There’s still club culture at the heart of CQC

Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 9 March 2019

 

In advance of the Health and Social Care Committee hearing on the Kark FPPR review report, on what should be done about poor NHS managers, I have written to the Committee about the CQC’s incestuous mechanism for assessing the Well Led domain.

The Kark FPPR review team observed a CQC ‘Well Led’ inspection and that part of the Kark report is well worth reading (see from 4.45 onwards).

Kark remarked witheringly at 4.24:

This is not intended as criticism of the CQC, but it underlines the issue which is that the assurances given by the CQC via their ‘Well-Led’ rating, if based (as in part they are) upon the Trust’s application of the FPPT, may be optimistic and in this respect at least not well-founded.”

However, Kark did not comment on who conducted CQC’s ‘Well-Led’ inspections, but it is often the directors of other NHS trusts. I found this through a formal analysis in 2016. A brief glance at CQC’s recent inspection reports shows little change.

The awkwardness that this introduces into executive peer relationships and the potential for bias and backscratching are plain. The issues are summarised below in the letter to Health and Social Care Committee.

 

LETTER TO HEALTH AND SOCIAL CARE COMMITTEE 9 MARCH 2019

Dear Dr Wollaston and colleagues,

FPPR and potential conflicts of interest due to NHS Trust directors inspecting each other’s ‘Well Led’ domains

I omitted in my evidence to the Committee for the hearing on the Kark FPPR Review report to make this point.

An analysis that I previously conducted on this was kindly published by Open Democracy in September 2016:

Is there a ‘club culture’ at the heart of the NHS’s quality regulator?

In addition to NHS trust directors chairing CQC inspections of each other’s trusts, there was also an issue of managers from the private sector chairing inspections on the NHS and thus gaining access to market intelligence.

I have not repeated a formal analysis but my impression is that not much has changed, and that CQC inspections remain incestuous. There is a development in that CQC now sometimes fields so-called ‘executive reviewers’, instead of inspection Chairs, who are also drawn from other trusts’ boards.  Some CQC reports hide the identity of these ‘executive reviewers’.

I provide some specific examples below if needed.

Yours sincerely,

Dr Minh Alexander

Cc Tom Kark QC

Jane Russell

 

 

EXAMPLES

The Royal Wolverhampton NHS Trust

The latest CQC inspection report  on Royal Wolverhampton hid the identity of the ‘executive reviewer’ for the Well Led domain:

ARoyal Wolverhamton

This CQC inspection concluded that the Royal Wolverhampton NHS Trust was “Good” on the Well Led domain.

There has been significant controversy surrounding the chief executive of this trust in respect to a string of whistleblowing cases. For example the case of Prof David Ferry who gave an account of his ordeal to BBC File on Four in 2017:

Somebody entered my office and wrote racist graffiti on the wall, smashed my precious family photographs.”

 “It is very worrying and my eldest daughter was doing her GCSEs at the time and my wife is black, of course, and you have to consider carefully what you do. I think that some people were hoping I would react to that and say perhaps some inappropriate things, which would give them an excuse to suspend me or exclude me, but I think I managed that difficult episode with more control and dignity than I thought I might in the first days after it occurred.”

“Things were deteriorating, and after a particularly difficult day in the department, there was a lot of upset and that night, when I went to my car, there was a sticker on my car that said ‘Death to the bastard Geordie whistle-blower.’ You think, this is getting very difficult. And shortly after that, it was decided there was going to be an external inquiry into rectal radiotherapy treatments in the Trust. Ultimately, that inquiry by national level experts in rectal cancer supported my perspective.”

Prof Ferry was referred to the GMC, as Raj Mattu had been before him, and also exonerated:

Wolverhampton’s New Cross Hospital cancer scandal: Cleared after four-year fight! Victory for NHS whistle-blower

It is also worth noting that CQC previously misrepresented a critical finding in an inspection report that was related to Prof Ferry’s whistleblowing case. When Prof Ferry questioned this, Mike Richards the then CQC Chief Inspector reportedly maintained that the misrepresentation was due to a typo:

When the report came out, the CQC report, I read it and it said in the report, the first version of the report, that the chemotherapy the patients had received had been standard. In other words, there was no error made. Now when I raised this issue, there was a lot of fuss, the report had to be rewritten and Sir Mike Richards, who heads the hospital inspection process, stepped in and said there had been a typographical error, so that was very interesting.”

 

University Hospitals Bristol NHS Foundation Trust

 UHBT was rated ‘Outstanding’ by the CQC in 2017 despite renewed controversy in recent years about baby heart deaths and calls for another Bristol heart public inquiry.

The 2017 CQC inspection (which is the most recent) was chaired by Dr Andrew Welch, Medical Director of Newcastle Upon Tyne Hospitals NHS Foundation Trust:

Screenshot 2019-03-09 at 07.57.57 

Colchester University Hospital NHS Foundation Trust (now known as East Suffolk and North Essex NHS Foundation Trust)

The most recent CQC inspection report  shows that the ‘executive reviewer’ Dr Sean O’Kelly who was at that point the Medical Director of University Hospitals Bristol NHS Foundation (UHBT).

ASean OKelly

As above, UHBT has been at the centre of controversy about more baby deaths.

Dr O’Kelly moved to NHS Improvement last summer:

“We’ve appointed Dr Sean O’Kelly as our Medical Director for Professional Leadership to work alongside clinical leaders and improve the way we engage with clinicians.

In his new role, Dr O’Kelly will help ensure effective engagement between NHS Improvement and front-line clinicians. He’ll work as part of a team to provide clinical and professional guidance across NHS Improvement and the sector to help support the continued professional development of clinicians. He will also be working closely with commissioners, patient groups and providers to encourage innovation and support the development of new service and care models.”

 Birmingham Women and Children’s NHS Foundation Trust

The most recent CQC inspection was chaired by Dr Michael Anderson, the Medical Director of the Chelsea and Westminster Hospital NHS Foundation Trust:

AMichael Anderson

Brighton and Sussex University Hospitals NHS Trust

 BSUH has had stricken governance for years now and the flow of coroners’ warning PFDs has not stopped.

However, it was unexpectedly upgraded to “Good”  by CQC recently, and in this inspection the ‘executive reviewer’ who looked at the Well Led domain was David Melbourne the Finance Director of Birmingham Women and Children’s NHS Foundation Trust

ADavid Melbourne

 

East London NHS Foundation Trust

During the most recent CQC inspection, ELFT’s ‘Well Led’ domain was reviewed by Angela Dragone, the Finance Director of Newcastle Upon Tyne Hospitals NHS Foundation Trust:

AAngela Dragone

Northumberland Tyne and Wear NHS Foundation Trust

 During the most recent inspection,  the ‘executive reviewers’ were Neil Carr Chief Executive of Midlands Partnership NHS Foundation Trust  and Dr Olubukola Adeyemo Medical Director of  North Staffordshire Combined Healthcare NHS Trust.

ANeil Carr

Norfolk and Suffolk NHS Foundation Trust

The most recent inspection of NSFT was chaired by Paul Devlin Chair of Lincolnshire Partnership NHS Foundation Trust:

APaul Devlin

 

Salford Royal NHS Foundation Trust

The ‘executive reviewer’ for the most recent CQC inspection was Siobhan Harrington, thechief executive of Whittington Health NHS Trust:

ASiobhan Harrington

Barking Havering and Redbridge University Hospitals NHS Trust

The ‘executive reviewer’ for the most recent CQC inspection was Trish Armstrong-Child, Director of Nursing at Bolton NHS Foundation Trust:

ATrish Armstrong

Hull Teaching Hospitals NHS Foundation Trust

The ‘executive reviewer’ for the latest CQC inspection was Martin Earwicker, Chair of Berkshire Healthcare NHS Foundation Trust.

AMartin Earwicker

 

RELATED ITEMS:

Is there a ‘club culture’ at the heart of the NHS’s quality regulator?

The unfair sacking of Andrew Smith, NHS whistleblower and trade union representative. A heady cocktail of tainted ingredients. Or how CQC, NHS Improvement & Mid Essex Hospital Services NHS Trust worked together on FPPR.

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

Clare Sardari’s evidence to the Health and Social Care Committee for the hearing on 12 March 2019 about the Kark FPPR Review report

Number of NHS whistleblowing cases: A disagreement with Tom Kark QC

Whistleblowers in Their Own Words: What’s wrong with UK whistleblowing law and how it needs to change

Vasco-Knight and Steve Field NHS England EDCSteve Field well done PVK

Steve Field former CQC Chief Inspector was recently appointed Chair of the Royal Wolverhampton NHS Trust:

Screenshot 2019-03-09 at 08.08.15

 

 

 

Another turn of the Magic Roundabout: Jo Williams’ referees

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 8 March 2019

The spectacle of the Health and Social Care Committee’s hearing on the Kark Fit and Proper Person Review approaches. It will be interesting, but surprising if it results in real change.

The reality is there is one rule for workers and another for the executive classes. NHS Providers is unsurprisingly, batting hard for the powerful and resisting the creation of a disbarring body along those lines:

 

NHS Providers’s evidence to Health and Social Care Committee

“3 22. The cost of setting up a new body is likely to be significant and there is a danger of setting up a bureaucratic and cumbersome process. Evidence also shows there is a considerable financial and human cost of fitness to practice investigations.

 3 23. In reality, it would be very difficult to ‘strike off’ a director. This would require proving criminal levels of behaviour and individuals would most likely appeal in the courts, as is often the case with General Medical Council (GMC) rulings. Given the profound impact on people’s livelihoods and futures, the evidence would have to meet a very high bar”

 

 

Despite the faux lamentation by senior officials when cover ups and whistleblower reprisal are exposed. The truth is, many privately support such behaviour and or protect fellow club members.

Jo Williams controversial former CQC Chair was recycled to the NHS as a non executive director of Alder Hey Children’s NHS Foundation Trust, and was recently appointed as its Chair:

The Times 2 February 2019 Disgraced CQC chief Dame Jo Williams given top job at children’s hospital

She replaces David Henshaw, another controversial figure:

Liverpool Echo 15 November 2010 Alder Hey Children’s Hospital boss Richard Glenn quits over David Henshaw appointment

An FOI response by Alder Hey of 21 February 2019  about William’s recycling has disclosed that the great and the good provided her with references as follows:

 

• “Reference from past Department of Health official/current chair of a health Think Tank

 

• Letter from past Minister

 

• Reference from University Vice Chancellor

 

• Reference from current NHS Board chair”

 

 

I do not know who these individuals are but have looked for possible candidates.

 

Who could be the “current chair of a health Think Tank”?

I asked three prominent health Think Tanks if their Chairs, all of whom are former Department of Health civil servants, had provided a reference for Jo Williams.

The Health Foundation did not think it came from them.

The Nuffield Trust has not yet replied.

The Kings Fund staff advised that they had forwarded my query to their Chair, Sir Christopher Kelly KCB former Permanent Secretary of the Department of Health, who has not yet replied.

However, according to a CQC announcement of 7 September 2012,  Kelly said nice things about Williams upon her resignation from the CQC after scandal:

 

“Sir Christopher Kelly, former Permanent Secretary of the Department of Health, said:

“Over a number of years of devoted public service, Jo Williams has shown tireless commitment to improving care for people, in particular people who rely on mental health and learning disabilities and their families and carers.

