Author: minhalexander

From: Minh Alexander <minhalexander@aol.com>

Subject: CQC’s reporting of coroners’ Reports to Prevent Future Deaths

Date: 9 September 2016 at 09:01:46 BST

To: “Behan, David” <David.Behan@cqc.org.uk>, Health Committee <healthcom@parliament.uk>, sarah.wollaston.mp@parliament.uk, philippa.whitford.mp@parliament.uk, paula.sherriff.mp@parliament.uk, julie.cooper.mp@parliament.uk, james.davies.mp@parliament.uk, andrea.jenkyns.mp@parliament.uk, andrew.percy.mp@parliament.uk, maggie.throup.mp@parliament.uk, bradshawb@parliament.uk, meghilliermp@parliament.uk, Bernard Jenkin <bernard.jenkin.mp@parliament.uk>, deborahcoles@inquest.org.uk, HSIB <info@hsib.org.uk>, admin@avma.org.uk

BY EMAIL ONLY

To David Behan Chief Executive Care Quality Commission, 9 September 2016

Dear Mr Behan,

CQC’s reporting of coroners’ Reports to Prevent Future Deaths

I write to inform you of an irregularity regarding information about coroners’ Reports to Prevention Future Deaths.

In CQC’s annual Mental Health Act monitoring report for the period 2014/2015, it is reported that:

“Between December 2014 and June 2015, we received three ‘Prevention of future death reports’ concerning patients who were receiving mental health services at the time of their death; one report related to a detained patient.” (Page 27)

I have found by searching information uploaded by the Chief Coroners’ office, that there were at least 92 Reports to Prevent Future Deaths on mental health service patients in the period 2014/2015.

Additionally, six of the 92 reports related to detained patients.

Five of the 92 reports, which related to informal patients, appeared to have been copied to CQC by coroners. One of the five was sent to you personally. I provide links below to all five original reports.

I would be grateful to understand why CQC did not include all relevant data in its 2014/2015 report, particularly as it advised in its 2013/2014 report that:

“Coroners Society: In 2014 we developed a memorandum of understanding with the Coroners Society. We now receive information from individual coroners’ reports about any deaths in health and care settings and how these could be prevented in future.” (Page 33)

Yours sincerely,

Dr Minh Alexander

cc Health Committee

Chairs of Public Accounts and Public Administration and Constitutional Affairs

Committee

AvMA

INQUEST

Keith Conradi Chief Investigator HSIB

 

Five coroners’ Reports to Prevent Future Deaths that were apparently copied to CQC by coroners in 2014/2015:

https://www.judiciary.gov.uk/publications/james-boylan/

https://www.judiciary.gov.uk/wp-content/uploads/2014/07/Atasoy-2014-0166.pdf

https://www.judiciary.gov.uk/wp-content/uploads/2015/01/Brown-2014-0289.pdf

https://www.judiciary.gov.uk/publications/simon-costin/

https://www.judiciary.gov.uk/publications/lucy-moffatt/

First published 9 September 2016

MINH ALEXANDER First published 9 September 2016

A look at the Care Quality Commission’s choice of inspection chairs and overall processes reveals a predominantly white, male, corporate culture that risks letting down patients and staff.

Jeremy Hunt declared three years ago that the beleaguered  NHS quality regulator, the Care Quality Commission (CQC),  should become an authoritative source of a “single version of the truth”. The CQC accordingly trumpeted a makeover of its inspection regime, with a purportedly more professional and expert approach.

However, CQC has continued to be criticised by parliament, complainants and whistleblowers for lack of attention to detail, failure to listen properly to concerns, inaccurate inspection reports and poor data quality.

The independent Mazars report on scandal-hit Southern Health questioned the CQC’s new regime – so-called ‘intelligent monitoring’, saying ““The national data the CQC uses for its intelligent monitoring may not be accurate.”. As Southern Health hits the news again this week, following the revelation that its under-fire ex-Chief Executive has been shifted to a junior post but on the same £240,000 a year salary, it’s timely to ask more questions about whether the CQC sometimes obscures more than it reveals – and why.

A look at who chairs Care Quality Commission (CQC) inspections, and how they are run, raises questions about objectivity, expertise, diversity and club culture.

The CQC asked the Manchester Business School, together with the Kings Fund, to evaluate its new inspection regime. The Manchester evaluation painted a chaotic picture of programme that – whilst an improvement on past CQC methods – was still over-ambitious and inadequately organised, with patchy standards, insufficiently prepared and under-trained inspection staff, and a lack of clarity over roles.

The overly-complicated inspection regime also creates difficulties with recruiting staff, with inspection teams sometimes forming at the last minute, lacking key staff, and not analyzing the large volume of data gathered properly. The authors expressed suspicion that some of the data is in fact never used. Inconsistencies and variation between CQC inspection teams were noted:

“In practice, from our observations and interviews we found that teams sometimes made up rules for themselves…”

A key concern is how the inspections are chaired – and by whom.

The CQC promised in 2013 that “Each inspection panel is chaired [by] an external expert”.

And the Manchester evaluation states that each inspection was originally intended to be chaired by a medical professional, who should typically be a “senior doctor”, and led by a CQC compliance manager.

But in fact almost two thirds of CQC inspection chairs are current NHS trusts directors. Approximately half of inspections (48%) were chaired by senior doctors – and of nearly half of these were chaired by doctors who hold corporate roles as medical directors of trusts, regulators, NHS England and other bodies.

Furthermore, very few inspection chairs (less than 4%) are from visible ethnic minorities and there are about twice as many male chairs as female ones.

The Manchester Business School report described worrying informality in the recruitment process for external inspectors and chairs:

“To recruit external inspectors or inspection chairs, senior CQC staff had used professional contacts and formal and informal networks (such as royal college affiliations) predominantly, rather than the open recruitment advertising process. One interviewee claimed that ‘my recruitment process was Mike Richards badgering me until I said yes’ (Doctor, CQC inspection team).”

Current CQC inspection reports on English NHS trusts reveal that 14 of 199 full-scale (‘comprehensive’) CQC inspections were not chaired at all. It was unclear why this was, but perhaps the recruitment problems described above played a part.

Inspection chairs were drawn from current senior trust staff, managers from other NHS regulators and NHS England, the chief executives of the Academy of Royal Medical Colleges, the Faculty of Medical Leadership and Management and the NHS Confederation, former senior NHS managers, and one former and one current director from private sector providers – the former Chief Medical Officer of the Priory Group and the Chief Executive of Swanton Care Ltd, respectively.

The overall impression from CQC’s choice of inspection chairs is of a predominantly white, male, corporate culture that is perhaps too comfortable with itself, with insufficient boundaries between the regulated and the regulator.

Is some of CQC’s deafness to the concerns of patients, families and frontline staff (particularly ethnic minority staff) due to this skew towards privilege and corporate culture?

At Southport and Ormskirk last year CQC ultimately chose to believe a trust-commissioned report over the concerns of a large number of Black and Minority Ethnic (BME) staff.   The CQC inspection was led by three white men, including its chair. [10] Numerous BME staff raised concerns of less favourable treatment.The CQC noted that BME staff “felt highly disengaged from the executive. Concerns were expressed regarding limitation of opportunities for promotion and development, bullying and harassment and a punitive approach to medical re-validation and the application of professional standards to BME staff…Thirty members of the consultant staff also indicated in writing the presence of a culture of bullying and harassment.” However, CQC eventually concluded that the external investigation arranged by the trust was “thorough and comprehensive” and accepted its conclusion that there were “no evidence or grounds for the allegations”.

The poor diversity of CQC inspection chairs is of particular concern set against all that is widely accepted about the importance of inclusive and just culture to good quality healthcare.

The clubbiness of the chairs is also a concern given the lack of clarity in whether chairs can substantially intervene in the report writing or not (in theory, they do not, but in practice, the Manchester report suggests they do.

There is potential for objectivity to be compromised due to the predominance of current trust directors amongst inspection chairs. There is no obvious indication that this is the case when the ratings from inspections chaired by trust staff are compared with the overall pattern of ratings. In fact, CQC’s Chief Inspector and deputy inspectors seem slightly more disposed to rate trusts favourably, with only 2% of trusts reviewed by NHS trust staff rated as outstanding compared to 16% of CQC chief chaired reports, and 8.7% of trust staff chaired inspections rating the trust as ‘inadequate’ compared to none of the CQC chief chaired inspections.

Without controlling for other factors over a longer period, it is hard to be certain of how employing current NHS directors as inspection chairs affects the outcomes of inspections.

Indeed, questions also arise about the value added by inspection chairs relative to cost, if there is duplication of roles and some inspections can be conducted without them. Some in fact question CQC’s ratings model in general.

As for the appointment of a chair from the private sector to inspect NHS trusts, is it right for competitors of NHS services to be given access to large amounts of detailed intelligence about NHS providers or to be in a position to influence ratings on NHS providers?

Another matter that arose was that a CQC inspection chair is who has chaired 3 inspections is, according to information held at Companies House and onLinkedIn – a director of a private company that offers services helping to prepare organisations for CQC inspections.

Will the CQC listen to any criticism? Our NHS quality regulator has long been politicised. A leaked 2010 email by one of its directors said: “Being hard hitting without presenting critical data will I suspect be more politically acceptable than criticising with evidence”.  Or is the CQC happy to continue its approach, current choice of chairs, and its role as part of an NHS “denial machine” ?

MINH ALEXANDER First published 11 March 2016

A rash of rebukes, resignations and reports pour cold water on Jeremy Hunt’s continued claim to be the whistleblowers’ friend.

This week, Lord Darzi’s long-awaited report into patient safety in England’s health service, reported that as few as 5% of patient safety incidents are reported, often because of staff fearfulness.

And today an influential committee of MPs reproaches the government for its continuing failure to take whistleblowing seriously. A new report by the Public Accounts Committee says MPs are “disappointed by the lack of urgency” the government has shown around whistleblowing, and also “concerned” at the narrow scope.

All this is a further embarrassment to Jeremy Hunt who this week hung out more patient safety tinsel, announcing a raft of initiatives to “end the cover-up culture” and ensure an NHS that has “safe space” for staff and “learns from mistakes”. But behind the soundbites, where’s the detail? I phoned the Department of Health, but they were unable (or unwilling) to put much flesh on the bones.

The rebranded Healthcare Safety Investigation Branch (HSIB) will carry out “no blame” investigations, we’re told – and much fuss is made of legal “safe space” for staff within these. Some have questioned how this will be achieved without primary legislation. The Department of Health insists that it can be achieved, but has no draft directions to share. HSIB will only undertake 30 investigations a year when there are some 10,000 serious incidents, including over 300 Never Events.

The DH admits that there will be no “safe space” provision for thousands of NHS investigations that will take place outside of HSIB’s domain. Neither will HSIB report to parliament. Instead it will be a branch of NHS Improvement, possibly perpetuating conflicts of interest in NHS incident handling thatparliament criticised a year ago.

There’s a catchy new “Learning from Mistakes League”. It places the NHS Improvement CEO’s old trust at the top. However this trust (Northumbria) super-gagged 45 staff, a practice criticised by Robert Francis as “draconian” and unhelpful.

But there’s no sign of Hunt learning from his own serious mistakes in relation to how he protects – or doesn’t protect – whistleblowers.

In the Commons this week, Hunt agreed merely to “reflect” on a further call, from a Health Committee member, for review of past whistleblower cases.

And last week – in a highly embarrassing move for Hunt – Dame Eileen Sills resigned as the first “National Freedom to Speak Up” Guardian, before she’d even started the job. The creation of her post was a centrepiece of Hunt’s promises on protecting both patients and whistleblowers, post-mid-Staffs.

Her resignation came ten days after she said defiantly “I won’t be dropping any balls”.

She was responding to criticism that the Guardian post was only two days a week, and established on top of her full time £174,000 commitment as Chief Nurse at Guy’s.

But by 4th March she was gone, citing unmanageable workload.

