Author: minhalexander

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 23 May 2017

It was as expected, but still shocking.

The CQC has finally produced its responses to Regulation 5 Fit and Proper Person (FPPR) referrals that were made over a year ago, on two NHS directors found to have mistreated whistleblowers.

The referred directors were David Loughton CEO of the Royal Wolverhampton NHS trust – who needs little introduction amongst whistleblowers 1 2 3 4 – and Adrienne Murphy Director of Human Resources at Cornwall Partnership NHS Foundation Trust, and former Director of Workforce at South Devon.

Loughton was referred for a longstanding pattern of behaviour towards whistleblowers, and related Verita findings from an investigation of Loughton’s trust, in which Loughton’s conduct was specifically criticised. 5

Murphy was referred after she was recycled by the NHS, despite being criticised by an Employment Tribunal (ET) for bullying whistleblowers. 6

Murphy’s attempt to silence whistleblowers is described by the South Devon ET Judgment7:

The ET concluded that Murphy had subjected the whistleblowers to detriment, and that this detriment was due to the fact that they had blown the whistle.

However, the CQC has now cemented its appalling record on FPPR through disingenuous claims that the demands of FPPR have been satisfied in both Loughton and Murphy’s cases:

CQC 20170522 Minh Alexander FPPR (3)

CQC 20161114 FPPR closure letter to referrer no breach Cornwall Partnership ….pdf Muprhy

The NHS establishment’s protection of David Loughton has been quite extraordinary. It is exemplified by the Deloitte report commissioned by NHS Improvement, it seems, to clean up the embarrassment caused by Verita’s frankness. Deloitte did not even manage a slap on the wrist for Loughton – just a mild suggestion that he should ‘reflect’ on his ‘style’:

“However, there is undoubtedly scope for the CEO to give further reflection to the impact his personal style can occasionally have on those around him.”8

In its above FPPR closure letter about about Loughton, the CQC clings to this Deloitte report. A question arises about whether CQC delayed in its response to the FPPR referral on Loughton in order to benefit from Deloitte’s very convenient findings.

CQC’s FPPR closure letter about Murphy reveals that the CQC relied on the trust’s own investigations.

This is not only laughable, but inconsistent. The CQC has in the past rejected another trust’s internal FPPR review and demanded external, independent review – but perhaps because they knew that particular case was weak and would be damaging to whistleblowers.

In contrast in the Murphy case, it is hard not to conclude that the CQC resisted sunlight because they knew they were dealing with a genuine, proven case of whistleblower reprisal.

And wouldn’t you know it, but the CQC ‘forgot’ to send me both the outcomes to the Loughton and Murphy FPPRs – the former concluded in February this year, and the latter in November last year. They have only responded now because of a complaint about the delay.

That makes it a total of THREE times on which the CQC has skulked about in the shadows and ‘forgotten’ to send me FPPR outcomes.  Last year, CQC ‘forgot’ to declare that Mike Richards Chief Inspector of Hospitals had closed an FPPR referral on Paula Vasco-Knight – shortly before she had to be sacked by the NHS due to charges of fraud. 9

And it is said sometimes that three makes a pattern.

Unfortunately, I do not expect any better from the CQC. It is a laughing stock and a failure on all fronts.

What now remains to be seen is how the National Guardian responds to this continuing failure on FPPR.

When I last spoke to her, she seemed reluctant to confront the ugly side of whistleblowing failures, and preferred to speak instead of ‘improvement culture’ and ‘support’ for organisations to do better. 10

Nevertheless, she recently published written answers to questions raised at a national conference for Speak Up Guardians on 8 March 2017, in which she finally acknowledged indelicate terms such as ‘serious misconduct’:

20170428_ngo_conference_responses_to_submitted_questions

In response to questions about how she would handle serious misconduct by those who mistreat whistleblowers, she gave this assurance:

“Where evidence of serious misconduct is identified, for example through the case review process, this information will be shared with regulators who are able to take appropriate actions as a result.”

Given the now all too familiar and well known regulatory failures to hold abusers to account, I wrote to Henrietta Hughes to ask what provision she has made for instances in which regulators defy her, and resist appropriate action.

It is part of the National Guardian’s job description to hold the whole system to account including implausibly, the central bodies that fund her office, employ her and line manage her.

I don’t expect to be reassured, but whatever the answer, it will be interesting.

In truth, the National Guardian’s office is simply a government device for delaying what needs to be done. Current UK whistleblowing structures and law are designed to be ineffective and need to be replaced, but this is fiercely resisted.

I leave you with two quotes from whistleblowers who have suffered under Loughton and Murphy’s management:

Prof David Ferry, Royal Wolverhampton whistleblower, to BBC File on Four, broadcast 7 February 2017:

“Things were deteriorating, and after a particularly difficult day in the department, there was a lot of upset and that night, when I went to my car, there was a sticker on my car that said ‘Death to the bastard Geordie whistle-blower.’” 11

It should be noted that CQC have ridden to Loughton’s rescue before, by falsely claiming in a CQC inspection report that controversial oncology treatment provided by Loughton’s trust was standard when it was not. When David Ferry challenged CQC’s inspection report, Mike Richards claimed that CQC had merely made a typographical error. 11

Clare Sardari South Devon whistleblower , who along with Penny Gates raised the alarm about Paula Vasco-Knight’s nepotism. This is Clare Sardari’s response to the CQC FPPR closure letter:

“So, the ET Judge and panel got it all wrong and Adrienne Murphy is as pure as driven snow! And, of course, CQC are happy with that – all done and dusted. We have one totally Fit and Proper HR and Org Development Director who is now off scot-free.”

“ She had Penny’s and my life in her hands and she literally stuck the dagger in our back”

Clare Sardari tweets at @SardariClare

But then, according to the CQC, ruining perfectly innocent people’s lives, placing patients in harm’s way and wasting public resources through totally unnecessary litigation and discarding expensively trained staff is NOT serious misconduct.

I wonder what is.

 

RELATED ITEMS

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

https://minhalexander.com/2017/03/15/just-culture-sanctions-for-whistleblower-suppression-and-reprisal/

 

REFERENCES

1 Raj Mattu and the death of whistleblowing. Dr Phil Hammond, Private Eye issue 1364 May 2014

http://www.drphilhammond.com/blog/2014/05/07/private-eye/medicine-balls-private-eye-issue-1364-2/

2 Branded a rapist for daring to be a whistleblower: How brave cardiologist sacked for exposing needless deaths was smeared as sex attacker by bosses. Rebecca Hardy Daily Mail 11 February 2016

http://www.dailymail.co.uk/news/article-3443311/Branded-rapist-daring-NHS-whistleblower-brave-surgeon-sacked-exposing-needless-deaths-smeared-sex-attacker-bosses.html

3 Probe launched into NHS chief who blew £6m to get rid of whistleblowers as minister pledges to protect workers who speak out, Paul Bentley and Daniel Martin Daily Mail, 8 March 2014

http://www.dailymail.co.uk/news/article-2576096/Probe-launched-NHS-chief-blew-6m-rid-whistleblowers-minister-pledges-protect-workers-speak-out.html

4 Wolverhampton’s New Cross Hospital Cancer scandal: Cleared after four year fight! Victory for NHS whistleblower, Express and Star 18 January 2016

https://www.expressandstar.com/news/2016/01/18/cleared-after-four-year-fight-victory-for-nhs-whistle-blower/

5 Verita report Royal Wolverhampton Trust -FINAL-21-Jan-16

6 Senior hospital manager resigns following ex-Plymouth health chief ‘nepotism’ storm. Plymouth Herald. 22 August 2014.

http://www.plymouthherald.co.uk/senior-hospital-manager-resigns-following-ex/story-22803404-detail/story.html

7 ET Judgment Sardari and Gates v South Devon Healthcare NHS Foundation Trust and Torbay and Southern Devon Health and Care NHS Trust

https://www.dropbox.com/home?preview=Vasco-Knight+Tribunal+judgment+003-1.pdf

8 Deloitte report of review on leadership and governance at Royal Wolverhampton NHS Trust, 9 November 2016

RWT_Governance Review_Deloitte_29112016 (1)

9  CQC: A Chief Inspector doesn’t call, Minh Alexander 27 January 2017

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

10 Agreed records of meetings with National Guardian 23 January 2017 and 2 February 2017

https://minhalexander.com/wp-content/uploads/2017/02/hh-meeting-records-23-01-2017-and-2-02-2017.pdf

11 Transcript of BBC File on Four broadcast on whistleblowing, 7 February 2017

https://minhalexander.com/wp-content/uploads/2017/02/file-on-four-nhs-wb-transcript-07_02_17_fo4_speakingup.pdf

 

 

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 19 May 2017

Rules and standards are the heart of civilisation and public service.

They are the means by which fair play can be assured.

In public life, healthy complaints processes are an important part of upholding rules and standards.

The NHS is rotten at dealing with complaints, and has especially designed dead ends and endless Mobius loops to frustrate and deter complainants.

Even the body that is supposed to provide ultimate oversight of NHS complaints, the Parliamentary and Health Service Ombudsman, has been repeatedly mired in scandal and is seen by many as a purpose built obstacle. 1

Bill Kirkup concluded from his investigation into the maternity safety failures at Morecambe Bay that governance by central NHS bodies was ‘circular’, with these bodies wrongly passing flawed and unjustified assurance amongst themselves. 2

It is no surprise then that the National Guardian’s office, a public relations vestige flapping on CQC’s bum, has no published complaints policy.

