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

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 19 February 2021

Summary: Dr Ambreen Malik a consultant psychiatrist employed by the private provider Cygnet Health Care, has been found on 1 February 2021 by the Employment Tribunal to have suffered multiple whistleblower detriments and unfair dismissal over a baseless allegation of gross misconduct. She had insisted on telling a coroner’s inquest of the full facts about a Cygnet inpatient death, in which staff failed to search a patient after a visit, but then discovered what appeared to be an illicit drug in his hospital room after he died. The Employment Tribunal criticised several Cygnet managers for their part in reprisal against Dr Malik as a whistleblower, including several directors. The ET determined that the CEO, the director of human resources, the then medical director and the regional operations director (now listed as Managing Director, Healthcare Division North and a board member), had variously acted in “bad faith” and/or were “less than honest” or not truthful in the prosecution of a case against Dr Malik or were untruthful in evidence to the ET. The ET was critical of Cygnet’s referral of Dr Malik to the General Medical Council, which it determined was a detriment for whistleblowing. The ET concluded that Cygnet managers had seized an opportunity to dismiss Dr Malik after her whistleblowing:“It is clear that this was however the general background to the respondent’s senior managers disliking her, and later seizing an opportunity to dismiss her.” But puzzlingly, the ET stopped short of finding that Dr Malik was dismissed because of her whistleblowing. The case is yet more evidence in support of UK whistleblowing law reform.

On 31 December 2019 the Care Quality Commission rated the unit where Dr Malik worked, Cygnet Fountains Blackburn, as ‘Outstanding’ overall and outstandingly well led. This is despite the CQC also finding from a specific well led review undertaken in July/August 2019 that there were leadership failures at Cygnet.

NHS England commissions specialist  mental health services such as those provided by Cygnet. There are serious questions about NHS England’s performance as a commissioner, especially given that commissioning failures were previously identified by an independent investigation of a homicide of a patient by a fellow patient on a Cygnet unit.

Cygnet was the provider operating Whorlton Hall and Newbus Grange care facilities, when patients were abused in 2019.

Background

Whistleblower mistreatment is a problem across all sectors, but perhaps is particularly likely to occur in profit driven care environments.

The full extent of the whistleblowing governance problems in private healthcare is hidden by ruthless suppression and a fearful workforce.

These problems are likely to affect the future health landscape more as the government seizes greater control of the NHS, and looks to be preparing for de-regulation.

Cygnet is a UK based company, providing private mental health services, that  since 2014 has been owned by the US private health giant Universal Health Services.

Cygnet is a very large provider of mental health and learning disability services, with over 113 sites in England, Scotland and Wales.

The CEO of Universal Health Services reportedly “earned £39.5 million in 2016” and Tony Romero the CEO of Cygnet reportedly earned £625,000 in 2019.

Cygnet has been mired in scandals, regarding care failings, avoidable deaths, patient abuse and excessive executive pay.

Some of the Cygnet scandals are listed below:

Cygnet Bierly, Bradford “Inquest due after woman strangled to death by fellow patient atsecure psychiatric unit. Linda Goswell was suffocated and the hearing will look at a series of damning failures”  
Cygnet Yew Trees hospital “Staff abused women at learning disability unit, finds CQC”  
Cygnet Appletree “Women at risk of harm in mental health hospital”  
Cygnet Acer clinic “Sixth Cygnet-run facility placed in ‘special measures’ by CQC”   Provider has 10th hospital rated ‘inadequate’ in under two years  
Cygnet hospital Colchester “Cygnet Hospital still inadequate according to CQC”  
Cygnet Hospital Coventry ‘Inadequate’ private mental health hospital closes to adults to focus on children’s treatment”  
Cygnet Woodside in special measures over ‘patient safety risks’.  
Cygnet Woodside “Two arrests at mental health hospital in Bradford following allegations of assault” “The members of staff had been “immediately suspended”  
Cygnet Clifton “Nottingham hospital placed in special measures as staff ‘did not always provide safe care'”  
Cygnet Kew Stoke: Failures in care for man who took his life at private mental health unit  
Cygnet Hospital Woking “Damning inspection report reveals serious self-harm and other failings at Woking mental health hospital”  
Cygnet Woking “‘Vindictive’ hospital staff ‘taunted’ young psychiatric patients”  
Cygnet Chesterholme and Oaklands ‘Inadequate’ hospital in Hexham closes after Care Quality Commission criticism  
Cygnet CAMHS “A Chain Of Private Psychiatric Hospitals Has Been Accused Of Failing Vulnerable Young Patients”  
Cygnet Maidstone “Investigation launched into Maidstone Cygnet Hospital psychiatric ward after patient assaults”  
Cygnet Derby “Derby hospital criticised over death of ‘severely anorexic’ woman”  
Cygnet Thors Park Thors Park “slammed over safety”  
Cygnet Stevenage “Stevenage nurse sexually harassed colleague while mental health patient slept”   Cygnet Ealing “Staff caught falling asleep on duty at Ealing mental health hospital”  
Cygnet Godden Green ” Hospital issued with two warning notices after CQC finds ‘deep-seated cultural issues’”    

Importantly, Cygnet owns Whorlton Hall and Newbus Grange. Patients were abused at both facilities under Cygnet’s ownership. In May 2019 BBC Panorama exposed serious abuse of vulnerable patients at Whorlton Hall. This led to the NMC issuing interim suspension orders against three members of Whorlton Hall nursing staff, arrests and a police investigation.

Alongside this, a worker at Newbus Grange was caught assaulting residents from March 2019 onwards, and eventually received a prison sentence:

‘Sadistic bully’ from Darlington assaulted Newbus Grange residents

On 28 February 2019 the Care Quality Commission dubiously rated Newbus Grange as ‘Outstanding’:

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

Eight months later on 24 October 2019, CQC had drastically downgraded the rating to ‘Inadequate’.

CQC were forced to undertake a review of Cygnet’s leadership in response to the multiple care scandals, much as they had been forced to review the provider Castlebeck after the 2011 Winterbourne View scandal. The CQC review of Cygnet’s leadership, undertaken in July/August 2019 but not published until January 2020, concluded there were problems with accountability:

“Governance structures and processes were not effective in supporting good quality and sustainable services… A clear line of accountability from the “ward to board” could not be established across all of Cygnet Health Care’s locations. Governance systems and processes had not prevented or identified significant issues within locations to allow effective intervention by the executive team.”

“Governance systems and processes were not effective in maintaining sustainable and high-quality care. The systems and processes in place had not prevented or identified significant issues in locations which have resulted in breaches of regulation and hospitals being placed into special measures due to inadequate ratings.”

“Not all the required checks had been carried out to ensure that directors and members of the executive board were “fit and proper”.

But incongruously, CQC glossed over Cygnet’s suppression of staff concerns and praised its culture:

“A culture of openness was encouraged by leaders and embedded within policy. Most staff knew what should be reported and felt able to do so.”

And despite the slew of scandals, many Cygnet facilities are currently rated ‘Good’ or ‘Outstanding’ by CQC.

One of these ‘Outstanding’ psychiatric facilities, Cygnet Fountains in Blackburn Lancashire, has been found guilty by an Employment Tribunal, through a judgment issued on 1 February 2021, of serious whistleblower reprisal and the unfair dismissal of a whistleblowing doctor.

Cygnet’s CEO, the then medical director (now reportedly retired), Human Resources Director and the then regional operations director (now managing director, Healthcare Division North) were criticised for malpractice and reprisal.

The ET remarked of Cygnet’s CEO: “We found Dr Romero’s actions to be less than honest.”

The CEO and human resources director were criticised for bad faith. The ET found that the medical director made an “untrue” referral of the whistleblower to the General Medical Council. It also found that the regional operations director and other Cygnet staff were untruthful in their evidence to an internal investigation. The ET rejected some of the evidence given by the regional operations director during proceedings:

“101. We do not find that Mr Ruffley’s evidence with regard to asserting that a legal opinion be sought was actually said to the claimant at the time. We have found this to be a back-covering comment inserted with hindsight.”

Other whistleblowers have raised concerns about Cygnet’s care standards. For example, in 2019, it emerged from an inquest that Taffy Mandizha, ward manager at Cygnet Coventry had repeatedly raised concerns about safe staffing. This included a concern raised a week before Claire Greaves, a detained inpatient took her life:

“…emailed managers a week before Ms Greaves’ death saying he was “really concerned” about staffing levels which he, “together with the entire staff team”, believed to be “very unsafe”.”

Poor governance by private providers such as Cygnet is especially important because they provide specialist locked facilities for patients with very special needs. These special needs are largely no longer catered for by the NHS. That is to say, private providers look after particularly vulnerable patients, isolated by detention and usually located out of area and far away from their families.

The whistleblower case of Dr Ambreen Malik

I will only summarise this complex case broadly. The full Employment Tribunal judgment about the facts of the case can be found here:

Dr Ambreen Malik v Cygnet Health Case No. 2403141/2018

Dr Ambreen Malik was a consultant psychiatrist employed at Cygnet Fountains hospital, in Blackburn Lancashire. She attracted the wrath of Cygnet management because she refused to look the other way over a failure of risk management by Cygnet.

In 2015, a patient died the day after receiving visitors. He was not searched by staff after the visit. After his death, a foil wrap of what appeared to be an illicit substance was found in his room. Dr Malik informed the medical director and the regional operations manager of the issue. She became increasingly concerned that the organisation was covering up the matter.

When she sought advice from Cygnet’s CEO ( who trained in psychiatry), he responded in a manner which she found threatening:

“43. The claimant then, on the same day, attempted to contact her line manager, Dr Leslie Burton, to raise her concerns. He was on leave and unavailable, as was the person who covered for him. She then made a disclosure by email to the Assistant Medical Director, Dr Bari, and to the CEO, Dr Tony Romero. Dr Romero’s reply the following day by email was to start with, “Are you telling me you will go to the police?” and ended with, “Do you know the implications of what you are saying?”. The claimant felt intimidated and bullied.”

An internal investigation was set up by Cygnet, which excluded Dr Malik and failed to involve the police or the family. The ET noted that Cygnet’s regional operations manager misled Dr Malik on these issues:

“44. Dr Romero did, however, set up an enquiry panel and 20 staff members were interviewed. The claimant was not one of them, nor were the police contacted, nor the deceased’s family. In spite of this Mr Ruffley advised the claimant that staff on duty, police and the deceased’s relatives had been interviewed, and no-one corroborated her observations. On three occasions the claimant was asked to apologise to members of staff. She refused because she knew what she had seen.”

Cygnet’s CEO later advised Dr Malik not to make her life “complicated”, with regards to her evidence to the coroner’s inquest:

“45. In March 2016 the claimant was called to attend the coroner’s inquest into the patient’s death. She had previously discussed the evidence that she would be giving to the coroner with Dr Romero, and asked for advice on how to proceed over the drugs found (as she believed it). His reply was that she should “do not make your life complicated” (bundle A pages 345-346).

Dr Malik was advised by Cygnet’s solicitor not to mention the discovery of drugs to the coroner, but she stood her ground and gave evidence about the discovery:

“46. The day before the inquest on 8 March 2016 the claimant met with Mr Parsons, a solicitor, at a briefing arranged for staff members due to give evidence the following day. The claimant asked him when and how to mention her discovery of the drugs. Mr Parsons indicated that it was not relevant to the patient’s death (bundle A pages 357-360). The claimant was left believing that the respondent was trying to cover up the discovery of drugs.

47. Prior to the start of the inquest on 9 March 2016 Mr Parsons and Ms Ngaaseke had a conversation with the claimant in which Mr Parsons advised the claimant that if she mentioned the discovery it would affect her credibility and that she must have mis-remembered the event. He went on to indicate that if she told the court about it, it would affect Mr Parsons’ credibility. The claimant approached the coroner’s clerk to ensure the coroner was asked to raise this issue with her. When asked about it by the coroner she narrated the sequence of events and her observations, including explaining that the subsequent internal enquiry did not corroborate her claim.”

Twelve days after giving the above evidence to the coroner, Dr Malik was suspended by the regional operations director on grounds of loss of trust. One of the accusations against her was that her evidence reportedly triggered a police investigation against Cygnet, and led the coroner to threaten Cygnet’s solicitor with a regulatory referral:

“49. On 21 March 2016 the claimant met the Group Medical Director, Dr Burton, and the Regional Operations Director, Mr Ruffley. She was advised there had been a breakdown of trust and she was being suspended because of the evidence she had given at the coroner’s inquest. She was told that the coroner had threatened to refer Mr Parsons to his regulator, and that Fountains was to be investigated by the police for hiding evidence and ‘higher ups were very upset by it’. This was confirmed in writing by a letter on the same date, which stated that she was suspended pending an investigation into the evidence she gave at the inquest and the effect it had had on relationships at Fountains.”

The ET determined that this suspension was a detriment against Dr Malik for making protected public interest disclosures.

It also concluded that other detriments followed, including:

a) Punitive publicising of her suspension by the medical director:

“On her return to work she discovered that an email had been sent about her by the Group Medical Director to all of the doctors within the organisation. It was admitted by Dr Romero that this had not been done before.”

b) Excessive, punitive supervision, established by the assistant medical director, medical director and CEO:

“56. Before the claimant returned to work, Drs Bari, Burton and Romero met and agreed a course of action. On her return, Dr Burton increased her supervision from six monthly to twice weekly”

c). Undermining of Dr Malik’s role by the hospital manager, through excluding her from important admission and discharge decisions, removing support for clinics, criticising her for being late and introducing a new deadline for reports.

d) The assistant medical director asked staff to covertly report on Dr Malik. For instance, a cleaner accused her of leaving a screen open in her office whilst she saw patient.

e) Removal of Dr Malik’s role as Clinical Appraisal Lead, by the medical director, against her wishes

f)  Failure to ensure that a grievance by Dr Malik about whistleblower reprisal was progressed.

g) Being subjected to ostracisation such as hostile behaviour when she raised a concern about contributory organisational failings related to a patient suicide, and not being invited to clinical board meetings as previously agreed.

