Alexander's Excavations

By Dr Minh Alexander retired consultant psychiatrist, 30 January 2023

There has been secrecy about how badly COVID has affected frontline workers, for obvious reasons. The government’s negligence and policy failures raise serious liability issues.

In the NHS, it remains to be seen how well supported staff affected by long COVID will be.

The NHS has avoided publishing the actual number of staff affected by long COVID.

Not all NHS trusts even collect data on long COVID affecting their staff.

Indirect assessment of changes in NHS leavers patterns raised questions about upward trends in voluntary resignations for health reasons and early retirements.

FOI data from some NHS trusts indicated that NHS England had been collecting data on the numbers of NHS staff referred to post COVID assessment services, but that it has kept this data to itself.

A subsequent FOI response from NHS England denied that NHSE held such data.

The Department of Health and Social Care has washed its hands and does not intend to collate data on NHS staff affected by long COVID.

NHS Resolution admits it is handling personal injury claims by NHS staff affected with long COVID, but says the cases are not specifically coded and it cannot search for such cases.

Another route to data on the impact of COVID on NHS staff is the government scheme to compensate the families of health and social care staff who died from COVID-19 contracted at work, the NHS and Social Care Coronavirus Life Assurance Scheme 2020, for England and Wales.

The government’s published material stated:

 “The scheme recognises the increased risk faced by staff during the crisis and will cover coronavirus related deaths of workers in frontline health and adult and children’s social care roles during the outbreak.”

The scheme was established in May 2020 and closed on 31 March 2022 (30 June 2022 in Wales). It will remain open to applications up to 31 March 2023 (30 June 2023 in Wales) for deaths that occurred whilst the scheme was open.

The NHS Business Services Authority, an Arms Length Body of the Department of Health, administrates the scheme.

An FOI request to NHSBSA has resulted in the following response.

In summary, 91.6% (744 of 812) of claims by the families of deceased health and social care workers to the government’s scheme up to 21 December have been accepted. 96.6% (719 of 744) of the accepted claims have been paid, with over £43 million paid so far.

The details given in the NHSBSA FOI response are as follows:

“As of 21 December 2022, there have been a total of 812 claims submitted to the NHS and Social Care Coronavirus Life Assurance Schemes in England and Wales.

Of these, 500 claims relate to health and social care workers in the NHS. 291 relate to those employed in social care.”

“Of the 812 claims submitted to the NHS and Social Care Coronavirus Life Assurance Schemes by the 21 December 2022, 744 had been accepted of which 451 related to the NHS and 276 to Social Care. 52 cases did not meet the eligibility criteria. The remaining 15 cases were under consideration and awaiting further information.”

“Of the 744 claims accepted on the 21 December 2022, 719 of the cases had received the payment. In total this amounts to £43,140,000 paid. In the remaining 25 cases, we were awaiting probate to enable payments to be made.”

About two thirds of the accepted claims related to NHS workers (451 of 744). But the social care workforce is slightly larger than the NHS workforce. The NHS workforce in England is about 1.3 million, the social care workforce in England is about 1.5 million.

According to an FOI release by ONS, there were a total of 1228 deaths of social care workers (aged 20 to 64 years) which involved COVID19 between 9 March 2020 and 28 February 2022. In the same period, there were 839 such deaths of healthcare workers.

It would be valuable to understand the reasons for the difference in rate of claims between NHS and social care workers, and whether the difference purely reflects the rate of work-related COVID deaths or also knowledge of and access to the compensation scheme.

The fact that the government has broadly accepted liability for the deaths must surely assist health and social care workers seeking support and redress for work-related long COVID injuries.

As does a recent coroner’s ruling early this month that the COVID deaths of two nurses in Wales constituted deaths from industrial disease.

Layla Moran MP and Chair of the coronavirus APPG is calling for frontline workers affected by long COVID, like NHS staff, to be immediately compensated.

There is a BBC Panorama broadcast tonight on how NHS workers have been affected by long COVID, and how many of them will now drop to half pay and are fearful of losing their jobs due to protracted illness and severe disability:

Forgotten Heroes of the Covid Front Line, 8 pm

UPDATE 31 JANUARY 2023

I have written to the Secretary of State for Health and Social Care to ask if the government has done everything it can to make eligible families aware of the life assurance scheme, and to consider extending the window for claims if there is any possibility of under-claiming. The letter has been copied to the Welsh minister for Health and Social Care, the UK COVID public inquiry and the general secretaries of some of the main unions.

Letter to Steve Barclay SoS 31 January 2023

By Dr Minh Alexander retired Consultant Psychiatrist

25 January 2023

Dear All,

On Monday 23 January I attended a “town hall” style meeting organised by Mike Bewick, the former GP and former NHS deputy Chief Medical Officer of NHS England, who has been appointed by Birmingham and Solihull Integrated Care Board to lead a review into UHB. His appointment followed a series of articles by BBC Newsnight about alleged serious dysfunction at the trust.

Affected individuals attended the meeting, including past and current UHB staff. The meeting was co-chaired by Mike Bewick and Preet Gill the Labour MP for Birmingham Edgbaston.

I attended as someone who has worked with fellow whistleblowers, including UHB staff who do not wish to be identified.

I was horrified by what I witnessed, both in terms of what affected individuals shared and how the meeting was conducted.

Sensitive case details were openly discussed in a very large meeting where many participants did not know each other.

There was a request from Chairs that the meeting contents should be treated confidentially, but there were no means of enforcing this. Once information is shared, it can go anywhere, and often does.

This was an unsafe process with respect to protecting whistleblowers and their confidentiality.

Moreover, Mike Bewick signalled his intention to hold more meetings in group format. He will also hold individual meetings.

Protecting whistleblowers’ identity and the confidentiality of their disclosures is taken very seriously in many jurisdictions because a failure to do so can have devastating longterm effects for the whistleblower and their family.

Under the whistleblowing laws of some countries (Australia, Ireland, some EU countries) it is a criminal offence to breach whistleblower confidentiality, and attempts to unmask a whistleblower’s identity are prohibited.

Whistleblowing can never be guaranteed to be risk free. However, the risk increases with internal procedures where the whistleblower can be identified, potentially allowing reprisal by management.

I consider the ICB’s reviews of UHB to be a de facto internal procedure as they are not sufficiently independent. I anticipate that information will be shared amongst the NHS bodies, one way or another. 

I am aware of several occasions when the CQC has broken whistleblower confidentiality and one occasion when the CQC (unsuccessfully) solicited information for the purpose of discrediting a whistleblower during legal proceedings. I am also aware that NHSE has let down whistleblowers, both its own and those in provider organisations.

The way the meeting on 23 January was conducted confirmed my concerns that confidentiality will not be adequately protected.

From my overview of NHS whistleblowing cases across a range of organisations, both providers and oversight bodies, and the sometimes negligent, complicit or even abusive behaviour of regulators, I do not believe that any NHS controlled review of UHB can be truly independent or rigorous.

I also believe that contributing directly to such a review will place UHB staff at greater risk of reprisal.

Instead, I would advise making your disclosures to the media on an anonymous basis or with agreement that your confidentiality is protected. Alternatively, make a similar disclosure to a trusted local union branch with a track record of raising concerns. Not all local unions branches necessarily help whistleblowers, so research in advance. The advantage of raising concerns through a union is that individuals are less likely to be targeted. Collectively raised concerns which demonstrate patterns are especially powerful. The UNISON UHB dossier that was sent to CQC, which strongly corroborated existing concerns that UHB was intimidating doctors who raised concerns, is an excellent example.

Not going through an internal route of whistleblowing has potential legal implications if you wish to make a claim to the Employment Tribunal in future, so take advice. However, anonymous or otherwise untraceable whistleblowing means that you are unlikely to suffer victimisation, and you will not need to make a claim at all to the Employment Tribunal, saving you and your loved ones years of pain. Lives can be ruined by a bad whistleblowing experience.

Unless you can afford to be identified – perhaps if you are near retirement etc…I would not risk reprisals.

If you have already spoken up on an identifiable basis, you can make yourself less of a target if you wish, by not pressing your concerns further with UHB and the regulators. If your concerns have not been addressed, you can keep the media informed of this, with agreement that you will not be identified, including indirectly through any potential details reported.

Some may ask: “What can the media do?”

Whistleblowing to the media is not an end to itself, but it can be a way for UHB staff to communicate with power without exposing themselves to reprisal.

It can also be a means of negotiating for a better, properly constituted inquiry into what has gone wrong at UHB.

The Mid Staffs disaster was initially investigated with a non-statutory inquiry. Sustained campaigning led to a statutory public inquiry.

Similarly, hundreds of deaths at Essex Partnership mental health trust recently led only to a non-statutory inquiry. After a boycott by bereaved families and staff, the government is now being asked to rethink this.

Importantly, a statutory inquiry will be more likely to deliver accountability for the issues at UHB. NHS regulators have a notorious history of protecting and recycling failing NHS managers. At present NHS England (which has oversight of the ICB’s reviews of UHB) and the Secretary of State are in the process of watering down the Kark Review recommendations on protecting NHS staff and patients from poor managers. Any review of UHB controlled  by NHS England will not deliver true accountability for the failures.

Also, be aware that UHB is especially sensitive as it represents a failure to learn from Mid Staffs. There has already been one re-run of Mid Staffs at Liverpool Community Health NHS Trust, where a rush to Foundation status under Jeremy Hunt’s watch led to a disaster. This resulted in an investigation report by Bill Kirkup, which in turn led to the the Kark recommendations for tighter scrutiny of NHS managers. And yet we now have a further serious failure of management culture, at UHB, after NHS England and the government failed to learn and act.

There is every reason for the establishment to minimise what has happened at UHB.

If you want a better, more powerful inquiry which will handle evidence much more safely and formally, and which can protect vital witnesses including gagged former UHB staff, compel disclosure from senior witnesses, and has a greater chance of delivering accountability, ask for this through the media and the unions.

You are not obliged to cooperate with or to accept the ICB’s proposed reviews.

I attach below a letter from three senior medics and ex UHB employees:

Manos Nikolousis, Chairman Medical School EUC, Associate Professor Haematology

Professor John Watkinson, Consultant ENT Surgeon

Tristan Reuser, Consultant Opthalmic Surgeon

who have written to local MP Preet Gill and Healthwatch Chair Richard Burden, to set out their concerns about the independence of the reviews commissioned by the ICB.

Please do protect yourselves and your families in these difficult times.

Experienced whistleblowers watch the unfolding events at UHB and send all our good wishes, and also our hopes that you can avoid the pitfalls.

