Alexander's Excavations

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 29 April 2018

Almost exactly two years ago I asked NHS Improvement what action it would take in response to the Employment Tribunal’s findings in favour of Dr Raj Mattu, in his very well-known whistleblowing case.

The question has still not been answered. NHS Improvement initially ignored my enquiry. I asked again in February of this year. Promissory notes have ensued, but there has so far been no evidence of improved practice.

Mattu was one of six whistleblowers who met with Jeremy Hunt in 2014 leading to the costly political theatre otherwise known as the Freedom To Speak Up Review, which has changed nothing for whistleblowers.

So a key case which was purportedly a spur to better NHS transparency, and which cost so much suffering to Mattu and his family, has in reality not resulted in change.

Private Eye Issue 1364 Raj Mattu and the Death of Whistleblowing

There is not a lot more to say about the authenticity of Mr Hunt’s Freedom To Speak Up project. That said, it is important to note that the Freedom To Speak Up model is an obstacle to effective whistleblowing governance because it is being used by the government as an excuse for not pursuing real whistleblowing reform.

Dr Henrietta Hughes the NHS National Guardian has set up a ‘Pan-Sector Network’ for swapping ideas.

Irregularly, the NHS National Guardian has held un-minuted meetings with the management consultancy KPMG in setting up her Pan-Sector Network, as revealed by a CQC FOI disclosure.

CQC FOI disclosure of 19 April 2018, Ref IAT 1718 0886, about meetings between the National Guardian and KPMG  “Meeting with KPMG 2nd February and 22nd May 2017  We hold no records from these meetings however we can advise you of the following:  The purpose of these informal meetings was to discuss the NGO’s Pan-Sector Network.   The National Guardian’s Office (NGO) believes that the NHS has much to learn from other sectors – many of whom have learnt from tragedies which could have been prevented if staff had been supported in speaking up. The NGO therefore launched a pan sector network in 2017 which will enable cross-sector discussions and learning.  The network includes representatives from the sectors of finance, regulation, health, sports and aviation.  The network held its first meeting in July 2017. It is anticipated that the network will meet two to three times a year.  By working together, the NGO hopes that we can progress more efficiently to a point where all workers feel listened to and valued.”

 

The correspondence with NHS Improvement about Mattu’s case is provided below.

 

RELATED ITEM

FPPR: CQC has lost all moral authority, but what will the National Guardian do?
Correspondence with NHS Improvement about Raj Mattu ET Judgment

From: “GRIMES, Tom (NHS IMPROVEMENT – T1520)” <********************************>

Subject: Fwd: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Date: 29 March 2018 at 09:28:37 BST

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

 

Hi Minh

The below is what I intended to send you – apologies if it didn’t get through properly first time.

 

Tom

Sent from my iPad
Begin forwarded message:

From: “GRIMES, Tom (NHS IMPROVEMENT – T1520)” <**************************>
Date: 28 March 2018 at 17:30:04 BST
To: Minh Alexander  <***************************>
Subject: FW: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Hi Minh

I am mindful that I haven’t come back to you on this yet, and I am now on leave until 9^th April. We are still considering the matter and I will be in touch further in the next few weeks.

I am sorry for the delay.

Best wishes

Tom

 

From: GRIMES, Tom (NHS IMPROVEMENT – T1520)
Sent: 07 March 2018 17:13
To: ‘Minh Alexander’
Cc: WORRALL, Jeff (NHS IMPROVEMENT – T1520); Steve Barclay ********************; DALTON, Ian (NHS IMPROVEMENT – T1520); HARDING, Dido (NHS IMPROVEMENT – T1520)
Subject: RE: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

 

Dear Minh

Thanks for your email, and sorry you have had to chase.

As I’m sure you know, this is a lengthy employment tribunal judgement and we are considering it carefully. The references to David Loughton relate to events that are 15-20 years old and so do not raise current governance concerns for us regarding University Hospitals Coventry and Warwickshire NHS Trust. However, I realise that he is currently Chief Executive at Wolverhampton and we are looking at whether it raises issues there.

I am sorry this is taking a little while, but we are taking it very seriously and I hope to be in contact further in the next few weeks.

Best wishes

Tom

Tom Grimes

Head of Enquiries, Complaints and Whistleblowing

NHS Improvement

Direct Line ***********************| www.improvement.nhs.uk
Wellington House, 133-155 Waterloo Road. London SE1 8UG

 

From: Minh Alexander [mailto: ********************* ]
Sent: 05 March 2018 13:40
To: GRIMES, Tom (NHS IMPROVEMENT – T1520)
Cc: WORRALL, Jeff (NHS IMPROVEMENT – T1520); Steve Barclay ******************; DALTON, Ian (NHS IMPROVEMENT – T1520); HARDING, Dido (NHS IMPROVEMENT – T1520)
Subject: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Thanks Tom,

I wonder if it is possible to know when NHS Improvement will be in a position to reply?

BW

Minh

 

From: “GRIMES, Tom (NHS IMPROVEMENT – T1520)” <********************>

Subject: FW: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Date: 15 February 2018 at 16:32:05 GMT

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

Hi Minh

I just wanted to acknowledge this and say that we aim to be in contact with a response next week.

BW

Tom

From: Minh Alexander <*******************>
Date: 12 February 2018 at 08:49:55 GMT-7
To: Jeff Worrall *****************
Cc: Steve Barclay<**********************>, Ian Dalton <******************>, Dido Harding <********************>
Subject: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Dear Mr Worrall,

Further to Bill Kirkup’s conclusions about avoidable harm to patients at Liverpool Community Health NHS Trust due to poor leadership of the trust, and the Minister of State’s announcement of a review of governance of the Fit and Proper Test in the NHS, I wonder if I could possibly have a response to my letter to you of 12 May 2016, copied below.

Yours sincerely,

Dr Minh Alexander

cc Steven Barclay Minister of State

Dido Harding Chair NHS Improvement

Ian Dalton CEO NHS Improvement

 

From: Minh Alexander <*********************>

Subject: Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

Date: 12 May 2016 at 15:33:31 BST

To: Jeff Worrall ********************* Cc: Hines Andrew <*******************>, Health Committee <****************>, Sarah Wollaston *******************, Philippa Whitford *******************, Emily Thornberry *******************, Maggie Throup ********************, Liz McInnes ********************, Andrew Percy ******************, James Davies ******************, Andrea Jenkyns  *********************, Paula Sherriff ********************, Ben Bradshaw *********************, Julie Cooper ********************, Robert Francis *******************, “CE England (NHS ENGLAND)” <******************>, ****************************** <******************** >

 

Mr Jeffrey Worrall Portfolio Director for Midlands & East 12 May 2016

Dear Mr Worrall,

Re Review by NHS Improvement of governance and patient safety issues arising from the Employment Tribunal finding in Dr Raj Mattu v University Hospitals Coventry and Warwickshire NHS Trust

After Monitor launched an investigation last year into Derbyshire Healthcare NHS Foundation Trust as a result of an serious ET finding against that trust (sexual harassment and cover up of wrongdoing http://www.cloisters.com/images/Marks_-_judgment.pdf ) I asked NHS TDA to review the governance and safety issues arising from the ET judgment against Croydon Health Services NHS Trust, and it kindly did so.

I also asked if NHS TDA would review the implications of the 2014 ET judgment against University Hospitals Coventry and Warwickshire NHS Trust (UHCW) in favour of Dr Raj Mattu. I was advised by your colleague Mr Andrew Hines that you were the appropriate contact for this matter. I hope that this is still correct, following the establishment of NHS Improvement to replace NHS TDA, but please advise me if it is not.

Now that a very critical Verita report has been published today about the handling of  whistleblowing concerns by Royal Wolverhampton Hospitals NHS Trust, where Mr David Loughton has been Chief Executive since leaving UHCW, I would be grateful if NHS Improvement could advise whether it will review Dr Raj Mattu’s case and the governance and patient safety issues arising from the ET judgment against UHCW.

