Author: minhalexander

Dr Minh Alexander retired consultant psychiatrist 25 April 2023

A secret within a secret within a secret.

After it was announced in January 2022 that HSIB would be stripped of its maternity investigations, I asked NHS England for a copy of the related King’s Fund review of HSIB culture and leadership.

When the King’s Fund review eventually arrived, after ICO interventions, it referred to “earlier reviews”.

When I asked NHS England for copies of those earlier reviews, only the internal 2020 Benson report on deficiencies of the HSIB maternity investigation programme was disclosed.

There had in fact been another highly significant investigation, by an external consultancy, Susan Newton Ltd. This took place in early 2021.

It was commissioned as a Freedom To Speak Up investigation by the central whistleblowing team at NHSE/I, to look into a whistleblowing case that is the subject of the current NHS England Employment Tribunal at Reading.

So NHS England tried to mislead me by omission. What’s new.

Susan Newton herself posted CV details of an investigation that she undertook in 2021 as follows:

March to June 2021: “Conducting a wide ranging investigation into whistle-blowing allegations relating to management culture and work practices. Findings and recommendations presented to the Board.”

An FOI request to NHS England on spending on Susan Newton Ltd’s services revealed a total spending of £140,595.70 in five years.

NHS England’s lawyers delayed my access to the Reading ET case bundle, and it was not until after several rounds of correspondence to the Tribunal and Tribunal Judge that access was finally facilitated on 24 April 2023, at which point I was finally able to see the Newton report.

For any journalists covering the case, the Newton report starts at page 622 of the ET bundle.

As might be anticipated, the Newton report was not flattering of HSIB leadership.

I will leave the media to pick up the bulk of the details.

But in terms of the crucial whistleblowing governance, Newton found it unfathomable that the organisational response was to apply a grievance process to what was “clearly a whistleblowing complaint”.

Moreover, the decision to apply a grievance process was apparently not recorded.

But Newton suspected that senior managers influenced the decision.

Keith Conradi HSIB’s Chief Investigator received the claimant’s disclosure after disclosure to local managers was thwarted, and he was responsible for the central response.

Newton suspected that the grievance process was in part an attempt to keep the issues contained within HSIB:

“….there appears to have been an unwillingness to identify the complaint correctly and a desire to keep the whole process within HSIB”

Newton noted that a grievance process was applied despite advice by the HSIB Director of Corporate Affairs that it was a whistleblowing matter.

Newton expressed surprise that although the grievance process was very flawed, failed to follow the grievance policy and was full of omissions, it was deemed “very thorough”.

“The process deviated so far from policy that [the claimant] thought she had been referred to a different policy”

Newton pointed out in her report that this was despite Conradi reviewing the grievance documents himself, and thus omissions should have been evident to him.

“The Chief Investigator, as the Commissioning Officer, reviewed all the relevant documents so it is even more surprising that the investigation was deemed “very thorough” as it might have been assumed he would have easily identified the flaws given his role.”

Newton concluded that the whistleblower was not properly protected as a result of the organisational response.

Importantly, Newton took the claimant’s disclosures about conflicts of interest arising from HSIB maternity teams being regionally based very seriously and agreed entirely with her that this needed to be rigorously managed.

It is in the legal directions for HSIB that the independence of HSIB and its investigations must be maintained. Therefore, conflicts of interest would be incompatible with this legal obligation and breaches would be a matter that would fall under PIDA.

Newton’s professional response to the claimant’s concerns is in stark contrast to the response of local HSIB managers, who had told the claimant that she should not disappear down “rabbit holes” and who had sent emails discrediting her, including derogatory remarks about her “fixated” and “unstable” mental state.

It seems strange that NHS England was willing to pay good money for the advice from Newton and acted upon it by commissioning the King’s Fund external review of culture and leadership at HSIB, a further significant expense, but now apparently rejects the notion that the whistleblower was a whistleblower.

In an amended ET3 (Grounds of Resistance) of 31 January 2022 and throughout cross examination of the claimant. NHS England’s representatives have disputed that the claimant made protected disclosures:

“It is not accepted that the alleged disclosures at paragraph 2.1.1 of The Issues amount to protected disclosures.”

I have not finished by any means looking at the trail of disclosure correspondence in the bundle between the claimant and HSIB managers. I doubt that I will in the restricted time remaining. However, from what I have seen, I am perplexed by NHS England’s contention that no protected disclosures were made. Or perhaps I am not.

Importantly, in correspondence to Tom Grimes NHSE/I head of whistleblowing, Susan Newton reported to NHS England that during the course of her investigation, other HSIB staff also started whistleblowing to her.

Importantly, Newton also recommended at the end of her investigation that there should be an independent investigation into the claimant’s unresolved patient safety concerns:

“The safety concerns by [the claimant] should be investigated by a qualified and experienced person outside of the Maternity programme, and appropriate action taken internally and if appropriate, externally to satisfy all parties that this has been appropriately investigated and action taken.”

What happened to that?

The claimant does not believe her concerns were addressed and in fact has pointed out that NHS England seems to have lost some of the evidence relating to her clinical concerns.

NHS England made the claimant wait months before it gave her the Newton investigation outcome.

Susan Newton wrote to NHSE in September 2021 about this delay, to say she had “huge sympathy” for the claimant and that she could not believe that the claimant had not yet been told of the investigation outcome.

“I can’t believe she still hasn’t heard anything”

Prior to giving the claimant the Newton report outcome, Tom Grimes wrote an emollient email to KeithConradi Chief Investigator of HSIB:

Email dated 5 November 2021, headed “[Name of claimant] summary report”

“Dear Keith,

I hope your recovery is going well.

I am sure you will have been expecting to receive the attached finalised summary report regarding the [name of claimant] FTSU case. It’s not been shared with anyone else at HSIB but we will need to share it with [claimant] very shortly.

I understand you are due to speak to Aidan today, and so you will have an opportunity to discuss it with him.

If you can confirm receipt, I will then share the password with you, or you can obtain it from Aidan.

With very best wishes,

Tom”

The tone of the NHSE correspondence to the increasingly distressed claimant is in contrast to this.

Email dated 26 November 2021, headed “Confidential – Susan Newton’s report” from Tom Grimes to the claimant

“Dear [Claimant],

Thanks for your email. I will respond to your email in order.

1. Yes. This is a summary of Susan’s report.
2. Sophie Ellis was an NHS Improvement legal director at that time. To be clear, referencing her role does not waive legal privilege in respect to any legal advice she gave. There was no formal escalation process to the NHSI Legal Team because HSIB HR and Legal is separate to NHSE/I. Sophie did not formally oversee HSIB HR matters but was available for ad hoc advice. It was in that way that your case was raised with Sophie. Sophie responded to one brief, high level query and no further input was sought by HSIB. HSIB continued with the conduct of the case. It is not clear that Sophie’s advice was interpreted accurately by HSIB staff.
3. The delay was clearly regrettable and there is a limit to how much explanation I can provide. However, the report’s findings impacted on others and as I explained on 28 April, before we could release the summary report to you we needed to consider carefully how the findings of the report were shared with you and others. Recognising the impact on you of the delay, I informed you on 28 May that, in relation to each of element of the ToR of the FTSU investigation, the investigation found flaws in handling of your grievance and in responding to the original concerns themselves.

I hope that’s helpful.

With best wishes.”

What is quite obviously missing in the NHSE response is the fact that the claimant was not immediately told of Susan Newton’s recommendation that her unresolved patient safety concerns should be independently investigated.

Patients. What are patients? What do they look like, these things called “patients”? Has anyone seen one?

But as all whistleblowers, patients and families know, the D’s prevail.

Delay, deny, defend.

And of course, the most important names are usually kept out of the picture.

I have written to Dr Aidan Fowler NHS England National Director of Patient Safety in England and a Deputy Chief Medical Officer at the Department of Health and Social Care, who oversaw this matter, and also oversaw the King’s Fund review and the HSIB maternity schism.

I have asked him more precisely what elements of the Newton report’s findings were accepted by NHS England, with reference to NHSE’s current rejection of the claimant’s protected disclosures.

I have also asked for clarification of whether NHSE acted upon Susan Newton’s recommendation that the claimant’s unresolved patient safety issues should be investigated.

LETTER TO AIDAN FOWLER

BY EMAIL

Dr Aidan Fowler

National Director Patient Safety, NHS England

Deputy Chief Medical Officer, Department of Health

25 April 2023

Dear Aidan,

Action upon 2021 Whistleblowing investigation into Healthcare Safety Investigation Branch/ NHS England by Susan Newton

As you will be aware, this investigation took place in the Spring of 2021 but the affected whistleblower was not provided with a summary report by NHS England until November 2021.

This is of huge concern because one of the most important recommendations from this report was that an external investigation was required into the whistleblower’s unresolved patient safety concerns. Susan Newton recommended:

“The safety concerns by [the claimant] should be investigated by a qualified and experienced person outside of the Maternity programme, and appropriate action taken internally and if appropriate, externally to satisfy all parties that this has been appropriately investigated and action taken.”

As a far as I can see, this has never been acted upon, or if has been acted upon, it has been done secretly and without involving the whistleblower, against the terms of the recommendation.

The whole safety of the HSIB maternity investigation programme has since come into serious question and has had to be remodelled nationally.

I should also point out that NHS England has been improperly hiding the existence of this 2021 whistleblowing investigation and misled me by omission in an FOI response, which adds to the impression of suppression.