‘She has provided strong leadership to the CQC over the last three years, and leaves the organisation in an excellent position to deliver its crucial role as quality and safety regulator of the health and social care system.””

 

I wonder if the victims of the Winterbourne View care scandal and their families would agree with Kelly.

The Serious Case Review on Winterbourne View gave a disturbing account of CQC’s failure to listen to whistleblowers who raised the alarm on gross abuse. It concluded bluntly: “…the apparatus of oversight across sectors was unequal to the task of uncovering the fact and extent of abuses and crimes at the hospital.”

Of note, Kelly was appointed by Gordon Brown in 2007 as the Chair of the Committee on Standards in Public Life (CSPL). In 2009, as CSPL Chair he gave evidence to the Public Administration Select Committee for its inquiry on leaks and whistleblowing in Whitehall:

 

Examination of Witnesses (Questions 175-179)

SIR CHRISTOPHER KELLY KCB AND DR BRIAN WOODS-SCAWEN

10 FEBRUARY 2009

Q175 Chairman: Perhaps we could turn our attention to Leaks and Whistleblowing. Are there any introductory remarks you would like to make?

Sir Christopher Kelly: Whistleblowing was clearly a very important issue for the Committee in its early years. We set down a number of principles in a number of reports which were, on the whole, widely accepted. We returned to the subject in 2005, when the main recommendations were that regulators should take a particular interest in the whistleblowing arrangements in the bodies which they were responsible for regulating, and that departments and public bodies should make sure that the whistleblowing procedures they had, not only formed part of a general culture of openness and so on, but also were widely understood when that failed. In that respect, it is disappointing that the Public Concern at Work survey, which they did I think in 2007, suggests as far as departments are concerned—and I do not think anyone received full marks in their survey—that while some departments were better than others, there were still very large numbers of departments which had not seriously begun to address that issue.

 

Kelly also produced this 2013 report on standards on public life, to which Williams was a contributor:

Standards matter A review of best practice in promoting good behaviour in public life

 

Who could be the past Department of Health Minister who gave Jo Williams a reference?

Could it be Lord Norman Warner?

Community Care 20 July 2010 Government launches adult care funding commission

Screenshot 2019-03-08 at 07.44.36

According to FOI data, Norman Warner has provided a reference for another NHS trust director in recent years.

 

Who could be the university Vice Chancellor who provided a reference?

Could it be Professor Trevor McMillan, the Vice Chancellor of Keele University, where Jo Williams was appointed as Pro-chancellor last autumn?

Screenshot 2019-03-08 at 07.43.32

 

Who was the current NHS trust chair who provided a reference?

Can anyone think of a current NHS chair who has worked closely enough with Williams to provide a reference?

Joint strategic agreement between CQC and NHS Commissioning Board (NHS England)

Screenshot 2019-03-08 at 07.44.21

 

The Department of Health and Social Care’s masterly inertia

Whoever Williams’ referees were, it does not change the fact that under her leadership, the CQC was repeatedly and very seriously criticised by parliament for poor performance and ill-advised, unsafe management decisions:

Health Committee Annual accountability hearing with the Care Quality Commission 2011

Health Committee Annual accountability hearing with the Care Quality Commission 2012

Public Accounts Committee Inquiry on Care Quality Commission: Regulating the quality and safety of health and adult social care 2012

 

Nor does it change the fact that this is what the Mid Staffordshire Public Inquiry concluded about the senior leadership of the CQC, when Williams was CQC chair:

 

“The CQC has an unhealthy culture, in which senior managers are more concerned about public image than delivery, which is hostile to internal and external criticism, and in which staff feel under pressure and unsupported.”

See: Jo Williams’ letter of 25 November 2011 to all CQC staff, about two CQC whistleblowers who were about to give evidence at the Mid Staffordshire Public Inquiry

 

 

Stephen Hammond Minister for Health, who inherited the Kark FPPR Review from his predecessor Steve Barclay, was asked if he would permit the conflict of interest arising from CQC’s handling FPPR referrals on Williams.

The DHSC naturally washes its hands:

 

DHSC response 7 March 2019

As the CQC is an independent arm’s length body, the Department cannot and does not get involved in its investigations.”

 

 

But do your best to keep a straight face when you tune into the Committee hearing next week on the Kark report.

 

RELATED ITEM

1)Evidence from myself and two other NHS whistleblowers to the Health and Social Care Committee for the Kark hearing, which includes a critique of the Kark FPPR Review report:

Submission 1

Submission 2

2) Kark got his sums very wrong on numbers of whistleblowing cases and what is much more important, the Department of Health and Social Care allowed it to be published:

Number of NHS whistleblowing cases: A disagreement with Tom Kark QC

3) An account of how NHS Improvement recently employed a trust director who had been found to have seriously harmed a whistleblower:

The unfair sacking of Andrew Smith, NHS whistleblower and trade union representative. A heady cocktail of tainted ingredients. Or how CQC, NHS Improvement & Mid Essex Hospital Services NHS Trust worked together on FPPR

There has been no response on this matter so far from Dido Harding, NHS Improvement’s Chair, who will be giving evidence to the Committee on 12 March, and is in charge of deciding whether Kark’s recommendations will be accepted.

4) Whistleblowers in Their Own Words: What’s wrong with UK whistleblowing law and how it needs to change

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

Mafia NHS

 

 

Gosport deaths, UK government pork pies about whistleblower protection and failure to investigate concerns

 By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 6 March 2019

 

 Summary: The central issue in whistleblowing governance is whether concerns are properly investigated and addressed. The government is resisting the EU directive on whistleblowing, which seeks to compel proper handling of disclosures. The  government falsely claimed to parliament that UK whistleblowing provision is “advanced” and maintained that it does not need to be replaced. It produced a misleading report to the European Scrutiny Committee. This sowed confusion by conflating the investigation of whistleblowers’ concerns with the production of activity statistics by Prescribed Persons. BEIS has disclosed that it has no plans to scrap the useless system of toothless, often unhelpful and even hostile Prescribed Persons, to whom UK whistleblowers are supposed to disclose under the Public Interest Disclosure Act.

Caroline Dinenage Department of Health and Social Care Minister and MP for Gosport, has written to a bereaved relative of a victim of Gosport War Memorial Hospital. She claimed that since the Gosport inquiry report was published, the National Guardian has stepped up activity on ensuring that the NHS deals better with staff‘s concerns. This is surprising because recent FOI data showed that the National Guardian does not bother to track whether NHS whistleblowers’ concerns are addressed. Caroline Dinenage has been asked to expand on her claims and for supporting evidence of increased National Guardian activity on whistleblowers’ concerns.

 

The one key thing that the British establishment tries to avoid when dealing with whistleblowers is the investigation of their concerns.

Investigation may force other undesirable consequences, such as transparency and accountability.

The vital thing that the new EU whistleblowing directive offers is the compulsion of follow up and proper handling of whistleblowers’ concerns.

The EU whistleblowing directive passed an important stage in January.

The Greens were the prime movers in pushing for the directive. They have produced a digestible assessment of the directive’s strengths and areas that need further work.

However in June 2018, Andrew Griffiths MP then BEIS minister submitted this explanatory memorandum by his department to the parliamentary European Scrutiny Committee. It  poured cold water on the EU directive:

EXPLANATORY MEMORANDUM ON A EUROPEAN UNION DOCUMENT

The memorandum laughably claimed that UK whistleblowing arrangements are advanced:

The UK has one of the most advanced systems of whistleblowing protection in the EU.”

 and that there was no need to adopt the EU directive.

There was a crucial dishonesty underpinning the BEIS memorandum.

It tried to argue that the labyrinthine and ineffective system of UK ‘Prescribed Persons’, under the Public Interest Disclosure Act (PIDA), represented a satisfactory equivalent to the EU directive proposals for investigation of whistleblowers’ concerns:

BEIS explanatory memorandum to the European Scrutiny Committee June 2018

“Report handling requirements

62. The proposal also prescribes procedures for the way that those receiving reports need to deal with them. lt sets requirements on ensuring confidentiality, diligent follow up within reasonable timeframes not exceeding three months, and clear and accessible information regarding procedures.  

63. In addition to the requirement to give feedback to a reporting person within a reasonable timeframe, competent authorities must also keep a record of reports and review procedures every two years. Member States must ensure competent authorities follow up on reports by taking necessary measures to investigate reports and communicate the final outcome of investigations to the reporting person. Competent authorities must also have staff members dedicated to handling reports, who must receive specific training for these purposes.

64.The UK framework already requires prescribed persons (with some exceptions)to report in writing annually on whistleblowing disclosures made to them as a prescribed person over the previous 12 months. Each report must cover the number of disclosures made by workers in a 12 month period and the number of disclosures where the prescribed person decided to take further action. lt must also include a summary of the type of action taken as well as how disclosures have impacted on the prescribed person’s ability to perform its functions and meet its objectives (for example, to improve services in a sector). ln this regard, requirements for Member States to report on whistleblowing disclosures available at a central level may be able to be gathered from collated reports.”

 

 

BEIS sneakily tried to conflate whistleblowers’ “reports” – that is whistleblowing disclosures – with statistical activity reports by Prescribed Persons, when they are entirely separate things.

As the government department in charge of PIDA, BEIS would know that Prescribed Persons are not compelled by PIDA to investigate whistleblowers’ concerns.

There are many hundreds of Prescribed Persons and they are a very mixed bag. Some are not even regulators and have no powers at all.

The only legal duty place upon Prescribed Persons is to receive, record and annually produce very superficial statistics on whistleblowing disclosures:

BEIS guidance for PIDA Prescribed Persons

There has been insufficient training for Prescribed Persons. Some do not even appear aware that they have that role. FOI data last year showed that many do not understand or fulfil their basic duties:

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

In short, the Prescribed Persons system is a Sir Humphrey Special, a master work in convoluted obfuscation.

Nonetheless, BEIS remains defiant. Despite government spin about possible changes to UK whistleblowing law following the huge scandal of hundreds of unnatural deaths at Gosport War Memorial Hospital after whistleblowers were silenced, BEIS advised in an FOI disclosure of 18 February 2019, Reference FOI2019/01024, that it had no plans to change the Prescribed Persons system. BEIS pointed to some very tokenistic twiddling at the edges as the justification for its continued inaction:

“…you asked about work regarding the Prescribed Person system. We do not have any plans to change the operation of the Prescribed Person system. The Government has already made a number of improvements in this area. Firstly, the Prescribed Persons list is updated annually to ensure the right contacts and the matters they investigate stay up to date. The Government has also published comprehensive guidance for prescribed persons regarding how they handle disclosures. This guidance is intended to help them understand their role as a prescribed person.”

In addition to BEIS’ sleight of hand, the Department of Health and Social Care is also misleading the bereaved families of the Gosport victims.

At a townhall type event in January, the families were handed an information pack consisting of ‘good news’ documents from various agencies about lessons learnt.

This included material claiming improvement in NHS whistleblowing governance, which cited the lamentable Freedom To Speak Up project  as evidence of progress.

I have also been sent a copy of a letter by Caroline Dinenage Minister of State for Care and Gosport MP to a bereaved family member, which also makes dubious claims about progress:

 

Email from Caroline Dinenage MP, 27 February 2019:

“Dear [Redacted],


Thank you for your email. 