Cygnet additionally conceded that Dr Malik was subject to another detriment when the medical director later referred her to the General Medical Council. This referral was based on false allegations that she had failed to follow protocol on covert medication:

“79. The respondent referred the claimant to the GMC on 18 October 2017 after an incident, which is described in more detail below, led to her dismissal for gross misconduct.

80. The respondent denied in evidence referring the claimant to the GMC maliciously or without justifiable reason, but did accept the referral to the GMC is a detriment.”

The ET condemned the “defamatory” GMC referral by Dr Leslie Burton the medical director, which it considered was linked to Dr Malik’s protected disclosures:

“398. Dr Burton subsequently thought that the claimant was dishonest and told the GMC – a defamatory comment and one questions the motive behind that. He suggested that she had used the word “useless” about her line manager when she had never said any such thing.”

“418. We do, however, find that the additional detriment, of Dr Burton’s reference to the GMC on the day of dismissal was a detriment and is in time. The features contained within that referral and the note that he sent to the GMC link, were unpleasant and untrue, and formed a second detriment. They clearly reflected his view of the claimant following the earlier public interest disclosures. These were detriments because of an earlier public interest disclosure, and we find this to be both in time and made out. We note that the claimant’s appraisal did not reflect his damning assertions about the claimant.”

The ET described the tone of the medical director’s correspondence to the GMC as “venomous and dishonest” and it concluded that he had been “waiting” for a chance to make a referral:

“170. Mr Burton’s assessment of the situation with the GMC could not be regarded as honest and objective. An email sent by him on 13 October to Kate Harrison (Liaison Officer for the GMC) suggests a far from impartial stance. He described the claimant as “an opinionated woman”, and alleged there were rumours of bullying (contradicting her glowing appraisal from 17 July). None of her past actions which had caused concern would have merited a referral to the GMC, suggesting he had been waiting for this chance.”

Regarding the false allegations which led to the GMC referral and Dr Malik’s dismissal by Cygnet for gross misconduct, these related to her implementing a care plan of covert medication in an extreme case with risk of violence. This is a rare practice, but permitted and ethical in certain circumstances, with safeguards.

The ET found that the covert medication care plan implemented by Dr Malik was based on full multi-disciplinary  consultation, including with Cygnet senior managers and the patient’s family, and it complied with policy. However, Cygnet manufactured a disciplinary case against her, with false claims by several individuals that she failed to follow procedure and did not consult adequately. Cygnet additionally accused her of bullying, a claim rejected by the ET.

The ET noted that Cygnet’s disciplinary case was very obviously flawed and contradicted by a mass of records which showed her to be innocent of the charges. It stated:

“423. We find that the investigation and disciplinary procedure were fatally flawed. In particular Mr Ruffley, who was dishonest in his information to the investigation and to the Tribunal. The decision making process was disreputable.”

The brother of the patient who was covertly medicated, who supported the care plan, gave evidence at the ET in Dr Malik’s favour.

The ET concluded there had been no gross misconduct by Dr Malik:

“434. We do not find the claimant guilty of gross misconduct in the light of our findings above. We therefore find that the respondent was in breach of contract in dismissing the claimant for gross misconduct. We find that the claimant followed the hospital’s policy and took note of the other policies. The policy of her employer was noted to be signed by Dr Burton but he appeared to have little or no knowledge of its content. We find it more likely than not that the hospital’s own policy was not actually read by the investigators, the dismissing offer or the appeal officer, and we are sure that Dr Burton was unaware of the contents of the policy that was signed off in his name. The reason for the dismissal was adequately explained in the venomous and dishonest tone of the email to the GMC link. A careful analysis of the steps she took showed that she had complied with every step required of her under the respondent’s own policy in the particular circumstances of M. Prudence may have suggested that other steps could be taken, taking legal advice for instance, but there was no requirement on her to do so. There was no evidence of wilfulness, or of gross negligence. The evidence suggested she was doing the best she could for her patient, as her contract required, and within the policies and statutes under which she was required to work The claimant was thus dismissed without notice in breach of contract.”

The ET criticised Cygnet managers responsible for the blatantly unfair disciplinary action against Dr Malik and her unwarranted dismissal. 

The ET concluded that the interim hospital manager and the regional operations manager were dishonest about the case against Dr Malik:

“The investigators were not helped by the dishonesty of Serena Birtwhistle and Mr Ruffley.”

“We found Mr Ruffley to be less than truthful, and noted that there was evidence that he had lied in the investigation in that he denied he knew about the covert plan, and there was clear evidence in the emails that he did.”

The ET criticised the fact that Cygnet appointed an inexperienced peer of Dr Malik’s to hear her disciplinary case. It concluded that the decision to dismiss was in reality one of bad faith and had in fact been made by the CEO and the director of Human Resources.

“430. The matter was then compounded by Jenny Gibson’s involvement. She appears to have written both the dismissal letter and the appeal letter, and we find it more likely than not that she did both make the decision and write the decisions with Dr Romero. That cannot be within the range of reasonable responses, and shows a litany of bad faith.

431. The claimant was unable to attend her appeal because she was unwell. Dr Romero allegedly heard the appeal in her absence. He made a decision with regard to the administration of the drug O which had not been discussed with the claimant and was never put to her before the decision was taken. Jenny Gibson was again involved. There are no file notes at all of any discussions between her and any of the other people involved in the investigation, dismissal or appeal. We find that to be quite extraordinary for a senior HR manager. There were no notes either from Dr Romero of his part in the appeal, simply the letter we believe was prepared by Jenny Gibson which was signed by him. We do not say he played no part in that decision, but we find it to be a collaboration between Jenny Gibson and Dr Romero. The claimant, as she believed, did not stand a chance of the dismissal being overturned.”

Cygnet’s CEO heard Dr Malik’s appeal against dismissal even though there was an outstanding grievance by Dr Malik against him. The ET commented:

“We noted he [Dr Romero] chose to undertake the appeal himself, which he could have delegated to a manager immediately below him. We noted that the grievance was never heard – and is still outstanding to this day – and that Dr Romero was responsible in effect for nearly all of the actions taken by the other parties, through Jenny Gibson.”

The director of HR composed an outcome letter for the dismissing officer:

“Jenny Gibson sent an email to Dr Burton, Mr Ruffley, Dr Romero and Mr McQuaid in which she created some wording to send to Dr Malik in terms of why “we” had decided to dismiss her. She also sent a copy to Mr Boyapati “so that he is aware”.

162. Jenny Gibson was not the HR representative at the disciplinary hearing and did not credibly explain her intervention at this point, when given the opportunity. The rough notes of the reasons to dismiss were produced by Ms Gibson and sent to Dr Boyapati to approve. She selected very few issues and ignored the balance of the allegations and evidence. She gave a very partial account. The letter made no mention of the policy of the hospital, the NICE guidelines or the CQC (presumably because they could not say that she had failed to comply with them).”

The ET noted that the director of human resources’ draft letter of dismissal received the medical director’s approval:

“165. Dr Burton on receipt of the draft thanked Ms Gibson for “a good email. Dr Boyapati on receipt made a few minor changes. It is however completely clear that Dr Boyapati did not provide the wording as suggested by Ms Gibson, and that in fact the wording was hers.

Illustrating how arbitrary Dr Malik’s treatment by Cygnet was, the medical director criticised her despite her adherence to Cygnet’s covert medication policy, which he himself had personally signed off the previous year:

“122. This policy was approved specifically by Dr L Burton who later appeared to be a serious critic of the claimant’s actions when she followed his policy.”

“The policy of her employer was noted to be signed by Dr Burton but he appeared to have little or no knowledge of its content. We find it more likely than not that the hospital’s own policy was not actually read by the investigators, the dismissing offer or the appeal officer, and we are sure that Dr Burton was unaware of the contents of the policy that was signed off in his name.”

In short, the ET concluded that Cygnet effectively commissioned “lies” and came to a predetermined decision to dismiss Dr Malik:

“It was done by only interviewing those who sided against the claimant, telling lies to the investigation and the tribunal, and by Drs Romero, Jenny Gibson and Dr Burton ensuring that the script for the dismissal and appeal was theirs.”

Sadly, as often seen, the ET stopped short of concluding that Dr Malik was dismissed for whistleblowing, even though it appeared to acknowledge that Cygnet had been waiting for an opportunity to dismiss her because of her previous whistleblowing:

“433. We do not therefore find that the respondent has proved on the balance of probabilities that there was a potentially fair reason for the dismissal or further that a fair procedure was followed. There may be an argument to follow on the issue of contribution. We do not find that the claimant was dismissed because she made public interest disclosures i.e. automatically. It is clear that this was however the general background to the respondent’s senior managers disliking her, and later seizing an opportunity to dismiss her.”

So there you have it, a case of proven conspiracy against a whistleblower which will seriously affect her career, but with no legal linkage made between the disclosures and the dismissal. This will mean as usual that any compensation will likely not reflect the real losses suffered by Dr Malik nor truly compensate for blacklisting that she may suffer.

Once again, Dr Malik’s case reveals graphically what a sustained ordeal whistleblowers may face, only to be failed again by weak whistleblowing law when they seek redress years later.

At present, highly paid executives often see unfairly sacking whistleblowers as a worthwhile risk, and the paltry compensation they have to pay harmed whistleblowers as simply the very reasonable price of doing unethical business.

There is often a chasm between corporate rhetoric and the reality of what happens behind closed doors. In a rapid response of 14 January 2020 to a BMJ article about Cygnet’s governance failings, Dr Tony Romero Cygnet CEO wrote:

“The board take any concerns raised very seriously and as a leadership team we promote honesty and transparency. The report cites a culture of openness and initiatives to encourage reporting of issues, including a whistleblowing line. It acknowledges most staff feel able to report incidents and raise any concerns, which demonstrates our lines of accountability are clearly understood. We are also appointing a freedom to speak up guardian.”

Whistleblowing law reform

The Malik case shows yet again why we need much stronger, proactive whistleblowing law that compels protection, a proper, timely response to whistleblowers’ protected disclosures and much stronger deterrence of cover ups and reprisal.

A Westminster petition  was previously set up seeking reform of  and gathered only 1,462 signatures by the time of the six month expiry date on 17 February 2021.  

A new non time-limited petition has been set up:

Replace weak UK whistleblowing law, and protect whistleblowers and the public  

Your help in signing and sharing this petition would be much appreciated.  

Commissioners and regulators

It is also vital that NHS commissioning oversight of high risk services such as those operated by Cygnet is improved, to protect vulnerable patients and to ensure best value for the public purse. There is currently a standard clause in NHS purchased private care, which requires private providers to have a basic level of whistleblowing governance. But does anyone really bother to track instances of whistleblower reprisal?

The local CCG, East Lancashire, seems to have been cheerleading instead of interrogating:

The NHS England-commissioned statutory independent homicide investigation under HSG (94)27  of an inpatient killing at Cygnet Bradford identified issues with NHS England’s oversight of outsourced mental health care. The homicide investigation report made the following recommendations:

CQC also has responsibility to check whether providers have safe culture, including good whistleblowing governance.

In an inspection report of 31 December 2019 CQC waxed lyrical about the leadership of Cygnet Fountains hospital:

“There was compassionate, inclusive and effective leadership at all levels. Leaders at all levels demonstrate the high levels of experience, capacity and capability needed to deliver excellent and sustainable care.

Comprehensive and successful leadership strategies were in place to ensure and sustain delivery and to develop the desired culture. Leaders had a deep understanding of issues, challenges and priorities in their service, and beyond.”

“Staff knew and understood the provider’s vision and values and how they were applied in the work of their team.

Staff were proud of the organisation as a place to work and spoke highly of the culture. Staff at all levels were actively encouraged to speak up and raise concerns, and all policies and procedures positively support this process.

Staff felt respected, supported and valued.”

The CQC inspection team responsible for this finding are not named:

Questions of regulatory capture arise, especially bearing in mind that a CQC manager ran away from the CQC circus in 2016, to join Danshell, one of Cygnet’s predecessor firms.

The managing director of Castlebeck Care, one of Cygnet’s predecessor organisations was banned by the Insolvency Service for eight years because he failed to act appropriately on whistleblowing disclosures about patient abuse at Winterbourne View hospital:

“Neil Cruickshank, the Managing Director of Castlebeck Care (Teesdale) Ltd, has been disqualified for 8 years for failing to follow proper company procedures regarding Quality of Care, after he was sent information from a whistleblower regarding the behaviour of staff at the Winterbourne View Nursing Home, near Bristol.”

Notoriously, the system regulator Care Quality Commission also failed the Winterbourne View whistleblowers:

Serious Case Review on Winterbourne View Hospital, Margaret Flynn, South Gloucestershire Safeguarding Adults Board 2012

The CQC is now responsible for operating CQC Regulation 5 Fit and Proper Persons (FPPR), under which providers must ensure their directors are fit and proper persons.

Will the CQC now break its habits of wilful blindness and inaction on FPPR, and act upon not just the suppression of protected disclosures but orchestrated whistleblower reprisal in Dr Malik’s case?

But perhaps there is nothing to worry about. Cygnet have appointed a Freedom To Speak Up Guardian, and speaking up will be “celebrated” henceforth.

Declaration of interest: Nick Ruffley was service director when I whistleblew about care and governance failings at St Andrews Healthcare, another private mental health provider.

RELATED ITEMS

Petition: Replace weak UK whistleblowing law and protect whistleblowers and the public

Contract Failures in Mental Health Services

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

CQC Whorlton Hall Cover Up: More CQC responses & culpability

St. Andrews Healthcare, Whistleblowing, Safeguarding and Public Protection

Replacing the Public Interest Disclosure Act (PIDA)

More whistleblower reprisal at North Tees and Hartlepool NHS Foundation Trust: Employment Tribunal finds for Mr Manuf Kassem, surgeon

Summary: North Tees and Hartlepool NHS Foundation Trust has once more been comprehensively rebuked by the Employment Tribunal for serious whistleblower detriment. It is an illustrative case of how organisations close ranks and collude. The trust has been found to have racially discriminated against surgeon Mr Manuf Kassem, and to have punished him for whistleblowing. The ET has determined that the trust medical director threatened him with disciplinary action, that a clinical director revealed his identity as a whistleblower – including to other doctors about whom he had whistleblown, and that doctors about whom he had raised concerns filed retaliatory Datix incident reports. The ET found that Mr Kassem was subjected to a retaliatory disciplinary investigation and punitively removed from emergency out of hours duties for whistleblowing. Care Quality Commission Regulation 5 Fit and Proper Person issues arise about the board of this trust, this being the second recent and serious whistleblower case. The earlier case of North Tees whistleblower Linda Fairhall drags on because the trust is vindictively pursuing an appeal after she won her ET claim and despite the fact that her partner died of a heart attack whilst she was suspended.