It is also no surprise that there are no coherent and fit for purpose arrangements for investigating complaints about the National Guardian’s office.

CQC claims that the National Guardian’s office is operationally independent and free to hold bodies such as CQC, NHS England and NHS Improvement to account for their failures of whistleblowing governance. 3 3b

This is brought into severe doubt by the fact that:

1. These bodies fund the National Guardian
2. The National Guardian is employed by CQC and reports to David Behan, CQC’s chief executive, meeting with him frequently 4 5

Adding to the impression that the National Guardian is in reality beholden to its funders, the CQC informed me in January that complaints about the National Guardian’s office will be adjudicated by the National Guardian’s Accountability and Liaison Committee – which comprises board members from CQC, NHS England and NHS Improvement:

“Complaints about the NGO are handled under their own governance structure with the NGO Accountability and Liaison Board (ALB) acting as an independent reviewer of complaints made against the NGO.” 6

I have now written to Rob Behrens the new Parliamentary and Health Services Ombudsman to question why the National Guardian office has complaints arrangements that could potentially subvert its core purpose, and await his response. 7

In the meantime, a current whistleblower who has made a complaint about the National Guardian has received a letter from the National Guardian’s office of 18 May 2017 which states:

“Your complaint about Dr Henrietta Hughes will be dealt with under the National Guardian Office complaints procedure. This will involve Tom Grimes and the complaints team at NHS Improvement looking into your complaint and coordinating a response will be sent to Sir Robert to agree as the current Chair of the accountability and liaison board.” 

In addition, this whistleblower was provided with a distinctly thin document, that purports to be the National Guardian’s complaints policy:

20170518 NGO Complaints Policy V3

This document extraordinarily says nothing about the National Guardian’s complaint procedure, and does not provide even the most basic information. For example, who will investigate, who will adjudicate, what is the standard for response times, how adherence to the policy will be audited or how complainants’ experience will be tracked.

The Public Interest Disclosure Act is even wrongly referred to as the “Public Information Disclosure Act”.

In short, one could be forgiven for suspecting that this document was hurriedly knocked up in response to the complaint.

And irregularly, the document does not appear on the CQC website.

Importantly, what the document exposes is that those running the National Guardian’s office are by no measure experts in governance.

Which is a great pity given that this office is supposed to police a critical matter of governance – the honesty and probity of the NHS in handling criticism and concerns.

But then, if the intention is that the office should not be effective, that suits government just fine.

 

RELATED ITEMS

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

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

 

REFERENCES

1 Patients Association. The ‘People’s Ombudsman and how it failed us. November 2014

PHSO-The-Peoples-Ombudsman-How-it-Failed-us-FINAL4

2 The report of the Morecambe Bay Investigation by Dr Bill Kirkup March 2015

Morecambe Bay investigation report 47487_MBI_Accessible_v0.1

3 CQC Board paper July 2015

“The FTSU review states that the National Guardian must be independent of both providers and national bodies so it is able to review their practices and make recommendations without fear of interference.”

https://minhalexander.com/wp-content/uploads/2017/05/cqc-board-paper-on-ng-july-2015-cm071506_item_6_freedom_to_speak_up_national_guardian.pdf

3b National Guardian Independence: The CQC denies some more. Minh Alexander 19 January 2017

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

4  CQC Position Specification for the National Guardian September 2015

“The National Guardian will be an appointment by the Chief Executive of CQC on behalf of the Board. The appointee will be managed by the Chief Executive…”

https://minhalexander.com/wp-content/uploads/2016/10/cqc-national-guardian-specification-final-760085.pdf

5 Agreed records of meetings with the National Guardian on 23 January 2017 and 2 February 2017

https://minhalexander.com/wp-content/uploads/2017/02/hh-meeting-records-23-01-2017-and-2-02-2017.pdf

6 Email 24 January 2017 from Caroline Dale, Deputy National Complaints Manager – Corporate Complaints Team, Governance and Legal Services Directorate, CQC

7 Letter 8 May 2017 to Rob Behrens Parliamentary and Health Services Ombudsman

Letter to Rob Behrens PHSO 8 May 2017

 By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 18 May 2017

The ebb and flow of whistleblowing politics is such that when governments are forced to concede a little in the glare of scandal, they soon dig escape tunnels.

One such attempted Great Escape by the Department of Health et al – based on misinformation and invention – was recently thwarted. 1

But as soon as that tunnel was filled in, more appeared. I will focus on one in particular:

Very seriously, it emerged via a CQC disclosure of personal data to a whistleblower that the National Guardian’s office is claiming that it cannot review cases if they are ‘live’.

https://minhalexander.com/2017/05/09/whistleblowers-wanted-dead-or-not-live/

This is contrary to common sense, evidence and good practice principles of early intervention, which were accepted by Robert Francis in his report of the Freedom to Speak Up Review:

“42 It was clear in so many of the cases we heard about that if they had been handled well from the outset, a great deal of pain and expense could have been avoided. The more issues can be ‘nipped in the bud’, the greater the likelihood that there will be a successful outcome for everyone involved. A common factor in many of the cases we heard about was the length of time they took to resolve, if indeed they were ever resolved. Some had gone on so long it was impossible or impracticable to get the full picture. The impact of this on both individuals and organisations was immense.” 2

On 8 May 2017 I asked the National Guardian for clarification as follows:

“Should I understand from this that your office intends to wait until say, employers’ disciplinary processes against whistleblowers have concluded and have potentially resulted in disciplinary action and dismissal, before the office will consider reviewing the whistleblower cases in question?” 

The reply that arrived yesterday is affirmative, albeit short on definition:

“…during the 12-month trial of our case review process we will initially select cases for review where there are no outstanding decisions to be made”

This is disastrous for distraught whistleblowers whose careers, livelihoods and long term financial security are hanging by a thread.

“Go away and come back once you’ve been disciplined/ referred to your professional regulator/ sacked” is a dysfunctional and wasteful system response.

In separate correspondence on 18 April 2017 I asked the National Guardian what she would do for whistleblowers who have been sacked whilst waiting for her office to open to referrals. Russell Parkinson her Head of Office replied:

“Where a case review finds evidence that a whistleblower has been dismissed inappropriately, we will make recommendations that action is taken, as appropriate.  This may include recommending that the employer reinstates the worker concerned”

Preventing dismissal is much easier than sorting things out once the employment relationship is severed.

Not least because early intervention would help reduce the de-skilling that later contributes to whistleblowers’ unemployability.

Once a whistleblower is sacked, there is no guarantee that either the National Guardian will recommend reinstatement (assuming she even accepts the case, which remains a significant uncertainty) or that an employer will acquiesce.

The National Guardian has the option of asking system regulators to take action against trusts that defy her.

The odd show case will probably be paraded to win ministers some favourable headlines. Realistically though, history shows that regulators have largely protected those who mistreat whistleblowers. So it is doubtful they will help much to ensure that whistleblowers are reinstated.

Crucially, what happens to patients whilst the National Guardian twiddles her thumbs waiting for protracted employment processes to conclude?

Robert Francis made it clear in his report of the Freedom To Speak Up Review that he expected that harm and risk to patients which results from poor whistleblowing governance should be always be addressed. 3

Does Henrietta Hughes really think that it is appropriate not to step in when a whistleblower tells her that an employer has ignored or minimised patient safety concerns, just because the employment process has not concluded?

And employers may deliberately draw matters out for years – running investigations of investigations of investigations –  to wear whistleblowers down and to engineer a breakdown of relationships (a lawful basis for dismissal).

And what if the National Guardian also counts employment tribunal processes and referrals to professional regulators amongst the matters that must be resolved before she will consider reviewing a case?

In short, it is unacceptable to delay in responding to whistleblowers’ reports that employers are mistreating them or putting patients at risk.

In classic Whitehall-ese, the National Guardian holds out a possibility that her processes may change at some point:

“As the trial period progresses, we will review this approach and explore whether we can effectively open up the parameters within which we will be able to accept cases for review.” 

In due course. At the appropriate juncture. In the fullness of time.

This mess only emphasises that an entirely different sort of body is needed, which has powers to investigate and remedy, and is designed to be proactive. It would need of course to operate under fully reformed whistleblowing law.

I have asked for clarification of which processes must be exhausted before the National Guardian will consider reviewing whistleblower cases.

Letter to Henrieatta Hughes live cases 18.05.2017

 

NEXT IN THE ESCAPE TUNNEL SAGA:

Employer impunity for ignoring whistleblowers’ concerns

 

RELATED ITEMS: https://minhalexander.com/2017/03/26/at-the-nhs-improvement-soup-kitchen/

 

REFERENCES:

1 CQC and National Guardian defend Fortress DH. Minh Alexander, 6 May 2017

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

2 Report of the Freedom To Speak Up Review by Robert Francis, 11 February 2017

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

3 Report of the Freedom To Speak Up Review by Robert Francis, 11 February 2017

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

Page 196

“I believe that the widespread introduction of Freedom to Speak Up Guardians, with a national point of reference created through the new post of the Independent National Officer, is a key component in keeping watch over the way concerns are handled, providing support to those who need it, and ensuring the patient safety issue is always addressed.

 

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 16 May 2017

This is an early, quick and dirty look at the emerging characteristics of so-called ‘Freedom To Speak Up Guardians’ –  roles that are not evidence based but provide a sop to calls for real reform of whistleblowing governance.