I agree that the whistleblowers of Gosport War Memorial were failed both by the hospital and the Government. In response to the Report the Government committed to considering how best to strengthen protection for whistleblowers in the NHS to support patients, families and staff and encourage them that they can raise their concerns in a safe, and heard, space. 

One of the key actions that the Government promised to undertake after the Report was to develop and reform measures to support whistleblowers and ‘freedom to speak up,’ as well as making it more transparent in the way individual NHS Trusts manage these cases.  

More generally, the National Guardian’s Office is an independent, non-statutory body that holds the Government and the system to account and advocates for change. The National Guardian, Dr Henrietta Hughes, will continue to champion for those who speak up through her Network of Freedom to Speak Up Guardians and will publish an annual report to showcase best practice and Government activity. Since the publication of the report the National Guardian has started to take a more active role and approach into how the NHS deals with concerns raised by staff. 

In regards to prosecution, as you know this is a matter for the police and it would be inappropriate for me to comment on the ongoing assessment. 

I will however write to the relevant Minister looking at whistleblowing to provide you with further assurances. 

Thank you again for taking the time to contact me.

Kind regards, 


Caroline 

Caroline Dinenage MP

Member of Parliament for Gosport”

 

 

A key claim by Dinenage is that the National Guardian has stepped up activity on how concerns are dealt with:

Since the publication of the report the National Guardian has started to take a more active role and approach into how the NHS deals with concerns raised by staff”

This is unexpected because recent FOI data showed that the National Guardian does NOT bother to track whether NHS whistleblowers’ concerns are addressed:

How can National Guardian’s Office say workers ‘know that the right actions will be taken’ if they speak up? Another health check on quality of the National Guardian’s data

I wrote to parliament about this in September 2018:

Letter to parliament: UK government does not track whether whistleblowers’ concerns are addressed

I have now asked Caroline Dinenage for information regarding her claims that the National Guardian has taken a more active role.

 

 

BY EMAIL

Caroline Dinenage

Minister of State for Care and MP for Gosport

Department of Health and Social Care

6 March 2019

 

Dear Ms Dinenage,

Your email to [REDACTED] of 27 February 2019 and comments about increased National Guardian activity

In the above email you advised [REDACTED] that:

“…the National Guardian has started to take a more active role and approach into how the NHS deals with concerns raised by staff”.

 Please could you kindly give more details of when this increased activity started, and what it comprises.

In what way is the National Guardian taking a more active role, and what is her revised strategy and new procedure in this area?

What activity measurements are planned or applied?

Is it possible to see the results of any activity monitoring?

I ask as recent FOI showed that the National Guardian was not tracking whether NHS whistleblowers’ concerns are being addressed. This is a letter to parliament on the matter:

Letter to parliament: UK government does not track whether whistleblowers’ concerns are addressed

As Gosport MP, I am sure you appreciate the paramount importance of acting on whistleblowers’ concerns and of ensuring proper, unbiased investigation.

A poor system response to whistleblowers, such as failure to investigate concerns, can be part of the covert intimidation.

Research by Greenwich University on helpline cases revealed from this particular sample that 44% of the whistleblowers raised a concern only once.

As at Gosport,  the window of opportunity for acting on whistleblowers’ concerns can be very limited. Once whistleblowers have been intimidated and silenced, the door may be closed forever, with grave resultant harm to the public.

I provide below some more links to additional evidence about the ineffectiveness and unhelpfulness of the National Guardian’s Office.

As you will be aware, there are many concerns that UK whistleblowing is fundamentally flawed. The reform that is needed is an overhaul of the law, not minor adjustments or ineffectual ventures like the Freedom To Speak Up project.

With best wishes,

Dr Minh Alexander

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

No evidence base for Freedom To Speak Up project. SSOTP: Robert Francis’ exemplar trust has feet of clay, and Jeremy Hunt’s safety claims are un-evidenced

Mission Drift by the National Guardian: Further, proposed dilution of NHS whistleblower case reviews

 

 

 

RELATED ITEMS

Witness statements about concerns at Gosport War Memorial Hospital

See website under construction Victimsofgosport.com by the family of Elsie Devine who died at Gosport War Memorial Hospital.

Spinning death at Gosport: The Department of Health and the National Guardian

Replacing the Public Interest Disclosure Act (PIDA)

 

Freedom To Speak Up Guardians bullied

Questions about coaching of staff who gave evidence to the Gosport inquests and the Department of Health and Social Care’s role in promoting spin

Dr Minh Alexander NHS whistleblower and former consultant psychiatrist

The Health and Social Care Select Committee is holding a hearing on 12 March 2019 on the Kark FPPR Review, on how unfit senior managers should be dealt with.

Tom Kark’s Review report is silent on the role of the Department of Health and Care in perpetuating poor NHS culture.

Below is a letter to Caroline Dinenage Gosport MP and DHSC Minister about documents from the archives of the Gosport Inquiry, which raise questions on whether NHS staff giving evidence were unduly influenced by their employer. The documents also show the DHSC’s role in managing the news.

 

BY EMAIL

Caroline Dinenage

Minister of State for Care and MP for Gosport

Department of Health and Social Care

5 March 2019

 

Dear Ms Dinenage,

Coaching of staff who gave evidence to the Gosport inquests and the Department of Health and Social Care’s role in promoting spin

Please see the following documents from the Gosport Independent Panel’s inquiry archives about the Gosport War Memorial Hospital deaths disaster:

 

  1. Archive document MRE001669 A confidential 2008 briefing pack by NHS Hampshire PCT prepared for staff who were to give evidence at the inquests on ten suspicious deaths

https://www.gosportpanel.independent.gov.uk/document-library/documents/MRE001669/

This document was supplied to the Gosport Independent Panel by Mills and Reeves solicitors, who defended the NHS in the Gosport affair.

It contains a media statement claiming that the PCT had cooperated fully with all investigations and that it provided safe care:

“We are very confident that the hospital provides safe, high quality care to all its patients, and will continue to play and important role in local healthcare services for years to come.”

 

2. Minutes by NHS Hampshire of a meeting on 10 November 2008 which was held to prepare for the above inquests. In attendance was a solicitor from the RCN, Chris Green, and also the staff of a firm of PR consultants.

https://www.gosportpanel.independent.gov.uk/document-library/documents/SOH001158/

This document was supplied to the Gosport Independent Panel by Southern Health NHS Foundation Trust.

The PCT’s purpose was clearly to spin the inquests:

“…positive stories about the GWMH are being given to the press already”

These minutes refer to the briefing pack for staff, so it is reasonable to imagine that the staff briefing pack was intended by the PCT and other parties to form part of the news handling.

In terms of the RCN’s involvement, this is a document disclosed by Mills and Reeves to the Panel, which lists the RCN members who were scheduled to give evidence:

https://www.gosportpanel.independent.gov.uk/document-library/documents/MRE000701/

 

3. Archive document DOH70021 A confidential, restricted briefing pack by NHS Hampshire PCT for managers who might have contact with the press.

This document was supplied to the Gosport Independent Panel by the Department of Health.

It again shows the PCT’s intention to spin the inquests and includes at the end of the document a list of “key words” to be used for crafting the desired messages. This included an emphasis on claiming that the problems were historical, that the organisation had been exonerated and that there was no evidence of criminality.

https://www.gosportpanel.independent.gov.uk/document-library/documents/DOH700721/

Chris Green RCN solicitor is again listed as an involved party. So was Graeme Zaki Medical Director of Portsmouth Hospital Trust and other managers from that trust.

I am very concerned that the above trail of documents raises questions about the extent to which NHS staff, including some of the original Gosport hospital whistleblowers, were coached to give evidence to the inquests that was more favourable about the hospital than was merited by the facts.

It must surely have been very intimidating for any member of staff giving evidence to see the media statement in the so-called briefing pack which was given to them by the PCT. This seems tantamount to an instruction to take the lines being spun by the trust.

It is especially troubling that whilst on the one hand the Chief Medical Officer’s team assumed that the inquest would find unlawful killing:

CMO's team assumed unlawful killing Gosport inquests DOH000264

https://www.gosportpanel.independent.gov.uk/document-library/documents/DOH000264/

the PCT and others were at the same time spinning the opposite, and taking actions that were an abuse of power and could unduly influence witnesses to an inquest.

Indeed, there is concern about the Department of Health’s actions in 2006 in response to BBC coverage of GosportIs, which arises from document DOH013796,  disclosed by your department to the Gosport Independent panel:

https://www.gosportpanel.independent.gov.uk/document-library/documents/DOH013796/

In internal departmental correspondence, Phill Shields from the DH Ministerial Briefing Unit asked:

“Is the SHA on top of this?”

And he added:

“Push them for a comms strategy please.”

I wonder if the Department of Health and Social Care could advise on what steps it can take to ensure that such behaviour is discouraged in future and that NHS staff witnesses to inquests are not in any way pressured to spin a line.

Yours sincerely,

Dr Minh Alexander

Cc Tom Kark QC and Health and Social Care Committee for information in advance of the Committee hearing on 12 March about the Kark FPPR Review

Matt Hancock

Stephen Hammond

Donna Kinnair RCN Chief Executive and General Secretary

 

RELATED ITEMS

(1) Witness statements about concerns at Gosport War Memorial Hospital

(2) This is a summary of evidence that I have submitted to the Health and Social Care Committee for the Kark FPPR Review hearing on 12 March 2019:

Summary of evidence submitted 3 March 2019 to Health and Social Care Committee for the hearing 12.03.2019 on Kark FPPR Review

(3) From the Gosport Independent Panel inquiry archives – document FMC000051, the business card of a senior consultant from the firm Trimedia UK, which the NHS hired to help handle the news about Gosport:

Trimedia UK Julie Dean Senior Consultant business card from Gosport Independent Panel archives

Number of NHS whistleblowing cases: A disagreement with Tom Kark QC

Dr Minh Alexander NHS whistleblower and former consultant psychiatrist

 

 

Letter 1 March 2019 to Tom Kark QC who has undertaken a review of CQC Regulation 5, Fit and Proper Persons on behalf of the Department of Health and Social Care:

Dear Tom,

Number of NHS whistleblowing cases

I write to ask about a matter of fact concerning your report from the FPPR Review, which states that there are low levels of whistleblowing cases in the NHS.

I found much of your report very interesting but on this point I need to disagree.

The passage in question is on page 113 of the report:

“10.14 The relatively low levels of whistleblowing cases in the NHS suggests either that there is very good management practice in dealing with whistleblowing issues or that employees are, for some reason, reluctant to raise them. The NHS only received 39 whistleblowing cases about Foundation Trusts in 2013/2014, 28 in 2014/2015 and 60 in 2015/2016. Nationally, the figure for numbers of whistleblowing cases received by Employment Tribunals ranges between 1,395 and 2,754 (in the period between 2007/2008 and 2016/2017). Whilst the national figure for numbers of whistleblowing cases is not particularly high, the number of whistleblowing cases in the NHS is surprisingly low for such a large employer.”

For clarity, the numbers cited in the above, linked FOI disclosure related to whistleblowing disclosures made to Monitor by the workers of NHS Foundation Trusts, and not to claims made to the Employment Tribunal against Foundation Trusts.

Whilst Monitor received disclosures from a small number of whistleblowers, many more NHS staff whistleblew to the CQC.