The report is now in the public domain at page 622 of the bundle of an Employment Tribunal claim currently being heard at Reading, and shows shocking governance failures in a safety agency.

Susan Newton the investigator clearly accepted the validity and seriousness of the whistleblower’s public interest disclosures and made a slew of recommendations flowing from this, which as far as I can see NHS England broadly accepted in that it commissioned a review of HSIB’s culture and leadership as advised.

HSIB whistleblowers and the Secret King’s Fund Fact Lite report

However, NHS England has since reversed and has claimed to the Employment Tribunal that the whistleblower has NOT made protected disclosures, which seems a disturbing position. I have been observing the Tribunal proceedings and have been very surprised by some of NHSE’s barrister’s contentions, such as an assertion that a concern about tampering with medical records is not a qualifying disclosure under UK whistleblowing law. This implies that NHS England does not consider tampering with medical records is unlawful, even though an investigation of records falsification by a predecessor body in 2012 determined that tampering breached a number of legal obligations. There are also other ways in which medical records tampering may be relevant to UK whistleblowing law.

NHS England might wish to review how it instructs counsel generally, but in particular in the conduct of whistleblowing cases, given its recent defeat in Cox v NHSE. Also the Care Quality Commission’s recent defeat in Kumar v CQC, where CQC defamed the whistleblower repeatedly.

It tends to have a chilling effect on the workforce and is contrary to national Freedom to Speak Up strategy to see these cases play out in this way.

I would be very grateful for the following clarification:

1.     Which of the findings of the 2021 Susan Newton whistleblowing investigation report did NHS England accept?

2.     Which of the findings of the Susan Newton whistleblowing investigation report did NHS England reject?

3.     What follow up actions did NHS England take pursuant to the Susan Newton whistleblowing investigation report?

4.     What actions did NHS England take in relation to Susan Newton’s recommendation that NHS England arrange an external investigation into the whistleblower’s unresolved patient safety concerns, as per the terms above?

5.     If NHS England did NOT undertake an external, independent investigation into the whistleblower’s unresolved patient safety concerns, what was the recorded decision for this, assuming a decision was recorded?

I copy this to Mr Vineall at the Department of Health whom I understand has oversight of these matters and to the relevant parliamentary committees.

For parliament’s information, I should point out that in a five year period including the 2021 HSIB whistleblowing investigation, NHS England indicated via FOI that it paid Susan Newton Ltd over £140K for several pieces of complex Human Resources work.

Click to access nhs-england-foi-disclosure-19-july-2022-ref-foi-2205-1762519-nhse-0426711-.pdf

One imagines from the recurrent commissions that NHS England was satisfied with the quality of the work commissioned.

Many thanks,

Minh

Dr Minh Alexander

Retired consultant psychiatrist

Cc William Vineall Director of NHS Quality, Safety, and Investigation DHSC

     Public Accounts Committee

     Health and Social Care Committee

UPDATE 27 APRIL 2023

I have today shared disclosed documents from the ET which reveal previously withheld data from the Benson review. The un-redacted extracts from the Benson report show reports that the HSIB senior team told the HSIB workforce there would be a “threat to jobs” if the maternity report backlog was not cleared. Staff told Dr Dawn Benson and her co-reviewers of related pressure to churn out reports. Some left HSIB because they felt investigation integrity had been consequently been compromised, but feared reprisal by HSIB senior management after they returned to clinical roles. Issues about staff inability to challenge HSIB senior managers were identified.

Previously suppressed sections of the Benson HSIB report reveal threats to jobs, resignations and fears of reprisal

If Keith Conradi HSIB Chief Investigator had ultimate responsibility for the undue pressure on HSIB maternity investigators to churn out investigation reports without due regard for safety, he should have recused himself from dealing with the claimant’s whistleblowing case about these issues.

RELATED ITEMS

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Prescribed Persons or the Pretence of PIDA. How UK whistleblowers are ignored

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HSIB whistleblowers and the Secret King’s Fund Fact Lite report

More secret HSIB reports and failures of HSIB maternity investigations

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Replacing the Public Interest Disclosure Act (PIDA)

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Dr Minh Alexander retired consultant psychiatrist 24 April 2023

Background

The HSIB maternity investigation programme was commenced as a political vanity project, against professional advice, under Jeremy Hunt’s tenure as Health Secretary.

Its ambitious brief was to replace local NHS maternity investigations, a huge task.

These are the legal directions for establishment of the programme in 2018, which emphasised unequivocally that HSIB investigations must “identify all contributory factors that led to that outcome”: 

The National Health Service Trust Development Authority (Healthcare Safety Investigation Branch) (Additional Investigatory Functions in respect of Maternity Cases) Directions 2018

HSIB a tiny, centralised specialist investigative agency mushroomed rapidly into a sprawling body with maternity branches based in the regions, that operated on different directions.

Who could have predicted that things would go wrong?

It is thanks to HSIB maternity whistleblowers that the public became aware of serious deficiencies in what should have been a vital safety service.

Internal whistleblowing at HSIB and NHS England ultimately led to an announcement that HSIB had been stripped of its maternity investigations, but with little transparency about the issues.

With great reluctance, NHS England later released some of the relevant reviews about these matters, which it had previously suppressed from public view:

HSIB whistleblowers and the Secret King’s Fund Fact Lite report

More secret HSIB reports and failures of HSIB maternity investigations

Leadership failures and bullying culture were issues identified by reviewers.

Keith Conradi the controversial HSIB Chief Investigator’s departure was announced in November 2021 after the initial findings of one of these reviews were shared.

In a later interview he claimed that senior leadership at NHS England did not prioritise patient safety, in a seeming attempt to justify his own position.

Slow and incomplete HSIB maternity investigations, Death of baby Theo Young and Coroner’s serious criticisms of HSIB

In a current Employment Tribunal case against NHS England, the claimant said in oral evidence last week, that she was concerned both that HSIB was not turning investigations around fast enough and that management tried to restrict the scope of her investigations.

This was set against the 2018 HSIB directions which required investigators to identify ALL contributory factors.

The principal author of the internal Benson report on deficiencies of the HSIB maternity investigation programme appeared as a witness for the claimant, and gave supporting testimony.

A corroborating piece of information about the general concerns about HSIB’s maternity investigations already lies on the public record.

This is the findings from the 2020 inquest of baby Theo Young who died under the care of Surrey and Sussex Healthcare NHS Trust (SASH) in 2018 (not to be confused with the well publicised and also avoidable death of baby Theo Ellis at Frimley).

The Surrey Coroner, Karen Henderson, found that baby Theo died of perinatal hypoxia contributed to by neglect. He was allocated to an inexperienced midwife who did not recognise a pathological CTG reading and did not escalate to a more senior midwife or obstetrician, and he would probably have survived if help had been sought appropriately.

Notably, the coroner was very concerned about the actions of HSIB in this case and issued a Prevention of Future Deaths notice that solely related to the actions of HSIB in forbidding the trust to undertake a local investigation whilst exceeding its own target six month target, and not producing an investigation report until eighteen months later, which was substandard.

Prevention of Future Deaths report baby Theo Benjamin Young April 2020 Ref 0094 20

“CORONER’S CONCERNS 

The MATTERS OF CONCERN are in relation to the role of the HSIB in their conduct, investigation and conclusion: 

1. The HSIB specifically requested the Trust not to undertake their own investigation effectively preventing the recognition of causes of concern and therefore being unable to undertake any immediate and necessary remedial action at the earliest opportunity to prevent future deaths.

2. HSIB indicated to the Trust at the outset that their investigation would take approximately six months which is highly likely to delay the introduction of any immediate necessary measures by the Trust to prevent further deaths. 

3. The initial draft report contained factual errors and inaccuracies requiring considerable input by the Trust to resolve. The final report is insufficiently detailed and was completed 18 months after the death, during which time further deaths could have resulted.”

It is quite something that an agency that is supposed to help prevent deaths was found to have obstructed learning and so endangered the public.

The coroner added in her PFD notice that she had other concerns about HSIB which did not fall under PFD remit, but which she would be taking up.

“Other matters were brought to the attention of the court outside of PFD matters which raise considerable concern as to the role and actions of HSIB which I will deal with in a letter to them in due course and will be shared with other relevant bodies.”

Keith Conradi replied on behalf of HSIB to the Coroner’s PFD in what did not appear in my opinion to an especially conciliatory tone and did not demonstrate measurable learning with respect to evidence of improvement.

HSIB made similar comments to the Health Service Journal.

The Department of Health through Nadine Dorries also replied but did not appear to take any effective action to hold HSIB to account.

These are the various organisational responses to the Surrey Coroner’s PFD on baby Theo Young:

SASH response to PFD on baby Theo Young

Keith Conradi HSIB response to PFD on baby Theo Young

Nadine Dorries DHSC response to PFD on baby Theo Young

I have written to Ted Baker former CQC Chief Inspector of Hospitals, now HSIB Chair, (who missed an opportunity to set matters right in the Shyam Kumar whistleblowing affair, which was followed by Mr Kumar lodging a successful ET against CQC).

I have asked Ted Baker about what evidence HSIB subsequently tracked on the timeliness of its investigations, such as how soon after incidents did interviews with involved staff take place.

I have also asked him about the “other matters” that caused the Coroner considerable concern.

Correspondence Ted Baker 23 & 24 April 2023 HSIB Chair re tracking timeliness of maternity investigations and Coroner’s concerns arising from PFD baby Theo Young

The Employment Tribunal against NHS England continues, with substantial media presence.

The Claimant’s evidence is expected to resume today.