There is no good, complete evidence yet. The National Guardian reassuringly told the press in January 2017 that 201 trusts had appointed a Speak Up Guardian. 1

The reality is that the Speak Up Guardian landscape is akin to the Wild West. Only it is less organised.

Jeremy Hunt has endlessly cited the Freedom To Speak Up Review to prop up implausible claims that he is building the safest, most transparent health service in the world. In truth, the government hasn’t bothered much with the Review’s centre piece – the creation of Speak Up Guardians. Most likely as it was never considered a serious venture to begin with, serving only a decorative function.

Francis’ proposal for Speak Up Guardians was short on detail.

Then the government made the situation worse by allowing trusts to do whatever they wanted: installing whatever arrangements they liked, or delaying until guidance was available:

“In addition, if Trusts feel confident to appoint their Guardian without this guidance, they should not wait for the guidance to be published.” 2

 

The guidance came late – in September 2016 3 – given the glacial rate at which the CQC approaches its duties.

Inevitably in the absence of evidence base and guidance, all sorts of weird and wonderful permutations sprang up, which will make meaningful evaluation a nightmare.

Some trusts appointed networks of Guardians and champions. Some held elections. Professional backgrounds and seniority vary considerably. Many trusts have published little detail on how their Guardians work or what capacity in terms of WTE has been installed. A pre-conference poll by the National Guardian suggested that the majority of Guardians are part time – 70% indicated that they had less than one day of protected time. 4

An unenthusiastic tone is reflected in a number of trust board papers:

“Freedom to Speak Up Guardian Raj Bhamm, Head of Workforce Strategy, has been appointed to this role for a 3 year period. This is a CQC requirement.” http://www.royalsurrey.nhs.uk/wp-content/uploads/2015/09/170126-final-part-1.pdf

One can understand why some trusts may be reluctant to expend time and money on this imposed project, when the NHS is under such immense strain.

A wander through the gallery of Speak Up Guardians throws up interesting individual examples, if the paper trail is to be believed:

1. A Speak Up Guardian who was formerly the Head of Legal Services at Mid Staffs.5

 

2. A Speak Up Guardian who is also listed as Head of Comms.6

 

3. A Speak Up Guardian who came from John Lewis.7

 

4. A Speak Up Guardian who used to be the Chief Executive of the Foundation Trust Network 8

 

5. A Speak Up Guardian who used to a Director of Comms 9

 

I wrote to Robert Francis about general concerns and gave the example of the former Mid Staffs Head of Legal Services. His response acknowledged that implementation has been variable and resulted in a lack of uniformity.  10

NHS Employers started publishing an interactive map showing all the trusts that had reportedly appointed Guardians:

http://www.nhsemployers.org/your-workforce/retain-and-improve/raising-concerns-at-work-and-whistleblowing/freedom-to-speak-up-guardian-hub/guardian-map

The most recent version of this map, dated 31 March 2017, accounted for only 209 trusts.

Of the trusts that did not feature on the NHS Employers map, eight have not clearly appointed a Speak Up Guardian yet, based on published papers:

Buckinghamshire Healthcare NHS Trust

Hertfordshire Partnership NHS Foundation Trust

Kingston Hospital NHS Foundation Trust

Pennine Acute Hospitals NHS Trust

North West Anglia NHS Foundation Trust (previously Peterborough and Stamford NHS Foundation Trust and Hinchingbrooke Healthcare NHS Trust, which merged on 1 April 2017)

Princess Alexandra Hospital NHS Trust

Queen Victoria Hospital NHS Trust

Royal United Hospitals Bath NHS Foundation Trust

I must question the reliability of the data reported to NHS Employers by some trusts. It looks in some instances that trusts may have just given NHS Employers names of contacts who were not actually Freedom to Speak Up Guardians, usually senior managers. In some of these cases, a check of trust records shows that Freedom To Speak Up Guardians had not even been appointed.

A related question arises about whether the National Guardian’s above figure of 201 trusts with Guardians included duff data, given by trusts who just wanted the centre off their backs. I suspect it did.

Corporate Speak Up Guardians

There are also worries about the corporate nature of some Guardian appointments.

A trawl of all the Speak Up Guardians flagged on the most recent version of NHS Employers’ Guardian map and trusts’ papers revealed that 66 trust directors and 30 associate directors had apparently been appointed as Speak Up Guardians in 88 trusts.

Two directors were each Guardians for two trusts, and three trusts had more than one director acting as Guardians.

This is the supporting data:

https://minhalexander.com/wp-content/uploads/2016/09/freedom-to-speak-up-guardians-who-are-directors-14-05-2017.xlsx

Cross checking with other sources such as board papers confirmed only some of these apparent appointees as Guardians – only 28 out of the 66 directors and only 16 out of 30 associate directors were clearly Speak Up Guardians.

Of course, some of the unconfirmed cases may be Guardians. And many of those directors who were not confirmed as Guardians are nevertheless those who are in control of the appointment and operation of Guardians.

However, conservatively there are so far at least 44 confirmed ‘corporate’ Speak Up Guardians, in 37 trusts:

This is a list of those 37 trusts:

Freedom to Speak Up Guardians who are directors 14.05.2017

The 44 corporate Speak Up Guardians broke down as follows:

Type of Trust Director	Number
Chief executive	1
Non-executive director	14
Medical director	4 (3 medical directors, 1 associate medical director)
Director of nursing	4 (2 directors of nursing, 2 associate directors of nursing)
Director of human resources	3 (1 director of HR, 2 associate directors of HR)
Directors of corporate affairs	3 (2 directors of corporate Affairs, 1 associate director of corporate affairs)
Directors of governance (and similar)	10 (2 directors of governance, 8 associate directors of governance)
Other types of directors	5 (4 directors, 1associate director)
Total	44

It is a concern that there are so many corporate appointments, as questions arise about values, perspective and patient-centredness.

As Mid Staffs showed, unchecked managerialism can be deadly to patients. 

Few BME Speak Up Guardians

As well as an unhealthy dose of corporate salts, the Guardians also look rather white so far.

I have so far come across only 15 Guardians who are from visible ethnic minorities.

This is despite a higher proportion of BME individuals in the NHS workforce than in the general population.

At last count:

17% of the whole NHS workforce were non-white

 38% of NHS doctors and dentists were non-white. 11

I took a closer look at the available data on Speak Up Guardians in trusts that serve 38 of the most ethnically diverse districts (based on the 2011 census 12).

These districts ranged from Newham (29% white) to Coventry (73.8% white). 13

Of course, the percentage of BME staff in NHS services in these districts is higher than the average across the whole NHS. For example, the proportion of BME staff in the London NHS workforce is 44%, according to NHS England. 14

I found that in the 48 trusts serving these districts, there were 12 non-white Speak Up Guardians and 49 white Speak Up Guardians. 15

Even accounting for incomplete data, this suggests that power appoints in its own image.

This is not very good news for just culture, or for BME whistleblowers, who the Freedom to Speak Up Review acknowledged were much more likely to be ignored and to suffer reprisal. 16

But then, it’s not as if anyone really cared enough to administrate the establishment of Speak Up Guardians in a coherent and efficient manner.

No one tends to the window dressing once it’s been hung out.

As one trust illustrates, the focus is now on serious stuff….. such as ensuring a supply of green lanyards:

“Freedom to Speak Up (FTSU) – The ‘Freedom to Speak Up’ review, published in February 2015, highlighted how important it is for every part of the NHS to develop a culture in which all staff are positively encouraged to raise issues about safety, quality and effectiveness of patient care and supported when they do so. It was a requirement for all NHS Trusts to appoint Guardians to work with trust leadership teams to implement this agenda. The National Guardian for FTSU has now been appointed, Dr Henrietta Hughes. She held the first National Guardians conference in March 2017. NCH&C have increased the number of FTSU champions and held its third steering group meeting. Actions developing from the group include; a role description for the advocates; implementation of the national reporting dataset; inclusion on datix for staff to raise concerns directly to the Trust Guardians; FTSU green lanyards for champions; development of a FTSU logo for NCH&C; communication plan to cascade information; implementation of dedicated phone line for reporting concerns.” Norfolk Community Health and Care NHS Trust Board paper 26 April 2017

 

UPDATE 8 June 2017

Curiously, three weeks after I wrote about these issues of poor quality data on Speak Guardians, their questionable diversity and the large number of corporate appointments, one of the main published data sources has disappeared. It is NHS Employers’ interactive Speak Up Guardian map, which gave details of Speak Up Guardians appointed so far by trusts. A ‘page not found’ message is obtained when the relevant link is clicked. I have asked NHS Employers why the map has been erased and whether there are plans to replace it.

