By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 2 October 2016

NHS managers “look up, not out”, so said a major report that was suppressed by the Department of Health. [1] On that theme, the Care Quality Commission has a political function: to flatter politicians and help manage potential embarrassment. It has made arbitrary and inconsistent decisions, which has brought it into conflict with providers, complainants and whistleblowers. CQC has said all the right things about the importance of good complaints handling and transparency, but a review of CQC’s annual reports shows that the CQC has provided little information about why people complain about CQC and what CQC has learnt from the complaints.The data that CQC has released about complaints is not presented in a consistent format and mostly lacks detail. There is limited evidence to demonstrate that CQC has made changes in response to complaints and that it does not repeat mistakes. 

The health watchdog the Care Quality Commission was created to replace its more effective predecessors, who had embarrassed the government. Notably, CQC’s immediate predecessor the Healthcare Commission (HCC) had uncovered the grave care failings Mid Staffs, and strategic failures which had contributed to the scandal. The excellent HCC investigation report by Dr Heather Wood et al can be found here: hcc-investigation_into_mid_staffordshire_nhs_foundation_trust

CQC disbanded the central investigation team it inherited from the HCC, which had been so effective. [2] Notoriously, CQC also gagged Dr Heather Wood  [3] – this became the subject of much criticism in the public inquiry into Mid Staffs. One interpretation of these events is that the CQC did not wish to be fully “sighted” on politically embarrassing provider failures.

CQC under-uses and frequently minimises its investigatory powers. It has sometimes made misleading claims that it cannot investigate at all. However, it has powers to investigate under Section 48 of the Health and Social Care Act 2008 [4] and it has powers to investigate in relation to patients subject to the Mental Health Act. Whistleblowers and complainants often feel fobbed off when the CQC refuses to do anything at all, except to note their concerns.

There have also been controversies where providers have felt unfairly treated by the CQC, in terms of oppressive inspection approach, increases in CQC’s fees, unfair ratings and excessive factual inaccuracies in CQC reports. [5] [6] Most recently, there was an outcry and many questions when Dr David Zigmond’s practice was shut down. [7] This happened after Dr Zigmond published a book the previous year entitled “If you want good personal healthcare – see a vet”. He wondered whether this “had been a black mark against him”. In 2014, before the publication of Dr Zigmond’s critique of the direction of health services, the CQC had rated his practice fully compliant and noted very positive feedback from patients: “People we spoke with were very happy with the treatment they received at the surgery”.

 So how does CQC perform when people complain about it? CQC previously stated that it intended to model best practice on complaints handling:

“We intend to become a role model in the way we ourselves handle and resolve complaints about CQC and concerns raised by our own people.” [8]

However, a look at the six annual reports published so far by the CQC since its inception raises questions about whether CQC is a good role model. Data in these reports is presented with CQC’s trademark inconsistency, which obscures as much as it reveals. [9] [10] According to the six annual reports, 2644 complaints have been made about CQC between 1 April 2009 to 31 March 2016, and 434 (16%) of these complaints proceeded to Stage 2 of CQC’s procedure. Half of CQC’s annual reports were totally silent on the numbers of complaints upheld at Stage 1 and Stage 2. See table 1 below.

Almost no evidence was provided about the experience of complainants or how satisfied they were with CQC’s complaint handling. This seems a significant omission as CQC has placed an emphasis on the experience of people who complain about regulated bodies:

“ From now on, we will ask providers to share with us any survey they have carried out of people who have complained to them in the last 12 months.”[11]

Has CQC failed to practice what it preaches by not carrying surveys of its own? Or has it surveyed its own complainants, but failed to transparently share the results?

In some years CQC gave a rough indication of the nature of complaints, but in two of the years, no information was provided at all. The most detailed report about complaints was provided by the CQC annual report of 2012/2013, but this was an exception. See Table 2 below.

No systematic reports have been provided by CQC on how it has learnt from complaints, made changes or stopped making the same mistakes. Perhaps the most interesting data, analysis of the nature of complaints that were upheld and CQC’s responses to these upheld complaints, is not provided apart from a few selected anecdotes.

CQC’s thematic review report “Complaints Matter” [9] noted that in October 2014, CQC introduced a mandatory ‘key line of enquiry’ in its inspections on how well providers are handling complaints.

CQC also stated in this review report: “We now have a clear vision of ‘what good looks like [on complaints handling]”. CQC added that evidence of good complaints handling would result in complainants being ready to complain again if needed, that complainants would feel fairly treated, that complainants would encourage others to complain if needed and that complainants can see how their complaints have helped to improve services.

So where is the equivalent evidence on CQC’s own complaints handling? Is it too awkward to publish because it might show that the CQC – and its masters – have little intention of changing how CQC does business?

CQC said in 2014 that it would rate providers’ complaints governance as follows:

• Outstanding – there is active review of complaints and how they are managed and responded to, and improvements are made as a result across the services.

• Good – it is easy for people to complain or raise a concern and they are treated compassionately when they do so.

• Requires improvement – people do not find it easy to complain or raise concerns, or are worried about raising concerns or complaining. When they do, a slow or unsatisfactory response is received.

• Inadequate – there is a defensive attitude to complaints and a lack of transparency in how they are handled. People’s concerns and complaints do not lead to improvements in the quality of care.

 

So, where would you place the CQC on this scale?

 

Items to cross-reference

PHSO has the CQC’s back

Between April 2009 and September 2015, the PHSO received 354 complaints about CQC, not one of which had yet been upheld as of September 2015. See here for more:

PHSO FOI disclosure 21 September 2015 on handling of complaints: PHSO has the CQC’s back

Letter to Health Committee 3 October 2016 about CQC’s handling of complaints

letter-to-house-of-commons-health-committee-3

 

References

[1] Achieving the vision of excellence in quality, Recommendations for the English NHS system of quality improvement, Institute of Health Improvement, January 2008

ihi-report-achieving-the-vision-of-excellence-in-quality-2

[2] Stafford hospital investigator berates CQC regulator, John Carvel, Guardian, 1 May 2012 https://www.theguardian.com/society/2012/may/01/stafford-hospital-investigator-berates-cqc-regulator

[3] Health watchdog put 20 gagging orders on staff, Patrick Sawer and Laura Donnelly, Telegraph 30 June 2013 http://www.telegraph.co.uk/news/health/heal-our-hospitals/10150664/Health-watchdog-put-20-gagging-orders-on-staff.html

[4] CQC FOI disclosure of 15 January 2016 about six Section 48 investigations conducted since inception https://minhalexander.com/2016/09/27/cqc-foi-disclosure-15-january-2016-about-section-48-investigations-conducted-since-inception-in-2009/