It is also relevant to note that Mr Kassem’s patient safety concerns were reviewed by North Tee’s deputy medical director, who was also called in by University Hospitals of Morecambe Bay NHS Foundation Trust to review whistleblowers’ concerns about orthopaedic services. The orthopaedic safety matters at UHMBT drag on and local members of parliament are now involved.

Background

North Tees and Hartlepool NHS Foundation Trust has already been in the spotlight because of its proven victimisation of NHS whistleblower Linda Fairhall, a senior nurse who raised safe staffing concerns. Her partner died of a heart attack whilst she was suspended from her duties in an act of detriment. Linda Fairhall won her Employment Claim but the trust has been vindictive in defeat and seeks to inflict more suffering by appealing. The case was also particularly notable because the trust head of Human Resources was at one point the lead Freedom To Speak Up Guardian. See:

Safe staffing and North Tees’ unfair sacking of ‘unblemished’ whistleblower nurse Linda Fairhall. HR Director was also the Freedom To Speak Up Guardian

Mr Manuf Kassem’s whistleblowing case

Another whistleblower at North Tees Mr Manuf Kassem Associate Specialist in Urology has now had an Employment Tribunal judgment in his favour, remarkably after representing himself. It is rare for whistleblowers to win ET claims, rarer still for them to establish a specific finding of whistleblower detriment and very rare for them to succeed as litigants in person.

I am unable to do the case justice due to very limited time at present, but am reporting briefly on the ET judgment  to raise awareness of North Tees’ recidivism:

Mr Manuf Kassem v North Tees and Hartlepool NHS Foundation Trust Case Number: 2502292/2019 Judgment 17 January 2021

In essence, Mr Kassem has established that North Tees racially discriminated against him and also retaliated against him because he made protected disclosures in the public interest, about patient safety.

This is the ET’s summary of Mr Kassem’s protected disclosures:

“The second investigation meeting into the claimant’s grievance took place on 4 August 2017 (260). While this is the second meeting that had been arranged to discuss the grievance it has additional significance in that at this meeting the claimant presented to Mr Tulloch details of 25 patients whom he alleged had “suffered complications, negligence, delayed treatment and avoidable deaths.” In this respect the Tribunal records that the respondent accepted that the claimant raising these concerns amounted to a protected disclosure. Additionally, at this meeting, unlike the first investigation meeting, the claimant made express reference to issues of ethnicity and race. Having named five surgeons whom he described as being “untouchable” the claimant is recorded as having said, “it was dependent upon nationality if you are white or from India you would receive different treatment”. In this regard, the claimant referred to a Turkish surgeon who had received treatment similar to him, a doctor from Pakistan “who had put a complaint in about how AA had treated her” and a colleague from Nigeria who was “shouted at by one of AA close friends” (265).”

Very significantly, the ET found that those who retaliated against him included Dr Dwarakanath the trust’s medical director. Dr Dwarakanath set up a panel to look at Mr Kassem’s patient safety concerns. The ET noted that the medical director had given inconsistent accounts about this process and its objectivity as regards the involvement of Mr Kassem’s clinical director, Mr Agarwal:

“Returning to the chronological order of events, as mentioned above at the second grievance investigation meeting with Mr Tulloch the claimant had raised concerns in respect of 25 patients. Dr Dwarakanath was made aware of this by Mr Sheppard and Ms Johnson in early February whereupon he established a panel to consider the concerns the claimant had raised in relation to these patients. The individuals whom Dr Dwarakanath invited to join him on the panel were Mr C, consultant urologist and medical director with a neighbouring NHS Foundation Trust and Mrs C (no relation to Mr C) who was employed by the respondent and had expertise in governance and safety. The evidence of Dr Dwarakanath was that Mr Agarwal and a colleague provided access to the patients’ records and other relevant information but neither “played any role in the review” but that is contrary to the letter he wrote to consultant surgeons and urologists dated 25 June 2018 in which he stated that the cases “were critically reviewed by [Mr C], myself, Mr Agarwal and [Mrs C]” (381); that clearly indicating Mr Agarwal’s position within the review panel.”

The ET considered that a letter from the medical director to Mr Kassem amounted to a threat of disciplinary action and was a detriment for whistleblowing:

“10.111 Ms Johnson wrote to Dr Dwarakanath on 27 November to draw these matters to his attention (477). He then wrote to the claimant on 13 December 2018 (500) informing him that so as to ensure that any reconvened meeting was productive and conclusive he had instructed Prof M to facilitate the job plan discussion along with a member of HR who would provide expert advice. Dr Dwarakanath concluded his letter, “May I remind you also that any further incidents of this nature may result in formal action being undertaken in accordance with Trust HR policy.”

“f. The letter Dr Dwarakanath wrote to the claimant on 13 December 2018 is considered at paragraph 10.111 above. The Tribunal is satisfied that such a strongly worded letter written by someone of such seniority and authority in the respondent’s organisation did constitute a threat of disciplinary action and that was a detriment. The letter therefore amounted to a detriment to which the claimant was subjected by the respondent (in the shape of Dr Dwarakanath). The Tribunal is satisfied that Dr Dwarakanath’s motivation in writing this letter was bound up with the claimant having raised his concerns in respect of the 25 patients as a result of which Mr Shanmugam and Mr Bhaskar were no longer willing to work with him on the emergency on-call rota and Ms Dean, Mr Agarwal and Dr Dwarakanath then agreed that the claimant should be removed from that rota, all of which is set out in more detail in the Tribunal’s findings of fact above. For those reasons, and having considered the mental processes of Dr Dwarakanath, the Tribunal is not satisfied that the respondent has discharged the burden of proof upon it to show that the letter was not written on the ground that the claimant had made a protected disclosure.”

Moreover, the ET found that Dr Dwarakanath inappropriately placed himself on a disciplinary panel against Mr Kassem despite prior involvement in the case, and that this constituted a detriment for whistleblowing:

“In his letter of 7 March 2019 Dr Dwarakanath informed the claimant that he would be one of the three members of the disciplinary hearing panel; indeed he was to be its chair. Given Dr Dwarakanath’s previous involvement the Tribunal is satisfied that that was to the claimant’s detriment, which is reinforced by Ms MT having explained in her letter to the claimant of 15 May 2019 that due to that involvement she considered it appropriate that an alternative chair should be appointed. Thus, there is again the protected disclosure and detriment to which the respondent submitted the claimant. Once more on the evidence available to it and again having focused upon the mental processes of Dr Dwarakanath, the Tribunal is not satisfied that the respondent has discharged the burden of proof to show that Dr Dwarakanath appointing himself as chair of the disciplinary panel was not on the ground that the claimant had made a protected disclosure.”

The ET judged that Mr Kassem was removed from some duties, emergency on call, as an act of whistleblower detriment:

“As also explained above, the Tribunal is satisfied that the outcome of the job plan review meeting on 2 January 2019 that the claimant would no longer undertake out of hours or emergency on-call duties as part of the middle grade rota was undoubtedly a detriment to which the claimant was subject by the respondent. Having focused primarily on the minds of Mr Agarwal and Ms Dean who had conduct of that meeting but more generally upon the mental processes of all those referred to above who had sought to have the claimant removed from the on-call rota, on the evidence available to it as summarised above, the Tribunal is satisfied that the respondent has failed to discharge the burden of proof to show that the claimant no longer undertaking such duties was not on the ground that he had made a protected disclosure.”

The ET concluded that the three key individuals behind this act of detriment were Dr Dwarakanath medical director, Mr Agarwal clinical director and Ms Dean Care Group Manager:

“The Tribunal has explained above its findings in relation to the email exchanges on 4 September 2018 and being satisfied that the purpose of that email exchange was to stop the claimant’s oncall emergency duties. The claimant had made a protected disclosure and, having focused on the minds of Ms Dean, Mr Agarwal and Dr Dwarakanath, the Tribunal is satisfied that he was subjected to detriment by the respondent, in the shape of those three individuals. As such, in accordance with section 48(2) of the 1996 Act the burden of proof shifts to the respondent to prove, on balance of probabilities, that the claimant was not subjected to detriment on the ground that he made the protected disclosure. Again having focused on the minds of those three individuals, on the evidence available to the Tribunal (again as set out at some length above in relation to the email exchanges) it is not satisfied that the respondent has discharged that burden of proof.”

The ET indicated that it was not satisfied with the clinical director’s evidence:

“The Tribunal did not find Mr Agarwal’s evidence on this issue to be satisfactory. At paragraphs 43 and 44 of his witness statement he had conflated what were clearly two conversations between him and Mr Q some seven months apart. He did not make it clear that in the first of their conversations Mr Q had denied that the claimant had telephoned him (that only coming to light in the course of the investigation carried out by Mr Tulloch into the claimant’s grievance in July and August 2017) or make it clear that it was only in their second conversation that Mr Q had told Mr Agarwal that the claimant had in fact telephoned him. Further, Mr Agarwal’s evidence was that at the consultant’s meeting on 9 December he did not mention names or criticise anyone. That, however, is contrary to, first, Mr CH having told the claimant that he had been identified at the meeting and, secondly, to the discussion between the claimant and Mr Agarwal in the corridor having been witnessed by others. Notwithstanding this change in Mr Q’s account of the incident (and therefore Mr Agarwal’s understanding of what had actually occurred between Mr Q and the claimant) the minutes of the meeting on 9 December were never revisited or clarified.”

The ET also concluded that the clinical director had revealed Mr Kassem’s identity as a whistleblower to other doctors at a meeting where Mr Kassem’s patient safety concerns were discussed:

“The oral evidence of the respondent’s witnesses in relation to this meeting was to suggest that the claimant was not named by Mr Agarwal as being the person who had raised the concerns but that is contradictory to the evidence in Mr Bhaskar’s witness statement that at this meeting in April he was given details of two cases pertaining to his treatment, “In one of the cases discussed it states that Mr Kassem had been told by another consultant that I had performed an experimental operation on a patient ….. This incident occurred in 2012 so there had been plenty of time for Dr Kassem to have approached me to express his concerns.” That witness statement was presumably produced in a considered way and with the benefit of legal advice and the opportunity for discussions with colleagues, for example Mr Agarwal. That being so, the Tribunal accepts that evidence that at the meeting in April the identity of the claimant as the individual who had raised the patient safety concerns was revealed by Mr Agarwal.”

Related to the punitive, retaliatory removal of Mr Kassem from emergency out of hours work, the ET determined that two doctors, who had been criticised in Mr Kassem’s protected disclosures, submitted unfavourable Datix incident reports against Mr Kassem as an act of whistleblower reprisal:

“The Tribunal has found above that the claimant made a protected disclosure when, at the second grievance meeting on 4 August 2017, he provided to Mr Tulloch a list of 25 patients whom he considered had suffered morbidity, harm and unnecessary death; this being carried forward into the consultants’ meeting in April 2018. Additionally, having focused on the minds of Mr Shanmugam and Mr Bhaskar, the Tribunal has made a specific finding at paragraph 10.88 above that they respectively submitted their Datixes with the express purpose of removing the claimant from the emergency on-call rota; further, that their reason for that was that he had criticised their clinical practice when he raised his concerns in respect of the 25 patients.

Thus, the claimant made a protected disclosure and was subjected to detriment by the respondent; in the shape of Mr Shanmugam and Mr Bhaskar. As such, in accordance with section 48(2) of the 1996 Act the burden of proof shifts to the respondent to prove, on balance of probabilities, that the claimant Case Number: 2502292/2019 79 was not subjected to detriment on the ground that he made the protected disclosure. On the evidence available to the Tribunal as considered above it is not satisfied that the respondent has discharged that burden of proof. On the contrary, the Tribunal is satisfied that the motivation of Mr Shanmugam and Mr Bhaskar in submitting those Datixes (being the detriment) was that the claimant had made that protected disclosure.”

Mr Kassem was accused of working too hard. Whilst this may seem bizarre to the uninitiated, conscientious whistleblowers may face all manner of desperate, ridiculous allegations by those scraping the bottom of the barrel to fabricate disciplinary cases, including allegations of working long hours or working late.

The ET reported as follows on this issue, concluding that long hours were a pastoral and not a disciplinary matter:

“10.116 As to the allegation of unsafe working practices, Ms Lynch’s evidence in her witness statement was that concerns had been raised in relation to the number of additional hours that were being undertaken by the claimant but the Tribunal is unable to identify the source of those concerns. Suffice it to say that it appears that by mid September 2018 any issue in this regard had been resolved in discussions between Ms CB, an Administration Manager, and the claimant (950). In particular, it is recorded that the RMO was going live on Healthroster and Ms CB informed the Investigation Team on 12 October that if they ever needed the claimant “to cover we check what he has been doing previously and the day after the shift” (775) i.e the risk of the claimant working excessive hours was being monitored and could be addressed as necessary. This is significant as in its report the Investigation Team refers to the week commencing 10 September 2018 (i.e. before the resolution of this issue). It would also appear from CB’s email to Ms Dean of 29 August 2019 (1054A) (which explains the Healthroster system) that if excessive hours were to be worked, Directorate staff would be alerted to reject the doctor from the shift. It also seems from that email that other doctors were working excessive hours but there is nothing before this Tribunal that suggests they were taken through a disciplinary process in those respects. In any event, as the Investigation Team also records, the Directorate bore some responsibility for ensuring that the claimant did not work excessively. Fundamentally, however, if this is an issue, it would appear to the Tribunal as one for guidance in a pastoral sense rather than being addressed through a disciplinary procedure.”

