Alexander's Excavations

Dr Minh Alexander retired consultant psychiatrist 17 April 2023

A key matter which triggered BBC Newsnight reportage of the governance failings at University Hospitals Birmingham NHS Foundation Trust was the scandalous whistleblowing case of Tristan Reuser, ophthalmic surgeon.

Mr Reuser was seriously mistreated and unfairly dismissed.

One of the key issues was that he was unfairly suspended based on an unfounded allegation that the ET determined that Clive Ryder Deputy Medical Director and David Rosser Medical Director, later Chief Executive, knew or ought to have known was false.

A related, central issue was that the trust failed to show Tristan Reuser correspondence from an NHS agency called the National Clinical Assessment Service, NCAS (now called Practitioners Performance Advice, PPA), which has a statutory role in advising employers on the suspension of and disciplinary action against doctors.

The withheld correspondence would have revealed that his suspension was triggered on a false premise.

NHS employers had to consult NCAS as part of triggering the euphemistically named “Maintaining High Professional Standards in the Modern NHS” (MHPS) disciplinary and capability procedure.

The MHPS rules of procedures require NHS employers to show referred doctors all correspondence relating to their case.

UHB not only failed to show Tristan Reuser the NCAS correspondence that he was entitled to see, but when Tristan Reuser asked for his personal data, UHB failed to disclose the NCAS correspondence.

The resistance to share the NCAS correspondence persisted into Employment Tribunal proceedings when UHB failed to disclose material documents even in the legal disclosure process, incurring the judge’s displeasure and a £20,000 costs award against the trust.

The effect of UHB’s secrecy was that misleading information supplied to NCAS by Clive Ryder UHB deputy medical director, to justify Tristan Reuser’s suspension, was hidden.

How could this have happened in a process that is supposedly safeguarded?

An MHPS “Designated Board Member” was allocated to Tristan Reuser’s case: Jon Glasby, non executive director, who was appointed as the UHB Independent Senior Director under Jacqui Smith’s tenure.

The Designated Board Member’s role in MHPS is to ensure fair play and that the accused doctor is not “incarcerated” by default through an excessively drawn out process.

“The Chairman of the Board must designate a non-executive member “the designated member” to oversee the case and ensure that momentum is maintained.”

“Role of designated Board member

13. Representations may be made to the designated Board member in regard to exclusion, or investigation of a case if these are not provided for by the NHS body’s grievance procedures. The designated Board member must also ensure, among other matters, that time frames for investigation or exclusion are consistent with the principles of Article 6 of the European Convention on Human Rights (which, broadly speaking, sets out the framework of the rights to a fair trial).”

During his phase one investigation at UHB, Mike Bewick was told that the UHB consultant body had raised concerns with the UHB board about cronyism at all levels of medical management.

He was also told of staff perceptions of arbitrary discipline at the trust.

As a former Deputy Medical Director himself, he would surely understand the requirements of MHPS and the significance of any breaches of procedure.

In his report, Bewick stated that he considered that the findings of the Employment Tribunal in Reuser v UHB and the GMC’s warning to David Rosser called into question David Rosser’s fitness for a senior leadership role:

“31. In our opinion, statements made by the GMC and the Employment Tribunal were extremely serious and brought into question DR’s suitability for senior leadership roles.”

It follows that Rosser’s critical actions as a medical director, in suspending and disciplining doctors, should also be reviewed.

As part of Bewick’s investigation, could he not have called up data on UHB’s use of MHPS and adherence to the rules of procedure?

There was anecdote in Bewick’s report about this, but no hard data, making it inconclusive:

Dragging out the review process may benefit the UHB gravy train but not staff and patients.

In the meantime, I have asked the interim UHB Chair to consider some basic, urgent checks.

I have also suggested that when MHPS is applied at UHB, doctors should be clearly informed of their right to access case correspondence.

BY EMAIL

Yve Buckland

Interim Chair

University Hospitals Birmingham NHS Foundation Trust

17 April 2023

Dear Yve,

Failures of MHPS process

I do not know how familiar you are with the NHS conduct/capability process for disciplining doctors, Maintaining High Professional Standards in the Modern NHS (MHPS), but it has rules of procedure with supposed safeguards.

These failed entirely in the case of Tristan Reuser, UHB whistleblower.

One of the MHPS rules is that doctors who are subject to these procedures must be allowed to see all correspondence about their case, to fully enable them to reply to all allegations.

UHB not only failed to ensure this access to case correspondence, but persistently withheld crucial correspondence from Mr Reuser. This withheld correspondence showed that Clive Ryder Deputy Medical Director gave misleading information to an NHS body the National Clinical Assessment Service, as part of the procedure of triggering suspension under MHPS rules. This was later criticised by the Employment Tribunal as “beyond inaccurate”.

Was it really the case that the then deputy medical, the medical director, the director of human resources and the MHPS designated board member who should have ensured fair play (Jon Glasby), all experienced directors, were not aware that Mr Reuser should have been given sight of his MHPS case correspondence?

My concern now is how many other UHB doctors have been disadvantaged in this way?

How many staff are currently being disadvantaged in this way?

I have looked at the UHB MHPS policy.  

This document lists the many alleged failings that may land a doctor in hot water. But it does not say much about the organisation’s responsibilities to treat an accused doctor fairly.

Importantly, I cannot see that the policy says anything about an accused doctor’s rights to see all case correspondence.

The UHB policy cross references the national MHPS framework but gives no link.

It would empower staff if UHB actively gives access to the detailed rules of procedure. MHPS is arguably a contractual matter, and a matter of rights.

The national framework is a lengthy document and the information about the right to see case correspondence is brief and easily missed.

Page 11 of the national MHPS framework:

“3. The practitioner concerned must be informed in writing by the case manager, as soon as it has been decided, that an investigation is to be undertaken, the name of the case investigator and made aware of the specific allegations or concerns that have been raised. The practitioner must be given the opportunity to see any correspondence relating to the case together with a list of the people that the case investigator will interview. The practitioner must also be afforded the opportunity to put their view of events to the case investigator and given the opportunity to be accompanied.”

It would be helpful if the local UHB policy spells out clearly the right of access to case correspondence.

Does UHB need to rapidly audit adherence to basic MHPS standards, based on audit standards co-produced with staffside, to ensure that no further serious harm to individuals is currently unfolding, and that any other serious harm that has taken place besides Reuser v UHB is corrected?

With best wishes,

Minh

Dr Minh Alexander

Cc Chaand Nagpaul External reference group

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

NHSE, ICB and UHB’s three-ring circus and Rosser’s digital assignment

Can Healthwatch Birmingham please let us see its complaints & concerns data on UHB?

Bewick’s silence on patient complaints at University Hospitals Birmingham NHS Foundation Trust

Dr Minh Alexander retired consultant psychiatrist 14 April 2023

On 14 April 2022 UHB answered an FOI enquiry incorrectly, claiming that of 26 GMC referrals in the ten previous years, none had resulted in any further action by the GMC.

But at the time, this data obviously raised questions of whether UHB was referring doctors appropriately.

It also equally raised questions of whether UHB was referring the right doctors.

BBC Newsnight later picked up on the FOI disclosure and reported it in a broadcast in December 2022.

Shortly after this I noticed GMC data that contradicted UHB’s FOI response.

I informed the BBC about this and wrote to UHB’s new interim Chair to question the accuracy of UHB’s FOI disclosure.

There was a delay in UHB responding, despite my chasing. This was later explained as a switch between email accounts by the interim Chair which led to some email being unnoticed.

In the meantime, David Melbourne the CEO of Birmingham and Solihull ICB emphasised to local councillors at the Joint Health Overview and Scrutiny Committee that the media had got their figures wrong.

This was very distasteful given that the false information had been supplied by UHB.

A similar message was transmitted by Mike Bewick’s rapid review report on UHB, published on 28 March.

Remarks on page 12 of Bewick’s report dovetail with the tone of Melbourne’s comments to JHOSC:

It is perplexing as to why Bewick focussed on the cases that DID result in GMC action, but omitted to discuss the cases which did NOT result in any GMC action.

One would have thought that all cases would have been counted in any check of accuracy.

And it is the cases that did not result in any GMC action that were of most concern in terms of UHB’s governance.

Yesterday, UHB finally responded through its Chief Legal Officer to my requests for the record to be corrected.