[5] Public Accounts Committee inquiries on CQC 2012 and 2015

Click to access 1779.pdf

Click to access 501.pdf

[6] Practices to pay almost £2,000 more in CQC fees from April, Jaimie Kaffash, Pulse 30 March 2017 http://www.pulsetoday.co.uk/your-practice/regulation/cqc/practices-to-pay-almost-2000-more-in-cqc-fees-from-april/20031484.fullarticle

[7] The ousted doctor: “My patients’ souls matter the most”, Angela Neustatter, Guardian 18 September 2016 https://www.theguardian.com/society/2016/sep/18/the-ousted-doctor-my-patients-souls-matter-most

[8] CQC annual report 2013/2014 https://www.cqc.org.uk/sites/default/files/20140708-cqc-annual-report-web-final.pdf

[9] How safe are NHS patients in private hospitals? Prof Colin Leys and Prof Brian Toft, Centre for Health and the Public Interest, November 2015 https://chpi.org.uk/wp-content/uploads/2015/12/CHPI-PatientSafety-Dec15.pdf

[10] CQC deaths review: All fur coat. Minh Alexander 13 August 2016 https://minhalexander.com/2016/09/25/cqc-deaths-review-all-fur-coat/

[11] Complaints Matter. CQC thematic review December 2014 http://www.cqc.org.uk/sites/default/files/20141208_complaints_matter_report.pdf

 

Jim Reaper’s been skipping across the north lands, hand in hand  with his chum the hugely popular Secretary of State for Ill Health.

Reports from an NHS Disinvestment board meeting on 29 September 2016 suggest that Jim is perhaps sensitive about gags at his former trust:

 

 

So here’s the full FOI disclosure of 15 February 2016 about secrecy and non-disparagement clauses at ‘Outstanding’ Northumbria, so you can make up your own mind: northumbria-compromise-agreements-foi-disclosure-15-02-2016

As you can see, 45 members of staff were silenced with secrecy clauses that stopped them from even disclosing the existence of the compromise agreements that they had signed:

Here’s what Sir Peter Bottomley said in parliament on 18 May 2016 about such secrecy clauses in NHS compromise agreements:

“I am waiting for the result of an Manchester employment tribunal case involving Mr Aditya Agrawal. I shall make no further comment, because we have not yet seen the result, but when it comes out, I hope to ask Mr Speaker whether we can have a debate on why the hospital trust had had over 100 confidentiality agreements over the last five years—and a compromise agreement that is a secret as well. This is the sort of pattern that we should not have in our national health service.”

https://www.theyworkforyou.com/debates/?id=2016-05-18a.6.0&s=speaker%3A10057#g71.0

Here’s what Sir Robert Francis said in the report of the Freedom To Speak Up Review on 11 February 2015 about secrecy clauses:

“… I have seen some [compromise agreements] which seem unnecessarily draconian or restrictive, for example, banning signatories from disclosing the existence of a settlement agreement.”

Click to access F2SU_web.pdf

By the way, despite CQC’s spinning ways, a glance at PHSO data showed that Northumbria is not compellingly ‘Outanding’ in terms of complaints: phso-foi-disclosure-complaints-against-northumbria-fdn259244-your-information-request

Northumbria’s rate of enquiries to PHSO that were accepted per 100,000 clinical incidents in 2014/2015 was 6.96. The range for acute trusts was 1.32 to 17.

But mum’s the word. Shhhhhh.

 

Items to cross-reference

NHS Gagging. How CQC sits on its hands: despite misleading claims by CQC, review of almost 200 current CQC inspection reports reveals no evidence that CQC has inspected trusts’ compromise agreements.

https://minhalexander.com/2016/09/23/nhs-gagging-how-cqc-sits-on-its-hands-2/

Letter to House of Commons Health Committee 23 September 2016 about CQC’s failure to deter the inappropriate use of compromise agreements in the NHS:

https://minhalexander.com/2016/09/23/letter-to-health-committee-23-september-2016/

 

 

 

 

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 30 September 2016

 

The Parliamentary and Health Service Ombudsman (PHSO) is a troubled organisation that has been much criticised. It has protected other elements of the great NHS denial machine.

PHSO was criticised, including by Sir Brian Jarman [1], for carrying out too few investigations on complaints received about the NHS. The Ombudsman subsequently promised to increase PHSO’s rate of investigation. [2] PHSO dramatically increased the number of investigations but with dwindling resources, and questions arose about the quality of investigations. PHSO whistleblowers supported this impression earlier this year, when they complained of a “toxic environment” at PHSO, and they raised concerns that:

“…many PHSO complaint assessments were rebranded as investigations and varied in quality” [3]

PHSO has also experienced other scandal regarding questions of neutrality and probity, for example at Morecambe Bay, [4] in the handling of contracts, [5] and the appointment of Mick Martin, deputy Ombudsman – the latter despite two warnings by a harmed former employee and by Monitor. [6] Reports of unsatisfactory and slow PHSO investigations continue to arise. [7]

The PHSO is the last port of call for whistleblowers who have been unable to resolve their concerns through the health watchdog, the Care Quality Commission (CQC). Whistleblowers are often blocked and frustrated by CQC, which does its best to deal superficially with their disclosures. Whistleblowers often report that CQC prefers to accept assurance from employers, without too many questions asked and without examination of all the evidence. This was illustrated by an FOI enquiry about Sheffield Teaching Hospitals NHS Foundation Trust, which revealed that of 22 external whistleblowing episodes to CQC over three years, CQC relied on the trust’s investigation in 17 matters, and only one matter was externally reviewed. [8]

The situation is similar for complainants. The charity Action Against Medical Accidents (AvMA) has recently reviewed CQC inspection reports and has demonstrated disappointing failure in CQC’s regulation of the legal duty of candour, a fundamental care standard. AvMA noted:

“We noted that all of the inspections were heavily reliant on comments from the trusts regarding their own implementation of the duty of candour.” [9]

An FOI request to PHSO in 2015 showed that PHSO had received a total of 354 complaints about CQC since CQC’s inception, but none had yet been upheld. Only 17 (5%) of the 354 complaints had been investigated by PHSO. At the time of the FOI disclosure, PHSO had not upheld 11 of the 17 investigated complaints, and 6 of the complaints were still under investigation.

PHSO’s FOI disclosure of 21 September 2015 about its handling of complaints against the CQC is uploaded here: phso-foi-response-re-complaints-about-cqc-21-september-2015

Can we really believe that there have been no valid complaints about the equally criticised CQC?

The “circular assurance” described by Bill Kirkup in his investigation report on Morecambe Bay [3], in which NHS bodies pass flawed and superficial assurance amongst themselves whilst dismissing and minimising evidence from whistleblowers and complaints, still thrives.

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

And they all lived happily ever after…. except the complainants and whistleblowers.

Items to cross-reference

See these notes on complaints about CQC (2644 complaints over six year), set in the context of CQC’s various pronouncements on best practice complaints handling:

Do “Complaints Matter” to CQC?