At one point, Mr Kassem was accused of possible fraud, but this was dismissed and it was concluded that if anything, Mr Kassem had underclaimed for work done and deserved to be paid more:

“10.120 The final allegation against the claimant is that he had engaged in potentially fraudulent activity. The basis of this allegation was identified by Ms Dean in her witness statement as being that during a review of additional timesheets submitted by the claimant for the period 4 August to 16 September 2018 she had identified that there was an overlap and double-counting for time when he should have been starting his normal scheduled work but was still claiming for his RMO work finishing after that time. More particularly, on 10 and 15 August and 14 September 2018 the claimant had claimed to have finished his 12-hour RMO shifts in Hartlepool at 9.00am but, on each of those days, he should have commenced his scheduled programmed work at 8.30am; that being, on 15 August, a manometry clinic at 8.30am at North Tees. As to 10 August and 14 September, the claimant explained that he had adjusted his working time to accommodate a colleague. The claimant had started his shift at 8.00pm the night before and a colleague attended at 8.00am and they both agreed that so as to avoid confusion they would each claim 12 hours as shown on the rota (i.e. in the claimant’s case from 9.00pm to 9.00am), which the claimant suggested is a frequent occurrence between doctors. As to 15 August, the claimant explained that although the manometry clinic started at 9.00am, preparatory work could take 30 to 40 minutes and it had therefore been agreed with the colorectal manager that the claimant’s start and finish times could be adjusted so as to be from 9.30am to 1.30pm thus maintaining the same number of hours per session. In these circumstances the claimant denies any overlap in his working hours. The Tribunal accepts the claimant’s explanation that the manometry clinic does not start until 9.00am, and not 8.30am as alleged, given that that is supported by the evidence of Mr Tabaqchali, and, in any event, the clinician is not required to be in attendance until 9.30am and the claimant finished at 1.30pm. In this regard, the evidence of Mr Tabaqchali is clear, “the manometry clinic starts at 9.30am, and not 9.00am as stated in his job plan” and given the regular meetings that Mr Tabaqchali (as lead for the colorectal service until 2016) had had with the Directorate management team where all operational, performance and staffing issues were standing items on the agenda it was “difficult to imagine that the directorate had no knowledge of how the lab or the service works over such a long period of time.” Although it is a different point, Mr Tabaqchali concluded his evidence in this respect that he was aware that the claimant “did numerous additional sessions without claiming payments. I therefore think it is a great pity that the directorate has taken this approach rather than thanking him for his hard work and dedication. I would suggest that the directorate overall owe him more pay, not less pay.”

The ET concluded that those involved in a process of disciplinary investigation against Mr Kassem had acted out of retaliation for his whistleblowing:

“As stated in relation to paragraph 4b. of the claimant’s victimisation complaint the Tribunal has found that the investigation did amount to a detriment. Given that the claimant had made a protected disclosure and the Tribunal being satisfied that the respondent subjected him to that detriment, the burden of proof again shifts to the respondent to prove that the claimant was not subjected to the detriment on the ground that he made the protected disclosure. Having considered the mental processes of those involved in instituting and progressing the disciplinary investigation, for the reasons set out in its findings of fact above, the Tribunal is not satisfied that the respondent has discharged that burden of proof to the satisfaction of the Tribunal.”

All the above is a depressing litany, so very familiar to many whistleblowers.

Issues of CQC Regulation 5 Fit and Proper Persons arise regarding the board of North Tees and Hartlepool NHS Foundation Trust, not just because of the details of Mr Kassem’s case but because it follows Linda Fairhall’s case.

And there is one notable detail.

Mr Kassem’s patient safety whistleblowing concerns were reviewed by North Tees’ deputy medical director, Chris Tulloch. The ET noted the following:

“The 25 patients referred to above were reviewed by Mr Tulloch. He noted that all but one of the cases had been through at least one of the relevant processes operated by the respondent: the M&M meeting, the Independent Review Panel (“IRP”) or the Safety Panel. The one case that had not been through a review route was relatively recent and there were plans in place to progress it. Having reviewed the documentation, Mr Tulloch was satisfied that the appropriate processes had been adopted to ensure that objective scrutiny had been applied and he had not identified any untoward practice occurring within the Directorate (285/6).”

Mr Tulloch was the external reviewer recently called in by University Hospitals of Morecambe Bay NHS Foundation to look at whistleblowers’ concerns in that trust’s orthopaedic services.

The UHMBT orthopaedic safety matter continues unresolved and local members of parliament are now involved.

In the aftermath of Linda Fairhall’s case, Henrietta Hughes the National Guardian was quoted as saying “Workers who speak up should be thanked for doing so and the organisation should demonstrate they are taking action to address the issues raised.”

Yet she has announced no formal case review of the whistleblowing governance at North Tees, and now there is a second serious failure. Who knows if even this will persuade her to take any real action to support future whistleblowers at the trust. Her Office has ingeniously cited both uncompleted and completed employment tribunal proceedings as exclusion criteria for case review.

In fairness, one must marvel at the audacity of the self-serving puffery that is the government’s Freedom To Speak Up project.

Related items:

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A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

Please support law reform by signing and sharing this petition:

Petition Replace weak UK whistleblowing law, and protect whistleblowers and the public  

Hospital bosses in Hartlepool paid out millions of pounds in damages in the last year following serious mistakes in care, new figures reveal.

University Hospitals of Morecambe Bay NHS Foundation Trust’s handling of counter-allegations against whistleblowers

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

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

University Hospitals of Morecambe Bay NHS Foundation Trust’s handling of counter-allegations against whistleblowers

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 29 January 2021

Summary: The most recent in a long line of whistleblowing scandals at UHMBT, regarding orthopaedic safety, involves potential whistleblower reprisal by counter-allegations. The trust was asked to explain its approach to managing counter-allegations and reprisal, but its response does not address the specific issues. The national whistleblowing template policy by NHS Improvement does not help much either. Without accountability and effective deterrence of reprisal, problems will continue. Weak UK whistleblowing law needs to be overhauled to ensure accountability and to deter reprisal. Concerns continue about orthopaedic surgery at UHMBT and there is pressure for a fuller, independent investigation.

Counter-allegations in whistleblowing cases

Whistleblowers are at high risk of malicious counter-allegations and retaliatory disciplinary action.

Reprisal is the logical thing to do if you wish to silence a whistleblower, or undermine their credibility to obliterate their embarrassing disclosures.

That is not to say that whistleblowers are all saints and above reproach.

But fair and skilled handling of counter-allegations is an essential part of good whistleblowing governance. As is ensuring jeopardy for abusers.

Well-known organisational tactics are to deliberately make whistleblowing cases complicated and harder to understand, and to use malicious counter-allegations to muddy the waters.

Sometimes, the aim is to sell a narrative of clash of personalities (which may allow a whistleblower’s dismissal under the Some Other Substantial Reason mechanism), or an “it’s a can of worms” type scenario. The whistleblower is then caught in this undertow and swept out to sea, their disclosures conveniently forgotten. If some blame can be smeared on to a whistleblower, this also reduces awards that may be made by Employment Tribunals.

Sir Anthony Hooper reviewed the General Medical Council’s handling of whistleblowing after a series of scandals in which whistleblowers were vexatiously referred to the regulator.

His recommendations emphasised the vital need for accountability and included a mandatory statement of truth by senior, registered doctors who refer other doctors to the GMC, and a recommendation that those found to have made vexatious referrals should be subject to a review of their fitness to practice.

The English NHS currently has a national policy that is supposed to be adopted by all NHS organisations, produced by NHS Improvement. This national template is weak on the management of whistleblower reprisal. It does little other than provide an empty promise of zero tolerance, with no practical detail on how this is achieved:

Feel safe to raise your concern

If you raise a genuine concern under this policy, you will not be at risk of losing your job or suffering any form of reprisal as a result. We will not tolerate the harassment or victimisation of anyone raising a concern. Nor will we tolerate any attempt to bully you into not raising any such concern. Any such behaviour is a breach of our values as an organisation and, if upheld following investigation, could result in disciplinary action.

Provided you are acting honestly, it does not matter if you are mistaken or if there is an innocent explanation for your concerns.”

NHS Improvement’s policy does not state how evidence on possible reprisal should be evaluated and weighed. Neither does it explain how organisations should track possible reprisal and suspected abusers. Importantly, it does not say how whistleblowers will be supported if counter-allegations are made against them, or how counter-allegations should be handled to ensure that whistleblowers are not punished by allowing abuse of process.

Counter-allegations against a whistleblower at University Hospitals of Morecambe Bay NHS Foundation Trust

At the University Hospitals of Morecambe Bay NHS Foundation Trust, there is a long list of whistleblower scandals dating back many years. Some including allegations of deliberate patient harm and proven failings in breast cancer screening.

Moreover, not all the UHMBT whistleblowing cases are in the public domain.

Each time the trust claims to learn, but then another scandal rears its head.

Amongst the most recent troubles is conflict in orthopaedic services following concerns raised about a surgeon’s safety record.

The trust is accused of playing the concerns down, and only reacting after doctors exercised their professional duty to report these concerns to the GMC.

The affair was reported in the “can of worms-style” narrative last November:

Patients harmed amid ‘internecine squabbles’ and cover-up claims

Importantly though, the heart of the affair was noted:

“In their letter to the CEO, the doctors said further patients were harmed between the 20 clinical incidents being raised and the restrictions being imposed, including a patient whose hip socket fell out days after a hip replacement and a patient’s femur being fractured during an operation. The consultants alleged the response to their concerns had amounted to a “cover up”.

In a reply to the consultants, chief executive Aaron Cummins admitted “more robust action” should have been taken after analysing the list of 20 incidents.

Meanwhile, an external review completed by the deputy medical director of North Tees and Hartlepool FT in January 2020 confirmed “several patients did suffer in the period between presentation of the 20 critical incidents and action being taken by the GMC”.

The above January 2020 review conducted by Chris Tulloch the deputy medical director of North Tees has now been published in an FOI disclosure by UHMBT  (see last 19 pages of the disclosed document).

For the record, North Tees and Hartlepool also has severe whistleblowing governance problems, as evidenced by senior nurse Linda Fairhall’s case of serious, proven whistleblower detriment:

Safe staffing and North Tees’ unfair sacking of ‘unblemished’ whistleblower nurse Linda Fairhall. HR Director was also the Freedom To Speak Up Guardian

There is a particularly worrying aspect of the UHMBT orthopaedics whistleblowing case that is revealed by the Tulloch review.

The review report contains this passage on possible reprisal by counter-allegations, against one of the doctors who had raised concerns:

Q12: Why was Consultant A practice suddenly subjected to scrutiny and performing a particular operation stopped temporarily after he raised the concerns while the AS continued unrestricted practice?

A12: This practice was raised through whistleblowing and is being reviewed by the HR director. This is the subject of a separate external review.” 

From this passage, there seems no visible attempt to consider the possibility of reprisal, or to address why harsher action appears to have been taken against a whistleblower than the person about whom they raised concerns.

I therefore asked UHMBT for comment on the soundness of its whistleblowing governance, and in particular its approach to handling possible reprisal against whistleblowers in the form of counter-allegations.

The questions put to the trust were as follows:

  “Would you like to comment on whether the Trust has appropriately managed possible whistleblower reprisal by a manager against a doctor who raised concerns about a colleague, and  who was then subject to restriction of their practice, when there was reportedly no restriction of the practice of the doctor about whom they had raised concerns?   I refer to the Tulloch external review report, which states:  

Q12: Why was Consultant A practice suddenly subjected to scrutiny and performing a particular operation stopped temporarily after he raised the concerns while the AS continued unrestricted practice?  

A12: This practice was raised through whistleblowing and is being reviewed by the HR director. This is the subject of a separate external review.”   

Can the trust believe it has adequate policies to manage malicious counter allegations against whistleblowers?  

Does the trust believe it has taken appropriate disciplinary action for any whistleblower reprisal?  

If the trust’s policies do not currently deal with possibly vexatious counter allegations against whistleblowers, does the trust have any plans to correct this gap?  

Does the trust wish to comment on why it continues to have problems with whistleblowing matters?  

Does the trust believe that its HR systems and its senior HR managers are responding appropriately to whistleblowing issues and that they are proactively and effectively supporting good practice?”  

After reporting that it had run its response past NHS England, the trust replied as follows yesterday:

 From: REDACTED
Subject: Re: Comment on whistleblowing issues
Date: 28 January 2021 at 18:09:40 GMT
To: Minh Alexander <REDACTED>  

Hi Dr Alexander – with apologies because its so late, please find below a statement in response to your queries about the service.   It doesn’t answer each point individually but hopefully the overall statement explains our position.
 
kind regards  

REDACTED

“Aaron Cummins, Chief Executive, UHMBT, said: “We encourage all colleagues from across the Trust to raise their concerns, either with staff side colleagues, the Freedom to Speak Up Guardian, our Governors, including staff governors, or one of our non-executive directors.  

“We also have an app to raise concerns anonymously and its great that more incidents are being raised, which shows staff feel more comfortable about raising issues.

“During a six month period in 2018 we received reports related to 20 incidents regarding clinical care which occurred between 2011 and 2018 within our orthopaedic service. These were all investigated and reviewed appropriately by our Patient Safety Summit and reported through our internal governance processes, with appropriate action taken to ensure the safety of our patients.

“Subsequently in October 2019, further concerns regarding the orthopaedic service was sent to the Chief Executive, which posed a number of further questions. Senior leaders, including the Chief Executive, met with the orthopaedic team to ensure the concerns were fully understood and addressed. We operate a safe orthopaedic service.

“As a result of this, the Trust appointed an independent external orthopaedic expert to carry out a review of the concerns raised and to answer the questions posed. That review reported in January 2020 and made some recommendations for the service. 

“The issues raised and recommendations from the independent report are being worked through and implemented, ensuring the service continues to be safe for our patients. The orthopaedic service continues to be supported with additional training, capacity, executive support and expertise.”
 

Perhaps I am missing something, but the trust board does not seem to be engaging at all on the issue of whether its management of whistleblower reprisal is adequate.

We may well see yet more Morecambe Bay whistleblower scandals if there is a reluctance to learn, and to ensure that any inappropriate bullying against whistleblowers is properly deterred.

The trust appears keen to draw a line under the orthopaedics issues, but we may not have heard the last of this affair. Representations continue to be made and there is pressure for a more in depth, and fully independent review of orthopaedic safety, in line with the review of the urology service, that has been precipitated by another whistleblowing matter.