All my very best.

Minh

Dr Minh Alexander

NHS whistleblower and retired consultant psychiatrist

Cc

BBC Newsnight 

Unite the union

UNISON

HCSA

RCN national and local offices

Royal College of Midwives

BMA

GMB

Chartered Society of Physiotherapy

Federation of Clinical Scientists

British Association of Occupational Therapists

Society of Radiographers

Yve Buckland Interim Chair UHB

Patrick Vernon Interim Chair Birmingham and Solihull ICB

Mike Bewick

Preet Gill MP Birmingham Edgbaston

Richard Burden Chair Healthwatch

Steve Barclay Secretary of State

Parliamentary Health and Social Care Committee

Tahir Ali MP Birmingham Hall Green

Liam Byrne MP Birmingham Hodge Hill

Khalid Mahmood MP Birmingham Perry Barr

Steve McCabe MP Birmingham Selly Oak

Jess Phillips MP Birmingham Yardley

Gary Sambrook MP Birmingham Northfield

Shabana Mahmood MP Birmingham Ladywood

LETTER BY MANOS NIKOLOUSIS, JOHN WATKINSON AND TRISTAN REUSER ABOUT THE BEWICK REVIEW

16-1-2023

To

The Rt Hon Preet Kaur Gill MP

Mr R Burden, Chair , Healthwatch Birmingham

Thank you both for your continued involvement in this matter. We are contacting you again following our discussions with you last week as well as fresh revelations by the BBC on Friday 13th January about the management and culture at UHB, damaging patient safety and staff morale. These revelations were of such a serious nature that soon demands were made for an independent inquiry, which only grew stronger once the scale of the problems became clear and more facts surfaced such as a Unison report about UHB, which made a comparison with the Mid Staffs scandal.

The ICB reacted to the initial allegations by immediately commissioning three reviews, which In our view are not fit for purpose. In this letter we will focus particularly on the first review, led by Mike Bewick.

Summary:

–We have grave concerns about the ICB’s reviews into UHB, which were extraordinarily commissioned in haste without involving those most seriously harmed by toxic trust management actions.

-We are concerned that a review by an NHS insider, overseen by NHS bodies with conflicts of interest, is woefully inadequate for the task and will seriously fail patients and staff.

-We believe that the haste and direction of the ICB’s reviews are aimed at controlling the narrative, and not a genuine resolution. The current Terms of Reference are unacceptable to us.

-The Secretary of State is reported to be reassured that NHS England is in overall control, but NHS England’s West Midlands region has a history of serious failures, including Mid Staffs, maternity failings at Shrewsbury and Telford, unsafe care at Worcestershire Acute and the Ian Paterson breast surgery scandal at Heartlands.

-UHB is a story of closed cultures and systemic failures, including by the regulators. The CQC in particular had a chance to stop the toxicity years ago and failed to disclose important data, such as a damning dossier sent to it by UNISON.

-The detail of the BSol ICB’s arrangements for a review betray a fundamental lack of understanding of the problem. Moreover, UHB’s public response to the scandal reveals an organisation still in denial. The current plans will not surmount these difficulties: only a forensic, external and independent investigation will enjoy the confidence of UHB’s victims and the public at large.

Our objections against the Bewick review include:

1.     The involvement of Birmingham and Solihull Integrated Care Board (ICB)

1.1  The reviews are commissioned by the ICB board, which has strong links with UHB. There is a clear conflict of interest here:

-As commissioner of healthcare for the local population, BSol CCG, the recent forerunner of the inchoate BSol ICB, neglected to treat the performance failings of its biggest acute provider (UHB) with anything like the attention they required.

-The former CEO of BSol CCG, Paul Jennings, is now a non-executive director at UHB.

-Two BSol ICB Board members are former senior employees of UHB.

1.2  David Rosser, the previous CEO of UHB, was offered a new position as regional strategic director for Digital Health and Care at a time that UHB ranked 119 out of 120 in the table of English hospital trusts, its cancer waiting times were among the worst in the country, and UHB had the country’s longest waits for cardiac surgery, resulting in devastating impact on patient care. Additionally, while David Rosser was at the helm, the trust’s own Freedom To Speak Up Guardian referred to a climate of fear and bullying in his report. As you rightly stated: “There has been a clear failure of leadership, a failure of governance and a failure of regulation.” The ICB declared in its notes of its latest board meeting dated 9 January 2023 that the ‘contribution David made….leading the system through an unprecedented period was enormous’.

1.3  David Rosser’s new role within the region will mandate a continued close working relationship with BSol ICB and he remains in a position to influence the review. We understand that the ICB was involved in his recent appointment and that after starting his new role, David Rosser was still invited to attend the above meeting of the ICB. The lack of transparency and detail about David Rosser’s new role, his appointment, the funding of his post and links to the ICB undermines accountability and public confidence in this review.

1.4  As the ICB review is not a public inquiry with statutory powers, its chair does not have the power to ungag (ex) employees who have signed non-disclosure agreements. As it is known that UHB has used these clauses to silence (ex) staff, their voices won’t be heard in this review.

1.5  Preet Gill’s letter to Steve Barclay MP also argues convincingly why an independent inquiry is needed instead of an ICB led review.

2.     The appointment of Mike Bewick

2.1  Mike Bewick, who used to work for NHSE as Deputy Medical Director, is very much part of the medical and NHS senior establishment. Despite the fact that various regulators and medical institutions, such as the CQC and NHSE, were or should have been aware of the problems at UHB, they took no or insufficient action. The fact that the CQC did not disclose a UNISON report which corroborated our concerns only highlights the possible complicity of the regulators, a recurring theme in other NHS scandals. For these reasons, Mike Bewick is unsuitable to lead any review of UHB.

2.2  Even if Mike Bewick does not have direct links with UHB/ Dr Rosser, his indirect connections are reason for concern in our view :

-Mike Bewick was Bruce Keogh’s deputy at NHS England. Bruce Keogh used to work at UHB (1996-2004).

-Bruce Keogh and David Rosser were colleagues at UHB and they co-authored an article together on Weekend Mortality.

-Mike Bewick and Dame Julie Moore, previous CEO of UHB, are current members of the Centre for Progressive Policy Advisory group.

2.3  As a former Deputy NHS MD (to Professor Sir Bruce Keogh), Mike Bewick is poorly placed to undertake an unprejudiced review: there is a risk of bias, if only unconscious, resulting from not only his duties as an NHSE employee but his discussions with Bruce Keogh as an ex-UHB employee.

2.4  Moreover, we understand that Mike Bewick has reportedly made comments which suggest he had pre-judged the outcome of the reviews already, and seems to be thinking about splitting UHB up. This would be a deflective manoeuvre. It is the toxicity of the management culture that is the issue, not the size of the trust. Other trusts of a similar size have not had the same problems. If it is true that there are signs of a pre-determined outcome, this again suggests that Mike Bewick is not suitable to lead this review.

2.5  Had we been consulted, we would have made clear that the appointment of a senior NHS insider was completely unacceptable because of inherent conflicts of interest. An independent inquiry, led by a truly impartial outsider such as a judge, would be far more suitable to deal with the scope and nature of the concerns about UHB.

3. The current Terms of Reference are unacceptable to us

3.1 To the best of our knowledge none of the victims of UHB’s behaviour have been invited to participate in the drawing up of the ToR. This is not only disrespectful but also a missed opportunity to ensure effective ToR through discussions with those who have first hand experience of the culture at UHB and the impact on staff.

3.2 According to the first term of reference the findings of the report drafted by Mr Nikolousis into concerns over the care of patients with haematological conditions will be reviewed with UHB haematologists to determine whether further expert review should be recommended. BSol ICB demonstrates no understanding of the problem of a dysfunctional department. We understand that the report should be shared with the members of the department but they should not be granted the power to veto the commissioning of any further external investigation.

3.3 Additionally the second term of reference refers to ‘the appropriateness of the governance processes which apply when determining whether or not to make a referral to a professional regulator such as the GMC, including an overview of the TR case’. Again, BSol ICB demonstrates little understanding of the issues, of which the decision to refer to a professional regulator is just one small strand. This is too loosely written and we believe this is a consequence of a lack of ICB consultation with those of us who were subject to referrals.

3.4 Emphasis must be placed on a detailed examination of each element of such cases including, inter alia, the timing of the referral; the accuracy of the content of both the referral and subsequent communications. The ICB terms of reference are too weak and non-specific to explore biased and or malicious management behaviour.

3.5 The ToR also miss out a critical issue: a flawed Fit and Proper Person process by the trust on David Rosser. The trust has admitted to at least one FPPR review in response to multiple referrals to the CQC under Regulation 5. The trust appointed a subordinate to investigate David Rosser, someone who was not even a board member, and she was assisted by a lawyer from Bevan Brittan, a firm retained by the trust. Additionally, the MHPS designated board member in the Tristan Reuser case, was also involved in the FPPR investigation. This was therefore the opposite of an independent exercise. David Rosser was deemed to be a Fit and Proper Person despite his behaviour relating to Tristan Reuser’s MHPS investigation, dismissal and employment case, including misleading the regulator for which Dr Rosser received a GMC warning. Had the ICB consulted with us, we would flagged the FPPR matter as another area for investigation.

3.6 The CQC had a chance to stop the bullying and toxicity at UHB years ago, when the FPPR referrals were first made about UHB but failed to do so. It follows that a localised review of UHB which does not even look at FPPR issues, let alone at any regulatory actions, will hardly scratch the surface of the truth.

3.7 As flagged at the meeting with Richard on 13 January, there are concerns about financial transparency at UHB, which stopped producing routine financial transparency data after 2017. The trust persisted with this despite run ins with the ICO after complaints by the public who filed FOI requests and questions have to be asked about this financial secrecy. We would have raised this with the ICB had they troubled themselves to consult us.

3.8 The ICB of course is conflicted in this matter and in general, as it too had a responsibility in its predecessor form for oversight of UHB’s performance.

3.9 Finally, the Terms of Reference extend well beyond the core issues to embrace other matters that are already well documented. This represents a wasteful distraction from the allegations that the review should focus on, if not wilful obfuscation.

4.     Methodology

4.1 There is no reassurance that all victims will be offered a confidential interview.

5.     Conclusion

5.1  In our view, Birmingham and Solihull Integrated Care Board took precipitate action without involvement of all stakeholders in order to fully control the process and therefore the outcome. This is unacceptable.