 

References

[1] Not many complaints are investigated. Prof Brian Jarman 14 May 2013

http://www.nhsmanagers.net/guest-editorials/not-many-complaints-are-investigated/

[2] Health Ombudsman to investigate more complaints, Simon Cox, BBC 19 July 2013 http://www.bbc.co.uk/news/health-23357866

[3] Whistleblowers expose ‘toxic environment’ at PHSO, Shaun Lintern, Health Service Journal, 22 March 2016

https://www.hsj.co.uk/topics/policy-and-regulation/exclusive-whistleblowers-expose-toxic-environment-at-phso/7003384.article

[4] The report of the Morecambe Bay investigation, Dr Bill Kirkup, March 2015

Click to access 47487_MBI_Accessible_v0.1.pdf

[5] Health Ombudsman was investigated over ‘contract’ failings. Shaun Lintern, Local Government Chronicle, 16 October 2014

https://www.lgcplus.com/services/health-and-care/health-ombudsman-was-investigated-over-contract-failings/5075841.article

[6] Report of investigation by Sir Alex Allan into PHSO’s appointment of Mick Martin, formerly of Derbyshire Healthcare NHS Foundation Trust

https://minhalexander.com/wp-content/uploads/2016/09/phso-mick-martin-sir-alex-phso-report.pdf

Helen Marks awarded £832, 711 by Employment Tribunal, BBC 16 February 2016

http://www.bbc.co.uk/news/uk-england-derbyshire-35581737

[7] https://twitter.com/AverilsDad/status/773109263707283456

https://twitter.com/AverilsDad/status/778599178683514881

[8] FOI diclosure by CQC about its handling of whistleblowers’ concerns about Sheffield Teaching Hospitals NHS Foundation Trust

cqc-data-disclosed-2-08-2016-by-foi-sheffield-teaching-hospitals-whistleblowing-contacts_ir7989-v2

[9] Regulating the duty of candour, AvMA August 2016

Click to access

 

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 29 September 2016. Updated with addendum 27 September 2017

The British Medical Association (BMA) is the main union for doctors. It is not a good friend to whistleblowers.

The annual ritual of renewing my BMA membership came up. I dithered a bit. I have been a BMA member for thirty years. But after adventures in whistleblowing, I no longer have a medical career. I wondered if the £163 renewal fee – reduced for unwaged members from the standard fee of £443 – could be spent on more joyful things. Perhaps some nice wine, a good film, even new socks, are all of more use to me than BMA membership.

I’m talking about the BMA that has not covered itself in glory over the junior doctors’ contract, the BMA that reportedly introduced a gagging clause into the code of conduct for its Council members (which it refused to publish) [1] and the BMA that many BME doctors and whistleblowers feel let down by. I’m talking about the BMA that has taken legal action against a whistleblower [2], and which is led by Dr Porter, who was asked in parliament about Raj Mattu’s whistleblowing case and replied that he had no “specialist knowledge”. He subsequently provided parliament with a written clarification. [3] [4] I’m talking about the BMA that was the subject of an article by MD of Private Eye, entitled “With friends like the BMA….”. [5]

There is little data published to show how exactly BMA member services support members.

When I asked the BMA for a copy of its 2014 submission to Robert Francis’ Freedom to Speak Up Review on NHS whistleblowing, it was slow to disclose this, and ultimately I found the submission uninformative as regards the BMA’s activities on whistleblowing. [6]

When I asked the BMA for data about whistleblowing cases, it was slow to respond and shone little light:

“…we do not have records going back 10 years…..Our solicitors have informed us that since 2006 they have had five Public Interest Disclosure Act (PIDA) claims which have been settled via settlement agreements/COT3s.” [7]

When I heard that the BMA had set up a task and finish group to review how it supports its members to raise concerns, I asked for information about this. The BMA was slow to respond, and when it finally disclosed the report from this task and finish group, I was embarrassed on the BMA’s behalf. This is the uninformative report in all its seven paragraph glory: bma-task-finish-report-raising-concerns-c84

I cringed when I saw that the BMA implied that a key solution to addressing reprisal against whistleblower members was to help them to be more tactful:

“The service would include offering advice to members on the use of language and the tone in which their concerns might be expressed.” 

Shhhhurely the BMA meant to say: “Robustly represent and defend whistleblower members to send a clear message to employers that doctors who raise concerns cannot be casually picked off, and that the profession will exercise its prerogative to focus on patients’ interests?”

I won’t even mention what some fellow campaigners said to me when they saw the BMA’s report.

I asked the BMA for more details and supporting documents seven months ago. Guess what, I’m still waiting. [8]

In particular, I’d like an answer on whether and how the BMA has commenced and or evaluated, an ‘early intervention’ pilot scheme, that it told me it would undertake on supporting members with whistleblowing.

I’d also like to see the new, improved whistleblowing stats that the BMA told me – in March 2015 – that it would start collating:

“We have decided that in view of the importance of this area we will in future regularly review cases where whistleblowing is the primary issue raised and will monitor on a quarterly basis cases where whistleblowing is a subsidiary issue”

I see the BMA now claims a victory on defending junior doctors’ rights to whistleblow against Health Education England (HEE). [9] [10] This ain’t so at all. The “I have a piece of paper” BMA spiel means absolutely nothing. Junior doctors have had a right all along to challenge HEE, as a public body subject to judicial review, in the High Court. But why should they? And would the BMA fully support costly hearings to conclusion, or pressure members to accept sub-standard settlements? The BMA has not managed to secure comparable rights for junior doctors to take their cases against HEE to the Employment Tribunal under PIDA. The well known case of Dr Chris Day continues on this matter. [11] Notably, on his campaign website, Dr Day wrote thus about the BMA:

“Suddenly, 5 working days before the claim had to be submitted and before the delayed Trust and Deanery formal investigations had reported, the BMA withdrew all legal help from the case and my BMA Senior Industrial Relations Officer went on “special leave”.” [12]

I’ve heard similar from several sources.

The BMA says that its new agreement gives junior doctors the same rights to sue HEE for whistleblower reprisal as would be afforded under PIDA. Has the BMA forgotten that it previously acknowledged that PIDA legislation is weak and very unsatisfactory? [1]

All PIDA gives you is the right to sue for compensation after you have suffered serious detriment, and your career – and probably health – are in tatters. It does not protect individuals and there is zero evidence that it deters reprisal in general. Austerity and harsh cuts have magnified an NHS culture of cover-ups and employer bullying. PIDA claims by health and social care whistleblowers rose sharply last year.

Source: Public Concern at Work, 5 year review published 1 August 2016

 

What has the BMA done to lobby for reform of the law that it has admitted is ineffective? I can’t see any evidence that the BMA has done much about PIDA, but perhaps the BMA can correct me if I wrong.

So, to return to BMA binary:

Is the BMA worth £163? No.