Eileen Sills was purportedly appointed to lead improvement in NHS whistleblowing governance at national level, and to support a network of local whistleblowing Guardians employed by NHS bodies.

But from the start, the majority of whistleblowers and campaigners predicted problems with the National Guardian’s office, pointing out that what is needed is a truly independent body that reports directly to parliament, which has powers to investigate and remedy poor whistleblowing governance, and is properly resourced.

Instead, we got a part-time office implemented by the government’s regulator, the Care Quality Commission (CQC). The CQC’s specification for the postfocused heavily on what the National Guardian would not do:

• no remit for hundreds of “historical” cases
• no investigation of the disclosures made by staff
• no assessment of the soundness of local investigations by employers
• no investigation of cases
• no provision of appeal against local decisions by employers
• no statutory powers

All of which – along with the part-time nature – rendered the office merely decorative.  Even Eileen Sills herself expressed disquiet to me that “historical” cases were excluded from her remit.

CQC launched a “consultation” about the office after the job had already been advertised. In response to criticism of this pre-determination, CQC claimed that there was still flexibility. This did not seem evident to Eileen Sills, who wrote to me that there was no possibility of deviation from CQC’s advertised specification for her post.

In the wake of Eileen Sill’s abrupt departure, and associated disruption, questions arise about why the great and the good appointed an NHS insider whose own trust has been slow and reluctant to answer questions about past whistleblowing governance. Its response to an enquiry about use of compromise agreements and associated gagging clauses is overdue.

Eileen Sills recently oversaw completion of important national whistleblowing guidance but – to the concern of whistleblowers themselves – they had minimal involvement in the process. Sills chose not to appoint whistleblowers who were put forward by NHS arms length bodies for interim posts in her team. Instead, she made somewhat “corporate” appointments from the DH and other central bodies. Her office has been reluctant to disclose the total number of whistleblowers who were turned down.

The erstwhile National Guardian, whilst still in post, suggested I meet with her – though it was difficult to agree a clear agenda. After the meeting, her interim deputy (who appeared at our meeting without prior discussion) seemed reluctant to agree a record of the discussion, reminding me of surreal past experiences of NHS Human Resources. I was bemused when in our meeting Eileen Sills commented that she was being careful with her answers, because I would “tweet” whatever she said. So much for the National Guardian’s remit for improving transparency.

Nevertheless a record of the meeting was eventually broadly agreed. It notes that Eileen Sills did not yet know how many local Guardians were in place, that she thought it was “too early” to tell if the Public Interest Disclosure Act (in force since 1999) was a success, and that she did not want to say whether harmed whistleblowers should be released from gags for the purposes of defending themselves when applying to the planned NHS re-employment scheme, but agreed to “explore” this. She refused to comment on whether NHS bodies should be barred from gagging staff about whistleblower reprisal.

And it’s even unclear whether staff who make disclosures to the National Guardian can claim legal protection under the Public Interest Disclosure Act (meagre though this is). The interim deputy asserted the National Guardian isnot a Prescribed Person under the Act, to whom staff can make “protected disclosures”.

This is despite the fact that the office is located within CQC, which is a Prescribed Person. Eileen Sills agreed with her deputy. If they are right, staff would have weaker grounds to claim against employers for reprisal resulting from disclosures to the National Guardian. I have asked CQC to clarify this important point, and to issue guidance to NHS staff on their rights when disclosing to the National Guardian.  It would be a further weakness of the office if staff who inform the National Guardian of concerns are in fact more exposed. Who would wish to embed such a fault into core governance?

In all, there is little evidence of learning from the mistakes highlighted by the National Guardian’s resignation before her post even formally started.

There is no announcement that Francis’ whistleblowing Guardian model will now be reviewed, nor that near unanimity amongst whistleblowers on the need for a truly independent body will be heeded. Neither is there any announced plan to involve whistleblowers in the appointment of another National Guardian. Instead, the CQC assures us that it is full steam ahead for more of the same.

Whistleblowers and patients need a serious venture, not window dressing and part-time figureheads.

Look out for plenty more dropped balls.

 

Correspondence with Eileen Sills’ Office: Minutes of meeting 23 February 2016

BY EMAIL

To Dame Eileen Sills Chief Nurse Guy’s and St. Thomas’ NHS Foundation Trust

24 February 2016

Dear Eileen,

Re our meeting 23 February 2016

As indicated, I write with my summary of the factual content of our meeting, and would be glad if you could provide your comments about accuracy.

In brief, further to your invitation to meet and to suggest agenda items, and the prior agreement between us of some specific agenda items, we met for a little over an hour. David Bell your interim deputy was present when I arrived and remained with us for nearly all of the meeting. May I ask that if we have further meetings, that advance notice is given of any other individuals whom you invite to join us, and for this to be discussed with me.

At our meeting, you indicated that you could not discuss one of the agreed agenda items, an issue of ambiguously written NHS settlement agreements which may actually or in effect prevent whistleblowers from speaking out about experiences of whistleblower reprisal, and whether the NHS should clarify that concerns about whistleblower reprisal should be approached as a form of protected disclosure, which cannot be gagged. As I have put to you before, the current arrangements allow poor governance and related risks to patient safety to be hidden.

Regarding another agreed agenda item, the issue of lifting gags to assist whistleblowers who are applying to the re-employment scheme, you indicated that whilst it was not possible to give a substantive answer, you would explore this. We also discussed a range of other issues.

The broad flow and salient content of our discussion, based on notes which I made throughout the meeting are set out below.

I look forward to hearing from you.

Yours sincerely,

Minh

Dr Minh Alexander

Key to the below:

ES Eileen Sills

MA Minh Alexander

DB David Bell

NG National Guardian

 

1. ES gave information about developments:

i. ES started work on NG office 4 January 2016

ii. ES has appointed an interim team

iii. David Bell (DB) started last week, acting as ES’ interim deputy. Comes from Commissioning Support Unit South East, relevant experience from contributing to the set up of NHSI; HR background

iv. The other two interim appointments to the NG office:

a) Russell Parkinson from DH; is DH lead for global patient safety summit; will lead work on connecting with local guardian

b) Will Flowers, appointment not yet confirmed; if appointed will lead on communications. … will be proactive in our communications, tell everybody what the role of the office is, the benefits of the office

v. The set up team appointed by CQC finish in March

2. ES: Substantive team posts will be advertised in April, one of the functions of substantive appointees will be leading “casework”

3. MA: How does “casework” differs from “case management” (which both the Freedom to Speak Up Review & CQC say is not part of NG remit)?

4. ES: Not sure why you’re asking about terms.

4. ES: We will take referrals from individuals who feel they have been disadvantaged. No referrals will be accepted until post-October. Threshold to be agreed. Those individuals will be give a case to review. At the moment can’t say more. All of this subject to finalisation. I’m not going to be rail roaded into something and fall foul.

5. MA: I’d like to start with my key question to you – re approaching concerns about whistleblower reprisal as form of protected disclosure, not allowing them to be gagged etc…

6. ES: I’m on learning curve, can’t comment. Would be wrong of me to do so.

7. MA: Disappointed as it was agreed before the meeting that we would discuss this issue (ref email). Hope you can see why I might be disappointed – specifically agreed agenda item not discussed; also meeting with you agreed, but arrive to find David involved with no explanation.

8. ES: [Asked to meet you because]…you’re very active in the whistleblowing community. You have a lot to say. If I try to respond [to your email]…we’re trying to build confidence. I want to put the record straight on some of the stuff on twitter.

9. MA to DB: Have you seen the [pre-meeting} emails?

10. DB: Yes, [but in respect of the question about whether ES would express a view about whether concerns about WB reprisal constitute protected disclosures], NG office is not a prescribed body.

11. MA: A different issue.

12. ES: if NG office finds a whistleblower has not been fairly treated, will make that public. [At what point do we take referrals?] Do we take referrals when cases are concluded? [Or at an earlier point].

13. MA: Other specific issue from my email – gagged whistleblowers and how this relates to entry to the re-employment scheme – WBs need to be able to defend themselves, disclose experiences of poor HR governance. They may be or may feel gagged by non-disparagement clauses. Would you support gags being lifted to allow WBs the best chance of entry to re-employment scheme?

14. ES: I haven’t seen anything yet from Neil Churchill about the employment scheme. NHS England [in charge of that].

15. MA: Your role is also to oversee and possibly criticise how central NHS bodies, eg. NHS England, handle whistleblowing?

16. ES: I don’t want to criticise. We [trying to do this] constructively.

17. ES: Other people have said they want to be able to talk about their story [as part of well being and being able to re-integrate into work].

18. MA: That’s a separate issue. I am asking about lifting gags and whistleblowers being able to enter the re-employment scheme, not what happens after.

19. ES: What do you mean about gags, example?

20. MA Gags prevalent. Super-gags still used. Both Peter Wyman & Jim Mackeys have used super-gags. [45 and 22 respectively in 5 years]. Can send the data.

21. ES: I don’t want the data.

22. ES: Nothing suspicious in relation to me.

23. ES: [continuing on lifting gags for the purpose of the re-employment scheme] I can’t give you a view legally. I don’t see how, if someone has signed a legal agreement…

24. MA: Not asking for a legal view. Asking if you agree it should be done, assuming it can be done.

25. ES: I can explore that. [We should] give individuals every opportunity….[I’m being careful about what I say] …whatever I say to you will get tweeted.

26. MA: Neil Churchill has said to me he thinks it should be doable [lifting gags].

27. ES: Until I’ve had a conversation with Neil, I will reserve judgment.

28. MA: Struck by the fact that NG office will have “wide discretion” as to which cases it will pick up. How will you ensure this does not result in unfairness & that Equality requirements are met?

29. ES: Will need to be professional and open. …[criteria will be set & made public] Intend to have very robust governance framework. Involve Experts by Experience, establish Advisory Board, applications will be invited. Live by May.

30. MA: Can I return to the issue of whether NG office is a prescribed body under PIDA. If NG office is a subsection of CQC, and CQC is a prescribed body, why would NG office not also function as a prescribed body?

31. ES: NG office is not a subsection of CQC. NG is hosted by CQC. Some core functions shared with CQC, with SLAs for example on HR & procurement. But operationally independent.

32. MA: But CQC provides funding?

33. ES: Other ALBs provide funding too.

34. MA: David Behan is accountable officer?

35. ES: Some one’s got to be.

36. MA: David Behan is your line manager?

37. ES: He doesn’t really line manage me. I’m accountable to him [for how the NG office is established].

38. MA: If NG office is not a prescribed body, who do people whistleblow to if they are concerned about the NG office itself?

39. ES: Can raise with NG Advisory Board.

40. MA: That’s internal…what about beyond that?

41. ES: To be clarified.

42. MA: A question that others have asked is whether NG office accept a case if the whistleblower loses confidence in local Guardian. Will NG always pick up such cases

43. ES: Yes, but not necessarily investigate them.

44. MA: What will you do for people who are unhappy with their local Guardian?

45. ES: We haven’t finalised that either. But might include signposting to other organisations. Or I might liaise with trust Chief Executive or other organisations.

46. ES: Guidance on local Guardian posts goes to Chief Executives this Friday.

47. MA: Do you know how many local Guardians have been appointed?

48. ES: Don’t know how many local Guardians appointed so far. We want them in post by September.

49. MA: What if posts that have already been created don’t comply with your criteria?

50. ES: We’re going to ask them to review. We’re asking trusts about [existing] local Guardians.

51. MA: Can your guidance to Chief Executives about local guardian posts be shared?

52. ES: Publishing next Monday.

53. MA: Can the information you get back from trusts about current local Guardians be shared?

54. ES: Only asking trusts for names of Guardians.

55. MA: Not asking about grade & hours?

56. ES: Local guardians will be sent bespoke questionnaire.

57. MA: Can the questionnaire be shared?

58. ES: Not yet ready. Work on it starts in March when Russell starts. Publish in April. We’re not prescribing banding at all. We’re asking for demographics. Will be evaluating demographics.

59. MA: What do you mean by demographics?

60. ES: The post they’ve come from, banding, ethnicity etc.. The demographics linked to success (for example as indicated by staff survey) will be evaluated.