This is a comment left anonymously under the article in HSJ about the Coroner’s criticisms of HSIB in the Theo Young case. It seems that other trusts, unsurprisingly, may have had similar misgivings, lending further credence to the concerns currently being aired in the NHS England ET:

RELATED ITEMS:

NHS England appears to claim that tampering with medical records is not illegal. The legal minefield and what whistleblowing disclosures are legally “protected”?

NHS England appears to claim that tampering with medical records is not illegal (II). Or an apparent failure of organisational memory

Prescribed Persons or the Pretence of PIDA. How UK whistleblowers are ignored

NHS England found guilty of whistleblower detriment and Race victimisation against Ms Cox. Wilful blindness & power abuse at the heart of the NHS

HSIB whistleblowers and the Secret King’s Fund Fact Lite report

More secret HSIB reports and failures of HSIB maternity investigations

HSIB has sent 152 letters of concern to NHS trusts about maternity safety, including 15 letters to one trust

Replacing the Public Interest Disclosure Act (PIDA)

What could a new whistleblowing law look like? A discussion document

Dr Minh Alexander retired consultant psychiatrist 23 April 2023

Yesterday I reported on an issue that arose from a current Employment Tribunal against NHS England, in the context of the weakness of UK whistleblowing law.

NHS England’s barrister questioned whether a disclosure about unauthorised changes to medical records was a “qualifying disclosure” under UK whistleblowing law.

This implied that such a disclosure did not fall under any of the following categories of qualifying disclosure:

“a)that a criminal offence has been committed, is being committed or is likely to be committed,

(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c)that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)that the health or safety of any individual has been, is being or is likely to be endangered,

(e)that the environment has been, is being or is likely to be damaged, or

(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”

In response to this assertion, I posited how tampering with medical records might fall under the categories of “a breach of a legal obligation”, “endangerment of an individual’s health or safety” or “a crime”.

In this additional post, I now share an additional example of whistleblowing about medical records tampering which was recognised by an NHS England commissioned investigation to be a breach of legal obligations.

The whistleblowing took place at Avon and Wiltshire Mental Health Partnership NHS Trust (AWP) in 2012 and was reported by Community Care and by the BBC:

Social workers blow whistle on NHS ‘falsifying’ patient records to hit targets, report shows

Avon and Wiltshire trust ‘falsified records’, report claims

In February 2012, a group of social workers reported to the Wiltshire Council that they believed that false entries had been made to electronic patient records (RiO) at AWP.

It was alleged that “a number of social workers employed by Wiltshire Council but working in Avon and Wiltshire Mental Health Partnership Trust (AWP) that they had been instructed to falsify or alter service user records and/or that records had been amended by NHS staff without the knowledge of council employed staff.”

The Council investigated and found that nearly thirty social workers based in either the adult community, liaison or later life services of AWP shared these concerns.

The South of England Strategic Health Authority ie. NHS England, commissioned an investigation into the irregularities on the 28 May 2012, under DH guidance (2005) concerning the conduct of independent inquiries into mental health services, replacing paragraphs 33- 36 in HSG(94) 27 (LASSL (94)4).

The investigation terms of reference included a review of any breach of legislative requirements, and impact on safety, care, treatment, welfare, safeguarding, and risk assessment and management of patients.

The investigation team reported that they found a top down senior management culture focussed on meeting financial targets, which in turn middle managers translated into falsification of patient records to meet targets and avoid financial penalties:

“4.2.3 Both NHS and social care staff described working in a bullying and intimidating environment with a relentless focus on achieving targets, avoiding breaches and ‘staying green’ (the scorecard) and threats of fixed penalties being applied to team budgets for breaching targets. We were shown an email from a care team administrator to a social worker that confirmed a £3000 fine would be applied to the team for breaching a referral to assessment target for a single patient. The email went onto confirm that despite the fact that the social worker had recorded multiple telephone contacts with the client, the administrator had added a face to face contact visit to the social workers RiO diary to avoid the breach.”

The investigation concluded that most of the records falsification did not result in direct patient harm but work done to input data and manage performance diverted away from face to face clinical care.

Records also did not always give an accurate clinical contact history.

This is potentially of relevance to clinical risk assessment.

The investigators considered that there was no intention to defraud commissioners, only to survive. But that might not be a persuasive defence in law.

Importantly, the investigators noted that the records falsification at AWP was likely in breach of legal obligations because under the Data Protection Act 1998:

1)    False data breached the accuracy principle of data protection

2)    Covertly processing fabricated data breached fair processing principles.

AWP had also not taken adequate systemic measures to safeguard against unauthorised and unlawful personal data processing.

“5.5 The organisation is unlikely to be processing information in accordance with the Data Protection Act. Three specific breaches should be considered. Firstly in relation to the recording of data about ‘carers’ without their express knowledge or agreement of the individual concerned which does not satisfy fair processing requirements. Secondly as patient records contain entries and information that is incorrect it is questionable whether the records meet the accuracy principle Thirdly AWP should consider whether it is in breach of the requirement to take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data.”

This is a copy of the investigation report into the records falsification, as disclosed by AWP via the What Do They Know FOI website, to a member of the public who identified themselves as a harmed patient:

Independent investigation report into the alleged falsification and/or alteration of service user records- Avon and Wiltshire Mental Health Partnership NHS Trust

Since the 2012 AWP investigation, the EU then UK General Data Protection Regulation (GDPR) has come into force.

Under GDPR, personal data about health issues is especially protected as “special category” data, and explicit consent is required for processing, save for a number of exceptional circumstances.

So in short, these are more arguments as to why a concern that is raised about tampering with medical records is likely to be a qualifying disclosure under UK whistleblowing law, the Public Interest Disclosure Act (PIDA).

Let us hope that NHS England will in the longer term recognise the importance of protecting disclosures about medical records tampering, and acknowledge (once more) that tampering breaches a number of legal obligations.

Let us also hope that NHS England remembers that its own investigation at Avon and Wiltshire upheld that whistleblowing disclosures about medical records tampering amounted to disclosures about breaches of legal obligations…….which are a category of “qualifying disclosures” under the Public Interest Disclosure Act.

A little truth and clarity are very welcome.

RELATED ITEMS

NHS England appears to claim that tampering with medical records is not illegal. The legal minefield and what whistleblowing disclosures are legally “protected”?

Prescribed Persons or the Pretence of PIDA. How UK whistleblowers are ignored

NHS England found guilty of whistleblower detriment and Race victimisation against Ms Cox. Wilful blindness & power abuse at the heart of the NHS

HSIB whistleblowers and the Secret King’s Fund Fact Lite report

More secret HSIB reports and failures of HSIB maternity investigations

HSIB has sent 152 letters of concern to NHS trusts about maternity safety, including 15 letters to one trust

Replacing the Public Interest Disclosure Act (PIDA)

What could a new whistleblowing law look like? A discussion document

Dr Minh Alexander retired consultant psychiatrist 22 April 2023

UK whistleblowing law is very weak.

It offers no protection.

No one is legally required to proactively protect a whistleblower.

Not employers, not regulators nor other public bodies.

The law only entitles whistleblowers to claim for post hoc compensation after serious harm. Even then the odds of success are very slim and the compensation usually inadequate.

A whistleblower can be blameless, determined to be so, and yet still dragged through several years’ ordeal of disciplinary procedures, dismissal, litigation and end up out of pocket after paying legal fees. I know of such a recent case.

Those representing themselves as litigants in person have even worse outcomes.

A great weakness of UK whistleblowing law is the threshold and number of legal tests that whistleblowers face, which were explicitly set high to appease industry and disadvantaged workers when the law was originally drafted.

For whistleblowers, the law is a fragile chain of flickering fairy lights. Knock out any one of those lights and the case is lost.

A UK whistleblower has to make the right sort of disclosure (qualifying disclosure) and they have to make the disclosure in the right way to the right person or body, in the right circumstances, to qualify for protection (“protected disclosure”).

Lawyers make hay out of endlessly arguing about the niceties, and establishing a professional hegemony from specialist knowledge of ever-evolving case law.

How on earth is a litigant in person supposed to cope in this minefield, from the first critical step of framing their claim? One error and the fairy lights go out.

Take the first hurdle for whistleblowers: what is a qualifying disclosure under the law?

The key law, the UK Public Interest Disclosure Act 1998 (PIDA) says:

“43B Disclosures qualifying for protection.

(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—

(a)that a criminal offence has been committed, is being committed or is likely to be committed,

(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c)that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)that the health or safety of any individual has been, is being or is likely to be endangered,

(e)that the environment has been, is being or is likely to be damaged, or

(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

(5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”

Case law has evolved such that there are several strands about which whistleblowers are usually grilled by Tribunals and employers’ barristers.

Disclosure of information

The disclosure should contain information of “sufficient factual content and specificity”.

Nature of the worker’s belief

The worker should have a reasonable belief that the information tends to show one of the “relevant failures” and “is made in the public interest”;

NB. There has been a ruling where several disclosures taken cumulatively  met the above tests and were accepted as a qualify disclosure.

Employers’ barristers try to attack via any and all of these angles.

For example, questioning of claimants about whether they made their disclosures with the public interest in mind.

Barristers may posit that this is as narrow as making a disclosure with the employer’s whistleblowing policy in mind, when the law does not even require employers to have a whistleblowing policy.

Another legal tactic is to ask claimants if they ticked a box on the ET application form to consent to their claim being shared with a regulator, on the premise that this demonstrates a public spirit. This question is naturally asked of claimants who do not tick the box.