Are new socks more useful than BMA membership? Yes.

 

ADDENDUM 27 SEPTEMBER 2017

One year on from my article above, there is little to celebrate about the BMA and whistleblowing.

The BMA continues to spin copiously about its good intentions towards whistleblowers.

Yesterday a kind member of the public sent me a copy of an email of 26 September 2017 from the BMA, which they received after questioning the BMA about its behaviour in the much reported case of NHS whistleblower Dr Chris Day.

Dr Chris Day’s website provides updated information and supporting documents about his case: https://www.crowdjustice.com/case/junior-doctors-round-3/

Attached to the BMA’s email was a remarkable apologia which defended the BMA’s position to the hilt, and cast aspersions on criticisms of the BMA made by the Day camp.

The BMA’s email of 26 September claimed that its apologia had been published. However, a search by the document’s title revealed a page on the BMA’s website that was last updated on 20 September. It featured no published document and only the message “This content is under review”.

It seems to me that despite a change in BMA Chair of Council over the course of the year, the BMA’s spots look much the same.

And the debate about whether junior doctors’ whistleblowing cases should be dealt with in the Employment Tribunal or the High Court is ultimately something of a distraction when set against the pragmatic reality of BMA merits assessments in whistleblowing cases. That is to say, it would be immaterial what technical legal rights a doctor has if his or her union chooses not to fund the necessary litigation. As the BMA has not yet opened its files to me on the statistics that it claimed in March 2015 that it would start keeping on case decisions, these waters remain unfathomed.

 

The BMA apologia:

BMA Whistleblowing FAQ’s (21.09.2017) Issued to a member of the public by BMA on 26 Sep 2017

 

The accompanying BMA email of 26 September 2017:

A search by the title of the BMA’s apologia ‘FAQ’s: Whistleblowing & Junior Doctors’, gave this result on the BMA website as of 08.30, 27 September 2017:

 

RELATED ITEMS

Sir Robert’s Flip Flops – this describes a central weakness of the Freedom To Speak Up review – how Francis u-turned on accountability, criminal sanctions and deterrence of whistleblower reprisal

https://minhalexander.com/2016/09/26/sir-roberts-flip-flops/

No one believes Jeremy Hunt on patient safety and whistleblowers, not even his own appointees – a summary of continuing tokenism by government and how the new National Guardian’s office, for NHS whistleblowing, is designed to be ineffective

https://minhalexander.com/2016/09/24/no-one-believes-jeremy-hunt-on-patient-safety-or-whistleblowers-not-even-his-own-appointees-unmasking-the-faux-national-guardian-office/

 

Letter to Mark Porter Chair of BMA Council 29 September 2016

Dear Dr Porter,

Further to my last letter to the BMA of May 2016, in which I asked again for copies of supporting documents from the BMA Task and Finish group on raising concerns, and feedback on progress of the BMA’s proposed ‘early intervention’ pilot scheme for supporting members who whistleblow, I would be very grateful for a reply.

Please could the BMA also advise if it has started proactively reviewing whistleblower cases and collating the more detailed quarterly data on whistleblower cases, as per its correspondence to me of 15 March 2015? If so, please could the data be shared.

I attach a copy of that earlier correspondence.

With best wishes,

Dr Minh Alexander

cc Mark Hope BMA Senior Policy Executive

 

References

[1] BMA backs code of conduct with ‘gagging clause’ for council members, Marina Soteriou, GP Online 3 December 2012

http://www.gponline.com/bma-backs-code-conduct-gagging-clause-council-members/article/1162567

[2] BMA sues whistleblower surgeon, Shaun Lintern, Health Service Journal 30 June 2014

https://www.hsj.co.uk/home/bma-sues-whistleblower-surgeon/5072451.article

[3] Dr Mark Porter in Parliament: The whole truth and nothing but the BMA’s truth

http://medicalharm.org/uncategorized/dr-mark-porter-in-parliament-the-whole-truth-and-nothing-but-the-bmas-truth/

[4] Oral evidence to House of Commons Health Committee, 7 December 2011

http://www.publications.parliament.uk/pa/cm201012/cmselect/cmhealth/uc1699-i/uc169901.htm

Supplementary written evidence by Mark Porter to Health Committee December 2011

http://www.publications.parliament.uk/pa/cm201012/cmselect/cmhealth/1699/1699w104.htm

[5] With friends like the BMA…., Phil Hammond, Private Eye February 2015, Issue 1385

http://www.drphilhammond.com/blog/2015/02/21/private-eye/private-eye-issue-1385/

[6]BMA submission 10 September 2014 to the Freedom to Speak Up Review

bma-freedomtospeakup-10-09-2014

[7] Letter from Mark Hope, BMA Senior Policy Executive, 5 March 2015

bma-mark-hope-5-03-2015-info-request-bma-member-services-for-whistleblowers

[8] Correspondence with BMA about its Task and Finish Group on supporting members to raise concerns

bma-correspondence-about-whistleblowing-task-finish-group

[9] Whistleblowing protection FAQs, BMA 21 September 2016

https://www.bma.org.uk/collective-voice/influence/key-negotiations/terms-and-conditions/junior-doctor-contract-negotiations/whistleblowing-protection-faqs

[10] Draft terms of legal agreement between the BMA and Health Education England 31 August 2016, posted by BMA 21 September 2016

[11] Junior doctor claims career was ‘wrecked by lack of protection for whistleblowers’, Ross Lydall, Evening Standard 22 February 2016

http://www.standard.co.uk/news/health/junior-doctor-claims-career-was-wrecked-by-lack-of-protection-for-whistleblowers-a3185751.html

Further campaign appeal 22 September 2016

https://www.crowdjustice.co.uk/case/junior-doctors-round-2/

[12] Campaign website by Dr Chris Day

https://www.crowdjustice.co.uk/case/junior-doctors/

 

 

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 28 September 2016

Black whistleblowers, including the ‘Unhappy Midwives’, have been raising concerns about maternity service safety and racism at Homerton since 2012, but have been vilified and marginalised. Their appeals to the trust and oversight bodies, including Jeremy Hunt, the Department of Health and the Care Quality Commission – the latter rated the Homerton service ‘Good’ in 2014 despite the whistleblowers’ evidence – fell on deaf ears. This was followed by a cluster of maternal deaths from 2013 and onwards.

Extensive audit trail of the midwives’ whistleblowing and correspondence is collated at this website:  https://homertonnhsmaternity.wordpress.com/

Their case was covered by Private Eye in September 2015:  http://www.drphilhammond.com/blog/2015/09/23/private-eye/medicine-balls-private-eye-1341/

The maternity whistleblowers were ignored and their concerns were minimised, including by the Clinical Commissioning Group and Care Quality Commission (CQC). Two successive Chief Executives vilified the ‘Unhappy Midwives’, and the current CEO deemed them “vindictive”. [1] The Department of Health, as per its usual response to whistleblowers, did its best to wash its hands of the matter and directed them back to the CQC.