 

RELATED ITEMS

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

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

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

 

REFRENCES

1 Learning Not Blaming, Department of Health July 2015

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/445640/Learning_not_blaming_acc.pdf

2 More than 30 trusts do not have whistleblower guardian. Health Service Journal, 12 January 2017

https://minhalexander.com/wp-content/uploads/2016/09/more-than-30-trusts-still-do-not-have-whistleblower-guardian.pdf

3 CQC guidance on job description for Speak Up Guardians

https://minhalexander.com/wp-content/uploads/2016/09/example_job_description_freedom_to_speak_up_guardian_september_2016.pdf

4 

5 Rebecca Southall, former Head of Legal Services at Mid Staffs, currently Director of Corporate Affairs at University Hospitals of Coventry and Warwickshire NHS Trust is listed as the Speak Up Guardian for UHCW and also for Coventry Warwickshire Partnership NHS Trust

http://www.uhcw.nhs.uk/clientfiles/File/Trust%20Board%20Public%2030_03_17.pdf

https://www.linkedin.com/in/rebecca-southall-06416641/

http://www.nhsemployers.org/your-workforce/retain-and-improve/raising-concerns-at-work-and-whistleblowing/freedom-to-speak-up-guardian-hub/guardian-map

6 Sarah Newby Head of Comms and Fundraising at Luton and Dunstable NHS Trust is also Speak Up Guardian according to NHS Employers’ data

https://www.ldh.nhs.uk/contact-us/media-enquiries/

http://www.nhsemployers.org/your-workforce/retain-and-improve/raising-concerns-at-work-and-whistleblowing/freedom-to-speak-up-guardian-hub/guardian-map

7 Caroline Owens is listed as the Speak Up Guardian for the very troubled Brighton and Sussex University Hospitals NHS Trust. Her LinkedIn data and other sources indicate that her background is in corporate affairs at John Lewis.

http://www.brightonandhovenews.org/2017/03/30/whistleblowing-champion-urges-hospital-chiefs-to-support-staff-who-speak-out/

https://www.linkedin.com/in/carolineowens/?ppe=1

8 Sue Slipman, an non executive director at Kings College Hospital NHS Foundation Trust, and who was previously CEO of the Foundation Trust Network, is listed by NHS Employers as King’s Speak Up Guardian

https://www.kch.nhs.uk/about/organisation/directors/nonexecutive-directors

http://www.nhsemployers.org/your-workforce/retain-and-improve/raising-concerns-at-work-and-whistleblowing/freedom-to-speak-up-guardian-hub/guardian-map

9 Venessa James is a non executive director for South West Ambulance Service NHS trust, is named as the Speak Up Guardian for the trust by NHS Employers. Her LinkedIn data indicates that she was previously the Director of Comms at NHS Devon PCT.

https://www.linkedin.com/in/venessa-james-67b62391/?ppe=1

http://www.nhsemployers.org/your-workforce/retain-and-improve/raising-concerns-at-work-and-whistleblowing/freedom-to-speak-up-guardian-hub/guardian-map

10 Correspondence with Robert Francis about Speak Up Guardian appointments

Correspondence with Robert Francis about Speak Up Guardians May 2017

11 NHS Employers ethnicity stats for the NHS May 2017

http://www.nhsemployers.org/~/media/Employers/Publications/Ethnicity%20in%20the%20NHS.pdf

http://www.nhsemployers.org/case-studies-and-resources/2017/05/diversity-in-the-nhs-infographic

12 2011 Census: table of ethnicity by district

https://minhalexander.com/wp-content/uploads/2016/09/2011-census-ethnicity-by-district.xls

13 List of the 38 most ethnically diverse districts based on 2011 census

https://minhalexander.com/wp-content/uploads/2016/09/38-most-ethnically-diverse-districts-source-2011-census.xlsx

14 WRES 2016 Data analysis report for trusts, NHS England April 2017 Page 101:

“In London the proportion of the NHS trust workforce from BME backgrounds is 44%.”

https://www.england.nhs.uk/wp-content/uploads/2017/03/workforce-race-equality-standard-data-report-2016.pdf

15 https://minhalexander.com/wp-content/uploads/2016/09/trusts-serving-the-most-ethnically-diverse-districts-16-05-20171.xlsx

16 Freedom to Speak Up Review by Robert Francis 11 February 2015

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

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 10 May 2017

Officialdom’s absurdities in keeping whistleblowers at bay are endless.

The latest question about the National Freedom To Speak Up Guardian arises from personal data disclosed to an NHS whistleblower, under the Data Protection Act.

This disclosure included internal correspondence by the National Guardian’s team which indicated that ‘live’ whistleblower cases may not be accepted for review.

That is pretty ludicrous, especially bearing in mind that so-called ‘historic’ cases have already been barred. 1

You will also see from this disclosure that the Department of Health and the National Guardian conferred about the response to the whistleblower.

There has already been plenty of other marble-rolling by the National Guardian’s office, CQC and the Department of Health. For example, they all made an unfounded claim that the National Guardian has no remit to intervene at all in individual cases, which has now been withdrawn. 2

I have asked the National Guardian to clarify how she defines ‘live’ cases.

Does she intend to wait until whistleblowers are neck deep in detriment, having been maliciously disciplined, vexatiously referred to professional regulators or pushed out onto the dole?

Once whistleblowers have been sacked, what exactly could she do to fulfil her remit – as set out in the Freedom To Speak Up Review – to ensure that the NHS provides “…redress to any patients or staff harmed…” 3 by poor whistleblowing governance?

Perhaps a referral passing the sacked whistleblower to the ineffective NHS whistleblower employment support scheme, that is explicitly designed not to provide jobs?

Why is the National Guardian’s office making up silly rules as it goes along?

The Freedom To Speak Review clearly acknowledged that early intervention – and resolution –  was important in preventing serious harm to whistleblowers. 4

Insistence that cases can only be accepted once they are no longer ‘live’ is a noxious recipe.

But no doubt it would be music to the Department of Health’s ears.

Whistleblowers wanted: Dead, or not Live.

 

RELATED ITEMS

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

https://minhalexander.com/2017/03/26/at-the-nhs-improvement-soup-kitchen/

 

REFERENCES

1 Robert Francis shut many so-called ‘historic’ whistleblowers out of justice through his report of the Freedom To Speak Up report:

“The INO should not be tasked with reviewing, let alone investigating, historic cases.”

“The INO should not be expected to review historic issues.”

“Finally I recognise that some of those who have contributed so constructively to the Review will feel that their own personal issues have not been addressed. This was perhaps inevitable given my remit, but I have to observe that in some of their cases the contention has endured over such a long time, and the issues have become so complex, that the most rigorous inquiry devoted to each such case would not have been able to resolve matters for those involved. For this reason I doubt that any form of public inquiry of the sort demanded by some would do more than raise expectations only for them to be dashed. I hope, however, that all who have contributed to this Review by Chapter 10 – Conclusion 197 taking the difficult step of sharing with me their sometimes harrowing experiences will receive some consolation from the knowledge that they have informed the lessons identified in the report and made a significant contribution to ensuring that others will avoid suffering the same consequences in future.”

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

The National Guardian has now defined ‘historic’ as employment in the NHS over two years from the point of referral to her office:

“…the NGO will review cases referred to it by NHS workers who have been employed in the NHS for a period of up to two years prior to the point they are referred to the NGO for review.”

https://minhalexander.com/wp-content/uploads/2016/09/national-guardian-20170428_ngo_case_review_process_0.pdf

2 CQC and National Guardian defend fortress DH. Minh Alexander 6 May 2017

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

3 Page 168 Freedom To Speak Up Report 11 February 2015

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

4 Freedom to Speak Up Review report 11 February 2015

Page 41

“Through the NHS Constitution it is made clear that workers are expected to exercise their right to raise concerns as early as possible.”

Page 119

“The lesson I drew from the evidence was that it is vital that cases are handled well and quickly. The more issues can be ‘nipped in the bud’ by establishing facts early on, with a degree of independence if necessary, and by communicating better at all stages, using mediation if needed, the greater the likelihood that there will be a successful outcome.”

 

 

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

When governments are forced to respond to whistleblower scandals, they tend to do so grudgingly and minimally, whilst making all sorts of inflated propaganda claims.

A case in point is the office of the National Freedom To Speak Up Guardian, a public relations contrivance by the Department of Health.

Shockingly, the National Guardian’s office, its part funder and employer the Care Quality Commission and the Department of Health, have tried to curtail even the little influence it was originally given.

Crucially, the National Guardian’s office started wrongly telling whistleblowers in extremis that it had no remit at all to intervene in individual whistleblowers’ cases.

The National Guardian’s office maintained this position despite being challenged, and then the CQC and DH joined in with this lamentable chorus.

In fact, it was the clear intention of the Freedom To Speak Up Review that:

• The National Guardian’s office was to provide a place where whistleblowers could go if they were let down by their employers

• The National Guardian’s core function was to challenge others to look again at badly handled whistleblower cases and to correct poor practice:

“7.6.17 The INO would in essence fulfil a role at a national level similar to the role played by effective Freedom to Speak Up Guardians locally. They would not take on cases themselves, but could challenge or invite others to look into cases which did not appear to have been handled in line with good practice or where it appeared that a person raising a concern had experienced detriment as a result of raising the concern.” Page 169 Report of the Freedom to Speak Up Review 1

Robert Francis also made it clear that where necessary, the National Guardian should request a direction from the relevant regulator to force employers to correct malpractice.2

In swerving these commitments, David Behan a former DH Director General and the recently ennobled chief executive of the CQC, went so far as to claim that a public consultation by CQC had decided that the National Guardian should not intervene in individual cases:

https://minhalexander.com/2017/03/12/national-guardian-behan-replys/

This was a baseless claim. Contributors to the public consultation in question had suggested that there should be better protection of individual whistleblowers.

Behan was challenged on 12 March 2017. 3

However he dallied in responding, despite being reminded.