I ask NHS Improvement to note the well-known fact that numerous vexatious allegations were made to GMC against Dr Mattu, and that allegations were also made to the GMC in the more recent case of another whistleblower, Prof David Ferry, at Royal Wolverhampton. Prof Ferry was cleared by the GMC only a few months ago: http://www.expressandstar.com/news/2016/01/18/cleared-after-four-year-fight-victory-for-nhs-whistle-blower/

Dr Mattu’s case is very well known, but I  ask NHS Improvement to note a detail that was reported by Private Eye in its 2011 special on NHS whistleblowing:

“Mattu’s representative, Stephen Campion, was called to an off-the-record meeting with Loughton at a local hotel. At that meeting, Campion claims Loughton said: ‘I’m not interested in giving Dr Mattu a parking ticket, I want him off the road.” Two months later, Mattu was suspended on an allegation of bullying. He remained suspended for six years. “

http://drphilhammond.com/blog/wp-content/uploads/2011/11/Shoot_the_Mesenger_FINAL.pdf

I hope to hear from you.

Yours sincerely,

Dr Minh Alexander

Cc Health Committee

Simon Stevens CEO NHS England

Sir Robert Francis QC

Jim Mackey CEO NHS Improvement

Andrew Hines NHS Improvement

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By Dr Minh Alexander and Clare Sardari @SardariClare   NHS whistleblowers, 26 April 2018

Whistleblowers are united in calling for reform of UK whistleblowing law which was introduced twenty years ago but is ineffective in protecting the public interest and those who speak up.

The NHS National Freedom To Speak Up Guardian has not agreed to support calls for law reform, and her Office initially declined to support an event on law reform.

After several exchanges of correspondence , the National Guardian has agreed to sponsor such an event. It will be discussed at the next meeting of the National Guardian’s advisory group on 4 May.

Negotiations continue but this is an outline of the event, which is scheduled for 19 October 2018:

 

A WHISTLEBLOWER-LED EVENT ON UK LAW REFORM

There is consensus amongst whistleblowers that UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA), is weak and needs urgent reform.

Sir Robert Francis acknowledged in his report of the Freedom To Speak Up Review that PIDA is weak.

The salient concerns about PIDA are summarised below in the annex.

The National Guardian has to date not agreed to support calls for law reform, but has agreed to support an event led by whistleblowers on this issue.

 

Outline of event

Negotiations continue and the final details of the event are yet to be finalised, but an outline follows.

The event will seek to present expert evidence to key decision makers such as Ministers and the Law Commission about the need for whistleblowing law reform.

The format will include preparatory information gathering to inform the event and for publication in a report arising from the event:

1. Survey of participants and survey of NHS trust chief executives prior to the event

 

2. Collation of succinct whistleblowers’ personal accounts of their experience of PIDA and their views on how the law should change.

The event will be a small scale symposium to present expert legal evidence to key decision makers, and to allow for in depth discussion and start a conversation on what is needed.

Three key areas will feature:

• The need for pre-detriment protection
• The need to compel investigation of whistleblowers’ concerns
• The need for meaningful penalties for reprisal

Whistleblowers will facilitate the event and expressions of interest will be sought.

A full report will be produced from the event to document the evidence gathered and the arguments in support of reform.

Dr Minh Alexander and Clare Sardari, NHS whistleblowers, 25 April 2018

 

ANNEX: KEY CONCERNS ABOUT PIDA:

1. PIDA does not compel anyone to investigate whistleblowers’ concerns

 

2. PIDA does not confer protection. It only allows whistleblowers to sue for compensation after serious harm. There is no evidence that the prospect of being sued for compensation deters reprisal by employers. As long as employers have the means to pay compensation, they can easily rid themselves of whistleblowers by unfairly dismissing them.

 

3. PIDA does not confer personal jeopardy for those who cover up and victimise whistleblowers. There is no formalised penalty for betrayal of the public interest.

 

4. Under PIDA, whistleblowers personally carry the burden of risky litigation, even though the matters in question concern the public interest. The cost of litigation can be ruinous. Even on the rare occasions when whistleblowers ‘win’, the legal fees can swallow up much of what is already inadequate compensation for loss of livelihood and a future of long term unemployment.

ETs seem also to be increasingly awarding costs against whistleblower claimants. Equally, ETs may also dock compensation on the basis of alleged contributory fault by whistleblowers, that may in fact stem from inexperienced litigants in person being outgunned in court and thus making tactical mistakes, or the result of deliberate employer provocation to muddy the waters.

 

5. It is very hard to win PIDA cases. This is due to the nature of the legal tests that must be satisfied and the inequality of arms between employers and whistleblowers. Many cases are simply settled (usually to the whistleblower’s disadvantage) or they are withdrawn. Only approximately 3% of all whistleblowing PIDA claims eventually succeed at hearing.

 

6. PIDA is narrowly constructed to focus on employment issues, and PIDA cases are handled by Employment Tribunals, despite the fact that Employment Tribunals are not equipped to deal with whistleblowers’ concerns and struggle with the complexity of some of these cases. This perpetuates a focus on personal conflict and deflects attention away from the public interest and policy issues that provoke whistleblowing in the first place. It helps to continue the narrative by successive governments that whistleblowers are troublemakers, and neatly avoids the need to address the underlying risks to the public.

 

7. PIDA does not compel employers to improve their governance following whistleblowing failures. 8. PIDA focuses on whistleblowing governance failure by employers but not by regulators and government departments, when the latter are in fact much more serious and important. For example, the ET clarified that it had no jurisdiction for hearing Helen Rochester’s complaint about detrimental actions by the CQC towards her as a whistleblower.

 

This a comprehensive report by Blueprint for Free Speech which categorises in detail PIDA’s substantial flaws and shows how badly PIDA compares to legislation from other jurisdictions:

Protecting Whistleblowers in the UK 

This is a very recent case example, of Helen Rochester’s care home whistleblowing case, which clearly illustrates the weaknesses of PIDA and the ET system:

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

Helen Rochester proved the facts of her claim but still lost because the ET chose to give her former employer extraordinary latitude and the benefit of the doubt as to whether the detriment that it inflicted was motivated by her whistleblowing.

Her case is particularly cogent because she was twice betrayed by a regulator (the Care Quality Commission) which has since refused to transparently review its processes, further highlighting the folly of tolerating weak UK whistleblowing law in a system which is subverted by politicisation and various degrees and types of corruption.

Given such repeated and very substantial failures of PIDA over twenty years, it is not sustainable to maintain a position that law reform is merely secondary, and that a programme of nudging and soft culture change is more important.

Daily serious breaches of the Nolan standards – introduced over twenty years ago – in our public services amply demonstrate that soft codes of conduct and exhortation are no substitute for legislation, such as for example USA legislation, which governs conflicts of interest and prohibited personnel practices by federal employers.

Good law, which is accompanied by an appropriate enforcement infrastructure, will enforce better practice and drive culture change much more effectively and quickly.

It is time for the government to act upon this and to finally and properly protect whistleblowers.

 

UPDATE:

This information for whistleblowers, about the forthcoming call for evidence:

Forthcoming call for whistleblower evidence for an event on 19 October 2018

 

RELATED ITEMS:

Engineered failure to investigate NHS whistleblowers’ concerns

Sir Robert Francis and Reform of Whistleblowing Law

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

The smoke and mirrors on NHS whistleblowing by Jeremy Hunt et al continue, and this piece chronicles some more evidence of government manipulation.

A handful of whistleblowers were invited to the tightly controlled, high gloss, well-polished conference held by the National Guardian last month. Whilst the invitations were manifestly related to our membership of the National Guardian’s advisory group, it was unclear why we had been included.

We were not invited to lead any discussions or to present. We were given no role and allowed little voice. Time for audience questions and discussions was limited. Although there was an attempt to place whistleblowers in seats at the back and edges of the conference hall, some of us made other arrangements.