At least 5 maternal deaths – usually very rare events – occurred after the midwives were ignored. There was extensive press coverage. For example, by the Daily Mail:

http://www.dailymail.co.uk/health/article-2942537/Fifth-mother-dies-childbirth-hospital-investigation-alarming-string-maternal-deaths.html

Under pressure, the trust eventually commissioned an external review by the London Clinical Senate into four of the maternal deaths. An incomplete copy was disclosed via FOI in October 2015 – senate-report-redacted-for-patient-confidentiality – but nevertheless, it showed that the Senate had concluded that there were ‘avoidable factors’.

The midwives remain concerned, and are not convinced that the trust has disclosed all relevant information about its maternal deaths, some of which occurred at surrounding trusts.

Homerton trust informed me that a total of 7 mothers died under its care between 2006 and October 2015. The midwives question whether this is an accurate figure. Nonetheless, it is noteworthy that the trust has admitted that 6 of the 7 mothers who died were non-white. [2]

Ten years ago, when the CQC’s predecessor investigated a cluster of 10 maternal deaths at Northwick Park, 9 of the 10 women were Black [3] :

Unlike the Homerton trust, the Healthcare Commission published its report in full and without redacting key clinical details that were essential for full transparency and learning. It is a concern that the trust seeks to protect itself by witholding the full Senate report, purportedly because of ‘confidentiality’.

The NHS acknowledges that for a variety of reasons, BME mothers remain at higher risk of harm. Surely it is time to mitigate these known risks and expect greater equality of health outcomes, rather than just continue wringing hands?

However, the NHS is notorious for its ‘snowy peaks’, and it remains poor on monitoring and delivering equality of outcomes. It is also of concern that the Homerton trust board is wholly white, when it serves one of the most deprived and racially diverse catchments nationally.

A Subject Access Request for personal data was made by one of the whistleblowers, Pam Linton, who originally raised her concerns independently of the Unhappy Midwives. The resulting disclosure by CQC has raised serious questions about the CQC’s response to Pam Linton’s disclosures. [4]

And in case you didn’t know, Henrietta Hughes CQC’s recently appointed National Guardian for whistleblowing, was the NHS England area medical director party to the multi-agency response to the Unhappy Midwives’ disclosures. She starts at CQC very shortly, in October. Questions have been asked about her role in the Homerton matter, but with no clear answers arising.

Henrietta Hughes will report to David Behan, Chief Executive of the CQC. That is, the CQC which superficially reviewed itself in regards to its handling of Homerton maternity safety,  but which has not fully acknowledged its failures. [5]

What a small world.

And what a cosy example of the “circular assurance” described by Bill Kirkup in his report of patient safety failings at Morecambe Bay. [6]

 

The City and Hackney Clinical Commissioning Group records which show that Henrietta Hughes was involved in the system response to the Unhappy Midwives:

Click to access Q2%20NHSE%20Assurance%20Compiled%20Exception%20Reports%2029112013.pdf

 

Items to cross-reference

Letter to Jeremy Hunt Secretary of State for Health about his and the Department of Health’s role in the failure of the system response to the Unhappy Midwives

https://minhalexander.com/2016/09/24/letter-to-jeremy-hunt-16-october-2015-about-his-role-regarding-homerton-maternity-whistleblowers/

How the National Guardian’s office is designed to be ineffective:

https://minhalexander.com/2016/09/24/no-one-believes-jeremy-hunt-on-patient-safety-or-whistleblowers-not-even-his-own-appointees-unmasking-the-faux-national-guardian-office/

References

[1] Homerton safety review after claims from ‘unhappy midwives’, Jo Stephenson, Nursing Times, 9 April 2014

https://www.nursingtimes.net/roles/midwives-and-neonatal-nurses/exclusive-homerton-safety-review-after-claims-from-unhappy-midwives/5068283.article

[2] FOI disclosure by Homerton University Hospital NHS Foundation Trust 24 February 2016

[3] Investigation into 10 maternal deaths at, or following delivery at, Northwick Park Hospital, North West London Hospitals NHS Trust, between April 2002 and April 2005, Healthcare Commission August 2006 hcc-northwick-park-_tagged

[4] CQC response to a subject access request by Pam Linton pam-linton-294593874-cqc-sar-disclosure-1

[5] CQC internal review of CQC’s handling of Homerton maternity safety, 15 March 2016

Click to access CM031605_Item_5A_RGC_Report_to_March_Board_FINAL_Appendix_1.pdf

[6] The report of the Morecambe Bay investigation, Dr Bill Kirkup, March 2015

Click to access 47487_MBI_Accessible_v0.1.pdf

 

Disclosure correspondence from Homerton trust

From: Dunne Michael at Homerton University Hospital NHS Trust <Michael.Dunne@homerton.nhs.uk>

Subject: FOI Request 2108 – Homerton Maternity Services: Report of Review by London Clinical Senate

Date: 27 October 2015 at 16:09:00 GMT

To: minhalexander@aol.com

Dear Dr Alexander,

Thank you for your recent Freedom of Information request, asking for a copy of the London Clinical Senate report.

Please refer to the attached documents which includes the Trust’s formal response along with a redacted version of the report.

Yours sincerely,

Mike Dunne

Information Governance Manager & FOI Lead

 

 

 

 

The full disclosure by CQC on the investigations it had undertaken under Section 48, since its inception in 2009, is uploaded here:

cqc-response-section-48-iat-1516-0674-final

 

In summary CQC has used its investigative powers, under Section 48, six times since 2009. The details of these six investigations are copied below.

Of note, CQC has not investigated any mental health trusts,  despite immense pressure on services and CQC’s admission in July 2016 that almost two thirds of mental health trusts ‘Require Improvement’. It is also despite the fact that some mental health trusts  have been found unsafe and have not improved subsequent to warnings by CQC. For example, Norfolk and Suffolk NHS Foundation Trust. See details of the campaign about NSFT crisis here:

http://norfolksuffolkmentalhealthcrisis.org.uk/

 

The six investigations by CQC since 2009, using its powers under Section 48:

“University Hospitals of Morecambe Bay NHS Foundation Trust

In July 2012 we undertook a section 48 investigation into University Hospitals of Morecambe Bay NHS Foundation Trust. Our published report can be found here: http://www.cqc.org.uk/sites/default/files/20120613_rtx_university_hospitals_of_morecambe_bay_nhs_foundation_trust_investigation_report.final_for_publication_0.pdf

We also conducted a follow up to our investigation, at the same Trust in September 2013. Our published report can be found here: http://www.cqc.org.uk/sites/default/files/20130911_uhmbt_s48_final_for_publication_1.pdf)