The CQC’s submission to Robert Francis’ 2014 Freedom To Speak Up Review revealed that approximately nine thousand workers a year from regulated providers raised concerns with the CQC. This figure represents staff from health and social care.

A more recent FOI disclosure by the CQC revealed that, according to the CQC, there were a total of 1535 whistleblowing contacts to the CQC by workers from NHS trusts (Foundation and non-Foundation) over 2015/16 and 2016/17.

For the thousands of NHS staff who get to the stage of making an external disclosure to a regulator such as NHS Improvement or the CQC, there will be more who raised concerns internally, and who possibly gave up and or were silenced.

Some supporting evidence for this comes from a study by Greenwich University, sifting data from Public Concern at Work’s (now known as Protect) helpline data, ‘Whistleblowing: The Inside Story’. 

The study reported:

Within our sample of 1,000 cases, concerns were raised 1,514 times, 82% of which was internal, 15% external, and 3% to a union.

 The majority of whistleblowers (44%) raise a concern only once, and a further 39% will go on to raise a concern a second time.”

In terms of the number of whistleblowing Employment Tribunal claims against the NHS, ACAS kindly advised that it handled 324 whistleblowing claims from Health and Social Care in 2017/18. As you will see from the tables provided, this represents one of the highest numbers of cases compared to other sectors.

So in short NHS whistleblowing is widespread, but most likely under-reported for a range of reasons, and out of view. The above type of data has to be privately collated, when the government should actually have ensured active tracking and transparent publication.

The invisibility of NHS whistleblowers is to a degree a matter of design. Some are hidden by super-gags which the Department of Health and Social Care, NHS Improvement and CQC all continue to collude with, despite what they told you in evidence about being ‘uncomfortable’ about gagging.

Indeed, NHS Improvement vets NHS trusts’ applications for special severance payments and related settlements agreements, before they go to the Treasury for final approval.

Also, the NHS National Guardian has just jointly produced a guide with NHS Employers on settlement agreements, which still contains a template agreement with a super-gag.

The flat line graph below, generated from the just published annual NHS staff survey, which shows no change in the NHS workforce’s confidence that employers will act on concerns, confirms little has changed since the publication of the MidStaffs Public Inquiry.

NHS Staff Survey 2018 Five year trend on the question: “I am confident that my organisation would address my concern”

Screenshot 2019-03-01 at 03.25.20

 

I hope the whistleblowing case numbers provide some additional perspective in advance of your evidence session with the Health and Social Care Committee.

I also wonder if it is possible to amend the FPPR Review report or to issue an advisory postscript about the real level of NHS whistleblowing, based on the additional data sources.

With best wishes,

Minh

Dr Minh Alexander

cc Jane Russell Essex Court Chambers

Whistleblowing, The National Guardian and Defence Medical Services

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 27 February 2019

 

 

Summary: The NHS Freedom To Speak Up project defines waste. It has committed millions in public money across the NHS to an un-evidenced vanity project. Not content with that, the government is trying to spread and embed the dubious model. Once embedded, it will be a bulwark against real whistleblowing reform. The National Guardian expends much energy on glad-handing and self-promotion instead of the day job of actually protecting patients and whistleblowers. The Defence Medical Forces have fallen to the Speak Up charm offensive, and has now adopted the model. Disclosed documents are provided.

 

 

The NHS National Guardian has a small annual budget of one million pounds for protecting NHS trust whistleblowers. NHS England recently gave her office an additional bung for expanding into primary care as well: “NHS England will triple their contribution for my office”.

She does not make best use of this precious resource, and does not conduct enough whistleblowing case reviews. Too many whistleblowers are turned down on spurious grounds. For example:

The Greasy Freedom To Speak Up Review is Stuck. More Tales of Silence about Silence.

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

Even when Freedom To Speak Up Guardians repeatedly escalate case issues to her Office, this does not always result in a case review. For example, FOI data has shown that she has not reviewed a troubled NHS trust not long out of special measures, despite the local Speak Up Guardians escalating case issues to her on five occasions.

Whistleblowers whose cases are reviewed by her Office are not adequately protected. They are merely substrate for the production of reports. I have been contacted by several whistleblowers who have had concerns about their experiences of case review.

The National Guardian’s case reviews do not threaten employers or erring regulators. They defuse and reduce serious corruption and managerial misconduct to a bureaucratic paper chase.

NHS regulators are not taking the case review process seriously and cannot produce any evidence that real action has been taken. Poor leaders who are responsible for serious failures are allowed to stagger on.

The annual NHS Staff Survey was released yesterday. It showed that despite a massive and most distasteful PR push by the National Guardian’s Office last October, the wet and windy “Speak Up Month” just before data collection for the NHS staff survey, the dial has barely flickered on staff confidence in speaking up:

 

NHS STAFF SURVEY OVER THE PERIOD IN WHICH THE NATIONAL GUARDIAN’S OFFICE HAS BEEN ESTABLISHED:

YEAR NATIONAL AVERAGE SCORE ON “I WOULD FEEL SECURE RAISING CONCERNS ABOUT UNSAFE CLINICAL PRACTICE”

 

2016 70%
2017 70%
2018 70.5%

Source: NHS Annual Staff Survey reports

More on the NHS staff survey next month, when the full question level data is published.

 

Inversely related to the energy that the National Guardian has expended on her day job of protecting patients and whistleblowers, she has noticeably hit the selfie and self-promotion trail.

She established the embarrassing ‘Pan Sector Network’ early in her tenure. She has courted corporate whistleblower slayers:

Corporate schmoozing at the National Guardian’s Office: National Guardian’s Pan Sector Party Planning

`

The Ministry of Defence was an early invitee to the National Guardian’s Pan Sector Party:

Screenshot 2019-02-27 at 09.41.50

A reciprocal invitation was made, with the obligatory mutual admiration:

Screenshot 2019-02-27 at 09.42.07

Notably, the MoD has had terrible whistleblowing governance, and attracted savage criticism from even the very conservative Civil Service Commission, which investigates whistleblowing disclosures about breaches of the Civil Service Code.

In a case of suspected criminality over contracts handling at the MoD, the Civil Service Commission’s decision notice had this to say on the MoD’s repeated Code breaches:

 

 

Decision Notice: MoD March 2015, Ref. AP000122

–       Specialist police investigation by MoD CID into the concerns concluded that the complainant had raised his concerns reasonably, and that there was “flagrant disregard for competition which could possibly indicate criminality”.

–       MoD policy was incompatible with the Code, because prevented MoD staff from making public interest disclosures unless it concerned their area of work

–       There was “…a lack of appetite within the Department to either consider the concern against the framework of the Code or to take account of the evidence that their own internal investigation had uncovered” and a lack of objectivity in the Department’s handling of the concern – which was an additional Code breach.

–       “there is clear evidence of a culture which discourages dissent and does not take allegations of breaches the code seriously”

–        The Commission concluded that overall, the MoD’s behaviour in this matter was so poor that it went to “the heart of whether from the top to the bottom of the organisation there is an unwavering commitment to the values of integrity and honesty which are fundamental to the Civil Service.”

 

 

A tweet last month revealed that the National Guardian, had a day out with the Defence Medical Services (DMS). It also revealed that Freedom to Speak Up Guardians have now been established in the DMS.

It should be noted that the Armed Forces are not covered by the Public Interest Disclosure Act, but civilian personnel in the DMS are.

However, the Service Authorities have at least given an undertaking to: “honour the spirit of the Act in that they will recognise and adhere to the criteria for protected disclosures for military personnel and follow the prescribed procedures whether dealing with or making a qualifying disclosure.”

Doctors and other registered clinicians who are Armed Forces personnel also remain bound by the requirements of their professional codes to protect patients and raise concerns as needed as part of this. This seems a rough deal given that they do not have the same legal cover under whistleblowing law.

 

The DMS reminds such staff:

The GMC states that you should contact a regulatory body where you cannot raise a concern with a responsible person or body locally because you believe them to be part of the problem; or you have raised concerns through local channels but are not satisfied that the concern has been addressed seriously; or that there is an immediate serious risk to patients, and a regulator or external body has a responsibility to act or intervene. Regulated healthcare workers have professional responsibilities to raise concerns regarding patient safety to their regulator.”

 

 

An FOI enquiry to the DMS produced the following documents yesterday:

Defence Medical Services FOI reply letter 26.02.2019

Air Vice Marshal Alastair Reid letter to Henrietta Hughes 7.02.2019

Email between Henrietta Hughes and the Defence Medical Services November 2018

Whistleblowing policy ‘Raising concerns including by Defence Medical Services personnel’

The above whistleblowing policy document gives sparse information about the DMS Freedom To Speak Up Guardians. It merely signposts DMS staff to the woeful government propaganda material on the NHS Employers’ website:

 

Freedom To Speak Up Guardian 30.

 Freedom To Speak Up (FTSU) Guardians have a role to promote the profile of raising concerns in their organisation and provide confidential advice and support to staff in relation to concerns they have about patient safety or the way their concern is being handled. Further information on FTSU Guardians can be found at the following reference9

9 http://www.nhsemployers.org/your-workforce/retain-and-improve/raising-concerns-at-work-and-whistleblowing/freedom-to-speakup-guardian-hub Accessed 18 Mar 16

 

 

The DMS disclosed that it appointed two Freedom To Speak Up Guardians “in the last six months”, and that there are also FTSU “champions”.

According to the DMS, their Guardians may escalate concerns to:

One of the DMS FTSU Guardians works in Defence Primary Healthcare (DPHC) and reports to the DPHC Command Board. Both FTSU Guardians have direct access to the Medical Regulator within the Defence Safety Authority and can, within their remit, report concerns directly to Professional Bodies, the Care Quality Commission and the National Guardian’s Office.”

And wouldn’t you know it, but there is no ringfenced time for these Guardian roles.

Enough to make you wonder if this isn’t just more managerial tokenism.

Excellent empire building and nice selfies though.

Screenshot 2019-02-27 at 09.21.29

 

RELATED ITEMS:

Part of the evidence of the UK government’s resistance to reform of totally ineffective whistleblowing law – an explanatory memorandum by BEIS Minister Andrew Griffiths to the parliamentary European Scrutiny Committee last summer, pouring cold water on the new EU Whistleblowing Directive:

BEIS Explanatory Memorandum June 2018 – Advice to the parliamentary European Scrutiny Committee on not adopting the EU Whistleblowing Directive

The EU Directive proposes ludicrously unreasonable measures, such as ensuring the investigation of whistleblowers’ s concerns. Why would any self-serving club culture wish to adopt this?

Fakery such as the Freedom To Speak Up project is much more conducive to preserving the status quo.

Whistleblowers in Their Own Words: What’s wrong with UK whistleblowing law and how it needs to change

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

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

Whistleblowing in Whitehall: Civil Servants’ Complaints about Breaches of the Civil Service Code since 2014

Spinning death at Gosport: The Department of Health and the National Guardian

 

STFU not FTSU

 

 

 

 

 

 

 

 

An example of the investigation industry: Conflict Management Plus Limited (CMP Resolutions)

By Dr Minh Alexander NHS whistleblower and consultant psychiatrist 24 February 2019

 

Summary: Whistleblowers are always interested in private companies that employers may hire to undertake whistleblowing investigations. An example is CMP Resolutions, a company whose Business Development Manager wrote an article in the Health Service Journal on 21 February 2019 about how internal whistleblowing investigations come to “comfortable outcomes”. Some information about CMP Resolutions is collated here.

 

Introduction

Whistleblowers need a truly independent investigation mechanism when local investigation fails. There are examples in other jurisdictions of statutory whistleblowing bodies which have powers and which carry out this function.  Such a body is required in the UK to protect the public. It needs to have robust arrangements for parliamentary scrutiny, constant refreshment and safeguarding against capture. To achieve this, real legislative reform and replacement of the current  ineffective UK whistleblowing law.

Robert Francis fudged in his Freedom To Speak Up report and instead gave NHS whistleblowers:

  1. A powerless National Guardian’s Office which explicitly has no remit to investigate whistleblowers’ concerns
 

Page 169 of the report of the Freedom To Speak Up Review:

7.6.13 I want to emphasise that I am not proposing an office to take over the investigation of concerns. As I have already said, this needs to remain the responsibility of the local organisations.”

 

 

  1. An insincere assurance that there could still be ‘independent’ investigation of whistleblowers’ concerns if employers outsourced investigations.
 

Page 129 of the report of the Freedom To Speak Up Review:

Action 8.1 All NHS organisations should devise and implement systems which enable such investigations to be undertaken, where appropriate by external investigators, and have regard to the good practice suggested in this report.”

 

 

In relation to this, Robert Francis made a vague proposal that:

The trust has access to a panel of trained investigators, who can respond quickly and with the necessary level of expertise.”

Action on Francis’ Recommendation 8.1 was recorded in the annex of the Freedom To Speak Up Review report as an action for: “All orgs incl. providers”.

However, four years on, there is no evidence that the government and senior NHS officials have taken any action to put in place a panel of properly trained investigators. Neither have I heard Francis raise concerns about the failure to implement his recommendation or ensure a properly managed external investigation system for NHS whistleblowing.

Instead, NHS regulators have called in private companies like Deloitte to review governance in some high profile whistleblowing cases, such as at the Royal Wolverhampton NHS Trust.

They have also outsourced investigations to niche private investigators, many of whom are former NHS managers. An example of this is the investigation that NHS Improvement commissioned into an executive whistleblowing scandal at Wirral Teaching Hospital NHS Foundation Trust.

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

Investigations commissioned and paid for by employers can go badly wrong for whistleblowers. In the case of Hayley Dare West London Mental Health Trust whistleblower, her chief executive offered her an independent investigation into her concerns, but it turned out that he intended that this be carried out by Capsticks the trust’s solicitors:

Hayley Dare Capsticks investigator

In the above context of the NHS’ approach to whistleblowing investigations, I provide below some information about the company CMP Resolutions and the recent HSJ article by its Business Development Manager.

 

CMP Resolutions or Conflict Management Plus Limited, Companies House 3880628

On 21 February 2019 the Health Service Journal, whose editor said it was a privilege to “serve healthcare leaders”, published an article by Richard Peachey, the Head of Business Development at CMP Resolutions:

“In-house whistleblowing investigations rush to comfortable outcomes”

According to CMP Resolutions’ website, the company sells amongst other services, expert investigations into whistleblowing cases:

AExpert investigations

 

But Peachey’s HSJ article seems somewhat ambivalent about the value of whistleblowing:

We’re in a new age of speaking up, when taking on authority feels right and proper. Employees in all kinds of organisations now have the models, precedents and language they need for going public.

But in the singular NHS context of extreme public scrutiny and emotional pressures, encouraging more whistleblowing isn’t necessarily going to do anything for the working environment or stress levels. Whistleblowing is a dangerous weapon when it’s used for malicious purposes, as a means of escalating grievances against management. 

NHS employers quickly need to find a smart, grown-up balance between buttoned-up secrecy and a whistleblower’s charter. The difficulty of finding this balance may well be the reason why it’s four years since the “Freedom to Speak Up” review and yet the topic is more fraught than ever.”

The above comments do not frame whistleblowing in the public interest as a prosocial behaviour and an expression of fundamental democratic values and human rights to free speech. Instead, they imply that whistleblowing is a matter for bosses to manage, and they give prominence to the employer-centric narrative about ‘malicious’ whistleblowing in bad faith.

Is this the right approach in a safety-critical sector?

Who is Richard Peachey? According to his LinkedIn pages, he has had varied jobs. None of them obviously relate to the NHS or to whistleblowing.

There are also LinkedIn pages for other CMP Resolutions officers:

Katherine Graham CMP Resolutions Chair

Arran Heal Managing Director CMP Resolutions

Rebecca Foreman Director of Operations CMP Resolutions

Tim Kingsbury Head of Investigations CMP Resolutions

Rukshana Horwood Head of Management Training and Coaching CMP Resolutions

Patrick Moulsdale  Head of People Development and Mediation at CMP Resolutions

Liz McCaw Non Executive Director CMP Resolutions

Leanne Holt Head of Operations and Client Delivery CMP Resolutions

Tom Humphrey Finance Officer CMP Resolutions

There seems to be little link generally between CMP Resolution’s officers and the NHS.

Its Chair according to her LinkedIn page, was a publications manager at the Kings Fund for three years:

AKingsFund

Arran Heal, CMP Resolution’s Managing Director’s LinkedIn page states that he is a proven visionary who has worked for Coca-Cola and then set up a business selling drinks to hospitals:

AVisionary

Liz McCaw CMP Resolutions NED according to her LinkedIn page is a coach for the Faculty of Medical Leadership and Management:

AFMLM

Perhaps of greatest potential interest to whistleblowers is CMP Resolution’s Head of Investigations, Tim Kingsbury.

AKingsbury

According to his LinkedIn page, he served mainly in the Royal Navy:

ANavy

Overall, the background of CMP Resolutions’ officers is essentially corporate and administrative.

CMP Resolutions’ website describes the company as “the UK’s leading workplace investigation company”.

 CMP’s Chair’s LinkedIn page also states that the company is the UK’s foremost provider of dispute resolution services:

AForemost

According to papers filed at Companies House, this is the (unaudited) balance sheet for the company in the year ending 31 March 2017:

ABalance Sheet

 

These are publications by CMP Resolutions:

When Employees Speak Up

How the best employers create a clear air workspace

How the best managers always have good conversations. The CMP Guide to handling difficult conversations and defusing conflict

The content about whistleblowing in these reports is generic and broad.

According to CMP Resolutions’ website, the Department of Health and at least two NHS trusts (South East Coast Ambulance Services and Wrightington, Wigan and Leigh NHS Foundation Trust) have been clients:

AClients

ASECAMB

AWigan

I leave it with readers to make their own minds up about how organisations such as this would handle very complex and fraught NHS whistleblowing cases. For example, those of the CQC whistleblowers who raised concerns about their senior leadership team, or others.

UPDATE 25 FEBRUARY 2019

Underlining the problems with outsourcing governance reviews and whistleblowing investigations, and the control exerted by the purchasing organisations, the Health Service Journal today reported that NHS England has tried to bury an external review that it commissioned on governance issues at Sheffield CCG. This included alleged bullying, cover ups and whistleblowing at the “toxic” CCG.

“The review was carried out by a former Primary Care Trust chief executive Denise McLellan, who questioned 87 people.”

The CCG’s Medical Director Dr Zak McMurray has reportedly been on “special leave” for a year, after whistleblowing:

 

Crisis at top CCG amid claims of bullying and ‘toxic’ culture, by Annabelle Collins, 25 February 2019

“During a later public meeting on an unrelated topic, Dr McMurray, who was one of those who raised a concern, spoke out about plans to cut back on Procedures of Limited Clinical Value. Following this, he was put on so-called special leave in February 2018.

The CCG would neither confirm nor deny Dr McMurray’s absence on full pay.

But Dr McMurray told HSJ in a statement: “I can confirm that I have been on special leave for just over a year now. I wish to reassure my patients that my absence is not due to a disciplinary process and is not conduct or ability related. I am unable to comment further at this time.”

Key findings from the NHS England review into Sheffield CCG include:

·       Poor decision-making processes which resulted in frustration and poor behaviours by senior staff;

·       Disagreements between executive team members which were not addressed effectively or handled properly in line with NHS values;

·       Widespread dissatisfaction about how bullying and harassment cases were handled;

·       A leadership team which lacked a clear strategy, while stakeholders were not confident the executive team had the right skills to lead the CCG;

·       An ongoing investigation involving governing body members putting the organisation under strain and communication had been poor;

·       Stakeholders panels for senior appointments which felt their views were ignored without feedback; and

·       Internal career progression opportunities which were not fairly offered.

The review acknowledged Sheffield CCG, which was rated “good” by NHS England in 2018, has a number of strengths, with committed staff and plans to further transform services.

HSJ asked NHS England a number of questions about whether it was aware of the whistleblowing incidents, the concerns about the CCG and Dr McMurray’s “special leave” but it declined to provide a response.”

 

RELATED ITEMS:

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

Whistleblowers in Their Own Words: What’s wrong with UK whistleblowing law and how it needs to change

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

CQC’s Victimisation of Whistleblowers: Failure to Investigate Concerns

Whistleblowing in the NHS isn’t fixed yet, and this leaves patients exposed. An overview of unfinished policy business.

caged whistle

 

 

How are CQC inspectors supposed to assess learning from deaths? Disclosed internal guidance for CQC inspectors

Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 23 February 2019

 

 Summary: The Care Quality Commission has reluctantly disclosed internal guidance on how its inspectors should handle patient deaths and related matters. Links to the disclosed documents are provided below.

 

Brief background

The ongoing, patchy learning by the NHS from avoidable patient deaths is a festering governance sore.

After all the disasters and endless inquiries, too little progress has been made.

The victims of the unnatural deaths at Gosport War Memorial have still not seen justice and the government still fiercely resists prosecutions despite the damning conclusions of the Gosport Independent Panel last summer.

The key MidStaffs Public Inquiry recommendations such as safe staffing and robust whistleblower protection lie in ruins, whilst those responsible for the harm and who were criticised by the Inquiry continue to be recycled.

The stark Mazars’ findings about Southern Health NHS Foundation Trust’s serious negligence in failing to investigate hundreds of deaths have also been deftly derailed. Sham system responses have led nowhere.

But nevertheless, it can be useful to families and whistleblowers to know what the ground rules are, when trying to navigate the system.

To that end, I asked the Care Quality Commission (CQC) to disclose internal guidance for its inspectors on handling deaths, human rights issues and the management of ligature points.

CQC dragged its feet, then initially tried to brush the request off by referring me to its guidance for service providers.

After yet more email soft shoe shuffle from CQC, and over seven weeks after I asked for the information, CQC finally disclosed the following documents:

 

 

CQC FOI Disclosure 21 February 2019

CQC Learning from Deaths Monitoring and Inspection Tool – Long Guide (Interim Guidance draft 5 September 2017)

CQC Equalities and Human Rights guidance materials

How to manage statutory notifications under Regulation 17: Deaths of detained patients

Brief guide for inspection teams – Ligature points

Brief guide: substance misuse services – ligature risks

 

 

Screenshot 2019-02-23 at 06.35.42

 

RELATED ITEMS:

Who knew what, and when, at Mid Staffs? Philip Carter and Prof Brian Jarman BMJ 6 February 2013

Entering the labyrinth; a leder tale by @sarasiobhan mother of Connor Sparrowhawk who died at Southern Health NHS Foundation Trust

New website under construction by the family of Elsie Devine who died at Gosport: VictimsOfGosport.com see @ann_poppy  and @bee_devine

Witness statements about concerns at Gosport War Memorial Hospital

Covering up cover ups: CQC’s revisionism

CQC Deaths Review: All fur coat….

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 22 February 2019

Summary: This piece looks at what happens after the National Guardian has conducted an NHS whistleblowing case review. The answer so far is a long paper trail and much box ticking, but little of much substance.

 

The Department of Health and Social Care and Robert Francis have bought the establishment some more years of obfuscation and delay by proposing the Freedom To Speak Up Model of a completely powerless National Guardian, and local Speak Guardians employed by the organisations they are supposed to hold to account.

It is a blatant recipe for ineffectiveness.

Robert Francis’ excuse for this floppy offering was that the National Guardian would have borrowed power and authority from the system regulators, CQC and NHS Improvement, who fund and back her Office.

He suggested that the National Guardian could always ask regulators to make a “direction” if needed, as part of her case reviews, to bring regulated bodies to heel:

 

Freedom To Speak Up Review by Robert Francis, pages 167 and 168:

 

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

 

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

 

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

 

This may include: 

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

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

correction of any failure to investigate the concerns adequately

– correction of any non-compliance with good practice identified

 – appropriate recognition of the contribution of the worker who raised the concern to improving patient safety and quality of care 

– suggesting support and remedies for former employees including referral to the employment support scheme to get staff back to work referred to in 7.3 and Principle 12 

– act as a support for Freedom to Speak Up Guardians referred to under Principle 11 

– offer guidance on good practice about handling concerns 

– publish reports on the activities of the office, including any findings in relation to non-compliance with good practice, advice offered, and recommendations for action.”

 

 

This was predicated  on the assumption that:

  1. The National Guardian would make such requests,
  2. The system regulators would accede when the National Guardian asked them to make directions.

 

The National Guardian has now published reports on five completed reviews, since November 2017.

To test Robert Francis’ claims that the National Guardian would easily borrow powers from the system regulators, I asked NHS Improvement about the interaction between them:

 

FOI request to NHS Improvement 25 January 2019:

 

Please advise if the following information is centrally held and disclose it if disclosure is possible within the cost limits. If the total request exceeds the cost limits, please prioritise question (5): 

1. The number of occasions on which the National Guardian’s Office has alerted NHS Improvement to governance breaches by NHS trust

2. The number of occasions on which the National Guardian’s Office has alerted NHS Improvement specifically to whistleblowing governance breaches by NHS trusts

3. The number of occasions on which the National Guardian’s Office has requested that NHS Improvement takes regulatory action of any sort in relation to NHS trusts

4.Any actions that NHS Improvement has taken as a result of any of the case reviews undertaken so far by the National Guardian’s office.

5. Please advise of the number of occasions on which the National Guardian’s Office has requested that NHS Improvement makes a ‘direction’ regarding an NHS trust, as set out in the report of the Freedom To Speak Up Review by Robert Francis, pages 167 and 168”

 

 

This was the curious reply from NHS Improvement:

 

NHS Improvement FOI reply 21 February 2019:

 

“We will address each question in turn. 

Question 1 

Nil 

Question 2 

Nil 

Question 3 

Nil 

Question 4 

We have been involved in shaping and overseeing the implementation of improvement action plans for the five trusts that have had published case review reports. Up until now this has focused on the delivery of the action plan but we have begun to carry out trust visits which include a focus on measuring the over all impact of the National Guardian’s Office (NGO) case review and working out next steps in their improvement journey. 

Question 5

3”

 

 

NHS Improvement’s reply appears somewhat self-contradictory in that it both claims that the National Guardian has asked three times for a direction to be made, but it also claims that the National Guardian has not asked for any regulatory action to be taken. I have asked for further clarification.

But whatever the exact truth of the matter, all that NHS Improvement admits to doing is ‘shaping and overseeing’ trusts’ response to the National Guardian’s case reviews.

Judging from action plans/ progress reports so far by trusts, this does not seem to amount to much.

Southport and Ormskirk Hospital NHS Trust and Northern Lincolnshire and Goole NHS Foundation Trust were the first two trusts reviewed by the National Guardian. The deadline for action on case review recommendations is up for both trusts (the longest timeframe for delivery on recommendations was 12 months in each case).

Progress reports disclosed under FOI reveal a tokenistic, corporate, box ticking exercise with few meaningful measures.

Southport and Ormskirk Hospital NHS Trust National Guardian Case Review Action plan January 2019

Northern Lincolnshire and Goole NHS Foundation Trust National Guardian Case Review Action plan January 2019

As anticipated, the National Guardian’s process spins gold into straw. Racism, cover ups, managerial misconduct, bullying and a trust Chair’s extraordinary public attack on a whistleblower at Northern Lincolnshire and Goole are defused and transmuted into bland, colour-coded assurance schemes.

No mention of the personal redress for wronged whistleblowers, or patient casualties of cover ups, as originally set out in the Freedom To Speak Up Review. No mention of investigated or re-investigated concerns that were ignored or handled poorly.

And it appears from these documents that KPMG, with whom the National Guardian has had un-minuted meetings, has picked up a piece of work at Northern Lincolnshire and Goole NHS Foundation Trust on the back of National Guardian’s review:

Screenshot 2019-02-22 at 12.40.40

Also, Michael West of Kings Fund Thought Leadership fame, who spoke at the National Guardian’s glitzy conference in March 2018 , which an FOI request revealed cost a total of £40K,  seems to be in on the act at Northern Lincolnshire and Goole.

The trust Chair even tweeted that he was “fabulous”:

Screenshot 2019-02-22 at 11.36.02

 

Screenshot 2019-02-22 at 12.40.50

 

Lastly, Alder Hey Children’s NHS Foundation Trust revealed yesterday that a

….“past Department of Health official/current chair of a health Think Tank”

gave controversial former CQC Chair Jo Williams a reference when she was appointed to Alder Hey’s board.

We have yet to see who this “current chair of a health Think Tank” was, but taking in the whole picture, it is not surprising that little changes on the insular magic roundabout of senior NHS management and its supporters.

 The public should not have to depend on unreliable and reluctant governance scraps from a club that primarily protects itself. It needs genuine law reform to compel better practice in the public interest.

UPDATE 28 MARCH 2018

NHS Improvement advised it made an error in its above FOI response and that it had in fact received zero requests from the National Guardian to make a direction following the five case reviews completed so far.

Northern Lincolnshire and Goole NHS Foundation Trust advised that KPMG’s services were included in a contract.

The Trust also revealed (FOI 4574) that Michael West was paid a fee for speaking at the trust as part of its case review action plan, but it declined to share a copy of his presentation.

Michael West fee for Northern Lincolnshire and Goole

 

RELATED ITEMS

The extraordinary saga of Paula Vennells Post Office Group Chief Executive and soon-to-be Chair of Imperial Healthcare NHS Trust, the Horizon computer system fiasco and the Post Office’s sacking and prosecution of innocent Subpostmasters:

The ballad of Paula Vennells by @nickwallis 

More about the ongoing class action against the Post Office at https://www.postofficetrial.com/ and Twitter hashtag #PostOfficeTrial

 

The unfair sacking of Andrew Smith, NHS whistleblower and trade union representative. A heady cocktail of tainted ingredients. Or how CQC, NHS Improvement & Mid Essex Hospital Services NHS Trust worked together on FPPR.

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

Mission Drift by the National Guardian: Further, proposed dilution of NHS whistleblower case reviews

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

Whistleblowing, The National Guardian and Defence Medical Services

Spinning death at Gosport: The Department of Health and the National Guardian

 

STFU not FTSU

Whistleblowing in Whitehall: Civil Servants’ Complaints about Breaches of the Civil Service Code since 2014

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 19 February 2019

 

Summary: Under the Civil Service Code, civil servants are required to observe values of integrity, honesty, objectivity and impartiality. They are required to whistleblow if they see evidence that the Code has been breached. Examination of published data by the Civil Service Commission, which is the final arbiter on complaints under the Code, reveals a picture of escalating complaints by civil servants in recent years but no proportionate increase in investigations by the Commission.

A total of 143 Code complaints have been examined by the Commission since April 2014, eleven (7.7%) of which were investigated and four (2.7%) of which resulted in findings of Code breaches. The most complained about Department was the DWP. The Commission has examined 30 complaints by civil servants about the DWP since 2014.

The Commission’s investigative procedure is variable. It appears reluctant to make findings of whistleblower reprisal. Even in a most egregious case of whistleblowing about suspected criminality in contract handling at the MoD, the Commission only criticised the poor whistleblowing governance but refrained from a finding of reprisal. It appears that whistleblowers in the civil service may get a promise of ‘better governance jam tomorrow’ but limited recognition of personal injustice, which can have a chilling effect on culture.

The Commission should in fact be more proactive and recognise that failures to protect and withholding of support are often a form of whistleblower victimisation.

The overall picture is of a clunky, slow, paternalistic and only partially effective and responsive mechanism for whistleblowing at the heart of the government. The public deserves better and a vital starting point is to reform UK whistleblowing law, to compel better minimum standards of practice.

 

Whistleblowing and the Civil Service Code

The Public Accounts Committee looked at whistleblowing in 2014 and advised that government departments should significantly improve their approach to whistleblowing. The Committee held one follow up hearing, in 2015, at which it was evident that the Cabinet Office had not done a good job in leading change, and had held only a single implementation meeting.

Here I examine the published data on whistleblowing by civil servants to the Civil Service Commission since 2014.

Civil servants can appeal to the Commission if their Departments have not properly handled whistleblowing about breaches of the Civil Service Code.

The Code was introduced in 1996, and has been revised since. It requires that civil servants observe the following values:

Integrity

Honesty

Objectivity

Impartiality

It also requires that they should report breaches of the Code.

The Civil Service handbook, the Directory of civil service guidance,

gives this advice about whistleblowing on Code breaches or other matters covered by the Public Interest Disclosure Act:

 

 What should I do if I become aware of wrongdoing? 

6. The Civil Service Code advises that you should report any actions that are inconsistent with its provisions (paragraph 11). First, you should raise the issue with your line manager. If for any reason, you would find that difficult you should report the matter to the nominated appeals officer within your department.

7. If you are unhappy with the response you receive, you may report the matters to the Civil Service Commissioners (paragraph 12 of the Civil Service Code).

Exceptionally, the Civil Service Commissioners will consider accepting a complaint direct.

8. These procedures should also be used if you wish to make any other disclosure covered by the 1998 Act.”

The Civil Service Nominated Officer model has parallels with the NHS Freedom To Speak Up Guardians, who may have been fashioned in their likeness by the mandarins behind the 2014 Freedom To Speak Up Review.

Interestingly, the Directory of civil service guidance hesitates to give assurance that Civil Service whistleblowers will be protected:

 “Will I be protected if I blow the whistle before going through the internal procedures?

9. Only you can make this judgement, and in doing so you will need to consider the preceding paragraphs carefully. It is preferable and this is at the heart of the Public Interest Disclosure Act to raise the matter internally if appropriate and practical. It is after all in the interests of the organisation and its workforce that issues and concerns are aired in this way. If you are in any doubt, you should speak to your departmental nominated officer (paragraph 6). Your conversation will be treated in absolute confidence.”