We were treated to a speaker – the King’s Fund Head of “Thought Leadership” – who referred to “angry” whistleblowers. He suggested that trust executives needed to deal more understandingly with irate whistleblowers. In doing so, he seemed not to acknowledge the fact that the vast majority of whistleblowers are very reasonable in raising concerns, and that it is only after repeated suppression and reprisals that some become angry.

I had a tussle with Henrietta Hughes on being allowed to respond to this distortion. We spent longer disagreeing on whether I could comment than it took me to rebut the Thought Leader’s misrepresentation. Several Speak Up guardians were brave enough to later privately express approval that I had spoken up, which rather said it all about the nature of the Freedom To Speak Up project.

Cult of personality was the order of the day. The National Guardian’s Office’s billed the key speakers as ‘stellar’. So much for public service values of selflessness.

This was the official conference slide pack produced by the NGO:

National Guardian’s conference 6 March 2018 slides

 

Uneven Stevens and a static 70% statistic

Simon Stevens triumphantly announced that an expansive promise which he made a few months previously to appoint one third of BME Speak Up Guardians at NHS England (NHSE) had been fulfilled.

Behind this theatre lay a great deal of evasion by NHSE. It had avoided answering questions for some time, prior to the conference about its achievement of the one third target, no doubt saving up for Stevens’ conference splash.

NHSE’s National Director for Transformation and Corporate Operations (NHSE’s Lead Guardian), has still not fully substantiated Stevens’ claim of one third BME despite several and increasingly specific enquiries. In short, NHSE has claimed that the crude headcount of BME Guardians is one third of the total, but has repeatedly failed to evidence that the WTE of BME Guardians genuinely comprises one third of its Speak Up Guardian service.

On 8 March NHSE shared internal documents which indicated that its Speak Up Guardians would have designated time for the role:

 “With sufficient designated time to carry out their role, participate in external FTSU activities, and take part in staff training , induction and other relevant activities”

but did not provide details of the WTE of its BME Speak Guardians.

When I continued to press for disclosure of the WTE details, this was the reply from NHSE on 16 April 2018:

“I will not be able to provide data on this time commitment, as Guardians are not required to record how much time they spend within their FTSU roles. Time is not considered a reporting factor; Guardians are focused more importantly, on ensuring colleagues feel empowered to raise their concern(s) via the FTSU process without any time constraints.  Any time spent within the Guardian role is protected time and the Guardians are fully supported to take as much time necessary to ensure the FTSU process fully supports colleagues when raising their concern(s).”

One might be tempted to wonder if NHSE hurriedly designated a selection of BME staff as ‘Guardians’ just to help shine up its CEO’s Race credentials, but without giving these staff ring fenced time to for the role.

This is the correspondence with NHS England, copied to Stevens:

NHS England correspondence re appointment of BME Speak Up Guardians

 

Of relevance, I asked NHS England to share a previously suppressed report on the experience of its BME staff, which had been leaked and was the subject of a report by the Health Service Journal in December 2017.

NHS England agreed but omitted to attach the report to its reply. After a further request, NHSE gave me the link to a more favourable report but this was dated March 2018. On the third attempt, the report was disclosed:

NHS England Deep Dive BME staff survey 2017

This showed that 58 out of 163 (36%) of BME NHSE staff who took part in the survey reported “personally experiencing bullying, harassment or abuse at work, based on their race since joining NHS England”.

A debate on Diversity was organised as part of the NGO’s conference on these lines:

The chair of NHS England’s advisory group for the WRES programme spoke against the motion.

Astonishingly, the conference voted against the motion.

But at least Stevens came clean about the fact that the key metric on NHS whistleblowing, question 13b of the national staff survey about staff security in speaking up, had remained static at 70%. This was despite the appointment of hundreds of Speak Up Guardians and the millions spent on the NGO and the Freedom To Speak Up project. However, neither Stevens nor the rally organisers openly acknowledged this enormous elephant in the room.

The static 70% statistic was omitted from the briefing report for the 2017 NHS Staff Survey.   The CEO of the Picker Institute, which conducts the survey, later advised:

“…the briefing report for the survey is intended to provide a summary of results rather than to fully list the results for every item.”

Email from Chris Graham 8 March 2018

But one would have thought that the overall score on question 13b would have been of great interest this year, after establishment of the Freedom To Speak Up Guardian network.

The score of 70% implies that 30% of 1.3 million NHS staff (390,000 staff) do not feel secure in raising concerns. That potentially represents a great deal of unreported patient harm and risks.

Nevertheless, Steven tacitly conceded that things were awry, because he indicated a need for increased measures. He floated a suggestion that the NHS might start tracking whistleblowing metrics in the annual NHS staff survey, broadly in the same way that the WRES programme tracks Race indicators.

However, a debate would be needed first on the validity of the current survey measures, and whether any changes are needed. Monitoring without enforcement, à la WRES policy, would be of little use.

 

‘Sorry’ is the hardest word for the CQC

As I arrived at the conference I came upon David Behan in obviously relaxed conversation and laughing heartily with a trustee of Patients First. They continued their discussion for some time as I followed them into the building.

When David Behan later spoke, he held forth on the importance of Just Culture, which was like the governance equivalent of watching dad-dancing.

In a cringeworthy contrivance, he repeatedly characterised the Freedom To Speak Up Guardian network as ‘social movement’, even though the project has been wholly centrally driven.

Behan subsequently approached me in unusual, tense manner for a very uncomfortable encounter. His approach was most unexpected given that he has avoided interaction where possible in the last few years. He even deployed snippy letters by his Head of Legal services. The interaction was also in marked contrast to the conversation that he had earlier with the Patients First trustee. I remain mystified as to why Behan approached me.

Whilst bestowing himself thus Behan asked my companion, a sacked and blacklisted fellow whistleblower, what they were doing now. He tersely dismissed the whistleblower’s concerns about CQC failure on FPPR.

Entertainingly, Behan managed to breached my confidentiality during the encounter. Whilst there was no real harm done by the breach, it was not his data to give away. He apologised at the time, but studiously ignored a mention of the incident in later correspondence. Despite demonstrating how easily slips may occur, Behan still declined to reconsider CQC’s previous refusal to audit its practice in safeguarding whistleblower’s confidentiality. 

Peter Wyman the CQC chair has since maintained this position, with the trademark charm that is now all too familiar.

This is the correspondence exchanged after the conference:

Correspondence with CQC about whistleblowers’ confidentiality March and April 2018

 

Jeremy Hunt’s statistical slipperiness

Jeremy Hunt deigned to appear at the conference. Subsequent FOIA disclosures by the National Guardian’s Office (NGO) and the Department of Health and Social Care (DHSC) revealed that there was careful stage management by the two bodies.

DHSC disclosure 9.04.2018 – correspondence between DHSC and National Guardian’s Office about the conference

CQC disclosure 9.04.2018 – correspondence between DHSC and National Guardian’s Office about the conference

The DHSC was keen to be supplied with ‘Good News’ items:

The NGO was careful to brief Hunt’s team about the presence of whistleblowers who were “less supportive” of government policy:

The NGO also briefed Hunt’s team that whistleblowers whom it had invited to the conference might have opinions:

NGO officials even solicited retweets from the DHSC, consistent with the social media strategy of central NHS bodies to prop each other up.

Potential answers to questions about the private sector were rehearsed:

Where there were anticipated questions about weaknesses, the strategy deployed was one of deflection. For example:

1. On the lack of compulsion for primary care providers to appoint Speak Up Guardians:

 

2. “Q Where are the ‘teeth’ in the system to bring employers to account for bullying?”

Answer:

The NGO also briefed the DHSC that CQC will assess how well the Speak Up Guardian role is implemented in any given trust:

This is bound to work well for the Secretary of State then, as the CQC has helped to bury whistleblowers whether by act, omission or both. The CQC has through its various failures made whistleblower reprisal acceptable.  It has no transparent, fit for purpose inspection methodology on whistleblowing governance. CQC’s guidance notes on whistleblowing for inspectors are painfully basic and do not give confidence that inspectors have the necessary expertise.