Employers’ barristers may also question whether claimants’ disclosures fit the defined categories (a) to (f) under Section 43B of PIDA.

Imagine the shock that a lay person, especially those of limited resources and/or who are unrepresented, may experience after raising what most reasonable people would think is a public interest disclosure, only to discover that lawyers have a very particular meaning.

In the NHS, this is compounded by permissively written policies and procedures which on the face of it invite maximum disclosure because the NHS is a safety critical sector.

The national template whistleblowing policy for the NHS:

NHS Improvement April 2016 Freedom to speak up: raising concerns (whistleblowing) policy for the NHS

set by NHS Improvement (now absorbed into NHS England) is applied by many NHS bodies. It states:

“You can raise a concern about risk, malpractice or wrongdoing you think is harming the service we deliver/commission [delete as appropriate]. Just a few examples of this might include (but are by no means restricted to):

·  unsafe patient care

·  unsafe working conditions

·  inadequate induction or training for staff

·  lack of, or poor, response to a reported patient safety incident

·  suspicions of fraud (which can also be reported to our local counter-fraud team [insert contact details])

·  a bullying culture (across a team or organisation rather than individual instances of bullying).”

Crucially, the NHS national whistleblowing policy urges staff to err on the side of caution and to raise concerns even if they are not sure if the concern is proven:

“Remember that if you are a healthcare professional you may have a professional duty to report a concern. If in doubt, please raise it. Don’t wait for proof. We would like you to raise the matter while it is still a concern. It doesn’t matter if you turn out to be mistaken as long as you are genuinely troubled.”

The NHSI 2016 national policy was replaced in 2022 with the NHS England version:

Freedom To Speak Up policy for the NHS V2 June 2022

This did not even specify what sort of concerns NHS workers could or should raise. Instead, this replacement policy states in bold letters:

“This policy is for all workers and we want to hear all our workers’ concerns”

All concerns? Remarkable.

But at the very end of the 2022 policy there is an appendix B which states:

“Making a ‘protected disclosure’

A protected disclosure is defined in the Public Interest Disclosure Act 1998. This legislation allows certain categories of worker to lodge a claim for compensation with an employment tribunal if they suffer as a result of speaking up. The legislation is complex and to qualify for protection under it, very specific criteria must be met in relation to who is speaking up, about what and to whom. To help you consider whether you might meet these criteria, please seek independent advice from Protect or a legal representative.”

Why is this caveat in the small print, especially after urging the workforce to spill all?

Another example of an expansive policy is NHS England’s external whistleblowing policy which says:

“Whistleblowing does not apply to personal grievances, including employment issues, which should be dealt with through internal organisational policies. It would generally be applied to:

• Concerns about unsafe patient care;

• Poor clinical practice or other malpractice which may harm patients;

• Failure to safeguard patients;

• Maladministration of medications;

• Untrained staff;

• Unsafe working conditions

• Lack of policies;

• A bullying culture;

• Staff who are unwell or stressed and not seeking help.

These types of concerns are sometimes referred to as ‘Protected Disclosures’ under the Public Interest Disclosure Act 1998.”

This would seem a reasonable list to most health service workers, who can appreciate that these are all matters which could affect the health and safety of patients.

But in the parallel world of litigation, it is far from straightforward, as I will discuss below.

NHS England’s contention that raising a concern about tampering with medical records is not whistleblowing

An ongoing employment tribunal against NHS England (or more specifically, the Healthcare Investigation Branch which is located within NHS England but overseen by NHS England and subject to its HR and governance systems), which I am currently observing, demonstrates how bewildering litigation can be for whistleblowers.

An experienced worker made a disclosure about unauthorised alterations of medical records.

To all healthcare professionals, this is an issue that sets off huge alarm bells on probity, patient safety, culture, safeguarding and a good many other matters.

But NHS England’s barrister questioned whether the matter amounted to a qualifying disclosure under whistleblowing law.

I struggle to see how a concern about tampering with medical records is not a health and safety issue.

Tampering with records may be done to cover up a care failure, which would fall under both the health and safety and concealment provisions of Section 43B PIDA.

Tampering with health records to cover up is so serious that it gets healthcare professionals struck off.

It prevents learning from serious incidents, may allow unsafe practitioners to continue harming patients and impacts on trust in healthcare workers, which is an important part of safe care at a public health level.

Coroners have periodically flagged falsification of medical records as matters of concern in their statutory Reports to Prevent Future Deaths, reinforcing the relationship between medical records integrity and patient safety.

Tampering with health records can also be a breach of legal obligations, and a crime in certain circumstances.

Knowingly misleading an investigation by the Healthcare Safety Investigation Branch is a crime,  so supplying doctored medical records to HSIB would seem to raise an issue that falls within PIDA.

Tampering with health records impacts on patients’ rights to seek legal redress for care failures and it can potentially obstruct regulatory activities and statutory Health and Safety provisions.

In Scotland, the Independent National Whistleblowing Officer, who is part of the Scottish Public Services Ombudsman’s Office, gives advice that whistleblowing in the NHS can include falsification:

“Risks can relate to a wrongdoing, patient safety or malpractice which the organisation oversees or is responsible or accountable for. In a health setting, these concerns could include, for example:

• patient-safety issues
• patient-care issues
• poor practice
• unsafe working conditions
• fraud (theft, corruption, bribery or embezzlement)
• changing or falsifying information about performance
• breaking any legal obligation
• abusing authority
• deliberately trying to cover up any of the above.”

Care Quality Commission Regulation 17 requires care providers to ensure the integrity of care records:

“maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided;”

That is, maintaining the integrity of contemporaneous care records is a statutory, legal obligation.

Post hoc tampering with health records is likely to represent a failure of this legal obligation, and thus would bring a disclosure about such wrongdoing under the category of a legally “qualifying disclosure”.

2017 Care home placed in CQC special measures after failure to comply with care standards, including by not keeping contemporaneous records and falsifying records CQC inspection report on Woodlands Care Home, Mirfield

For completeness, this is CQC’s guidance to the staff of provider bodies who wish to whistleblow to the CQC. It advises health and care workers that whistleblowing can encompass a wide range of issues: “The concerns don’t have to be restricted to people using the service. Whistleblowing can cover any risk, malpractice or wrongdoing that affects patients, the public, other staff or the provider itself.”

Regardless of whether NHS England prevails in its above legal argument at the ET, it will need to explain to the NHS workforce, patient groups, fellow regulators and parliament, why the most powerful NHS body does not accept that raising a concern about tampering with medical records is whistleblowing.

NB If there are any lawyers reading this blog who think I have got anything wrong or left anything out in this important matter, please do let me know. Best wishes.

Related miscellaneous

NHS England itself has not responded to me yet about its practice of its General Counsel routinely attending operational meetings about the management of internal whistleblowing at NHS England, and whether the affected NHS England whistleblowers will be allowed as a matter of policy to access meeting minutes as personal data. This was first raised in June 2022.

On a similar theme, NHS England through its representatives was supposed to give me electronic access to the case bundle from the above ET, as an observer. I understand that NHSE informed the Tribunal that it did so yesterday morning. However, I received no correspondence from NHSE with the necessary link to give me access, and will take the matter up again with the Tribunal next Monday when the hearing resumes.

It was noteworthy that NHS England’s barrister elected not to question several of the claimant’s senior witnesses, even with a caveat by the barrister that this did not mean that NHSE agreed with their evidence or accepted it.

The principal author of the Benson report on bullying and governance failings in the maternity investigation branch of HSIB gave oral evidence as a witness for the claimant and elaborated on some of the findings previously summarised in her report.

UPDATE 23 APRIL 2023

Please see additional evidence posted at:

NHS England appears to claim that tampering with medical records is not illegal (II). Or an apparent failure of organisational memory

This further post shares a 2012 investigation report commissioned by South England Strategic Health Authority (the nascent NHS England in other words, which became fully operational on 1 April 2013), on records falsification by a mental health trust, Avon and Wiltshire Partnership (AWP). This investigation concluded that AWP had likely been in breach of legal obligations as a result of falsifying medical records to avoid financial penalties for not meeting performance targets. It follows from this finding that the whistleblowers who made disclosures about the records falsification had by implication raised qualifying disclosures under the Public Interest Disclosures Act.

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We have seen examples of NHS regulators not only failing whistleblowers who approach them as Prescribed Persons under PIDA, but their own regulatory staff who whistleblow.

There has been the case of Mr Shyam Kumar at the Care Quality Commission, where the CQC behaved in the most extraordinary manner. It defamed him, unfairly dismissed him, abused its power as a regulator to (unsuccessfully) seek adverse information about him that could be used in ET proceedings and then maintained a narrative throughout the ET hearing that he was a bully, which was rejected by the ET.

We have also seen a case of race harassment by senior NHS England managers as well as whistleblowing detriment in the case of Ms Cox.

NHS England found guilty of whistleblower detriment and Race victimisation against Ms Cox. Wilful blindness & power abuse at the heart of the NHS

The Tribunal judgment noted that NHS England’s submission in this case focussed on uncoupling detriment from protected acts:

“the respondent’s case focusses on causation and whether the treatment complained of arose from the protected acts or protected disclosures”

This illustrates that where employers think they have lost the battle on disproving protected disclosures, they move on to the next fairy light, which is to disprove a causal link between protected disclosures and detriment.

It is a shabby trick to play on the NHS workforce, to invite whistleblowing disclosures through fine words, and then waste public money on tripping staff up and blocking them with a massive, well-oiled legal machinery and expensive barristers.