Barking, Havering and Redbridge University Hospitals NHS Trust

In October 2011 we undertook a section 48 investigation into the Barking, Havering and Redbridge University Hospitals NHS Trust. Our published report can be found here: http://www.cqc.org.uk/sites/default/files/documents/20111026_bhrut_investigation_report_final_0.pdf

United Lincolnshire Hospitals NHS Trust

In October 2011 we undertook a section 48 investigation into United Lincolnshire Hospitals NHS Trust. Our published report can be found here:

http://www.cqc.org.uk/sites/default/files/documents/20111031__ulht_report_final.pdf

We also conducted a follow up to our investigation, at the same Trust in March 2013. Our published report can be found here: http://www.cqc.org.uk/sites/default/files/old_reports/20130321_ulht_investigation_report_-_final_for_publication.pdf

Take Care Now

We were asked in June 2009 to review the out-of-hours GP arrangements in relation to Take Care Now by NHS East of England. Our published report can be found here:

http://www.cqc.org.uk/content/care-quality-commissions-investigation-gp-out-hours-provider-take-care-now-reveals-serious

This gives a figure of six investigations (including follow-up investigations), relating to four provider organisations. Three of those organisations are NHS acute Trusts (of which, one is a Foundation Trust), the fourth is an out of hours primary care service.

None of these investigations were requested by the Secretary of State.”

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 26 September 2016

 

Robert Francis has u-turned on accountability for  reprisal against NHS whistleblowers, even though he acknowledged it constitutes serious misconduct.

The public inquiry by Robert Francis into grave care failings at Mid Staffordshire NHS Foundation trust, published February 2013, saw harrowing examples of negligence and wilful blindness. There were many warnings about the failings, which were not heeded. A culture of fear was reported and staff who raised concerns experienced reprisal and suppression.

Arising from his findings, the then Mr Robert Francis was originally bullish about the need to protect NHS whistleblowers.

He recommended that it should be a criminal offence for any health worker to obstruct others trying to fulfil their duty of candour to patients and families. [1]

He emphasised in an interview with the Nursing Times that it was necessary to be absolutely firm in deterring whistleblower reprisal:

“I have called for a statutory duty of candour that trusts tell the truth to regulators and that there should be criminal sanctions if there’s willful obstruction of anyone performing their duties and informing their trusts about concerns to patients.

 “That is about as rigorous protection of whistleblowers as you can imagine, and that’s what I intended,” he said.” [2]

In January 2014, the theme continued when he publicly commented that “oppressive behaviour” and whistleblower reprisal at Paula Vasco-Knight’s former trust, South Devon Healthcare, should not be tolerated:

“It is important that no tolerance is afforded to oppressive managerial behaviour of the sort identified only last week by an employment tribunal in the South West, which victimises staff who raise honestly held concerns.

“Every such case is hugely damaging to the confidence of other staff who are contemplating raising concerns. It is clear that there is much to do in this area.” [3]

 The bullishness continued when Francis gave evidence to Health Committee in February 2014:

“In so far as whistleblowers are concerned, I am afraid my answer is very blunt about that. We now have unanimity among those who are leaders of the Government and everywhere else that suppressing whistleblowers is absolutely wrong. It seems to me that any chief executive, any board, that is found to be guilty of that should be sacked. I put that absolutely bluntly. There can be no excuse any longer. If you want culture change, if a step or two like that could be taken—and it is far from me to comment, but it may be there are some opportunities out there—then I would suggest that that ought to be done.” [4]

By 4 June 2014, it was announced that Francis had been appointed to the Care Quality Commission as a Non Executive Director. [5]

On 13 June 2014 we were told that Mr Francis would become Sir Robert. [6] (In March 2013, Private Eye had been critical of Francis regarding the lack of individual accountability for the grave failings at Mid Staffs, and had baldly asked: “Knighthood for a whitewash?”). [7]

 

 

On 24 June 2014, Jeremy Hunt announced that Francis would be heading a review of NHS whistleblowing, dubbed the Freedom to Speak Up Review.

By 11 February 2015, when the Freedom to Speak Up Review was published, Francis had softened considerably.

He suggested that the system response to managers who victimised whistleblowers should not be too harsh, and he replaced his previous comments that leniency was bad for culture with a claim that holding erring managers to account might add to blame culture:

“7.5.5 A number of the contributors suggested that if people were seen to be held to account this would send a powerful and positive message to other staff.

7.5.6 However, there is another side to this which must be considered. Managers are just as vulnerable as other staff to the effects of the culture in which they work, and the pressures which are imposed on them. As stressed by some employers and their representatives a ‘just’ culture is equally as necessary for managers and leaders as it is for staff raising concerns. The consequence of an uneven approach could be a worsening blame culture for staff and a loss of talented managers from the NHS.” [8]

These comments misrepresented the concept of ‘just culture’, which in fact requires sanctions for recklessness, cover ups and other deliberate wrongdoing.

Francis even appeared amnesic of his own past recommendations for criminal sanctions [1], when he made this comment about some contributors’ calls for whistleblower reprisal to be criminalised:

“A small number even wanted to see criminal and custodial sentences.”

Instead of hard reform, Francis essentially opted for trust in the power of persuasion and appealing to people’s better nature to change culture.

This was despite the fact that Robert Francis acknowledged that reprisal against whistleblowers should be seen as a form of “serious misconduct”. It was also despite the fact that his lead researcher for the Freedom to Speak Up Review Prof David Lewis, Professor of Employment Law and a whistleblowing expert, is a proponent of criminal sanctions to deter reprisal. Of note, Prof Lewis robustly and publicly reiterated his views four days after Francis’ report was published. [9] On the tail of a recent conference on whistleblowing and blacklisting, at which much sobering evidence of establishment wrongdoing was presented, Prof Lewis again spoke out publicly on the need for criminal sanctions. [10]

Instead of substantive reform of the law, Francis entrusted oversight of managerial misconduct against whistleblowers to the CQC’s prosecution of the new Fit and Proper Person Regulation (FPPR). In the hands of the CQC, this has proved to be a monumental flop, [11] such that the inept CQC was compelled four months ago to announce a review of itself on this matter. [12]

What we may never know is the extent to which the Department of Health interfered with the Freedom To Speak Up Review. I and other whistleblowers who participated were certainly conscious of Whitehall minders, assigned and omnipresent, right up to the day of publication and launch. Francis’ researchers were not invited to the launch. Whistleblowers were invited but were separated from the press conference by a matter of some miles, and only given a copy of the report at the very last minute. Francis was whisked in and out for a brief audience, and left us to attend the discussion about his report in parliament. To my mind, when Francis was challenged by whistleblowers that he had not done enough, he seemed uncomfortable.