 

This is a House of Commons report about the Code and its history:

The Civil Service Code, 18 March 2015, Ref. SN/PC/6699

This briefing notes that in 1995, the UK government rejected advice from the Committee for Standards in Public life to set transparency standards for the Civil Service Commission: 

“It rejected however recommendations from Nolan for the Civil Service Commissioner to give detailed information about appeals made before them; leaving the nature and extent of reporting up to the Commissioners to decide.”

 The Commission’s published decision notices only summarise cases.

 

Code Complaints to the Civil Service Commission since 2014

I could find no thematic review of Code complaints on the Civil Service Commission’s website, so I looked at their raw published data on complaints instead.

Since April 2014, the Civil Service Commission has completed examining 213 complaints about alleged breaches of the Civil Service Code.

Data published by the Commission has been collated into a spreadsheet which can be found here.

 

The most complained about Departments were as follows:

DEPARTMENT NUMBER OF ALL COMPLETED CODE COMPLAINTS SINCE 1 APRIL 2014 (INCLUDING BY NON CIVIL SERVANTS)
DWP 46
MoD 27
Home Office 17 (one about Home Office – UK Visas and Immigration)
MoJ 13 (3 about NOMS)
HMRC 10
CPS 7
Department for Business Energy and Industrial Strategy 7
Food Standards Agency 5
Department of Health 5 (three about Public Health England)
Cabinet Office 4
TOTAL 141

However, 69 of the 213 complaints were not made by a civil servant or even about the civil service eg. “No civil servants involved”. One complaint from a former civil servant was not accepted. Putting those cases aside, the Commission examined a total of 143 complaints from current civil servants.

 

Civil servants complained most about the following nine Departments, which accounted for about two thirds of all completed Code complaints by civil servants:

DEPARTMENT NUMBER OF COMPLETED CODE COMPLAINTS BY CIVIL SERVANTS SINCE APRIL 2014
DWP 30
MoD 20
Home Office 15
HMRC 8
CPS 7
DH including Public Health England 5
Cabinet Office 4
Food Standards Agency 4
Department for Business Energy and Industrial Strategy 3
TOTAL 96

 

There has been an increase in Code complaints since 2014:

FINANCIAL YEAR NUMBER OF COMPLETED CODE COMPLAINTS BY CIVIL SERVANTS
2014-15 10
2015-16 16
2016-17 36
2017-18 47
2018-19 Year to date 34
TOTAL 143

The Civil Service Commission has attributed the increase in Code complaints to a programme of awareness raising. There is a small improvement in Civil Service People Survey scores about awareness, which is set out later in this article.

Code complaints about the Department of Work and Pensions (DWP), the most complained about Department, rose over time:

YEAR NUMBER OF COMPLETED CODE COMPLAINTS BY CIVIL SERVANTS ABOUT THE DWP
2014-15 3
2015-16 3
2016-17 8
2017-18 9
2018-19 year to date 7
TOTAL 30

This is a spreadsheet of Code complaints by civil servants about the DWP from April 2014 to the present time: DWP Civil Service Code complaints

Although the DWP is a controversial department and has attracted the most Code complaints in recent years, its current overall compliance rating by the Civil Service Commission is “Fair” and “Improving”.

Despite the rise in the number of Code complaints, the number of complaints investigated has not increased proportionately:

YEAR NUMBER OF COMPLETED CODE COMPLAINTS RESULTING IN AN INVESTIGATION
2014-15 2 (MoD, HM Treasury)
2015-16 4 (Welsh Gov, DWP, Met Office, Home Office)
2016-17 3 (Food Standards Agency, Public Health England, DWP)
2017-18 2 (MoJ, Home Office)
2018-19 YTD 0
TOTAL 11

Eleven (7.7%) of the 143 complaints by civil servants were investigated and Code breaches were found in four of the cases. This gives a 2.7% (4 of 143) chance of Code complaints by civil servants succeeding.

The reasons given by the Commission for not investigating complaints included:

 

“OUTSIDE REMIT – HR Management matters”

“Cannot accept case as currently at Employment Tribunal”

“Case currently being investigated elsewhere”

“Cases satisfactorily resolved by Department”

“Matter resolved by Department”

“OUTSIDE REMIT – Commission does not accept anonymous complaints”

“OUTSIDE REMIT – Complaint not yet heard by Department”

“Unable to pursue case as complainant left Civil Service and did not provide contact details”

OUTSIDE REMIT – Security Services not covered by scope of Commission”

 

 

Forty three cases were rejected altogether on the basis that they were about HR management issues which in the Commission’s view did not comprise Code issues.

At least 78 of the 143 complaints by Civil Servants were referred back to their originating Departments.

The number of cases apparently ‘wrongly’ submitted to the Commission or sent back to Departments raises questions about whether Departmental whistleblowing arrangements are adequate, in terms of responses to staff concerns, and effective communication with staff about procedures. There is also a question of whether some staff escalate quickly to the Commission because of a lack of confidence in their Department to handle their cases fairly.

The Commission has discretion to investigate cases without waiting for Departments to investigate first. It is not clear exactly how often it exercises this discretion, but it seems likely from all the information available that this is rarely done.

In the cases which were accepted for investigation, obfuscation and delay by Departments meant that some cases took an excessively long time to come before the Commission. For example, a serious case of possible criminality in handling of contracts in the MoD  began with disclosures in 2008 but was not investigated by the Commission until 2014.  An earlier appeal to the Commission in 2012 did not result in investigation. The case was sent back to the MoD, and subsequently dragged on for another two years before the Commission investigated.

The Commission gives the following account of its activities in handling Code complaints in its annual reports:

YEAR ANNUAL REPORT COMMENTS ABOUT CODE COMPLAINTS
2014-15

 

During 2014-15, the Commission received 20 new cases (19 in 2013-14). It also completed its investigation into one further case received in February 2014. Most of these 20 cases (16, or 80%) were outwith the Commission’s remit. In some of these, they were out of remit because they dealt with HR issues: HR issues are explicitly excluded from the Code. In others, they were out of remit because they were made by individuals who were not civil servants. Our legal powers only allow us to investigate cases brought by civil servants; there are other bodies – for example the Parliamentary and Health Service Ombudsman – who are able to look at complaints of maladministration brought by members of the public. This is a similar proportion of ‘out of scope’ cases compared with previous years (71% in 2013-14).”

Of the four remaining cases, two remain under investigation at the end of the reporting period; in a third case we are still assessing whether the complaint is within our remit. The fourth case was investigated during 2014-15, details below. The outstanding case from 2013-14 related to the way certain contracts had been procured by the MOD, and whether the process had breached either EU procurement regulations or internal MOD guidance on procurement. The Commission upheld the complaint and concluded that the Code had been contravened in a number of ways: in the initial failure to follow internal procurement policies correctly; in the Department’s failure to consider the complaint in the context of the Code; in the Department’s treatment of the complainant; and in the inadequacy of the Department’s guidance on how to handle Code or whistle-blowing complaints. The Commission made recommendations to the Ministry of Defence including updating and correcting their whistle-blowing and Code complaints procedures, taking steps actively to promote the Civil Service Code and reporting back to the Commission in a year’s time on the progress it has made in embedding a culture that has at its heart the Civil Service values.

The second case adjudicated on during 2014-15 concerned advice provided to Treasury Ministers on the implementation of a new policy being proposed in the 2011 Budget. The complainant argued that a senior official in the Department had breached the Code requirements to act with honesty and objectivity by not presenting a particular policy as a viable option. The Commission did not uphold the complaint as, having considered the evidence, the panel considered that the issue amounted to a difference of views between officials and that the senior official’s view was consistent with the majority view in the Department. They were therefore justified in presenting the advice to Ministers in the way they did.”

 

2015-16

 

During 2015-16, the Commission received 21 new cases (20 in 2014-15), in addition to the three that were still underway at the time of the last annual report. Of these 21 cases nine, or 43%, were outwith the Commission’s remit. This is a smaller proportion of ‘out of scope’ cases compared with previous years (80% in 2014-15). Three of these nine were outside our remit because they dealt with Human Resource issues: HR issues are explicitly excluded from the Code because there are alternative avenues for such decision appeals. The remaining six were outside our remit because they were made by individuals who were not civil servants. Our legal powers only allow us to investigate cases brought by civil servants; there are other bodies – for example the Parliamentary and Health Services Ombudsman – who are able to look at complaints of maladministration brought by members of the public. A further eight cases were referred back to the relevant Department, usually because the concerns had not yet been properly investigated under the Code by the Department concerned – a condition of the Commission accepting a case for investigation. We concluded investigations into four cases this year, including three that were originally received in 2014-15 but which remained under investigation at the time of our last annual report. The outcome of all of these investigations is published on our website and summarised below.”

 

2016-17

 

 

“During 2016-17, the Commission received 47 new cases (21 in 2015-16), in addition to the three that were still underway at the time of the last annual report. This large increase on the previous year was mainly due to standardising how we record and report incoming cases Of these 47 cases, fourteen were outwith the Commission’s remit (9 in 2015-16). Three of these fourteen were outside our remit because they dealt with Human Resource issues: HR issues are explicitly excluded from the Code because there are alternative avenues for such decision appeals. The remaining eleven cases were outside our remit because they were made by individuals who were not civil servants. Our legal powers only allow us to investigate cases brought by civil servants; there are other bodies – for example the Parliamentary and Health Services Ombudsman – who are able to look at complaints of maladministration brought by members of the public. A further twenty-seven cases were referred back to the relevant Department (8 in 2015-16), usually because the concerns had not yet been properly investigated under the Code by the Department concerned – a condition of the Commission accepting a case for investigation. One case concerned serious allegations of fraud against the Department concerned and was passed to the Cabinet Office fraud investigation team. One case that was being considered at the time of the last annual report was referred to the National Audit Office, as a body more suited to consider the matter. Five new cases were accepted for investigation on appeal. Two of those new cases have now concluded. In total we concluded investigations into four cases this year, including two that were originally received in 2015-16 but which remained under investigation at the time of the last annual report.”

 

2017-18

 

“During 2017-18, the Commission accepted three new cases for investigation on appeal. Investigation into one of those new cases has been suspended while the complainant is at Employment Tribunal. In another case, the Commission had to halt its investigation when it was discovered that the case had been investigated by the Department concerned, and the complainant’s concerns upheld. The other case remains under investigation at the end of the reporting period. There were two cases accepted on appeal in 2016-17 still being investigated at the start of this reporting year, which have now concluded. In one case no breach of the Code was found. In the other resolution was achieved via mediation with the complainant and Department concerned without a full Commission investigation being necessary.”
2018-19 YTD No report yet

 

The annual Civil Service People Survey shows the following pattern of staff awareness of and confidence in whistleblowing procedures. The latest survey received 302,170 responses from civil servants, which represents a response rate of 66.4%. The figures show slight improvement in recent years. But it is not guaranteed that such slight changes in staff perception will ensure that the most serious whistleblowing cases will be handled properly. Indeed, less than half of civil servants who contributed to the survey felt that it was safe to challenge the way things are done in their organisation:

YEAR Question B46. “I think it is safe to challenge the way things are done in [my organisation]”

 

Percentage of staff who agreed

Question D02. “Are you aware of how to raise a concern under the Civil Service Code?”