What is more, current UK whistleblowing law enables this state of affairs.

HSIB whistleblowers and the Secret King’s Fund Fact Lite report

More secret HSIB reports and failures of HSIB maternity investigations

HSIB has sent 152 letters of concern to NHS trusts about maternity safety, including 15 letters to one trust

Replacing the Public Interest Disclosure Act (PIDA)

What could a new whistleblowing law look like? A discussion document

Dr Minh Alexander retired consultant psychiatrist 21 April 2023

Care Quality Commission Regulation 12 provides a facility for unsafe provider organisations to be investigated for failures to provide safe care and ultimately to be prosecuted.

Like many others, I fail to see the utility of fining cash strapped public bodies, which only hurts patients as the end users.

However, the regulation exists and CQC is obliged to apply it where appropriate and importantly, to investigate where there is evidence of organisational failure.

University Hospitals Birmingham NHS Foundation Trust staff have been whistleblowing to UHB management and to the CQC about unsafe levels of staffing for a long time.

UNISON sent a dossier to CQC in July 2021which revealed that UHB staff across all three sites had been raising concerns with trust managers about “depleted” levels of staffing since before the pandemic.

CQC did not publicly acknowledge the existence of this dossier.

The BBC revealed its existence in recent months as part of the coverage of the UHB scandal.

CQC carried out an unannounced inspection at Good Hope Hospital and Heartlands Hospital between 7 to 14 December 2022 shortly after BBC Newsnight’s first broadcast about UHB.

CQC claimed that it undertook the inspection because:

“We conducted an urgent, unannounced inspection of the full medical care core service due to a number of concerns raised by patients and their families around the care and treatment they had received.”

The reports from this latest CQC inspection was published on 19 April 2023.

The report from the Good Hope Hospital inspection was damning on management failure to respond to concerns, in that staff had stopped using the internal route for raising concerns because of zero expectation that managers who act upon them:

Deeply concerning was a CQC finding of very unsafe levels of staffing.

Related to this, patients suffered falls and suffered injuries DURING the CQC inspection:

The CQC issued a Section 29A improvement notice with respect to the unsafe levels of staffing:

A look at UHB’s annual quality report for 2020/21 shows variation between trust sites in the rate of falls per 1,000 occupied bed days

Research shows that falls can be reduced and prevented with good practice measures and safe staffing.

The association between patient safety outcomes and nurse / healthcare assistant skill mix and staffing levels & factors that may influence staffing requirements

A UHB board paper issued under Lisa Stally Green former UHB Chief Nurse’s oversight (Stalley Green is now the ICB Chief Nurse) in 2020 revealed that there had been a steady stream of severe harm and catastrophic harm to patients due to falls suffered at UHB:

The former NHS England Serious Incident Framework used this categorisation for degrees of harm:

Whilst neck of femur fractures may not result in immediate death, and may therefore sometimes receive a short term categorisation of “severe” rather than “catastrophic” harm, such fractures in older people may trigger a downwards spiral that eventually leads to death:

Given that there have been both longstanding understaffing at UHB AND evidence of regular, serious harm from falls, should the CQC be investigating UHB for Regulation 12 breaches, and not just issuing an improvement notice?

Indeed, the falls related injuries are not the only evidence of possible Regulation 12 breaches at UHB.

With the issue of the CQC warning notice, are we witness more to spectacle, than meaningful regulatory action?

Have harmed UHB patients and their families tried to raise concerns with CQC, but been fobbed off with the classic but misleading CQC refrain “We have no remit to investigate individual complaints”?

Reframing concerns as “complaints” blocks whistleblowers, patients and families, and CQC often does not disclose that it does have a remit to investigate incidents of avoidable harm under Regulation 12.

Calling whistleblowers, patients and families: Language matters. CQC dismisses concerns as “complaints” to give you the bum’s rush, but it has to investigate “incidents” if CQC Regulation 12 is engaged

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Bewick, the ICB, misinformation by UHB about GMC referrals and a late correction

Mr Tristan Reuser’s whistleblowing case: Scandalous employer and regulatory behaviour on FPPR

NHSE, ICB and UHB’s three-ring circus and Rosser’s digital assignment

Dr Minh Alexander retired consultant psychiatrist 17 April 2023

A key matter which triggered BBC Newsnight reportage of the governance failings at University Hospitals Birmingham NHS Foundation Trust was the scandalous whistleblowing case of Tristan Reuser, ophthalmic surgeon.

Mr Reuser was seriously mistreated and unfairly dismissed.

One of the key issues was that he was unfairly suspended based on an unfounded allegation that the ET determined that Clive Ryder Deputy Medical Director and David Rosser Medical Director, later Chief Executive, knew or ought to have known was false.

A related, central issue was that the trust failed to show Tristan Reuser correspondence from an NHS agency called the National Clinical Assessment Service, NCAS (now called Practitioners Performance Advice, PPA), which has a statutory role in advising employers on the suspension of and disciplinary action against doctors.

The withheld correspondence would have revealed that his suspension was triggered on a false premise.

NHS employers had to consult NCAS as part of triggering the euphemistically named “Maintaining High Professional Standards in the Modern NHS” (MHPS) disciplinary and capability procedure.

The MHPS rules of procedures require NHS employers to show referred doctors all correspondence relating to their case.

UHB not only failed to show Tristan Reuser the NCAS correspondence that he was entitled to see, but when Tristan Reuser asked for his personal data, UHB failed to disclose the NCAS correspondence.

The resistance to share the NCAS correspondence persisted into Employment Tribunal proceedings when UHB failed to disclose material documents even in the legal disclosure process, incurring the judge’s displeasure and a £20,000 costs award against the trust.

The effect of UHB’s secrecy was that misleading information supplied to NCAS by Clive Ryder UHB deputy medical director, to justify Tristan Reuser’s suspension, was hidden.

How could this have happened in a process that is supposedly safeguarded?

An MHPS “Designated Board Member” was allocated to Tristan Reuser’s case: Jon Glasby, non executive director, who was appointed as the UHB Independent Senior Director under Jacqui Smith’s tenure.

The Designated Board Member’s role in MHPS is to ensure fair play and that the accused doctor is not “incarcerated” by default through an excessively drawn out process.

“The Chairman of the Board must designate a non-executive member “the designated member” to oversee the case and ensure that momentum is maintained.”

“Role of designated Board member

13. Representations may be made to the designated Board member in regard to exclusion, or investigation of a case if these are not provided for by the NHS body’s grievance procedures. The designated Board member must also ensure, among other matters, that time frames for investigation or exclusion are consistent with the principles of Article 6 of the European Convention on Human Rights (which, broadly speaking, sets out the framework of the rights to a fair trial).”

During his phase one investigation at UHB, Mike Bewick was told that the UHB consultant body had raised concerns with the UHB board about cronyism at all levels of medical management.

He was also told of staff perceptions of arbitrary discipline at the trust.

As a former Deputy Medical Director himself, he would surely understand the requirements of MHPS and the significance of any breaches of procedure.

In his report, Bewick stated that he considered that the findings of the Employment Tribunal in Reuser v UHB and the GMC’s warning to David Rosser called into question David Rosser’s fitness for a senior leadership role:

“31. In our opinion, statements made by the GMC and the Employment Tribunal were extremely serious and brought into question DR’s suitability for senior leadership roles.”

It follows that Rosser’s critical actions as a medical director, in suspending and disciplining doctors, should also be reviewed.

As part of Bewick’s investigation, could he not have called up data on UHB’s use of MHPS and adherence to the rules of procedure?

There was anecdote in Bewick’s report about this, but no hard data, making it inconclusive:

Dragging out the review process may benefit the UHB gravy train but not staff and patients.

In the meantime, I have asked the interim UHB Chair to consider some basic, urgent checks.

I have also suggested that when MHPS is applied at UHB, doctors should be clearly informed of their right to access case correspondence.

BY EMAIL

Yve Buckland

Interim Chair

University Hospitals Birmingham NHS Foundation Trust

17 April 2023

Dear Yve,

Failures of MHPS process

I do not know how familiar you are with the NHS conduct/capability process for disciplining doctors, Maintaining High Professional Standards in the Modern NHS (MHPS), but it has rules of procedure with supposed safeguards.

These failed entirely in the case of Tristan Reuser, UHB whistleblower.

One of the MHPS rules is that doctors who are subject to these procedures must be allowed to see all correspondence about their case, to fully enable them to reply to all allegations.

UHB not only failed to ensure this access to case correspondence, but persistently withheld crucial correspondence from Mr Reuser. This withheld correspondence showed that Clive Ryder Deputy Medical Director gave misleading information to an NHS body the National Clinical Assessment Service, as part of the procedure of triggering suspension under MHPS rules. This was later criticised by the Employment Tribunal as “beyond inaccurate”.

Was it really the case that the then deputy medical, the medical director, the director of human resources and the MHPS designated board member who should have ensured fair play (Jon Glasby), all experienced directors, were not aware that Mr Reuser should have been given sight of his MHPS case correspondence?

My concern now is how many other UHB doctors have been disadvantaged in this way?

How many staff are currently being disadvantaged in this way?

I have looked at the UHB MHPS policy.  

This document lists the many alleged failings that may land a doctor in hot water. But it does not say much about the organisation’s responsibilities to treat an accused doctor fairly.

Importantly, I cannot see that the policy says anything about an accused doctor’s rights to see all case correspondence.

The UHB policy cross references the national MHPS framework but gives no link.