I wrote to the Secretary of State on 11 April 2017 providing evidence that Behan’s extraordinary claims about the public consultation were unfounded, and that the DH had been in error to peddle his claims:

https://minhalexander.com/wp-content/uploads/2017/04/dh-jeremy-hunt-ng-help-for-individual-whistleblowers-11-04-2017.pdf

On 21 April 2017 Behan finally responded, conceding that the original Freedom To Speak Up recommendation – that the National Guardian should challenge others to look again at mishandled individual cases – would be implemented after all:

https://minhalexander.com/wp-content/uploads/2017/02/behan-20170420-pocu-1516-0181-dr-minh-alexander-national-freedom-to-speak-up-guardians-remit.pdf

HOWEVER, working on the ‘WhackAMole’ model of official resistance to genuine whistleblower protection, the National Guardian has now popped up with her finalised case review process and this remains very flawed. 4

In particular, it still contains the truly ridiculous stipulation that she will not review whistleblower cases unless employers have responded to whistleblowers’ concerns:

“3.1.2 The evidence required to assess referrals

Paragraph 76 of the executive summary states that the purpose of a case review should be to ‘review the handling of concerns where there is reason to believe that there has been failure to follow good practice …’ Therefore cases should only be considered for possible review where there is clear evidence received in the referral that the NHS body has already responded to a concern and has failed to do so appropriately. Where the referral contains little or no such information the case should not be considered for possible case review.

 It is expected that the information provided in some referrals will be insufficient to allow the Case Review Manager to decide whether the case meets the criteria advised by the AG. In such cases the NGO should not undertake the gathering of information in the nature of a review to determine whether that referral meets the criteria for case review. They may instead inform the referrer of the need to provide more information.” 4

As ignoring whistleblowers is one of the most common employer ruses, such an arrangement would give solace to the worst NHS employers.

The retention of this exclusion criterion seems unlikely to be a simple mistake, as both Behan and the National Guardian were both made aware of this employer-friendly loophole during the recent consultation on the National Guardian’s process. 5

Nevertheless, I have written again to Behan to clarify whether it is his intention that there should be impunity for employers who ignore whistleblowers, and if not, what action he, Stevens and Mackey as the chief executives of the National Guardian’s funding organisations will take to resolve this mess:

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

In this latest letter to Behan, I have also asked him to remove a misleading claim in the National Guardian’s case review process guidance that all the twenty ‘Francis principles’ from the Freedom To Speak Up were evidence based. The establishment of flawed Speak Up Guardians was most definitely NOT evidence based. Even the National Guardian herself acknowledged this. 6

Indeed, the ‘model’ trust upon which Francis relied to justify his recommendation for Speak Up Guardians has not proved so angelic after all.

It has been found to have ignored staff’s serious patient safety concerns 7 8, attracting a related CQC warning and rating of ‘Inadequate’ on the ‘Well Led’ domain 9 and it has failed to meet its legal obligations under the Freedom of Information Act as regards these governance failures. It arbitrarily withheld data on staff whistleblowing disclosures to the trust’s ‘Cultural Ambassador’ from a critical period in 2014/2015, and it failed to issue any valid grounds for doing so. A complaint has been made to the ICO.

So much then for Francis’ illusory exemplar of transparency and accountability.

If doctors dished out untested treatments, and made unsubstantiated claims about them as the government has done, they’d be struck off.

Related items about the lack of evidence base for Francis’ Speak Up Guardians:

A) Critique of Francis’ model of trust appointed Guardians, from evidence June 2015 submitted to the Department of Health consultation on implementation of the Freedom To Speak Up Review

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

B) 25 best and 25 worst NHS trusts for speaking up. Allegedly. 22 March 2017

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

REFERENCES

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

http://webarchive.nationalarchives.gov.uk/20150218150343/http://freedomtospeakup.org.uk/the-report/

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

“Principle 15 External Review

There should be an Independent National Officer [National Guardian] resourced jointly by national systems regulators and oversight bodies and authorised by them to carry out the functions described in this report, namely…advise NHS organisations to take appropriate action where they have failed to follow good practice, or advise the relevant systems regulator to make a direction to that effect”

http://webarchive.nationalarchives.gov.uk/20150218150343/http://freedomtospeakup.org.uk/the-report/

3 Letter to David Behan 12 March 2017

https://minhalexander.com/wp-content/uploads/2017/03/cqc-behan-clarification-on-whether-ng-will-challenge-employers-to-look-again-at-cases-12-03-2017.pdf

4 National Guardian’s case review process for NHS trusts and foundation trusts. CQC 28 April 2017

https://minhalexander.com/wp-content/uploads/2016/09/national-guardian-20170428_ngo_case_review_process_0.pdf

5 National Guardian: Letter from Wonderland. Minh Alexander, 20 February 2017

https://minhalexander.com/2017/02/20/national-guardian-letter-from-wonderland/

6 Agreed record of a meeting with the National Guardian on 2 February 2017

“MA You know there’s no evidence for any of this (the SUGs)?

HH That’s the challenge, building an evidence base”

https://minhalexander.com/wp-content/uploads/2017/02/hh-meeting-records-23-01-2017-and-2-02-2017.pdf

7 Leaked NHS report reveals dying patients left alone and in pain. Staff at breaking point. Stoke Sentinel 2 April 2015

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

8 Leaked NHS dossier: Nurses log concerns over care. 2 April 2015

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

9 Country’s biggest Health and Social Care Trust ‘requires improvement’. National Health Executive magazine. 13 May 2016

http://www.nationalhealthexecutive.com/Health-Care-News/countrys-biggest-health-and-social-care-trust-rated-requires-improvement

Governments intermittently make glib promises to lift neglected and under-funded mental health services out of second class status, but usually only disappoint in the end.

The health regulator the Care Quality Commission (CQC) is regarded as an unhelpful if not hostile force by the majority of whistleblowers, with concerns from whistleblowers about CQC politicisation, confidentiality, employer bias, active protection of abusers, wilful blindness and failures to respond appropriately to disclosures.

Despite a major investigation of West London Mental Health Trust in 2009 1 triggered by CQC’s predecessor the HealthCare Commission, which generated common sense recommendations for addressing safety problems in struggling mental health services, the CQC has not distinguished itself in championing the needs of mental health patients.

Headlines have continued about familiar, recurrent failures.

At Southern Health NHS Foundation Trust, CQC failed to detect or report gross failures in the handling of hundreds of deaths. 2 The Mazars deaths review on Southern Health NHS Foundation Trust found that CQC did not even have the right number of deaths of detained patients. Mazars also questioned the reliability of CQC’s intelligent monitoring data .

CQC has been insufficiently critical of excessive mental health bed closures even though a recommendation from the West London investigation was that adequate beds were needed for safety. When asked about CQC’s approach to regulating safe numbers of mental health beds, CQC’s deputy Chief Inspector said that CQC preferred to only regulate the effects of bed shortage. Not exactly proactive then. 3

I have kindly been sent FOI data on whistleblowing by mental health trust staff to the CQC, which shows over 700 whistleblower ‘enquiries’ over a four year period, 1 April 2013 to 1 March 2017:

CQC FOI disclosure 8 March 2017

The whistleblowing enquiries to CQC are likely to have been made by trust staff who could not progress their concerns within their own organisations, or for some other reason did not wish to make an internal disclosure.

Extrapolating from CQC’s data gives an overall average of 3 whistleblowing enquiries per mental health trust each year.

Curiously, there has been a sharp dip in the number of enquiries in the last financial year. CQC have denied any change in their recording method.  IF that is so, a number of other possible factors could be responsible for the drop. However, it seems unlikely that staff have stopped disclosing because things are going well.

 

The mental health trust that has had the highest recorded number of whistleblowing enquiries to the CQC in the last four years is Norfolk and Suffolk NHS Foundation Trust, which CQC recently and controversially took out of special measures despite continuing concerns about safety and deaths, and continuing bed cuts.

See the Norfolk and Suffolk Crisis campaign website for full details:

http://norfolksuffolkmentalhealthcrisis.org.uk/

HOWEVER, on this occasion the CQC has given an especially elaborate disclaimer about what its data actually means:

“We should advise you that the number of ‘whistleblowing’ enquiries recorded against each provider will not necessarily be representative of the actual number of whistleblowing concerns reported to us.

This is because an enquiry recorded as ‘whistleblowing’ may contain:

• A single concern from one whistleblower
• Multiple concerns from one whistleblower
• Multiple concerns from multiple whistleblower’s that are linked to a similar issues
• Multiple concerns from staff who have been invited to contact CQC with feedback ahead of an inspection where one enquiry is recorded as whistleblowing
• Positive and negative intelligence about a location and provider
• Information wrongly categorised as whistleblowing”

 

CQC’s claim that “whistleblowing enquiries” may contain positive feedback is implausible, or at best unrepresentative of the great majority of contacts, based on various disclosures that I have seen regarding specific trusts.

For example, in the same above FOI disclosure, specific whistleblowing data was given on two trusts with recent whistleblowing governance issues – North Essex Partnership NHS Foundation Trust and Berkshire Healthcare NHS Foundation Trust. No positive feedback is evident. Instead, there are concerns about safety, patients at risk of self harm, poor service, falsified documents poor incident recording, bullying, staffing, poor service, bed cuts, safeguarding, racism, and poor management of change:

CQC FOI DISCLOSURE NORTH ESSEX AND BERKSHIRE IAT 1617 0775

As for CQC’s obfuscation on the precise numbers of whistleblowers and concerns, the regulator should be recording whistleblowing data in a way that shines light on what is happening, not doing the dance of the seven veils.