In the face of ongoing and serious CQC failure, with concerns emanating from all quarters, Francis is now making more pointed comments again:

“Non-executive director Sir Robert Francis QC asked if the regulator should “reflect… on whether there is a wider mismatch or not between the policies that emanate from this board and the executive team and what is actually happening on the ground, as that is what we look for when we inspect a hospital”. He added that it was “probably not only in this field” that such a mismatch was happening.”[13] 

It would have been wise to acknowledge this before abandoning the hard reform, which he had originally and correctly identified was essential.

In November 2013, Francis chided clinicians for ‘self-interest’ in failing to report concerns, and he called on frontline NHS workers to reassert their professionalism:

“This requires a visible and sustained commitment on the part of all medical and clinical staff to re-assert their professionalism.” [14]

These are fine but empty – and ultimately unfair – words if the system totally fails frontline staff when they dare to ask for safe standards of care. However, by focussing on front line staff, they do serve to distract from the culpability of politicians and senior officials who are ultimately responsible for suppression.

 

Items to cross-reference

Take a look at some of these Employment Tribunal judgments and witness statements about notorious NHS whistleblowing cases, and see if you think it’s right for senior NHS managers to be let off for serious cover ups:

Dr Kevin Beatt v Croydon Health Services NHS Trust

Click to access home

Clare Sardari and Penny Gates v South Devon Healthcare NHS Foundation Trust and Torbay and Southern Devon Health and Care NHS Trust

Click to access home

Hayley Dare’s ET witness statement

Click to access home

If you want details regarding the ineffectiveness of the centre piece of Francis’ and Hunt’s plans for persuading the NHS to do better, the toothless National Guardian’s office, you can find them here:

https://minhalexander.com/2016/09/24/no-one-believes-jeremy-hunt-on-patient-safety-or-whistleblowers-not-even-his-own-appointees-unmasking-the-faux-national-guardian-office/

 

UPDATE 20 NOVEMBER 2018 – OTHER RELATED ITEMS:

A Serious Health Warning about the Freedom To Speak Up Project: What all NHS staff should know before they whistleblow

Replacing the Public Interest Disclosure Act (PIDA)

 

UPDATE 21 DECEMBER 2018

In his report of the Freedom To Speak Up Review, Robert Francis eschewed managerial regulation in favour of a trial of CQC Regulation 5 Fit and Proper Persons, which is supposed to be enforced by his own organisation the Care Quality Commission. However, this has failed conclusively and the PHSO has partially upheld a complaint about CQC’s mishandling of the Paula Vasco-Knight FPPR. CQC protected and enabled the recycling of Vasco-Knight as an NHS director, even though Francis had told parliament that wilful obstruction of whistleblowers by chief executives was a sacking offence.

PHSO has pulled its punches and covered the government’s back by claiming that Vasco-Knight might still have passed the FPPR test if CQC had applied a fair process, despite a damning Employment Tribunal judgment. The latest events are summarised here:

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

 

References

[1] Recommendation 183 of the Report of the Public Inquiry into Mid Staffordshire NHS Foundation Trust

“Criminal liability

It should be made a criminal offence for any registered medical practitioner, or nurse, or allied health professional or director of an authorised or registered healthcare organisation:

• Knowingly to obstruct another in the performance of these statutory duties;
• To provide information to a patient or nearest relative intending to mislead them about such an incident;
• Dishonestly to make an untruthful statement to a commissioner or regulator knowing or believing that they are likely to rely on the statement in the performance of their duties.”

Click to access 0947.pdf

[2] Francis calls for new protection for whistleblowers, Shaun Lintern, Nursing Times 11 February 2013

https://www.nursingtimes.net/news/reviews-and-reports/francis-report/francis-calls-for-new-protection-for-whistleblowers/5054780.article

[3] Francis criticises Vasco-Knight trust, Judith Welikala, Health Service Journal, 7 February 2014

https://www.hsj.co.uk/sectors/acute-care/francis-criticises-vasco-knight-trust/5067807.article

[4] Oral evidence by Robert Francis to Health Committee 11 February 2014

francis-oral-evid-hsc-11-feb-2014

[5] CQC welcomes new board members 4 June 2016

http://www.cqc.org.uk/content/cqc-welcomes-new-board-members

[6] Robert Francis knighted in Queen’s birthday honours, Judith Welikala, Health Service Journal, 16 June 2014

https://www.hsj.co.uk/home/robert-francis-knighted-in-queens-birthday-honours/5071974.article

[7] Return to the killing fields. A chronicle of deaths foretold. Dr Phil Hammond, Private Eye March 2013

private-eye-mid-staffs-final

[8] Report by Robert Francis of the Freedom to Speak Up Review 11 February 2015

http://webarchive.nationalarchives.gov.uk/20150218150343/https://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf

[9] Lack of support for whistleblowers is a disgrace. Letter by Prof David Lewis to Guardian, 15 February 2016

“The Guardian has a laudable track record of supporting whistleblowing. However, in commenting on the impact of the Francis report on the culture of speaking up in the NHS (Editorial, 12 February), you demonstrate a rather conservative approach to legislative reform. First, there is no mention of possible criminal sanctions. Citizens who break the Official Secrets Act commit an offence, so why shouldn’t those who victimise people raising concerns in the public interest? TheProtection from Harassment Act can be invoked if the narrow definition of harassment is fulfilled, but, in my opinion, outlawing any form of retaliation against whistleblowers would send out a valuable message about what society expects.

Second, you do not point out that only “workers” are covered by our whistleblowing legislation. However, it is clear that those who are in a position to raise concerns may not have this status – for example, patients and their families. Other countries now recognise the role that the public can play in exposing wrongdoing; in this important respect, the UK no longer provides an international model.

Professor David Lewis
Director, Whistleblowing research unit, Middlesex University”

https://www.theguardian.com/society/2015/feb/15/whistleblowers-should-law-punish-hospital-bosses

[10] ‘Whistleblowers should be encouraged, protected by law’, Antonia Filmer, Sunday Guardian, 18 September 2016.