It would empower staff if UHB actively gives access to the detailed rules of procedure. MHPS is arguably a contractual matter, and a matter of rights.

The national framework is a lengthy document and the information about the right to see case correspondence is brief and easily missed.

Page 11 of the national MHPS framework:

“3. The practitioner concerned must be informed in writing by the case manager, as soon as it has been decided, that an investigation is to be undertaken, the name of the case investigator and made aware of the specific allegations or concerns that have been raised. The practitioner must be given the opportunity to see any correspondence relating to the case together with a list of the people that the case investigator will interview. The practitioner must also be afforded the opportunity to put their view of events to the case investigator and given the opportunity to be accompanied.”

It would be helpful if the local UHB policy spells out clearly the right of access to case correspondence.

Does UHB need to rapidly audit adherence to basic MHPS standards, based on audit standards co-produced with staffside, to ensure that no further serious harm to individuals is currently unfolding, and that any other serious harm that has taken place besides Reuser v UHB is corrected?

With best wishes,

Minh

Dr Minh Alexander

Cc Chaand Nagpaul External reference group

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Dr Minh Alexander retired consultant psychiatrist 14 April 2023

On 14 April 2022 UHB answered an FOI enquiry incorrectly, claiming that of 26 GMC referrals in the ten previous years, none had resulted in any further action by the GMC.

But at the time, this data obviously raised questions of whether UHB was referring doctors appropriately.

It also equally raised questions of whether UHB was referring the right doctors.

BBC Newsnight later picked up on the FOI disclosure and reported it in a broadcast in December 2022.

Shortly after this I noticed GMC data that contradicted UHB’s FOI response.

I informed the BBC about this and wrote to UHB’s new interim Chair to question the accuracy of UHB’s FOI disclosure.

There was a delay in UHB responding, despite my chasing. This was later explained as a switch between email accounts by the interim Chair which led to some email being unnoticed.

In the meantime, David Melbourne the CEO of Birmingham and Solihull ICB emphasised to local councillors at the Joint Health Overview and Scrutiny Committee that the media had got their figures wrong.

This was very distasteful given that the false information had been supplied by UHB.

A similar message was transmitted by Mike Bewick’s rapid review report on UHB, published on 28 March.

Remarks on page 12 of Bewick’s report dovetail with the tone of Melbourne’s comments to JHOSC:

It is perplexing as to why Bewick focussed on the cases that DID result in GMC action, but omitted to discuss the cases which did NOT result in any GMC action.

One would have thought that all cases would have been counted in any check of accuracy.

And it is the cases that did not result in any GMC action that were of most concern in terms of UHB’s governance.

Yesterday, UHB finally responded through its Chief Legal Officer to my requests for the record to be corrected.

This is the response:

RESPONSE BY DAVID BURBRIDGE 13 APRIL 2023 Dear Dr Alexander Please find below a response to your email to Dame Yve Buckland, dated 29 March. For the period 1 April 2012 to 31 March 2022: – How many doctors the trust referred to the GMC ? At UHB (prior to and post the merger with Heart of England NHS Foundation Trust (“HEFT”)) there were 22 referrals At HEFT (prior to the merger with UHB) there were 16 (3 of these are dated just after the date of merger 1.4.2018, but are attributed to HEFT – we believe this may be because there was contact before the change of RO) – How many of these referrals were signed off by the medical director? At UHB 14/22, the remainder were signed off by Deputy Medical Director or acting Medical Director  At HEFT 6/16 were signed off by the Medical Director and the remainder were by Deputy or Associate Medical Directors.  – How many of these referrals resulted in no further action by the GMC? UHB – 4 were concluded at triage, 7 were investigated and concluded with no action, 11 were subject to advice, warning, undertakings, suspension or erasure HEFT – 3 were concluded at triage, 4 were investigated and concluded with no action,  9 were subject to advice, warning, undertakings, suspension or erasure – How many doctors died whilst under GMC investigation or monitoring? None – How many doctors died by suicide whilst under GMC investigation or monitoring? None Regards David Burbridge Chief Legal Officer

That is to say, there were a total of 38 GMC referrals in the ten year period, 18 of which were either dropped (or “concluded” as UHB put it) at triage or which resulted in no further action by the GMC.

For all the protestations and smoke and mirrors, we still have best part of a score of doctors who were possibly referred to the GMC when this was apparently not essential.

GMC referrals are a serious business. Could alternatives have sufficed? Were any of these doctors referred out of careless misuse of power, or as a punishment or intimidation, to silence them?

Any further reviews of UHB should look carefully at these eighteen GMC referrals.

In the meantime, I have asked UHB to disclose how many of these eighteen GMC referrals which were dropped at triage, or which resulted in no further action by the GMC, were signed off by either David Rosser or Clive Ryder.

This is because both of these senior doctors were criticised by the Employment Tribunal for their actions in the whistleblowing case of surgeon Tristan Reuser, for acts which included supplying inaccurate information to NCAS (now PPA), suspending Mr Reuser on a basis which they knew or ought to have known was unfounded, and misleading the GMC in the course of referring Mr Reuser.

It is also because David Rosser made a GMC referral on a whistleblower, Mr Reuser, which ended in no further action being taken by the GMC.

It is also because of a concern raised by the consultant body about cronyism at all levels of medical management at UHB, and because of a reported staff perception of arbitrary application of discipline.

The criticisms made by the Employment Tribunal of David Rosser and Clive Ryder were serious.

For example:

“It became clear that both Dr Ryder and Dr Rosser knew, or ought to have known, that it was unfounded before the exclusion was even put in place. That only came to light from documents which had not been disclosed but which were obtained by Mr Reuser through a subject access request (SAR).

No action was taken against Mr Negi in relation to what appeared to be a false allegation. This, coupled with my more detailed findings in relation to the exclusion earlier in this judgment, potentially suggests a level of bias and collusion at a senior management level against the claimant. Again, at the very least, it suggests a very serious lack of due care and attention to an important matter.”

“Dr Rosser was not sufficiently independent. There is a strong suspicion of bias given his approval of the exclusion on grounds he ought to have known were false. This appears further confirmed by the omissions and unjustifiably strong language of the GMC referral.”

UHB may object to my enquiry on grounds of personal data and confidentiality.

But the public interest and the seniority of the individuals in question are counter-arguments against such objection.

And for genuine culture change, as opposed to the PR and news management that NHS England and its hangers on will throw at this situation, truth and transparency are a pre-requisite.

Mr Tristan Reuser’s whistleblowing case: Scandalous employer and regulatory behaviour on FPPR

NHSE, ICB and UHB’s three-ring circus and Rosser’s digital assignment

Can Healthwatch Birmingham please let us see its complaints & concerns data on UHB?

Bewick’s silence on patient complaints at University Hospitals Birmingham NHS Foundation Trust

Dr Minh Alexander retired consultant psychiatrist 11 April 2023

Mike Bewick’s rapid review of clinical safety at University Hospitals Birmingham NHS Foundation Trust was strangely silent on patient complaints, and so were the related statements by the external reference group and the Chair of Healthwatch Birmingham:

Bewick’s silence on patient complaints at University Hospitals Birmingham NHS Foundation Trust

Consequently, I asked Healthwatch Birmingham if it collated and published data on concerns and complaints received from the public about UHB.

The response was a little reluctant, but Healthwatch Birmingham eventually revealed that it did, and that this data was sent to regulators and commissioners in a confidential, quarterly report.

I have now written to Healthwatch Birmingham’s Chair to ask that the data relating to UHB is transparently published in view of the great public interest.

Frankly, such data should be routinely published in view of Healthwatch’s purported role as champion of the public interest.

LETTER TO RICHARD BURDEN, CHAIR OF HEALTHWATCH BIMRINGHAM

BY EMAIL

Richard Burden

Chair of Healthwatch Birmingham

11 April 2023

Dear Richard,

Public access to complaints and concerns data about UHB that is held by Healthwatch Birmingham

I asked Healthwatch Birmingham via a Twitter conversation if it collated data on concerns and complaints from the public about local NHS services, with particular respect to UHB, for obvious reasons.

HW Birmingham initially directed me to the online feedback page of its website:

healthwatchbirmingham.co.uk/services

When I asked about correspondence received by HW Birmingham from the public regarding complaints and concerns, and whether this generated any summarised data and reports, HW Birmingham replied that correspondence would not be published because it was confidential.

After I pressed the point about summarised data, HW Birmingham indicated that anonymised data about concerns received is sent to regulators and commissioners in quarterly reports, which are confidential.

“Anonymised data is shared with regulators & commissioners in a confidential quarterly report. We also have avenues for directly raising concerns with services. Pls email info@healthwatchbirmingham.co.uk if you wish to discuss further. Thanks.”

I wonder if in view of the clear and current public interest in University Hospitals Birmingham NHS Foundation Trust, and the extraordinary omission of any patient complaints data from Mike Bewick’s phase one rapid review on clinical safety at UHB, whether Healthwatch Birmingham should now publish its anonymised data on all concerns and complaints received about UHB.

I can see no objection on grounds of confidentiality and privacy if the data is anonymised and aggregated.

A series of such data going back over years would be valuable in helping to set the current concerns about UHB’s culture, clinical performance and safety into context.

Furthermore, Healthwatch Birmingham’s dataset can be argued to be a more independent dataset that has not been controlled by the UHB board, and may have added value in this respect.

With best wishes,

Minh

Dr Minh Alexander

Cc

Birmingham and Solihull Joint Health Overview and Scrutiny Committee

BBC Newsnight

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Dr Minh Alexander retired consultant psychiatrist 10 April 2023

On 28 March 2023 the compromised Bewick phase one report on UHB, a rapid review of clinical safety, was published.

The Parliamentary and Health Service Ombudsman triggered the multiagency Emerging Concerns Protocol in August 2022 because of concerns about poor culture, leadership and lack of learning from complaints and incidents at UHB.

PHSO expected to contribute to Bewick’s review but claimed it had been excluded, and this revelation was broadcast by BBC Newsnight. The transcript of Newsnight’s interview with Rob Behrens can found here:

PHSO alleges it has been excluded from NHSE/ICB’s reviews on UHB & ICB’s factual inaccuracy to the Joint Health Overview and Scrutiny Committee

Extraordinarily, Bewick’s rapid review of UHB safety indeed omitted any mention of evidence from PHSO or of the PHSO’s concerns.

Bewick and his small crew of fellow investigators, a paediatrician and a “chartered secretary and governance expert” also did not mention patient complaints in their report.

Is this because raising the spectre of patient complaints would inevitably remind the public and NHS staff of the missing PHSO data?

How can a report on clinical safety ignore patient complaints about clinical care?

Astonishingly, despite ignoring this core data on patient experience and outcomes, both from trust records and from the PHSO, Bewick and co concluded that UHB was “safe” overall.

Page 30 “….our overall view is that the Trust is a safe place to receive care”

As the silence about patient complaints seemed an important indicator of establishment discomfort, I took a quick look at UHB’s patient complaints.

The most recent UHB annual report 2021/22 gave almost no statistics on patient complaints. The bare bones provided were as follows:

“In 2021/22 a total of 1,716 complaints for investigation were received. This is a 36.8% increase from the previous year.” [my emphasis]

The trust produces an annual complaints report, but I was unable to find this on searching.

Some trusts publish their annual complaints report, but it appears that UHB does not.

The most recent annual quality report by UHB also gave few details about complaints patterns.

But under the subject of “Improving nutrition and hydration”, the trust did reveal more details of relevant complaints.

As you can see from the above table, these included failures of very basic care such as not monitoring food or fluid intake, not providing assistance with eating and drinking and leaving food and drink out of reach.

Where have we heard of such failures before?

Neglect and Indignity

The UHB complaints about hydration and nutrition are consistent with this week’s news coverage. UHB families’ and patients’ reported food and drink being left out of reach and patients being left in their own waste:

Woman says her dying mother’s hospital care was ‘absolutely disgusting’ after report finds toxic culture at NHS trust

I found an old FOI response Ref 5043 by UHB of 8 March 2017, on complaints received from both staff and patients regarding staffing levels.

It is not clear how UHB collated data for this FOI response, or whether the data is a reliable reflection of the original FOI question. UHB has also been known to mislead in FOI responses on sensitive topics such as FPPR.

With those caveats in mind, the data published suggested that complaints about clinical care comprised about half of the complaints.

YEAR	Total number of complaints from patients	% of complaints that related to clinical care
2013/14	956	52.3% (n = 500)
2014/15	1044	51% (n = 533)
2015/16	1075	48.5% (n = 522)
2016/17	949	41.5% (n = 394)

Looking at an overlapping and better-defined dataset from NHS Digital, data on written complaints in the English NHS, shows that complaints about clinical treatment accounted for less than a third of complaints:

YEAR	TOTAL NUMBER OF COMPLAINTS ABOUT CLINICAL TREATMENT	% OF ALL COMPLAINTS THAT WERE ABOUT CLINICAL TREATMENT
2015/16	59,678	32.0%
2016/17	51,145	26.7%
2017/18	48,904	26.2%
2018/19	53,084	27.5%
2019/20	53,018	27.1%
2020/21	40,854	26.9%

A proper interrogation of UHB’s complaints data and an examination of UHB’s response to complaints is needed.

Journalists might be interested to pursue the records relating to this event in 2021/22, as described in the foreword by David Rosser ex UHB CEO, in the trust’s quality account for that financial year:

“A wide range of omissions in care were reviewed in detail during 2021/22 at the Executive Care Omissions Root Cause Analysis (RCA) meetings chaired by the Chief Executive. Cases are selected for review from a range of sources including serious incidents, serious complaints, IT incidents, infection incidents and cross-divisional issues.”

Surely Bewick could hardly have been hampered by poor data systems as UHB’s former CEO and current CMO are ardent fans of digital health and data.

Rosser’s foreword in the 2021/22 proclaimed:

“Data quality and timeliness of data are fundamental aspects of UHB’s management of quality. Data is provided to clinical and managerial teams as close to real-time as possible through various means such as the Trust’s digital Clinical Dashboard. Information is subject to regular review and challenge at specialty, divisional and Trust levels by the Clinical Quality Monitoring Group, Care Quality Group and Board of Directors for example.”

The fact that Bewick was prepared to declare UHB safe without any evident discussion of UHB complaints data suggests two possibilities.

Either he decided it would be unfavourable to examine or report on complaints, or he did not consider patient experience or patient voice important when assessing patient safety.

Either option would suggest he should not be directing the UHB reviews.

And who directed Bewick?

It strikes me that the only NHS England or the Department of Health would have the power to ensure the exclusion of PHSO’s evidence from Bewick’s review.

Such high-level interference only additionally points to the need for a judge led inquiry with powers to compel evidence, as well as to protect witnesses and ungag silenced staff and former staff.

I think we should brace for more misdirection.

UPDATE 12 MAY 2023

I obtained data on the number of concerns raised by the public with Birmingham and Solihull Healthwatch. The data shows marked and continuing escalation beginning in 2021. Healthwatch disclosed under FOIA that it started meeting with the CQC on the basis of this sharp escalation in concerns and that these meetings continue:

Healthwatch Birmingham & Solihull has been receiving increasing concerns from the public about UHB and has held monthly meetings with the CQC

I have sent the Healthwatch data to Bewick and suggested that he should examine and report on UHB’s patient complaint data, with both quantitative and qualitative analysis.

RELATED ITEMS

This is a statement of 4 April 2023 by the external reference group on Bewick’s reviews, which criticised some of the gaps in Bewick’s report:

Statement from the UHB Cross-Party Reference Group

However, this statement also did not mention the PHSO’s exclusion from Bewick’s review or the absence of any reference to patient complaints.

The latter is a little surprising given that Richard Burden former Labour MP is the current Chair of Healthwatch Birmingham and Solihull and a member of this external reference group.

A statement by Burden on 28 March mentioned the PHSO but not Bewick’s omission of patient complaints.

Healthwatch Birmingham statement 28 March 2023

The only patient related outcome measures mentioned by the external reference groups were as follows:

“We do remain concerned about above average mortality rates and the number of ‘never events’.

This is the full membership of the external reference group, according to Birmingham and Solihull ICB, which commissioned the Bewick reviews:

• Preet Kaur Gill, Labour and Co-operative MP for Birmingham, Edgbaston
• Gary Sambrook, Conservative MP for Birmingham, Northfield   
• Richard Burden, Healthwatch Chair       
• Andy Cave, Healthwatch CEO   
• Dr Chaand Nagpaul, clinical representative
• Mitzi Wilson, RCN representative
• Councillor Mariam Khan, Health & Well Being Chairman & Cabinet Lead for Social Care and Health, Birmingham City Council
• Councillor Karen Grinsell, Deputy Leader & Cabinet Member with responsibility for Partnerships & Well-being, Solihull Metropolitan Borough Council
• Gail Adams, Unison representative
• Peter Mayer, citizen representative
• Mustak Mirza, citizen representative    

NHSE, ICB and UHB’s three-ring circus and Rosser’s digital assignment

This post shares FOI data which showed that UHB and the ICB colluded to give a false impression that David Rosser had left UHB when he in fact remained an employee of the trust, and was just temporarily parked at the ICB, answering to the ICB’s CEO.

When is a Professor a Professor: Does the routine use of honorifics reduce confidence in public life?

Bewick styles himself “Professor” on the basis only of an honorary professorship from UCLAN.

By Dr Minh Alexander retired consultant psychiatrist 6 April 2023

Summary: CQC has once more given scant regard to Employment Tribunal findings of gross whistleblower reprisal in the case of Dr Ambreen Malik and found a provider organisation, Cygnet Health Care, compliant under CQC Regulation 5 Fit and Proper Persons. CQC continues to make claims that it cannot make judgments about the fitness of individuals, and makes unsustainable regulatory judgments about process without taking into account the character of individuals of concern. CQC steadfastly and disingenuously claims that it has no remit to assess the fitness of individuals, despite Regulation 5 requiring that directors are of “good character”. It is also despite the fact that CQC’s own internal guidance states clearly that CQC has powers to take action against providers who have unfit directors, which of course is predicated on CQC making an assessment of individual fitness. CQC also provides almost no details about how it reaches its FPPR decisions, conveniently making them much harder to challenge.

Introduction and background

Two years ago I referred Cygnet directors who had been seriously criticised for harming a whistleblower to the Care Quality Commission under CQC Regulation 5 Fit and Proper Persons (FPPR).

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

Under this regulation, the CQC has powers to ensure that a provider has satisfactory processes for ensuring that its directors are Fit and Proper Persons.

The CQC has typically manipulated matters to allow board members of regulated bodies to evade accountability for serious wrongdoing.

It has done so by claiming that it has no remit to assess if individual directors are Fit and Proper Persons.

Instead, CQC claims it can only look at processes.

This is of course arrant nonsense. If for example, a regulated organisation appoints a freshly convicted serial killer to its board, even CQC might be forced to admit that based on an assessment of the individual, the provider was in breach of FPPR.

CQC Regulation 5 demands that directors must be of “good character”:

1. “The requirements referred to in paragraph (2) are that—
   1. the individual is of good character,
   2. the individual has the qualifications, competence, skills and experience which are necessary for the relevant office or position or the work for which they are employed,
   3. the individual is able by reason of their health, after reasonable adjustments are made, of properly performing tasks which are intrinsic to the office or position for which they are appointed or to the work for which they are employed,
   4. the individual has not been responsible for, been privy to, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of carrying on a regulated activity or providing a service elsewhere which, if provided in England, would be a regulated activity, and
   5. none of the grounds of unfitness specified in Part 1 of Schedule 4 apply to the individual.”

Moreover, CQC’s own internal guidance shows that CQC is perfectly aware that it can use other regulations to force the removal of unsuitable provider directors, should it wish to.

“It is not the responsibility of CQC to ensure fitness although we can take action against the provider if we believe an unfit person to be in a directorship position.”

That is the key issue. Does CQC wish to?

Current media interest in CQC’s handling of FPPR and the UHB scandal

CQC’s disgraceful handling of FPPR is back in the full glare of publicity because the controversial investigator for the UHB scandal Mike Bewick has omitted to examine UHB’s much-criticised FPPR process in his phase one review of UHB.

This has provoked criticism from an external reference group  which includes local politicians, who have questioned whether there has been a cover up at UHB:

“There are also several gaps in the report including the lack of recommendation resulting from the conflicting CQC reports. We must be granted access to previous documents such as the Fit and Proper Person Review (FPPR) which have not been shared. Releasing these reports and details of the process and people involved in commissioning and carrying them out is important to help ascertain any conflicts of interest, whether decisions made have contributed to the propagation of UHB’s toxic culture, and whether these amount to a ‘cover up’

 Bewick’s omission of FPPR issues from his review relied on a false premise.

Bewick claimed that he did not request a copy of UHB’s still secret FPPR investigation or investigate UHB’s handling of FPPR because it was not within the scope he had been given:

“Page 11: “Whilst we have not seen or requested a copy of the internal UHB FPP review (and this was beyond the original scope of our work….”

This was peculiar because the terms of reference given to Bewick allowed him to go wherever the evidence took him:

“The review will be independent and without limits but will include….”

Opening the can of FPPR worms at UHB would have involved exposing  the CQC’s wrongdoing on FPPR at UHB as well.

Unsurprisingly, Bewick kicked that can down the road.

In this political backdrop, another astonishing but fully predictable CQC failure on FPPR has concluded in the whistleblowing case of Dr Ambreen Malik at Cygnet Health Care.

CQC’s contention that Cygnet is compliant with FPPR

After I referred the relevant Cygnet directors to CQC under FPPR in the light of the extremely critical judgment against Cygnet for whistleblower reprisal, the CQC delayed and justified the delay because Cygnet had appealed against the ET.

During this time, thousands of Cygnet patients remained potentially exposed.

Only after lengthy legal proceedings concluded did CQC wrap up the FPPR process.

If CQC was concerned about patients, it would have independently reviewed Cygnet’s compliance with Regulation 5 without delay, and taken the approach that it would update any assessment if new information emerged.

In the UHB matter, CQC found UHB compliant with Regulation 5 but added that it would “reserve the right to review the case if further information is presented to the CQC”.

When it suits, in the pursuit of protecting the powerful, the arbitrary CQC will do as it pleases.

Notwithstanding, long after the original FPPR referral and with much, much suffering by Dr Ambreen Malik in between, CQC eventually wrote to me on 20 March 2023 with its standard, high handed FPPR closure letter.

The letter came from CQC’s latest Chief Inspector of Hospitals, Sean O’Kelly, and ended with the signature CQC equivalent of shutting the door in a correspondent’s face:

“This concludes CQC’s review of Cygnet Health Care under this regulation, as well as our correspondence with you on the application of Regulation 5 to all information you supplied.”

For the sake of Dr Malik’s privacy I am not going into details, but the shocking disparity between CQC’s inaction and indifference, and everything that she has suffered is truly unforgivable.

Also, with impeccable timing  CQC chose to shut down this Cygnet FPPR in the middle of the five week criminal trial of staff from Whorlton Hall (a Cygnet facility) , regarding abuse against highly vulnerable residents. This abuse was enabled by CQC’s failures to act upon the concerns of its own staff, including CQC whistleblower Barry Stanley Wilkinson.

The nine defendants in the Whorlton Hall abuse trial:

I questioned the lack of information provided on CQC’s FPPR decision, citing CQC’s proven and serious unreliability in the Rosser FPPR referral.

This was met with slightly more information on 3 April 2023, including a disclosure that O’Kelly is the current Chair of CQC’s FPPR committee, which makes the decisions on referrals:

O’Kelly’s role as chair of CQC’s FPPR committee introduces a potential conflict of interest. He may be faced with FPPR referrals which challenge the validity of previous, favourable CQC ratings for which he has ultimate responsibility as Chief Inspector.

Laughably and cynically, CQC suggested that I should contact Cygnet for a copy of the reports upon which CQC’s exoneration of Cygnet was based.

But for completeness, I will ask for a copy from Tony Romero Group CEO of Cygnet Health Care,  whom the original ET criticised.

I doubt that Cygnet would be likely to willingly disclose their reports.

And of course, Cygnet Health Care is a private provider and beyond the reach of FOIA, so the reports cannot be obtained by this route either.

CQC’s ridiculous contention that Cygnet is compliant with FPPR because Cygnet’s whistleblowing processes have purportedly improved is predicated on an assumption that individuals change.

Some individuals are not capable of and may not wish to change. No amount of improved processes will protect patients or whistleblowers from such individuals.

That is why less compromised regulators actually ban failed/ rogue directors.

For example, Neil Cruickshank the former senior manager ultimately responsible for the Winterbourne View abuse scandal, who did not listen to whistleblowers’ disclosures, was banned for eight years by the Insolvency Service.

It is a pity that the same cannot be done to CQC, who failed to listen to the Winterbourne View whistleblowers and still fail horribly to listen to or protect whistleblowers by removing abusers.

I also asked NHS England on how it could exert its commissioning leverage to improve whistleblowing governance in the private sector. I have had no response despite numerous chasers.

It is also moot whether processes at Cygnet have genuinely improved. Scandals continue to emerge on a regular basis about Cygnet facilities, and most seriously of all, some of the scandals feature lack of learning and improvement after previous identification of failings.

Some of Cygnet’s continued failures Mental health hospital where patients were ‘bullied and abused by staff’ put into special measures Investigation at Cygnet St Williams in Darlington after reports of ‘bullying’ Hexham psychiatric hospital remains ‘inadequate’ after safety fears raised, despite improvements

Questions remain

Are some providers too big, wealthy and powerful to be allowed to fail?

And what of the revolving door between regulators and such powerful providers?

How many senior managers in our regulators have their eyes on the glittering prizes on the other side of the fence, and does that affect how they discharge their regulatory duties?

Sir David Behan appointed chair of HC-One

Loss-making care home firm HC-One, pays £1.8m dividend to its private equity owners

UPDATE

I have written as planned to asked Cygnet for a copy of their external FPPR reports:

BY EMAIL 

Dr Tony Romero 

CEO Cygnet Health Care Ltd

6 April 2023

Dear Dr Romero,

External FPPR reports 

The Care Quality Commission has informed me that an Fit and Proper Person referral that I made on Cygnet directors under CQC Regulation 5 in 2021 has concluded, with the regulator concluding that whistleblowing processes at Cygnet have improved to the point where CQC considers that Cygnet is now meeting the requirements of Regulation 5.

I asked the CQC if there had been any transparency about the findings of external reports commissioned by Cygnet which the CQC relied upon to reach its conclusion of improvement.

The CQC did not reply directly to this question but suggested that I contacted Cygnet if I wanted copies of these external reports. They are:

– The external report shared with CQC in August 2021

– A supplement to this report in September 2022, which was shared with CQC in January 2023

In the NHS, the best practice guidance from NHS Providers is that there should be transparency about FPPR investigation findings, at least in summary form. 

NHS Providers’ guidance also emphasises that visible rigour is important in contentious cases and where there have been failures of whistleblowing governance.

I would be grateful if Cygnet could accordingly disclose either copies of the external FPPR reports that it commissioned, or at least a summary of the main findings and recommendations.

I copy this to Sean O’Kelly CQC Chief Inspector of Hospitals, Amanda Pritchard CEO of NHS England in view of commissioning issues, and the relevant House of Commons committees.

Many thanks.

With best wishes,

Minh

Dr Minh Alexander

cc Sean O’Kelly CQC Chief Inspector of Hospitals

Amanda Pritchard  CEO NHS England

Health and Social Care Committee

Joint Committee on Human Rights

I sent the above request to Cygnet on 6 April 2023 at 11.55 am.

I received the following reply from Cygnet’s General Counsel at 12.36 pm.

RELATED ITEMS

Joint Committee on Human Rights: False reassurance serves only to perpetuate abuse & shield abusers

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

CQC Whorlton Hall Cover Up: More CQC responses & culpability

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

NHSE, ICB and UHB’s three-ring circus and Rosser’s digital assignment

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

PHSO alleges it has been excluded from NHSE/ICB’s reviews on UHB & ICB’s factual inaccuracy to the Joint Health Overview and Scrutiny Committee