Regarding the extraordinary comment by CQC that it might be incorrectly classifying some events as ‘whistleblowing’ when they are not, what can one say? An organisation that costs as much as two mental health trusts ought not to record data that is so inaccurate that it cannot be relied upon.

However, CQC’s purpose in contriving such looseness and ambiguity may be revealed by CQC’s assertion that its whistleblowing data “should not be used as an indicator of Trust performance”.

The Department of Health would surely be proud of such pliable, elastic data that could be made to mean whatever you want it to.

And despite a recent CQC attempt to spin that it is now more responsive to whistleblower disclosures  4 – following criticism at the end of last year 5 – please note that none of the 2016/17 disclosures for North Essex and Berkshire Healthcare resulted in inspections being brought forward.

But then, it’s all in the fancy footwork,  how you do your sums and how much or how little you reveal.

 

UPDATE 25 APRIL 2017

If CQC carries on recoding whistleblowing data on the above basis, it will fall foul of new legal requirements for bodies that are ‘Prescribed Persons’ under the Public Interest Disclosure Act to publish the numbers of whistleblowing disclosures received and responses to the disclosures. These new legal requirements came into force at the beginning of this month. I have now written to the National Guardian about her employer’s shortcomings, copied to the relevant parliamentary committees.

Letter to Henrietta Hughes re CQC WB data 25.04.2017

 

RELATED ITEMS

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

https://minhalexander.com/2016/12/15/covering-up-the-cover-ups-cqcs-revisionism/

https://minhalexander.com/2016/11/18/the-ever-anomalous-cqc-another-soft-shoe-shuffle-around-inconvenient-data/

https://minhalexander.com/2016/09/25/cqc-deaths-review-all-fur-coat/

 

REFERENCES

1 Report of Investigation into West London Mental Health Trust by the Healthcare Commission. CQC 2009

WLMHT HCC Investigation_into_West_London_Mental_Health_NHS_Trust_FINAL_200907171608

2 Mazars report of Independent review of deaths of people with a Learning Disability or Mental Health problem in contact with Southern Health NHS Foundation Trust April 2011 to March 2015, December 2015

https://www.england.nhs.uk/south/wp-content/uploads/sites/6/2015/12/mazars-rep.pdf

3 Email from Paul Lelliott 19 December 2014:

“I think therefore that the correct approach for the CQC to take is not to try to count bed numbers but to assess services for the ‘symptoms and signs’ of pressure on bed availability eg. problems with admitting a person who needs to be in hospital for their own wellbeing, people being admitted to a ward distant from their home, people being moved from ward to ward during an admission episode, people being discharged before they are ready etc.”

4 CQC Board Paper Feb 2017 CM021705_Item5_Q3performanceReport

CQC Health Service Journal April 2017 Insp brought forward after WB

5 Whistleblowers unheard by CQC. Alexander, Linton, Sardari and a fourth NHS whistleblower December 2016

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

 

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 21 April 2017

The Freedom To Speak Up Review 1 was an expensive exercise in government spin and stalling.

It gave the appearance that something was being done by the government, when in reality all that happened was that tokenistic, ineffective measures were – in theory – adopted and the Department of Health press office acquired another willing helper – the National Guardian’s office. 2

After the initial buzz of the launch in February 2015, and the cameras departed, many of the NHS bodies that were assigned homework in terms of specific Freedom To Speak Up action plans did not implement the tasks, took an excessively long time and or did a shoddy job. 3

Importantly, over two years on from Francis’ recommendations for establishment of an office to scrutinise cases, over a year since the National Guardian’s office was established and over seven months after the latest National Guardian took up post, not a single NHS whistleblower case has been reviewed.

Health Education England (HEE) was also one of the bodies given homework as a result of the Freedom To Speak Up Review, but has now admitted that it has not attended to a key task: ensuring that local Speak Up Guardians are properly trained.

Of course, Health Education England notoriously retaliated against Dr Chris Day, junior doctor whistleblower by removing his National Training Number, thus scuttling his specialist training. The government, including the Health Secretary, then closed ranks and claimed a loophole in coverage of whistleblowing law for junior doctors. (I say ‘coverage’ as opposed to ‘protection’, as current whistleblowing law is weak and does not protect). After the resulting scandal, the government and HEE came up with a sticking plaster solution which allowed junior doctors the dubious privilege of suing HEE in the High Court, at prohibitive expense. 4

The government’s position has been challenged. Judgment is awaited from a recent hearing at the Royal Courts of Justice on Chris Day’s case.

The details of this extraordinary saga can be found here:

https://www.crowdjustice.org/case/junior-doctors-round-2/

Given this shabby background, it is unsurprising that HEE has not been diligent in helping to improve NHS whistleblowing governance.

The government assured us in July 2015 that HEE would produce guidance on the training needed for the local Speak Up Guardian role:

“Health Education England should produce guidance on what training will be needed for the Freedom to Speak Up Guardian role, along with a curriculum that NHS organisations can use to ensure that the training they are providing on raising concerns is of a sufficiently high standard” 

“HEE will develop and publish guidance on training for this role working with the CQC and the Independent National Officer [National Guardian]. We would expect HEE to take into account the work the INO will undertake around recruitment for this role.” 5

HEE has now disclosed via FOI that it has done no work at all on this matter and that there has been no liaison with the National Freedom To Speak Up Guardian:

“HEE has not yet conducted any work with the National Guardian or their office…”

HEE does not even give assurance that the work will definitely be done – it only says that the work may be done:

“…this may change…”

This is HEE’s FOI disclosure:

https://minhalexander.com/wp-content/uploads/2016/09/hee-foi-disclosure-3-april-2017.pdf

So by HEE’s latest admission, the government’s promises that Speak Up Guardians – who are a central plank of Robert Francis’ recommendations – should have kitemarked training have come to naught.

Why hasn’t the National Guardian ensured that the action plan was implemented?

How confident can we be that the numerous Guardian training events held so far by the National Guardian are of adequate quality?

Whistleblowers have asked to observe these training sessions for Guardians, but have been refused.

Nevertheless, the National Guardian who by her own admission is keen on Good News stories, spins copiously about how well the Speak Guardian network is progressing. 6 This is despite the evidence so far that Speak Up Guardians add little value. 7

Additionally, HEE discloses that it still has no Speak Up Guardian of its own, although it says it plans to recruit one.

HEE also previously disclosed in February 2016 that it had no external whistleblowing policy:

https://minhalexander.com/wp-content/uploads/2016/09/hee-foi-disclosure-25-feb-2016.pdf

It disclosed to another party in January 2016 that it did not hold any central data about whistleblowing disclosures by trainees.

Despite its woeful behaviour and omissions, and lack of evidence, HEE claimed in its above February 2016 disclosure:

“HEE supports trainees raising concerns and encourages them to do so. While we cannot discuss individual cases, at a local level, HEE has supported trainees report concerns to their employer, the GMC, Care Quality Commission and other relevant regulatory bodies. We believe that trainees can be the eyes and ears of patient safety.”

HEE in fact became a Prescribed Person under the Public Interest Disclosure Act (PIDA) in February 2016, and has a duty to receive and record whistleblowing disclosures by NHS staff in regards to:

“…matters relating to the education and training for health care workers and ensuring sufficient skilled and trained health care workers are available for the delivery of services” 8

It now has an external whistleblowing policy 9 and also claims that it has kept a central record of whistleblowing incidents:

“HEE became a prescribed Person in February 2016…HEE has kept a central record since becoming a Prescribed Body”

So currently, we have a situation in which a PIDA prescribed body that is responsible for handling disclosures about other organisations and helping to ensure best practice, can also be sued in the High Court for causing direct whistleblower detriment to those who disclose to it.

‘Dysfunctional’ does not even start to describe this tangled oversight arrangement.

But then, tangle is exactly what you get when governments practise to deceive.

RELATED ITEMS

https://minhalexander.com/2017/03/26/at-the-nhs-improvement-soup-kitchen/

https://minhalexander.com/2017/03/12/national-guardian-behan-replys/

UPDATE 1 NOVEMBER 2018

It was widely reported that HEE removed Chris Day’s training number, including in an article of 2 October 2018 by The Guardian, which coincided with the commencement of an Employment Tribunal hearing of a claim against HEE:

“A number of counter-allegations were made against him, and his HEE training number was deleted, effectively forcing him out of his career.”

https://www.theguardian.com/society/2018/oct/02/nhs-whistleblowing-protection-tribunal-junior-doctors

Further facts have emerged since the conclusion of a Employment Tribunal hearing which indicate that Dr Day resigned his training number.