Who is most likely to be proven right? Whistleblowers or the trust that has had serial problems with whistleblowing governance?

Meanwhile, the last two UHMBT CEOs enthuse about speaking up and positive culture.

Please sweep away all the faux whistleblowing governance and government propaganda by supporting law reform, and signing and sharing this petition:

Petition Replace weak UK whistleblowing law, and protect whistleblowers and the public  

RELATED ITEMS

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

Jeremy Hunt et al’s re-branding of Morecambe Bay and a suppressed report on Race concerns

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Coronavirus: Fact deficit about COVID-19 paediatric hospital admissions and a media skirmish

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 3 January 2021

The NHS is currently under attack from deliberate disinformation by extremists, who seek to minimise the seriousness of the COVID-19 crisis, and to spur people into ignoring infection control guidance.

Unhelpfully, an NHS England comms blackout is reportedly in force.

Dr Marie-Louise Irvine NHS GP and former candidate for the NHA party asserts that this media blackout allows the government to control the narrative:

This context permitted an uncomfortable series of events to unfold over a BBC Radio 5 Live interview about NHS pressures in which a senior nurse, a matron, spoke of her perception of increased admission of children and younger people with COVID-19.

These were her words:

“It was minimally affecting children in the first wave. We have a whole ward of children here and I know some of my colleagues are in the same position with whole wards of children with Covid.”

“….20 and 30-year-olds with no underlying health conditions are coming in”

This is a link to the BBC interview recording:

It is not clear what effort, if any, the BBC made to corroborate her account, and whether it contacted her employing trust for more information.

A paediatric consultant from a different NHS organisation, who according to his official profile for Guys and St Thomas’ NHS Foundation Trust “was previously seconded as a clinical advisor to the English Chief Medical Officer at the Department of Health and health policy advisor to the Prime Minister’s Strategy Unit in the Cabinet Office”, made the following tweeted comments in response to the BBC Radio 5 Live interview:

His comments were reported yesterday by several media outlets, including the Sun and the Daily Mail, with the following headlines:

The Mail noted that Laura Duffell was a “vocal  campaigner for nurses”:

“Ms Duffel – a vocal campaigner for nurses who previously appeared on Good Morning Britain to talk about paying £1,440 to park outside her place of work – defended herself against backlash online, as others accused her of lying about having a ward filled with children with coronavirus.”

The Mail did not note equivalent contextual information about Dr Cheung, such as the fact he was reportedly a signatory to a letter from paediatricians this summer, urging the government to re-open schools:

The BBC ran an article quoting Dr Cheung and four other senior doctors headed

“Coronavirus: No increase in severe child cases, paediatricians say”.

No figures were actually given about the numbers of children currently being admitted with COVID. Instead, there were phrases such as “only small numbers” .

  Background information

This is some of the existing quantitative data available on paediatric COVID-19 inpatients:   Clinical characteristics of children and young people admitted to hospital with covid-19 in United Kingdom: prospective multicentre observational cohort study  

This is a paper on children with COVID-19 in ITU care, based on data up to the end of September 2020:  
PICANet report on COVID-19 confirmed cases admitted to paediatric intensive care  

The most recent Office of National Statistics data release from the national coronavirus infection survey (based on community testing) estimated that as of 18 December 2020, 2.98% (1 in 33) children in school years 7-11 and 2.43% (1 in 41) of school year 12 to age 24% would test positive for COVID-19.  

The BBC article contained no update quote from Laura Duffell, and it made no reference to whether her employing trust had confirmed or denied her original account about child COVID-19 admissions.

BBC Radio 5 Live helped to disseminate the BBC article:

It was difficult to tell how much balance was being restored to the debate. Or alternatively, whether there was a drive to limit interest in a matter which might impinge on the politically sensitive dispute about the government’s attempts to keep schools open (in spite of SAGE advice on 22 December 2020 that without secondary school closure, the virus will continue to spread).

Whatever, it was uncomfortable to see the wall of senior medics ranged in united chorus against the matron’s comments.

Information in the public domain indicates that Laura Duffell works at King’s College Hospital NHS Foundation Trust.

King’s previously produced a paper about the children whom it had admitted with COVID-19 earlier on in the pandemic:

Ethnicity and COVID-19 in children with comorbidities

The numbers were small, but the paper posited that children in the local catchment might be at greater risk of severe COVID-19 disease because of the socioeconomic context.

King’s has confirmed to me today that it has a 15 bedded paediatric COVID ward, currently with four patients and one further paediatric patient in ICU.

Laura Duffell has also featured in a Guardian article today on the experiences of staff at the frontline. In this article she reports that as paediatric matron, she has set up one paediatric COVID ward and is in the process of setting up another:

“Duffell, who is a paediatric nurse, says the south-east London hospital where she works is full, with intensive care beds being moved into operating theatres and recovery wards.

“We’re juggling which patients go where constantly: are they sick enough to go to intensive care? Or could we put them in a high-dependency ward? Where are we going to get ventilators from and where are we going to get the nurses trained to use them? It’s hour by hour,” she says. “It’s far worse than any winter I’ve ever experienced and we’re barely even in January yet.”

Her department worked hard over the summer to get through waiting lists after operations for sick children were cancelled but she fears they may soon be in the same situation again. “Unless something changes, we are going to be in a position where patients that don’t have Covid suffer,” she adds.

The new coronavirus variant, which is thought to be behind the spike in cases, appears to be hitting younger people harder. Duffell has been forced to turn over two paediatric wards to children with the disease. “We had the odd child here and there last time, but in this wave we are getting a lot of positive younger people,” she says. “We have one Covid ward for children already and we are just setting up a second one.”

It seems unlikely in these hugely strained times that an NHS trust would make such arrangements without reasonable belief that such a contingency is necessary.

But the dense fog of the centre’s media clampdown, and the fact-lite news reports, leave us guessing.

What we do know is that King’s, like other NHS trusts in London and the South East, has seen a very rapid recent expansion in the overall number of COVID-19 inpatients.

Such is the state of emergency that the trust has reportedly recalled staff from leave. The document below is apparently a leaked internal memo:

King’s had 90 COVID-19 inpatients on 16 December 2020.

In little over two weeks later, this number is now 572 as of this morning, which exceeds the peak that the trust saw in the first wave.

This is NHS England data for King’s up to 29 December 2020, by which point the trust had accumulated 470 COVID-19 inpatients:

In the recent analysis by the Health Service Journal, King’s had 35.8% of its beds occupied by COVID-19 patients by 29 December 2020:

No one can reasonably deny that this is a very difficult situation.

It is important that there is properly evidenced and contextualised reporting on the pandemic, to give an un-sensationalised but equally, an honest appraisal of risks.

It is also important that staff are not discouraged from speaking up by seeing others being treated ungently for doing so.

Of course, if the NHS centre was more open, or perhaps allowed to be more open, frontline staff would not be put in the uncomfortable position of having to speak out.

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Coronavirus: SAGE (Scientific Advisory Group for Emergencies): National lockdown may not be enough to prevent spread of the new COVID-19 variant

The COVID-19 pandemic has thrown into sharp relief something well known to whistleblowers – that UK whistleblowing governance is marred by conflicts of interest, and that the government of the day may deprive the public of its right to know out of political self-interest.  Although it may take a long time, we need much better whistleblowing law and systems, including a central whistleblowing agency that is not subject to any government control and interference, and which reports directly to parliament.

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

Coronavirus: SAGE (Scientific Advisory Group for Emergencies): National lockdown may not be enough to prevent spread of the new COVID-19 variant

Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 1 January 2021

We have a corrupt and untruthful UK government which has squandered billions in public money on deals during the pandemic which benefited friends but provided poor value for the public.

It has acted too slowly on infection control on repeated occasions.

Even in September, when the Swedish model of seeking herd immunity by natural infection was discredited, the prime minister and chancellor invited advice from proponents of herd immunity by natural infection.

They subsequently ignored mainstream scientific advice and chose not to impose a brief national lockdown to stop a second wave, which inevitably occurred.

Moreover, extremist actors who have supported the current UK government are spreading fake news, denying the seriousness of the COVID-19 crisis, implying that the risks are minimal for people under 60 years old and even falsely claiming that reports of huge strain on the NHS are untrue.

This is a brief post to share source material from the SAGE scientific advisory group meeting on 22 December 2020 which:

  • Gave information about the more infectious new COVID-19 variant
  • Listed as yet unanswered but important questions about the new variant
  • Advised of increasing evidence that children are transmitting virus and that keeping schools open is enabling virus spread via this route
  • Gave advice to the government that without closure of secondary schools, it was “highly unlikely” that virus transmission could be controlled
  • Gave advice to the government that even a full national lockdown might not be sufficient to control virus transmission

This is the critical excerpt from the SAGE minutes:

These were the observers and government officials who were documented to be present at the SAGE meeting on 22 December 2020:

These were the scientists present at the SAGE 22 December 2020 meeting, including Patrick Vallance Government Chief Scientific Advisor and who talked up the benefits of seeking herd immunity by natural infection and Jonathan Van Tam the Deputy Medical Officer.

These are the three SAGE documents from the 22 December meeting:

SAGE 74 minutes: Coronavirus (COVID-19) response, 22 December 2020

EMG/SPI-B/TWEG: Mitigations to reduce transmission of the new variant SARS-CoV-2 virus, 22 December 2020

Children’s Task and Finish Group: update to 4 November 2020 paper on children, schools and transmission – 17 December 2020

We know of course that the government did not act to reduce risk by closing schools or at least secondary schools, and it also allowed Christmas household mixing in some areas, despite SAGE’s above advice on 22 December 2020.

Not only that, it intimidated councils who tried to act on steeply rising infection rates by closing schools. Greenwich borough council closed its schools and the government launched action to force Greenwich to back down. The borough is currently one of the worst infected areas in the country, with some localities with more than a thousand cases per 100,000 resident population. However, the government has made a vindictive political point by allowing some schools to delay reopening in January, but continuing to refuse permission for Greenwich to close its schools. This is a letter from Danny Thorpe Leader of Greenwich council to Gavin Williamson the Education secretary about these events:

It is horrifying but not surprising to learn what SAGE advised the government just before Christmas, and the extent of the government’s cruel recklessness with lives.

We are currently reaping the whirlwind in unprecedented numbers of daily new COVID-19 cases and our hospitals are filling up with COVID-19 patients with some areas such as the South East being forced to evacuate critically ill patients far out of catchment because there are no beds. And the biggest surge is yet to come.

Independent SAGE, a group of experts who set up an alternative advisory group because of the government’s disastrous handling of the pandemic, is calling for an immediate national lockdown.

Stay safe.

Avoid extremists.

Coronavirus: Records of UK Government’s New and Emerging Respiratory Virus Threats Advisory Group (NERVTAG)

Patrick Vallance Spectator 13 March 2020: How herd immunity can help fight coronavirus

https://coronavirus.data.gov.uk/details/interactive-map

Fatal incidents in English secondary mental health services reported via NRLS September 2017 to September 2020

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist

The reporting and investigation of serious incidents in the NHS, especially in mental health services remains a serious problem.

The 2015 Mazars investigation into deaths at Southern Health NHS Foundation Trust revealed appalling failure to investigate hundreds of mental health deaths, a failure either not detected or reported by the Care Quality Commission in a preceding inspection.

Independent review of deaths of people with a Learning Disability or Mental Health problem in contact with Southern Health NHS Foundation Trust April 2011 to March 2015

Today a parliamentary debate takes place on mental health deaths under the care of Essex Partnership NHS Foundation Trust, as a result of a petition by Melanie Leahy seeking a public inquiry into the disturbing death of her son Matthew, in the context of many other similar deaths and a concern that the trust failed to learn from these deaths.

Debate on e-petition 255823, relating to deaths in Mental Health care 30 November 2020

NHS trusts report patient safety incidents to NHS England/ Improvement under the National Reporting and Learning System.

The most dishonest trusts may not report all serious incidents.

Occasionally, for example, even homicides may not be reported as serious incidents or externally investigated according to NHS policy.

Specialist mental health services report higher levels of fatal incidents compared to acute trusts.

I have extracted fatal incident data September 2017 to September 2020 for NHS trusts with specialist mental health services from the following annual NRLS reports:

NRLS monthly report 2017-2018

NRLS monthly report 2018 -2019

NRLS monthly report 2019 -2020

I found 8632 fatal incidents had been reported in trusts with specialist mental health services between September 2017 and September 2020

The spreadsheet of extracted data can be found here:

NRLS reported fatal incidents  September 2017 to September 2020 in English NHS trusts with specialist mental health services

It is a rough exercise as some mental health trusts have merged with non-mental health trusts during the past three years.

Even allowing for differences in trust size and deprivation in catchment areas, a rough glance raises questions about wide variation in the number of fatal incidents reported.

Are some trusts with specialist mental health services reporting less honestly than others?

Are some trusts wrongly reporting some deaths as “incidents”?

Are some trusts not learning as much as they should from deaths and if so, why?

How much is due to structural problems such as chronic underfunding and neglect of mental health services?

This is a table of the trusts with specialist mental services with the highest number of reported fatal incidents in the last three years:

For completeness, I compared the number of reported fatal incidents during the pandemic (March to September 2020) – 1634, to the number over a similar period (March to August 2019) the year before – 1376.

(I could not find NRLS data for September 2019).

The most vulnerable patients are entitled to safeguarding of their best interests, but sometimes they are failed precisely because they are vulnerable and unable to speak up for themselves.

This includes systemic failure to learn where such patients suffer serious harm.

Real parity of esteem for psychiatric patients is still a long way off.

We have seen over decades that little changes and mental health scandals recur, with similar failures. The political failures underlying this are complex and refractory.

Importantly though, we still have no real NHS investigator.

Instead, patients and bereaved families are faced with an expensively ineffective labyrinth, which leaves questions unanswered after years of endless processes.

Yet in the case of mental health deaths of people where Article 2 Right to Life is engaged and the State has a particular responsibility, it is especially important that this changes and that effective investigation takes place expeditiously.

Please support this petition for independent pre-inquest investigation into all unexplained mental health deaths:

Require pre-inquest investigation into all unexplained NHS mental health deaths

CCRC’s argument of abuse of process by Post Office Ltd & fitness of Paula Vennells Chair of Imperial College Healthcare NHS Trust

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 27 November 2020

Paula Vennells Imperial’s Chair  was a senior manager at Post Office Ltd for 10 years, including seven years as CEO 2012-2019, when the bitter dispute about unsafe prosecutions, convictions and jailings of subpostmasters rumbled on, and culminated in legal action which was aggressively defended by Post Office Ltd.

Related to this scandal, earlier this year BEIS ministers (who oversee the Post Office) asked both the Department of Health and Social Care and the Care Quality Commission to review whether Vennells, is a Fit and Proper Person to be Chair of Imperial College Healthcare NHS Trust.

A letter of May 2020 by Lord Callanan BEIS minister to Department of Health and Care about Vennells’ fitness is provided by this article:

Business minister asks Dept for Health why Paula Vennells is still running an NHS Trust

Statement 10 June 2020 by Paul Scully BEIS minister to parliament about his Fit and Proper Person referral on Paula Vennells to the CQC:

I made a referral on Vennells to the relevant watchdog, the Care Quality Commission under CQC Regulation 5 Fit and Proper Persons almost a year ago. It was not until October 2020 that the CQC ensured that the trust commissioned an external review.

CQC shows little appetite so far for ensuring that the external review is commissioned fairly. The trust itself has ignored a request to consult  harmed subpostmasters about the review’s terms of reference and to invite their evidence to the supposedly independent review.

The Criminal Cases Review Commission (CCRC ) has now disclosed via FOI that a total of 71 subpostmasters have applied to the Commission for review of suspect prosecutions by Post Office Ltd. In addition to 47 cases already referred to the Court of Appeal by  CCRC, an additional 17 cases are still undergoing CCRC review:

“At the time of writing, the CCRC has received a total of 71 applications for review of potential miscarriages of justice related to the Post Office Horizon cases. 47 have been referred to the Appeal Courts and 17 applications are currently actively under review.”

CCRC has also disclosed letters that it sent to the Justice Committee and to Suella Braverman MP Attorney General, seeking review of private prosecutions in the light of the Post Office’s appalling misuse of its powers.

These are the CCRC FOI disclosure letter and attached disclosed correspondence by the CCRC:

FOI disclosure 25 November 2020 by Criminal Cases Review Commission about Post Office Horizon cases referred and passed to the Court of Appeal

Letter 3 June 2020 by Criminal Cases Review Commission to Justice Committee

Letter June 2020 by Criminal Cases Review Commission to Suella Braverman MP Attorney General

The CCRC letter to Braverman states that CCRC’s referrals to the Court of Appeal are based on an argument of “abuse of process” by Post Office Ltd.

Abuse of process in the legal sense is a most serious matter. The burden of proof is on defendants, so CCRC must have determined substantial evidence existed. The Crown Prosecution Service’s guidance notes on abuse of process can be found here. These are the broad areas covered by the CPS guidance:

Moreover, CCRC stated that its abuse of process argument is derived from the trial judge’s “trenchant” findings.

The CCRC has so far decided to refer for appeal 47 such cases on the basis of an abuse of process argument. That argument is itself based on trenchant findings made against the Post Office by Mr Justice Fraser in High Court civil proceedings brought by a large group of former Sub Post Masters/ Mistresses”.

CCRC additionally quotes the following passage from its referral of cases to the Court of Appeal:

“In making the referrals to the Court of Appeal, the CCRC observes in paragraph 68 of our Statement of Reasons that:

“…in the context of [Post Office Limited’s] POL’s combined status as victim, investigator and prosecutor of the offences in question – the CCRC considers that there are reasons for significant concern as to whether POL at all times acted as a thorough and objective investigator and prosecutor, ensuring that all reasonable lines of inquiry were explored.”

Judge Fraser handed down his High Court judgment against Post Office Ltd on 16 December 2019.

That is to say, relevant evidence was there all along and available to CQC, NHS Improvement and the Imperial trust board, from the start of the FPPR process.

We wearily await the outcome of the external review process, controlled by a trust board which has already demonstrated wilful blindness.

UPDATE 6 DECEMBER 2020

Post Office miscarriage of justice campaigners have spotted this post by Imperial College Healthcare NHS Trust three days ago, announcing that Paula Vennells will step down as Chair of Imperial:

https://www.imperial.nhs.uk/about-us/news/trust-chair-to-step-down-next-april

RELATED ITEMS

Lord Arbuthnot a long time supporter of harmed subpostmasters has accused Post Office Ltd of lying to parliament:

23 November 2020 Peer accuses Post Office of lying

Post Office Horizon scandal: How Dido Harding helped to recycle Paula Vennells, FPPR and a suggestion for the BEIS Minister

After the Post Office Horizon Trial: Paula Vennells, Mammon and the bishops

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

Tories exploited MidStaffs politically but made no real changes: Jo Williams Alder Hey Chair and ex CQC Chief joins the list of CQC’s FPPR failures, as unaccountability grows

Is the National Guardian’s Office covering up its failure?

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 24 November 2020

A former worker from an NHS trust previously reviewed by the NHS National Guardian for whistleblowing has been in contact with me. They allege that they were discouraged by the National Guardian’s Office when they came forward with additional concerns about this trust.

They wrote to the National Guardian’s Office last year asking for help. I have seen the correspondence. Amongst other things, it describes a very dysfunctional trust management culture.

The worker reports that in response, they received a telephone call from a manager at the National Guardian’s Office, persuading them to drop their case.

There is no written record of this conversation, so no proof and only the worker’s recollection of the matter.

But the fact that the National Guardian’s Office apparently did not set out its advice in writing is of itself a concern. This is a theme repeated in another case, the details of which will follow in due course.

Nevertheless, the worker’s broad memory of the comments made by the manager from the National Guardian’s Office is as follows:

The conclusion of the phone call was that [REDACTED] advised me to “just let it go. At the end of the day, what are your expectations? You have a new job now, you no longer work for [REDACTED], do you really want to subject yourself to all the stress of going over your experience again?

Needless to say, these comments were never confirmed to me by either written correspondence or email. This took place in [REDACTED] last year, and only added to my sense of isolation and injustice.

I often reflect on the system we have in this country and how frustrating and pointless it all is.

The inevitable conclusion is that managers continue to bully and threaten staff, affect their physical and mental health, affect their family life and remain safe in the knowledge that, basically they are untouchable.”

The worker had been unwell as a result of their experiences, and the rebuff by the National Guardian’s Office was especially unwelcome from that point of view.

It is of course legitimate to help whistleblowers think through their options, including walking away where appropriate, because of individual circumstances and risk assessment. But that should be a facilitative discussion, guided by the whistleblower’s wishes, not an exercise in persuasion.

However, the above comments by the National Guardian’s Office were experienced by the worker simply as discouragement.

I have been contacted by several unhappy staff from this trust, some of whom have also reported problems with the National Guardian’s Office.

There is a potential conflict of interest for the National Guardian’s Office in this matter. It may be trying to keep a lid on trusts where it has already conducted a case review, because it does not want to acknowledge any evidence of its ineffectiveness.

There have already been similar examples, such as that of the important case exposed by Stephen Colgrave and Byline Times two months ago. This included an audit trail of the National Guardian’s Office twisting its own process to avoid an embarrassing case review:

‘Perversion of Justice’ The Abandoned NHS Whistleblower

Ineffective whistleblowing bodies are dangerous, especially those which are captured or which do not operate ethically. They can harm vulnerable whistleblowers in crisis, and they fail to protect the public.

If you have not done so already, please sign and share this petition for much safer UK whistleblowing law and a properly established, independent central whistleblowing agency to enforce good practice:

Petition: Replace weak UK whistleblowing law, and protect whistleblowers and the public

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

Shopping for whistleblowing bodies: An Ombudsman doesn’t suffice for whistleblowing governance

By Dr Minh Alexander and Clare Sardari, 18 November 2020

The UK does not have a central whistleblowing body, like the long established US Office of Special Counsel (OSC) which has responsibility for protecting public sector (federal) whistleblowers. OSC has a wide range of powers and can help ensure redress. Instead, we have a vast, chaotic jigsaw of UK bodies who mostly have minimal duties and powers in niche areas. In the English NHS we have a harmful, toothless National Guardian’s Office for the NHS which serves mainly to mislead and pump out government propaganda. In Scotland, NHS whistleblowers can turn to the Independent National Whistleblowing Officer, who is part of the Scottish Public Services Ombudsman (SPSO). This has powers of investigation but not of enforcement of its recommendations. It is early days for this body but there is no reason to expect that its lack of necessary powers will lead to much change.

The UK Parliamentary and Health Service Ombudsman (PHSO) also lacks powers of enforcement and has shown itself incapable on many occasions of delivering justice to those complaining about UK government departments and public authorities, including the NHS. An example follows in the appendix of an expensively unsatisfactory process in which PHSO made a finding of maladministration by the Care Quality Commission in a whistleblowing matter, but failed to ensure real learning and change. PHSO also failed to correct a factual inaccuracy in its report despite being warned before publication, and the Ombudsman himself ignored concerns about this for seven months. It also came to light that PHSO, unlike its Scottish counterpart the SPSO, had no process for dealing with complaints about the Ombudsman himself, a strong indicator of arbitrary power and lack of accountability.

There is ongoing debate about what form any central whistleblowing body should take, if we ever get that far. The strongest and safest offering out of three current candidates is the Bill by Dr Philippa Whitford: the Public Interest Disclosure (Protection) Bill, with the proviso that this needs to answer to parliament and not be conflicted by the political interests of any government.

The questionable Whistleblowing APPG (funded & linked to US bounty hunters) has fielded a suspiciously brief Bill. It gives us only a pig in a poke and has some important omissions:

The Whistleblowing APPG’s new Bill and unanswered questions about finances and potential conflicts of interest

Protect’s Bill gives us a whistleblowing body that does not investigate, despite a fallacious claim in a Protect blog that it does. This is correspondence exchanged with Protect’s CEO in which she declined to commit to changing Protect’s Bill (which merely amends rather than replacing PIDA), to give their proposed whistleblowing body powers of investigation. She merely undertook to correct the false claim in Protect’s blog.

Correspondence with Liz Gardiner Protect CEO about Protect’s intention to ensure effective investigation of whistleblowers’ concerns

Whistleblowers do not need endless window dressing and tortuous, ineffective processes that only re-traumatise them. The public needs real protection, not propaganda factories which waste our money in protection of the powerful. What is needed is a truly independent body with real powers to establish the truth and to act upon it.

If you have not already done so, please sign and share the petition for much safer UK whistleblowing law, which is strong enough to prevent cover ups and to ensure the public are protected:

Petition: Replace weak UK whistleblowing law, and protect whistleblowers and the public

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A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

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APPENDIX

EVIDENCE SUBMISSION TO PUBLIC ADMINISTRATION AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE FOR THE PHSO SCRUTINY HEARING 2019-20

This submission was published in redacted form by parliament  to remove third party correspondence. Committee members will be provided with the unredacted submission so they can see the primary evidence underlying the submission.

This is an unredacted copy of the submission which includes the supporting correspondence:

BY EMAIL

Public Administration and Constitutional Affairs Committee

29 October 2020

Dear Mr Wragg and colleagues,

Evidence submission for PACAC scrutiny hearing on PHSO 2019-20

We write to submit evidence on a recent experience of the PHSO and policy issues raised by this experience.

PHSO investigated a complaint of a mishandled referral to the Care Quality Commission under Regulation 5 Fit and Proper Person, about an NHS trust director who had been found guilty of proven whistleblower reprisal and breach of the NHS managers code of conduct (an under-declared family interest), who was subsequently convicted of fraud and also criticised for her attempts to resist the proceeds of crime process.

In our view:

  • The PHSO process was too protracted
  • The Ombudsman himself was unaccountable with regard to a PHSO failure to correct a factual error in its final report, despite this inaccuracy being pointed out prior to publication. He failed for seven months to respond to correspondence which pointed out the pre-publication failure to correct the inaccuracy.
  • Concerns raised about this lack of accountability led to the discovery that PHSO has no special procedure for complaints about the Ombudsman himself, causing inherent conflicts in the PHSO’s response to any complaints about the Ombudsman himself. This is an astonishing failure by a body which is supposed to be a specialist on complaints handling and it raises underlying issues of culture and organisational hubris.
  • There was a lack of rigour by the PHSO in pursuing compliance with its recommendations for corrective action by the CQC, notwithstanding its lack of enforcement powers. It seemed to us that a procedural box had been ticked and thereafter, the PHSO was not interested in enough in ensuring that there was learning or genuine remedy of injustice. The CQC CEO undermined an official apology given as part of the PHSO process, and to our knowledge, PHSO did not challenge this, contrary to its stated aims:

“We do not have legal powers to enforce our recommendations, but where an organisation is reluctant to implement them, we will try our best to persuade it to do so.”

https://www.ombudsman.org.uk/organisations-we-investigate/putting-things-right

Requests

  1. We do not consider that the PHSO model is robust enough to deliver accountability and good governance in public life, because of insufficient powers and the lack of a duty on the PHSO to enforce improvements and corrections. It does not seem good value for money (budget 2019-20: £25.942 million) and we ask parliament to consider an alternative model of conflict resolution.
  • We ask parliament to ensure that PHSO establishes a specific complaint procedure about complaints about the Ombudsman himself, which introduces an element of independence and external scrutiny. It would be unsafe and unjust to leave complaints about the Ombudsman in his own hands or the hands of his subordinates. In contrast, the Scottish Public Services Ombudsman has a policy for addressing conflicts of interest.
  • We suggest that the PHSO should have a process for handling self-evident factual inaccuracies in its final reports. It should be required to issue post-publication clarification, so that false narratives are not allowed to lie on the record without countervailing facts. The suggested process for acknowledging factual errors in PHSO’s final reports should be published and transparent to the public.

Please see in the appendix below the following items:

  1. Copy of email by Mandy Campbell which admitted that PHSO has no specific process for responding to complaints about the Ombudsman himself.
  • Copy of relevant section from the Scottish Public Services Ombudsman’s complaint policy, about their arrangements for impartiality in the handling complaints about the Ombudsman herself.
  • A more detailed account by Clare Sardari of her experience of the impact of the PHSO process.

Yours sincerely,

Dr Minh Alexander

Clare Sardari

APPENDIX

  1. Email by Mandy Campbell PHSO Chief Executive about lack of process for complaints about the Ombudsman himself:

From: Campbell Amanda <REDACTED>

Subject: RE: PHSO’s handling of a factual inaccuracy in investigation report HC 1815 of 13 December 2018, “Blowing the Whistle: An investigation into the Care Quality Commission’s regulation of the Fit and Proper Person Requirement”

Date: 30 August 2019 at 14:00:52 BST

To: Minh Alexander <REDACTED>, InformationRights <REDACTED>

Dear Dr Alexander

There is no policy that deals with complaints about the Ombudsman himself which is why I, as the Chief Executive, have taken a personal interest in your complaint and ensured that it has been responded to in an appropriate way.

I have copied this correspondence to the Information Rights team who will take forward your data disclosure request.

Yours sincerely

Amanda Campbell

Amanda Campbell CBE

Chief Executive Officer

Parliamentary and Health Service Ombudsman

  • Excerpt from SPSO complaints policy on handling complaints about senior staff and the Ombudsman herself:

“CSCs about senior staff and the Ombudsman

  • CSCs about senior staff (staff on the Leadership Team) can be challenging to handle, as there may be a conflict of interest for the staff investigating the CSC. When serious CSCs are raised against senior staff, it is particularly important that the investigation is conducted by an individual who is independent of the situation. Serious complaints include those types of complaints that pose significant operational, reputational, safety or financial risk to SPSO or its customers. Such CSCs must be immediately escalated to the Head of ISE and depending on the seriousness of the complaint in their view, to the Ombudsman. We must ensure we have strong governance arrangements in place that set out clear procedures for handling such CSCs.
  • Generally, it will be acceptable for the Ombudsman to investigate a CSC about a member of the Leadership Team where there is a segregation of duties and clearly no conflict of interest. This would include where the investigation officer has had no involvement in the matter complained about. In such instances, the Ombudsman should be consulted on the response to the complaint and make the final decision on the complaint based on the evidence identified by the investigation.
  • In relation to CSCs about the Ombudsman, a judgement needs to be made about whether the complaint relates to specific conduct or action by the Ombudsman or whether it relates to actions taken by the Ombudsman’s staff in their name (i.e. about the organisation). Where the complaint specifically relates to the conduct, behaviours or actions by the Ombudsman, the Head of ISE will assess the merits of the case and decide if the complaint should be referred immediately to the ICRS, or considered initially by a member of the Leadership Team. The ICRS will consider complaints about the Ombudsman’s conduct, behaviours or actions when referred by SPSO.”
  • Evidence for PACAC Scrutiny Session 2020 with PHSO by Clare Sardari

In 2014 when I raised a concern regarding nepotism at Chief Executive level in South Devon NHS Trust, little did I know that my future – emotionally, economically, socially, mentally, career-wise and in just about every possible way imaginable, would be harmed so dramatically. Little did I know that the processes and structures in place in the NHS and under UK law to ‘protect’ and care for those who were carrying out their responsibilities and duties as laid down by organisational and national policies, and the law, would be on the whole, useless or corrupt in their own way.

Concerns/complaints are the same thing – they are expressions of discontent or worry and particularly, from my experience, the NHS says one thing and acts in quite a different way when addressing these complaints/concerns. The Department of Health and Social Care has set up regulators – CQC, NHSE, NHSI etc, an Ombudsman and a Freedom To Speak Up service. But, what is now completely apparent, is that none of these bodies have been given the authority or powers to take responsibility for even the most heinous of behaviour within the NHS or Social Care.  Either they have fobbed me off with their denials of responsibility or they actually don’t have the powers to take action despite supposedly offering supportive services; either way, this situation is completely untenable. With every issue I have raised post winning at ET (if you can call it that!), the response has been ‘we don’t deal with that’ or ‘that is not our responsibility’. As a service user of the NHS, I have been thwarted at every stage in my pursuit of justice.

So today the issue of COMPLAINT is the area I’d like to pursue with regards to my contact with the PHSO and their investigation into CQC’s regulation and administration of the Fit and Proper Persons Requirement (FPPR).

In 2017, I complained to the PHSO, supported by my then MP and Chair of the Commons Health Select Committee Sarah Wollaston, about CQC’s involvement in the recycling of Paula Vasco Knight to the position of interim Chief Executive at St Georges Hospital in London.

After investigation the PHSO found that CQC’s handling of FPPR was not transparent, fair or proportionate and this amounted to maladministration. (a link to the ‘Blowing the whistle: an investigation into the Care Quality Commission’s regulation of the Fit and Proper Persons Requirement’)

Subsequently, the PHSO recommended that CQC, within 8 weeks of the report should:

  1. apologise for the injustice (loss of opportunity, frustration and distress) their actions have caused me
  1. offer me £500 in recognition of the injustice caused;
  2. review their learning from this case and report back about improvements they have made to demonstrate rigour in their FPPR considerations in future.

Below, I have cut and paste the ‘apology’ letter I received from Professor Edward Baker – Chief Inspector of Hospitals. I was most disappointed and distressed by the tokenistic and very grudging apology he gave me on behalf of the CQC. It was the height of condescension and certainly did not reassure me that the CQC meant to learn anything from this process.  I am in complete agreement with the Ombudsman’s Principles of Good Administration but cannot identify the part in Professor Baker’s letter which adheres to the general principle of ‘Putting things right…’ What he does successfully is he puts the words in the right order but there is no sincerity, thus he is not putting things right! He is doing the bare minimum that has been asked of him and he makes that very clear.

Dear Ms Sardari,

14 December 2018

I write further to the Parliamentary and Health Service Ombudsman (PHSO) investigation of your complaint regarding the Care Quality Commission’s (CQC) application of the Fit and Proper Persons Requirement (FPPR) in relation to the appointment of a Chief Executive to Trust P in 2016. I understand that a copy of the final PHSO report has been shared you.

The PHSO has partially upheld your complaint overall and set out a number of recommendations for CQC.

We are sympathetic to your experience, and are sorry for the frustration and distress caused to you through CQC’s application of the FPPR process. In recognition of this, the PHSO has asked us to offer you a consolatory payment of £500. Please can you email your relevant bank details including the sort code and bank account details to ……………. upon receipt we will make arrangements to make a BACS transfer to you.

In respect of the final recommendation outlined by the PHSO, CQC will undertake a review on how to make improvement to the current FPPR process and will update the PHSO in due course.

Yours sincerely,

Professor Edward Baker Chief Inspector for Hospitals

page1image48706560

This apology coincided with a press release from Ian Trenholm CQC CEO

“We recognise that the handling of this case – both by CQC and by wider NHS organisations – did not meet Ms Sardari’s expectations of how the Fit Proper Persons Requirement (FPPR) should operate, and acknowledge her frustration and distress. We take the treatment of whistleblowers very seriously and are wholly committed to the Speak Up agenda.

“This was a challenging case which clearly demonstrates the difficulties faced by NHS bodies who are required to operate the FPPR system and for CQC operating under the current regulatory framework. The current framework needs reform if it is to meet the needs of people, providers and regulators. 

“Those difficulties have been acknowledged for some time and they are the subject of an independent Review by Tom Kark QC, who is due to report to the Department of Health and Social Care shortly. 

“We do have concerns about the approach adopted by the Parliamentary and Health Service Ombudsman (PHSO) which led to some of the findings of maladministration.  There was a considerable amount of contradictory evidence for the Trust to assess.  This included an Employment Tribunal decision, which was not consistent with other pieces of evidence.  Under existing FPPR regulation our role is to consider whether the Trust acted reasonably in coming to their conclusions about the weight that should be attached to various pieces of evidence, rather than whether we would have reached the same conclusions. We judged the Trust had performed its obligations reasonably when faced with this difficult situation.  We are disappointed that the PHSO came to a different conclusion. We have made these concerns clear in our response to the report.”

As a result of the ‘apology’ letter and Ian Trenholm’s press release I decided to complain to Peter Wyman – Chairman CQC– see below:

Dear Mr Wyman,

Complaint about Ian Trenholm’s actions in response to PHSO report on the Paula Vasco-knight FPPR

It is with regret that I would like to make a complaint about the actions of Ian Trenholm, CEO of CQC.

His press release statement following the publishing of the PHSO’s Blowing the Whistle: an investigation into the Care Quality Commission’s regulation of the Fit and Proper Persons Requirement, is insulting, distressing and patronising.  He does not accept responsibility for CQC’s errors and he continues to promote  the strong message that  those who victimise whistleblowers should escape accountability. 

I don’t want him to recognise that CQC did not meet my expectations, I want him to recognise that accountability is vital in protecting the public interest. 

My complaint also lies with his and CQC’s ability to determine the importance and weighting of evidence. It is not a question of numbers of pieces of evidence it is about the weight of each individual piece. The ET decision was the weightiest piece of evidence in this assessment of FPPR, because, in law, it evidenced several aspects of discrimination and reprisal against me. 

The fact is that neither St Georges nor CQC acted reasonably in coming to any of their conclusions, and such governance failure is putting Trusts, their staff and patients at serious risk of harm.

I am seriously concerned that Mr Ian Trenholm’s press statement and comments in the Health Service Journal today contradicted and totally undermined the apology that I received from the CQC via Prof Ted Baker CQC Chief Inspector of Hospitals.

I had been disappointed by the limited concessions made in Prof Baker’s letter of ‘apology’. I was amazed and very distressed when even that was effectively taken away by Mr Trenholm’s defiant comments and denials that CQC had erred.

It makes a farce out of the PHSO process, which itself has been prolonged and stressful for me, and forced me to re-live unpleasant experiences.

Mr Trenholm’s actions disrespected me and they disrespected the basic principles of justice which underlie the PHSO process.

He should not have cocked a snoot at a long, significant investigation nor brushed aside my concerns about injustice in such a manner. To me, that is just more maladministration.

Rather, he should be reflecting much more seriously on how CQC got it so wrong. 

Justice demands that such frailties having been exposed in CQC’s processes, the regulator should now ensure that there is meaningful review of all the FPPR referrals that CQC has rejected. 

The likelihood is that CQC has allowed unfit directors to continue working in the NHS, and this is a serious patient safety and Safeguarding issue.

I await your earliest response.

Yours sincerely,

Clare

Clare Sardari

 Cc Matt Hancock Secretary of State 

Please find below a copy of the reply I received from Peter Wyman:

page1image48666512
page2image48689968

The third and final recommendation the PHSO report made was that the CQC would:

Review their learning from this case and report back about improvements they have made to demonstrate rigour in their FPPR considerations in future.

From this statement, I was under the impression that I would receive details of CQC’s learning and improvements. Apparently, this information is not generally provided as a matter of course to the complainant. I find this obscure as the main reason for complaining is to bring about change. I also need to see the evidence that the changes have actually occurred or will be made.

I did receive this from PHSO when I asked for evidence of compliance:

Many thanks for your patience regarding the compliance in relation to our investigation about the CQC.  As you know, we have been liaising with the CQC in relation to action we recommended they take on your case – that they review their learning and report back on improvements they have made to demonstrate rigour in their FPPR considerations.  We consider that we have seen evidence to show that they have completed that action. 

In particular, the CQC have appointed an independent legal adviser, whose role is to consider all the evidence on FPPR cases and then submit advice to the FPPR Panel.  The FPPR Panel have also taken steps to ensure that their discussions and decisions on FPPR matters are detailed and recorded.  We believe that this provides an added layer of robustness to the decision-making process and an improved audit trail.  Therefore, we are satisfied that the CQC have adequately addressed the failings we found and compliance is complete.

I then asked the CQC for the name and contact details of the newly appointed legal adviser

I am writing in response to your query about the CQC’s compliance with our recommendation following out publication of our investigation report into your complaint.  You said that the CQC had refused to release the name of the legal adviser who provides independent advice.  You said that you were concerned that this showed that the CQC were not complying with our recommendation to ensure rigour in their handling of FPPR. 

As we explained in July 2019, we are satisfied that the CQC has complied with our recommendation on your case.  The CQC have appointed an independent legal adviser, whose role is to consider all the evidence on FPPR cases and then submit advice to the FPPR Panel. The FPPR Panel have also taken steps to ensure that their discussions and decisions on FPPR matters are detailed and recorded. We believe that this provides an added layer of robustness to the decision-making process and an improved audit trail. In other words, the CQC provided evidence of added rigour in the FPPR process, which delivered what we asked of them in our recommendation.

That said, we wanted to give you additional confidence about the present FPPR process followed by the CQC.  For that reason, we made enquiries to the CQC to see if they would be able to provide further evidence about the legal adviser’s actions in present FPPR cases.  The CQC said that they were concerned about sharing information with us which is unrelated to your particular complaint and includes personal information about others.  Therefore, they felt unable to provide more information to us.  

We are not a regulator. It is not our role to monitor the CQC’s ongoing actions.  We cannot compel the CQC to provide us with evidence once our investigation is closed. For these reasons, we propose to take no further action on your case.  The only way we may be able to intervene further is if we receive a fresh complaint which has completed the complaints process.

I recognise that you may be disappointed with our response, however, I hope you are reassured that we have taken it seriously.  Our involvement in your case is at an end and it is difficult to see how we might be of further assistance in the absence of a fresh complaint.

I am regularly advised that as a whistleblower my views, information, concerns, experiences etc are valued and respected (see communications above) but still the disrespect, and disregard continues and remains a consistent part in the way that power responds to me – a much harmed whistleblower that the system purports to want to protect!

I now return to the general heading of this evidence relating to the PHSO’s investigation into CQC’s administration of FPPR – COMPLAINT

As you will see throughout, there is no one taking responsibility for ensuring that action takes place for change. Everyone is telling everyone what they should be doing but no-one is ensuring it is done because none of the regulators are being held to account to provide evidence.

PHSO ‘recommended’ that CQC apologise to me. As I mentioned above, the word ‘sorry’ was used but not in a way that anyone could possibly believe was genuinely meant. The context, and the giving with one hand and the taking away with the other resulted in more frustration on my part and further raising of concerns or complaints.

The specific evidence of meaningful change and improvements were not shared and although I understand that confidentiality should be maintained, why can I not know the name and contact details of a legal adviser? Where does transparency figure in all of this? To me, this smacks of secretive behaviour, of fear of retribution or discovery instead of openness and transparency. Transparency is about seeing things clearly, the first step towards inspecting and adapting, or changing things for the better!

The financial remedy is tokenistic, I accepted it as my current income is limited and every little helps, but does it really compensate for the emotional and mental damage of the harm caused by the recycling and subsequent validation of Paula Vasco Knight? It does, however affect my own perception of my value to society – £500!

Where does my pain end? Is it when I have been brow beaten into defeat by the NHS because I dared to raise a concern/complaint against one of their rising stars?

So at the end of the day do I think that the stress of the PHSO investigation and the outcomes as a result, represent good value for money, and good value for the personal stress involved in the process and the added stress at the end?   No, I don’t. The only way change will happen is when those who can hold others to account on their behaviour have the power to do so, until then the status quo remains. Effective complaint handling could make all the difference, but it must go hand in hand with the power to take action and create change. Additionally, new legislation which properly protects whistleblowers from detriment from the moment a concern or issue is raised, is probably the only way forward for a more equal, open and transparent NHS and society!

Why is West Suffolk NHS Foundation Trust refusing to name the contractor who processed staff fingerprints?

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 17 November 2020

Background

West Suffolk NHS Foundation is the NHS trust rated ‘Outstanding’ by CQC

in January 2018, and which the National Guardian foolishly praised for good whistleblowing governance, which launched a mole hunt for a member of staff who had written anonymously to Susan Warby’s (a patient) bereaved family to raise concerns about safety.

The trust claimed fingerprints were found on this letter/ its envelope, and used this to intimidate staff, including a member of staff who had previously made public interest disclosures about other matters. Staff were threatened with possible consequences if they did not provide fingerprints and handwriting samples for matching. The trust letter sent to staff read:

“any refusal to provide consent … would be considered evidence which implicates you as being involved in the writing of the letter”.

The trust later retreated in the face of public condemnation and admitted that it should not have asked for staff fingerprints for matching.

Biometric data used for identification is classified as special category data under GDPR, European data protection legislation, and it can only be used for identification based on “explicit consent”. The trust therefore acted outside of its powers when it coerced staff.

The ICO confirmed that the trust staff affected would, on the face of the known facts, have a legitimate basis for lodging a complaint.

A “rapid” review  of the West Suffolk governance failure was commissioned by NHS Improvement in February 2020 and its publication is awaited.

The matter is of special sensitivity as the Secretary of State, the local MP, was implicated by reported failure to help trust staff who sought his help to address patient safety issues and his protection against management bullying. Hancock and the West Suffolk CEO have also exchanged public compliments. It remains to be seen what influence the Department of Health and Social Care will exert over the rapid review report.

West Suffolk’s processing of the purported finger prints

To help tighten up the facts available, I asked West Suffolk about its handling of the fingerprint data. Farcically, the trust initially stalled by asking what I meant by fingerprint data. It has now responded, claiming that it only holds the fingerprints in the form of the original letter/envelope, and does not hold a digital form of this data.

The trust admits that its data protection policy does not explicitly cover biometric data but claims that “by its nature” the policy implicitly covers special category data. That is an unsatisfactory argument. The failure to explicitly tell staff about their rights regarding special category data is unfair. Suggesting a lack of genuine regret, the trust has not bothered to review and amend its data protection policy despite the above furore over its infringement of staff rights.

Of concern, the trust is also tight-lipped about whom it paid public money to analyse the alleged fingerprints on the anonymous letter/envelope. It claims it cannot reveal this information due to the commercial interest exemption. This seems an unusual application of this exemption and I will appeal.

One has to wonder about the reasons behind the trust’s obfuscation.

The trust now claims that the contractor no longer holds the fingerprint data:

“11. Does any third party (or parties) still hold the fingerprint data?

No.”

Lastly, the trust denies that it holds any other staff fingerprint data other than those related to the Warby case.

The FOI correspondence with the trust is provided in the appendix.

If you have not done so already, please sign and share the petition for much better UK whistleblowing law, to replace the currently ineffective system response which is reactive, too slow to prevent harm and very often compromised. We need a proactive system with the powers to establish the truth much more quickly, reduce whistleblowers’ exposure to reprisal and correct governance failures speedily.

Petition: Replace weak UK whistleblowing law, and protect whistleblowers and the public

RELATED ITEMS

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

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

Matt Hancock Secretary of State for Health and Social Care, and Freedom To Speak Up lanyard sporting Steve Dunn, CEO of West Suffolk, in happier times

APPENDIX
FOI correspondence with West Suffolk NHS Foundation Trust

From: FOI <REDACTED>

Subject: FOI 20-14795

Date: 17 November 2020 at 08:45:27 GMT

To: minh alexander <REDACTED>

Cc: FOI < REDACTED >

 Dear Dr Alexander 

I am writing to confirm that the West Suffolk NHS Foundation Trust has now completed its search for the information which you requested on 12th September

Thank you for your email dated 24th October clarifying your request for information dated 12th September. We are now in a position to provide a response to the questions posed with the context that you have provided.

We note that by using the term ‘fingerprint data’ you are referring to finger prints on a specific letter/envelope which was sent anonymously to a member of the public. On that basis, we can respond to your numbered points as follows:

  1. Where did the trust store the data on the fingerprints from the anonymously sent documents/ envelope?

The anonymous letter was stored in a sealed police evidence bag in a locked secure location in the Trust’s premises.

  • Who in the trust had access to the fingerprint data?

The sealed evidence bag was sent by the police to the Trust, and a limited number of staff held the evidence bag but did not open it; these include the Case Investigator and the Case Manager.

  • Does the trust still hold the fingerprint data?

Yes.

  • If the trust had multiple copies of the fingerprint data, please disclose all locations in which the fingerprint data has been stored

The Trust did not/does not have multiple copies.

  • Please disclose what level or levels of IT security applied to the stored fingerprint data.

This is not applicable as the fingerprints to which you refer are on a hardcopy envelope/letter.

  • Did any third party store the fingerprint data at any point?

Yes, a laboratory specialising in fingerprinting.

  • Please disclose details of the third party or parties who stored the fingerprint data.

This Trust considers this information to be exempt from disclosure under s.43(2) of FoIA which states that information does not have to be disclosed if it would or would be likely to harm the commercial interests of any person. The exemption in s.43(2) is qualified, which means it is subject to a public interest test. The Trust has considered the public interest arguments in favour of disclosing the information and the public interest arguments in favour of maintaining the exemption. It has reached the conclusion that the public interest balance lies in favour of maintaining the exemption.

  • If a third party or parties stored the fingerprint data, where did the third party (or parties) store the fingerprint data?

As above, the Trust considers this information to be exempt in accordance with s.43(2) of FoIA. We have consider the public interest balance and have reached the conclusion that the public interest is in favour of the exemption.

  • Was the level of IT security applied by these third parties in storing the fingerprint data agreed with the trust, whether specific to this case or by contract?

The Trust undertook due diligence in relation to the laboratory in question which is a recognised company providing a range of forensic science expert witnesses to criminal and civil courts, companies, private investigators, sports teams and private clients. 

  1. Please disclose the details of the level of IT security agreed between the trust and third parties.

As per question 9 above.

  1. Does any third party (or parties) still hold the fingerprint data?

No.

  1. Does West Suffolk NHS Foundation trust hold any other fingerprint data, other than that related to the anonymous fingerprint data from the Susan Warby case?

No.

  1. Does the trust have any policy on the processing of sensitive staff biometric data (such as fingerprints), and if so has this been reviewed and or updated since the trust announced that it was dropping its attempts to obtain fingerprint evidence from trust staff, to see if any matched the fingerprints on the anonymously sent documents/ envelope about the Warby case.

The Trust has a Data Protection Policy which by its nature implicitly covers the processing of ‘special category’ data including biometric data. That policy does not make explicit reference to biometric data and has not been reviewed or updated in response to the fingerprint investigation undertaken by the Trust.

The information supplied to you continues to be protected by the Copyright, Designs and Patents Act 1988. You are free to use it for your own purposes, including any non-commercial research and for  the purposes of news reporting. Any other reuse, for example commercial publication, would require the permission of the copyright holder.

If you are unhappy with the service you have received in relation to your request and wish to make a complaint or request a review of our decision, you should write to:

Chief Executive

West Suffolk NHS Foundation Trust

Hardwick Lane

Bury St Edmunds

Suffolk IP33 2QZ

If you are not content with the outcome of your complaint, you may request the Information Commissioner’s Office to carry out a review.

Kind regards

Jenny Hards

Senior Information Governance Officer

West Suffolk NHS Foundation Trust
Hardwick Lane|Bury St Edmunds|SUFFOLK|IP33 2QZ


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From: minh alexander <REDACTED >

Subject: FOI 20-14795

Date: 24 October 2020 at 12:32:59 BST

To: Stephen Dunn <REDACTED>

Cc: FOI <REDACTED>

BY EMAIL 

Steve Dunn

CEO West Suffolk NHS Foundation Trust

24 October 2020

Dear Mr Dunn,

I have had a rather unexpected response from West Suffolk NHS Foundation Trust to my FOI request of 12 September 2020, in which the trust has asked me, after the FOI response was due, to clarify what I meant by “fingerprint data”. Please see the correspondence exchange with the trust, below.

I clearly meant finger prints detected either on the anonymous letter, the envelope that it arrived in or any enclosures, which sparked the trust’s molehunt & initial demands that staff provide finger prints for matching against those purportedly found on the anonymous letter/ envelope/ enclosures.

I not sure how much clearer I can be.

Please expedite the trust’s response.

Many thanks

Dr Minh Alexander

From: FOI <REDACTED>

Subject: : FOI 20-14795

Date: 12 October 2020 at 10:42:19 BST

To: minh alexander <REDACTED >

Cc: FOI <REDACTED>

Dear Dr Minh Alexander,

Request for Information

Thank you for your email of 12th September 2020 which we are treating as a request made under the Freedom of Information Act 2000 (‘FoIA’).

You have requested information relating to ‘fingerprint data.’

We have given careful consideration to your request and have reached the conclusion that it is not sufficiently clear to enable us to locate or identify any information. In accordance with our duty under s.16 of FoIA, we would like to assist you to clarify your request to the extent that we are able to properly respond to it.

More specifically, please could you clarify what you mean by the term ‘fingerprint data’ for the purposes of your request?

Please note that in accordance with s.1(3) of FoIA, we are not under any further obligation to respond to your request until clarification has been provided to us. 

If you have any complaint about the way in which your request has been handled, please write to

Chief Executive

West Suffolk NHS Foundation Trust

Hardwick Lane

Bury St Edmunds

Suffolk IP33 2QZ

who will conduct a review. If your complaint is not resolved to your absolute satisfaction, you have the right to apply to the Information Commissioner for a decision. The Information Commissioner can be contacted by writing to Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Yours sincerely

Jenny

Jenny Hards| Senior Information Governance Officer

Cedar House

West Suffolk NHS Foundation Trust
Hardwick Lane|Bury St Edmunds|SUFFOLK|IP33 2QZ

Requests received after 3pm will be logged the following working day


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From: FOI <REDACTED >

Subject: FOI 20-14795

Date: 15 September 2020 at 09:37:59 BST

To: ‘minh alexander’ <REDACTED>

Cc: FOI <REDACTED >

Freedom of Information Request Acknowledgement

Thank you for your request which was received by us on 14th September 2020

Under the Freedom of Information (FOI) Act 2000 we are required to provide a response within 20 working days. You should expect to receive a response by 12th October 2020

We will advise you if we do not hold the information requested or if an exemption applies.

Your request has been given the reference number FOI 20-14795 .

Jenny

FOI Team

Cedar House

West Suffolk NHS Foundation Trust
Hardwick Lane|Bury St Edmunds|SUFFOLK|IP33 2QZ

Requests received after 3pm will be logged the following working day

From: minh alexander [REDACTED] 
Sent: 12 September 2020 11:17
To: FOI
Cc: Dunn Stephen
Subject: Handling of fingerprint data by West Suffolk NHS Foundation Trust and third parties

Dear Sir,

Handling of fingerprint data by West Suffolk NHS Foundation Trust and third parties

Regarding the trust’s attempt to obtain fingerprints from staff, in an investigation to find out who had sent an anonymous letter to the bereaved family of Susan Warby, a deceased trust patient whose care was criticised by the coroner:

https://www.theguardian.com/society/2020/sep/07/errors-west-suffolk-hospital-contributed-womans-death-susan-warby

1. Where did the trust store the data on the fingerprints from the anonymously sent documents/ envelope?

2. Who in the trust had access to the fingerprint data?

3. Does the trust still hold the fingerprint data?

4. If the trust had multiple copies of the fingerprint data, please disclose all locations in which the fingerprint data has been stored

5. Please disclose what level or levels of IT security applied to the stored fingerprint data.

6. Did any third party store the fingerprint data at any point?

7. Please disclose details of the third party or parties who stored the fingerprint data.

8. If a third party or parties stored the fingerprint data, where did the third party (or parties) store the fingerprint data?

9. Was the level of IT security applied by these third parties in storing the fingerprint data agreed with the trust, whether specific to this case or by contract?

10. Please disclose the details of the level of IT security agreed between the trust and third parties.

11. Does any third party (or parties) still hold the fingerprint data?

12. Does West Suffolk NHS Foundation trust hold any other fingerprint data, other than that related to the anonymous fingerprint data from the Susan Warby case?

13. Does the trust have any policy on the processing of sensitive staff biometric data (such as fingerprints), and if so has this been reviewed and or updated since the trust announced that it was dropping its attempts to obtain fingerprint evidence from trust staff, to see if any matched the fingerprints on the anonymously sent documents/ envelope about the Warby case.

Yours sincerely,

Dr Minh Alexander

Cc Steve Dunn CEO West Suffolk NHS Foundation Trust