Hunt brazenly claimed during his speech to the conference that 90% of staff who had raised 4600 concerns through trust Speak Up Guardians would speak up again. He then tweeted the claim for good measure:

Whilst Hunt waved the ‘Robert Francis’ kitemark about, Sir Robert Francis was noticeable by his absence.

The NGO supplied the 90% statistic:

Dr Henrietta Hughes National Guardian speaking on 6 March 2018

 

The 90% statistic was based on incomplete, flawed data – more about that another time. It was unpublished, and has been confirmed to be so by a UK Statistics Authority investigation. Hunt breached the UK Statistics Authority’s code by citing an unpublished statistic. The code seeks to restrain dissemination of dodgy digits by Ministers for political gain. Hunt has done it before. 

From a letter 18 April 2018 by the UKSA’s Director General of Regulation to me about Hunt’s use of the 90% statistic:

But then, what’s a fib or two when you’re ‘stellar’?

 

UPDATE 29 JULY 2018

The National Guardian’s Office has still not published the 90% statistic despite the further UKSA correspondence. It has additionally cited what appears to be another unpublished statistic. I have written to question these behaviours, copied to UKSA.

Letter to Russell Parkinson Head of Office National Guardian’s Office re NGO’s use of unpublished statistics 29 July 2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By Dr Minh Alexander and Russell Dunkeld @RussellDunkeld , NHS whistleblowers, 21 April 2018

As many NHS whistleblowers are aware, the Department of Health and its arms length bodies sometimes declare failing organisations as turnaround successes whatever the truth of the matter.

CQC slaps on the green ratings and the trust executives start being showered with conspicuous accolades. Ministers may contribute a plug or two.

University Hospitals of Morecambe Bay NHS Foundation Trust is an example of re-branding. Morecambe Bay was notorious for the maternity safety scandal, which was the subject of a major report by Dr Bill Kirkup in March 2015

Morecambe Bay was also exposed for  victimising whistleblowers who raised concerns about the accuracy of breast cancer screening. The trust admitted in 2016 that it was still gagging whistleblower, details of which follow below. In 2016, a former nurse who was treated by Morecambe Bay revealed a picture of chaotic shortages. 

Despite such ongoing governance issues, Morecambe Bay has featured prominently in Jeremy Hunt’s publicity schemes and his superficial claims to be a patient safety champion, whilst overseeing a programme of disinvestment and resultant NHS crisis.

 

Maternity safety has been a key element of Hunt’s patient safety shtick.

 

Hunt has repeatedly used Morecambe Bay for political gain:

 

Although Hunt et al have been spinning the above line of transformation,  Morecambe Bay staff have not stopped whistleblowing outside of the organisation. Such external whistleblowing usually reflects internal whistleblowing governance problems – staff are either deterred in some way from using internal routes, or they have tried internally but been unable to progress their concerns.

FOI data from the regulator the Care Quality Commission (CQC) revealed that Morecambe generated the third highest number nationally of whistleblowing contacts to the CQC over 2015/16 and 2016/17.

Additional FOI data from the CQC, obtained by former Morecambe Bay whistleblower and nurse Russell Dunkeld revealed more detail about whistleblowing disclosures to CQC between 2014/15 to 2016/17:

CQC FOI disclosure Ref IAT 1718 0653 on whistleblowing contacts by Morecambe Bay staff

Russell Dunkeld is a nurse who whistleblew about serious patient safety issues at Morecambe Bay, including incorrect, undetected insertion of a nasogastric tube into a patient’s airway. This is a so-called ‘Never Event’ because it is a very serious but avoidable form of medical harm and should never happen. Dunkeld also whistleblew about concerns that a nurse colleague was hastening patients’ deaths by tampering with intravenous fluids. Dunkeld’s safety concerns have never been fully resolved. He believes a recent offer of employment from the trust to help improve its whistleblowing governance was withdrawn because he would not stop pursuing the unresolved patient safety and Safeguarding issues. The trust denied all: “Different people within the Trust have tried to engage with Mr Dunkeld over the past three months, and it is disappointing that he has yet to take up these offers as we believe that insight would help us in developing our approach to Freedom to Speak Up further” Former nurse blasts Morecambe Bay Health Trust’s whistleblowing policy

 

Out of 47 recent whistleblowing contacts to CQC about Morecambe Bay, only one triggered a follow up inspection. CQC dealt with the rest of the concerns mostly by speaking to the trust or sticking the information in a drawer, purportedly to be used at the next inspection.

Notably in 2017, the CQC was contacted twice by trust whistleblowers about the trust slipping back into old ways:

 “Concerns about returning to old practices to save money”

The CQC simply noted in its log that an investigation was ongoing.

As regards a 2015 disclosure of ongoing concerns about the breast cancer screening affair, CQC played pass the parcel with a related concern and appeared to it brush off with the conclusion:

“Met with complainant. Matter raised with  Public Health England . This was a matter between the whistleblower, Public Health England and NHS England.”

Not only were significant patient safety failings revealed by a November 2014 Public Health England investigation report , but other evidence of patient harm continued to emerge in 2015: New calls for Morecambe Bay breast cancer review.

Moreover, Morecambe Bay has continued to gag staff, including whistleblowers. The trust was evasive when questioned about its practices in this area but eventually admitted that it had gagged two whistleblowers and spent £92,519 on legal services in two whistleblower cases.

In October 2016 the Health Service Journal lavished praise on Morecambe Bay for revealing that past trust managers had reached an irregular settlement with one of the midwives from the maternity scandal, which included an undertaking from the trust not to investigate her performance.

But beneath this razzamatazz, the trust failed to fully answer enquiries about whether or not there were other such past non-investigation agreements.  The trust disclosed a summary report which waxed lyrical about how much had been learned:

Morecambe Bay redacted summary report disclosed November 2016 FOI request 6065

A snapshot analysis of Employment Tribunal decisions about NHS organisations revealed that Morecambe Bay was in the top ten of employers most claimed against.

The trust has also scored poorly on the Workforce Race Equality Standard (WRES). There have been pledges to improve. Morecambe produced a glossy strategy document featuring the obligatory token gesture by a smiling CEO, with a zippy declaration slapped across the cover: ‘Our Journey to Effortless Inclusion’.

But the trust’s WRES score remains poor. 38% of BME trust staff reported bullying by other staff in the previous 12 months, compared to a national average of 27% for comparable trusts. 19% of BME staff reported experiencing discrimination in the previous 12 months, compared to a national average of 15% for comparable trusts.

University Hospitals of Morecambe Bay NHS Foundation Trust 2017 Staff Survey results

 

In view of the poor WRES scores, Morecambe Bay was asked about its governance with respect to Race concerns. It twisted and turned in response. The trust initially tried not to answer at all, and would not even confirm or deny that it had conducted or commissioned any review into its poor WRES scores. It speciously claimed that no data was disclosable under exemption 41 FOIA – information given in confidence.

“Q5, 6 and 7 The Trust considers the request in questions 5, 6 and 7 exempt under Section 41 (1) of the Freedom of Information Act (2000) regarding the disclosure of confidential information The Trust considers this information exempt under Section 41 (1) (a) regarding information obtained by the public authority from any other person and (b) that disclosure would constitute a breach of confidence. We consider our obligation of confidence and will be unable to provide you with this information.”

After challenge, Morecambe Bay then delayed a response until two days after its outgoing CEO Jackie Daniel had been anointed and enthroned as the new CEO at Newcastle, following the acrimonious removal of Newcastle’s previous   CEO amidst recriminations of wrongdoing on both sides.

Morecambe Bay admitted that there had been Race concerns serious enough to warrant an external review by Prof Carol Baxter which had cost the trust a total of £25,000.

“The total cost of the external reviews commissioned by the Trust as referred to in our response to your question 5 was £25k.” 

 But the trust still maintained that none of the contents were disclosable.

The same FOI disclosure dated 2 March 2018, and received on 9 March 2018 revealed that a total 124 staff concerns had been raised through the trust Speak Up Guardian, but fewer than 5 of these related to Race issues.