A statement agreed between parties was published by HEE on 15 October 2018:

https://www.hee.nhs.uk/news-blogs-events/news/health-education-england-responds-outcome-dr-chris-day-case

 

REFERENCES

1 Report by Robert Francis of the Freedom To Speak Up Review, February 2015

http://webarchive.nationalarchives.gov.uk/20150218150343/http://freedomtospeakup.org.uk/the-report/

2 As an example of the National Guardian’s office being on message, it recently reproduced verbatim a Department of Health press release claiming:

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

http://www.cqc.org.uk/content/national-guardians-office-news-events

3 Examples of half hearted implementation of the Freedom To Speak Up Review and foot dragging include:

• Government failure to designate a number of bodies as Prescribed Persons as recommended by Francis
• Government failure to given NHS commissioning whistleblowers a Prescribed Person
• Under-funding and very serious delay on the NHS whistleblower employment support scheme
• Failure by the Care Quality Commission to inspect providers’ compromise agreements, despite claims that it would so

4 Health Education England published information August 2016:

https://hee.nhs.uk/printpdf/news-events/news/hee-extends-whistleblowing-protection-doctors-training

5 Learning, Not Blaming. Government action plan from the Freedom To Speak Up review, July 2015

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/445640/Learning_not_blaming_acc.pdf

6 This is some of the National Guardian office’s public relations output:

National Guardian newsletters

https://minhalexander.com/2017/04/19/national-guardian-newsletters-the-unexpurgated-version/

National Guardian promotional video, which Speak Up Guardians are being encouraged to disseminate:

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

“We would encourage all Guardians to use the video in their engagement activities, such as when speaking at team meetings or inductions, or as a tool to engage their Board or other staff groups.”

100 Day report by the National Guardian

http://www.cqc.org.uk/sites/default/files/20170110-national-guardians-office-first-100-days-report.pdf

Transcript of conference speech by the National Guardian

https://minhalexander.com/wp-content/uploads/2017/02/e28098the-role-of-the-national-guardian_-dr-henrietta-hughes.pdf

7 Critique of Francis’ model of trust appointed Guardians. Excerpt from evidence to the Department of Health, Minh Alexander 4 June 2015

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

8 List of PIDA Prescribed Persons

https://www.gov.uk/government/publications/blowing-the-whistle-list-of-prescribed-people-and-bodies–2/whistleblowing-list-of-prescribed-people-and-bodies

9 Health Education England external whistleblowing policy

https://minhalexander.com/wp-content/uploads/2016/09/hee-ext-whistleblowing-policy.pdf

In February 2017 Dr Henrietta Hughes the National Freedom To Speak Up Guardian agreed to publish her newsletters, which had commenced in December 2016 but had not been published:

Newspeak at the National Guardian’s office

Newsletters for December 2016, February 2017 and March 2017 were subsequently published.

However, two of these (December 2016 and February 2017 issues) have subsequently been removed from the CQC website.

I will inform the National Guardian about this and post the full collection of National Guardian newsletters here until such time as a full record is restored on the CQC website.

Dr Minh Alexander 19 April 2017

 

NATIONAL GUARDIAN NEWSLETTERS THAT HAVE BEEN RELEASED TO DATE:

 

National Guardian newsletter December 2016:

201612_ngo-newsletter_december2016

National Guardian newsletter February 2017

201702_ngo-newsletter_february2017

National Guardian newsletter March 2017

201703_ngo-newsletter_march2017

National Guardian newsletter May 2017

20170518_ngo-newsletter_may2017

National Guardian newsletter July 2017

20170720_ngo-newsletter_july2017

 

NATIONAL GUARDIAN SURVEY OF LOCAL SPEAK UP GUARDIANS 15 SEPTEMBER 2017

20170915_freedom_to_speak_up_guardian_survey2017

 

NATIONAL GUARDIAN SPEAK UP DATA, BASED ON RETURNS BY NHS TRUSTS

National Guardian Speak Up data Quarter 1, 2017/18

National Guardian Speak Up data Quarter 2, 2017/18

National Guardian Speak Up data Quarter 3, 2017/18

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 18 April 2017 

Summary: This piece reports on patterns in five years’ data of upheld complaints about NHS responses to FOI requests. The picture is one of a multi-billion corporation throwing its weight about and sometimes defying even the ICO. There have been over 500 ICO decision notices about NHS bodies, and almost 200 upheld complaints. Two NHS bodies emerge as behaving especially badly: NHS England and the Department of Health. There are signs suggestive of politicisation by public servants whose duty it is to be neutral, and various games are evident. At the Department of Health, repeated spurious claims have been made that disclosure of information would prejudice the effective conduct of public affairs or infringe on ministerial prerogative, which have been rejected by the ICO. The Department has absurdly even refused to provide data on grounds of national security, also rejected.

The Freedom of Information Act (FOIA) is one of the most useful and powerful tools for holding power to account.

The establishment resents this and some have tried unsuccessfully so far, to weaken and dismantle FOI provisions. 1

Those who resist transparency typically complain that FOI is a costly disruption to the smooth running of government.

The reality is that the government and its satellites spend much more on public relations than on responding to FOI requests.  2 Clearly then, the FOIA is an important protection against government spin, and supportive of democratic values and the public interest.

If governments were more open and routinely published more information, there would not be such a demand for information via the FOIA.

The NHS has been described as a ‘denial machine’, and its relationship with the Freedom of Information provisions has not always been straightforward. 3

Based on the Information Commissioner’s recent annual reports, about 10-12% of complaints to the ICO relate to the Health sector. 4

In 2012, an ICO audit of 15 NHS hospitals and trusts, focussing on protection of personal data under the Data Protection Act, concluded that: “…27% fell within the limited assurance range”. 5

I looked at five years’ published data on decisions by the Information Commissioner’s Office about NHS bodies, including the Department of Health. The extracted data about NHS bodies is available here:

ICO NHS decisions 1 April 2012 to 31 March 2017

In the five year period 1 April 2012 to 31 March 2017 (roughly corresponding with the interval in which Jeremy Hunt has been Secretary of State for Health), according to decision notices published by the ICO, there were a total of 533 complaints to the ICO about NHS bodies, of which 198 were upheld.

The Department of Health and NHS England together accounted for about a fifth of all the NHS complaints (n = 108), and a quarter of the upheld complaints (n = 50).

These complaints will represent only a proportion of the concerns about NHS bodies’ response to FOI data requests. This is because not all requesters complain formally to ICO, and decision notices are only issued in a proportion of complaints. In the last two years for which there is published data, the ICO issued about one decision notice for every five complaints received.

Attrition can be expected, as in any process that is under-pinned by complicated law, there is inequality of arms. NHS bodies can hoodwink, outgun and intimidate complainants by abusing a bottomless public purse.

 

Grounds upon which the ICO upheld complaints

All the ICO decisions in the five year period related to complaints about NHS bodies’ responses to FOI requests. In a handful of cases, there was an indirect relationship to the Data Protection Act because complainants had wrongly requested personal data via FOI, instead of the DPA.

In some cases, the breaches identified by the ICO were relatively minor or were limited failures set against largely appropriate disclosure. However, some breaches related to substantive failure to disclose all or most of the legitimately requested data.

The most frequent featured grounds for the ICO upholding complaints was ‘Section 10’ – delay in meeting the statutory deadline of 20 working days in responding to FOI requests. Section 10 featured in over half (111) ICO decisions.

Repeatedly misapplied grounds for not disclosing – either because they were not at all engaged or because they were over-ridden by the public interest – included:

Section 43 – commercial interests 6 (28 cases)

Section 41 – information given in confidence 7 (16 cases)

Section 36 – prejudice to the effective conduct of public affairs 8 (11 cases)

Section 40 – protection of personal data 9 (8 cases)

 

Action ordered by ICO

 Public authorities are required to comply with ICO orders within 35 calendar days, or risk High Court action:

“Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the FOIA and may be dealt with as a contempt of court.”

The ICO required no further action by NHS bodies in 34.3% (68 of 198) cases of upheld complaints. Often, this was because data had been provided by the time of the ICO decision, or because of technical errors which did not affect the substantive outcome of the case.

In 27.2% (54 out of 198) cases of upheld complaints, the ICO ordered NHS bodies that had failed to respond, or withheld data on incorrect grounds, to either provide the requested data or to issue valid grounds for refusal.

In 36.8% (73 out of 198) cases of upheld complaints the ICO actively ordered NHS bodies to release specific information that had been wrongly withheld.

In one case, the ICO ordered an NHS body to specify what data was covered by the exemptions upon which it was relying.

In four cases the ICO ordered NHS bodies to provide assistance to complainants to clarify and refine their requests.

The possibility of deliberate brinkmanship is raised by the fact that in 19.2% (38 of 198) upheld complaints, NHS bodies ‘voluntarily’ provided responses after a complaint had been made to the ICO.

Three Department of Health and six NHS England cases were included in these 38 cases.

 

FOI requests deemed ‘vexatious’

Under Section 14 FOIA 10, public authorities can declare requests ‘vexatious’.

Some resort to the tactic of threatening to declare requests vexatious if you insist once too often on the facts, as opposed to meekly accepting the spin.

The NHS was found by the ICO to have inappropriately declared FOI requests ‘vexatious’ on eleven occasions.

Of some concern the Care Quality Commission – which is supposed to lead by example – tried to evade transparency about its chief officers’ activity regarding the Winterbourne View scandal. 11

Also, the Department of Health was found to have incorrectly classified as ‘vexatious’ a request about the activities of its Private Finance Unit. 12

Variation over time

There has not been great variation over time, save for the last financial year, which saw an upward swing in both the numbers of total complaints and upheld complaints, and the proportion of upheld complaints:

In this last turbulent year which saw the junior doctors’ contract dispute, the Department of Health and NHS England together accounted for one third (50 of 149) of all complaints against the NHS and 42% (28 of 67) of all upheld complaints against the NHS.

Similarly, examination of complaints against the Department of Health and against NHS England over the last 5 years shows spikes in 2016/17. 13

 

Type of NHS bodies complained against

The complaints to the ICO related to 95 NHS bodies, which break down as follows:

Health and Safety Executive (HSE) and PHSO

For completeness, although the HSE and PHSO are not strictly speaking part of the NHS, they are – in theory – an important part of NHS oversight, and they are supposed to support transparency.

