisfied that the motivation of Mr Shanmugam and Mr Bhaskar in submitting those Datixes (being the detriment) was that the claimant had made that protected disclosure.”

Mr Kassem was accused of working too hard. Whilst this may seem bizarre to the uninitiated, conscientious whistleblowers may face all manner of desperate, ridiculous allegations by those scraping the bottom of the barrel to fabricate disciplinary cases, including allegations of working long hours or working late.

The ET reported as follows on this issue, concluding that long hours were a pastoral and not a disciplinary matter:

“10.116 As to the allegation of unsafe working practices, Ms Lynch’s evidence in her witness statement was that concerns had been raised in relation to the number of additional hours that were being undertaken by the claimant but the Tribunal is unable to identify the source of those concerns. Suffice it to say that it appears that by mid September 2018 any issue in this regard had been resolved in discussions between Ms CB, an Administration Manager, and the claimant (950). In particular, it is recorded that the RMO was going live on Healthroster and Ms CB informed the Investigation Team on 12 October that if they ever needed the claimant “to cover we check what he has been doing previously and the day after the shift” (775) i.e the risk of the claimant working excessive hours was being monitored and could be addressed as necessary. This is significant as in its report the Investigation Team refers to the week commencing 10 September 2018 (i.e. before the resolution of this issue). It would also appear from CB’s email to Ms Dean of 29 August 2019 (1054A) (which explains the Healthroster system) that if excessive hours were to be worked, Directorate staff would be alerted to reject the doctor from the shift. It also seems from that email that other doctors were working excessive hours but there is nothing before this Tribunal that suggests they were taken through a disciplinary process in those respects. In any event, as the Investigation Team also records, the Directorate bore some responsibility for ensuring that the claimant did not work excessively. Fundamentally, however, if this is an issue, it would appear to the Tribunal as one for guidance in a pastoral sense rather than being addressed through a disciplinary procedure.”

At one point, Mr Kassem was accused of possible fraud, but this was dismissed and it was concluded that if anything, Mr Kassem had underclaimed for work done and deserved to be paid more:

“10.120 The final allegation against the claimant is that he had engaged in potentially fraudulent activity. The basis of this allegation was identified by Ms Dean in her witness statement as being that during a review of additional timesheets submitted by the claimant for the period 4 August to 16 September 2018 she had identified that there was an overlap and double-counting for time when he should have been starting his normal scheduled work but was still claiming for his RMO work finishing after that time. More particularly, on 10 and 15 August and 14 September 2018 the claimant had claimed to have finished his 12-hour RMO shifts in Hartlepool at 9.00am but, on each of those days, he should have commenced his scheduled programmed work at 8.30am; that being, on 15 August, a manometry clinic at 8.30am at North Tees. As to 10 August and 14 September, the claimant explained that he had adjusted his working time to accommodate a colleague. The claimant had started his shift at 8.00pm the night before and a colleague attended at 8.00am and they both agreed that so as to avoid confusion they would each claim 12 hours as shown on the rota (i.e. in the claimant’s case from 9.00pm to 9.00am), which the claimant suggested is a frequent occurrence between doctors. As to 15 August, the claimant explained that although the manometry clinic started at 9.00am, preparatory work could take 30 to 40 minutes and it had therefore been agreed with the colorectal manager that the claimant’s start and finish times could be adjusted so as to be from 9.30am to 1.30pm thus maintaining the same number of hours per session. In these circumstances the claimant denies any overlap in his working hours. The Tribunal accepts the claimant’s explanation that the manometry clinic does not start until 9.00am, and not 8.30am as alleged, given that that is supported by the evidence of Mr Tabaqchali, and, in any event, the clinician is not required to be in attendance until 9.30am and the claimant finished at 1.30pm. In this regard, the evidence of Mr Tabaqchali is clear, “the manometry clinic starts at 9.30am, and not 9.00am as stated in his job plan” and given the regular meetings that Mr Tabaqchali (as lead for the colorectal service until 2016) had had with the Directorate management team where all operational, performance and staffing issues were standing items on the agenda it was “difficult to imagine that the directorate had no knowledge of how the lab or the service works over such a long period of time.” Although it is a different point, Mr Tabaqchali concluded his evidence in this respect that he was aware that the claimant “did numerous additional sessions without claiming payments. I therefore think it is a great pity that the directorate has taken this approach rather than thanking him for his hard work and dedication. I would suggest that the directorate overall owe him more pay, not less pay.”

The ET concluded that those involved in a process of disciplinary investigation against Mr Kassem had acted out of retaliation for his whistleblowing:

“As stated in relation to paragraph 4b. of the claimant’s victimisation complaint the Tribunal has found that the investigation did amount to a detriment. Given that the claimant had made a protected disclosure and the Tribunal being satisfied that the respondent subjected him to that detriment, the burden of proof again shifts to the respondent to prove that the claimant was not subjected to the detriment on the ground that he made the protected disclosure. Having considered the mental processes of those involved in instituting and progressing the disciplinary investigation, for the reasons set out in its findings of fact above, the Tribunal is not satisfied that the respondent has discharged that burden of proof to the satisfaction of the Tribunal.”

All the above is a depressing litany, so very familiar to many whistleblowers.

Issues of CQC Regulation 5 Fit and Proper Persons arise regarding the board of North Tees and Hartlepool NHS Foundation Trust, not just because of the details of Mr Kassem’s case but because it follows Linda Fairhall’s case.

And there is one notable detail.

Mr Kassem’s patient safety whistleblowing concerns were reviewed by North Tees’ deputy medical director, Chris Tulloch. The ET noted the following:

“The 25 patients referred to above were reviewed by Mr Tulloch. He noted that all but one of the cases had been through at least one of the relevant processes operated by the respondent: the M&M meeting, the Independent Review Panel (“IRP”) or the Safety Panel. The one case that had not been through a review route was relatively recent and there were plans in place to progress it. Having reviewed the documentation, Mr Tulloch was satisfied that the appropriate processes had been adopted to ensure that objective scrutiny had been applied and he had not identified any untoward practice occurring within the Directorate (285/6).”

Mr Tulloch was the external reviewer recently called in by University Hospitals of Morecambe Bay NHS Foundation to look at whistleblowers’ concerns in that trust’s orthopaedic services.

The UHMBT orthopaedic safety matter continues unresolved and local members of parliament are now involved.

In the aftermath of Linda Fairhall’s case, Henrietta Hughes the National Guardian was quoted as saying “Workers who speak up should be thanked for doing so and the organisation should demonstrate they are taking action to address the issues raised.”

Yet she has announced no formal case review of the whistleblowing governance at North Tees, and now there is a second serious failure. Who knows if even this will persuade her to take any real action to support future whistleblowers at the trust. Her Office has ingeniously cited both uncompleted and completed employment tribunal proceedings as exclusion criteria for case review.

In fairness, one must marvel at the audacity of the self-serving puffery that is the government’s Freedom To Speak Up project.

Related items:

These outrages and injustices will continue for as long as UK politics remain broken with cronyism and impunity, and our weak whistleblowing law is left unreformed. However long as it takes, whistleblowing law reform is badly needed:

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

Please support law reform by signing and sharing this petition:

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

Hospital bosses in Hartlepool paid out millions of pounds in damages in the last year following serious mistakes in care, new figures reveal.

University Hospitals of Morecambe Bay NHS Foundation Trust’s handling of counter-allegations against whistleblowers

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

Mr Tristan Reuser, surgeon, successfully defends an EAT appeal by University Hospitals Birmingham NHS Foundation Trust

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 29 January 2021

Summary: The most recent in a long line of whistleblowing scandals at UHMBT, regarding orthopaedic safety, involves potential whistleblower reprisal by counter-allegations. The trust was asked to explain its approach to managing counter-allegations and reprisal, but its response does not address the specific issues. The national whistleblowing template policy by NHS Improvement does not help much either. Without accountability and effective deterrence of reprisal, problems will continue. Weak UK whistleblowing law needs to be overhauled to ensure accountability and to deter reprisal. Concerns continue about orthopaedic surgery at UHMBT and there is pressure for a fuller, independent investigation.

Counter-allegations in whistleblowing cases

Whistleblowers are at high risk of malicious counter-allegations and retaliatory disciplinary action.

Reprisal is the logical thing to do if you wish to silence a whistleblower, or undermine their credibility to obliterate their embarrassing disclosures.

That is not to say that whistleblowers are all saints and above reproach.

But fair and skilled handling of counter-allegations is an essential part of good whistleblowing governance. As is ensuring jeopardy for abusers.

Well-known organisational tactics are to deliberately make whistleblowing cases complicated and harder to understand, and to use malicious counter-allegations to muddy the waters.

Sometimes, the aim is to sell a narrative of clash of personalities (which may allow a whistleblower’s dismissal under the Some Other Substantial Reason mechanism), or an “it’s a can of worms” type scenario. The whistleblower is then caught in this undertow and swept out to sea, their disclosures conveniently forgotten. If some blame can be smeared on to a whistleblower, this also reduces awards that may be made by Employment Tribunals.

Sir Anthony Hooper reviewed the General Medical Council’s handling of whistleblowing after a series of scandals in which whistleblowers were vexatiously referred to the regulator.

His recommendations emphasised the vital need for accountability and included a mandatory statement of truth by senior, registered doctors who refer other doctors to the GMC, and a recommendation that those found to have made vexatious referrals should be subject to a review of their fitness to practice.

The English NHS currently has a national policy that is supposed to be adopted by all NHS organisations, produced by NHS Improvement. This national template is weak on the management of whistleblower reprisal. It does little other than provide an empty promise of zero tolerance, with no practical detail on how this is achieved:

“Feel safe to raise your concern

If you raise a genuine concern under this policy, you will not be at risk of losing your job or suffering any form of reprisal as a result. We will not tolerate the harassment or victimisation of anyone raising a concern. Nor will we tolerate any attempt to bully you into not raising any such concern. Any such behaviour is a breach of our values as an organisation and, if upheld following investigation, could result in disciplinary action.

Provided you are acting honestly, it does not matter if you are mistaken or if there is an innocent explanation for your concerns.”

NHS Improvement’s policy does not state how evidence on possible reprisal should be evaluated and weighed. Neither does it explain how organisations should track possible reprisal and suspected abusers. Importantly, it does not say how whistleblowers will be supported if counter-allegations are made against them, or how counter-allegations should be handled to ensure that whistleblowers are not punished by allowing abuse of process.

Counter-allegations against a whistleblower at University Hospitals of Morecambe Bay NHS Foundation Trust

At the University Hospitals of Morecambe Bay NHS Foundation Trust, there is a long list of whistleblower scandals dating back many years. Some including allegations of deliberate patient harm and proven failings in breast cancer screening.

Moreover, not all the UHMBT whistleblowing cases are in the public domain.

Each time the trust claims to learn, but then another scandal rears its head.

Amongst the most recent troubles is conflict in orthopaedic services following concerns raised about a surgeon’s safety record.

The trust is accused of playing the concerns down, and only reacting after doctors exercised their professional duty to report these concerns to the GMC.

The affair was reported in the “can of worms-style” narrative last November:

Patients harmed amid ‘internecine squabbles’ and cover-up claims

Importantly though, the heart of the affair was noted:

“In their letter to the CEO, the doctors said further patients were harmed between the 20 clinical incidents being raised and the restrictions being imposed, including a patient whose hip socket fell out days after a hip replacement and a patient’s femur being fractured during an operation. The consultants alleged the response to their concerns had amounted to a “cover up”.

In a reply to the consultants, chief executive Aaron Cummins admitted “more robust action” should have been taken after analysing the list of 20 incidents.

Meanwhile, an external review completed by the deputy medical director of North Tees and Hartlepool FT in January 2020 confirmed “several patients did suffer in the period between presentation of the 20 critical incidents and action being taken by the GMC”.

The above January 2020 review conducted by Chris Tulloch the deputy medical director of North Tees has now been published in an FOI disclosure by UHMBT (see last 19 pages of the disclosed document).

For the record, North Tees and Hartlepool also has severe whistleblowing governance problems, as evidenced by senior nurse Linda Fairhall’s case of serious, proven whistleblower detriment:

Safe staffing and North Tees’ unfair sacking of ‘unblemished’ whistleblower nurse Linda Fairhall. HR Director was also the Freedom To Speak Up Guardian

There is a particularly worrying aspect of the UHMBT orthopaedics whistleblowing case that is revealed by the Tulloch review.

The review report contains this passage on possible reprisal by counter-allegations, against one of the doctors who had raised concerns:

“Q12: Why was Consultant A practice suddenly subjected to scrutiny and performing a particular operation stopped temporarily after he raised the concerns while the AS continued unrestricted practice?

A12: This practice was raised through whistleblowing and is being reviewed by the HR director. This is the subject of a separate external review.” 

From this passage, there seems no visible attempt to consider the possibility of reprisal, or to address why harsher action appears to have been taken against a whistleblower than the person about whom they raised concerns.

I therefore asked UHMBT for comment on the soundness of its whistleblowing governance, and in particular its approach to handling possible reprisal against whistleblowers in the form of counter-allegations.

The questions put to the trust were as follows:

“Would you like to comment on whether the Trust has appropriately managed possible whistleblower reprisal by a manager against a doctor who raised concerns about a colleague, and  who was then subject to restriction of their practice, when there was reportedly no restriction of the practice of the doctor about whom they had raised concerns?   I refer to the Tulloch external review report, which states:   “Q12: Why was Consultant A practice suddenly subjected to scrutiny and performing a particular operation stopped temporarily after he raised the concerns while the AS continued unrestricted practice?   A12: This practice was raised through whistleblowing and is being reviewed by the HR director. This is the subject of a separate external review.”    Can the trust believe it has adequate policies to manage malicious counter allegations against whistleblowers?   Does the trust believe it has taken appropriate disciplinary action for any whistleblower reprisal?   If the trust’s policies do not currently deal with possibly vexatious counter allegations against whistleblowers, does the trust have any plans to correct this gap?   Does the trust wish to comment on why it continues to have problems with whistleblowing matters?   Does the trust believe that its HR systems and its senior HR managers are responding appropriately to whistleblowing issues and that they are proactively and effectively supporting good practice?”

After reporting that it had run its response past NHS England, the trust replied as follows yesterday:

From: REDACTED Subject: Re: Comment on whistleblowing issues Date: 28 January 2021 at 18:09:40 GMT To: Minh Alexander <REDACTED>   Hi Dr Alexander – with apologies because its so late, please find below a statement in response to your queries about the service.   It doesn’t answer each point individually but hopefully the overall statement explains our position.   kind regards   REDACTED “Aaron Cummins, Chief Executive, UHMBT, said: “We encourage all colleagues from across the Trust to raise their concerns, either with staff side colleagues, the Freedom to Speak Up Guardian, our Governors, including staff governors, or one of our non-executive directors.   “We also have an app to raise concerns anonymously and its great that more incidents are being raised, which shows staff feel more comfortable about raising issues. “During a six month period in 2018 we received reports related to 20 incidents regarding clinical care which occurred between 2011 and 2018 within our orthopaedic service. These were all investigated and reviewed appropriately by our Patient Safety Summit and reported through our internal governance processes, with appropriate action taken to ensure the safety of our patients. “Subsequently in October 2019, further concerns regarding the orthopaedic service was sent to the Chief Executive, which posed a number of further questions. Senior leaders, including the Chief Executive, met with the orthopaedic team to ensure the concerns were fully understood and addressed. We operate a safe orthopaedic service. “As a result of this, the Trust appointed an independent external orthopaedic expert to carry out a review of the concerns raised and to answer the questions posed. That review reported in January 2020 and made some recommendations for the service.  “The issues raised and recommendations from the independent report are being worked through and implemented, ensuring the service continues to be safe for our patients. The orthopaedic service continues to be supported with additional training, capacity, executive support and expertise.”

Perhaps I am missing something, but the trust board does not seem to be engaging at all on the issue of whether its management of whistleblower reprisal is adequate.

We may well see yet more Morecambe Bay whistleblower scandals if there is a reluctance to learn, and to ensure that any inappropriate bullying against whistleblowers is properly deterred.

The trust appears keen to draw a line under the orthopaedics issues, but we may not have heard the last of this affair. Representations continue to be made and there is pressure for a more in depth, and fully independent review of orthopaedic safety, in line with the review of the urology service, that has been precipitated by another whistleblowing matter.

Who is most likely to be proven right? Whistleblowers or the trust that has had serial problems with whistleblowing governance?

Meanwhile, the last two UHMBT CEOs enthuse about speaking up and positive culture.

Please sweep away all the faux whistleblowing governance and government propaganda by supporting law reform, and signing and sharing this petition:

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

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