The trust has also later revealed that 87 feedback forms were sent to staff who raised concerns through the Speak Up Guardian from April 2017 onwards, of which 32 (37%) had been returned.

In the course of the above wrangling with the trust about release of the data, a trust governor was copied into the correspondence. He commented:

“…as governors, we are aware of, and support, efforts made by the Trust to improve staff morale and the quality of relationships throughout the organisation. To this end we are aware that internal surveys of staff views in relation to the issues you raise are carried out on a routine basis, the results of which are shared with governors.

For my part I am confident that good work is being done by the Trust in these areas and that progress is being made.”

 Email 1 February 2018

One wonders if the trust has been totally open with its governors about the full extent and seriousness of its Race issues.

In complicated twist, it has just been reported that a white male surgeon alleges that he was persecuted at the trust for whistleblowing, and was subject to false Race allegations.

As for the CQC, it last rated Morecambe Bay as ‘Good’ overall (despite admitting that Morecambe Bay was sub-standard on ‘Safety’) and ‘Good’ on the well-led domain.

CQC inspection report on UHMBT February 2017

 

With regards to Race Equality, the CQC was contradictory – it largely gave Morecambe Bay a good report, but conceded that bullying of BME staff had increased.

Perhaps CQC’s Chief Inspector of hospitals should take another look at what are clearly very troubling and complicated issues of Equality and Diversity. Assuming CQC is bothered, and is not fettered by political instructions from on high.

 

RELATED ITEMS:

Race Discrimination by Public Health England

WRES, CQC and More NHS Hot Air on Race

 

 

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 19 April 2018

 

Whistleblowing cases can take years to resolve.

A very serious and interesting social care whistleblower case is that of Martin Morton’s whistleblowing about financial abuse of vulnerable adults who should have received care and protection by Wirral Council.

Morton was vindicated after a long fight, and the Council had to re-pay approximately half a million pounds to care home residents, that should not have been charged:

Wirral whistleblower Martin Morton’s six year fight for justice finally is over

The Equality and Human Rights Commission criticised Wirral Council for Disability discrimination:

Watchdog accuses Wirral Council of discrimination against disabled people

Morton’s case was featured by the specialist periodical Community Care, in which lack of effective protection for whistleblowers was highlighted:

Wirral social care whistleblower says “there’s not enough money in the world” to make uo for his family’s trauma

Notably, Morton successfully pursued his whistleblowing case using criminal harassment provisions, thereby underlining how serious whistleblower reprisal can sometimes be.

His case is important in helping to highlight the deficiencies of current civil UK whistleblowing law (the Public Interest Disclosure Act), which does not hold individuals responsible for misconduct and criminal behaviour in the course of suppressing and victimising whistleblowers.

His case also featured in reportage about widespread local authority use of gagging clauses:

Council whistleblower who signed gagging agreement speaks out

Morton is still seeking answers. The ICO ruled partly in his favour after the Council withheld a relevant report about the treatment of whistleblowers in its entirety.

ICO decision reference FS50649341

 

An Upper Tribunal (Administrative Appeals Chamber) will now hear an appeal for further disclosure at Field House, 15-25 Breams Buildings, London, EC4A 1DZ on 26 April 2018. This is a blog about the forthcoming hearing: Upper Tribunal (Administrative Appeals Chamber) case involving information request to Wirral Council by Martin Morton listed for public hearing on Thursday 26th April 2018

 

RELATED ITEMS:

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

Wirral whistleblower Martin Morton speaks up for truth and justice at Hillsborough Law event

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

 

Whistleblowers are crucial to the public interest and the protection of people’s rights, but can be viewed as a vexation by those in power, who want to stay in power.

Whistleblower protection will always be very hard-won. Parliament called for better whistleblower protection with two major reports, published respectively by the Public Accounts and Health Committees in 2014 and 2015.

There has been plenty of government spin since, but no real progress has been made.

The controversial case of Dr Bawa-Garba has caused much alarm about the professional risks that healthcare staff may face if they are forced to work in unsafe conditions over which they have limited control and in which speaking up is still risky.

I asked the Chair of the Health Committee a year ago to review the continuing failures of whistleblowing governance, and I understand that others have also asked for review. I now ask again.

All recent correspondence is laid out below.

 

 

BY EMAIL

Dr Sarah Wollaston

Chair of Health and Social Care Committee

16 April 2018

Dear Dr Wollaston,

Implications of Dr Bawa-Garba’s case and whistleblower protection

Thank you for responding to my previous correspondence of 10 March and 23 March, which for convenience I copy below.

Therein, you advise that the Committee does not review legal decisions and point me to Sir Norman William’s review on Gross Negligence Manslaughter.

To clarify, I did not write in the expectation that the Committee would review matters that are decided by the Courts.

Rather, I wrote to you about the conduct of the General Medical Council (GMC), and in my letter of 10 March I shared data that raised questions about the consistency of the GMC’s decisions. These were similar questions to those raised by the Committee itself especially with regards to possible Race bias. 

The Professional Standards Authority has also questioned why the GMC would deviate from case law established by the Supreme Court, in order to increase the severity of punishment against doctors:

PSA document disclosed via FOIA to the Health Service Journal (A)

PSA document disclosed via FOIA to the Health Service Journal (B)

I hope the Committee will help to ensure that there is fairness.

I am aware of the Gross Negligence Manslaughter review by Sir Norman, who also assisted Sir Robert Francis and the Department of Health with the Freedom To Speak Up Review. The recommendations from the Freedom To Speak Up Review were not strong. The relevant arms length bodies and the National Guardian’s office have over the last three years sought to further dilute even the modest help that Sir Robert proposed for whistleblowers.

In all, the Bawa-Garba case and other events leave doctors – and other Health and Social Care workers – in a cleft stick of being damned if they speak up, and damned if they do not.

The Secretary of State recently claimed misleadingly in a speech that 90% of staff who had raised 4600 concerns with Freedom To Speak Up Guardians would do so again. He also tweeted the misleading claim:

This figure of 90% was a flawed, unpublished statistic supplied by the National Guardian’s Office, the very body charged with upholding values of transparency and accountability.

The UK Statistics Authority has confirmed that the statistic was unpublished, and advised that it will write to the National Guardian’s Office to make suggestions for improvement. Discussion continues on the matter, and I will share further evidence with the Committee about these irregularities.

The truth is there is still no effective, reliable protection for Health and Care workers who speak out, at a time when service quality is deteriorating and there is a great deal of unsafe unmet need to report.

But whistleblowing to the Care Quality Commission is in fact decreasing, to the point that the Public Accounts Committee recently advised that the CQC should ensure that whistleblowers can be confident in contacting the Commission. (Page 7, Section 6)

And yet the conduct of the regulator itself is likely to be part of the problem, for example by admitting to breaches of whistleblower confidentiality but refusing to transparently audit its practice.

I wrote to you almost exactly a year ago to ask if the Committee might hold a follow up hearing on whistleblowing, particularly as its recommendations from January 2015 have not been implemented by the government to any real degree. I do not know of any whistleblower who has received genuine ‘apology and practical redress’ as set out by the Committee. (Page 36, para 115)

In fact, I know only of a single, seriously harmed whistleblower who has received an apology, which they consider is insincere because the DHSC has not helped to remove blacklisting.

I wonder if you would consider a follow up inquiry, as the failures of protection continue, at a serious cost to patients:

Of Arbitrarness and Arbiters: The Freedom To Speak Up Project Three Years On

There are concerns about whether the National Guardian’s Office is reviewing enough cases, selecting cases for review in a fair way and being open and accountable about its activities. The Office has  disclosed via FOIA that it spent more on comms than on establishing the Speak Up Guardian network. It has also announced only three case reviews, which focus on systems and not on helping individual whistleblowers in difficulty.  Further evidence will be shared with the Committee in due course.

With best wishes,

Dr Minh Alexander

Cc

Health and Social Care Committee

Harry Cayton CEO Professional Standards Authority

David Isaac Chair ECHR

Rob Behrens PHSO

Dr Philippa Whitford MP

Meg Hillier MP Chair of Public Accounts Committee

Secretary of State for Health and Social Care

Minister of State for Health and Social Care

Sir Terence Stephenson Chair GMC

 

CORRESPONDENCE FROM CHAIR OF HEALTH AND SOCIAL CARE COMMITTEE 16 ARPIL 2018

 

Dear Dr Minh Alexander,

Please find attached a letter from the Chair of the Health and Social Care Committee, Dr Sarah Wollaston MP.

Kind regards,

Health and Social Care Committee

House of Commons | London | SW1A 0AA

 

 

 

CORRESPONDENCE 23 MARCH 2018:

 

 

BY EMAIL

Health Committee

23 March 2018

Dear Dr Wollaston and colleagues,

Re Consistency of GMC decisions on erasure of doctors after convictions after conviction for criminal offences

I wrote to the Committee on 10 March to pass on disclosed GMC data, which showed that in the five years between 2013 and 2018, 50 out of 73 doctors subject to Fitness to Practice proceedings as a result of sexual offences were subsequently erased from the register.

The i newspaper published an article yesterday about the statistic of ‘1 in 3 doctors convicted of sex offences still able to practice medicine’, after it liaised with the GMC about these figures.

Today, the GMC has advised that it supplied incorrect data and that 60, and not 50 of the 73 doctors were struck off.

The relevant correspondence from the GMC is copied below

Yours sincerely,

Dr Minh Alexander

 

From: “Simon Willis (0161 923 6310)” <***********************>

Subject: RE: Your Information Access Request – F18/9323/SW

Date: 23 March 2018 at 13:32:15 GMT

To: Ian Alexander <************************>

 

Dear Mr Alexander,

I have noticed a typographical error in my email below and I am writing to provide you with the correct information.

In respect of your question 2, the number of doctors struck off was actually 60.

I apologise unreservedly for my mistake and for any inconvenience caused.

Yours sincerely

Simon Willis

Information Access Officer

Resources & Quality Assurance Directorate

 

 

LETTER 10 MARCH: 

BY EMAIL

Health Committee

10 March 2018

Dear Dr Wollaston and colleagues,

Re consistency of GMC decisions on erasure of doctors after conviction for criminal offences

I write to submit evidence pertinent to the debate around the case of Dr Bawa-Garba.

1. The GMC has admitted via FOIA that it has no policy on the automatic erasure of doctors convicted of gross negligence manslaughter.

This is despite its chief executive Charlie Massey asserting that the GMC had no choice but to seek erasure after Dr Bawa-Garba’s conviction for gross negligence manslaughter, implying automaticity.

The GMC is clearly more open to questions of arbitrariness and discrimination in the absence of a clear policy.

2. The GMC has admitted via FOIA that in the last 5 years it has chosen not to seek erasure in one third of cases where doctors had been convicted of sex offences (23 out of 73).

It seems a peculiar and unjust state of affairs when the GMC overrides its own Tribunal to strike off a doctor who made errors that the Tribunal considered were not made recklessly,

Medical Practitioners Tribunal Service decision 13 June 2017: “There is no evidence to suggest that your actions on 18 February 2011 were deliberate or reckless.” https://minhalexander.com/wp-content/uploads/2018/03/mpts-dr-hadiza-bawa-garba_13_june_2017.pdf

but it applies lesser sanctions to doctors who have been convicted of wilful, often premeditated, criminal sexual offences.

This is the FOI correspondence with the GMC and the disclosed data which is summarised above:

https://minhalexander.com/wp-content/uploads/2018/03/gmc-foi-response-on-erasure-for-sex-offences-and-policy-on-gross-negligence-manslaughter-9-03-2018.pdf

Yours sincerely,

Dr Minh Alexander

Cc

Harry Cayton CEO Professional Standards Authority

David Isaac Chair ECHR

Rob Behrens PHSO

Dr Philippa Whitford MP

Secretary of State for Health and Social Care

Minister of State for Health and Social Care

Sir Terence Stephenson Chair GMC

 

RELATED ITEMS

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

Waste Industry: Abuses of the NHS Disciplinary Process & Dr John Bestley

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

There is no evidence base for Robert Francis’ model of Freedom To Speak Up Guardians, employed by the very trusts whom they are supposed to hold to account:

SSOTP: Robert Francis’ exemplar has feet of clay and Jeremy Hunt’s patient safety claims are unevidenced

Good trusts don’t need them, poor trusts will most likely obstruct, ignore or bully them, or appoint Guardians in their own image.

It’s a waste of time and money for the public, but an investment by Jeremy Hunt for political capital.

This time last year, the national NHS staff survey was published and showed that only 70% of NHS staff felt secure to raise concerns:

25 ‘Best’ and 25 ‘Worst’ NHS trusts for Speaking Up, Allegedly

A year later, millions of pounds later – spent on appointing local Guardians and fuelling the Department of Health and Social Care PR machine that is the National Guardian’s Office, the dial has stayed firmly stuck at 70%.

This fact was omitted from the NHS Staff survey briefing report, but was publicly acknowledged by Simon Stevens on 6 March 2018, and the CEO of the Picker Institute has since confirmed it.

Both the National Guardian and the CQC have conceded that there was no evidence for Francis’ model of Speak Up Guardians.

At one level, it was breathtaking that the government squandered so much money without a pilot. But on the other hand, why bother with a pilot if the intention is merely to spin, and not to seriously administrate an issue fundamental to patient safety?

On 2 February 2017 the National Freedom to Speak Up Guardian told me that she was discussing evaluation of the Speak Up Guardian model with academics. 

 

“HH We’re commissioning our own research on SUGs 

We want it to be external and credible 

– Find out more about the roles 

– How they’ve been established 

– Number of cases”

“MA That sounds like a descriptive piece of work on how the SUGs were set up. Anything on effectiveness? 

HH We’ll be looking at SUGs’ measures of their effectiveness 

MA How will you measure SUGs’ effectiveness? 

HH We’re having a conversation with academics about that”

Over a year later, there was no activity evident and to my knowledge none of the specialist academics in the field had been approached. Notably, not even David Lewis Prof of Employment Law who led the research which informed Francis’ review, had heard anything.

I wrote to Henrietta Hughes to ask for information and I also raised questions on social media.

Dr Aled Jones from Cardiff who largely researches on nursing practice responded to my questions on twitter and advised that he and others were conducting an evaluation.

Further enquiries revealed that this time, the NGO and DHSC were playing safe and keeping it all under an NHS umbrella. The research was commissioned by NHIR, which for the purposes of FOI requests is legally constituted as part of the DHSC.

Aled Jones has advised that his fellow researchers are Danny Kelly, Davina Allen (Cardiff), Russell Manion (Birmingham), Jill Maben (Surrey) and Mary Adams at KCL.

Aled Jones kindly sent me a copy of the research protocol, but asked me to keep it confidential until the official release.

However, review of the protocol showed that an expert group has been established to help steer the research, which includes as yet undisclosed whistleblower organisations and the charity/ lobby group Action Against Medical Accidents (AvMA).

So most likely the usual suspects from the whistleblowing scene have been quietly consulted when the majority of whistleblowers have been shut out, including significantly, those appointed by the National Guardian to her own advisory group.

That is, opponents of DHSC policy have been tokenistically installed on the advisory group, whilst cosy chats with more agreeable voices continue uninterrupted behind closed doors.

It is perhaps unsurprising, given that this is how the NGO views whistleblowers on its advisory board:

FOI disclosure CQC/IAR/1718/0854 by CQC, 9 April 2018

As for AvMA, it does good work but it is hardly expert on whistleblowing. I have on several occasions interacted with AvMA’s chief executive when he has taken the line that doctors who do not speak out are not fit to practice and should be subject to action, to point out why staff are sometimes terrified. It would be better if AvMA pursued the underlying pathology rather than the symptoms. For example, by focussing on the need for managerial regulation, to prevent overbearing managers from bullying frontline clinicians into silence.

I have significant concerns about the remit handed down to Aled Jones and his fellow researchers. Whilst I have been asked not to share details, it strikes me that the fundamental research questions that have been set lean towards generating more PR fodder for the DHSC, as opposed to looking at the effectiveness of the guardian model.

More public money down the drain for political ends and not public service.

After Aled Jones’ informed me of the research plans, the NGO confirmed that the research had been commissioned and that data collection starts in September 2018.

I have written again to the NGO to question yet again its secretive behaviour and failure to be fair and inclusive.

Is that not surreal for a body that is meant to promote safe, just culture and transparency?

This is the correspondence to date with Henrietta Hughes and her Head of Office:

Correspondence with National Guardian about evaluation of Speak Up Guardian model

 

RELATED ITEMS

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

A Complaint Regarding the National Guardian’s Management of Concerns About a Spin Doctor

HSIB: Whistleblower-friendly? An interesting appointment and other everyday tales of NHS Just Culture

Sir Robert’s Flip Flops

 

 

 

 

 

 

 

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

An Employment Tribunal (ET) made a finding of Race Discrimination by Public Health England (PHE) against a senior doctor, Dr Femi Oshin Public Health Consultant, on 17 January 2017:

ET judgment Dr Babafemi Oshin v Public Health England

Dr Oshin found himself subject to a complaint, which he refuted, and he came into dispute with PHE over the way in which the organisation handled this matter.

Importantly, the ET concluded that PHE constructively unfairly dismissed and not only racially discriminated against Dr Oshin, but also victimised him for raising concerns about discrimination and for making a claim to the ET regarding the discrimination.

The ET determined that there had been ‘unconscious race discrimination’, ‘group think’ and ‘institutional racism’ by PHE.

Anyone who follows the fate of NHS employees in the ET will be aware of how rare it is for claimants to succeed. A huge number of cases against the NHS are simply withdrawn.

A 2006 DTI government survey of tribunal applicants found that employees typically reported deterioration of previously cordial employment relations after they raised issues of workplace race discrimination. It also found that:

“Claimants’ primary reason for taking their case was the pursuit of justice. They felt that their employer should be told they had been wrong, and they should be made to change their behaviour towards ethnic minority employees.”

But discrimination cases, especially race claims, are particularly difficult to win. A 2013 BIS report noted “Claimants were most likely to be successful at tribunal in Wages Act cases (14 per cent) and least likely in discrimination cases (three per cent).”

A culture of disbelief has been described.

The damning ET judgment against PHE in Dr Oshin’s case is all the more significant when understood in this context.

The judgment gives interesting glimpses into what happens behind the scenes. For example, this is an exchange between the Duncan Selbie CEO of PHE and another senior manager:

PHE told the ET that it would conduct a review of its processes.

However, PHE has been reluctant to respond to questions about its race equality governance. It missed an FOI deadline and failed to respond to a reminder. Only after a complaint to the ICO, and an email to Duncan Selbie, was a response forthcoming.

The tone of PHE’s response is defensive.

“The Employment Tribunal did not make a finding of institutional racism, something that Judge Housego made clear personally at the remedies hearing in April 2017 at the Exeter Employment Tribunal, stating that he had deliberately stopped short of using this term.”

 “We were identified as one of the UK’s Top 100 Employers in the Race for Opportunity /Business in the Community Race Equality Awards in 2017.Sixteen BAME staff participated in BITC mentoring circles. A copy of the presentation to the PHE Advisory Board in February 2018 is attached.” 

 PHE has provided a copy of a February 2018 presentation to its board on its achievements on Equality and Diversity.

This reveals that after the Oshin judgment in January 2017, PHE established a ‘Diversity and Inclusion and Staff Health and Wellbeing Unit’.

 

This presentation includes the reassuring observation:

“In 2013, white external applicants six times more likely to be appointed – now three times” 

That’s alright then.

PHE indicated that in July 2017 it commissioned a review, to be undertaken by Prof Parish, one of its non-executive directors into the soundness and fairness of its procedures around various issues such as the application of disciplinary procedures against doctors and medical revalidation. Curiously, PHE describes this as an ‘independent’ review.

This review has not yet been undertaken, reportedly due to illness, but these are the terms of reference:

PHE terms of reference for review of issues arising from the Oshin case

During the course of events leading up to his constructive dismissal, Dr Oshin was concerned about PHE’s plans to close its office in Cornwall and the effect on service provision. He flagged his concerns to an MP.

PHE attempted to block this disclosure:

However, the ET determined that this was a properly made public interest disclosure:

“The meeting with the MP would fall clearly within the public interest provisions of the Employment Act 1996. The disclosure was made in good faith, without prospect of gain, to an MP, with the aim of getting the MP to exert pressure on the CEO of the Respondent, the matter having previously been raised by the Claimant at a senior level in the organisation.”

 Importantly, the ET upheld Dr Oshin’s contractual right as an NHS doctor to speak out:

 

The above clause, which in theory allows NHS consultants to publish and speak freely, is contained in the 2003 consultant contract.

PHE was asked for its risk assessment regarding the closure of its Cornwall office. It has provided a  personnel consultation document.  This indicated that part of the rationale for closing the office was to save money.

It is relevant to note that BME whistleblowers are more likely to be both ignored and victimised.

Source: Freedom To Speak Up Review February 2015

 

So if PHE is amongst the ‘best’, what does that say about the rest?

The NHS is in the throes of a severe workforce crisis which threatens patient safety. It cannot afford to continue taking its BME work force for granted.

 

UPDATE 14 FEBRUARY 2019

PHE has responded formally and verbosely to the damning ET judgment, but it seems that PHE continues to twist about and has a problem with factual accuracy:

Public Health England’s response to the finding of Race discrimination and victimisation against Dr Femi Oshin: Discrepant Race and grievance statistics

 

 

RELATED ITEMS

Waste Industry: The NHS disciplinary process & Dr John Bestley

NHS Gagging: How CQC sits on its hands

By Dr Minh Alexander NHS whistleblower and former NHS consultant psychiatrist, 6 April 2018

 

The Healthcare Safety Investigation Branch (HSIB) has been erected as a temple to Just Culture and Human Factors theory.

It was established in response to a parliamentary report which was rightly critical of highly variable NHS incident investigations and persistent failures of learning.

The temple has however been dogged by concerns about cronyism and controversies.

In the last week, it was reported that the head of HSIB had his knuckles rapped for claiming unusual expenses.

Health Chief told to repay helicopter fee

The Air Accident Investigation Branch where Keith Conradi was previously the Chief Investigator, has refused to disclose past staff surveys including from the period of his tenure.

This is troubling behaviour by a public body which should understand the importance of psychological safety in building a safety culture.

There has also been considerable controversy about so-called HSIB ‘safe space’, which many patient safety campaigners are concerned will result in important information being improperly hidden from patients and bereaved families.

The government’s enthusiasm for safe space is based on a claim that it is necessary for staff disclosures to HSIB to be protected, in order to encourage full disclosure.

This rings hollow when seen in the context of general government inaction on whistleblower protection, and its acceptance of the NHS’ continuing and frequent use of gags.

Incredibly, the government even flew a kite on whether ‘safe space’ could be extended to investigations by trusts, but this was met with an outcry. The government has temporarily retreated on this front, but Jeremy Hunt has left the door open:

Letter by Jeremy Hunt to Chair of Public Administration and Constitutional Affairs Committee 21 April 2017

For an organisation that claims to be interested in protecting sources in order to foster reporting, HSIB has been stubbornly resistant to genuine engagement with whistleblowers.

This is the correspondence with HSIB to date, which includes exchanges with a Department of Health Deputy Director who was embedded at HSIB from inception:

HSIB correspondence about whistleblowing governance

The initial phase of HSIB’s establishment lacked transparency. Enquiries about whether HSIB was educating itself about whistleblowing and making provisions for whistleblowers were variously ignored and deflected.

Revealingly, HSIB’s chief referred to “dealing with whistleblowers”.

Email from Keith Conradi 6 January 2017 “Dr Alexander, Thank you for your email.  I note your concerns regarding the CQC; however please understand that my current priority is to establish an investigation capability that will become operational on 1 April 17. We are currently working on criteria to select our 30 investigations a year and also our protocols on dealing with whistleblowers.  The criteria will be published on our website when it becomes fully functional. Regards, Keith”

 

HSIB’s medical director characterised intelligence from staff – i.e. whistleblowers – and families as “soft”.

From an email by Dr Kevin Stewart 18 January 2018: “….HSIB will be looking to gather information and intelligence from all possible sources in order to inform our focus. To me this means being open to the possibility that helpful information may come from “soft intelligence” gained from staff members or from patients’ families that might not be detected by formal data reporting, inspections, reports or other systems.”

 

Eventually, HSIB claimed that there had been some whistleblower input into the design of its processes, but when it eventually published its operational details, whistleblowing was not mentioned.

Moreover, I have seen current documentation which supports the impression that HSIB has not hitherto done any substantive work on incorporating whistleblowing into its protocols, despite claiming to have done so. I am not in a position at present to share this documentation. This in itself is part of the lack of genuine inclusiveness and transparency by HSIB.

The continuing absence of whistleblowing from HSIB’s protocols is  despite the fact that HSIB eventually admitted in April 2017 that it was a ‘Prescribed Person’ under UK whistleblowing law, by virtue of being constituted as a part of NHS Improvement. This means that it has a legal duty to formally receive and record whistleblower disclosures.

As I write, HSIB still has no published, specific protocol for receiving and handling whistleblowing disclosures.

HSIB has also apparently distinguished itself by refusing to investigate any of the patient safety issues raised by Dr Chris Day’s whistleblowing case:

After considerable pushing, HSIB agreed in March 2017 to consider a process of open engagement and meeting with whistleblowers. This meeting never materialised, and HSIB ignored an enquiry in November 2017 about this.

In parallel to this, HSIB then established an advisory panel, through a competitive process, which initially comprised seven members but had no whistleblower.

Mysteriously an eighth member later appeared in the minutes of the first panel meeting, which took place on 13 October 2017: Jennie Fecitt (Stanley) a member of the organisation Patients First.

Minutes of HSIB advisory panel meeting October 2017

 

For those unfamiliar with Patients First, it is an organisation which considers itself to be a charity.

About Patients First This organisation was originally set up by several founder whistleblowers with the aim of specific test litigation. Some founding members left. It became a more broadly focussed group, run as a limited company. According to Companies House, this dissolved on 17 February 2015: https://beta.companieshouse.gov.uk/company/07783392 On 9 March 2015 the organisation emailed its members with the message: “The proposal is that PF will no longer be set up as a limited company but will in the future operate as an unincorporated body (i.e. the members) which is also a charity, with charity trustees” The following constitution was circulated and was to my knowledge adopted: PF Constitution This is information about un-registered charities: https://www.gov.uk/government/publications/excepted-charities/excepted-charities–2 https://www.gov.uk/government/publications/exempt-charities-cc23 The organisation’s website has been sporadically maintained over the last few years, and has sometimes been inaccessible: www.patientsfirst.org.uk

 

When questioned about this irregular addition of an eighth advisory panel member, HSIB was slow to respond and vague about the process by which this appointment had been made.

After three months, HSIB admitted that this late appointment had not made through an open process.

This is the full correspondence:

Correspondence with HSIB about Jennie Fecitt (Stanley)’s appointment to HSIB’s advisory panel

This is a recurring pattern, where NHS bodies seek to create the impression of inclusivity when they may be in fact behaving in the opposite fashion.

This is a classic method of selecting preferred voices, and shutting out the most rigorous challenge and dissent.

The rewards for individuals allowed into the club typically include the usual NHS puffery and the swish of more doors opening to other opportunities.

Indeed, NHS England and NHS Improvement installed another Patients First member in a position of leadership on the persistently ineffective NHS whistleblower employment support scheme, without any apparent open process of selection. Trebles all round. But more of that another time.

A non-whistleblower member of the Advisory Panel has now asked HSIB about how it will approach the issue of super-gagged whistleblowers. Keith Conradi has agreed to seek legal advice. This could presage interesting developments.

However, if AAIB will not even release staff surveys from under Conradi’s reign, it is difficult to imagine that he will help unchain NHS staff.

Nevertheless, his agreement to explore the issue is at least a tacit acknowledgment that there is relevant safety evidence lurking behind gags, so it will be interesting to watch this matter unfold.

 

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 By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 5 April 2018

 

On 22 February 2018 I reported that I had asked NHS Improvement (NHSI) to better meet the needs of gagged whistleblowers who are unable to access the NHS whistleblower employment support scheme, such as it is.

I shared the correspondence with NHSI’s new Chair, Dido Harding, in which I asked her to:

1. Indemnify any gagged whistleblowers who decide to apply to the scheme, and take the risk of breaking gags in order to give the required account of themselves, on the basis of NHSI’s assurances that former employers will not pursue them.

 

2. Seek a government waiver for gagged NHS whistleblowers, which I believe is a safer option.

 

The answer to both requests was subsequently ‘no’.

But NHSI has amended the wording of its correspondence to trusts, asking them about whether they would pursue whistleblowers who broke gags for the purposes of applying to the employment scheme.

Unfortunately, I cannot share this amended wording as NHSI has now gagged that data thus:

However, it does not seem to me that NHSI’s new wording will make any difference.

This is the correspondence to date with Dido Harding:

Correspondence with Dido Harding about whistleblower employment support scheme and gags, up to 4 April 2018

Moreover, it has come to light that NHS Improvement has required panellists, who decide on whether whistleblowers’ applications to the whistleblower employment support scheme will be accepted, to sign a ‘confidentiality undertaking’ that includes a ban on contact with the press unless it is approved by NHSI’s Chief Spinner:

“I hereby acknowledge that I am subject to a duty of confidentiality with respect to this activity (and any other associated work I undertake for NHS Improvement), and undertake not to disclose, otherwise than with the consent of NHS Improvement or in the proper discharge of my duties within the office of NHS Improvement, confidential information to which I have had access or information which has been communicated to me in confidence within the office of NHS Improvement or received in confidence from others.

I further acknowledge that this duty of confidentiality does not cease on any termination of the provision by me of services to NHS Improvement.

 I understand that NHS Improvement has strict rules about breaches of confidentiality and my attention has been drawn to the office rules and policies of NHS Improvement on the intranet with respect to confidentiality, conflicts of interest and data protection including the ‘Information and Data Handling’ and ‘Procurement’ policies (which have been supplied with this undertaking). 

 I will not speak to the press regarding any activity undertaken at NHS Improvement without prior consent from the Executive Director of Strategic Communications and/or the Director of Media Relations. I understand that any press enquiries (telephone or email) should be forwarded immediately upon receipt to the Media Relations Director or the Media Relations Managers and that I should not respond to them under any circumstances, except where there has been explicit prior agreement from the Media Relations team.”

 

NHS Improvement’s Director of Comms is Tim Jones, formerly of the Department of Health, and part of the glittering success that was Jeremy Hunt’s Just Culture Task Force.

It may be a small point to some, but in the context of the whistleblower employment support scheme, it would have been good practice for NHSI to make it clear that this confidentiality undertaking does not restrict public interest disclosures.

One whistleblower who was accepted as a scheme panellist asked for the wording of the confidentiality undertaking to be changed, to make it clear that public interest disclosures are not restricted. NHSI refused to do so on that occasion, on the basis that all the other panellists had signed the same undertaking, but said it might consider adding such a qualifying clause in future.

NHSI has in fact advised via FOIA that it makes a similar requirement of all employees, consultants and contractors.

NHS Improvement FOI disclosure about gagging workers 3 April 2018

These are NHSI policies disclosed along with the substantive FOI response:

NHS Improvement Procurement Policy disclosed 3 April 2018

NHS Improvement information and data handling policy disclosed 3 April 2018

Mum’s the word.