“Prof Lewis proposes… the outlawing of discrimination against whistleblowers at the point of hiring and making retaliation against whistleblowers a criminal offence. Prof Lewis also believes there is a case for establishing a specialist body such as a Public Interest Disclosure Agency. Such a body might receive disclosures, arrange for their investigation by an appropriate authority and ensure that advisory and counselling services are available, protect whistleblowers from reprisals”

http://www.sundayguardianlive.com/world/6512-whistle-blowers-should-be-encouraged-protected-law

[11] CQC’s Fit and Proper Parade. Dr Minh Alexander, 29 July 2016

https://minhalexander.com/2016/09/24/cqcs-fit-and-proper-parade/

[12] CQC to review whether fit and proper person rule ‘needs to change’, Will Hazel, Health Service Journal 24 May 2016

https://www.hsj.co.uk/topics/policy-and-regulation/cqc-to-review-whether-fit-and-proper-person-rule-needs-to-change/7005046.article

[13] CQC told to change culture after data loss ‘never event’, Sharon Brennan, Health Service Journal, 23 September 2016

https://www.hsj.co.uk/topics/technology-and-innovation/cqc-told-to-change-culture-after-data-loss-never-event/7010763.article

[14] Mid Staffordshire – some reflections for clinicians, Robert Francis QC, Trends in Urology and Men’s Health, November/December 2013

francis-mid-staffordshire-some-reflections-for-clinicians-362_ftp

 

 

Whistleblower Law

The Times, February 10, 2016

Sir, Tomorrow is the anniversary of Sir Robert Francis’s report into how NHS whistleblowers are treated. Since its publication there has been no evident, meaningful change. To our knowledge, not a single sacked whistleblower has been found comparable re-employment. Not a single trust director has been reprimanded under the fit and proper persons regulation. Sir Robert recommended a system of “guardians” to act independently and to help to protect whistleblowers. Controversially, the part-time national guardian is overseen by the Care Quality Commission and has a restricted remit and no statutory powers. NHS bodies have also appointed mostly internally to local guardian posts. Injustices continue, with particular impact on “protected” groups. We urgently need the following: an independent body, reporting to parliament, with powers to investigate and remedy poor whistleblowing governance by public bodies; enforcement of effective investigation of concerns and an appeal mechanism against ineffective local investigations by employers; full reform of whistleblower protection legislation; reform of NHS disciplinary processes and fully independent appeal panels, to discourage kangaroo courts; managerial regulation to apply to all grades of managers; interim financial relief for whistleblowers who are seriously struggling, pending establishment of NHS England’s re-employment scheme, which is many months away.

We urge the health committee to consider our proposals and to hold hearings on whistleblowing.

Professor Sir Brian Jarman

Julie Bailey

Dr Heather Wood

Dr Stephen Bolsin

Dr Phil Hammond

Dr Kim Holt

Professor Narinder Kapur

Dr Minh Alexander

Lady Maha Yassaie

Dr Kevin Beatt

Professor Mala Rao

Amanda Pollard

Dr Otto Chan

Professor Charles Vincent

 

Cross reference this item to

1. Edna’s law at compassionincare.com

 

2. Recommendations by Prof David Lewis, Professor of Employment Law and researcher on whistleblowing.

Professor Lewis was Robert Francis’ lead researcher on the Freedom To Speak Up Review.

Four days after the Freedom To Speak Up Review was published, Prof Lewis wrote on 15 February 2015:

“The Guardian has a laudable track record of supporting whistleblowing. However, in commenting on the impact of the Francis report on the culture of speaking up in the NHS (Editorial, 12 February), you demonstrate a rather conservative approach to legislative reform. First, there is no mention of possible criminal sanctions. Citizens who break the Official Secrets Act commit an offence, so why shouldn’t those who victimise people raising concerns in the public interest? TheProtection from Harassment Act can be invoked if the narrow definition of harassment is fulfilled, but, in my opinion, outlawing any form of retaliation against whistleblowers would send out a valuable message about what society expects.

Second, you do not point out that only “workers” are covered by our whistleblowing legislation. However, it is clear that those who are in a position to raise concerns may not have this status – for example, patients and their families. Other countries now recognise the role that the public can play in exposing wrongdoing; in this important respect, the UK no longer provides an international model.
Professor David Lewis
Director, Whistleblowing research unit, Middlesex University”

https://www.theguardian.com/society/2015/feb/15/whistleblowers-should-law-punish-hospital-bosses

Prof Lewis’ further recommendations were outlined by an article on 18 September 2016:

“Among the many changes he suggests are the outlawing of discrimination against whistleblowers at the point of hiring and making retaliation against whistleblowers a criminal offence. Prof Lewis also believes there is a case for establishing a specialist body such as a Public Interest Disclosure Agency. Such a body might receive disclosures, arrange for their investigation by an appropriate authority and ensure that advisory and counselling services are available, protect whistleblowers from reprisals…”

http://www.sundayguardianlive.com/world/6512-whistle-blowers-should-be-encouraged-protected-law

 

 

To House of Commons Health Committee, 8 August 2016

Dear Dr Wollaston and colleagues,

Lack of progress on NHS Improvement’s employment support scheme for whistleblowers

I write to pass on update information about the re-employment of NHS whistleblowers. As you will be aware, I have been concerned about the slow progress in implementing this important part of the Freedom to Speak Up Review recommendations. NHS Improvement(NHSI) has been especially slow and still has nothing in place for trust whistleblowers, whereas NHS England has already (In May) sought expressions of interest from primary care whistleblowers to join a pilot.

NHSI advised that it would update me in June. I chased in July for a response. It was evident that there was no substantive update available, and that NHSI’s timetable was worryingly loose.  In consequence, I asked NHSI to share documents from this workstream and also to advise on budget for the re-employment scheme. NHSI treated this as an FOI request, rather part of the normal stakeholder engagement process. Extraordinarily, NHSI has now declined to transparently share any documents about the development of its scheme with whistleblowers (see correspondence attached and below):

“The exemption is engaged as NHS Improvement’s qualified person, its Chief Executive (Jim Mackey), is of the opinion that disclosure of this information would be likely to inhibit the free and frank exchange of views for the purposes of deliberation (section 36(2)(b)(ii)). “

NHSI indicates that beyond some stakeholder engagement events organised by NHS England, last held in February 2016, NHSI has no intention of further involving whistleblowers in developing its scheme. 

NHSI has also advised that there is still no budget allocated for its part of the whistleblower re-employment scheme (NHS England has allocated about £250K).

I am very concerned about this lack of progress by NHSI and poor oversight by the Department of Health. This is a serious obstacle to setting the right tone about NHS whistleblowing governance. On a practical level, it is also unfortunate because trust whistleblowers form the majority. In common with most whistleblowers, I think that the Freedom to Speak Review was ineffective, and that evidence of this continues to mount. A much more robust and penetrating intervention is required.

Yours sincerely,

Dr Minh Alexander

cc Secretary of State for Health

Chairs of Public Accounts Committee and Public Administration and Constitutional         Affairs Committee

 

FOI disclosure by NHS Improvement 8 August 2016 about the development of its employment support scheme for whistleblowers

nhsi-alexander-decision-letter-08-08-16

The FOI response from HSE, which disclosed that there had been 222 complaints about NHS bodies since 1 April 2014, can be found uploaded here:

hse-nhs-priory-complaints-21-09-2016-foi-dr-m-alexander-200916

 

An analysis based on this data showed that there have been 38 complaints on English NHS mental health trusts since 1 April 2014. [NB. There are reports that HSE’s data may be incomplete, and a request for clarification has been made to HSE]

HSE has advised that there have been 4 complaints against Priory Group facilities:

An analysis of HSE’s data shows that these are the 17 NHS bodies which have been the subject of the most complaints to HSE: