Deaths? What deaths? The Rt Hon Steve Barclay and the Denial Machine

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 11 March 2018


Steve Barclay the recently appointed Minister of State for Health and Social Care was, a leading light in the charge against David Nicholson post MidStaffs, and a fierce interrogator of the CQC’s former Labour-appointed chief officers when he was a member of the Public Accounts Committee.

Fair play to a job well done.

But equally, the political capital made out of Mid Staffs by Jeremy Hunt has been brazen and most distasteful, especially when he has refused to implement some of the most critical recommendations on safe staffing and firm deterrence of whistleblower reprisal.

Whistleblowers learn from experience that there are few lasting and dependable reference points in the complicated corridors of power.

An appeal was made to the Steve Barclay in his new capacity as Minister of State to remedy his Department’s blatant obfuscation on and negligent handling of coroners’ warnings.

After all he had, on the back benches, said many fine things about learning from disaster, and he had previously attacked failures to act upon data:

Stephen Barclay

It is correct that improvements were made in the collation of data. In fact, the Dr Foster data were published in national newspapers from 2001, but what is remarkable is that they were not acted on. That is the central charge for Ministers. We were the world leader in the collation of mortality data. We had the data, but Ministers did nothing with them.”

Hansard: Parliamentary debate 14 March 2013 on transparency and accountability in the NHS


The appeal to Barclay was backed up with evidence from many months’ work, tracing coroners’ warnings about the NHS between July 2013 and July 2017 and the system response to these warnings.

But it was not to be. There was no personal reply. Just a curt note from an official, via the ‘Do not reply’ email account, denying any mishandling. This note ended on a typically defiant trumpet solo:

“a series of actions have been put in place to ensure that safe, high quality ambulance services continues to be provided.”

Continues? Continues?! On Planet Comms with humongous side order of assorted hallucinogenics perhaps.

The correspondence with Barclay is provided below, as are some examples of the ‘safe, high quality ambulance services’ that the government claims it is providing.


Screen Shot 2018-03-11 at 07.53.34

16900 people in a week kept in NHS ambulances waiting for hospital care




From: Department of Health and Social Care <>

Subject: From the Department of Health and Social Care

Date: 9 March 2018 at 12:29:08 GMT

To: “Alexander, Minh” <*************************>


Our ref: DE-1119800


Dear Dr Alexander,

Thank you for your correspondence of 13 February to Stephen Barclay about the Department’s handling of reports on action to prevent future deaths issued by coroners.  I have been asked to reply.


The Department does not accept your assertion that the reports are mishandled and I was sorry to read that you feel the reports are not taken seriously.  This is not the case.  I am aware that the Department has corresponded with you on this matter previously and refer you to the response given on 10 October 2017 (our reference DE-1096208).


I can assure you that the Department takes very seriously its statutory duty to respond to reports on the prevention of future deaths.  The reports play a valuable role in bringing serious matters of concern to the attention of the appropriate bodies that have the ability to take action to prevent avoidable harm.  As explained previously, the Department ensures that the relevant regulators and other bodies are made aware of the matters of concern brought to its attention so that the system can respond as appropriate.


Patient safety is a priority for this Government and learning lessons where things have gone wrong is essential to ensuring the NHS provides safe, high quality care.  Responding effectively to matters brought to its attention through the inquest process is a recognised and important part of this.  I would point out that coroner’s reports and their responses are publicly available once published by the Chief Coroner, thus bringing transparency to the process.


With regard to your concerns about the East of England Ambulance Service NHS Trust, the Department is aware that concerns have been raised about the trust, including questions about whether delays to ambulance responses have caused additional harm to patients during significant demand pressures experienced over the Christmas period.  We take seriously any claims that there was detriment to patients, and have ensured that quick action has been taken to examine these.  The trust has identified any potential cases where there were serious delays, and following an initial investigation the trust is examining 22 cases through the ‘serious incident’ procedure.  This process is being independently assured.


Additionally a risk summit has been held with the input of NHS Improvement, NHS England and the Care Quality Commission, and a series of actions have been put in place to ensure that safe, high quality ambulance services continues to be provided.


I hope this reply is helpful.
Yours sincerely,

Ellie Boyle
Ministerial Correspondence and Public Enquiries
Department of Health and Social Care



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From: Minh Alexander <>

Subject: Government mishandling of coroners’ warning reports on action to prevent future deaths

Date: 13 February 2018 at 06:23:18 GMT

To: Steve Barclay *************************

Cc: Brian Jarman <**************************>, julie bailey <*************************>, heather wood <*****************************>




Mr Steven Barclay


Minister of State


Department of Health and Social Care


13 February 2018



Dear Mr Barclay,


Government mishandling of coroners’ warning reports on action to prevent future deaths


I write to ask what action you think the Department of Health should take in respect of my findings on mishandling of coroners’ warnings by the Government and its arms length bodies.


The full report of my findings can be found here: Safe in their hands? Government’s response to coroners’ warnings about the NHS


The Centre for Health and the Public Interest ran a blog which summarised the findings: Lives at risk. The Government’s inadequate management of coroners’ warnings about the NHS



In short, it seems to me that the Government and its arms length bodies have not taken coroners’ warnings seriously enough and that this has had the effect of concealing serious unmet need and mounting NHS crisis. In particular, there is a trend of deteriorating ambulance safety, which triangulated with other parameters such as numbers of complaints, serious untoward incidents and other performance data, which all should have been acted upon a lot sooner to avert the shocking events that we have just seen with respect to the East of England Ambulance Service.*


I myself live in the same area with a very ill husband. Having spent hours last winter in A&E with my husband on a trolley, I have no confidence that struggling emergency services can reliably meet our needs. I hope you can understand how terrifying that is.


I understand that you were previously very critical of flawed and reckless NHS leadership which covered up safety problems and led to the Mid Staffs disaster **. I hope you will act to ensure that unmet need does not continue to be swept under the carpet by this Government.


With best wishes,


Dr Minh Alexander


cc Prof Sir Brian Jarman

Julie Bailey Cure the NHS

Dr Heather Wood


East of England Ambulance delays linked to 81 deaths


**Police should investigate Labour ministers over Mid Staffs


National Guardian’s Stakeholder Advisory Group: Speaking Up only when permitted?


By Dr Minh Alexander and Clare Sardari @SardariClare , NHS whistleblowers, 27 February 2018


In October 2016 the National Guardian told the Health Service Journal that she intended to establish a stakeholder advisory group:

“She said the cases the office would look at would be decided by a “stakeholder advisory group”, which would include people with experience of whistleblowing.”

However, the advisory group was not established until after the National Guardian and CQC had finalised the processes for selecting whistleblower cases for review, raising questions of tokenism.

The first advisory group meeting took place on 3 November. About 25 people attended. Most of the meeting time was devoted to the National Guardian’s Office’s pre-determined issues. This hugely expensive meeting, which took up the costly time of senior NHS managers, served mainly to change just a few sentences in the National Guardian’s terms of reference and ‘values and expectations’ document for the group itself.



National Guardian’s terms of reference for the advisory group, December 2017

National Guardian’s ‘Values and Expectations’ for the advisory group December 2017



There was limited meeting time devoted to what advisory group members considered should be the work of the National Guardian’s Office, but in that time almost all whistleblowers present indicated that they wanted to see reform of very inadequate UK whistleblowing law.



Despite advisory group agreement that:

  • The minutes of the meeting should be detailed enough to reflect the discussions and table notes, and provide meaningful information for whistleblowers and others who were not able to attend the meeting;


  • Details of the advisory group membership would be included in the meeting minutes for transparency,

the minutes of the meeting, sent out on 13 December 2017 , were minimal with no attendance or membership details. Neither was there any mention about the discussion that had taken place about the need for meeting minutes to be informative and so inclusive of all whistleblowers interested in the work of the group.

Ideas contributed by group members were largely reduced to ‘word clouds’. For example, this was the word cloud for ‘What matters to you?’, which made no mention of law reform:

Screen Shot 2018-02-26 at 12.47.04


A list of members was finally provided on 29 January 2018:

 List of members of National Guardian’s advisory group


The stakeholder advisory group will meet only four times a year. It is too large to allow more than superficial discussion.

Based on events so far, the advisory group is likely to be just another fig leaf for a programme which the government has no intention of changing, no matter what whistleblowers say.

A suggestion on the 3 November 2017 was that the National Guardian should set up an electronic noticeboard, where advisory group members could post ideas and carry on discussions between meetings. This idea is not mentioned in the meeting minutes and no such facility has been established. But then, why foster a community with alarming tendencies to independent thought if what is required is a rubber stamp?



A persistent power dynamic of the Freedom To Speak Up project is that whistleblowers are have been repeatedly patronised, and fobbed off, and treated more as passive subjects who are expected to fit around whatever systems and processes are presented to them.

In an attempt to shift this dynamic, we asked the National Guardian at the meeting of 3 November 2017 to consider allowing whistleblowers to lead an event. The reply was affirmative, subject to agreement of details.

The response became less affirmative after we submitted a proposal to lead an event on reform of UK whistleblowing law, the Public Interest Disclosure Act (PIDA). Our proposal was passed to a comms manager who claimed that law reform was not part of the National Guardian’s remit.

However, the National Guardian is free to pursue any issue that may be a barrier to speaking up in the NHS, as was made clear by the Care Quality Commission’s position specification:

“The National Guardian will have a highly visible role in providing support to the system. This will include the sharing of good practice, reporting on common themes in concerns raised and actions taken, identifying barriers to improvement and how these might be overcome, and reporting on progress towards the creation of a safe and open culture.”

The comms manager also declined to provide practical support with sending out invitations, on this creative basis:

“You asked for assistance in sending out invitations and distributing an ‘event pack’. We think that this might compromise the independence of the event so feel that invitations may be better coming from you.”

Appearing to contradict himself, he stipulated that the National Guardian’s Office would only help promote the event after vetting any materials:

“We would, of course, be happy to promote the event to our stakeholders, though any material we use for that will need to go through our normal communications quality assurance process.”

Finally, he required that any event led by us should reflect the Office’s aims:

“…we must be mindful that resources that are used for this event should also advance the general aims of the National Guardian’s Office.”

All this seems to ironically suggest that speaking up within the National Guardian’s advisory group process is only allowed on permitted topics. If so, this defeats the purpose of the group.

The National Guardian herself has been asked to clarify her Office’s position. Her initial response did not provide clarification, and a further request has been made:

National Guardian correspondence about whistleblower led event


Law Reform:

Law reform is key to enforcing good practice and driving culture change.

The National Guardian refused a year ago to seek law reform based on a flawed argument (originally advanced by the government and supported by Robert Francis) that work on culture change should take priority over law reform.

“I do understand the views of campaigners who say that the current legislation requires reform. However, we are not currently seeking to campaign for changes to the law. Instead, we will be working collaboratively with a wide range of bodies to deliver a reformed NHS culture where freedom to speak up is ingrained and becomes ‘business as usual’

Letter by Dr Henrietta Hughes 16 February 2017

It would be disappointing if the National Guardian ignores her own advisory group and continues in this position, without even listening to expert evidence and debate about the need for law reform.



Sir Robert Francis and Reform of Whistleblowing Law

UK Whistleblowing Law is an Ass: Helen Rochester v Ingham House Ltd and the Complicit CQC

Professor David Lewis Middlesex University ‘Whistle-blowers should be encouraged, protected by law’



Letter to Dido Harding Chair of NHS Improvement about un-gagging NHS whistleblowers

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 22 February 2018


The government is reluctant to let go of gagging in the public sector. It is a useful political tool of control, and very handy when embarrassing policy failures need to be minimised and covered up.

The CQC has blatantly dragged its feet and effectively refused to regulate NHS employers’ abuses through the gagging of staff, including whistleblowers:

NHS Gagging: How CQC sits on its hands

However, the NHS’ liberal use of secrecy clauses is causing karmic chaos with respect to the employment support scheme for sacked whistleblowers. Super-gagged whistleblowers cannot access the scheme because they cannot disclose all the necessary information as part of the application process.

More Loopholes in Jeremy Hunt’s Secret ‘Support’ Scheme for Whistleblowers

NHS Improvement (NHSI) and NHS England have resisted seeking a government waiver. A government waiver is still needed as the latest workaround proposed by NHSI, as an alternative to a government waiver, is flawed.

I have asked the Chair of NHSI seek a government waiver and also that NHSI indemnifies any whistleblowers who decide to risk breaking gags on the basis of assurances obtained by NHSI.

The correspondence, including a draft letter by NHSI to NHS trusts about gagged whistleblowers’ participation in the employment support scheme, is provided below.




Dido Harding

Chair of NHS Improvement

22 February 2018


Dear Dido,

NHS whistleblower employment scheme – provision for gagged whistleblowers

Thank you for your prompt response of 10 February 2018 to mine of 5 February 2018 on this issue, both copied below.

At a Design and Monitoring Group (DMG) of the Employment Support Scheme (ESS) on 19 February, NHS Improvement (NHSI) informed whistleblowers that its letter to trusts about gags was to be circulated the next day. I asked to see the letter and was advised that a copy would be shared after circulation. On 21 February NHSI decided to share a draft copy of the letter with the DMG and to invite comments.

I do appreciate the effort made to further accommodate the needs of gagged whistleblowers, and acknowledge that this matter predates your arrival, but NHSI’s draft letter does not appear to present a clear solution.

NHSI’s draft letter asks trusts to declare whether they have clauses in settlements that might prevent whistleblowers from applying to the ESS. Legally, trusts that have entered into mutual super-gags, cannot even reveal the existence of such settlement agreements.

Super-gags are usually mutual. Indeed, NHS Employers’ current guidance includes as standard, the use of a mutual super-gag in its template settlement agreement:

“1.2 The Employer shall use its reasonable endeavours to ensure that its directors, officers, agents and employees shall not divulge the fact of, negotiation, nature and/or terms of the Agreement except to its professional advisers in connection with the conclusion of this Agreement or where required by any competent authority or Court of Law or HM Revenue & Customs or as otherwise required by law.”

I am also concerned that NHSI’s draft letter to trusts lacks clarity and presents unfeasible risks to whatever meagre financial security, dependent on strict compliance with gags, is left to whistleblowers. Perhaps an opinion from senior Treasury lawyers may assist.

Notwithstanding, NHSI’s letter to trusts will not substantively move the situation forward. The NHSI ESS manager informed whistleblowers that NHSI was implementing the above workaround as it would “take too long” to implement a government waiver. However, I see no option but a government waiver because of the tight legal seals on super-gagged NHS whistleblowers. If a government waiver had been sought when I first raised it, with NHS England, in January 2017, and subsequently with NHSI in February 2017, we might not be in the position we are now.