However, they too have been the subject of unfavourable ICO decisions.

None of the upheld complaints about the PHSO and HSE related to the Health Service.

However, five of the complaints about the PHSO that were not upheld by the ICO related to medical advisors, who are used on an anonymous basis by the PHSO. 14

Of course, in the tangled regulatory undergrowth, the PHSO has a reciprocal remit to investigate complaints about the ICO.

In 2014 PHSO disclosed via FOI that it had fully or partly upheld a total of 9 out of 739 complaints received about ICO, in the 9 years between 1 April 20015 and 31 March 2014.

That’s a one a year – or 1.2%.

PHSO FOI disclosure 29 May 2014, Ref. FDN-190468:

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

 

In 2015/16, the PHSO investigated eleven of 120 complaints received about the ICO, and upheld or partly upheld two of these complaints. 15

The circularity and inherent conflicts in the system raise questions about objectivity.

 

Repeat offenders

The ICO received between one and 32 upheld complaints on each of the 95 NHS bodies that were subject to complaints, with an average number of 2 upheld complaints per body.

These are the NHS bodies which attracted the highest number of upheld complaints to ICO:

In other words, 11.6% (11) of the 95 bodies accounted for 39.2% (209 0f 533) of all complaints, and 46% (92 of 198) of all upheld complaints.

This group of 11 repeat offenders had a higher ICO uphold rate than average: sub-group average 44.3% vs the overall average of 37.1%.

Despite being in existence for only four of the five years, NHS England attracted the second highest number of total complaints (48), and the highest number of upheld complaints (31).

Even allowing for two legacy PCT cases that are included in these 31 upheld complaints , NHS England remains top of the league.

 

NHS England: the silent treatment

 An examination of the 31 upheld complaints against NHS England reveals a tendency to ignore FOI requests (11 cases) or stall with assurances and apologies for delay, but without any response materialising (six cases) or to be tardy (five cases).

Extraordinarily, in five cases where NHS had failed to respond at all or to respond substantively, the failure continued even after ICO intervention.

This bloody mindedness may be explained by the politically sensitive nature of the information requested in several of these cases:

 

Department of Health: State Secrets

 Examination of the 19 upheld complaints against the Department of Health shows some examples of exemption carpet bombing, and a rather absurd readiness to claim State Secrets.

In one case (Ref. FS50406024) 16 the Department claimed the following exemptions under the FOIA:

Section 21– Information reasonably accessible to the applicant by other means 17

Section 23 – Security bodies 18

Section 24 – Safeguarding national security 19

Section 27 – International relations 20

Section 35(1)(a) and (d) – Government policy – formulation and development of government policy, operation of ministerial private office 21

Section36 – Prejudice to the effective conduct of public affairs 8

Section 38 – Health and Safety of any individual 22

Section 40(2) – Personal data of others 9

Section 41 – Information provided in confidence 7

Section 44 – Disclosure of the information is prohibited under any enactment 23

So what prompted this barrage of resistance? Answer: “a request for ministerial diaries”.

The ICO to its credit swept aside most of the Department of Health’s exemptions:

“The Commissioner’s decision is that the DoH has correctly applied section 23 and section 40(2) where relied upon to make the relevant redactions. However the Commissioner considers that the DoH incorrectly applied the other exemptions.”

In fact, the ICO rejected the Department of Health’s claims of ministerial privileges and prejudice to the conduct of public affairs on 13 occasions in the five years in question:

An interesting detail revealed by ICO decision notices against the Department of Health is that Ministers are rather wont to hold meetings without minutes:

• There were no minutes of five meetings between Jeremy Hunt and Boots Alliance, Royal College of Surgeons, Price Waterhouse Coopers, Academy of Medical Royal Colleges, “a group of health organisations” (cases FS50604562, FS50604567, FS50604573, FS50604583, FS50604561)

• There were also no minutes of two meetings between the Parliamentary Under Secretary of State at the Department of Health and the General Medical Council, the Royal College of Surgeons (cases FS50604568, FS50604556).

One could be forgiving for wondering if this practice is to avoid being held to account under FOI.

   

Closing ranks on the hottest potatoes?

Amongst the complaints against the NHS that were upheld by the ICO, there were 11 cases in which information had been requested about junior doctors’ training and their industrial dispute and related issues of weekend deaths, but resisted by the Department of Health, NHS England and the GMC:

So, in conclusion, do we believe Mr Jeremy Hunt when he claims that he is building the safest and most transparent health service in the world?

 

REFERENCES
1 In 2015, the government set up the Commission on Freedom of Information
REFERENCES

https://www.gov.uk/government/publications/independent-commission-on-freedom-of-information-report

This is a submission by the National Union of Journalists:

https://minhalexander.com/wp-content/uploads/2017/04/nuj-foi-submission-2015.pdf

“The union also opposes introducing charges for the supply of information, expanding the basis for refusing requests, strengthening powers to deny access to certain types of information and any potential redundancies among those who are currently employed to respond to requests for information. Furthermore, we are concerned about the composition of the existing Commission because it excludes working journalists and civil society representatives. This implies the FOI requester’s perspective has not been considered within the deliberations so far. “

2 FOI costs, sure – but nowhere near as much as PR, FOI Man (Paul Gibbons) 9 October 2015

https://www.foiman.com/archives/2072

3 Labour’s denial machine over hospital death rates, Steven Swinford, Laura Donnelly, Patrick Sawer, Telegraph 14 July 2013

http://www.telegraph.co.uk/news/health/heal-our-hospitals/10178552/Labours-denial-machine-over-hospital-death-rates.html

4 ICO annual reports 2014/15, 2015/16

https://ico.org.uk/about-the-ico/our-information/annual-reports/

5 ICO Audit outcomes analysis, NHS, 2012

https://minhalexander.com/wp-content/uploads/2016/09/ico-outcomes-report-nhs-2012.pdf

6 Section 43 exemption: Commercial interests:

https://ico.org.uk/media/for-organisations/documents/1178/awareness_guidance_5_v3_07_03_08.pdf

7 Section 41 exemption: Information provided in confidence

https://ico.org.uk/media/for-organisations/documents/1432163/information-provided-in-confidence-section-41.pdf

8 Section 36 exemption: Prejudice to effective conduct of public affairs

https://ico.org.uk/media/for-organisations/documents/1175/section_36_prejudice_to_effective_conduct_of_public_affairs.pdf

9 Section 40 exemption: Personal information

https://ico.org.uk/media/for-organisations/documents/1213/personal-information-section-40-and-regulation-13-foia-and-eir-guidance.pdf

10 Section 14 exemption: Vexatious requests

https://ico.org.uk/media/for-organisations/documents/1198/dealing-with-vexatious-requests.pdf

11 ICO decision against a claim by CQC that an FOI request about various matters, including Winterbourne View, was ‘vexatious’

https://ico.org.uk/media/action-weve-taken/decision-notices/2014/1021508/fs_50532615.pdf

12 ICO decision against a Department of Health claim that an FOI request about the activities of its Private Finance Unit was ‘vexatious’

https://ico.org.uk/media/action-weve-taken/decision-notices/2016/1625413/fs_50623603.pdf

13 Upwards swings in 2016/17 in the number of complaints about DH’s and NHS England’s responses to FOI requests:

NB NHS England came into being on 1 April 2013

14 ICO decisions about FOI requests to the PHSO about its medical advisors

https://ico.org.uk/media/action-weve-taken/decision-notices/2014/946440/fs_50512530.pd

https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1043305/fs_50553963.pdf

https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1432039/fs_50566223.pdf

https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1560287/fs_50576766.pdf

https://ico.org.uk/media/action-weve-taken/decision-notices/2017/1625855/fs50643432.pdf

15 PHSO report: Complaints about UK governments and agencies, and some UK public organisations 2015/16

https://www.ombudsman.org.uk/sites/default/files/Complaints_about_parliamentary_departments_2015-16.pdf

16 ICO decision notice in the case where the Department of Health claimed 11 different categories of exemptions, of which only two were upheld by the ICO:

https://ico.org.uk/media/action-weve-taken/decision-notices/2013/812324/fs_50406024.pdf

17 Section 21 exemption – Information reasonably available to applicant by other means

https://ico.org.uk/media/for-organisations/documents/1203/information-reasonably-accessible-to-the-applicant-by-other-means-sec21.pdf

18 Section 23 exemption– Security bodies

https://ico.org.uk/media/for-organisations/documents/1182/security_bodies_section_23_foi.pdf

19 Section 24 exemption– Safeguarding national security

https://ico.org.uk/media/for-organisations/documents/1174/safeguarding_national_security_section_24_foi.pdf

20 Section 27 exemption – International relations

https://ico.org.uk/media/for-organisations/documents/1184/awareness_guidance_14_-_international_relations.pdf

21 Section 35 exemption – Government policy

https://ico.org.uk/media/for-organisations/documents/1200/government-policy-foi-section-35-guidance.pdf

22 Section 38 exemption– Health and Safety of any individual

https://ico.org.uk/media/for-organisations/documents/1624339/health-and-safety-section-38-foia.pdf

23 Section 44 exemption– Prohibitions on disclosure

https://ico.org.uk/media/for-organisations/documents/1186/section-44-prohibitions-on-disclosure.pdf