61.MA: Will questionnaire results be shared?

62. ES: Some of It will be personal.

63.MA: But at least some elements are appropriate to share, and can be shared if anonymised?

64.MA: What do you think of PIDA?

65. ES: Put in place to protect people who raise concerns, that’s got to be a good thing. It’s too early to make a judgment that it works [PIDA]. Don’t know how many successful cases there are – we don’t see them. They’ve whistleblown and it’s worked. Works in some teams. Can challenge each other.

66. MA: Do you think there should be more research on whistleblowing?

67. ES: Wide… what do you mean?

68. MA: For example, you just said we don’t know how many cases are positive. Has NG office got a research budget?

69. ES: No research budget.

70. MA: [Re ES’ comments about positive cases] Although you could say that contributors to Freedom To Speak Up were self-selected, it showed mostly negative experiences. 2014 staff survey showed about a quarter of staff not secure to raise concerns, so there is a problem. Are you aware only 3% of ET claims [under PIDA] succeed at hearing?

71. ES: At one end you’ve got protected disclosures and whistleblowing, then you’ve got a person on the ward informally raising a concern.

72. MA: What do you mean by whistleblowing

73. ES: I hope that’s not a trick question.

74. MA: Someone on the ward informally raising a concern is technically whistleblowing if it is a qualifying disclosure within PIDA [but acknowledged the practical challenge posed by range between simple raising of concern and situations that have dragged on and escalated]

75. ES: I would slightly disagree. It’s about changing culture…..

76. MA: Your CQC blog set out your plans.

77. ES: I haven’t done a blog.

78. MA: CQC press material attributed to you.

79. ES appeared unsure which reference was being cited. MA: [Reading from a copy of the press release] ….by one year, “I will have started to work towards developing a set of common standards for handling staff concerns and to showcase examples of good practice.” http://www.cqc.org.uk/content/dame-eileen-sills-sets-out-her-priorities-her-first-months-national-guardian

80. ES: Standards to be in place at one year:

i. Local Guardian standard for trusts (Acute, MH, Ambulance

ii. Ways of Working for NG

iii. Training standard for local guardians

iv. Workforce awareness standard on raising concerns

v. Show casing examples of good practice. Some teams are great at this.

Transparency.

81. MA: [Ref transparency] Can you chase your FOI department?

82. ES: That’s a conflict of interest. Not proper [to respond]. But I have [chased]…

83. MA: I think the conflict of interest is inherent in the dual role.

84. ES: Other people have said that. [Disagree] …I won’t be dropping any balls

85. ES, at least x2 during the meeting: You absolutely have to trust me.

86. MA x 2: I don’t have to trust you at all.

87. ES: I work as a clinician one day week [understand the concerns of staff].

88. MA: [What I’m about to say doesn’t relate to you personally]… very often those responsible for whistleblower reprisal are the most senior clinicians.

89. ES x 2 during the meeting: First time it’s ever been done [and associated comments that it needs a chance]

90. MA: Not the first time. USA model of OSC has powers but still hasn’t done a good job. History is that this sort of body goes stale. [DB noted point about USA model]. I am a sceptic about NG office.

91. ES: So long as can say have acted fairly , openly & independently….

92. MA: Design of NG office is itself unfair. You won’t be investigating whistleblowers’ concerns. Cannot handle cases effectively or judge proportionality without this. All reasonable people see that vindication is an integral issue, including parliament, which linked apology & redress to vindication.

93. ES: Will highlight any problems with the office in due course.

94. MA: Was glad to see you requested review at 6 months.

95. ES: Might be a different office in 2 years.

96. MA: But lives will be ending in that time. I’m in touch with whistleblowers who are suicidal.

97. ES: We’d expect people to contact us for advice.

98. MA: Your office won’t be able to do a jot for these people [ref remit]

99. ES: That’s one aspect I’m not happy with, historic cases not included.

100. MA: Good to know that.

101. ES: [Would you be interested]….in attending further events….

102. MA: Expert by Experience stuff?

103. ES: Yes

104. MA: Little confidence in the way the NG guardian office established but it’s what we have, in principle happy to work constructively on helping it work as best it can. So provisionally “yes”, but depends how things pan out.

 

 

 

 

 

BY EMAIL ONLY

To Rt Hon Jeremy Hunt Secretary of State for Health, 16 October 2015

Dear Mr Hunt,

Re: Maternal deaths and the safety of Homerton maternity services

I understand that anonymous Black midwife whistleblowers, who call themselves the “Unhappy Midwives”, contacted you personally in July 2013.

As you should be aware, the Unhappy Midwives first made disclosures to both Homerton University Hospital NHS Foundation Trust and to CQC in 2012, about poor care and Race discrimination that impacted on patient care and safety. They did not feel their disclosures were appropriately acted upon by either the Trust or by CQC. A series of at least 5 maternal deaths then followed, starting in July 2013.

The Unhappy Midwives made exhaustive attempts to warn all those in positions of responsibility about the fact that their safety concerns were unresolved, and about their concern that both internal Trust investigations and a review by the Clinical Commissioning Group (CCG) were seriously flawed. For their pains, the Unhappy Midwives were branded “vexatious” and “vindictive” by two successive Trust CEOs, and threatened with various forms of punitive action.

I understand that the Unhappy Midwives wrote to you personally in July 2013 after the first Homerton maternal death. I believe they warned you in some detail of their concerns about:

• Risks to patients’ safety

• Race discrimination affecting both staff and patients

• Serious reprisal against a named Black whistleblower in Homerton maternity services.

• Homerton’s apparent failure to disclose a particular midwife’s poor safety record, of baby deaths, to a subsequent employer.

However, the Unhappy Midwives’ correspondence was passed to your officials, who I believe fobbed them off and eventually directed them back to the very bodies about which they were concerned. I also believe that there was no help from you personally or from DH officials for the named whistleblower, despite a request from the Unhappy Midwives that you urgently help this person.

Moreover, the Unhappy Midwives explicitly warned DH officials of serious flaws in the CCG’s review of Homerton maternity services, and also their concern that the Trust was intimidating staff to prevent them from giving truthful evidence to the CCG review. However, I now see that DH officials are citing the CCG review report as assurance data. DH officials are also wrongly claiming that this review did not in any way substantiate the Unhappy Midwives’ concerns, when a cursory examination would show that it very clearly did. Most importantly the CCG review validated the Unhappy Midwives’ concerns that the Trust was not learning enough from serious patient harm, and was not making links between serious incidents.

As I think you know, at least four more Homerton mothers died after you and DH were informed of serious flaws in the governance of the Trust and CCG.

Maternal deaths are normally rare events. The clustering of deaths at Homerton prompted yet another review last year. The London Clinical Senate carried out this review, but the Senate report appears to have been withheld by the Trust and CCG. The Trust CEO suggested in a recent internal email that the Trust would most likely continue withholding the Senate report. This clearly flies in the face of Dr Bill Kirkup’s recommendation 25 that NHS bodies should not be allowed to withhold the findings of external reviews.

I should note that in addition to maternal deaths, the Trust has now disclosed under FOI that there have been 20 intrapartum deaths, stillbirths and neonatal deaths since 2012. There have also been 2 Never Events, and a total of 79 serious incidents since 2012. There is also concern that other harm has occurred due to staff with unsafe practice moving to other organisations.

Despite the concerns about how the Trust has treated whistleblowers and handled safety in maternity services, I see that you continue to publicly praise the Trust CEO for value-based leadership and for listening to staff.

A question arises about failure by you, DH and arms length bodies to sufficiently protect mothers and babies, despite the repeated warnings.

Accordingly, I would like to understand how you and the Department of Health have handled this matter.

There is a particular need for transparency because of the concerns of Race discrimination, the harm to BME patients and the evidence from the Freedom to Speak Up Review that BME whistleblowers are more likely to be ignored and victimised. I ask you to note that in a very high diversity area, the “Snowy Peaks” [1] of the Homerton Trust board are wholly white.

Please disclose:

1) All communications between Homerton University Hospital NHS Foundation Trust and you, and DH, from July 2013 onwards, regarding the safety of Homerton maternity services, including the handling of any whistleblowers’ concerns.

2) All communications between City and Hackney CCG and you, and DH, from July 2013 onwards, regarding the safety of Homerton maternity services, including the handling of any whistleblowers’ concerns.

3) All communications between Care Quality Commission and you, and DH, from July 2013 onwards, regarding the safety of Homerton maternity services, including the handling of any whistleblowers’ concerns.

3) All communications between NHS England and you, and DH, from July 2013 onwards, regarding the safety of Homerton maternity services, including the handling of any whistleblowers’ concerns.

Please include letters and emails, and appended documents.

It seems to me that the culture of “circular assurance” described by Dr Bill Kirkup still flourishes, in that the DH and its arms length bodies are far more inclined to listen to each other and NHS organisations, than to listen to dissenting voices.

I would like to remind you of the calls over the years for safe harbour and a truly independent body for whistleblowers, including a recent call by Simon Stevens on behalf of NHS England. I believe the Homerton saga is another tragic, wasteful story that plainly illustrates why such a body is needed.

Yours sincerely,

Dr Minh Alexander

[1] The “Snowy White Peaks” of the NHS: a survey of the discrimination in governance and leadership and the potential impact on patient care in London and England, Roger Kline, Middlesex University 2014

cc Rt Hon Dame Margaret Hodge MP Barking

Diane Abbott MP Hackney North and Stoke Newington

Meg Hillier MP Hackney South and Shoreditch

Shadow Secretary of State for Health

Health Committee

Public Administration and Constitutional Affairs Committee

Public Accounts Committee

Sir Peter Bottomley MP

Rt Hon Sir Anthony Hooper

Sir Robert Francis QC

EHRC

Professor Sir Bill Kirkup

National Maternity Review

 

 

RELATED ITEM

An update on the Homerton maternity whistleblowers 28 September 2016

A copy of the London Clinical Senate report on four maternal deaths is provided.

https://minhalexander.com/2016/09/28/homerton-maternity-whistleblowers-foi-disclosure-of-the-london-clinical-senate-report-on-four-maternal-deaths-and-the-national-guardian/

 

From submission to Department of Health consultation on the implementation of the Freedom to Speak Up Review, by Minh Alexander former consultant psychiatrist, 4 June 2015

Francis greatly emphasised the example of the Cultural Ambassador at Staffordshire and Stoke on Trent Partnership Trust (SSOTP) as supporting evidence for his proposal to introduce whisteblowing guardians nationally. He featured the SSOTP model in the Freedom to Speak Up report. At the launch of his report Francis told whistleblowers that the present incumbent had proven that such a post could work.

Few facts had been offered about the provenance or efficacy of the model, other than that a low staff uptake had prompted this arrangement, and that uptake subsequently increased “dramatically”. No other parameters were explored in Francis’ report. Details of staff contacts with the Ambassador have now been requested from the Trust and are awaited.

The Ambassador post was established two years ago in April 2013. The Trust has confirmed to me that no evaluation of this new role has yet been carried out. [1]

The Trust signals an intention for evaluative research to be carried out, but no decision has been made yet on how this will be done.

What then are the other sources of information that might shed light on the effectiveness of the model?

Local press reported that recent, significant external whistleblowing disclosures were made about the Trust. It is alleged that staff reported externally because of issues of organisational culture and because little was done to rectify safety issues despite managers being made aware of the problems. [2,3,4] If so, this raises a question of what is contributed by a Guardian-type role where there are particularly serious and knotty problems that an organisation might find threatening. For example, some of these external disclosures ultimately led to regulatory action on staffing levels, which may in turn present other challenges for a Trust seeking Foundation status.