 

Percentage of staff who agreed

Question D03. “Are you confident that if you raise a concern under the Civil Service Code in [your organisation] it would be investigated properly?”

 

Percentage of staff who agreed

 

2014 41% 64% 69%
2015 41% 66% 68%
2016 43% 67% 67%
2017 46% 68% 70%
2018 47% 67% 71%

 

Eleven Code complaints investigated by the Civil Service Commission since 2014

The links to the eleven cases that were investigated by the Civil Service Commission and brief case summaries are set out in the appendix.

The Commission’s approach to investigation is variable and in some cases consisted primarily of reviewing papers. In other cases, parties are interviewed.

The Commission found code breaches in four cases, relating to the MOD, Met Office, Food Standards Agency and Public Health England. Whilst the Commission found no Code breach in a fifth case regarding the DWP, it noted that a Code breach had been found in the same case during a previous Commission investigation.

The upheld MoD case of non-compliance with proper tendering of contracts stands out in its gravity and the severity of the Commission’s criticism. The MoD and the NHS National Guardian’s Office have of course, been cosying up as part of the National Guardian’s ‘Pan Sector Network’.

In addition to the delays in the system response to Code complaints, the Commission also seems hesitant to make findings of whistleblower reprisal, even in the MoD case that it criticised so severely. The Commission found Code breaches in terms of failure by Departments to respond properly to concerns about reprisal, but it side stepped whether reprisal actually took place in these cases. The Commission should in fact be more proactive and recognise that failures to protect and withholding of support are often a form of victimisation.

The overall impression is of a clunky, slow, paternalistic and only partially effective and responsive mechanism for whistleblowing at the heart of the government. The public deserves better and a vital starting point is to reform UK whistleblowing law.

APPENDIX: THE 11 CIVIL SERVICE CODE COMPLAINTS THAT WERE INVESTIGATED BY THE CIVIL SERVICE COMMISSION:

 

 

Decision Notice: HM Treasury October 2014, Ref.AP000113

“The complainant argues that a senior official in HM Treasury breached the Civil Service Code requirements to act with honesty and objectivity by not presenting implementation of the employment allowance in 2012-13 as a viable option to Ministers.”

Not upheld.

Decision Notice: MoD March 2015, Ref. AP000122

“The complainant alleged that MoD commercial staff had routinely let contracts without competition, in contravention of procurement law and internal guidance, and that significant amounts of money could be wasted as a result. There was a subsidiary allegation that staff who challenged this were treated less favourably as a result.”

The Civil Service Commission indicated that it neither had the resources, nor did it consider It necessary, to launch a full scale investigation. The Commission noted:

–       The complainant had been obstructed by MoD managers in his attempts to raise concerns

–       Specialist police investigation by MoD CID concluded that the complainant had raised his concerns reasonably, and that there was “flagrant disregard for competition which could possibly indicate criminality”.

–       MoD policy was incompatible with the Code, because prevented MoD staff from making public interest disclosures unless it concerned their area of work

–       “…a lack of appetite within the Department to either consider the concern against the framework of the Code or to take account of the evidence that their own internal investigation had uncovered” and a lack of objectivity in the Department’s handling of the concern – which was an additional Code breach.

–       The complainant reported being moved around every time he raised concerns, and that the MoD failed to establish whether this represented reprisal. However, the Commission held that it was “unable” to reach a view on whether the complainant was or was not penalised for whistleblowing.

–       there is clear evidence of a culture which discourages dissent and does not take allegations of breaches the code seriously”

The Commission concluded that overall, the MoD’s behaviour in this matter was so poor that it went to “the heart of whether from the top to the bottom of the organisation there is an unwavering commitment to the values of integrity and honesty which are fundamental to the Civil Service.”

Decision notice: DWP May 2015. Ref 90.

“The complainant says that DMs [decision makers] were asked to follow a reassessment process contrary to DWP policy and guidance, and to sign false statements when making decisions on these cases.”

The initial investigation by DWP fell short of best practice. Originally the complainant was told that he would not be informed of the outcome, as it would be confidential. Finally he was given a three line statement that said that as it was an established and agreed process at the time and in any event was no longer being done that way, there would be no action. There was no reference to the Civil Service Code or the possibility of referring complaints to the Civil Service Commission.”

A further investigation took place by the DWP after intervention by the Civil Service Commission, and upheld a breach of the code and the fact that the DWP worker had been asked to sign a false statement.

The worker remained dissatisfied and referred the matter back to the Commission, who concluded: “DWP has demonstrated that it has apologised and has tried to provide an explanation. In this DWP has acted in an appropriate manner, though the Commission recognises that the complainant remains dissatisfied. The Commission does not believe that it is reasonable to expect personal apologies from three managers who were following the instructions they had been given”

 

Decision Notice: Home Office June 2015, Ref.056

“The complainant argues that senior officials in Border Force breached the Civil Service Code requirements to act with honesty and objectivity by making statements that were untrue and not supported by the facts.” Not upheld.

 

Decision Notice: Welsh Government February 2016, Ref. 132

“The complainant (referred to as Mr X in the remainder of this document) believed that CAFCASS Cymru should have disclosed to the Family Court the fact that it had concerns about a report he prepared for legal proceedings concerning children.” Not upheld.

 

Decision Notice: DWP November 2016 Ref.331

“The complaint was submitted by a member of staff working at a DWP office and concerned allegations of bullying and harassment, manipulation of office performance   statistics and breaches of data  protection  by a named individual, all of which, he argued, amounted to breaches of  the Civil Service Code.”

The Commission accepted the complaint about manipulation of data but did not uphold it: “the Department’s investigation of  the complainant’s concerns was   proper and thorough and the Commission was satisfied  that all possible steps had been taken to address   the concerns raised.”

Decision Notice: Met Office November 2016, Ref.62

“The complainant made an allegation of financial irregularities in relation to an item shown on the organisational finance reports and an attempt by her line manager to cover this up.”

“This is an unusual case as the Met Office’s internal audit team has already concluded there has been a breach of the Civil Service Code. However, the Department’s investigation took place after the complainant had been dismissed from her post. She argues that her raising these concerns contributed to the decision to dismiss her.”

The Commission noted that the Met Office’s internal audit team did not substantiate fraud but concluded that “…comments made by the complainant’s manager were contrary to the standards and behaviours required by the Civil Service Code, a qualified finance manager and a Met Office employee.”

The Commission found that the Met Office breached the Code in an initial failure to investigate the Code complaint and failure to protect the complainant from reprisal.

The Commission declined to find on whether the complainant suffered reprisal through dismissal because her Employment Tribunal claim was not pursued (failure to pay fees): “In the absence of an authoritative judgment by the Employment Tribunal, the Panel noted that it saw no evidence to suggest that raising her concern was the primary reason for the complainant’s dismissal and concluded that this did notconstitute a breach of the Code.”

Decision Notice: Food Standards Agency January 2017, Ref.229

“The complaint was submitted by a Meat Hygiene Inspector working at the Food Standards Agency  (FSA) concerning the way in which a whistleblowing disclosure he raised with the FSA was handled, its investigation  and outcome. The  disclosure  concerned a contractor (Person A) working for the FSA, who the complainant believed was  falsifying official records in order to cover  up poor food hygiene practice within a food business operator premises.”

The Commission concluded that there had been misrecording about faecal contamination of carcasses, and that the FSA had breached the Code by not following its own whistleblowing procedure and not addressing concerns soon enough, with the effect that:

“The key    aspect, which is  the malpractice  concerning contamination    recording,  continued  for a  longer period therefore than would  otherwise  have been the case.”

 

Decision Notice: Public Health England February 2017, Ref.135

“The complaint  was   submitted  by a member of staff working at Public Health England (PHE) and concerned allegations that relate to misuse of safety procedures required by the Genetically-Modified Organisms (Contained Use) Regulations 2014 (the Regulations), allegations of bullying and harassment and an allegation that an investigation by PHE into the complainant’s concerns  was  not   carried  out properly.” 

The commission concluded that PHE’s handling of the concerns breached the Code: The panel has concluded that the delay was a breach of the requirements of paragraph 16 of the Code, a failure to investigate the concerns when they were first raised and investigate them effectively.”

The complainant was temporarily barred from his place of work after raising concerns, but the Commission rejected the contention that this was harassment:

The panel considered the complainant’s allegation that his restriction to a certain laboratory had been restricted as part of a campaign of harassment. PHE, in a letter to the complainant gave the reasons for his restriction as taking into consideration the levels of stress that the complainant had been experiencing, this was not conducive to the complainant continuing to work in a higher containment laboratory. PHE agreed with the complainant that the restriction would be temporary and one month later he was reinstated.”

Decision Notice: MoJ NOMS April 2017, Ref.345

“This appeal under the Civil Service Code is from a Prison Officer working at HMP Springhill, concerning the conduct of a number of investigations, and a subsequent external review of those investigations, into the removal of keys from the prison premises. The complainant believes that in the course of the investigations, junior members of staff were discriminated against, that more senior staff involved in the investigations colluded with each other, that important information and key witnesses were ignored when conducting the  investigation and that there was a conflict of interest in the way that the external review was handled.”

“During the investigations into the removal of the keys, the investigating managers did not interview and take witness statements from the custodial managers who were on duty at the time and this was deliberate to protect them from disciplinary action and that the custodial managers were content to be excluded from the investigation. This allowed the operational support staff (who were responsible for the removal of the keys) to take sole responsibility for the security breaches.”

The Commission agreed that the complainant’s concerns were valid but found no Code breach: “…the complainant was justified in raising his concerns that it was unfair that Operational Support Grade staff bore full responsibility for the security breaches and Custodial Managers escaped any form of disciplinary sanction. However, there was insufficient evidence to support the view that this was as a result of collusion or unethical behavior and so a breach of the Civil Service Code was not found.”

The Commission also considered that NOMS’ whistleblowing procedures were inadequate: “That NOMS do not have adequate arrangements in place for members of staff to raise concerns under the Civil Service Code and the Department’s published guidance on raising concerns is not fully compliant with the requirements of the Code.”

 

Decision Notice: Home Office October 2017, Ref.376

“This appeal under the Civil Service Code is from a former employee of the Department of Health, about the terms of the announcement, on 17 July 2013, of the Government’s decision following a consultation led by the Home Office

on a proposed level of alcohol minimum unit price (MUP). The complainant asserts that unprofessional and unethical methods were used by Home Office special advisers (and perhaps by officials acting under their instruction), to

alter the terms of the announcement at a late stage. This, he says, was in breach of cross-Government clearance and at odds with the findings of  scientific research commissioned by the Government and may have misled Ministers so that they inadvertently make an unfortunate misstatement.” 

The Commission noted: Although the complainant states that he was told at the time in a telephone conversation with Home Office officials that the late changes were as a result of intervention by special advisers, there is no written evidence or other evidence in support of this.”

The Commission did not uphold the complaint or make any recommendations, but it did note an initial failure by the DH to handle the Code complaint appropriately: The Complainant originally raised his concerns with DH senior manager Person A, requesting that they be taken up and raised with Home Office. His request was declined, despite the fact that he raised an official whistleblowing complaint that was fully compliant with DH whistleblowing procedures and he requested an investigation under the Civil Service Code.”