I wonder if NHSI could:

  1. Seek a government waiver to release trusts and whistleblowers who are gagged and super-gagged. As both the Secretary of State and Minister of State have been vociferous past critics of gags in the NHS, I would hope that the Department of Health and Social Care would look on this favourably.

2013 letter from Jeremy Hunt exhorting NHS trusts to check secrecy clauses in settlement agreements, with respect to learning the lessons from MidStaffs

2013 report of the Public Accounts Committee, of which Mr Steven Barclay was a member, on on Confidentiality Clauses and Special Severance Payments

Article by Mr Steven Barclay from his constituency website: Uncovering £4m of secret NHS Payoffs to gag potential whistleblowers


  1. For those gagged whistleblowers willing to take the risk of applying to the ESS on the strength of assurances obtained from employers by NHSI, indemnify them against any further action by their former employers including any attempt to recover settlement payments.


Regarding the continuing lack of an employer pool to offer trial employment to sacked whistleblowers, as recommended by Robert Francis, please see my letter to NHS Improvement about the current state of play.

A properly established, safe pool of employers is a key and urgent need. Whilst NHSI says it has been making ad hoc arrangements for some of the seven whistleblowers taking part in the pilot phase (and I am aware that at least two of these people have so far had no offers of trial employment from NHSI), this is not a good basis for safe re-entry. NHSI itself accepts the principle that employers must be properly vetted, as the last thing that whistleblowers need is to be mistreated all over again. As you will see from my above letter to NHSI, not even a draft checklist for vetting employers has been produced yet, so it is hard to understand how exactly NHSI has vetted trusts that have been approached as part of the pilot phase of the ESS. I hope that NHSI can commit to a clear action plan for establishing an employer pool, with timescales for key tasks, as requested.


With best wishes,



Jeremy Hunt Secretary of State for Health

Steven Barclay Minister of State for Health and Social Care



“To Directors of HR/Workforce in NHS trusts and NHS foundation trusts

You will be aware that we are piloting an whistleblowing support scheme (WSS) for former NHS staff who have raised concerns and are trying to get back into NHS employment, as recommended in Sir Robert Francis’s Freedom to Speak up review. For further detail on the WSS please see attached briefing pack and the link to our webpage at

We are advised that some former NHS staff who want to apply for the scheme believe they cannot do so as a result of clause(s) in their settlement agreements.  This appears to be preventing access to the scheme for some relevant former NHS staff.  We would therefore like you to advise us as to whether you have any clauses in settlement agreements with former employees which you would enforce, and which would prevent those employees from completing the WSS application process.   Assuming not, this will then enable us to communicate that your trust would not take action against any former employees for divulging necessary information to complete an application for the scheme. The scheme application form is attached so that you can review the questions asked and documentary evidence required within the application process.

Please use one of the following sentences for your email response to by Friday 23 March

1.       The trust has no clauses in settlement agreements with former employees which we would enforce, and which would prevent those employees from completing the WSS application process.

2.       Yes, the trust has clauses in settlement agreements with former employees which we would enforce, and which would prevent those employees from completing the WSS application process.

Any queries should be directed to Wendy Webster WSS Manager at in the first instance.

Separately, if you have not already committed your support to the scheme (see slide 6 of the attached briefing pack) I would encourage you to do so by contacting Wendy Webster at the email address above.

Best wishes


Maria Robson | Head of Trust Resourcing”


From: “HARDING, Dido (NHS IMPROVEMENT – T1520)” <*********************>

Subject: Re: NHS whistleblower employment scheme – provision for gagged whistleblowers

Date: 10 February 2018 at 13:55:09 GMT

To: Minh Alexander <********************>


Dear Dr Alexander,

Thank you for your email of 5 February 2018 and I note your comments and concerns. The issue of “gagging clauses” is under discussion between the Whistleblowing Support Scheme lead, Maria Robson and NHS Improvement’s legal advisers and as I shared in a recent meeting, consideration is being given as to how we can ensure that all whistleblowers can access the Whistleblowing Support Scheme.

We are hoping to be able to obtain confirmation from NHS trusts and foundation trusts as to whether they have any clauses in settlement agreements with former employees which would prevent those employees from completing the Whistleblowing Support Scheme application process. We intend to attach the scheme application form so that organisations can fully consider the questions asked and documentary evidence required within the application process. Where organisations confirm that there are clauses in settlement agreements that would prevent their former staff from applying for the scheme, we will then be in a position to follow up this issue with individual trusts and suggest proposed work arounds that ensure full access to the scheme by individuals. These work arounds could include for example, a written assurance that referencing the settlement agreement when completing the application form will not lead to any action by the trust against the individual.

Assuming the current internal conversations are satisfactorily concluded, we anticipate contacting trusts before the end of the month with responses required before the end of March 2018 to give organisations a realistic opportunity to check their records and consider their responses (with their own legal advisors if necessary) before replying. I understand you are a member of the Whistleblowing Support Scheme group, and Wendy Webster has advised that this will be a subject of discussion at the next meeting.

With regards to your concern regarding “a pool of NHS employers,” I understand that there have been discussions at the monthly Design and Monitoring Group meetings, outlining the three employer events during which NHS employers were invited to and did make commitments to support the scheme. The events were very well attended which not only raised the profile of the pilot schemes developed by NHS Improvement and NHS England but also encouraged employers to consider what support they could give to participants on the schemes including access to libraries, training, placements etc. Trusts within the locality of current pilot participants have been contacted directly to consider and offer opportunities within their organisations as part of the pilot scheme. The commitments already made by other trusts will be further explored as part of the development of the main scheme.

NHS Improvement and NHS England continue to work and engage with other organisations such as the National Guardians office, NHS Employers and the Care Quality Commission to address and resolve some of the barriers for whistleblowers resuming their careers.

We welcome and value your continued input and that of other whistleblowers to help us learn from the pilot scheme and develop a successful main scheme.

Many thanks and Best Wishes



From: Minh Alexander <********************>
Date: Monday, 5 February 2018 at 12:33
To: “HARDING, Dido (NHS IMPROVEMENT – T1520)” <********************>
Subject: NHS whistleblower employment scheme – provision for gagged whistleblowers



Dido Harding

Chair of NHS Improvement

5 February 2018


Dear Ms Harding,

NHS whistleblower employment scheme – provision for gagged whistleblowers

I write to ask if you could kindly advise on NHS Improvement’s arrangements and plans regarding this important matter.

Gagging of staff with secrecy and non-disparagement clauses remains a widespread problem in the NHS, and many whistleblowers are forced into accepting compromise agreements as the only option available for total avoiding financial ruin.

Some trusts such as Mersey Care NHS Foundation Trust, Imperial College Healthcare NHS Trust, East Lancashire NHS Trust and Liverpool Community Health NHS Trust have revealed via FOI that they have super-gagged hundreds of staff through clauses in compromise agreements which forbid signatories from revealing the very existence of the compromise agreements. Mersey Care NHS Foundation Trust alone accounted for 443 super-gags over a five year period.

Robert Francis recommended in his report of the Freedom To Speak Up Review that the Care Quality Commission should monitor NHS employers’ use of compromise agreements, but the CQC has shown great reluctance and there is no evidence that it has done so.

Indeed, NHS Employers publishes a template for compromise agreements which include such super-gags.

NHS whistleblowers who are super-gagged may not talk about the contents of their compromise agreements or the existence of agreements. They may also be subject to clauses preventing them from contacting their former employer about employment matters.

This makes it impossible for super-gagged whistleblowers to access the NHS whistleblower employment scheme.

Both NHS England and NHS Improvement were warned about this long ago but failed to address this issue. This has compounded already very serious delay in establishing the scheme, despite the scheme being recommended as an ‘urgent’ measure by Robert Francis in February 2015. *

It is clear that neither body truly understands the issues or is willing to seek a much-needed government waiver. This lack of understanding has been evidenced by the fact these bodies have floundered and given very foolish, unfeasible advice when challenged about their lack of proper preparation.

I understand that you recently advised in a meeting that NHS Improvement believes it may be approaching some sort of legal fix.

I would be grateful if you could you give more information about NHS Improvement’s work in progress, who is leading it and what the timescale is for resolution.

For completeness I should also let you know that there is still no sign of

of a ‘pool’ of NHS employers prepared to offer trial employment to persons being supported through the scheme”

as originally recommended by Robert Francis. This is despite repeated enquiries and corresponding assurances that NHS England and NHS Improvement were working to establish a pool. The most recent response from NHS England appeared dismissive of the need for a properly established, structured and fair system.

NHS England minimised the failure to establish a pool to date on the basis that as so few whistleblowers had applied, that it was possible to make ad hoc approaches to employers. This is not good equal opportunities practice, and serious concerns have already been raised about the scheme’s adherence to equal opportunities principles.

NHS Improvement has not so far commented in response to the most recent queries about the failure to establish an employer pool.

Many thanks,

Dr Minh Alexander


*Robert Francis’ urgent February 2015 recommendation for the establishment of a scheme to support whistleblowers back into employment, page 153 of the Freedom To Speak Up Review report:


Beyond that, I believe that there is an urgent need for an employment support scheme for NHS staff and former staff who are having difficulty finding employment in the NHS who can demonstrate that this is related to having made protected disclosures and that there are no outstanding issues of justifiable and significant concern relating to their performance. This should be devised and run jointly by NHS England, the NHS Trust Development Authority and Monitor. As a minimum, it should provide:

  • remedial training or work experience for registered healthcare professionals who have been away from the workplace for long periods of time


  • advice and assistance in relation to applications for appropriate employment in the NHS


  • the development of a ‘pool’ of NHS employers prepared to offer trial employment to persons being supported through the scheme


  • guidance to employers to encourage them to consider a history of having raised concerns as a positive characteristic in a potential employee.”




Concerns about Liverpool John Moores University’s evaluation of the NHS Whistleblower Employment Support Scheme

By Dr Minh Alexander and Clare Sardari @SardariClare  21 February 2018


Concerns about NHS England’s and NHS Improvement’s whistleblower employment support schemes rumble on, including from the man who came up with the idea, Robert Francis:

At the NHS Improvement Soup Kitchen

Jeremy Hunt’s Secret Whistleblower (Non-Employment) Scheme

More loopholes in Jeremy Hunt’s ‘support’ scheme for whistleblowers

Comments by Robert Francis on 7 November 2017

Correspondence with an NHS England manager about the whistleblower employment support scheme and issues of equity

Letter to NHS Improvement about continuing delay in establishing an employer pool and lack of equal opportunities process


The evaluation of the scheme commissioned from Liverpool John Moores University by NHS England and NHS Improvement is now part of the concerns.

A letter has been sent today to the University about these concerns.



Research Ethics Unit

Liverpool John Moores University

21 February 2018


Dear Sir,

Concerns about Liverpool John Moores University’s evaluation of the NHS Whistleblower Employment Support Scheme

We write to raise concerns about the operation of Liverpool John Moores University’s online evaluation of NHS England and NHS Improvement’s whistleblower employment support scheme. (ESS).

Please see copied in the appendix below the University webpage which gives access to its online evaluation survey about the ESS, and the online evaluation survey questions.

Our concerns about the University’s evaluation of the ESS are as follows:


  1. Lack of meaningful, properly established measurement

It has been revealed that although the evaluation by the University was meant to be predicated on KPIs set by NHS England, no such KPIs have actually been set.

On 8 September 2017 NHS England circulated a ‘High Level Plan’ on evaluation of its ESS by the University which referred to KPIs set by NHS England.

Subsequent repeated enquiries, initially to the University and then to NHS England, failed to reveal what these KPIs were. Eventually, on 29 January 2018, NHS England answered thus:

“Dear Minh

Thank you for your message. 

 The outcome we are seeking from Working Transitions is the provision of a support service to the current participants on the pilot scheme in line with their personal development plan.  Each participant, through engagement with their coach,  develops a bespoke package of support and a personal development plan. This plan is monitored by WT and is confidential between each individual on the scheme and Working Transitions. We have asked that WT report to us on the timing of the development of the action plans, but not the content.

We also hold regular financial and other contract assurance meetings and have ongoing quality improvement conversations with Working Transitions which help shape the support scheme for the benefit of all the participants. As a result of this engagement activity we have made some live changes to the pilot scheme.  

In moving forward as we reflect on the learning from the pilot scheme and move to the final programme of support we anticipate that we will set formal KPIs in the following areas: 

A financial KPI to ensure that the provider works within the budget allocation

A KPI relating to the establishment of the first coaching session

A KPI relating to the development of the action plan (which will probably be by the third coaching session)

A KPI relating to the delivery of the individual development plan.

Sent with kind regards


On behalf of

Whistleblowing Support Scheme

Freedom to Speak Up Programme Team

Experience Participation and Equlaities Group |Nursing Directorate |NHS England”


That is, NHS England effectively admitted that although the University’s evaluation of the ESS had commenced, no KPIs had been set for the ESS.

Partly in consequence of the above, the University’s evaluation will be measuring data that is not meaningfully standardised and therefore not comparable or easily interpretable. Instead, it will be more akin to anecdote gathering.

At an NHS Improvement event on 22 September 2017 attended by Daz Greenop, Daz was asked by whistleblowers to ensure that the evaluation was designed with reference to the original goals set for the ESS in the Freedom To Speak Up Review, which the Government accepted.

 “Whistleblowers stressed the importance that the evaluation should be grounded in the original recommendations of the Freedom To Speak Up Review” 

This does not appear to have happened.

There is no specific reference in the University’s evaluation questionnaire to the essential components of the original Freedom To Speak Up Review recommendations, which included:

  • remedial training
  • trial work experience
  • access to a pool of employers



Report of the Freedom To Speak Up Review 11 February 2015 regarding a re-employment scheme for whistleblowers:

7.3.8 Beyond that, I believe that there is an urgent need for an employment support scheme for NHS staff and former staff who are having difficulty finding employment in the NHS who can demonstrate that this is related to having made protected disclosures and that there are no outstanding issues of justifiable and significant concern relating to their performance. This should be devised and run jointly by NHS England, the NHS Trust Development Authority and Monitor. As a minimum, it should provide:

• remedial training or work experience for registered healthcare professionals who have been away from the workplace for long periods of time


• advice and assistance in relation to applications for appropriate employment in the NHS


• the development of a ‘pool’ of NHS employers prepared to offer trial employment to persons being supported through the scheme


• guidance to employers to encourage them to consider a history of having raised concerns as a positive characteristic in a potential employee.”



Instead, the University’s evaluation questionnaire asks questions about matters of subjective experience. Again, this will end up with much anecdote and not enough hard performance data.

The University’s evaluation will not properly measure what the ESS was established to do.

The University will effectively not be conducting a comprehensive, rigorous evaluation despite whistleblowers pointing out relevant source material, and it will risk giving the government a soft ride.

For the University’s information, NHS Improvement and NHS England continue to seriously fail in their delivery of basic components of the ESS, and it is arguably somewhat nonsensical to be evaluating the scheme in this context:

Sir Robert Francis, the author of the Freedom To Speak Up Review, has been critical of NHS England and NHS Improvement’s handling of the ESS:


  1. Equity of access to the evaluation

The University has not taken sufficient responsibility for ensuring appropriate distribution of the link to its online evaluation survey, and has thereby allowed NHS England and NHS Improvement to potentially skew the results in their favour by restricting access to groups who are likely to be less critical.

A formal complaint is currently being processed by NHS Improvement about the fact that NHS Improvement did not share the link to the evaluation survey with the official group of stakeholders (mostly whistleblowers) whom it established to help steer the ESS, nor did it publish the link on its relevant webpage about the ESS.

Instead, NHS Improvement gave the link to a small number of whistleblower groups that have been less challenging of the scheme.

This irregularity was discovered through a third party, after which NHS Improvement was questioned about its actions.

Moreover, NHS Improvement was asked to advertise the scheme in the national press but has failed to do.

The University’s evaluation will be skewed by NHS Improvement and NHS England’s omissions in not adequately publicising the scheme and its evaluation.

We ask that the University should at the very least acknowledge this major methodological flaw when it produces its report.


  1. Sampling bias

At the above NHS Improvement event of 22 September 2017 attended by Daz Greenop, Daz was asked by whistleblowers to address a fundamental issue of sampling:

“…issues of sampling should be considered – did NHS England identify all whistleblowers who had been harmed and needed the service?” 

Daz accepted on 22 September 2017 that this was a significant issue.

But there appears to be nothing in the materials shared so far about the University’s methodology to demonstrate that it has given specific thought to this issue or that it has taken steps to reflect this issue in its methodology.

We ask that at the very least, this sampling bias is reflected in the University’s final report.


Briefing by the University to NHS Improvement

Lastly, we have been informed by the NHS Improvement ESS manager that the University has been providing regular ‘verbal updates’ to NHS Improvement about its evaluation and that these are reportedly ‘positive’.

The University has also reportedly disclosed to the NHS Improvement ESS scheme manager that an individual in Australia has taken part in its evaluation.

Please can the University advise what the rationale is for releasing such informal updates prior to final report.

This is with particular reference to the following passage from the University’s Code of Practice for Research:

3.15.1 Researchers should accept their duty to publish and disseminate research in a manner that reports the research and all the findings of the research accurately and without selection that could be misleading.”

Please can the University also confirm that it is abiding by its commitments to confidentiality for those who participate in its evaluation.


Yours sincerely,

Dr Minh Alexander

Clare Sardari

NHS whistleblowers and members of NHS Improvement’s ESS Design and Monitoring Group



Prof Raphaela Kane JMLU Head of Faculty

Dr Daz Greenop JMLU



Despite previous objections, NHS Improvement’s consent paperwork for the Employment Support Scheme remains coercive and requires participation in evaluation research as part of signing up for the scheme:

 NHS Improvement’s ‘Learning Agreement’, which whistleblowers must sign when joining the employment support scheme

FAQs produced by NHS Improvement for whistleblowers assumes participation in the evaluation research and does not make it clear that whistleblowers may refuse to take part in the evaluation if they so choose.

NHS Improvements FAQs for whistleblowers about the employment support scheme

I have again protested and copied the correspondence to Liverpool John Moores University, to make the University aware that it is conducting research on subjects who may not be freely consenting:

Letter 26 February 2018 to NHS Improvement Wendy Webster re coercive scheme consent paperwork

Further correspondence with NHS Improvement Wendy Webster about consent paperwork 26.02.2018

Dr Minh Alexander



Liverpool John Moores University webpage for the online evaluation survey about the NHS whistleblower employment support scheme:

Whistleblowers Support Scheme

Page 1: Participant information

We are currently evaluating the Whistleblowers Support Scheme but are also interested in the work-related / work-seeking experiences and activities of whistleblowers who are not participating in the pilot. If you are a NHS whistleblower and NOT participating in the Whistleblowers Support Scheme we would love to hear from you but before you decide it is important that you understand why this questionnaire is being done and what it involves. Please take time to read the following information. Take time to decide if you want to take part or not.

What is the purpose of the questionnaire?

The purpose of this anonymous online questionnaire is to gain broader views of the work-related / work-seeking experiences and issues facing whistleblowers in the NHS. We are also interested in why people did not participate in the pilot and how enquiries about it were managed.  The questionnaire is not about your whistleblowing experience but it is hoped that learning from this evaluation will help to inform and improve recruitment processes and implementation of future schemes.

Do I have to take part?

No. It is up to you to decide whether or not to take part. If you choose to participate anonymously you are still free to withdraw at any time before or during completion of the questionnaire without giving a reason. However, because the questionnaire is anonymous, you cannot withdraw after your responses have been submitted. If you choose to include contact details you may withdraw at any time up to the completion of the first draft of the evaluation report. A decision to withdraw will not affect your rights or any future support you receive.

What will happen to me if I take part?

The questionnaire asks about your work related experiences, activities and support needs. We are also interested in understanding why you did not apply for the programme. The questionnaire should take around 30 minutes to complete but this depends on how much you wish to write. Once we have received responses the information will be analysed thematically and used in a report for the NHS (and potentially other publications and presentations). We may also use direct quotes from open text comments but you will not be identifiable. We hope to talk to a small random sample of respondents so if you wish to provide contact details at the end of the questionnaire we may contact you again in four-six months time for a telephone interview. Questionnaires will be securely stored on password protected computers for five years after completion in accordance with LJMU policy and the Data Protection Act 1998.

Are there any risks / benefits involved?

There are no risks or benefits involved. However, your participation in the evaluation will help to inform the implementation of future support schemes. If for some reason you become uncomfortable or distressed during the questionnaire you can simply terminate the questionnaire without needing to submit or explain. Your Freedom to Speak Up Guardian should be contacted if additional support and advice is needed.

Will my taking part in the study be kept confidential?

Yes. We take confidentiality very seriously. We do not need your name or any personal information. However, if you wish to be considered for interview, please provide your preferred contact details at the end of the questionnaire. Again, this will be securely stored and not shared with anyone outside the LJMU evaluation team.

This project has received ethical approval from LJMU’s Research Ethics Committee: 17/NAH/019

Contact Details of Evaluators: 0151 231 4033 0151 231 4450

If you have any concerns regarding your involvement in this project, please discuss these with the researcher in the first instance.  If you wish to make a complaint, please contact and your communication will be re-directed to an independent person as appropriate.


Page 2: Questions

I have read the information sheet provided and I am happy to participate. I understand that by completing and returning this questionnaire I am consenting to be part of this evaluation and for my data to be used as described in the information sheet provided

1.Your professional background



a.What was your occupation and grade at the time you made your Protected Disclosure / raised concerns?


2.When did you make your Protected Disclosure / raise concerns?

Less than 12 months ago

1-2 years ago

3-5 years ago

6-10 years ago

Over 10 years ago


3.Did you contact your Freedom To Speak Up Guardian?

Yes (go to question 3a)

No (go to question 4)

a.What information were you given?





This part of the survey uses a table of questions, view as separate questions instead?

i.How  was your query dealt with?

Please don’t select more than 1 answer(s) per row.

Strongly agree Agree Disagree Strongly disagree
Response was timely
Response was friendly
Response was non-judgemental
Response was clear
Response was helpful

a.Please use this space if you wish to explain your ratings


4.What is your current employment status? Please select as many as apply to your current circumstances





Temporary contract

Agency work



In Education / Training


a.Please use this space if you wish to explain your selections Optional


5.Have you heard of the Whistleblowers Support Scheme?

Yes (complete 5a then go to question 6)

No (complete 5a then go to question 9)

a.How do you think the Scheme could be advertised more effectively to whistleblowers?


6.How did you first find out about the Whistleblowers Support Scheme?


Line manager

NHS support systems / emails / events

Internet research

Whistleblower support systems / emails / events (e.g. Patients First)


a.If you selected Other, please specify:


7.Did you make any further queries regarding the Scheme?

Yes (go to question 7b)

No (go to question 7a)

a.Please tell us why you did not make a query and then go to question 9

Not interested

Not appropriate

Not eligible

Not ready


i.If you selected Other, please specify:

b.What information were you given?





This part of the survey uses a table of questions, view as separate questions instead?

i.How  was your query dealt with?

Please don’t select more than 1 answer(s) per row.

Strongly agree Agree Disagree Strongly disagree
Response was timely
Response was friendly
Response was non-judgemental
Response was clear
Response was helpful

a.Please use this space if you wish to explain your ratings


8.Why did you not apply to the Scheme?

Not interested

Not appropriate

Not eligible

Not ready


a.Please use this space if you wish to explain your answer


9.What do you wish to achieve in terms of your (re)employment goals?


10.What have you done to achieve your (re)employment goals?


11.What has stopped / is stopping you from achieving your (re)employment goals?


12.What support do you think you need to achieve your (re)employment goals?


13.We hope to to talk to a small random sample of respondents so if you wish to provide your preferred contact details below we may contact you again in four-six months time for a telephone interview.


‘Acceptable’ Hazard? Lack of sprinklers and deliberately caused fires in mental health trusts

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist


A version of this piece was first published by Open Democracy on 9 February 2018.



Coroners have been critical of two recent patient fire deaths at

Cambridgeshire and Peterborough NHS Foundation Trust and at Berkshire Healthcare NHS Foundation Trust , which are both mental health providers.

The 2008 Chase Farm Hospital fire of the locked, forensic psychiatric wards was a reminder of the potential lethality of fire in psychiatric hospital settings.

Chase Farm Hospital Fire 2008

The 2008 Chase Farm Hospital fire

The 2011 fire at Woodlands psychiatric unit at Ipswich Hospital resulted in a damning fire safety report on system failures, which resulted in the alarm being ignored eight times. Norfolk and Suffolk NHS Foundation trust escaped criminal prosecution only because of a legal loophole. The then Chief Executive of the NHS Trust Development Authority acknowledged this serious mismanagement and promised that standards would be tightened up.

Mental health services must deal with the special risks of fires caused by patients who are disorganised by illness, or people who set fires deliberately. The government acknowledges this risk in its fire safety guidance for the NHS.

Vigilance and proactive care are needed. But strain on under-funded mental health services result in understaffing, chronic over-occupancy, escalating acuity and failures of clinical observation. The latter have been cited repeatedly by coroner’s warnings as factors in avoidable deaths. The National Confidential Inquiry into Suicide and Homicide by People with Mental Illness advised in 2015 that there had been 124 in-patient suicides under observation between 1st January 2006 and 31st December 2012 in the UK.

There are also well-known fire safety problems at some PFI hospitals. After the Grenfell Tower fire,  the presence of flammable cladding – banned for some uses in the USA – in NHS hospitals was exposed.

Risk assessment is tangled up with financial imperatives. Some of the flammable cladding in hospitals was left in situ because it was considered too costly to remove.

The general pressure on trusts was also reflected in the fact that some delayed in implementing fire checks ordered by NHS Improvement after the Grenfell fire.

Risk is also posed by an ever-mounting backlog of repairs and maintenance work in our hospitals, as NHS trusts struggle to make ends meet. This includes fire prevention work.

Fast staff reaction in the 2008 Royal Marsden Hospital fire prevented deaths, but there was major damage.

Worryingly, subsequent enquiries by BBC File on Four revealed that Fire Services had been driven to serving enforcement notices against NHS trusts. A glance at the enforcement register shows that this continues despite promises of improvement.

How much fire risk is tolerable, in hospitals with accelerant medical gases and infirm or detained evacuees?

The investigation report on the London Underground fire at Kings Cross, which claimed 31 lives, criticised London Underground’s complacent culture and argued:

“A mass passenger transport service cannot tolerate the concept of an acceptable level of fire hazard”


NHS Digital’s data on fires in mental health trusts

Data from routine notification of estate fires by NHS trusts to NHS Digital shows that there were 1701 and 1462 fires in all trusts in 2015/16 and 2016/17 respectively. Mental health trusts accounted for 1138 (67%) fires in 2015/16 and 895 (61%) fires 2016/17 respectively.

Over these two years, 88 people were injured in all NHS trust fires, with 64 of these people being injured in fires related to mental health trusts. There were four deaths in trusts fires, three accounted for by mental health trusts. 


Data from the National Confidential Inquiry into Suicide and Homicide by people with mental illness (NCISH)

A request to NCISH under the Freedom of Information Act has revealed a total of 259 patient suicides and 14 inpatient suicides by burning over the ten years between 2005 and 2015. 

FOI data from NCISH also suggests that roughly a fifth of suicides by burning are due to patient suicides by burning.

Underlying these deaths, there will be many more injuries and near misses.


Sprinklers in mental health trusts

The Chief Fire Officers Association promotes the use of sprinklers. The London Fire Brigade has advocated for the use of sprinklers in healthcare premises. As the London Fire Commissioner has explained, 

“Sprinklers are the only fire safety system that detects a fire, suppresses a fire and raises the alarm. They save lives and protect property and they are especially important where there are vulnerable residents who would find it difficult to escape”

 The government’s fire standards for the NHS briefly mention but do not commit to installation of sprinklers. The guidance also repeatedly states that where sprinklers are used, other fire prevention measures may be reduced for cost-effectiveness. 1

Since Grenfell, the government has been pressed on the adequacy of its regulations for sprinklers in hospitals, and whether sprinklers are required in all hospitals. Last month, the Minister of State advised that all guidance was under review.

The exact distribution of sprinklers across the NHS estate is uncertain. The data is not collected centrally by NHS Digital. Expectations do not appear high. A fire safety policy by Northumberland Tyne and Wear NHS Foundation Trust states:

“Healthcare premises do not normally have water delivery systems fitted.”

Recent FOI data reportedly showed that thousands of multi-storey buildings, including hospitals, do not have sprinklers.

Even some new builds such as Forth Valley Royal Hospital have not included sprinklers. The troubled Cumberland Infirmary PFI development will not have sprinklers fully installed until 2020. Corporate documents and FOI releases by some NHS organisations, for example by Sheffield Teaching Hospitals NHS Foundation Trust, NHS Grampian and NHS Lothian show patchy sprinkler coverage.

It has also been alleged that some hospitals, for example The National Children’s Hospital in Dublin, may be built just below the limit of 30m to avoid legal obligations to fit sprinklers.

Moreover, working on the ‘acceptable hazard’ principle, where one safety precaution is installed, others may be trimmed. For example, one architect reported that on one Scottish NHS PFI project, because sprinklers were specified, there was corner cutting on other safety features:

“…lacks exit stairways and exceeds size limits on fire compartments, while a hose-reel for firefighters is too short and some fire doors open in the wrong direction”

However, the deadliness of fire was shown last week by a fire in a Korean hospital with no sprinklers, that killed 37 people.

A Freedom of Information request was sent to 51 mental health trusts, to which 49 trusts responded.

This revealed that almost no mental health trusts have sprinklers. Three trusts had sprinklers in 10% of their inpatient areas, and in one of these trusts this was only because a retrofit took place after a contribution by the local Fire service. Two other trusts trust leased four community properties equipped with sprinklers, but none of their own properties had sprinklers.

Some trusts stressed that installing sprinklers was “not a requirement under current legislation”. However, legality is a moot point after Grenfell and given the controversy about UK fire safety standards.

East London NHS Foundation Trust, rated ‘Outstanding’ and praised the Care Quality Commission for its learning culture was one of the trusts which failed to respond to the FOI at all. NHS Digital data shows that there was a fire related death at East London NHS Foundation Trust in 2016/17 and that a total of seven people were injured in fires in 2015/16 and 2016/17.

The 49 trusts which responded to the FOI request accounted for a total of 1800 fires over 2015/16 and 2016/17, at least 790 of which were deliberately caused and at least 801 of which were caused by patients. 2

Conservatively, at least 1000 of the fires occurred on inpatient units, some in rooms that might potentially be locked or barricaded such as patients’ bedrooms and bathrooms.

One mental health trust acknowledged that there is risk inherent in all fires: “they all carry a potential risk of harm”, whereas another claimed that all fires on its wards were “minor in the sense that items burnt were limited to paper and clothing”. Better data is needed on the seriousness of the fires.

Questions arise about whether this level of risk management in mental health trusts is acceptable, and whether it is valid to trim back on failsafes. For example, relying on fire alarms instead of sprinklers. This was a justification given by Mersey Care NHS Foundation Trust for not having sprinklers.

In particular, the absence of sprinklers in patients’ bedrooms and bathrooms bears further debate, because such areas may not be accessible quickly enough in an emergency. Heather Loveridge died as a result of a fire in a ward toilet and Sarah-Jane Williams died as a result of a fire in a ward bedroom at trusts which had no sprinklers.

There are also unanswered questions about sources of ignition on mental health trust wards despite the NHS smoking ban. How many ward fires set by patients due to failures to search and remove lighters, reflecting the acute strain on services?

I asked NHS Improvement, NHSTDA’s successor body, if it was doing any work on the special needs of mental health patients with respect to fire safety.

NHS Improvement referred me to the Department of Health

NHS Improvement referred me to the Department of Health and Social Care, based on its impression that the Department had undertaken a 10 year review. This was followed by a hasty retraction, and then a denial from the Department of Health and Social Care itself that it held such data. The Department finally suggested that I ask ask NHS Improvement for information.

This bureaucratic merry-go-round suggests that either little thought has been given to this matter, or worse, that pass-the-parcel is being played with embarrassing truths whilst mental health patients remain insufficiently protected.

The Department of Health and Social Care’s own fire guidance states that it is important to demonstrate “due diligence and effective governance” and recommends that the “performance of the fire safety management system is periodically audited and assessed against the organisation’s fire safety objectives”

The Department should follow its own advice, ensure better oversight and rectify any unwarranted risks to which mental health patients are currently exposed. If risk continues to be tolerated at a systemic level, the government should at least transparently provide justification for this.



‘Outstanding’ East London NHS London Foundation Trust, which had a fire death in 2016/17 and seven people injured in fires in 2015/16 & 2016/17, belatedly responded to my FOI request of 29 October 2017 on 15 February 2018. Outstandingly, ELFT pretended in its response that the FOI clock started on 29 January 2018, when this was actually the date of a reminder. Most importantly, ELFT admitted that it had no sprinklers.



1 The Department of Health and Social Care’s fire safety guidance states:

5.68 With the exception of buildings over 30 m in height, the guidance in this document does not require the installation of sprinklers in patient care areas of healthcare buildings. However, the design team is expected to consider the advantages that might be gained by installing life-safety sprinklers throughout the building or to specific areas. Where specific hazards are identified in the building, it may be more appropriate to consider the application of an alternative fire suppression system, such as high pressure water mist technologies.”

Throughout the guidance, it is stated that where sprinklers are used, other fire prevention measures may be reduced, and this explicitly linked to saving money. For example:

5.85 In those parts of healthcare buildings where sprinkler systems are provided, the effect of sprinklers on the overall package of fire precautions has to be considered to ensure that a cost-effective fire safety strategy is provided. Where sprinklers are installed in healthcare premises in accordance with the above guidance, some of the requirements of this document may be modified to take account of the effect of sprinkler operation at an early stage of fire development.”

5.86 Where sprinklers are installed, the guidance may be modified subject to a suitable and sufficient risk assessment being undertaken and the information being recorded in the fire safety manual. Examples include:

  1. progressive horizontal evacuation (paragraphs 3.6–3.15);


  1. glazing in sub-compartment walls (paragraphs 5.23–5.25);


  1. elements of structure (paragraphs 5.1– 5.7 and 5.14–5.15);


  1. compartmentation (paragraphs 5.8– 5.13);


  1. fire hazard rooms and areas (paragraphs 5.40–5.44);


  1. external fire spread (paragraphs 6.5– 6.15);


  1. number and location of fire-fighting shafts (paragraphs 7.11 and 7.13).”


3.12 Where sprinklers are installed, the fire resistance of the compartment walls may be reduced to 30 minutes (integrity and insulation)”

5.15 Where sprinklers are installed throughout the whole building, the requirement for elements of structure and compartment walls to be constructed of materials of limited combustibility does not apply”

5.25 Where sprinklers are fitted, there is no limit on the use of glazed screens that provide a minimum period of fire resistance of 30 minutes (integrity only), provided the glass is not of the type referred to as “modified toughened”

“5.43 Where sprinklers are installed, the need to enclose fire hazard rooms in fire-resisting construction should be risk-assessed.”

Department of Health Technical Memorandum 05-02: Firecode, 2015 Edition

2 Both data from NHS Digital and the FOI material from trusts should be viewed with caution. It became clear that some mental health trusts are reporting all fires involving patients to NHS Digital, and not just fires on their own premises. One trust claimed that the NHS Digital figures on its fires was greatly inflated because they included false alarms and not just actual fires. Conversely, some NHS Digital data was placed in doubt after a few apparent zero returns were directly queried with the trusts in question, who gave conflicting data.

Some mental health trusts volunteered that all or most their arsons were carried out by patients. Fires were also most frequently located in inpatient areas.

By comparison, FOI requests to three acute trusts that had also reported high numbers of fires showed a much lower proportion of fires that were caused deliberately or by patients: there were only 4 deliberately caused fires and three fires caused by patients out of a total of 178 fires over the two years.

Rough though the quality of this data is, the differences do support received wisdom that the risk of arson by patients is higher in mental health trusts, and that unsurprisingly, many of the fires are set on inpatient psychiatric wards. This might be expected as the most unwell people will be found on the wards.


St. Andrews Healthcare, Whistleblowing, Safeguarding and Public Protection

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 16 February 2018

On 23 February 2018 a preliminary hearing will take place of a whistleblowing Employment Tribunal claim against St. Andrews Healthcare. The hearing will take place in private at 10 am Cambridge County Court, for two hours. The claim is by Noel Finn, who who previously whistleblew about Yarl’s Wood Immigration Removal Centre. He tweets at @Nolliag66 


Some background data on whistleblowing, Safeguarding and public protection issues in relation to St Andrews Healthcare is presented below.

Policy background

The NHS has shut down all its asylums and has lost many of its mental health beds:

Brian MH Beds

Graph of NHS Mental Health beds via Professor Brian Jarman

Every day there are hundreds of acutely unwell NHS mental health patients in out of area placements, hundreds of miles from home. This is inherently risky as it removes patients from normal support networks, and affects clinical communication and planning. In 2016 the National Confidential Inquiry into Suicide and Homicide described the risk associated with discharge from out of area placements and advised that acutely ill patients should not be sent out of area:

90. 195 (9%) died after being discharged from a non-local in-patient unit. This proportion increased to 11% (67 cases) of those who died within 2 weeks of discharge. The number of suicides after discharge from a non-local unit increased from 85 (8%) in 2004-2008 to 96 (10%) in 2009-2013.”

Key elements of safer care in mental health services…No ‘out of area’ admissions for acutely ill patients”

The mental health deinstitutionalisation movement was well-meant and predicated on government promises to fund good quality care in the community, but these never fully materialised. As one leading light of the NHS de-institutionalisation programme once said ruefully:

“Any fool can close an asylum”.

In fact, a programme of mental health investment to deliver a National Service Framework of quality standards, introduced in 1999, has been reversed under the current government. Essential services for helping people with serious illness to cope, such as assertive outreach teams and day hospitals, have been shut down or diluted.

The most seriously ill patients with the most complex needs have sometimes ended up in prison or secure psychiatric care as a result of not receiving adequately proactive care in the community.

St Andrews Healthcare is a large private mental healthcare provider that mainly provides specialised inpatient care for patients detained under the Mental Health Act, but also provides some acute general care. It mops up need that is not accommodated by the NHS and its patients are almost wholly NHS funded:

The Charity receives essentially all its income from NHS entities.”

St Andrews Healthcare Annual Report 2016/17

St Andrews reports that NHS England is its biggest funder. NHS England’s spending transparency data shows that it has directly purchased at least £294,796,282.22 of services from St Andrews Healthcare over the period January 2014 to July 2017. (For some reason, NHS England’s spending transparency data on purchases over £25K stops after July 2017). £300m is almost the annual budget for three NHS mental health trusts.


NHS England direct spending on St. Andrews Healthcare services (purchases over £25K):

Year Amount spent directly by NHS England on services by St. Andrews Healthcare
2014 £ 45,354,111.47
2015 £ 89,938,611.82
2016 £ 103,238,855.07
2017 to July £ 56,264,703.86
Total £294,796,282.22

Source: NHS England spending transparency data

Extracted data for St. Andrews Healthcare: NHS England spend over £25K on St Andrews Healthcare January 2014 to July 2017


The main site, St Andrews Hospital in Northampton, was the old county asylum and traces of its history remain in that it has a Court of Governors.  According to the CQC, the main St Andrews hospital site in Northampton currently has 659 beds.

The hospital is a powerful institution and a significant part of the local economy in Northamptonshire.

St Andrews has swum against the tide of de-institutionalisation. Some may object to institutional care per se, and perceive all detention as oppressive. Indeed, poorly prescribed and delivered care in detained conditions can be harmful, cause disability and may increase disturbed behaviour. But there is nothing innately wrong with institutional care, if it is of high quality and delivered strictly according to need. Some people have highly complex needs and need the sanctuary of a locked environment to manage all the risks associated with their clinical conditions. Moreover, the Mental Health Act can safeguard rights to care and importantly, to aftercare in the community once detention ends.

Providing care in closed environments is challenging. Staff need to be well trained and well led to cope with the nature of the work, to ensure that care is therapeutic, and not custodial or punitive. Institutions can very easily take on a life of their own, and develop an unhealthy culture that subverts their original mission. Repeated inquiries into prison and mental health failures attest to that. For example:

Ashworth Special Hospital: Report of the Committee of Inquiry

Joint investigation into the provision of services for people with learning disabilities at Cornwall Partnership NHS Trust

Added to this is a context of low societal expectations and disparity of esteem, which can affect staff as well as patients. As the 2009 Healthcare Commission into West London Mental Health Trust noted:

many services were starting from a low baseline and, despite these initiatives, the need for modern mental health services remains a relatively low priority in society”

St Andrews Healthcare had a good reputation nationally for many years for highly specialised care of very challenging behaviour and complex need. Latterly, its business model changed and it expanded greatly. It was incorporated in 2004 and published annual accounts show that income has increased from £80,936,000 in 2004/5 to £205,600,000 in 2016/17. There have been some concerns over quality and governance since this expansion.


Concerns about St. Andrews

In 2011 there were a cluster of four deaths within a six month period on Grafton ward, a long stay, locked male ward at St Andrews Northampton. These deaths remain an unresolved concern because NHS England refused to ensure that the deaths were investigated as a cluster, despite intervention by Healthwatch England.

Letter by NHS England to Healtwatch England 14 August 2014

Letter by Healthwatch England to NHS England 8 December 2014

NHS England letter to Healthwatch England 8 January 2015

Letter by Anna Bradley Chair of Healthwatch England to Simon Stevens CEO NHS England 2 February 2015

Fifteen months after NHS England committed to carrying out the review into St Andrews, nothing has emerged and I am frankly concerned at the lack of action and urgency shown by NHS England on ensuring that lessons have been learnt and appropriate action taken”

Anna Bradley to Simon Stevens 2 February 2015


There is limited information in the public domain about these deaths, but concerns have been raised by several parties about the rigour of investigations to date, including by whistleblowers.

Sara Ryan mother of Connor Sparrowhawk who died in the care of Southern Health NHS Foundation Trust received a copy of the internal St Andrews report.

Four deaths heads and a medical director

Of concern, the CQC rated the Mens Service at St. Andrews where the four deaths occurred was rated as fully compliant  at the time of the deaths, and also shortly afterwards in 2012:

St Andrews Healthcare CQC rating

But by August 2017, the CQC rated the St. Andrews Mens Service at Northampton as ‘Inadequate’ , commenting that the provider had not responded adequately to previous CQC concerns.

Bill Johnson, one of the four Grafton ward patients who perished, died through severe constipation. Mr Mark McGhee, the lawyer for Bill Johnson’s family, was reportedly critical of both his care and the system response to his death, including the CQC’s failure to investigate:

“Nothing that I have read or been told to date gives me any reason to believe that in the case of these four deaths there has been any appropriate or adequate public scrutiny by the CQC or indeed any any other non-judicial body.”

The systemic issues underlying such deaths of vulnerable adults have been raised once more by the inquest on Richard Handley’s death on 8 February 2018.

In 2013, St. Andrews was warned about safe staffing on its child and adolescent wards, support for staff and other matters:

St Andrew’s Hospital must make “urgent improvements” to Adolescents Service after highly critical inspection

In 2013, HSCIC data from a government census of Learning Disability services showed that of 241 patients receiving care from St Andrews Healthcare, 70 (29%) had been secluded, 95 (39%) had been restrained and 30 (12%) had been physically assaulted in the three months up to September 2013.

In January 2014, it was reported that a St. Andrews nurse who grabbed a patient’s throat, and would not let go, was struck off.

In 2015, St. Andrews was warned about its use of prone (face down) restraint. This is because it is government policy that this should be used minimally and for the shortest time possible , because prone restraint is dangerous to patients.

In February 2017 concerns were raised by the Channel 4 Dispatches programme ‘Under lock and key’ , which asked whether the care at St. Andrews for young people with learning disabilities and autistic spectrum disorders was excessively restrictive and might actually be causing behavioural problems. Importantly, a high use of prone (face down) restraint was revealed: 600 instances of prone restraint on young people over a six month period.

In March 2017 the Bureau of Investigative Journalism reported that St. Andrews was charging some families top up fees, in addition to substantial fees already paid by the NHS, for extra care beyond that which the home area authorities were prepared to fund. One mother, who lived hundreds of miles away, was reportedly charged £64 a day in return for extra care to encourage her daughter to increase physical activity.



Another mother told the Bureau of Investigative Journalism:

“A mother whose son is currently a patient at St Andrew’s, who asked to remain anonymous, said she had repeatedly complained about her son’s weight gain. She claimed that denying access to exercise facilities was used by staff as a form of punishment for infringement of strict behavioural rules.

“My son became clinically obese in less than a year at St Andrew’s,” she claimed.

St Andrew’s website claims that patients get more than “the recommended 25 hours of meaningful activity” and a spokesman told the Bureau patients were encouraged to exercise.

“I questioned them about this ‘25 hours’ thing and was told that eating – breakfast, coffee break, lunch, snack time, dinner – are counted as meaningful activities,” the mother said.

She said patients had to be escorted to use the gym and other facilities, use of these facilities was seen as a privilege, and staff shortages meant there were often insufficient personnel to act as escorts, she claimed.

“My son’s need for exercise should have been seen as a medical emergency and not a privilege he needed to work towards,” she said. After repeatedly complaining, she said her son’s treatment improved.

“But I fear for patients without people on the outside who can make a fuss on their behalf,” she said.”



In November 2017 it was reported that the coroner criticised St. Andrews and others over the death of Stephen Martin, who was died three days after being discharged from St. Andrews on a Community Treatment Order.



Whistleblowing by St. Andrews staff to the CQC

The CQC disclosed national data on whistleblowing contacts from all registered providers  for the period 2015/16 and 2016/17.

Extracting the data for St Andrews Healthcare gives 19 whistleblowing contacts over this two year period, 15 of which related to the Northampton site. 


Whistleblowing contacts to CQC by St. Andrews Healthcare staff in 2015/16 and 2016/17:

St Andrews Healthcare whistleblower contacts to CQC 201516 201617


Safeguarding at St. Andrews

I asked for data from Healthwatch Northamptonshire, Northamptonshire County Council and Essex County Council.


Information from Healthwatch Northamptonshire


Healthwatch Northamptonshire gave information as follows:

“2014/15 – no negative feedback received about St Andrew’s Healthcare

2015/16 – 7 issues raised with us by patients or relatives

2016/17 – no negative feedback received about St Andrew’s Healthcare

2017/18 year to date – no negative feedback received about St Andrew’s Healthcare

The seven issues raised in 2015/16 can be summarised as follows: one safeguarding (this is a correction to my previous response, we have made one safeguarding referral), three patients unhappy with aspects of care or treatment, one concerned relative and one member of the public re. social media comments.”


Information from Northamptonshire County Council

This the disclosure correspondence from the council: FOI response FR7861 by Northamptonshire County Council


Child Safeguarding referrals:

The Council declined to provide data for the five years 2010/11 to 2014/15 on the basis that it did not hold digital records for these years and a search would have exceeded the cost limits.

For the years since 1 April 2015, the council has received the following number of Child Safeguarding concerns relating to St. Andrews:

Year Number of Safeguarding concerns received about care at St Andrews Healthcare Number of concerns upheld or partially upheld
2015/16 45 7
2016/17 26 8
2017/18 26 8
Total 97 23


In regards to the Council’s response to Channel 4’s ‘Under Lock and Key’ investigation, this is the action that it reportedly took in response:

“The Northamptonshire Safeguarding Children Board (NSCB) discussed the BBC Panorama programme on St Andrews Healthcare, based in Northampton, at Board meetings and took the following actions: 

  1. Reassurance from the regulatory bodies (Ofsted, Care Quality Commission and NHS England) that they had taken consideration of the programme in their inspection and monitoring visits. This reassurance was provided both in writing and verbally. The Independent Chair of the Board personally spoke to senior representatives of the organisations.


2. Considered the subsequent Ofsted inspection of the adolescent facility at St Andrews, which contained no concerns regarding immediate safeguarding issues at the unit.


  1. Responded to a letter from a member of the public which referenced concerns about safeguarding practices at the adolescent unit. These concerns were based on a visit to the unit prior to it formally opening. These concerns were relayed to the senior management representative at St Andrews, who is a full member of the NSCB. A satisfactory response to these concerns was received and the Board was assured that the potential safeguarding problems outlined in the letter had been addressed.


  1. The Independent Chair of the NSCB visited St Andrews and discussed these concerns with the Head of Safeguarding, seeking and obtaining further assurance.


  1. Members of the NSCB have been invited to visit the unit and to meet with both managers and staff.”


Reassurance from the CQC? This is what Bill Kirkup said about ‘circular’ assurance in the Morecambe Bay maternity scandal:

The Report of the Morecambe Bay Investigation

“5.162 Assurance had become circular. The CQC was taking reassurance from the fact that the PHSO was not investigating; the PHSO was taking assurance that the CQC would investigate, the NW SHA was continuing to give assurances based in part on the CQC position. Monitor asked for assurance and received the perceived wisdom – that the issues were under control and minimal. At no time did Monitor question these circular arguments or the improbability of cultural concerns being resolved within six months.”

Adult Safeguarding referrals:

Abysmally, the Council claimed that its systems could not support an easy search:

“Data around providers is not currently something that we are able to pull easily from the system due to the fact that provider detail is not available on the client’s assessment within the ‘source of risk’ section in a reportable format. 

Information could be entered on the assessment as any number of things within the ‘Name/Organisation’ question of the assessment i.e. name of person, team, organisation, ward etc. all of which could be St Andrews but not listed as St Andrews. We would therefore need to undertake a manual search of all relevant records in order to locate any information matching the criteria and parameters of question 4.” 

Accordingly, the Council refused to disclose any Adult Safeguarding data on the basis that it would exceed cost limits.

We are to believe that Northamptonshire CC has a huge hospital site with over 600 highly vulnerable, locked up people on its doorstep, and it cannot tell easily whether the custodian may have been mistreating any of these vulnerable adults.

I must question the Council’s claim that it was unable to search easily for Adult Safeguarding data in relation to St. Andrews. Its 2016/17 Adult Safeguarding Board report shows that it holds aggregate data on Safeguarding contacts relating to St. Andrews. For quarters 1,2,3 and 4, Adult Safeguarding contacts from St. Andrews accounted for approximately 6.5%, 7%, 4% and 6% of a total of all sources of concern.

Northamptonshire County Council Adult Safeguarding bar chart

Bar chart from Northamptonshire Adult Safeguarding Board annual report 2016/17

In 2016/17, Northamptonshire CC received a total of 6,392 Adult Safeguarding concerns. Extrapolating roughly from the above bar chart and assuming St. Andrews was the source for approximately 5% of these concerns, this gives a rough figure of 319 Adult Safeguarding concerns relating to St Andrews. And yet the Council says it is not tracking this activity.

I am writing to the Council to query its claims that it cannot produce the requested data on Adult Safeguarding concerns about St. Andrews.

Of additional concern, the Council disclosed that there had not been any serious case reviews on adult cases in the last 10 years:

“There have not been any Serious Case Reviews in the last 10 years involving St Andrews Healthcare.” 

This is surprising given the cluster of four deaths on Grafton ward.

According to the Council,

“A Safeguarding Adults Review (SAR) was concluded in September 2016 and published June 2017 where the individual concerned had spent some time at St Andrews.” 

This is the only published SAR on the Northamptonshire Adult Safeguarding Board webpages that may correspond to the above report, but I am awaiting confirmation from the Council that this is indeed the report:

Northamptonshire Adults Safeguarding Board, Safeguarding Adults Review on ‘Claire’

The report favourably mentions a period of care at St. Andrews from 1994 to 2010 in which a patient made progress.


Information from Essex County Council

St Andrew’s Healthcare site in Essex reportedly has 79 beds.

Essex County Council advised that a total of 67 Safeguarding concerns had been received about the St Andrews service since 2011, 25 of which had been had been upheld or partly upheld.


YEAR Number of Safeguarding concerns received
2011/12 1
2012/13 10
2014/15 13
2015/16 31
2016/17 12
2017/18 0
Total 67


A patient, Beverly Higgins, died on escorted leave from St Andrews in 2008, but Essex County Council claimed that it held no Safeguarding data about this. The police reportedly investigated in 2009 with respect to potential corporate failures of duty of care.

A St Andrew’s Healthcare spokesman was quoted by the Basildon, Canvey and Southend Echo about the death:

“St Andrew’s Healthcare, an established charity specialising in mental health care and rehabilitation, is co-operating fully with police and external enquiries into this tragic incident.

“It takes confidence, in the light of an independently commissioned investigation, that there will be no finding of culpability on its part and is satisfied with systems and structures in place to safeguard the well-being of those in its care.”

Essex County Council advised that there had been no Serious Case Reviews on deaths of St. Andrews patients.


Public Protection

The other side of the Safeguarding coin is public protection. This is particularly relevant to the Northampton site where the hospital, which houses many mentally disordered offenders, some subject to Section 41 Home Office Restriction Orders, is situated in the town centre near residential areas. Risk management and patient absconding are of special local sensitivity.

Risk management in such cases is a skilled and challenging task. Therapeutic risk-taking, must be carefully balanced with public protection.

These are some of the past escapes by St. Andrews patients that have come to press attention:

‘Paedophile on unescorted leave from secure unit tried to rape boy’

‘Warning over men on the run from hospital’

‘Another mental health patient goes on run from hospital’

‘Two patients abscond from St Andrew’s mental health unit at Rainworth’

‘St Andrew’s Hospital patient caught after running out of breath following attack on staff’

‘Residents demand improved security at mental hospital’

‘Paedophile’s freedom bid opposed by cops’

Press Complaints Commission decision in favour of the Basildon Echo following a complaint by St Andrews Healthcare

Absconding by patients is not of itself evidence of poor care and risk management, as all care needs to contain an element of therapeutic risk-taking in order to be fair and therapeutically effective. However, it is important that private providers like St. Andrews, which draw from the public purse, can transparently demonstrate sound governance, monitoring and learning from any adverse events.

I asked both Northamptonshire and Essex police for information on calls to incidents at St. Andrews but at the time of writing, I have received no data.

A past analysis of absconding from the Northampton site over a three year period gives a rough idea of frequency, albeit these figures relate to a much smaller number of beds than now exist at the site:


Absconding from St Andrews 1997 to 1999

Absconding of patients from an independent UK psychiatric hospital: A 3-year retrospective analysis of events and characteristics of absconders, Dickens and Campbell, Journal of Psychiatric and Mental Health Nursing 8(6):543-50 · January 2002

I have not found any published, recent audit or analysis of absconding by patients from St. Andrews facilities.

Due diligence by the NHS

NHS England tethered itself more firmly to St Andrews with a joint venture, as announced via an item on the Birmingham and Solihull Mental Health NHS Foundation Trust website on 19 July 2016:

West Midlands successful in bid to provide innovative secure mental health service

A partnership of mental health care providers in the West Midlands has been announced by NHS England as one of just four in the country to be successful in a bid to develop a new and innovative model of care for adults in secure mental health services.

The three core partners – Birmingham and Solihull Mental Health NHS Foundation Trust, South Staffordshire and Shropshire Healthcare NHS Foundation Trust and St Andrew’s Healthcare – currently provide all adult secure inpatient services in the region. They have come together formally for the first time to develop a transformational new model, ‘Reach Out’, which will be supported by a range of NHS, charitable and private sector providers.

There are approximately 600 people from the West Midlands currently in medium or low secure care, of whom around 40 per cent are cared for in units outside of the region.  The new model will introduce a more personalised intensive outreach service and provide comprehensive and responsive support in the community.  This will focus on aiding recovery, enabling earlier discharge and reducing the likelihood of readmission to hospital. As well as clinical care, the new service will provide practical support such as accommodation, community activities, social networks and employment advice. As a result, outcomes for service users will improve and inpatient beds will be freed up to allow those currently placed out of the area to be brought back to the West Midlands, closer to their home and family.  It is estimated that, in the first two years alone, around 90 people from the West Midlands will come back to the region for their inpatient care.”

There was a corresponding NHS England press release on the same date.

What due diligence does the NHS undertake when contracting from private sector providers like St. Andrews? I have found no published details other than references in St. Andrews annual reports to CQUIN targets:

St Andrews Healthcare 201617 CQUIN

From St. Andrews Quality Account 2016/17


However, as a former St. Andrews whistleblower (see declaration of interest) I found that NHS commissioners and teams from home areas rarely took much interest once patients were placed. Few regularly made the long trek to care plan review meetings. It seemed to me that broadly speaking, the NHS took an out of sight, out of mind approach. This is understandable at one level when the NHS is so hard pressed, but it is not a recipe for Safeguarding success. The geographical separation can certainly be very distressing for families who feel more powerless when they have concerns to raise.

What the government should do of course is re-stock NHS beds and in house expertise in the competent care of the most serious mental illness. But I doubt I shall see that in my life time. Why bother when there are prisons and convenient corporate alternatives.

I suspect there would need to be an extreme nadir before the pendulum swings back.

Assuming there will still be an NHS.


Declaration of interest: I am a former St. Andrews whistleblower. I was employed as a Consultant Psychiatrist in Rehabilitation Psychiatry at St. Andrews between 2003 and 2007 in the Mens service, looking after patients on a slow stream low secure rehabilitation ward and a medium secure admission ward. I occasionally covered for colleagues’ annual leave, which at times included Grafton ward. During my employment, I raised issues of quality of care and Safeguarding.



4 years of CQC mental health whistleblowing data

UK Whistleblowing Law is an Ass: Helen Rochester v Ingham House Ltd and the Complicit CQC

Sir Robert Francis and Reform of Whistleblowing Law

Letter to David Behan CEO CQC requesting review of previously rejected Regulation 5 Fit and Proper Person referrals

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 13 February 2018

The CQC’s much criticised antics over Regulation 5 FPPR, which have served to protect and help recycle poor managers have been thrown into relief by the publication on 8 February 2018 of Bill Kirkup’s review of events at Liverpool Community Health NHS Trust.


Steven Barclay Minister of State for Health and Social Care gave undertakings in parliament on 8 February that a wider review will be undertaken of Fit and Proper NHS arrangements, to encompass action required after poor directors leave the NHS.

I have today written to David Behan chief executive of the CQC to ask if CQC will now review FPPR referrals that it previously rejected out of hand, even in the most serious and robustly evidenced cases:



Sir David Behan

Chief Executive

Care Quality Commission

12 February 2018


Dear Sir David,

Request for review of FPPR cases rejected by the CQC

I write to ask if CQC is formally reviewing FPPR referrals that it rejected whilst operating FPPR prior to publication of its new guidance in January 2018.

CQC had admitted that its previous way of operating FPPR was flawed and required review.

The need for better FPPR process has now been additionally highlighted by the latest report on the troubles at Liverpool Community Health NHS Trust where Bill Kirkup has concluded that poor leadership led to unnecessary patient harm.

Dr Kirkup has recommended further review of CQC’s operation of FPPR.

The Minister of State indicated on 8 February 2018 that he believes a wider application of FPPR is required, which encompasses what action should be taken after any unfit director leaves the NHS. I raised this point with CQC as long ago as January 2015.

CQC has to date refused to operate FPPR on this basis, and has repeatedly told referrers that it believes Regulation 5 only applies to current NHS directors.

The most recent CQC letter that I have seen to a whistleblower, stating that an individual is not subject to FPPR because they were no longer a director (albeit still employed by the NHS), is dated 5 February 2018.

CQC has also not followed sound process in even some of the most serious and proven cases of misconduct by NHS directors. For example, CQC rejected Dr Kevin Beatt’s FPPR referral without reviewing relevant papers, even though he was a vindicated whistleblower.

“In a separate development, it emerged this week that the Care Quality Commission (CQC) will not conduct investigations into four former and current trust directors referred for assessment against new fit and proper person regulations.

The CQC is understood to have found insufficient evidence to substantiate allegations against the board members, although Dr Beatt said he had not been asked to provide any documents.”

Croydon Guardian 28 April 2015 Fresh twist in whistleblower Kevin Beatt’s legal battle as Croydon NHS trust wins right to appeal unfair dismissal ruling

After Dr Beatt won his whistleblowing Employment Tribunal claim in December 2014, the directors of Croydon Health Services NHS Trust chose to repeatedly pursue him through the Courts, all the way up to the Supreme Court. The most shocking thing in this matter is that regulators did not stop the trust despite being asked to do so. Indeed, when NHS TDA (later NHS Improvement) was asked to review the trust’s actions, it only accepted evidence from the Trust and rebuffed an offer from Dr Beatt to provide counter-posing evidence:

Letter 31 March 2016 from Andrew Hines NHSTDA Associate Director cc Kathy McLean Medical Director NHSTDA

Regulatory reluctance to pursue senior managers who have harmed whistleblowers and suppressed disclosures is marked. I wrote as suggested by Andrew Hines in the above letter, to the relevant NHSTDA manager about reviewing the issues arising from the Employment Tribunal decision in Dr Raj Mattu’s favour. However, I never even received a reply.

In some cases, CQC has come to sweeping conclusions that there was insufficient evidence of the referred directors’ individual culpability, but it did so without investigating, even though referrers had indicated to CQC that there was evidence of such individual culpability. It is difficult to see how CQC could have fairly and safely reached such conclusions without even speaking to referrers or considering case papers.

Things have gone awry in some cases after CQC has refused to take action under FPPR. For example:

  • Trusts have been placed in special measures for poor care and governance
  • There has been financial mishandling costing the public purse millions, as well as disrupting patient care, necessitating investigation and inquiries
  • Irregularities in competitive processes between trusts
  • Criminal conviction


As a specific example, please see Diana Johnson’s letter to the Secretary of State regarding regulators’ refusal to take action in response to her referral on Phil Morley

Diana Johnson MP letter to Jeremy Hunt 16 July 2015

This was followed by his trust being rated ‘Inadequate’ and placed in special measures in 2016:

Boss of troubled hospital stepped down

Please also see this summary of evidence obtained about regulatory failure with respect to FPPR in the Paula Vasco-Knight case and NHS England’s admission that it did not share information about Paula Vasco-Knight’s suspected fraud:

Postscripts on Paula, NHS England’s apologia and regulatory reticence

Moreover, some of the individuals who were involved in serious service failures after CQC refused to take action under FPPR, have been nevertheless been recycled to other director roles in the NHS. As a worst case scenario, some failed managers have been recycled to director roles in failing organisations.

Some remain outside of the NHS but have sold their services to the NHS since leaving.

Bearing in mind the evidence arising from Bill Kirkup’s review of Liverpool Community Health NHS Trust about the serious harm that can befall patients when poor managers are unchecked, I would be grateful to know if the CQC will re-visit its decisions to reject FPPR referrals and remedy its previous arbitrary actions and omissions.

Yours sincerely,

Dr Minh Alexander

Cc Steven Barclay Minister of State DHSC

Prof Edward Baker Chief Inspector of Hospitals, CQC

Rob Behrens PHSO

Bill Kirkup

Diana Johnson MP

Meg Hillier MP

Public Accounts Committee

Sir Amyas Morse NAO

Health Committee

Sir Robert Francis CQC NED

Dido Harding Chair NHS Improvement

Sir Ian Dalton Chief Executive NHS Improvement

Kathy McLean Medical Director NHS Improvement



The Man from Del Monte He Say ‘No’

David Behan CQC refusal to review previously rejected FPPR referrals



delay deny road signs


What’s up at Wirral? NHS Improvement’s investigation into executive whistleblowing at Wirral University Teaching Hospital NHS Foundation Trust

Letter to Public Accounts Committee 11 September 2017 requesting a review of whistleblowing

CQC: A Chief Inspector doesn’t call

FPPR: CQC has lost all moral authority, but what will the National Guardian do?














What’s up at Wirral? NHS Improvement’s investigation of executive whistleblowing at Wirral University Teaching Hospitals NHS Foundation Trust

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 10 February 2018



NHS Improvement has commissioned an investigation into mishandled whistleblowing disclosures by directors at Wirral University Hospital NHS Foundation Trust.

The track record of regulators on such matters is described.

FOI data is provided on past NHS commissions undertaken by NHS Improvement’s chosen investigator for Wirral.



It is three years tomorrow since Robert Francis published his report of the disappointing Freedom To Speak Up Review, and since Jeremy Hunt grandly promised ‘sweeping reforms to end cover up culture’. 

Yet reports and evidence of NHS bullying, spin and suppression continue. In October 2017 NHS England and the Department of Health were caught out trying to bully journalists when Pulse, a periodical for GPs, reported an explosive story that the government had considered piloting a ban on walk in presentations to A&E Departments. NHS England initially denied all and the Department of Health overbearingly demanded to know when Pulse would take its story down, and it also tweeted unpleasantries. Both retreated when Pulse published an audio recording of an NHS England official which proved the accuracy of their reportage.

NHS England pilot ban on A&amp;E walk ins


The regulator NHS Improvement announced in December 2017 that it was launching an investigation into whistleblowing allegations by four trust directors about the trust’s recently departed Chief Executive David Allison: NHS watchdog probes former Arrowe Park Hospital boss

NHS Improvement indicated on 12 January 2018 that this will be the scope of the investigation:

“The investigation will:

(i) investigate concerns raised by members of trust staff in late 2017 with NHS Improvement regarding cultural, behavioural and governance issues

(ii) review the trust’s handling of a recent disciplinary case involving allegations of sexual misconduct; and 

(iii) consider NHS Improvements’ response to the concerns raised with it per (i) above”

According to the Health Service Journal, there were a range of governance concerns had been raised with NHS Improvement, and a key issue was that Allison was allegedly appointed to the private health consultancy Draper and Dash without the knowledge of his trust board:

“Multiple sources confirmed Mr Allison was investigated by the chair after he was appointed to the board of digital informatics company Draper and Dash on 20 November without the knowledge of the trust’s executive team. Mr Allison arranged a meeting for trust executives with Draper and Dash managing director Orlando Agrippa. The meeting was arranged via an email from Mr Allison’s trust account but the meetings never took place due to concerns of staff.”

What HSJ did not report was that the outgoing Chief Executive of NHS Improvement, Jim Mackey had also been appointed as a non-executive director to Draper and Dash. According to Companies House, Mackey is listed as a Draper and Dash director from 1 October 2017.

Jim Mackey Companies House

Screenshot taken from Companies House website 10 February 2018


Mackey returned to his old job as Chief Executive of Northumbria Healthcare NHS Foundation Trust in November 2017. The trust’s published register of interests notes that Mackey is a Draper and Dash NED:

Jim Mackey declaration of interests Draper and Dash


After readers debated Mackey’s appointment to Draper and Dash in the comments section of the HSJ article about Allison, HSJ tried to “focus people back on the issues at Wirral”, and indicated that the following statement had been provided by Mackey’s trust:

Shaun Lintern Draper and Dash focus away from Jim Mackey


But the question of course is that whilst the current rules permit this, is it right that a revolving door should exist and should it be shut? Should private businesses benefit from the market knowledge of current or recent senior NHS officials and regulators?

And how effectively will NHS Improvement address the issues at Wirral University Teaching Hospitals NHS Foundation Trust given that NHS Improvement’s just-departed CEO is a Draper and Dash NED?


Past regulatory approaches to allegations of misconduct by trust directors

There was much concern previously about NHS Improvement’s handling of a challenging 2016 Verita report on whistleblowing governance at the Royal Wolverhampton NHS Trust.

Verita concluded that a whistleblower “was not treated fairly by the trust” and it criticised David Loughton the controversial CEO of the trust.


Loughton had previously featured in the whistleblowing cases of Raj Mattu and Professor David Ferry.

Mattu’s extraordinary story was summarised by Private Eye: Raj Mattu and the Death of Whistleblowing

Professor David Ferry also suffered a long ordeal including a referral to the General Medical Council by the Royal Wolverhampton NHS Trust . As a marker of what he experienced, Ferry moved his family to the USA. He gave an interview to BBC File on Four last year about his harrowing story:

That night, when I went to my car, there was a sticker on my car that said, ‘Death to the bastard Geordie whistle-blower.”



After the 2016 Verita report resulted in intense media scrutiny, NHS Improvement appointed Deloitte to conduct a governance review on Loughton’s trust..

Deloitte’s review essentially consisted of asking trust directors some questions and reviewing documents. Explicitly, Deloitte did not seek to verify what it was told:

We have assumed that the information provided to us and management’s representations are complete, accurate and reliable; we have not independently audited, verified or confirmed their accuracy, completeness or reliability.”

Deloitte merely observed some issues about Loughton’s style and suggested that he ‘reflect’:

Recommendation 1: “The CEO should further reflect on his personal style and in particular the potential impact his strength of character and impulsive and honest style may have on internal and external stakeholders.”

A similar situation arose at Derbyshire Healthcare NHS Foundation Trust after a former trust director won an Employment Tribunal claim for sexual harrassment and discrimination.

In July 2015 Monitor, a predecessor body of NHS Improvement, announced that it would investigate the trust.

This proved to consist of trust- controlled exercises: a ‘governance review panel’ assessment and a review by Deloitte of ‘governance arrangements and HR related functions’, the reports of which were published amongst the trust’s board papers for March 2016.

The Deloitte review at Derbyshire Healthcare relied on the same methodology as at the Royal Wolverhampton. Trust managers were asked for their views, without verification:

We have assumed that the information provided to us and management’s representations are complete, accurate and reliable; we have not independently audited, verified or confirmed their accuracy, completeness or reliability. In particular, no detailed testing regarding the accuracy of any financial information has been performed.”

The Care Quality Commission has also been embroiled in controversy about its unwillingness to take action against poor directors under Regulation 5 Fit and Proper Persons. This was such that Robert Francis, a CQC NED, revisited managerial regulation in October 2016, after having rejected it in his report of the Freedom To Speak Up Review only 20 months previously: Robert Francis calls for regulation of senior managers.

Titcombe Robert Francis managerial regulation

Rosie Cooper MP revealed, in a 2016 parliamentary debate about an investigation of Liverpool Community Health NHS Trust, more astonishing complicity by regulators in protecting and recycling poor managers who had suppressed whistleblowers.

A further review by Bill Kirkup  on Liverpool Community Health NHS Trust was published on 8 February 2018, which concluded that trust managers covered up and caused avoidable harm to patients from mismanagement:

“[incident] reporting was discouraged, investigation was poor, incidents were regularly downgraded in importance, and action planning for improvement was absent or invisible”

 “Serious incidents causing patient harm were not reported, not investigated and lessons not learned. The result was unnecessary harm to patients.”

Kirkup also criticised serious, recurrent failure by oversight bodies and regulators such as the NHS Trust Development Authority and CQC to step in quickly enough. Kirkup expressed much scepticism about inconsistent regulatory judgments:

“We found it impossible to understand how such different conclusions [by CQC] could be reached about the same service over such a short period.”

Kirkup added to the already serious criticisms of CQC’s handling of Regulation 5:

“The Department of Health should review the working of the Care Quality Commission fit and proper person’s test, to ensure that concerns over the capability and conduct of NHS executive and non-Executive Directors are definitively resolved and the outcome reflected in future appointments. Action: Department of Health.”

Arising from Kirkup’s review, Steven Barclay the new Minister of State for Health gave the following undertakings in parliament on 8 February 2018, which hint at some form of barring scheme:

“Secondly, one recommendation is specifically for the Department of Health and Social Care, as set out in paragraph 6.5 on page 64. This relates to a review of CQC’s fit and proper person test. I intend to discuss the terms of that review with the hon. Member for West Lancashire and will appoint someone to undertake that review within the coming days. I believe that review will need to address the operation and purpose of the fit and proper test, including but not limited to: where an individual moves to the NHS in another part of the United Kingdom; where they leave but subsequently provide healthcare services to the NHS from another healthcare role, such as with a charity or a healthcare company; where differing levels of professional regulation apply, such as a chief executive who is a clinician compared to one who is a non-clinician; where there is a failure to co-operate with a review of this nature and what the consequences of that should be; and reviewing the effectiveness of such investigations themselves when they are conducted. I will be pleased to hear the views of the hon. Member for West Lancashire, and those of the Health Committee, on these issues.”

This is a significant development as to date, the CQC has explicitly and repeatedly refused to operate FPPR as a disclosure and barring scheme.


NHS Improvement’s investigation of Wirral University Teaching Hospital NHS Foundation trust

NHS Improvement has announced that its investigation on Wirral University Teaching Hospital NHS Foundation trust will be carried out by Carole Taylor-Brown, whom it describes as:

“an experienced independent investigator with NHS experience, who has undertaken numerous investigations of this type, working alongside multiple agencies. Carole was previously the Chief Executive of NHS Suffolk and NHS Suffolk East PTC.”

Taylor-Brown undertook the investigation into whistleblower allegations about cancer waiting list fiddling and related bullying at Colchester Hospital University NHS Foundation Trust.

Her joint report with Prof Pat Troop was published by Colchester in December 2014. It concluded that there had been no fiddling or bullying:

There is no evidence to support that there was at any time, an instruction to junior staff (or others) to manipulate data or make inappropriate adjustments to cancer data” 

 “There is no case to answer for any individual….in respect of alleged bullying and harassment.”

A detail from this report is that the internal trust investigator who carried out an initial investigation into the fiddling concerns was a Mr Agrippa, whose LinkedIn details state that he was formerly Colchester’s Director of Business Informatics, and is now CEO of Draper and Dash.


Tamarix People Limited

Taylor-Brown states on her company website, Tamarix People Limited:

“My practice has two principal areas of focus: 

Coaching senior people and senior teams and, 

Mediation and Investigations involving senior people in the workplace

alongside which, I undertake some strategic commissions relating to organisational development and design.” 

Taylor-Brown additionally states:

I offer specialist, discreet, independent mediation and investigation services, principally for clients where the matter concerns senior people, inter-Board /organisational relationships or, where there are specific organisational/personal sensitivities. I also provide these services where regulatory intervention or oversight or other external stakeholder scrutiny is evident for the organisation concerned.”

Tamarix People Limited, Companies House No. 07450401, was incorporated in November 2010.

The company’s website gives details of some Taylor-Brown’s former clients, including NHS bodies.

The bodies listed as clients of Tamarix People Limited were asked for details of services they had purchased, and a list is given below.

To give an idea of the sums involved when the NHS buys in such services, the costs of these services are also listed. Relatively speaking, they are modest compared to the overall NHS consultancy bill.


This list of NHS bodies that have purchased Taylor-Brown’s services will be updated as more information becomes available:


Colchester Hospital University NHS Foundation Trust disclosed that it engaged Tamarix People Limited for the a total of £93,071.40 for her work on the cancer list whistleblowing investigation.

This is the investigation report: Report of the investigation into the Management Response to Staff Concerns Relating to the Validation of the Cancer Waiting List 2011/12 at Colchester Hospital University NHS Foundation Trust

Health Education England disclosed that it had paid Tamarix People Limited a total of £54,507 (£52,347 for ‘coaching’ services and £2,160 for mediation services).

Southend University Teaching Hospital disclosed that it had paid Tamarix People Limited a total of £7,920 (£2,640.00 for four ‘coaching’ sessions, £4,620.00 for two ‘coaching sessions and mediation support’ and £660 for one ‘coaching’ session).

Worcestershire Acute Hospitals NHS Trust disclosed that it had paid Tamarix People Limited £12,310.20 for “Investigation into an alleged conflict of interest during October 2016”.

The trust has provided the executive summary of the investigation report: Worcestershire Acute Hospitals NHS Trust Review of Alleged Potential Conflicts of Interest by Mr Stephen Lake and Mr Steven Pandey NHS Consultant General Surgeons

The Royal Orthopaedic Hospital NHS Foundation Trust disclosed that it paid Tamarix People Limited a total of £20,716.44 for “coaching sessions from June 2013 to Sept 2017”

West Essex CCG disclosed that it paid Tamarix People Limited £18,348.00 for “Coaching sessions and OD consultancy from 2014-2018”

Mid Essex Hospital Services NHS Trust spuriously refused to disclose the requested information on the following grounds:

We can confirm that Tamarix People is known to us – however in view of the fact that it is a one-person organisation, to answer your question would be a breach of both Section 20 of the FOI Act, Personal Data and Section 43 Commercial Confidentiality.’ 

Cambridgeshire and Peterborough NHS Foundation Trust also claimed that it could not disclose on grounds of commercial confidentiality.

United Lincolnshire Hospitals NHS Trust confirmed receipt of the FOI request but failed to respond and is now overdue.

Northern Warwickshire CCG was listed as a client by Taylor-Brown’s company website, but the CCG denied that it had ever purchased any services.



NHS Improvement itself has been asked for any history of past transactions with Carole Taylor-Brown’s companies.

The regulator has failed to respond within the statutory deadline and is now overdue.

UPDATE 11 February 2018: Whilst awaiting NHS Improvement’s response, I have learned of this document, which appears to be the report of an investigation on alleged bullying at Worcestershire Health and Care NHS Trust by Carole Taylor-Brown in 2015. The report states that this investigation was commissioned NHSTDA, one of NHS Improvement’s predecessor bodies.



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

Arrowe Park Hospital says sorry for culture of bullying and harassment

Senior nurse at Arrowe Park Hospital investigated over alleged waiting times fiddle

Arrowe Park consultant sacked over sexual harassment claims as hospital troubles grow


Wirral University Teaching Hospital recruitment

After the Bawa-Garba judgment. Some responses from the Court of Appeal, CPS, Criminal Cases Review Commission and GMC.

Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 8 February 2018



Institutional responses to enquiries have raised questions about gaps in the criminal justice system’s governance of Diversity and the handling of Gross Negligence Manslaughter, and about the GMC’s handling of offending by registrants.



The death of six year old Jack Adcock, a child with Down’s Syndrome, under the care of Leicester University Hospitals NHS Trust and the conviction and striking off of paediatrics trainee Dr Hadiza Bawa-Garba from the General Medical Council register are controversial.

Opposing camps of a medical profession afraid of being criminalised for errors made in good faith, and bereaved families who have endured NHS cover ups, have at times bitterly disputed the meaning of the case.

Ingrained system bias against people with mental illness and learning disability must be acknowledged.

There is persistent disparity of esteem in the funding for mental health. Disrespect by the government was evident following the Mazars Review into hundreds of un-investigated deaths. NHS England managed to airbrush the issues of discrimination against people with mental illness and learning disability.

Years after the Cornwall Learning Disabilities services scandal, Winterbourne View and the report on poor physical care of people with learning disability, Death by Indifference, little has changed.

The fight that bereaved families may face against bureaucracy that may be indifferent, incompetent or unfair can be prolonged.

And it should be acknowledged that one of government’s strategies is to avoid censure of culpable, but favoured, individuals by shifting blame entirely onto systemic factors. Robert Francis was criticised for failing to censure senior figures behind the Mid Staffs disaster.



A Return to the Killing Fields. Dr Phil Hammond. Private Eye 2013

“Knighthood for a whitewash?

One wonders what version of his report Robert Francis was reading at the press conference on 6 February. He looked like a man held hostage. The interminable delay in publication to allow for rewrites had reportedly been because those he was minded to criticise had launched vigorous legal defences. In the end he opted for a ridiculous “no scapegoats, blame the system” approach. This was endlessly debated after the Bristol Inquiry report in 2001, when a culture of “fair blame” was proposed. Ill thought-out, untested, rushed and brutally-enforced reforms undoubtedly contribute to NHS disasters, but individuals also have to be held accountable for their actions. Patients and staff trust a system that is just. But the judge delivered no justice.”



In Dr Bawa-Garba’s case, a concern has been that a junior doctor was sacrificed and there has been insufficient focus on systems issues, for which more senior figures were responsible.

I do not have a clear view on the merits of the Bawa-Garba conviction or erasure. I am not close enough to the case to properly venture opinion. I have seen no original documents nor the transcripts of the court hearings. I do not know if there are important details missing from the public record, which can often be the case.

But it is fair to ask questions.

Was it possible that Dr Bawa-Garba was more harshly treated because she was female and Black?

It is known that BME doctors suffer harsher discipline and that once referred to the GMC, they are more likely to face Fitness to Practice proceedings.

The GMC has in the past excused this as an artefact of referral patterns: employers are reportedly more likely to refer BME doctors, and the GMC in turn tends to sanction more severely doctors who are referred by employers:


Oral evidence by Prof Terence Stephenson Chair of the GMC to an accountability hearing by the parliamentary Health Committee 6 January 2015:

Of greater concern to me are BME doctors who were born, educated and went to medical school in this country and are UK graduates. Within our data they have about a 30% greater chance of having a sanction against them than white UK graduates. That is a subject of great concern. It is clearly not something simple for the following two reasons. One is that BME UK graduates born in this country also do worse in all undergraduate and postgraduate exams, not just medicine; in every university subject in the United Kingdom they do systematically worse. 

… If you are BME UK, or indeed IMG [international medical graduate], you are not more likely to be referred to the GMC by patients but you are more likely to be referred by employers. Again, we need to start understanding that. That affects the sanction, because doctors who are referred by employers are much more likely to get a severe sanction. There are good reasons for that, as well.”



It has been observed that female doctors are more law-abiding but more harshly treated by employers. This mirrors the behaviour of the criminal justice system, despite the effects on families and children when women are jailed.

Was Dr Bawa-Garba treated as fairly as a white male might have been? Such a comparator may exist. Graeme Catto a former President of the GMC gave a personal account of medical error with a fatal outcome with no sign of subsequent prosecution.

Should Dr Bawa-Garba have refused to cover for absent colleagues? Research by Middlesex University for the Freedom To Speak Up Review showed that BME NHS staff are more likely to be ignored and victimised when they raise concerns.

Francis BME page 66

Those who sit in judgment of BME defendants in Court and BME doctors in GMC proceedings are less likely to be from BME backgrounds. An update review by David Lammy MP demonstrates that disadvantage against BME people persists in the justice system.

There is also debate about the “suitability of a lay jury to determine complex matters of professional competence” and how juries might be directed as to what is ‘grossly negligent’:

The Justice Gap. Poor, bad and truly atrocious: Directing the jury on gross negligence manslaughter

Gross negligence manslaughter – an offence in flux

But policy swings to and fro. After the Shipman murders, a Health minister declaimed that it was necessary to:

“put an end to the idea that the GMC was a representative body for doctors.”

Some years later the GMC was forced to commission a review after criticism of suicides of doctors following GMC referral.

Charlie Massey the Chief Executive of the GMC has controversially claimed that he “had no choice” but to pursue Dr Bawa-Garba’s erasure from the register, because her conviction automatically committed the GMC to this course. There are differing views.


Is the system consistent and fair?

The Court of Appeal, Crown Prosecution Service and Criminal Cases Review commission were asked about their approach to Diversity and the handling of gross negligence manslaughter cases.


The Court of Appeal

The Court of Appeal found against Dr Bawa-Garba in December 2016 and refused her leave to appeal against the Gross Negligence Manslaughter conviction.

No Diversity statistics were evident on the work of the Court of Appeal so this data was requested. The Ministry of Justice initially refused disclosure on grounds of cost exemptions. It eventually admitted that no Equalities analysis had ever been carried out on the work of the Court of Appeal.


The Criminal Cases Review Commission

The Commission was established in 1995 and its job is to:

“investigate cases where people believe they have been wrongly convicted of a criminal offence or wrongly sentenced”

It has the power to refer cases back to the Court of Appeal.

The CCRC dislcosed that it received a total of 7,406 applications between 1 April 2013 and January 2018

At least 1,784 applications were received from visible ethnic minority applicants.  This comprised 536 ‘Asian or Asian British’, 985 ‘Black African, Black Caribbean or Black British’ applicants and 263 ‘Mixed’ applicants.

Screen Shot 2018-02-08 at 21.58.29

The CCRC disclosed that of a total of 7,406 applications received between 1 April 2013 and January 2018, at least 1,784 were received from visible ethnic minority applicants.

This comprised 536 ‘Asian or Asian British’, 985 ‘Black African, Black Caribbean or Black British’ applicants and 263 ‘Mixed’ applicants:

Screen Shot 2018-02-08 at 21.58.29
The CCRC also disclosed this internal report:

CCRC Applicant stats by ethnicity and other protected characteristics

The CCRC advised that it has referred a total of 117 cases to appeal courts of between 1 April 2013 and January 2018:

CCRC number of cases referred by year

From these 117 cases that the CCRC referred to appeal courts for a fresh look, 64 previous decisions were subsequently quashed:

CCRC outcomes of referrals to appeals courts

The CCRC said that numbers were too small to safely give a Diversity breakdown of outcomes by year:

CCRC small numbers ethnicity breakdown

A Diversity analysis for the whole period in question has been requested.


The Crown Prosecution Service

An analysis by the Sentencing Council on a sample of 156 manslaughter cases reveal that about 10% of manslaughter sentences relate to Gross Negligence Manslaughter.

This is summary data from the Sentencing Council on sentences for manslaughter in the years 2006 to 2016.

Gross Negligence Manslaughter is handled by a specialist unit of the CPS, the Special Crime and Counter Terrorism Division (SCCTD)

The CPS denied that it held any detailed internal guidance on prosecuting Gross Negligence Manslaughter, and later cited only brief guidance from its website.

The CPS advised that it could not give me a list of prosecutions against doctors for Gross Negligence Manslaughter due to cost exemptions, as a special search for the data would be needed.

Astonishingly, the CPS later claimed that not even the SCCTD had kept central records on cases of Gross Negligence Manslaughter:

“the Crown Prosecution can confirm the Special Crime and Counter Terrorism Division does not keep its own record of the data you have requested.”

CPS 18 January 2018

This purported lack of a central record raises questions about how the CPS is tracking its practice, and ensuring consistency of approach and thresholds for prosecution.

The British Association of Physicians of Indian Origin (BAPIO) has asked the police to consider a prosecution against Dr Bawa-Garba’s trust for corporate manslaughter.

Some may see this as a polite way of asking the criminal justice system to consider whether it effectively scapegoated Dr Bawa-Garba.


The General Medical Council

To my knowledge, there are no complete, published data on manslaughter prosecutions against doctors.

There have been periodic reviews of such cases, found by searching press archives and other records.

Ferner and MacDowell identified medical manslaughter cases between 1795 and 2005.

Doctors were most commonly charged with manslaughter as a result of mistakes (37/85 doctors), which are errors in the planning of an action. Ten of these doctors (27%) were convicted.”

They reported an upward trend in the number of prosecutions from the 1990s, but that the conviction rate had remained stable at around 30%.

Edwards reported on more recent cases,  including that of a urologist who was jailed for Gross Negligence Manslaughter but was later allowed to practice again by the GMC.

Edwards also reported on the case of Mr David Sellu, a surgeon who successfully appealed against his conviction for Gross Negligence Manslaughter. After all that, the GMC is currently pursuing him.

It would be reasonable to expect that the GMC holds good quality, central records on manslaughter cases, given the enormity of such cases.

However, when the GMC was asked to provide information on currently registered doctors who were convicted of a criminal offence in the previous four years, and to give a breakdown of the types of offences, it replied:

We do not hold the information you are seeking in questions 1 and 2 in a way which can be extracted electronically; this means that we would need to manually check though each case file.”

 GMC FOI response 10 January 2018 F17/9285/SW  

If this is correct, this raises questions about the GMC’s grip on offending by doctors, the oversight of its risk management of such cases and issues of consistency.


The future

In July 2016 the Secretary of State appointed Charlie Massey as GMC chief executive amidst concern from many doctors: ‘Doctors embroiled in another dispute over one of Jeremy Hunt’s aides’

Now, after an outcry from a profession not previously known for radicalism, the Secretary of State has announced a a review of Gross Negligence Manslaughter in the NHS.  This will, oddly, be led by surgeon Professor Sir Norman Williams, who has served on controversial government projects such as the Freedom To Speak Up Review on NHS whistleblowing.

GMC HQ protest 3.02.2018.png

Doctors demonstrating outside GMC HQ about the treatment of Dr Bawa-Garba on 3 February 2018


Hunt’s manslaughter review may just be another Department of Health and Social Care exercise in handling public opinion, when what is needed most is safe funding of the NHS.

The harsh punishment of honest error is hard to reconcile with the tenets of ‘just culture’, and the fear amongst doctors is understandable.

However, there has been no comparable protest about patient safety when whistleblowers are strung up. Senior doctors need to do much, much more to preserve professional freedoms and doctors’ rights to speak out without fear, as that is the other side of the coin in the Bawa-Garba case.



There has been an exchange of correspondence between the parliamentary Health Committee and the GMC, which has now been published. The Committee has expressed particular interest in issues of ethnicity:

Health Committee letter to GMC of 5 February 2018 and GMC response of 9 February 2018



The GMC has now disclosed via FOI that in the last five years it has not sought the erasure of one third of doctors (23 of 73) who were convicted of Sex Offences.

This contrasts poorly with its decision to seek Dr Bawa-Garba’s erasure because of errors which the MPTS found were not recklessly made.

The GMC has also admitted that it in fact has no specific policy on the handling of cases where doctors have been convicted of Gross Negligence Manslaughter. Despite the GMC chief executive Charlie Massey claiming that a conviction for Gross Negligence Manslaughter meant that GMC had no choice but to seek erasure, the GMC states in its latest response that each case must be “considered on its own merits”.

This adds further concerns about GMC arbitrariness and inconsistency.

I have shared this information with the parliamentary Health Committee:

Letter 10 March 2018 to Health Committee about GMC consistency



The Professional Standards Authority (PSA), which oversees the GMC, kindly shared the following internal documents on 19 February 2018:

They were originally disclosed under FOIA to the Health Service Journal, which reported the PSA’s criticisms of the GMC’s actions.

The PSA documents show that in pursuing Dr Bawa-Garba’s erasure, the GMC actively chose to disregard a relevant, prior Supreme Court decision which held that:

“An appellate court must approach a challenge to the sanction imposed by a professional disciplinary committee with diffidence. In a case such as the present, the committee’s concern is for the damage already done or likely to be done to the reputation of the profession and it is best qualified to judge the measures required to address it.”

The PSA concluded that the GMC’s argument for pursuing Dr Bawa-Garba’s erasure was “without merit”.



Waste Industry. Abuses of the NHS disciplinary process.

BMA Says No to Whistleblowers

UK Whistleblowing Law is an Ass

Sir Robert Francis and Reform of UK Whistleblowing Law


Of arbitrariness and arbiters: The Freedom to Speak Up project three years on.

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 7 February 2018



The National Guardian’s Office (NGO) costs the taxpayer £1 million a year, but what help does it give to whistleblowers in difficulties?

The National Guardian rightfully exposed CQC failure to treat whistleblowers fairly at Southport and Ormskirk Hospital NHS Trust.

The CQC accepted as satisfactory a fundamentally flawed FPPR investigation report, produced without anyone speaking to the whistleblowers in question. It would have been risky for the National Guardian not to acknowledge this serious CQC failure, as the evidence of the failure lies in a ticking time bomb of a report that the trust has not yet published but will no doubt surface eventually. Nevertheless, it was the right thing to do and this should be acknowledged.

But what else has the NGO done? Events to date suggest that the NGO makes up its own rules, which fail whistleblowers.

Has Robert Francis has stayed true to his original recommendations in the Freedom To Speak Up Review report or is he supporting a watered down interpretation of his recommendations?

Lloyd Armstrong is an NHS whistleblower who was sacked in the summer of 2017 after he made public interest disclosures about patient safety and poor governance at troubled North Essex Partnership NHS Foundation Trust.

This was after unsuccessfully seeking help from the National Freedom To Speak Up Guardian in January 2017, four months after she took up post.

Armstrong approached the National Guardian for help after his local trust Speak Up Guardian refused to intervene and advised him that the HR process had to be completed before she would examine any concerns about unfairness:

“You have been suspended from work since June and so this process must be followed through and brought to an end. As the hearing is so imminent I do not want to give you false hope that the disciplinary process will be halted. As I have said to you at [sic] the telephone, at this late stage my feeling is that the Guardian Service will proceed to look at the process if you feel you have been unfairly treated once it has ended.”

Email from North Essex Partnership University NHS Foundation Trust Speak Up Guardian 14 January 2017

Even though Armstrong was facing dismissal, the National Guardian advised that she could not take his case on because she had not yet established her procedures for handling cases.

Armstrong asked the National Guardian to invite his employer to temporarily pause proceedings against him, to allow her time to decide whether she wanted to take his case on. She refused to do so and Armstrong was subsequently sacked.


What are the National Guardians rules of procedure?

There has been much controversy about the National Guardian’s interpretation of the office’s role and responsibilities.

The 2016 CQC report on the outcome of a public consultation about the Office revealed that contributors believed that the National Guardian should protect whistleblowers from reprisal.

The CQC twisted and turned but its CEO David Behan eventually conceded that the National Guardian should challenge detriment:

Screen Shot 2018-02-07 at 04.59.26`Letter from David Behan 20 April 2017


However, the National Guardian later stated in case review guidance, published June 2017, that she sees the role as one of helping employers:

Therefore, the purpose of a case review will be primarily to support NHS trusts to identify how they can improve their own processes and support for staff when raising concerns by reviewing how NHS trusts responded to such concerns.”

This represents very significant drift from the original purpose of the Office as set out in Robert Francis’ report of the Freedom To Speak Up Review.

Francis originally proposed the establishment of the Office to primarily help whistleblowers who had nowhere else to go:

The deficiencies in the way concerns are investigated, and subsequent victimisation of individuals have been addressed in 6.4 and 7.5 respectively. What seems to be missing is any sort of external review mechanism, not to take over investigation of the concerns, but to provide a non-legalistic option to review what has been done locally, and make recommendations for further action as appropriate”

Report of the Freedom To Speak Up Review February 2015


Francis recommended that the Office should help ensure redress for patients and whistleblowers who are harmed as a result of whistleblowing governance failures. 1

Francis originally felt strongly enough to advise that the National Guardian should seek a direction from regulators if needed, to ensure such redress. 1

Moreover, the National Guardian has stated in current case review guidance:

Therefore cases should only be considered for possible review where there is clear evidence received in the referral that the NHS body has already responded to a concern and has failed to do so appropriately.”

This does not help whistleblowers where employers simply refuse to respond.

Moreover, the National Guardian’s guidance states that cases will be reviewed:

Where it is practicable for the NGO to review the case in question”

 ‘Practicable’ has the look of another escape clause.

Data obtained via Subject Access Request revealed that the National Guardian’s Office may baulk at cases which are subject to ongoing processes:


Screen Shot 2018-02-07 at 05.07.36

This internal correspondence by the NGO also stated:

 “case reviews will not be a means of seeking redress for individuals”

which contradicts Robert Francis’ original aims for the Office and his explicit view that the Office should have a key role in facilitating redress for harmed whistleblowers.


I asked the National Guardian to clarify what ‘live’ cases were:

Letter to National Guardian 7 May 2017

I have been provided with information which suggests that your office will not accept referrals on ‘live’ cases.

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

 The reply from the NGO on 17 May 2017 confirmed the intention to exclude cases with ongoing processes

“ …we will initially select cases for review where there are no outstanding decisions to be made. As the trial period progresses, we will review this approach and explore whether we can effectively open up the parameters within which we will be able to accept cases for review.”

I raised concerns about this and asked if ‘outstanding decisions’ included decisions by Employment Tribunals. I have no record of any response by the National Guardian and have sought further clarification. Clearly though, if the National Guardian sits on her hands whilst Employment Tribunals proceed over many months and sometimes years, irreparable damage will be done to whistleblowers.

Neither has the National Guardian responded yet to a question about the clause in her case review guidance which says that she will not touch cases until employers have responded to whistleblowers, which therefore implies there can be impunity for employers who simply ignore whistleblowers.


What is Robert Francis’ position on the National Guardian’s role?

Armstrong complained about the National Guardian’s Office and the decision not to help him. It was investigated by NHS Improvement who found in the NGO’s favour, with the conclusion:

Screen Shot 2018-02-07 at 05.10.11

A fundamental flaw in this complaint response by NHS Improvement is that it judged the fairness and proportionality of the NGO’s actions according to its ‘advertised role’.

This is because Armstrong’s complaint was founded on a concern that the National Guardian had taken an erroneous position and wrongly interpreted her remit. Her ‘advertised role’ had been questioned as part of the complaint, but this was sidestepped by NHS Improvement.

This is to be expected though, as the governance arrangements for the National Guardian’s Office are flimsy and introduce conflicts of interest. The National Guardian is expected to hold all to account, but complaints about the National Guardian are investigated by one of the bodies that she purportedly holds to account, NHS Improvement.

Nevertheless, it was significant that NHS Improvement conceded:

“there is room for improvement in the NGO being more consistent with individuals about explaining the precise nature of its role”.

Robert Francis adjudicates on complaints about the National Guardian, in his role as Chair of the National Guardian’s Liaison and Accountability Board. NHS Improvement’s complaint investigation reports are sent to him for a final decision.

Worryingly, in Armstrong’s case, Francis took the National Guardian’s and NHS Improvement’s view. He concluded that the NGO had no remit for intervening:

“I have considered his report [the NHS Improvement complaint investigation report] carefully and have decided to accept his recommendation that your complaint not be upheld…I do agree that it is not part of the National Guardian’s role to intervene in individual disciplinary processes’

Letter by Robert Francis to Lloyd Armstrong of 4 August 2017

However, Francis concurred with NHS Improvement that the NGO should set out more clearly the range of recommendations that it might make after undertaking a case review:

“I also agree with Mr Grimes’ view that it is desirable that the National Guardian’s Office clarifies what type of recommendations it considers it can make following a case review under the new review process it is in the course of setting up”

Letter by Robert Francis to Lloyd Armstrong of 4 August 2017

Disclosed correspondence also showed that Francis commented on non-adherence to the National Guardian’s complaint procedure:

Screen Shot 2018-02-07 at 05.12.13

There appears to be no evidence that the NGO has acted upon NHS Improvement’s and Francis’ recommendation that it should clarify what type of recommendations might be made following a case review.

The NGO’s original case review guidance from June 2017 remains online with no sign of a later revision. Neither do the NGO’s supplementary guidance for referrers and FAQs provide the clarification that NHS Improvement and Francis thought it should produce. Only broad reference is made to the original Freedom To Speak Up Review report proposals.

Furthermore, on 1 February 2018 the National Guardian published a case review report which revealed that her Office looked at whistleblower cases at Northern Lincolnshire and Goole NHS Foundation Trust despite internal processes not having concluded in these cases.

This report indicates that the NGO intervened and asked questions about an internal disciplinary process in the case of a whistleblower who was subjected to counter-allegations and investigation after whistleblowing, despite the Office’s previous advice to Armstrong that it could not intervene.

Even so, in the case of the Northern Lincolnshire and Goole NHS Foundation Trust whistleblower who was subjected to investigation after whistleblowing, the NGO appeared to accept the trust’s assurance that its internal investigation into the counter-allegations:

had looked for evidence of any malicious motive, but had not found any.

The National Guardian gave no evidence in this report that this claim by the trust was independently weighed by her office.

Neither is there any indication of potential redress for the whistleblower for any detriments suffered.

More generally, there is also a dearth of evidence about how the National Guardian conducts her business. Strangely, her first annual report was silent on how many referrals she had received for case review, and how many of these she had accepted.

The National Guardian has so far attended and held numerous conferences and other high profile events, but has announced only three cases reviews since June 2017 – on Southport and Ormskirk Hospital NHS Trust, Northern Lincolnshire and Goole NHS Foundation Trust and Derbyshire Community Health Services NHS Foundation Trust.

There was also no evidence in her annual report that she has collected satisfaction data from whistleblowers who have contacted her Office. This is despite the fact that she expects local Speak Up Guardians to collect such data.

Armstrong has now lodged a further complaint about the apparent inconsistencies in the NGO’s approach to whistleblowers.

He has formally submitted questions to the National Guardian’s Office on its case review activity.

He has also asked Robert Francis to explain his position more clearly:

“I would be very grateful if you could clarify to me what was in your mind when you made your original recommendation in the report of the Freedom To Speak Up Review that the National Guardian should help ensure redress for harmed whistleblowers, including through a direction by a regulator if necessary.

 Please could you give some practical indications of the sort of cases and scenarios that would in your view qualify for such help from the National Guardian.”

Letter by Armstrong to Robert Francis of 4 February 2018


As more evidence of the National Guardian’s Office’s inefficacy mounts, both in terms of design and execution, will Francis rethink his Freedom To Speak Up Review recommendations?

In lawyerly fashion, he left himself some escape clauses. In February 2015 he rejected the proposal of a properly constituted Office with legal powers to protect whistleblowers. But he did leave the door slightly ajar:

While I do not see the need to go as far as this, certainly at this stage, I do see a need for some form of external review mechanism.”

 Page 168, report of the Freedom To Speak Up Review

What is finally needed to push that door open? More avoidable deaths at scale? It should not take such tragedy to usher in proper reforms.

But whilst they wait for that door to open, whistleblowers would be very glad to hear from the National Guardian exactly what she is doing for them and for patient safety.

That is of course, assuming she knows.



UK whistleblowing law is an ass. Helen Rochester v Ingham House Ltd and the complicit CQC

Sir Robert Francis and reform of whistleblowing law



1 Page 168 of Robert Francis’ report of the Freedom to Speak Up Review:



The INO [National Guardian] should be authorised by these bodies to use his/her discretion to:

  • review the handling of concerns raised by NHS workers where there is cause for concern in order to identify failures to follow good practice, in particular failing to address dangers to patient safety and to the integrity of the NHS, or causing injustice to staff


  • to advise the relevant NHS organisation, where any failure to follow good practice has been found, to take appropriate and proportionate action, or to recommend to the relevant systems regulator or oversight body that it make a direction requiring such action.

 This may include:

– addressing any remaining risk to the safety of patients or staff 

– offering redress to any patients or staff harmed by any failure to address the safety risk

– correction of any failure to investigate the concerns adequately”


DR NO (1)