Notwithstanding, it is recognised that external whistleblowing is often an indication of an internal blockage of some sort. The Trust’s response to press coverage of leaks was to emphasise to its staff that internal reporting was encouraged, but there was no clear acknowledgment of failure to engage with staff. [5]

Some external disclosures by SSOTP staff have been made to CQC. A full list of disclosures has been requested under FOI arrangements and is awaited. Meanwhile, remarks in a CQC inspection report of 19 March 2015 may reflect tensions inherently thrown up by an Ambassador role:

“Action the provider MUST or SHOULD take to improve

• Review the internal communication arrangements for the Ambassador for Change to ensure transparent lines of communication and staff feel reassured that the role is organisation wide, not part of the management process”

It would be understandable that any Ambassador role, irrespective of the person in post, may be viewed hesitantly if staff are wary of management commitment to transparency.

NHS Staff Surveys for SSOTP in the last 3 years, against national averages for comparator trusts, do not show major changes over the period in which an Ambassador post was established:

These figures give only a rough indication of some of the issues, and may be affected by factors other than the work of an Ambassador. Broadly though, they are not by any means proof that an Ambassador model clearly generates improvement around issues of raising concerns. Confidence in the fairness of incident procedures remained slightly below average. When a measure about staff’s sense of security in reporting concerns was added in 2014, this was slightly below average too.

Whistleblowers, who have seen all that the most corrupt employers can do to manipulate and pervert processes, do not have any expectations that closed organisations will be transformed by Trust-appointed whistleblowing Guardians. In such trusts, Guardians will at best be ignored, and ineffectual as a result of impassable systemic issues. More likely, the worst organisations will appoint in their own image. The role could be used to help conceal continuing whistleblower reprisal whilst falsely white washing organisational reputations. The analogy of prefects from Tom Brown’s school days comes to mind.

There is another indication that Francis’ whistleblowing Guardian experiment will fail. There is already evidence that some organisations are ignoring Francis’ recommendations that:

(i) Whistleblowng Guardians posts should be dedicated roles

(ii) The Whistleblowing Guardian role should not be on top of someone’s existing duties

(iii) Whistleblowing Guardians are ideally in a professional role, to gain the trust and confidence of colleagues.

Of concern, these are examples of whistleblowing Guardians that have been quickly appointed by NHS organisations whilst the DH consultation has been taking place:

“Formally appointing the Executive Director of Nursing, Quality and Governance as the Trust’s Freedom to Speak Up Guardian” 

“…also appoint: Assistant Director, Corporate Governance as the ‘Freedom to Speak Up’ Guardian” 

“The identification of one official Freedom to Speak Up Guardian, to concentrate on the assurance side, proposed to be the Director of Quality and Assurance”

“The Head of Governance, who is identified as our designated officer in the Raising Concerns Policy, to also take on the role of ‘Freedom to speak up Guardian”

“…Director of Communications and Business Services… has also been appointed by the Audit and Governance committee as the “Freedom to Speak Up Guardian”

These appointments are clearly at odds with the Freedom to Speak Up review’s intentions. Arguably, they show corporate bias, little prioritisation of whistleblowing governance, and failure to appreciate (or care about) the nuances of staff advocacy. It is questionable that Trusts were told that they could move ahead with making arrangements before the Department of Health Speak Up consultation had taken place. However, their actions are part of the evidence that the Trust-appointed Guardian model lacks sufficient robustness and credibility.

A whistleblower contributor to the Francis review, who has worked in a established Guardian type role for some time, has very clearly advised that such a role can make a contribution but:

“… is in no way  a panacea for remedy to prevent further scandals within the NHS.

And the whistleblower remains of the opinion that:

“In order to change the culture a proper whistleblowing inquiry is necessary”

This person remains conscious of the marked imbalance of power, disadvantage and stress that staff face when raising concerns. In common with the majority of whistleblowers, this person emphasises that until root causes are genuinely addressed, the overall dysfunction will continue.

Robert Francis stipulated that Trust-appointed Guardians must command the confidence of Chief Executives. Where the Chief Executive is corrupt, this is clearly nonsense, as the Guardian would have to act corruptly too, in order to command the Chief Executive’s confidence. This contortion of logic lies at the heart of Robert Francis’ fatally flawed proposal.

It is also important to note that the more robustly those in current Guardian-type posts advocate for patients, the more likely it is that they will experience retaliatory mistreatment. This has reportedly sometimes been very serious.

In summary, Trust appointed whistleblowing Guardians are the lynchpin around which Francis’ proposals are built. Given the lack of evidence that such posts can be relied on as the key intervention to prevent whistleblower reprisal or to reduce fear, and evidence that organisations are already making inappropriate appointments, the Freedom to Speak Up review falls.

[1] Correspondence with Stuart Poynor SSOTP Chief Executive, 1 June 2015

[2] Leaked NHS dossier: nurses log concerns over care. D Blackhurst, Staffordshire Sentinel, 2 April  2015

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

[3] Leaked NHS report reveals dying patients left alone and in pain, staff at breaking point, Staffordshire Sentinel, 2 April 2015

[4] NHS ordered to appoint more district nurses in North Staffordshire, Staffordshire Sentinel, 9 May 2015

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

[5] Health staff told ‘don’t speak to press’ after regional daily expose. David Sharman, Staffordshire Sentinel, 5 May 2015

http://www.holdthefrontpage.co.uk/2015/news/health-staff-warned-not-to-leak-to-daily-after-damning-dossier-splash/

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, first published 29 July 2016

In the six years of its much-criticised life, CQC has been part of the NHS denial machine. Its decisions have been exposed as overtly politicised on some occasions [1], and suspected as such on others. Its ratings are questioned for their methodology, and because people think they can be arbitrary, and either unfairly severe or unduly lenient. CQC has sometimes failed to detect – or report – gross safety failings such as those at Southern Health NHS Foundation Trust. [2]

In November 2014 the CQC assumed a legal duty under Regulation 5 Fit and Proper Persons (FPPR) to assure that trusts appointed Fit and Proper directors and that existing directors continued to be Fit and Proper Persons. Under FPPR, directors who have been guilty of – or privy to – serious misconduct and mismanagement, may be removed. [3]

In December 2014 other NHS whistleblowers and I took part in a teleconference with Mike Richards CQC Chief Inspector – who was going to chair CQC’s FPPR panel – and his entourage to find out how CQC intended to run FPPR. This was not encouraging as the Chief Inspector made comments such as CQC action would depend on the “level” of whistleblower reprisal. Before a single shot had been fired, he asserted that it would not pass in the “Court of Public Opinion” if too many managers were removed under FPPR.

The Chief Inspector subsequently demonstrated impressive reluctance to remove seriously erring NHS managers. To my knowledge and others’, not a single director has been removed under FPPR. CQC has in a handful of cases triggered investigations – but allowed trusts to commission and direct these investigations. At Southport and Ormskirk where at BME doctors complained of unfairness and mistreatment, and 30 consultants had written to complain of a bullying culture, CQC rubber-stamped such an FPPR investigation as sound. [4] This was followed only three months later by suspension of the CEO and 3 other managers. CQC also rejected an FPPR referral on Southern Health NHS Foundation Trust, only for this to be seriously questioned by the revelations of the Mazars report that hundreds of unexpected trust deaths had not been investigated. [5] [6] The outcome of a re-referral is awaited, whilst more revelations came today from the BBC about millions paid by the trust to the Chief Executive’s former associates. [7]

An FOI request in May 2015 confirmed that CQC had received referrals on 65 NHS managers, including 14 individuals reported to have suppressed whistleblowers, but it did not take action to remove any of these 65 managers. [8] [9] [10]

An update FOI request was made in May this year, but CQC has refused to provide this data on grounds of cost, even though it had already announced plans to review its use of FPPR. When asked, CQC failed to say what data it would be prepared to provide within the cost limits.

Also interesting is the fact that trusts may appeal against CQC’s decisions on FPPR, but in response to an enquiry, CQC’s Chief Executive David Behan stated that referrers may not. [11] However, I am told that in at least one case, CQC has undertaken a review in response to a referrer’s objections. So much then for equitable and consistent decision -making.

CQC’s performance on FPPR has not gone unnoticed. Health Committee has noted the concerns reported to it for the next accountability hearing with CQC. After the recycling of Paula Vasco-Knight at St. George’s, with Monitor’s involvement by allowing her into their interim pool, CQC was caught very, very short when she was suspended over financial allegations. Soon after that CQC admitted that there were legitimate concerns over its handling of FPPR, and that questions had been asked about why CQC was only tick boxing trusts’ FPPR process, when it should also have been looking at the soundness of FPPR decisions. CQC announced that it would review itself with regard to FPPR. [12] This will most likely take the path of past CQC internal reviews. For example, that relating to CQC’s poor response to Homerton maternity risks and whistleblowers’ warnings, which implausibly found no serious error. [13]

The recent parliamentary debate on the Liverpool Community Health NHS Trust scandal exposed the active complicity of regulators in recycling some poor NHS managers, even to the extent of misleading an MP about what they had done. [14]

It is worth taking the microscope to CQC’s lamentable role in the Vasco-Knight business. Paula Vasco-Knight was Chief Executive of a trust, South Devon Healthcare NHS Foundation Trust, which was severely criticised for harming two whistleblowers who raised concerns about nepotism by Paula Vasco-Knight. She resigned from that trust in 2014 after a damning Employment Tribunal judgment against the trust [15] [16] [17] but within months she had been recycled by the NHS. Controversially, she worked on an interim basis for another trust at a cost to the public purse £248K. [18] By September 2015, she was hired as interim Chief Operating Officer by St. George’s University Hospitals NHS Foundation Trust. The trust informed me that in appointing her, “references were taken from Monitor, which had provided support for the Monitor FPPT process”. Monitor informed me: “The business referees put forward, from whom references had been sought and obtained, all held senior roles in the NHS trusts that Paula Vasco-Knight had recently worked for, including East Lancashire Hospitals NHS Trust”.

 

In October 2015 I made an FPPR referral on Paula Vasco-Knight to CQC, and received a curt acknowledgement which effectively said “Don’t call us, we’ll call you”. [19] But months passed and there was no call. I made an enquiry at the end of February 2016 about progress, which was acknowledged by CQC, but no still substantive response followed. In the meantime, on 25 April, St. Georges disclosed a letter from Mike Richards to the trust dated 16 February 2016, closing down the FPPR process on Paula Vasco-Knight. [20] As you can imagine, I was very concerned that CQC appeared to have avoided giving me a straight answer about what it had done, during which time St. George’s announced on 22 April that Ms Vasco-Knight had been promoted to interim Chief Executive. Clare Sardari, one of the South Devon whistleblowers wrote an open letter on 26 April to St. George’s governors, protesting the appointment of Paula Vasco-Knight to Chief Executive. [21]

The house of cards soon tumbled when on 3 May St. George’s announced that it had suspended her “…the acting chief executive of St George’s was suspended from her role on Friday because of serious allegations being made against her relating to a previous employment. Suspension is required in such circumstances but it is a neutral act….The allegations are financial in nature and relate to her work at a previous employer”. [22] On 20 May the Health Service Journal reported that CQC had indicated that it was looking into “whether St George’s had carried out its duty under the fit and proper person regulations” (CQC email 19 May). [23] 

I was therefore somewhat perplexed when St. Georges advised on 27 July that it had in fact terminated Paula Vasco-Knight’s agency contract on the day it suspended her – or it seems in plain English, sacked her. [24] Why then did St Georges continue to refer only to suspending her? On 5 May the trust reportedly stated: “As a result of serious allegations being made against her, Dr Paula Vasco-Knight has been suspended from her role as acting chief executive at St Georges University Hospitals NHS Foundation Trust”. [25] Why did CQC say it was looking into her appointment, in terms of compliance with FPPR, when it has in the past insisted that it can only apply FPPR to current directors? (I had specifically asked CQC in 2015 if it would run a disclosure and barring scheme for ex NHS directors who might return to the NHS, but CQC indicated that it had no intention or remit to do so).

So, did CQC claim on 19 May that it was conducting a review of FPPR in relation Paula Vasco-Knight’s appointment on 20 May, over 2 weeks after her contract with St George’s had been terminated, simply to spin an impression that CQC was doing “something”?

And why does CQC say one thing about the limit of its jurisdiction on FPPR, but then do the opposite?