5.2  The impact of UHB’s actions on victims’ lives and the effect on patient safety cannot be underestimated. Careers have been destroyed and families damaged by the emotional, health and financial and health problems that ensued. We have fought for many years to uncover and then expose the truth. Having been largely ignored by the NHS and its regulators we have finally achieved this only with the help of the media. Now that our concerns have been recognised, it is incumbent upon us to ensure that they are appropriately investigated: independently, and without fear or favour. We owe this to ourselves, our families and UHB’s staff. Most of all we owe it to the patients at UHB whose safety has already been compromised and those at future risk.

5.3  It is surely clear to everyone, including BSol ICB, that the very nature of a central allegation, that there exists at UHB a “mafia-like culture”, demands a truly independent investigation. You have, quite rightly, called for this yourself. The current position is thus unacceptable to us. We would urge you both to use your influence in order to generate an investigation that will enjoy the confidence of all.

We ask you politely to forward our letter to all those who have approached you, so they are able take note of our concerns.

Yours sincerely,

Manos Nikolousis, Chairman Medical School EUC, Associate professor of hematology


Prof John Watkinson, consultant ENT surgeon

Tristan Reuser , consultant ophthalmic surgeon

CC

Parliamentary Health select committee:

Steve Brine MP


Paul Blomfeld MP

Martyn Day MP

Mrs Paulette Hamilton MP

Rachael Maskell MP

Taiwo Owatemi MP

Lucy Allan MP

Paul Bristow MP

Chris Green MP

Dr Caroline Johnson James Morris MP

Steve Barclay, Secretary of State for Health and Social Care, MP

RELATED ITEMS

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

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

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

Fundamental failure of the NHS Freedom To Speak Up Project: Dr Rajai Al-Jehani unfairly sacked by Royal Free NHS Foundation Trust for whistleblowing on breaches of Human Tissue law, with suppression of linked investigations by University College London

The National Guardian’s Office finally apologises for a breach of whistleblower confidentiality but fails to demonstrate sufficient learning

By Dr Minh Alexander retired consultant psychiatrist 29 December 2022

There is secrecy about the numbers of NHS staff who have been affected by long COVID.

NHS England and NHS Digital publish overlapping datasets on staff productivity relating to COVID, but this is only framed as faceless statistics on days lost to COVID absence amongst NHS staff.

The failure to count the numbers of NHS staff affected by COVID and long COVID is dehumanising.

It may relate to official reluctance to embarrass the government about PPE and other infection control failures and/or avoidance of legal liability for COVID injuries suffered by NHS staff.

NHS trusts have disclosed by FOI that NHS England does not require them to report the numbers of trust staff affected by long COVID.

However, it appears from other FOI information that NHS England has been asking providers who operate long COVID assessment services (termed post COVID assessment services) to report the numbers of NHS staff who are referred to these specialist services:

“The trust are required to include the number of NHS Staff assessed, as part of a regular nationally mandated Long Covid Assessment Sitrep to NHS England.”

Post COVID assessment services commissioned by NHS England Post COVID assessment services were announced by NHS England in October 2020. NHS England has published their activity data from July 2021 onwards. NHS England guidance to the providers of these services sets criteria as follows: “Ongoing symptomatic COVID-19: signs and symptoms of COVID-19 lasting from four to 12 weeks.  Post COVID-19 syndrome: signs and symptoms that develop during or after an infection consistent with COVID19, continue for more than 12 weeks and are not explained by an alternative diagnosis. It usually presents with clusters of symptoms, often overlapping, which can fluctuate and change over time and can affect any system in the body. Post COVID19 syndrome may be considered before 12 weeks while the possibility of an alternative underlying disease is also being assessed.” Most of the providers of post COVID assessment services are NHS trusts, but some are private organisations. The providers are listed here. I have asked for the operational policies governing these assessment services.

Despite the fact that NHS England has been collecting data on the numbers of NHS staff referred to long COVID services, it does NOT publish these numbers.

NHS England’s published data on post COVID assessment services activity includes only the characteristics of sex, ethnicity, age and deprivation group.

There is nothing published about occupation or the sectors in which referred patients work.

This is troubling as all the characteristics of patients referred to post COVID assessment services are clearly of public health interest.

NHS England and the government acknowledged at the outset of establishing services for long COVID patients that research on long COVID was essential:

“Sir Simon said new network will be a core element of a five-part package of measures to boost NHS support for long covid patients…. (4) National Institute for Health Research (NIHR) funded research on long Covid which is working with 10,000 patients to better understand the condition and refine appropriate treatment. (5) The NHS’s support will be overseen by a new NHS England Long Covid taskforce which will include long covid patients, medical specialists and researchers.”

“Health and Social Care Secretary Matt Hancock said: “Long covid can have a huge impact on people affected….. Combined with further research and the new NHS England Long Covid taskforce, these additional services will ensure people get the care they need, improve lives and aid in the fight against this global pandemic.” 

It is also possible that in addition to suppressing the numbers of NHS staff who have contracted long COVID, NHS England is withholding other sensitive data about people suffering with long COVID.

NHS England’s data requirements for providers of post COVID services are not public.

This published NHS England commissioning document refers to these data requirements but does not disclose what they are. The document instead refers providers to an NHS website for details of mandated data collection, that is not open to the public.

I have prepared a summary of the data that NHS England has so far shared with the public about post COVID assessment service activity, spanning the period 5 July 2021 to 23 October 2022:

Some of the referred patient characteristics information is incomplete, but based on what is available, females and BME people are over-represented compared to the general population.

The female to male ratio was 1.8 and the BME to white ratio was 0.24.

Referred females are also over-represented compared to ONS’s data from its coronavirus infection survey, which is based on scaling up community sampling. ONS data published on 1 December 2022 estimated that 1,101,000 females had long COVID versus 802,000 males (a ratio of 1.37 women to men).

The over-representation of females and BME people amongst those referred to the post COVID assessment services may reflect the fact that a significant number of NHS and ex NHS staff are amongst those referred.

The NHS workforce comprises 25% ethnic minority staff and 76.7% women some of whom are distributed as follows:

• 88.6% of the 342,104 nurses and health visitors are women
• 42.5% of 18,509 ambulance staff
• 77.6% of 172,267 scientific, therapeutic and technical staff
• 62% of 22,552 managers

Additionally, 43% of doctors are women and the majority of medical trainees are women.

The RCN also reported in 2019 that 81% of all UK nursing auxiliaries and assistants are female.

I have asked the CEO of NHS England if NHS England will from hereon publish the numbers of NHS staff who are unwell enough to be referred to long COVID services, and copied this to the UK COVID public inquiry.

Meanwhile, injured NHS staff and other long COVID sufferers may be waiting months for assessment. The most recent NHS England data (for the period 23 September to 23 October 2022) showed that 24% of people referred waited for more than 15 weeks to be seen, with London struggling the most at 34%.

LETTER TO AMANDA PRITCHARD 28 DECEMBER 2022:

“BY EMAIL 

Amanda Pritchard

CEO NHS England

28 December 2022

Dear Amanda,

Publication of data on number of NHS staff referred to post COVID assessment services

I am concerned about the lack of published data on the number of NHS staff who have been affected by long COVID.

So far, this information has only been available through FOI requests.

As far as I can see, the data collected from post COVID assessment services that is published by NHS England includes no data on the occupation of patients referred or the sector in which they worked:

https://www.england.nhs.uk/statistics/statistical-work-areas/covid-19-post-covid-assessment-service/

The parameters from these services, that is shared by NHS England with the public, are limited to:

Total numbers of referrals

Numbers of referrals that are accepted

Numbers of assessments and follow ups

Ethnicity

Sex

Age group

Deprivation category

Waiting times

However, I now understand that NHS England in fact requires the post COVID assessment services to report to NHSE the number of NHS staff who have been referred.

One of the participating NHS trusts has informed me:

“The trust are required to include the number of NHS Staff assessed, as part of a regular nationally mandated Long Covid Assessment Sitrep to NHS England.”

May I ask if NHS England could now kindly publish these numbers as part of its activity data on the post COVID assessment services?

This information is of great public interest not only with regard to the risks and harms suffered by NHS staff during the pandemic, but it is also important information as regards the spread of nosocomial infections.

I copy this to the UK COVID public inquiry.

Many thanks,

Minh

Cc Baroness Heather Hallett & the UK COVID public inquiry

Dr Minh Alexander”

RELATED ITEMS

An NHS England director is also CEO of an NHS mental health trust, which has failed to collate data on long COVID amongst its staff:

NHS England Mental Health Tsar’s trust does not collect data on long COVID affecting its staff

I asked if the trust would start collecting this data and whether NHS England would start requiring this data from NHS trusts.

The reply: the first will be considered, the latter should be referred to NHS England.

EMAIL RECEIVED 20 DECEMBER 2022

“Dear Dr Alexander,

We have asked Pam Duke, our Occupational Health Lead to respond to your first point.

The second point will need to be directed to NHSE.  If you would like to follow this up with them, here is the link to their web-site and the contact details:

https://www.england.nhs.uk/contact-us/

Telephone: 0300 311 22 33

Email: england.contactus@nhs.net

Thank you and kind regards

Sam Leathers

Sam Leathers

PA to Claire Murdoch, CEO &

Professor Dorothy Griffiths, Chair

Central & North West London NHS Foundation Trust”

It seems that counting long COVID in NHS staff is an unpopular and possibly career-hampering topic amongst the NHS brass.

NHS leavers during the pandemic and number of staff infected with COVID

NHS England Mental Health Tsar’s trust does not collect data on long COVID affecting its staff

The Department of Health holds no data on long COVID in NHS staff and has no intention of collating this data

Transparency about NHS staff with long COVID injuries and NHS staff personal injury claims for long COVID

NHS England does not want to know about long COVID in NHS staff

Dr Minh Alexander retired consultant psychiatrist 20 December 2022

The NHS currently has a serious workforce shortage.

There are questions about the fairness of many NHS dismissals.

Dismissal of staff is a relatively rare event and usually represents some degree of management failure, whether in selection and recruitment, training, supervision, remediation or conflict management.

Dismissal is wasteful and also a traumatic organisational event.

High rates of dismissals raise questions about immature and harsh management culture.

NHS dismissal stats encompass dismissals under four categories: incapability, conduct, some other substantial reason and statutory reasons.

Redundancies are counted separately.

Across the whole NHS, about four to five thousand staff are dismissed every year, under the four categories above.

Almost twenty five thousand NHS staff have been dismissed in the past five years, with a decrease since the start of the pandemic.

YEAR	Number of staff dismissed across all NHS organisations
2017/18	5,585
2018/19	5,255
2019/20	4,905
2020/21	3,735
2021/22	4,025
2022/23 Q1	1,025
TOTAL	24530

FOI data from NHS digital shows that NHS trusts accounted for at least 24,010 of these dismissals (there is missing data for one NHS trust).

This is disclosed NHS Digital data on staff reasons for leaving by all NHS organisation, 1 April 2017 to 31 March 2022.

This is summary data on NHS trust dismissals in the same period, extracted from the NHS Digital data.

The data shows striking variation between NHS trusts in the rates of dismissals.

In the period 1 April 2017 to 31 March 2022, the range seen in NHS trusts was as follows.

Lowest

Chesterfield Royal Hospital NHS Foundation trust dismissed only fifteen staff.

At a current total workforce of 3448, this gives a rate of 4.3 staff dismissed per 1,000 staff during this period.

Highest

South East Coast Ambulance Service NHS Foundation Trust dismissed a staggering 440 staff.

At a current total workforce of 3833, this gives a rate of 114.7 staff dismissed per 1,000 staff during this period.

Ambulance trusts

Based on the NHS Digital data, NHS ambulance trusts are outliers and have the highest rate of dismissals.

Ambulance trusts account for 4% (48,831 of 1,208,079) of the NHS trust workforce, but they accounted for 9.3% (2,230 of  24,010) NHS trust staff dismissals in the five year period.

The numbers of dismissals for ambulance trusts across the period were as follows:

The rates of dismissal per 1,000 staff in the period, based on the most recent workforce headcounts, were as follows:

NHS Ambulance Trust	Total number of dismissals during period 1 April 2017 to 31 March 2022	Total workforce (NHS Digital August 2022)	Number of staff dismissed per 1,000 staff in the period 1 April 2017 to 31 March 2022
South East Coast Ambulance Service NHS Foundation Trust	440	3,833	114.7
South Central Ambulance Service NHS Foundation Trust	270	4,078	66.2
South Western Ambulance Service NHS Foundation Trust	220	4,443	49.5
North East Ambulance Service NHS Foundation Trust	130	2,765	47
East Midlands Ambulance Service NHS Trust	150	3,679	40.8
Yorkshire Ambulance Service NHS Trust	215	5,313	40.4
West Midlands Ambulance Service University NHS Foundation Trust	250	6,517	38.3
East of England Ambulance Service NHS Trust	185	5,284	35
North West Ambulance Service NHS Trust	185	6,345	29.1
London Ambulance Service NHS Trust	185	6,574	28.1

The average number of dismissals per 1,000 staff in the period, for ambulance trusts was 47.4.

The average number of dismissals per 1,000 staff in the period, for all NHS trusts was 19.9.

For additional context, this is a list of the “top” forty NHS trusts which dismissed disproportionately more staff.

All ten of the ambulance trusts feature in this list.

It is clear from many angles that NHS ambulance trusts have been neglected for many years and are highly stressed organisations.

They are also vital organisations, upon which we all depend.

Moreover ambulance trust performance is a barometer of other dysfunction in our health and social care system, as the current collapse of emergency care has shown.

There are two reviews underway on NHS ambulance trusts at present, neither of which command much confidence.

1. A reluctant review by the NHS National Guardian which was left on the shelf since summer 2020 and only started after an enquiry on progress earlier this year.

• NHS England’s conflicted review of North East Ambulance Service NHS Foundation Trust, led by controversial NHS insider Marianne Griffiths, well known to Sussex NHS whistleblowers. Highly questionable terms of reference were leaked to the Health Service Journal,  after which NHSE claimed they were not the final version.

The NEAS deaths and coronial scandal is an important proxy for the longstanding mismanagement and neglect of our ambulance services, and for capacity issues across the health and care system

It has national importance and deserves better than an NHS England whitewash.

A judge led inquiry with the power to ungag silenced whistleblowers, and the power to require participation by relevant non-NHS bodies, is needed.

NHS England’s due diligence on Marianne Griffiths   Concerns continue about whistleblowing governance at Griffith’s former NHS trust, University Hospitals Sussex NHS Foundation Trust.   I asked NHS England CEO Amanda Pritchard if NHSE had undertaken due diligence and properly reviewed Griffith’s leadership at Sussex:   “BY EMAIL Amanda Pritchard CEO NHS England 7 November 2022 Dear Amanda, Marianne Griffiths’ role in investigating North East Ambulance Service May I ask if NHS England has undertaken full due diligence into Marianne Griffiths’ past record on whistleblowing governance before appointing her to lead the NEAS investigation? Has it satisfied itself that she is a Fit and Proper Person to adjudicate on matters of whistleblowing governance, and that there are no outstanding serious matters of alleged whistleblower suppression, failure to protect whistleblowers or harm to whistleblowers, that relate to her role as CEO of University Hospitals Sussex NHS Foundation Trust and its predecessor organisations? For example, has NHSE satisfied itself that there are no formal, current internal trust processes such as grievances by whistleblowers or current litigation against the trust for whistleblower detriment, which relate to her tenure as trust CEO? I ask as this seems a critical issue given that NEAS is accused of harming and trying to silence whistleblowers, and is proven to have attempted to gag them with unlawful NDAs. I should mention that a question that I first put to NHS England on 26 June 2022, and have since repeated, about whether it had looked into allegations of poor whistleblowing governance at NEAS, remains unanswered. This is very troubling given that NHS England is in control of the current NEAS investigation. With best wishes, Minh Dr Minh Alexander Cc Tom Grimes NHS England Head of Whistleblowing”   The response from NHS England, via its head of whistleblowing, on 8 December 2022 was as follows:   “Hi Minh Thanks for your email and sorry for the delay in responding to this. Dame Marianne is a retired NHS Chief Executive. Having never worked in the region, but with extensive knowledge of the NHS, Dame Marianne has the relevant experience to Chair this independent investigation. Regarding the question of 26 June that you refer to, please can you let me know the details and I can see what happened to this. Best wishes Tom”   The correspondence continues.

Related items:

A Study in Delay: The National Guardian & Brighton and Sussex University Hospitals NHS Trust

A Study in Delay II : The National Guardian, maternity safety & University Hospitals Sussex NHS Foundation Trust

North East Ambulance Service breached its obligations under FOIA, wrongly withheld data on staff suicides and appears to be under-reporting bullying incidents and serious incidents

Henrietta Hughes former National Freedom To Speak Up Guardian, South Central Ambulance Service, out of touch “extreme positivity” and failures to act on staff concerns

Staff suicides at West Midlands Ambulance Service NHS Foundation Trust

Professional regulators fail to protect frontline health and care staff from rogue employers: The HCPC and NHS ambulance trusts

The National Guardian’s Office does not put a blue light on for ambulance staff

The Dismissal of over Ten Thousand NHS Staff via ‘Some Other Substantial Reason’Waste Industry: The NHS disciplinary process & Dr John Bestley

Dr Minh Alexander retired consultant psychiatrist 17 December 2022

NHS WORKFORCE SHORTAGE

There is currently a serious NHS workforce shortage.

The most recent NHS Digital statistics show an overall vacancy rate of 9.7% and a total of 133,446 vacancies.

The NHS is short of 47,496 nurses and 9,053 doctors.

London has the highest vacancy rate, of 12.9%. Mental health services in London have a vacancy rate of 16.5%.

      

NHS LEAVERS DATA

There is limited transparency on how COVID has affected NHS staff.

I asked NHS Digital for data on all reasons for staff leaving the NHS, as some of these parameters may reflect poorer staff health.

This is data from NHS Digital for all reasons for leaving, across different NHS staff groups, which spans three years before the pandemic, up to Quarter 1 of 2022/23:

NHS Digital FOI response 15 December 2022

The data is drawn from the NHS electronic staff record.

The health-related elements of this NHS leavers data are summarised below.

This leavers data raises questions about the effects of the pandemic on the NHS workforce, that can only be fully answered with more detailed, direct enquiry.

DEATHS IN SERVICE

Unsurprisingly, according to the NHS Digital data, reported deaths in service increased during the pandemic.

Period	Reason for leaving	All staff groups
2017-18	Death in Service	920
2018-19	Death in Service	900
2019-20	Death in Service	985
2020-21	Death in Service	1,425
2021-22	Death in Service	1,225
2022-23 Q1	Death in Service	295

Alongside this, ONS 2020 data on COVID deaths by occupation listed 414 COVID deaths in health care workers between 9 March and 28 December 2020.

Disappointingly, a January 2022 ONS FOI response by ONS revealed that ONS holds no data for 2021 on COVID deaths by occupation:

“Unfortunately, we do not hold mortality analysis for 2021 which includes details of

occupation.”

In the first year of the pandemic, all NHS staff deaths in service broke down by staff group as follows:

NHS Staff Group	Number of deaths in service in 2020/21
HCHS Doctors	70
Nurses & health visitors	290
Midwives	15
Ambulance staff	20
Scientific, therapeutic & technical staff	105
Support to doctors, nurses & midwives	430
Support to ambulance staff	45
Support to ST&T staff	75
Central functions	145
Hotel, property & estates	200
Senior managers	10
Managers	20
Other staff or those with unknown classification	5

ONS data reported the following COVID deaths for some clinical staff groups, in the period March to December 2020:

Staff group	Deaths involving COVID-19
Medical practitioners	35
Psychologists	2
Pharmacists	6
Ophthalmic opticians	1
Dental practitioners	2
Medical radiographers	5
Podiatrists	1
Health professionals n.e.c.	4
Physiotherapists	1
Occupational therapists	2
Speech and language therapists	0
Therapy professionals n.e.c.	2
Nurses	157
Midwives	9

DISMISSAL UNDER CAPABILITY

These dismissals theoretically may include incapability due to ill health issues.

NHS incapability dismissals have dropped during the pandemic.

If incapability proceedings are in train regarding staff affected by COVID, they may not have concluded yet.

It is also possible that there were fewer dismissals under other types of incapability proceedings, due to the NHS workforce shortage and severe service pressures.

Period	Reason for leaving	All NHS staff groups
2017-18	Dismissal – Capability	2,740
2018-19	Dismissal – Capability	2,635
2019-20	Dismissal – Capability	2,470
2020-21	Dismissal – Capability	1,965
2021-22	Dismissal – Capability	2,075
2022-23 Q1	Dismissal – Capability	550

RETIREMENT – ILL HEALTH

There has been a slight increase in NHS ill health retirements.

Period	Reason for leaving	All staff groups
2017-18	Retirement – Ill Health	1,235
2018-19	Retirement – Ill Health	1,175
2019-20	Retirement – Ill Health	1,140
2020-21	Retirement – Ill Health	1,240
2021-22	Retirement – Ill Health	1,355
2022-23 Q1	Retirement – Ill Health	340

VOLUNTARY RESIGNATION – HEALTH

There has been a rise in NHS voluntary resignations on health grounds.

Period	Reason for leaving	All NHS staff groups
2017-18	Voluntary Resignation – Health	4,225
2018-19	Voluntary Resignation – Health	4,475
2019-20	Voluntary Resignation – Health	5,040
2020-21	Voluntary Resignation – Health	5,105
2021-22	Voluntary Resignation – Health	7,070
2022-23 Q1	Voluntary Resignation – Health	1,845

It is also possible that COVID related issues may have contributed to other staff departures via other routes.

For example, there has been an increase in voluntary early retirements, without actuarial reduction.

VOLUNTARY EARLY RETIREMENT

Period	Reason for leaving	All NHS staff groups
2017-18	Voluntary Early Retirement – no Actuarial Reduction	1,290
2018-19	Voluntary Early Retirement – no Actuarial Reduction	1,305
2019-20	Voluntary Early Retirement – no Actuarial Reduction	1,250
2020-21	Voluntary Early Retirement – no Actuarial Reduction	1,260
2021-22	Voluntary Early Retirement – no Actuarial Reduction	1,595
2022-23 Q1	Voluntary Early Retirement – no Actuarial Reduction	370

NUMBER OF NHS STAFF INFECTED WITH COVID

An unprecedented study of the NHS workforce took place in 2020, in which NHS workers had blood tests for antibodies to the COVID virus (SARS-CoV-2), an indication that they had been infected by the virus.

National cross-sectional survey of 1.14 million NHS staff SARS-CoV-2 serology tests: a comparison of NHS staff with regional community seroconversion rates

The study took place before the national vaccination programme commenced, so any antibodies found would relate to infections and not vaccination.

The study gathered data between May and August 2020.

It found that 16.3% (186,897 of 1.14 million) NHS staff who participated tested positive for antibodies against Sars-CoV-2.

London NHS staff were the worst affected, with 23.9% testing positive for antibodies.

In April 2022 ONS estimated that about 70% of people in England had been infected with COVID-19, based on regular community sampling throughout the pandemic. This proactive sampling detected asymptomatically infected people, as well as the symptomatic.

How many NHS workers have now been infected?

How many NHS workers have been infected more than once?

Published NHS COVID sickness data focusses on productivity and is framed in terms of days lost.

NHS Digital publishes data on NHS FTE days lost to COVID related absence and absence rates across the NHS.

NHS England publishes related data on acute NHS trusts.

However, the actual numbers of staff known to be infected are not clearly given.

And yet it should be possible from the NHS Electronic Staff Record to tell how many staff are known to have been affected.

An FOI request made by the Guardian to acute NHS trusts in Spring 2021,  which only a proportion of trusts answered, revealed that at least 77,735 NHS staff in England were known to have caught the virus by that point.

The Guardian reported:

“Out of those trusts who responded, Frimley health trust in Surrey had the largest number of staff who caught the virus – 4,464 – followed by Guy’s and St Thomas’ in London (3,654) and University Hospitals Birmingham (2,554).”

Frimley Health NHS Foundation Trust has a workforce of about 10,000 staff   

Guy’s and St Thomas’ has a workforce of about 23,000,

Wales Online similarly received FOI responses from five out of seven Welsh health boards which showed that by May 2021, 18.2% of staff were known to have been infected with COVID-19.

An up to date FOI response from Great Western Hospitals NHS Foundation trust (acute), shows that a total of 3178 staff are known to have been infected with COVID-19. The distribution across different groups is as follows:

Staff Group	Number
Add Professional Scientific and Technical	79
Additional Clinical Services	827
Administrative and Clerical	534
Allied Health Professionals	226
Estates and Ancillary	58
Healthcare Scientists	84
Medical and Dental	157
Nursing and Midwifery Registered	1213
Total	3178

Great Western Hospitals has a workforce of about 6,000 staff.

RIDDOR reports provide another glimpse into the risks faced by NHS staff.

Health and Safety Executive COVID RIDDOR data shows that 27.7% (12,330 of 44,458)of COVID RIDDOR reports received between April 2020 and March 2022 related to ‘Human Health Activities’.

Of 459 fatal COVID RIDDOR reports in this period, 170 (37%) related to Human Health Activities.

But there are currently variable mitigations in place and no mask mandate in hospitals.

What long term effect will repeated exposure to COVID-19 have on the health of the NHS workforce?

It would be reassuring to see a more person centred approach, with central collation of data on numbers of affected staff and sequelae, and not just faceless productivity stats.

RELATED ITEMS

NHS England Mental Health Tsar’s trust does not collect data on long COVID affecting its staff

The Department of Health holds no data on long COVID in NHS staff and has no intention of collating this data

Transparency about NHS staff with long COVID injuries and NHS staff personal injury claims for long COVID

NHS England does not want to know about long COVID in NHS staff

By Dr Minh Alexander retired consultant psychiatrist 13 December 2022

A frequent anxiety for claimants in Employment Tribunals, particularly the unrepresented, is the prospect of an unfavourable costs award.

It is hard for ordinary people to navigate the ET, when faced with the wiles and legal traps laid by employing public bodies, or other powerful employers, who can afford representation by counsel.

Ignorance of the law can make it hard to judge what is considered reasonable under the law.

Straying beyond the bounds of “legal” reasonableness can end in a costs award.

The media coverage of Employment Tribunal costs issues can be sensationalist, and cause alarm.

But it is worth remembering that costs awards are:

• Rare

• Made according to means.

“Ability to pay

84.In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.”

I recall seeing a symbolic award for £1 against a claimant who had no means.

In some cases, the Tribunal may order a claimant without present means to pay costs, if there is a prospect that they will have the means in the future. For example, an unemployed claimant who may return to employment.

Many of the judgments which award costs cite quite extreme behaviour, sometimes to the point of what the Employment Tribunal deems “scandalous”.

The ET rules of procedure say:

“When a costs order or a preparation time order may or shall be made

76.—

(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—

(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

(b) any claim or response had no reasonable prospect of success; [or

(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins].(a)

(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.

(3) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal shall order the respondent to pay the costs incurred as a result of the postponement or adjournment if—

(a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing; and

(b) the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment.

(4) A Tribunal may make a costs order of the kind described in rule 75(1)(b) where a party has paid a Tribunal fee in respect of a claim, employer’s contract claim or application and that claim, counterclaim or application is decided in whole, or in part, in favour of that party.

(5) A Tribunal may make a costs order of the kind described in rule 75(1)(c) on the application of a party or the witness in question, or on its own initiative, where a witness has attended or has been ordered to attend to give oral evidence at a hearing.”

Occasionally, employers will make a costs application as an intimidatory tactic.

If you conduct your case reasonably, the statistics suggest that it is unlikely that you will be made to pay part of the other side’s costs, but the law is always a gamble.

Equally, employers may be held responsible if they do not issue a costs warning, and claimants who behave unreasonably may escape an unfavourable costs award if they are not warned by the respondent (employer) of this possibility.

Helpfully, the Ministry of Justice publishes statistics on cost awards by Employment Tribunals.

I have summarised this data as follows:

Between 1 April 2007 and 31 March 2020,

1.  A total of 7563 costs awards were made from
2. A total of 1,845,769 ET claims,

representing only 0.4% of cases.

Respondents were more often awarded costs than claimants: 67.6% v 32.3%.

The average (mean) value of costs award between 1 April 2007 and 31 March 2020 increased from £2,095 to £5,664:

YEAR	MEDIAN COSTS AWARD	AVERAGE COSTS AWARD	MAXIMUM COSTS AWARD
2007/8	£1,000	£2,095	£17,775
2008/9	£1,152	£2,665	£28,394
2009/10	£1,000	£2,288	£13,942
2010/11	£1,273	£2,830	£83,000
2011/12	£5	£1,292	£36,466
2012/13	£1,842	£3,141	£54,740
2013/14	£1,000	£2,856	£58,022
2014/15	£1,000	£3,228	£235,776
2015/16	£1,000	£3,386	£102,967
2016/17	£925	£3,747	£146,404
2017/18	£2,409	£4,707	£20,000
2018/19	£2,400	£6,729	£329,386
2019/20	£2,500	£5,664	£103,486

The highest costs award in the period was an eye watering £329,386, made in 2018/19.

The MoJ data does not clarify whether this award was made to a claimant or a respondent.

In the box below, I outline an unusual and very high costs award against a claimant which was made in 2020.

Tan v Copthorne Hotels Limited and a record costs award   In September 2020, the ET made what was believed to be the highest costs award ever in favour of an employer, of £432,001.85.   The claimant, Mr Tan submitted an enormous amount of evidence on what he claimed was an unfair redundancy. The bundle ran to over 3,000 pages.   The Tribunal noted that the claimant took a “scatter gun” approach and it described aspects of his claim as a “fishing expedition” and “speculative”.   It did not agree that the redundancy was unfair.   Mr Tan admitted that he had made covert recordings of his colleagues.   The Tribunal considered the recordings to be a breach of trust and would have resulted in his dismissal in any case:   “We find that this showed duplicitous and underhand conduct on the part of the claimant who was collecting evidence for the purposes of proceedings.” “Had we not found the dismissal to be fair, we would have found this conduct to have completed eroded any trust and confidence between the parties and this would have led to his dismissal in any event, had the respondent known about it.” This is the substantive ET judgment of 9 November 2018.   This is the 2020 costs judgment.      A link to a critique of the case by DAC Beachcroft can be found here.

Between 1 April 2007 and 31 March 2020, only 460 of 7563 (6%) costs awards had a value of £10,000 or more:

This emphasises how displeased the Employment Tribunal was in Reuser v University Hospitals Birmingham, when the Tribunal ordered UHB to pay £20,000 costs to Mr Reuser, after the trust persistently withheld documents material to his case.

But it is best to avoid going to law at all. With our current, weak UK whistleblowing law, the Employment Tribunal is a bed of nails for whistleblowers. Even if you “win”, after a very stressful process, compensation rarely reflects true losses. Employers also sling mud at whistleblowers to argue contributory fault and reduce compensation, so the ET process re-traumatises whistleblowers. If you can find a better path than litigation, take it.

PETITION

Please click and add your signature to this petition to reform UK whistleblowing law – whistleblowers protect us all but weak UK law leaves them wholly exposed, lets abusers off the hook and it is a threat to public safety.

Replace weak UK whistleblowing law and protect whistleblowers and the public

RELATED ITEM

Cost orders: Employment Tribunal refuses costs application against a claimant because employer did not issue costs warning

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

Dr Minh Alexander retired consultant psychiatrist 12 December 2022

At present the spotlight is on failures of the Freedom To Speak Up model, as a result of BBC Newsnight’s investigation into poor culture and whistleblower reprisal University Hospitals Birmingham NHS Foundation Trust.

Dozens of UHB staff have come forward since the first broadcast and more continue to come forward with stories of bullying and suppression.

Interview evidence from proponents of the Freedom To Speak Up model and the FTSU Guardian at UHB have served only to highlight failure of the model:

Under the microscope: The Freedom To Speak Up model and University Hospitals Birmingham

What the UHB Freedom To Speak Up Guardian told the BBC

But the National Guardian’s office continues to serve its primary political function: to pump out propaganda for the DHSC.

In May 2022 I objected to a blog by Jayne Chidgey-Clark the latest National Guardian, in which she made a claim that NHS staff would be well treated by Freedom To Speak Up Guardians.

She wrote:

“Speaking up can take courage, however you are not alone. If you cannot speak up to your manager or HR or your patient safety team, you can talk to your Freedom to Speak Up Guardian. They will listen with empathy, so you need not feel lonely, and will help raise the matter in your organisation.” [my emphasis]

This claim was made without any substantiation.

I advised Chidgey-Clark that there was opposing evidence, and that some Freedom To Speak Up Guardians had harmed or not helped NHS staff who spoke up.

I asked her to withdraw her claims, or to provide the evidence upon which her claim was based, and to consider the likely life-changing effects upon any staff who might whistleblow on the basis of her flawed assurances.

Chidgey-Clark stonewalled and made no changes to her blog. The misleading blog remains on her website to this day.

Neither did she produce any substantiating evidence.

When I sent her additional evidence of a particularly serious example of abusive behaviour by an NHS trust Freedom To Speak Up Guardian, Chidgey-Clark ignored me.

This is the evidence that she ignored:

“My experience with a FTSU Guardian has not been a positive one. I spoke up in REDACTED and initially the FTSU was responsive in listening to my concerns. However it very quickly became apparent that she was having personal friendships with the senior executives who she reported to. She described going out after work with them drinking and openly discussing cases. I witnessed this FTSU take a phone call from a whistleblower and move the phone away from her ear for 20 seconds or more pretending to listen. When this call ended she said she didn’t believe what her was saying.

She became evasive and rejected my calls pretending not to be in the building. On  a number of occasions I went to her office and she was there but just screening calls.

She would say things like don’t share anything else with me because I can’t do anything.

She also broke confidence and shared others experiences of their cases of speaking up.

I would not approach another FTSU Guardian again after my experience and I would not advise anyone else’s to either. How can they be independent when they work in the organisation they represent and often are line managed by senior influential executives.  I have no trust or faith in the position due to my own personal experience.”

As the National Guardian ignored me, I raised the matter with Ian Dilks Care Quality Commission Chair and asked him to ensure that Chidgey-Clark’s blog was corrected to reflect the facts.

(By that point, NHSE/I had dumped its responsibility for investigating complaints about the National Guardian to the CQC.)

I sent Dilks additional evidence from Portsmouth Hospitals whistleblower Dr Jasna Macanovic about her experience of the Freedom To Speak Up system:

Dr Jasna Macanovic’s experience, shared on 28 May 2022:

“Dear Minh, 

I am forwarding the correspondence with [REDACTED], FTSU Guardian in Portsmouth in 2017/2018. 

We met on 2 occasions and exchanged some emails and text messages. She was present at the meeting I requested with CEO Cubbon on 10th August 2017. I will forward the email relating to that meeting. She has not helped at all, although she appeared to be listening. However, she could not understand a highly technical medical issue and was clearly intimidated by the CEO. She did not speak at all at the meeting on 10th July. 

She sent me a text message afterward “ My job is to remain independent but ensure processes are adhered to. I thought Marc C was fair and has given you an opportunity to express the errors and omissions as you see them best wishes J ‘.

She obviously did not understand the policies and procedures, or the Law as she did not raise any concerns about the case as far as I can see with anyone. From the judgment- you would have seen that ALL Internal procedures have been ignored in my case. [my emphasis]

As it happens – the Trust decided that rules are not applicable in my case, they continued with bullying and discrimination that culminated in my dismissal. The unsafe practice has never been addressed and the practitioners involved in malpractice have been promoted. 

I have several texts from REDACTED indicating that she was in contact with the National FTSU office in the first half of July 2017. 

I contacted the national office myself and was told that they do not get involved in individual cases or disciplinary processes and that I will be free to submit a case review form if/ and when I win a case for unfair dismissal in court. I am trying to locate the correspondence. This approach is appalling. [my emphasis]

I was lucky enough as I had a cast-iron case, and was resilient and financially capable of taking the case to the court. I do not know anyone else around me who would have survived this process. The ferocity and avalanche of unwarranted insults would have destroyed anyone. 

I firmly believe that the existence of the FTSU process ( Local and National Guardians) is an intellectually flawed concept. Well-run organisations do not need them, poorly run NHS organisations pay no attention to FTSU Guardians who are generally intimidated by the power and in my case, unable to comprehend their duties, policies, and the law. The FTSU Office has not  help me or the patients at the Wessex Kidney Centre/ Portsmouth Hospitals. 

Kind regards

Jasna”

Caroline Homer the CQC Deputy National Complaints Manager was assigned to the matter.

Caroline Homer initially tried to dismiss and shut down the complaint about the National Guardian without following CQC’s complaint procedure.

She did not liaise with me for particularisation of my complaint.

After an objection, she went through the motions of following CQC’s policy, but still dismissed the complaint.

This was on spurious grounds that the National Guardian was making a claim in her blog about what should happen and not what actually happens.

1 August 2022

“Dear Dr Alexander

Thank you for your emails below.  I have carefully considered the comments you have made and revisited my previous response.

Dr Chidgey-Clark’s intent was for the blog was to set the expectations of the Freedom to Speak Up Guardian role as defined by the supporting job description I previously referenced.  In your correspondence you have presented a different opinion in how you have interpreted the statements made, as is your individual right.  However, this difference of opinion on the intention behind Dr Chidgey-Clark’s message does not render the blog misleading and our position in respect of your complaint remains not upheld. 

As such, I reiterate you may wish to approach the Parliamentary and Health Service Ombudsman via your local Member of Parliament in the event you feel our handling has been disproportionate or unreasonable.

Kind regards

Caroline Homer
Deputy National Complaints Manager – National Complaints Team”

The full correspondence with Chidgey-Clark and CQC can be found here.

CQC seems to have a different understanding of the English language to everyone else.

Moreover, CQC’s complaint decision implies that as far as CQC are concerned, it’s not what you do that matters, but what you intended.

Acts and facts are immaterial.

Is that also how CQC approach their prosecutorial powers?

Neither Chidgey-Clark nor the CQC asked about or followed up on the examples that I gave of inappropriate responses by Freedom To Speak Up Guardians.

Evidence is unwelcome in La La Land.

Two weeks after Caroline Homer’s decision to protect the National Guardian instead of protecting the truth, a shocking Employment Tribunal judgment of 15 August 2022 determined that the Freedom To Speak Up Guardian at the Royal Free had taken part in detrimental actions against a whistleblower.

Fundamental failure of the NHS Freedom To Speak Up Project: Dr Rajai Al-Jehani unfairly sacked by Royal Free NHS Foundation Trust for whistleblowing on breaches of Human Tissue law, with suppression of linked investigations by University College London

Failure is the CQC’s leitmotif.

It would be funny if were not so tragic for patients and whistlebowers.

PETITION

Please click and add your signature to this petition to reform UK whistleblowing law – whistleblowers protect us all but weak UK law leaves them wholly exposed, lets abusers off the hook and it is a threat to public safety.

Replace weak UK whistleblowing law and protect whistleblowers and the public

RELATED ITEMS

The National Guardian’s Office claimed its case records had been twice audited. When further probing revealed that was untrue, the NGO claimed there was no need for these whistleblower case files to be audited:

Why has the National Guardian’s Office given conflicting information about quality assurance of its case records and protection of whistleblowers’ confidentiality?

In 2019 the previous National Guardian shockingly claimed that Freedom To Speak Up Guardians had saved lives and prevented “untold” harm, without producing any evidence to substantiate this:

The low fact National Guardian’s Office

The National Guardian’s Office finally apologises for a breach of whistleblower confidentiality but fails to demonstrate sufficient learning

National Guardian’s gaslighting exclusion criteria: the never ending story

The National Guardian’s Office does not put a blue light on for ambulance staff.

Staff suicides at West Midlands Ambulance Service NHS Foundation Trust

The toothlessness of the National Guardian’s Office: Why it cannot be a model for protecting whistleblowers

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

SSOTP: Robert Francis’ exemplar trust has feet of clay, and Jeremy Hunt’s safety claims are un-evidenced

By Dr Minh Alexander retired consultant psychiatrist 10 December 2022

Last night BBC Newsnight broadcast further investigations into poor culture and whistleblower reprisal at University Hospitals Birmingham NHS Foundation.

At the same time, the NHS announced three reviews into material uncovered by the BBC. This will be controlled by the Integrated Care Board, a new commissioning structure that has recently replaced the CCG structure.

There are serious concerns that these reviews will not be independent or rigorous because the trust and the ICB are too close. Indeed, some of the senior UHB managers have now moved to the ICB.

Crucially, the new Deputy Chief Executive of the ICB is Lisa Stalley-Green, who was UHB’s Chief Executive Nurse from 2018 until she recently moved to the ICB. She is therefore steeped in all the events of recent years, and a member of the trust board that was collectively responsible for flawed FPPR process applied to UHB’s former CEO David Rosser.

Moreover, Dr Clara Day the ICB’s new Chief Medical Officer was a consultant renal physician at UHB and latterly UHB’s Assistant Medical Director for Finance.

In a tragi-comic twist, the musical chairs also involves the ICB chair Yve Buckland, who has just been appointed as interim UHB Chair. This poses issues of conflict of interest for the ICB and whether it will rigorously hold Buckland to account as UHB Chair.

Some other members of the ICB board have been NHS senior managers in the local area with responsibility for commissioning services. That also places them in a position of conflict of interest, as commissioners must bear some of the responsibility for UHB’s failings.

Preet Gill MP Birmingham, Edgbaston has criticised the planned ICB reviews, and called for a properly independent investigation.

“It needs to be a fully independent review, not something that sounds like an NHS tick box exercise, as that will not go down well with those who have raised concerns,”

This seems critically important.

I am aware that UHB has gagged some of its critics, and they will not be free to disclose to a low-level review by the ICB.

A judge led inquiry with the legal power to un-gag vital witnesses is needed.

Last night’s BBC Newsnight’s focus turned to UHB’s lead Freedom To Speak Up Guardian since 2019, Professor Julian Bion.

Like UHB’s controversial former CEO David Rosser, Bion was an anaesthetist/ intensivist at UHB, working in this capacity for thirty years (1987 to2017).

In an interview by the BBC, Bion appeared ambivalent about the cultural problems at UHB.

He produced a report for the UHB board last year which made it clear that the trust’s Speaking Up arrangement was not working, because staff both feared and experienced detriment for raising concerns.

In last night’s broadcast, he was asked if he recognised the picture painted of the trust by whistleblowers. Bion replied hesitantly: “A bit”.

When asked if it was not more than a “bit”, Bion defended senior trust managers on the basis that they were working in a difficult system.

This does not of course explain why UHB’s culture is so much worse than other trusts. Nor the fact that UHB used to perform better but deteriorated in recent years.

It is possible that Bion provided balancing testimony of which we are as yet unaware, as not all of his interview would have been shown.

Of concern though, as part of his defence of senior trust managers, he stated that:

1. He knew all of the UHB board
2. They did not “enjoy making people frightened”

Did this reflect a loss of objectivity?

In my experience, the most abusive managers have no qualms about harming whistleblowers, and some derive satisfaction from doing so.

Certainly, Bion’s former CEO David Rosser displayed little regret or insight into the harm that he had caused to whistleblower Tristan Reuser, in a revealing interview by the Health Service Journal.

Bion’s comment that he recognised the poor culture reported by UHB whistleblowers only “a bit” is not consistent with further comments that he made later in the interview to explain poor management conduct at UHB .

He stated that the system within which managers works is “tense” and that it takes away their ability to put patients first:

“…so much focus on performance, so many competing demands, fear of failure is corrosive and it’s one of the biggest problems we’ve got. Because it takes away people’s sense of courage, self respect and doing the right thing for patients.”

This suggests to me that Bion in fact feels there is more than “a bit” of the poor culture reported by trust whistleblowers.

But it must be difficult to be fully candid about a community of which you have been a part.

Therein the core problem of the Freedom To Speak Up model.

There is also an issue of proportionality in how pressures on senior managers are viewed in contrast to those experienced by frontline staff. False equivalance should not be drawn.

Trust executives have six figure salaries and large pension pots. They are much better buffered against the consequences of doing the right thing than frontline workers, whose lives they sometimes ruin for doing the right thing. Unfair dismissal, serious ill health and loss of economic security are what they inflict on those less powerful than them.

Whilst one might seek to understand what they do to frontline staff, I think there is no excusing it. Not even “a bit”.

These are UHB directors’ unusually large salaries, as published in the trust’s annual report of 2021/22:

Importantly, although I wrote to Bion in June 2022 about FOI data which showed that the trust appeared to be referring too many doctors to the GMC without sufficient grounds, he has not advised me if the trust has acted on this.

I copied him into correspondence of 5 December 2022 to Nick Crombie another anaesthetist and , a UHB Associate Medical Director who had tweeted that he did not “recognise the picture painted by Newsnight”, which again raised the GMC issue.

Bion informed me in response that he would be talking to the BBC, but added no information about the GMC issues.

There was also no response from Bion about the GMC issues in the interview sections shown in last night’s BBC broadcast.

Neither have I received any response whatsoever from the above UHB Associate Medical Director about the GMC issues.

It is relevant to note that the UHB directors reporting to the board (David Burbridge and Jon Glasby) about Freedom To Speak Up are individuals who took part in UHB’s disciplinary action against whistleblower Tristan Reuser, and/or the deeply flawed UHB FPPR process which cleared Rosser. The former UHB CEO. Rosser was cleared by his board colleagues despite very critical Employment Tribunal findings and despite the GMC’s disciplinary action against Rosser.

Burbridge and Glasby are also the trust directors to whom Bion reports as Freedom To Speak Up Guardian:

Has Bion objected to their designated roles for Freedom To Speak Up, given their actions in the Reuser case…..or not?

Moreover, Bion seems to have accepted a UHB arrangement where a trust comms manager also had a role as a Freedom To Speak Up “confidential contact”:

This seems to me to be highly questionable and laden with conflict of interest. Those responsible for an institution’s reputation management, and who report to the trust’s Director of Communications, should have no power over whistleblowers nor be entrusted with their sensitive confidential data.

UHB’s media policy emphasises reputation and it spells out disciplinary consequences for staff who break ranks and speak out of turn:

UHB’s policy does not acknowledge that trust staff have a legal right to make a wider disclosure under UK whistleblowing law, such as to the media, in certain circumstances.

It should also be noted that after Newsnight broke the story, internal UHB comms included a statement from management which implicitly denigrated disclosures from unnamed staff.

This of course drove a coach and horses through UHB’s own whistleblowing policy, which like the national NHS whistlebowing policy, purportedly recognises the validity of anonymous whistleblowing.

The ultimate confirmation that a Freedom To Speak Up Guardian is properly independent is if they escalate concerns outside of their organisation, when they have evidence that the trust board is not acting appropriately.

There was no discussion of this with Bion in the clips shown by the BBC last night.

What was Bion’s position on UHB’s response to the critical ET and GMC findings from Reuser v UHB, and the trust board clearing Rosser under FPPR?

Did he question any of it, and did he escalate externally?

My transcript of last night’s BBC Newsnight’s broadcast is provided below.

Newsnight transcript 9 December 2022

Faisal Islam BBC: Now, a week ago a Newsnight investigation uncovered what whistleblowers told us was a mafia-like leadership at one of England’s biggest hospital trusts. A punitive culture, we were told, by current and former clinicians from Birmingham University Hospitals Trust, which frightens from staff raising concerns about patient safety.

In the wake of our report, not one but three reviews have now been announced by the NHS in the region.

The under-fire trust serves two million patients across four Birmingham hospitals recently ranked 119 out of 120 in England. Politicians are now calling for a Mid Staffs style independent inquiry.

Our Chief Correspondent David Grossman has more.

David Grossman BBC: We uncovered what insiders told us was a culture of fear at one of England’s biggest and worst performing hospital trusts.

Unnamed interviewee: I and other consultants have raised concerns about patient safety and we realised that if you do, you will get punished quite quickly, quite harshly. So they will make all kinds of spurious investigations and they will try to intimidate you that way.

David Grossman BBC: Since we broadcast our investigation last week, we’ve been contacted by several clinicians at this hospital trust, both current and former, who told us a similar story: that they felt unable to come forward with their concerns about patient safety because they feared some sort of retribution.

The local MP says that she’s been contacted too, by concerned hospital staff.

Preet Gill MP Birmingham, Edgbaston: Many of them are from different parts of the UHB trust, raising absolute concerns with me which were very, very distressing to see. These are doctors that have worked here for a very long time. These are doctors from different departments. This isn’t just disgruntled doctors. This isn’t just a department at the Heartland Hospital. This much more broader. This is people that have worked here fifteen, ten, twenty years and this is really concerning because this is showing a culture within the organisation there where was bullying, intimidation, and it’s been far, wide reaching. And of course it’s been going on for some considerable amount of time.

David Grossman BBC: Birmingham and Solihull Integrated Care Board has announced three separate reviews of our evidence. The first into the specific allegations made in our report. Second, a more general review into the culture and alleged bullying at the trust and the third, is into leadership. However, the Integrated Care Board was formed only in the summer and some its senior team were until very recently, senior managers at UHB trust.

Richard Burden Chair of Birmingham and Solihull Healthwatch: If it was the board of the ICB that was going to conduct this inquiry, I’d have big reservations about that. But the important thing is will the person or people conducting the inquiry be independent both of the trust, the ICB and indeed, independent of NHS England/ Improvement as well?

Will they be able to go where ever the evidence takes them, to look at whatever they need to look at, and will their findings be made public at the end of it? So everybody can see what’s been found out. Those are the three important criteria in my view.

David Grossman BBC: There is  supposedly already a structure in place to allow people to raise patient safety issues. Each NHS trust has a Freedom To Speak Up Guardian, who can hear concerns and raise them with management.

The Guardian has no real powers, just to listen and warn.

The Freedom To Speak Up Guardian at University Hospitals Birmingham is Professor Julian Bion. His most recent report noted that a majority of staff were worried about raising concerns because they feared adverse consequences, what the report calls “detriment”.

Julian Bion UHB FTSU Guardian: The process of investigation is so slow that people won’t wait…[inaudible, volume trails off]

David Grossman BBC: I spoke to Professor Bion before the reviews into the allegations contained in Newsnight’s investigation were announced.

Julian Bion: The question is does detriment occur? And I think there have been a number of instances of which I am aware, where I’ve taken concerns to the trust and in the end I felt that the individuals who had done so had suffered detriment.

And I raised these with the trust board in public, last year. And I, I didn’t describe the individual cases of course because I can’t, but I did describe what it felt like to the individuals who felt they had suffered detriment. And this was very hard for the trust board to listen to.

David Grossman BBC: Do you feel that characterisation that we heard from several consultants and several people behind the scenes who didn’t wish to be named, that there was something of a culture of fear. Do you recognise that at UHB?

Julian Bion: [pause] A bit.

David Grossman BBC: Not more than “a bit”?

Julian Bion: I know all the individuals on the trust board. They didn’t enjoy making people frightened. But when you work in a such a tense set of circumstances as we are at present, with so much focus on performance, so many competing demands, fear of failure is corrosive and it’s one of the biggest problems we’ve got. Because it takes away people’s sense of courage, self-respect and doing the right thing for patients.

Richard Burden Chair of Birmingham and Solihull Healthwatch: The first important thing is that a Speak Up Guardian has got access to staff. The second important thing is that his or her findings are made public. The third important thing is that they’re acted on. Now the first two of those happened in relation to UHB. The third of those, has a much bigger question mark around that. Which is why we need the investigation that we’ve been calling for since last week’s Newsnight’s report.

Preet Gill MP Birmingham, Edgbaston: We’ve got to have a whistleblowing procedure that has confidence of the staff, knowing that not only will they be able to raise issues but they will be taken seriously and something will happen. It’s very clear that system isn’t working. The doctors that have been contacting me, one of the things that they have been saying is:

“Please do not share our name. Do not share details of where we work. We are really, really worried about reprisals.”

David Grossman BBC: The hospital trust has a new chief executive taking over in January and a new interim board chair, who’s just started in post. Some see the possibility of a fresh start.

Julion Bion UHB Freedom to Speak Up Guardian: The past chair of the trust has been extremely supportive, Harry Reilly. He’s been replaced by Dame Eve Buckland. She has already been in touch with me. She has asked if she can meet online with my entire team, the thirty confidential contacts my two deputies, which is excellent. So I’m very pleased about that.

David Grossman BBC: The reviews of whistleblowing at UHB we are told will be concluded early in the New Year. So far this announcement has not silenced or even reassured the trust’s critics.

Faisal Islam BBC: A spokesperson for University Hospitals Birmingham said “We welcome the support that’s been put in place and we look forward to working positively and constructively with our NHS colleagues. This will build upon the work already underway across UHB to understand the issues that have been highlighted. It’s clear that there is a strength of feeling in a number of areas and we are committed to addressing these.”

UPDATE 11 DECEMBER 2022

I have written to Yve Buckland the new UHB interim Chair (who is Chair of the ICB) about unpleasant messaging by the trust, which appears to have been sent out in her name, which has the effect of denigrating staff and former staff’s disclosures to the BBC.

UPDATE 16 DECEMBER 2022

I have come across data which suggests that a UHB FOI disclosure of April 2022 about the outcomes of trust GMC referrals was incorrect.

I have written to the interim Chair Yve Buckland requesting clarification.

Letter to Yve Buckland UHB interim Chair 16 December 2022

Related items:

Under the microscope: The Freedom To Speak Up model and University Hospitals Birmingham

After Reuser v UHB and Macanovic v Portsmouth: New rules to deter malicious referrals of whistleblowers to the Practitioner Performance Advice service

Why has the National Guardian’s Office given conflicting information about quality assurance of its case records and protection of whistleblowers’ confidentiality?

The National Guardian’s Office finally apologises for a breach of whistleblower confidentiality but fails to demonstrate sufficient learning

National Guardian’s gaslighting exclusion criteria: the never ending story

The National Guardian’s Office does not put a blue light on for ambulance staff.

Staff suicides at West Midlands Ambulance Service NHS Foundation Trust

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

SSOTP: Robert Francis’ exemplar trust has feet of clay, and Jeremy Hunt’s safety claims are un-evidenced

By Dr Minh Alexander 9 December 2022

Claire Murdoch is the National Mental Health Director for NHS England.

She is also longstanding CEO of a mental health trust, Central and North West London NHS Foundation Trust.

She has made public statements about support for people affected by long COVID:

Her NHS England colleague Ruth May Chief Nursing Officer has also made public comments about the importance of addressing long COVID:

NHS England has made similar public comments:

Last year, Claire Murdoch’s trust ignored an FOI request about long COVID in its staff:

FOI request by Grace Pritchard

I re-submitted the FOI request, with some additional questions.

The response from Claire Murdoch’s trust has now revealed that:

1. Central and North West London NHS Foundation Trust does NOT collate data on the extent to which its staff have been affected by a long COVID.
2. NHS England has not asked Central and North West London NHS Foundation Trust for data on long COVID in its staff

The CNWL FOI correspondence can be found here.

Other NHS trusts have also indicated that NHS England has not asked them for data on how long COVID has affected their staff.

I have asked Claire Murdoch if her trust and NHS England will now collect staff long COVID data.

9 December 2022

Hi Claire,

May I ask with respect to your trust’s response below,

1. Will the trust reconsider its current approach and start collating data on how long COVID has affected its staff?

2. Will NHS England reconsider its current approach and start collating data on how long COVID has affected NHS staff?

BW

Minh

Dr Minh Alexander

RELATED ITEMS

The Department of Health holds no data on long COVID in NHS staff and has no intention of collating this data

Transparency about NHS staff with long COVID injuries and NHS staff personal injury claims for long COVID

NHS England does not want to know about long COVID in NHS staff

By Dr Minh Alexander retired consultant psychiatrist 7 December 2022

This post reports on improvements in procedural safeguards for whistleblower doctors who are punitively referred to the General Medical Council and the Practitioner Performance Advice service.

Whistleblowing medics can be victimised through malicious referrals to the General Medical Council.

There is another NHS body which is also used by abusive medical managers to harm whistleblowers: the Practitioner Performance Advice service (formerly known as the National Clinical Assessment Service, NCAS).

It is senior doctors who refer other doctors to the PPA.

The Practitioner Performance Advice service gives NHS trust managers advice on how to apply the Maintaining High Professional Standards (MHPS) procedure – the NHS method for dealing with medical incapability and misconduct.

Under MHPS, employers must liaise with the PPA to explain what they are doing, in order to progress the MHPS process.

The PPA has no investigative role. It merely provides advice based on information provided by employers. It may also assess doctors’ performance at the request of employers.

Bad employers may feed false or distorted information to the PPA to engineer suspensions.

The Employment Tribunal described such false and distorted information given to PPA (previously NCAS) in the whistleblowing cases of Mr Tristan Reuser and Dr Jasna Macanovic.

The PPA had not kept pace with procedural safeguards introduced by the GMC to protect whistleblowers, following the Hooper review in 2015.

But based on the continuing cases of employer misconduct involving the MHPS/ PPA mechanism, the PPA has advised that it will enact the following:

• Referring employers must provide a statement of truth

• Referring employers must declare that there are no omissions in their referral and that the referral is being made in good faith

• Employers must explicitly declare if a referred doctor has made public interest disclosures

• Employers must declare that they have shared documents with the referred doctor

This broadly mirrors the GMC’s requirements for referring employers. The GMC also added a clause in its referral form requiring the referring senior doctor to consider their due diligence in ensuring that their referral is fair and inclusive:

“…what impartial checks you’ve made to ensure the referral is fair and inclusive.”

 This change was made in December 2021, a few months after the GMC upheld complaints that the medical director of University Hospitals Birmingham made a false declaration in his referral of whistleblower surgeon Mr Tristan Reuser.

The formal declarations that the PPA is introducing increase jeopardy for senior doctors who abuse the MHPS/ PPA mechanism to punish and intimidate whistleblowers.

The declarations open a potential door to disciplinary action by the GMC, as happened when UHB’s former medical director referred Mr Tristan Reuser to the GMC and falsely claimed that Mr Reuser had not made public interest disclosures.

The PPA has also introduced a question to employers on whether referred doctors are well enough to undergo a PPA assessment, so that the needs of unwell doctors must be weighed.

In addition, the PPA’s documentation allows for a submission by the referred doctor, so that they can also provide the PPA with contextual information.  

For example, any concerns that a doctor might have that they are being referred for improper reasons, such as reprisal for speaking up.

This is an advance, because in the past NCAS/PPA failed to weigh referred whistleblowers’ concerns about reprisal.

It remains to be seen how well all this works, and what the PPA will do in cases where it becomes obvious that whistleblower reprisal is the reason for referral.

But PPA’s formal acknowledgement of whistleblower reprisal is a significant step forward.

This is the most recent correspondence with PPA(NCAS):

Correspondence with PPA March – December 2022 Procedural safeguards for whistleblowers

This is Version 30 of the form that the PPA will require referrers to complete, including a section which the referred doctor can complete (Form B, starting page 10):

PPA Referral for consideration of assessment form V30

Version 30 does not contain an additional, agreed question to the referring manager on whether the referred doctor has made public interest disclosures, but it will presumably be updated.

I asked the PPA to consider allowing referred doctors to submit their evidence directly to the PPA, to avoid any employer tampering or manipulation, such as by falsely claiming that there is no submission from the referred doctor.

This was not agreed on grounds that the referred doctor might not respond reliably, although PPA indicated it would continue considering what further improvements could be made to its process.

“We have also considered whether a practitioner could send us the referral form back directly.  Our current position is that referral to Advice for an intervention or assessment takes place as part of an employment relationship and a practitioner may not complete or return the form in a timely manner.  However, I do recognise your concern relates to potential extreme scenarios and we will continue to consider whether the process on this could be improved.”

My advice to any whistleblower therefore is to submit evidence through the PPA’s process, via the employer as required, but to also send a copy directly to the PPA.

As is evident, the worst employers are prepared to mislead PPA with false allegations or omission of important information, so it would be wise not to allow them control of whistleblowers’ evidence.

Moreover, employers may conceal any false allegations that they have made to PPA from referred doctors.

In Tristan Reuser’s case, his employer University Hospitals Birmingham NHSFT failed to:

• Disclose the MHPS correspondence to him (contravening the MHPS rules)
• Disclose the MHPS correspondence to him after a Subject Access Request
• Disclose the MHPS correspondence to the Employment Tribunal, even though it was highly relevant to Mr Reuser’s claims.

Mr Reuser resolved this by obtaining the MHPS correspondence through an additional Subject Access Request to what was then NCAS (PPA’s predecessor).

If an employers fails to disclose MHPS documents to a doctor referred to PPA, I would advise the doctor to:

• Inform the PPA of this breach

• Consider a Subject Access Request to the PPA under GDPR if the employer’s withholding of MHPS documents is persistent.

This is because the worst employers may flout their legal obligations under GDPR, and the Information Commissioner has no powers to compel disclosure from an employer who is determined to act abusively. Instead, individuals have to apply for a court order to release their data and few can afford that. It is less painful and onerous to ask PPA, as opposed to a hostile employer, for the information.

Lastly, it is relevant to point out that the heavy lifting on securing the improvements to PPA’s procedures has largely been done by whistleblowers.

Successive National Guardians since 2016 have been noticeable by their absence, despite the fact that it is part of their job description to identify and challenge barriers to speaking up in the NHS.

Their failure to protect whistleblower doctors from victimisation through abuse of the MHPS process was also despite the fact that the second National Guardian, who was in post for FIVE years, was a doctor. She should have been aware of the abuses.

RELATED ITEMS

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

Mr Tristan Reuser surgeon & GMC. Update on GMC, whistleblowing and implementation of the Hooper recommendations

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

Portsmouth Hospitals University NHS Trust sacked Dr Jasna Macanovic consultant nephrologist for whistleblowing to the General Medical Council

Henrietta Hughes former National Freedom To Speak Up Guardian, South Central Ambulance Service, out of touch “extreme positivity” and failures to act on staff concerns

Under the microscope: The Freedom To Speak Up model and University Hospitals Birmingham