The whiff of arbitrariness has not been dispelled, and is a most unfortunate quality in a regulator.

I hope Health Committee looks very closely at all this, and insists on more robust governance than the usual CQC “lessons NOT learned” internal review. Patients’ lives depend on competent, honest NHS management and regulation.

[1] Labour’s cover up on failing hospitals: Ministers tried to silence watchdog on eve of general election. Sophie Borland, Daily Mail, 3 October 2013

[2] https://twitter.com/alexander_minh/status/753197235333132288

[3] CQC guidance for providers on Regulation 5: Fit and Proper Person and Regulation 20: Duty of Candour, November 2014

http://www.cqc.org.uk/sites/default/files/20141120_doc_fppf_final_nhs_provider_guidance_v1-0.pdf

[4] CQC inspection report on Southport and Ormskirk NHS Trust, 13 May 2015

[5] 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, by Mazars December 2015

[6] https://twitter.com/sarasiobhan/status/612177823705513984

[7] Southern Health NHS Trust ‘paid millions’ to Katrina Percy’s associates, by Michael Buchanan, BBC 29 July 2016

[8] CQC response 9 June 2015 to FOI about FPPR referrals

http://twitdoc.com/view.asp?id=289176&sid=674O&ext=PDF&lcl=CQC-Response-FPPR-FOI-CQC-IAT-1516-0112.pdf&usr=alexander_minh

[9] Further CQC response 29 June 2015 to FOI about FPPR referrals

http://twitdoc.com/view.asp?id=289177&sid=674P&ext=PDF&lcl=CQC-Further-response-to-FOI-FPPR-CQC-IAT-1516-0112.pdf&usr=alexander_minh

[10] More than 60 managers have faced Fit and Proper complaints, Shaun Lintern Health Service Journal 29 June 2015

[11] Letter from David Behan 19 August 2015

http://twitdoc.com/view.asp?id=289178&sid=674Q&ext=PDF&lcl=CQC-Behan-no-appeal-against-FPPR-19-08-2015.pdf&usr=alexander_minh

[11] CQC to review whether fit and proper person rule “need to change”. Will Hazel, Health Service Journal, 24 May 2016

[12] CQC internal review report on CQC’s handling of patient safety risks in Homerton maternity services, 15 March 2016

http://twitdoc.com/view.asp?id=289194&sid=6756&ext=PDF&lcl=CQC-Homerton-review-CM031605-Item-5A-RGC-Report-to-March-Board-FINAL-Appendix-1.pdf&usr=alexander_minh

[14] Hansard record of parliamentary debate on the Liverpool Community Health NHS Trust scandal, a Capsticks report and NHS whistleblowing 13 July 2016

https://hansard.parliament.uk/commons/2016-07-13/debates/16071339000002/CapsticksReportAndNHSWhistleblowing

[15] Nurse turned Chief Executive resigns in wake of employment tribunal. Sarah Calkin, Nursing Times, 30 May 2014

[16] Ex Torbay hospital worker awarded £230,000 compensation over ‘nepotism’ row, Herald Express 19 July 2015

http://www.torquayheraldexpress.co.uk/ex-torbay-hospital-worker-awarded-230-000/story-27443632-detail/story.html

[17] Employment Tribunal Judgment Penny Gates and Clare Sardari v South Devon Healthcare NHS Foundation Trust and Torbay and Southern Devon Health and Care NHS Trust

https://www.dropbox.com/s/6ou0rl5i45xbd60/VascoKnight%20Tribunal%20judgment%20003-1.pdf?dl=0

[18] FOI disclosure 10 June 2016 by East Lancashire Hospitals NHS Trust

https://twitter.com/IanLex2/status/741201394355560448

[19] Email from CQC 27 October 2015

http://twitdoc.com/view.asp?id=289187&sid=674Z&ext=PDF&lcl=CQC-email-on-Vasco-Knight-FPPR-27-10-2015.pdf&usr=alexander_minh

[20] FPPR closure letter on Paula Vasco-Knight, from Mike Richards CQC Chief Inspector to St George’s

http://twitdoc.com/view.asp?id=267431&sid=5QCN&ext=PDF&lcl=Vasco-Knight-FPPR-closure-Letter-from-CQC-re-PVK-16-02-16.pdf&usr=alexander_minh

[21] Open letter 26 April 2016 by Clare Sardari South Devon whistleblower to St. George’s

https://twitter.com/sharmilaxx/status/731500214515847168

[22] Teaching trust loses second chief executive in two weeks. Shaun Lintern Health Service Journal 3 May 2016

[23] CQC looking into Vasco-Knight appointment. Will Hazel, Health Service Journal 20 May 2016

[24] FOI disclosure by St George’s 27 July 2016

http://twitdoc.com/view.asp?id=289190&sid=6752&ext=DOC&lcl=FOI-PVK-1617-200.doc&usr=alexander_minh

[25] Former Torbay Hospital Chief under financial investigation. HE Tina Crowson, Herald Express 5 May 2016

By Richard von Abendorff Patient Safety Campaigner and Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, originally published 1 September 2016

‘Just culture’ is a term for principles of respectful governance, with fair and proportionate accountability and a focus on learning. Politicians and senior NHS officials say they want just culture [1] but so far, it has been elusive in the NHS. Why so?

The literature often focuses on how just culture should apply to the NHS frontline and provider organisations, and less so on commissioners, watchdogs and politicians. [2] This distracts from the root causes of unjust culture.

In his statement of 6 February 2013 about the MidStaffs Public Inquiry, Robert Francis noted failure at all levels of the NHS:

“Regrettably there was a failure of the NHS system at every level to detect and take the action patients and the public were entitled to expect.” [3]

The Public Administration Select Committee noted last year that culture comes from the top:

“Throughout the past five years, the recurring theme of our findings and recommendations reflects the importance of effective leadership in creating effective organisations. Our work has shown that it is the positive or negative attitudes and behaviour in the people and the culture of an organisation which determines success or failure..….the same issues will keep arising until there is a comprehensive determination to address the attitudes and behaviour of all the most senior Ministers and officials.” [4]

The deficit of just culture in the NHS can be traced to the top. Numerous NHS inquiries into healthcare failures have shown the contribution of poor leadership by politicians and senior officials in creating a culture of fear and reputation management, and wilful blindness to harm and risk to patients.

The Department of Health suppressed 3 major reports on NHS culture and quality improvement in 2008, which were critical of the Department’s leadership of the NHS. [5] [6] [7] They were not released until 2010, and only via a Freedom of Information request. It appears that the Department of Health did not wish to reveal findings that:

• The NHS had a culture of “fear and compliance” and “shame and blame”

• Managers in the NHS “look up, not out” (that is, NHS managers manage to please those above in the hierarchy, as opposed to prioritising the interests of patients and families)

• Patients and families were not central to those at the top of the NHS, and were little mentioned – “We were struck by the virtual absence of the mention of patients and families”

• That there was “an absence of an improvement imperative within the Department of Health and the NHS”

At the Midstaffs Public Inquiry, evidence was given by several senior officials about negative political interference in the NHS, and a driving imperative not to “embarrass the Minister”. [8]

In another matter, a leaked email by a civil servant revealed collusive practices to prevent a whistleblower, Raj Mattu, from gaining access to a Minister. [9] Similar ruses to ensure political deniability are common and continue. NHS whistleblowers often appeal to the Secretary of State and Department of Health as a final port of call when they have exhausted attempts to raise safety concerns with regulators. However, the typical response of the Department of Health is to dismissively claim that it does not get involved in ‘employment issues’ and to refer anxious and frustrated whistleblowers back to the regulators who have failed them.

Similar stonewalling is experienced by NHS complainants, despite official lip service to the immense value of feedback provided by complainants. Years of repeated reports about failure of NHS complaints governance have not resulted in improvement, and the number of complaints has actually increased. [10] Families find out time and again that loved ones died or suffered preventable harm because the NHS failed to properly learn from previous incidents or to mitigate known risks, and sometimes families do not get answers at all.

Complainants and whistleblowers alike are often badly mistreated if they raise concerns about NHS failure. [11] Politicians have decades of evidence of such malpractice, but it has never been effectively discouraged. The truth is that the NHS is not allowed to learn, because of the political pressure to suppress matters that may embarrass Ministers, and to avoid exposure of the fact that the NHS has long been under-funded. Indeed, there is evidence that wide-spread gagging of NHS staff continues despite headlines in 2013 that Jeremy Hunt supposedly banned gags. He did not. He simply asked NHS trusts to do better, but omitted to ensure effective oversight. [12]

Just culture requires that politicians and senior officials should also be held accountable for care failures that arise from poor stewardship of the NHS, and systemic failings. Staff struggling in a seriously underfunded, understaffed service that is in perpetual crisis can be expected to make mistakes. Politicians and senior officials who produce policy that makes unrealistic and unachievable demands, and creates oppressive and exploitative working conditions for NHS staff are guilty of disrespect. Such tensions have been highlighted by the junior doctors contract row. However, as Lucian Leape et al have noted, this form of disrespect is often normalised in health services. [13][14] When disrespect is evident, or justice is not seen to be done, this will naturally intimidate staff and deter them from speaking up.

Severe NHS cuts of all forms continue despite the obvious safety concerns of the workforce. Senior establishment figures in the Health community are united in voicing increasingly urgent concerns about NHS under-funding. [15] [16] Yet key recommendations of the MidStaffs Public Inquiry are being jettisoned one by one. Jeremy Hunt has made much of ‘intelligent transparency’ and has said that he wanted the CQC to be ‘chief whistleblower’. However, CQC’s inspection reports present safety data in an inconsistent and incomplete way, which makes it hard to track the effects of government policy on patient safety. [17] [18] CQC has also been criticised for failing to regulate the Duty of Candour properly. [19] Moreover, CQC has failed woefully on implementing Regulation 5 Fit and Proper Persons. [20] [21] Not one manager whose fitness to lead has been seriously called into question has been removed by CQC. NHS England asked NICE to stop its safe staffing work, and NHS Improvement has been criticised for dismantling NICE’s previous work on safe staffing. [22] [23] NHS Improvement has castigated trusts for spending on staffing, even where trusts were responding to CQC requirements to increase staffing levels to safeguard patient care. [24] Waiting time standards have also effectively been cast off. [25] [26] [27] Most recently, the leak of a DH risk assessment raised questions of whether the Secretary of State had unsafely ploughed on with the 7 day NHS initiative, despite even the concerns of his own officials. [28] Since the leak, the DH has not produced evidence that it has any means of mitigating the risks identified by civil servants. The Chair of Health Committee entered the fray with strongly worded criticism:

“Cannot keep piling ever greater responsibilities onto an overstretched service without realistic resource and workforce to cope”.

“Expect problems when thin evidence is used to bolster an under resourced political objective instead of policy following the evidence.” [29]

In just culture, accountability is acknowledged as an important part of creating psychological safety, and recklessness is considered a matter for sanction. The following are listed by Stedman as blameworthy acts that merit sanction:

• Reckless behaviour
• Disruptive behaviour
• Working significantly outside your capability
• Disrespectful behaviour
• Knowingly violating standards
• Failure to learn over time
• Failure to work as a team
• Covering up [30]

How then do the Secretary of State, the Department of Health and the Department of Health’s arms length bodies measure up against this sort of ruler? We contend that they do not measure up at all well, based on the evidence.

After the publication of the MidStaffs Public Inquiry, Jeremy Hunt wrote to NHS providers to say that he wanted lasting change to create a more open, compassionate and safer NHS, and not just “short term noise”. [31] But it seems from the escalating stream of news about NHS staff shortages, increasing rationing, service closures and repetition of the same clinical failures that although Mr Hunt loudly banged the patient safety drum, patients have in reality not been protected.

Professor Brian Jarman rightly described the NHS as a denial machine. [32] It remains so. Until there is mature political leadership of the NHS, based on evidence, diligent governance and just culture as opposed to hot air about just culture, this will continue.

References

[1] From a blame culture to a learning culture. Speech by Jeremy Hunt, 10 March 2016

https://www.gov.uk/government/speeches/from-a-blame-culture-to-a-learning-culture

[2] The NHS must move from ‘no blame’ to a ‘just culture’. James Titcombe Health Service Journal 8 August 2016

https://www.hsj.co.uk/sectors/acute-care/the-nhs-must-move-from-no-blame-to-a-just-culture/7009823.article

[3] Statement by Robert Francis about the Mid Staffordshire Public Inquiry 6 February 2013

[4] Our work in the 2010-2015 parliament. Seventh report of session 2014-2015. Public Accounts Committee, 28 March 2015

http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpubadm/1152/1152.pdf

[5] When managers rule Patients may suffer, and they’re the ones who matter. Prof Brian Jarman BMJ 19 December 2012 BMJ 2012;345:e8239

https://twitter.com/Jarmann/status/551119690530324481

[6] Achieving the Vision of Excellence in Quality. Recommendations for the English system of quality improvement. Institute of Health Improvement. 2008

https://www.dropbox.com/s/xpd95hwd3jmbw2s/IHI%20report%20achieving%20the%20vision%20of%20excellence%20in%20quality.pdf?dl=0

[7] Quality Oversight in England – Findings, Observations and Recommendations for a New Model. Joint Commission International 2008

https://www.dropbox.com/home?preview=JCI+report+Quality+oversight+in+England.pdf

[8] Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry, February 2013

[9] Bid to block whistleblower’s access to ministers. Civil Service World 14 May 2014

http://www.civilserviceworld.com/articles/news/bid-block-whistleblower%E2%80%99s-access-ministers

[10] Data on Written Complaints in the NHS 2014-15. HSCIC 26 August 2015.

[11] Complaints and Raising Concerns. Health Committee. Fourth report of session 2014-2015. 21 January 2015.

http://www.publications.parliament.uk/pa/cm201415/cmselect/cmhealth/350/350.pdf

[12] Letter by Jeremy Hunt to NHS trusts about ensuring open culture 2013

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217036/open-culture-letter.pdf

[13] Perspective: a culture of respect, part 1: the nature and causes of disrespectful behavior by physicians. Lucian Leape at al Academic Medicine Vol.87, No 7/ July 2012

[14] Perspective: A Culture of Respect, Part 2: Creating a Culture of Respect Lucian Leape et al Academic Medicine, Vol. 87, No. 7 / July 2012

[15] Deficits in the NHS 2016. Kings Fund July 2016

Click to access Deficits_in_the_NHS_Kings_Fund_July_2016_1.pdf

[16] Feeling the crunch. NHS finances to 2020. Nuffield Trust August 2016

Click to access feeling_the_crunch_nhs_finances_to_2020_web_correction.pdf

[17] How safe are NHS patients in private Hosptals. Leys & Toft Centre for Health and the Public interest December 2015

https://chpi.org.uk/wp-content/uploads/2015/12/CHPI-PatientSafety-Dec15.pdf

[18] CQC Deaths Review. All Fur Coat. Minh Alexander 13 August 2016

https://twitter.com/alexander_minh/status/764499517953740800

[19] Regulating the duty of candour A report by Action against Medical Accidents on CQC inspection reports and regulation of the duty of candour Hannah Blythe August 2016

https://www.avma.org.uk/?download_protected_attachment=Regulating-the-duty-of-candour.pdf

[20] CQC’s Fit and Proper Parade. Minh Alexander 29 July 2016

https://twitter.com/alexander_minh/status/759104742815633408

[21] CQC to review whether fit and proper person rule needs to change. Will Hazel Health Service Journal 24 May 2016

[22] NHS England asks NICE to suspend safe staffing programme. NICE statement 4 June 2015

https://www.nice.org.uk/news/article/nhs-england-asks-nice-to-suspend-safe-staffing-programme

[23] NHS Improvement accused of ‘dismantling’ NICE safe staffing work. Shaun Lintern Health Service Journal 14 June 2016

[24] Third of ‘excess pay growth’ trusts were told by CQC to improve staffing.

Sharon Brennan Health Service Journal. 12 August 2016.

[25] Hospitals given green light to miss waiting time targets, Nick Triggle BBC 21 July 2016

http://www.bbc.co.uk/news/health-36854557

[26] NHS Indicators, July 2016. House of Commons briefing paper, Number 7281 6 July 2016

[27] Feeling the wait. Patients Association Annual Report on Elective Surgery Waiting times. August 2016

http://www.patients-association.org.uk/wp-content/uploads/2016/08/Waiting-Times-Report-2016-Feeling-the-wait-The-Patients-Association.pdf

[28] Secret documents reveal official concerns over ‘seven-day NHS’ plans.

Denis Campbell. Guardian 22 August 2016

https://www.theguardian.com/society/2016/aug/22/secret-documents-reveal-official-concerns-over-seven-day-nhs-plans

[29] Tweets 23 August 2016 by Dr Sarah Wollaston MP and Chair of House of Commons Health Committee

[30] Blameworthy acts in a blame free safety culture. Roger Stedman November 2012

http://rogerstedman.com/wp/blameworthy-acts-in-a-blame-free-safety-culture/

[31] Letter to trusts by Jeremy Hunt about Mid Staffordshire Public Inquiry 2013.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217034/jeremy-hunt-mid-staffs-public-inquiry-letter.pdf

[32] Labour’s ‘denial machine’ over hospital death rates. Telegraph 14 July 2013

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

 

 

 

 

 

 

 

 

 

 

 

 

From: Minh Alexander <minhalexander@aol.com>

Subject: National Clinical Assessment Service (NCAS) , NHS whistleblowers & BME staff

Date: 22 September 2016 at 14:16:04 BST

To: Vicky Voller <vicky.voller@ncas.nhs.uk>

Cc: helen.vernon@nhsla.com, Sir Anthony Hooper <AnthonyHooper@matrixlaw.co.uk>, rfrancis@serjeantsinn.com, mb-sofs@dh.gsi.gov.uk, Edward Jones <edward.jones@dh.gsi.gov.uk>, sheyda.m.azar@parliament.uk, Health Committee <healthcom@parliament.uk>, sarah.wollaston.mp@parliament.uk, philippa.whitford.mp@parliament.uk, paula.sherriff.mp@parliament.uk, julie.cooper.mp@parliament.uk, james.davies.mp@parliament.uk, andrea.jenkyns.mp@parliament.uk, andrew.percy.mp@parliament.uk, maggie.throup.mp@parliament.uk, bradshawb@parliament.uk, media@equalityhumanrights.com, “CE England (NHS ENGLAND)” <england.ce@nhs.net>, england.contactus@nhs.net, contactholmember@parliament.uk, bottomleyp@parliament.uk, ***** ***** <********************>, *** ***** <*******************>, ***** ********** <****************************>, admin@bapio.co.uk, bida@btconnect.com

To Ms Vicky Voller, Director of National Clinical Assessment Service, 22 September 2016

Dear Vicky,

NCAS’ approach to whistleblowers and BME staff

I wrote to you a year ago – see the correspondence below which summed up a meeting that I and other whistleblowers had with you and colleagues on 22 September 2015.

You kindly indicated that NCAS would contact us again and involve whistleblowers in its training activities, but I have not heard from NCAS.

I continue to hear from medical whistleblowers who report being intimidated with disciplinary action, and actual and implied threats that fault will be found with their performance, following raising concerns.

I would be grateful if you could let me know whether NCAS will involve whistleblowers in its training programme as you suggested previously.

I would also be grateful to hear if NCAS has completed the work that it said would be undertaken to routinely identify whistleblower cases, in order to ensure that whistleblowers do not suffer detriment. If so, I would be grateful if the details could be shared, and to see any new NCAS written protocol/ guidance on how whistleblower cases should be managed. I note from NCAS’ FOI response that it is in discussion with the Department of Health about work to ensure fair and consistent process, so that referred doctors (including whistleblowers) do not suffer inequality and detriment. It would be very helpful to hear more about this as well.

I need to raise an additional issue, about NCAS’ Equality and Diversity practice. I see from FOI data (attached) that NCAS’ data on referred doctors’ ethnicity is seriously incomplete – NCAS is unable to give the ethnicity of almost half the doctors who are referred. This must surely make it impossible for NCAS to fulfil its legal duty to monitor whether it is treating BME doctors equally and fairly. This is a major concern given that the data that is available shows grossly more non-white doctors are referred to NCAS. Please see the summary table below that I have prepared from the data that NCAS has provided. I am particularly concerned that NCAS informs me that it has no improvement/ action plan for ensuring a better level of ethnicity recording.

DEMOGRAPHICS OF DOCTORS REFERRED TO NCAS IN FINANCIAL YEAR

2015/2016

Source: NCAS 20 September 2016

	White doctors	Non-White doctors	Doctors whose ethnicity was not known or recorded
Female	58	58	79
Male	162	206	287
Gender not known or recorded	1	2	32
Total	221 (25%)	266 (30%)	398 (45%)

Therefore:

• Of the cases in which ethnicity is known, grossly disproportionately more non-white doctors are referred to NCAS (266 non-whites : 221 whites)

• NCAS cannot produce ethnicity data for 45% (398 of 885) of referred doctors

As I think has been pointed out previously, and as evidenced by the Freedom to Speak Up Review, BME doctors are more likely to be mistreated if they whistleblow.

Moreover, I am concerned that NCAS appears to concede by omission, in its FOI response, that it has not undertaken any review of its Diversity and Equality practice in the last two years.

I would therefore also be grateful to know if NCAS will re-visit these issues, and formally review the way in which it treats BME doctors and their experience of NCAS’ process, and ensure a much better level of ethnicity recording from now on.

With best wishes,

Minh

Dr Minh Alexander

cc Helen Vernon Chief Executive NHSLA

Rt Hon Sir Anthony Hooper

Sir Robert Francis QC

Secretary of State for Health

Shadow Secretary of State for Health

House of Commons Health Committee

Equality and Human Rights Commission

Simon Stevens Chief executive NHS England

Lord Adebowale NED NHS England

Lord Prior Minister of NHS Productivity

Sir Peter Bottomley

Dr Kevin Beatt

Dr Raj Mattu

Dr Peter Wilmshurst

BAPIO

BIDA

FOI DISCLOSURE BY NHSLA ON BEHALF OF NCAS, 21 SEPTEMBER 2016

 

From: FOI foi@nhsla.com

Subject: Freedom of Information Request – F/2761

Date: 21 September 2016 at 17:19

To: Minh Alexander minhalexander@aol.com

Dear Dr Alexander

I write in relation to your email of 24 August 2016 in which you have requested information from the National Clinical Assessment Service (NCAS). Your request has been considered under the Freedom of Information Act 2000. Please find below the response to your request.

NCAS’ handling of Equality and Diversity matters

Please advise for financial year 2015/2016:

• How many doctors were referred to NCAS?

In the financial year 2015/16, NCAS received 885 requests for advice in relation to

individual doctors.

2) What is the gender and ethnicity breakdown of these referred doctors?

The following utilises the datasets against which NCAS records ethnicity information

in relation to individual doctors:

3) In 2015/2016 how many doctors underwent Full NCAS performance assessment,

Assessment of behavioural concerns and Assessment of health?

NCAS completed 15 full performance assessment reports in the financial year

2015/16. NCAS completed 3 assessments of behavioural concerns reports in the financial year 2015/16. NCAS did not undertake any standalone occupational health assessments in the financial year 2015/16.

4) What is the gender and ethnicity breakdown of these doctors who in 2015/2016

underwent Full NCAS performance assessment, Assessment of behavioural concerns

and assessment of health?

Drawing from the data collected at the point of referral i.e. at the time NCAS is first

contacted, the gender and ethnicity breakdown of doctors who underwent

assessment in the financial year 2015/2016 was as follows:

Full performance assessments

Assessment of behavioural concerns

Occupational health assessment only

NCAS did not undertake any assessment of occupational health only assessments in the financial year 2016/16.

5) In the last 2 years, has NCAS undertaken any review of its Equality and Diversity practice in relation to referred doctors, and has NCAS reviewed BME doctors’ experience of NCAS’ processes?

NCAS recognises the importance of observing the equality and diversity issueswhich may impact on our handling of cases. All staff within NCAS are required to undertake mandatory equality and diversity training. This has been supplemented by a programme for advisers and other senior NCAS staff on the Language of Cultural Diversity held in June 2016 and focused on the impact of culture on communication. In addition, we are considering how we can ensure there is a rolling programme of diversity skills development and awareness for staff.

As part of our Case Investigator national educational programme we are currentlyrevising some of the material which will include ensuring there is clear guidance on the raising of concerns under whistleblowing procedures. We have been in discussion with the Department of Health in regard to the development of a more consistent approach procedurally to performance management to work towards reducing any potential for inequality and also any detriment experienced by whistleblowers.

Other than the routine data collected for practitioners (highlighted in 2 and 4 above)the specific experience of BME doctors has not been reviewed. However, NCAS is  being proactive in keeping up to date with research and good practice regarding potential sources of bias (including unconscious bias) and will include training in thisarea for assessors.

If so, please disclose the relevant reports from these reviews.

N/A

6) Does NCAS have a standard for the completeness of its data on the ethnicity of doctors who are referred? (For example, such as a minimum percentage of cases whereethnicity is not recorded or recorded as “unknown”).

Whilst there is not a specific percentage threshold for recording ethnicity, as part of our routine casework processes for each case we request information about the ethnicity of individual doctors about whom the employer or contracting body is seeking our advice. This information will be recorded if it is held by the employing or contracting body and they are able to supply it to NCAS.

7) If NCAS has an action plan/ improvement plan for ensuring a good level of recording of doctors’ ethnicity, please disclose this.

There is no action plan/improvement plan currently in place. Our response to question six above provides information about how NCAS collects data regarding ethnicity of individual doctors about whom the employer or contracting body is seeking our advice.

This concludes the response to your request. If you are not satisfied with the service that you have received in response to your information request, it is open to you to make a complaint and request a formal review of our decisions. If you choose to do this, you should write to Tinku Mitra, Head of Governance for the NHS LA, within 28 days of your receipt of this reply. Reviews of decisions made in relation to information requests are carried out by a person who was not involved in the

original decision-making about the request. If you are not content with the outcome of your complaint, you may apply directly to the Information Commissioner for a review of the decision by her. Generally, the Information Commissioner will not make a decision unless you have exhausted the local complaints procedure. The address of the Information Commissioner’s Office is:

Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.

Kind regards,

Joe Stock | Information Access Manager | Corporate Governance Team

NHS Litigation Authority (NHS LA

 

 

From: Minh Alexander <minhalexander@aol.com>

Subject: Settlement agreements and use of “super-gags” by NHS bodies

Date: 23 September 2016 at 11:46:24 BST

To: Health Committee <healthcom@parliament.uk>, sarah.wollaston.mp@parliament.uk, philippa.whitford.mp@parliament.uk, maggie.throup.mp@parliament.uk, andrew.percy.mp@parliament.uk, james.davies.mp@parliament.uk, andrea.jenkyns.mp@parliament.uk, paula.sherriff.mp@parliament.uk, bradshawb@parliament.uk, julie.cooper.mp@parliament.uk, emma.reynolds.mp@parliament.uk, pubaccom@parliament.uk, meghilliermp@parliament.uk, pacac@parliament.uk, Bernard Jenkin <bernard.jenkin.mp@parliament.uk>, amyas.morse@nao.gsi.gov.uk, mb-sofs@dh.gsi.gov.uk, Edward Jones <edward.jones@dh.gsi.gov.uk>, sheyda.m.azar@parliament.uk, bottomleyp@parliament.uk

 

To House of Commons Health Committee, 23 September 2016

 

Dear Dr Wollaston and colleagues,

 

Settlement agreements and use of “super-gags” by NHS bodies

 

I wrote to you in February to ask whether firmer action should be taken to deter the inappropriate and excessive use of confidentiality clauses in NHS settlement agreements, which is still obviously prevalent.

 

I now inform you that there is no evidence that CQC inspects NHS bodies’ use of settlement agreements despite its various claims that it does so, when “necessary” or if warned.

 

My findings are summarised in a paper which I have published here:

 

https://minhalexander.com/2016/09/23/nhs-gagging-how-cqc-sits-on-its-hands-2/

 

I have already informed Public Accounts Committee of my findings, with respect to PAC’s previous recommendations on tracking public sector settlement agreements, upon which the NHS has clearly not properly acted.

 

I would be grateful to hear from Health Committee on how it is minded to respond to this additional evidence of NHS inaction on transparency and whistleblower protection.

 

Many thanks.

 

Yours sincerely,

 

Dr Minh Alexander

 

cc Chairs of PAC and PACAC

Sir Amyas Morse Comptroller and Auditor General NAO

Secretary of State for Health

Shadow Secretary of State for Health

Sir Peter Bottomley MP

 

 

 

From: Minh Alexander <minhalexander@aol.com>

Subject: Settlement agreements and “super-gags” by NHS bodies

Date: 15 February 2016 at 12:21:50 GMT

To: Health Committee <healthcom@parliament.uk>, sarah.wollaston.mp@parliament.uk, philippa.whitford.mp@parliament.uk, maggie.throup.mp@parliament.uk, andrew.percy.mp@parliament.uk, james.davies.mp@parliament.uk, andrea.jenkyns.mp@parliament.uk, paula.sherriff.mp@parliament.uk, bradshawb@parliament.uk, julie.cooper.mp@parliament.uk, emma.reynolds.mp@parliament.uk

Cc: pubaccom@parliament.uk, meghilliermp@parliament.uk, richardbaconmp@parliament.uk, harriett.baldwin.mp@parliament.uk, deidre.brock.mp@parliament.uk, kevin.foster.mp@parliament.uk, stewart.jackson.mp@parliament.uk, nigel.mills.mp@parliament.uk, caroline.flint.mp@parliament.uk, chris.evans.mp@parliament.uk, bridget.phillipson.mp@parliament.uk, david.mowat.mp@parliament.uk, stephen.phillips.mp@parliament.uk, pughj@parliament.uk, karin.smyth.mp@parliament.uk, annemarie.trevelyan.mp@parliament.uk, Bernard Jenkin <bernard.jenkin.mp@parliament.uk>, pacac@parliament.uk, ronnie.cowan.mp@parliament.uk, oliver.dowden.mp@parliament.uk, paulflynnmp@talk21.com, cheryl.gillan.mp@parliament.uk, hoeyk@parliament.uk, hopkinsk@parliament.uk, jonesdi@parliament.uk, gerald.jones.mp@parliament.uk, tom.tugendhat.mp@parliament.uk, mail@islandmp.org, AnthonyHooper@matrixlaw.co.uk, rfrancis@serjeantsinn.com

 

To Health Committee 15 February 2016

 

Dear Dr Wollaston and fellow committee members

 

Settlement agreements and “super-gags” by NHS bodies

 

The NHS’ use of settlements has been criticised to various degrees, for inappropriate secrecy and possible concealment of governance failures.It is generally accepted, including by Sir Robert Francis, that even where settlement agreements are strictly speaking legal (and contain clarification that a worker’s rights to make public interest disclosures are unfettered), they can still be constructed in such draconian terms and language that they still serve to intimidate and effectively silence staff. In particular, Sir Robert criticised the use of “super-gags”, which prevent parties from even disclosing the existence of agreements:

 

“…I have seen some which seem unnecessarily draconian or restrictive, for example, banning signatories from disclosing the existence of a settlement agreement.”

 

“…The excessive use of confidentiality clauses of any type in settlement agreements is a hindrance to transparency”

 

“…It is also clear that there is an atmosphere of fear and confusion surrounding the obligations of confidentiality in such agreements so as to make them a deterrent against public interest disclosures even where they do not have that effect in law.”

 

Such were the extent of Sir Robert’s concerns about current handling of NHS settlements that he suggested that the National Guardian should perhaps have responsibility for reviewing proposed settlements that require Treasury approval:

 

“NHS TDA and Monitor should consider whether their role of reviewing such agreements should be delegated to the Independent National Officer” 

 

I can see no public interest argument for any use of “super-gags”. However, they appear to have been used extensively in the NHS. Of significance, the former trusts of the new CQC Chair and the new CEO of NHS Improvement have both confirmed substantial use of such confidentiality clauses: 22 and 45 “super-gags” respectively, in the last 5 years. I attach the relevant FOI disclosures by these trusts.

 

I wonder if more robust, enforceable requirements need to be issued to make it clear that the NHS (and indeed other public bodies) should not use intimidating albeit legal settlement agreements, and in particular that all use of “super-gags” should cease.

 

Yours sincerely,

Dr Minh Alexander

 

cc Rt Hon Sir Anthony Hooper

Sir Robert Francis

Public Administration and Constitutional Affairs Committee

Public Accounts Committee

Dame Eileen Sills

 

 

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 22 September 2016

At a time when there are harsh cuts that affect patient safety, NHS staff need more than ever to be able to speak up without fear of reprisal, the health watchdog Care Quality Commission (CQC) is not doing enough to prevent cover-ups. This is partly due to failure to deter the inappropriate use of compromise agreements by regulated bodies. The CQC has claimed that it would inspect providers’ use of compromise agreements if “necessary”, but a review of almost 200 current CQC inspection reports on NHS trusts reveals no evidence whatsoever that it has done so.

Compromise (settlement) agreements are legal contracts that NHS organisations use to define how staff employment is terminated. Some of these agreements are benign, but some are used to cover up failure. Employers may seek to improperly gag themselves and departing employees who have under-performed or have been party to wrong-doing. Alternatively, employers may also use compromise agreements to silence whistleblowers. Gags can take the form of confidentiality clauses that make the existence or contents of agreements secret, or non-disparagement clauses that prevent the signatories from criticising each other.

There has been longstanding concern about the inappropriate use of compromise agreements in the public sector, including the NHS. Public Accounts Committee has made recommendations on improving practice but the government has watered them down. [1] [2] [3] [4] [5] [6]

Infamously, it was revealed that CQC gagged its own staff. [7] [8] [9]. The journalist Andrew Bousefield wrote: “A highly placed source in the CQC told Medical Harm he “had never before or since seen the number of people signing gagging orders” as they left the organisation.” This included a non-disparagement clause in the case of Dr Heather Wood, respected lead investigator of the team that uncovered failures at Mid Staffs. CQC later dismantled the investigation team. [10]

The non-disparagement clause in Dr Heather Wood’s case was quoted verbatim in the Mid Staffs Public Inquiry report [11]. Robert Francis criticised the CQC thus:

“…the agreement had a “chilling effect” inimical to the public interest and inconsistent with the role of the CQC as a regulator in a sector in which the public have a distinct right to know about concerns affecting their health and well-being”

Compromise agreements that seek to prevent signatories from making disclosures in the public interest (whistleblowing) are in fact illegal. Since 2013 when Robert Francis recommended that gagging in the NHS should be abolished [12], the NHS has worked around this problem of illegality by simply sticking an additional clause into compromise agreements – that still contain gags – which basically says “…but you can still whistleblow”. This just creates confusion and anxiety for staff who are subject to intimidating compromise agreements with gags. How would a lay person with no legal expertise know exactly what they could safely disclose ‘in the public interest’ without breaching such an agreement? Such matters are often subject to legal argument and ultimately require determination by a Tribunal. So how could the ordinary person in the street feel sure about what they can say and whether they will be legally protected if they do?

Press headlines in 2013 reported that Jeremy Hunt had banned gags in the NHS, but this was not so. He simply wrote an ineffectual letter to trusts asking them to do better. [13] The gagging continued and in 2014 the journalist Andrew Bousefield submitted evidence to the Freedom to Speak Up Review on NHS whistleblowing, which included:“64 blacked out compromise agreements in which the gagging clause is easily visible.” [14]

In his report of the Freedom to Speak Up Review, Robert Francis commented on how even legal compromise agreements can be intimidating if they are written in legalistic language and contain “draconian” and “restrictive” clauses that require secrecy of one sort or another. He described a “chilling” effect and concluded that some of the clauses he examined during the review were excessively restrictive. He singled out the use of gags that make the existence of compromise agreements secret (‘super-gags’) as particularly harsh. [15] Indeed, there are whistleblowers who were subject to technically legal compromise agreements but decided not to risk submitting evidence to the Freedom to Speak Up Review, because their agreements contained gags. Arising from his findings, Robert Francis recommended:

 

• NHS Chief Executives should take personal responsibility for checking that all compromise agreements are not unduly restrictive

 

• The CQC should review trusts’ compromise agreements as part of their inspection process when assessing whether trusts were “well-led”

 

Through various exchanges of correspondence, I asked CQC how it was implementing the latter. Worryingly, CQC replied that it had no specific, structured methodology for checking compromise agreements and that it did not intend to check such compromise agreements routinely. It also claimed that it would check where “necessary”, but did not explain how it would determine necessity. [16] Most recently David Behan, CQC Chief Executive, claimed in a letter of 16 September 2016, which I have seen, that if compromise agreements are raised with CQC as an issue, CQC inspectors would “pursue this as part of the inspection”. [17]

To assess how often the CQC deemed it “necessary” to review trusts’ compromise agreements, all the current new style inspection reports were searched for evidence that the CQC had checked and reported on trusts’ use of compromise agreements. Of 199 inspection reports, there was no evidence that CQC had scrutinised any compromise agreements for inappropriate application or clauses. And yet most of these inspection reports – 163 (82%) – were issued after Robert Francis recommended that CQC should review trusts’ compromise agreements. [17] This is astonishing, especially given that ongoing Freedom of Information work shows that the use of secrecy and non-disparagement clauses remains widespread in the NHS. Trusts have quite often told me that they use gags as “standard”, which suggests that the recommendations of Public Accounts Committee and the Freedom To Speak Up Review have been ignored. I have informed Public Accounts Committee of this lack of evidence that CQC checks compromise agreements. [18]

The above finding from CQC’s inspection reports means that there was no evidence that CQC checked the use of compromise agreements even in trusts with well-known whistleblower issues, recent whistleblowing alerts on CQC’s system of “intelligent monitoring” and or high levels of bullying and other poor scores on the NHS staff survey.

At Mersey Care NHS Foundation trust, which has received negative publicity through coroners’ inquests and has revealed the highest number of compromise agreements so far (443 over 5 years, all with super-gags), the CQC inspection report said nothing at all about compromise agreements. [19] [20] Mr Behan’s recent claim that if warned, CQC would pursue compromise agreements as part of inspections also does not seem to hold water. At Sheffield Teaching Hospitals NHS Foundation trust where there have been over seven whistleblowers and 22 external whistleblowing disclosures to CQC in 3 years, [21] CQC was warned by whistleblowers that there had been 228 compromise agreements over 5 years. However, CQC’s recent inspection report was silent about these 228 compromise agreements. [22]

At trusts recently found to be ‘Inadequate’, CQC did not seem to think it was necessary to check for inappropriate gagging.

There was no mention of compromise agreements in CQC’s latest inspection report on the London Ambulance Service (bullying and poor staff survey, staff fear of raising issues in case of “repercussions”, and whistleblower cases). [23] [24] [25] Similarly, there was no mention of compromise agreements in the latest CQC inspection report issued only last month, about Colchester (bullying and poor staff survey results, whistleblower cases, whistleblowing alerts on CQC’s intelligent monitoring). [26] [27] [28]

At a time when the NHS is in so much turmoil, it is of great concern that the lead regulator is not making any visible effort to protect staff’s freedom to speak up by challenging trusts about their use of gags. Also of concern, the Department of Health sees no need for change. When the Department is questioned about the lack of effective reform since Jeremy Hunt’s promises in 2013 to reduce the use of NHS gags, it just insists that trusts have been given sufficient guidance on ensuring that their compromise agreements are legal. Lord Prior recently wrote in the Health Service journal that the government is intent on driving NHS improvement through Mr Hunt’s famous ‘intelligent transparency’, but this is frankly just hot air.

Almost exactly four years ago the Serious Case Review on institutional abuse at Winterbourne View concluded that the CQC failed whistleblowers and was incapable of detecting serious care failings. [29] The fact that the CQC still resists examining key information which could reveal whether whistleblowers have been gagged raises a question of whether NHS silence is strategic and engineered.

 

References

[1] Confidentiality Clauses and Special Severance Payments. House of Commons Public Accounts Committee. Thirty-sixth Report of Session 2013–14, 24 January 2014

http://www.publications.parliament.uk/pa/cm201314/cmselect/cmpubacc/477/477.pdf

[2] Treasury Minutes. Government responses on the Thirty Fifth to

the Forty Fifth Reports from the Committee of Public Accounts: Session 2013-14. April 2014.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/302527/39796_Cm_8847_Print_Ready.pdf

[2] Briefing for Stephen Barclay MP, Public Accounts Committee

Gagging clauses in the NHS, Public Concern at Work, 12 December 2011

[3] £14m bill for gagging axed officials. Steven Swinford, Telegraph 3 April 2014

http://www.telegraph.co.uk/news/9967901/14m-bill-for-gagging-axed-public-officials.html

[4] Councils use gagging orders in most staff settlements, finds investigation. Guardian 3 April 2016

https://www.theguardian.com/uk-news/2016/apr/03/councils-gagging-orders-most-staff-settlements-bbc-radio-5-live-investigates

[5] Whistleblowing and gagging clauses. House of Commons briefing paper, Number CBP 7442, 4 January 2016

[6] Shoot the Messenger. Dr Phil Hammond and Andrew Bousefield, Private Eye 2011

http://drphilhammond.com/blog/wp-content/uploads/2011/11/Shoot_the_Mesenger_FINAL.pdf

[7] Cynthia: Goodbye Then. Andrew Bousefield , Medical Harm 19 March 2012

http://medicalharm.org/uncategorized/cynthia-goodbye-then/

[8] Health regulator ‘gagged own staff against speaking of failures’. Rebecca Smith, Telegraph, 30 March 2012

http://www.telegraph.co.uk/news/health/news/9170951/Health-regulator-gagged-own-staff-against-speaking-of-failures.html

[9] Care Quality Commission puts gagging orders on six employees

Rajeev Syal, Guardian 24 January 2012

https://www.theguardian.com/society/2012/jan/24/care-quality-commission-gagging-orders

[10] Stafford Hospital Investigator berates CQC regulator John Carvel Guardian, 1 May 2012

https://www.theguardian.com/society/2012/may/01/stafford-hospital-investigator-berates-cqc-regulator

[11] Report of the Public Inquiry into Mid Staffordshire NHS Foundation Trust:

“Non-disparagement” and “gagging” clauses

11.229 Some witnesses to the Inquiry who were former employees of the CQC required a direction to give evidence because of their fears about the effect of a clause in compromise agreements relating to the terms of their departure. Ms Bower told the Inquiry she had been advised that such terms were entirely standard. The Inquiry obtained copies of the CQC’s standard clause as inserted in Dr Heather Wood’s agreement:

That Dr Wood will not at any time hereafter make or repeat any statement which disparages or is intended to disparage the goodwill or reputation of the CQC, or any specified person and the CQC will use reasonable endeavours to ensure that no senior manager, tier 3 or above, with whom Dr Wood had direct dealings with her employment with the CQC, nor any specified person involved in the correspondence process surrounding the termination of Dr Wood’s employment will make or repeat any statement which disparage or are intended to disparage the goodwill or reputation of Dr Wood.” 

http://webarchive.nationalarchives.gov.uk/20150407084003/http://www.midstaffspublicinquiry.com/sites/default/files/report/Volume%202.pdf

[12] Robert Francis recommendation 179 of the Mid Staffs Public Inquiry report:

“179 Restrictive contractual clauses  

“Gagging clauses” or non disparagement clauses should be prohibited in the policies and contracts of all healthcare organisations, regulators and commissioners; insofar as they seek, or appear, to limit bona fide disclosure in relation to public interest issues of patient safety and care.”

[13] Letter by Jeremy Hunt to NHS trusts March 2013

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217036/open-culture-letter.pdf

[14] Submission by Andrew Bousefield to Freedom to Speak Up Review 10 September 2014

http://twitdoc.com/view.asp?id=298255&sid=6E4V&ext=PDF&lcl=Andrew-Bousfield-First-Statement-for-Francis-1-.pdf&usr=alexander_minh

[15] Report of the Freedom to Speak Up Review. February 2015.

http://webarchive.nationalarchives.gov.uk/20150218150343/https:/freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_Executive-summary.pdf

[16] Letter from Rebecca Lloyd-Jones CQC Director of Legal Services 2 August 2016

https://twitter.com/alexander_minh/status/760502740720226305

[17] Letter from David Behan Chief Executive of the Care Quality Commission to Jade Taylor 16 September 2016

[18] All latest CQC reports of inspections conducted under the new inspection regime were reviewed, and searched for the following key words:

 

Gag (gags, gagging)

Compromise

Settlement

Agreement

Clause

Non-disparagement

Confidentiality

 

On this basis, no discussion of compromise (settlement) agreements was found in any of the CQC inspection reports searched.

The relevant data is uploaded here:

https://www.dropbox.com/home?preview=OPEN+DEMOCRACY+CQC+INSP+REPORTS+%26+COMPROMISE+AGREEMENTS.xlsx

[19] Letter to Public Accounts Committee 2 September 2016

http://twitdoc.com/view.asp?id=298261&sid=6E51&ext=PDF&lcl=Letter-to-Public-Accounts-Committee-2-September-2016-re-lack-of-evidence-that-CQC-reviews-compromise-agreements.pdf&usr=alexander_minh

[20] Freedom of information disclosure by Mersey Care NHS Foundation Trust 27 July 2016

Click to access mersey-care-received-28-07-2016.pdf

[21] CQC inspection report on Mersey Care NHS Foundation Trust 14 October 2015

https://www.cqc.org.uk/sites/default/files/new_reports/AAAD5292.pdf

[22] Freedom of Information disclosures about Sheffield Teaching Hospitals NHS Foundation Trust

https://twitter.com/alexander_minh/status/740857992212566016

https://twitter.com/alexander_minh/status/762521001016131584

[23] CQC inspection report on Sheffield Teaching Hospitals NHS Foundation Trust 9 June 2016

http://www.cqc.org.uk/sites/default/files/new_reports/AAAE8129.pdf

[24] CQC inspection report on London Ambulance Service NHS Trust 27 November 2015

http://www.cqc.org.uk/sites/default/files/new_reports/AAAD5290.pdf

[25] Revealed: The hidden crisis in Britain’s ambulance services. Mary Wakefield. The Spectator, 30 August 2014

http://www.spectator.co.uk/2014/08/londons-999-emergency/

[26] The London Ambulance Service Bullying and Harassment Review: Summary & Action Plan, July 2015

http://twitdoc.com/view.asp?id=298260&sid=6E50&ext=PDF&lcl=LAS-Bullying-and-harassment-review-action-plan.pdf&usr=alexander_minh

[27] CQC inspection report on Colchester Hospital University NHS Foundation Trust 15 July 2016

http://www.cqc.org.uk/sites/default/files/new_reports/AAAF6388.pdf

[28] Colchester Hospital University NHS Foundation Trust

http://www.nhsstaffsurveys.com/Caches/Files/NHS_staff_survey_2015_RDE_full.pdf

[29] Whistleblowers Still Coming Forward At Colchester Hospital. Heart 5 November 2014

http://www.heart.co.uk/essex/news/local/whistleblowers-come-forward-colchester-hospital/#Jf23cXbKl1DzfVOW.97

[30] South Gloucestershire Safeguarding Adults Board Winterbourne View Hospital A Serious Case Review By Margaret Flynn, 4 September 2012

Click to access report.pdf