This is the response:

RESPONSE BY DAVID BURBRIDGE 13 APRIL 2023 Dear Dr Alexander Please find below a response to your email to Dame Yve Buckland, dated 29 March. For the period 1 April 2012 to 31 March 2022: – How many doctors the trust referred to the GMC ? At UHB (prior to and post the merger with Heart of England NHS Foundation Trust (“HEFT”)) there were 22 referrals At HEFT (prior to the merger with UHB) there were 16 (3 of these are dated just after the date of merger 1.4.2018, but are attributed to HEFT – we believe this may be because there was contact before the change of RO) – How many of these referrals were signed off by the medical director? At UHB 14/22, the remainder were signed off by Deputy Medical Director or acting Medical Director  At HEFT 6/16 were signed off by the Medical Director and the remainder were by Deputy or Associate Medical Directors.  – How many of these referrals resulted in no further action by the GMC? UHB – 4 were concluded at triage, 7 were investigated and concluded with no action, 11 were subject to advice, warning, undertakings, suspension or erasure HEFT – 3 were concluded at triage, 4 were investigated and concluded with no action,  9 were subject to advice, warning, undertakings, suspension or erasure – How many doctors died whilst under GMC investigation or monitoring? None – How many doctors died by suicide whilst under GMC investigation or monitoring? None Regards David Burbridge Chief Legal Officer

That is to say, there were a total of 38 GMC referrals in the ten year period, 18 of which were either dropped (or “concluded” as UHB put it) at triage or which resulted in no further action by the GMC.

For all the protestations and smoke and mirrors, we still have best part of a score of doctors who were possibly referred to the GMC when this was apparently not essential.

GMC referrals are a serious business. Could alternatives have sufficed? Were any of these doctors referred out of careless misuse of power, or as a punishment or intimidation, to silence them?

Any further reviews of UHB should look carefully at these eighteen GMC referrals.

In the meantime, I have asked UHB to disclose how many of these eighteen GMC referrals which were dropped at triage, or which resulted in no further action by the GMC, were signed off by either David Rosser or Clive Ryder.

This is because both of these senior doctors were criticised by the Employment Tribunal for their actions in the whistleblowing case of surgeon Tristan Reuser, for acts which included supplying inaccurate information to NCAS (now PPA), suspending Mr Reuser on a basis which they knew or ought to have known was unfounded, and misleading the GMC in the course of referring Mr Reuser.

It is also because David Rosser made a GMC referral on a whistleblower, Mr Reuser, which ended in no further action being taken by the GMC.

It is also because of a concern raised by the consultant body about cronyism at all levels of medical management at UHB, and because of a reported staff perception of arbitrary application of discipline.

The criticisms made by the Employment Tribunal of David Rosser and Clive Ryder were serious.

For example:

“It became clear that both Dr Ryder and Dr Rosser knew, or ought to have known, that it was unfounded before the exclusion was even put in place. That only came to light from documents which had not been disclosed but which were obtained by Mr Reuser through a subject access request (SAR).

No action was taken against Mr Negi in relation to what appeared to be a false allegation. This, coupled with my more detailed findings in relation to the exclusion earlier in this judgment, potentially suggests a level of bias and collusion at a senior management level against the claimant. Again, at the very least, it suggests a very serious lack of due care and attention to an important matter.”

“Dr Rosser was not sufficiently independent. There is a strong suspicion of bias given his approval of the exclusion on grounds he ought to have known were false. This appears further confirmed by the omissions and unjustifiably strong language of the GMC referral.”

UHB may object to my enquiry on grounds of personal data and confidentiality.

But the public interest and the seniority of the individuals in question are counter-arguments against such objection.

And for genuine culture change, as opposed to the PR and news management that NHS England and its hangers on will throw at this situation, truth and transparency are a pre-requisite.

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

NHSE, ICB and UHB’s three-ring circus and Rosser’s digital assignment

Can Healthwatch Birmingham please let us see its complaints & concerns data on UHB?

Bewick’s silence on patient complaints at University Hospitals Birmingham NHS Foundation Trust

Dr Minh Alexander retired consultant psychiatrist 11 April 2023

Mike Bewick’s rapid review of clinical safety at University Hospitals Birmingham NHS Foundation Trust was strangely silent on patient complaints, and so were the related statements by the external reference group and the Chair of Healthwatch Birmingham:

Bewick’s silence on patient complaints at University Hospitals Birmingham NHS Foundation Trust

Consequently, I asked Healthwatch Birmingham if it collated and published data on concerns and complaints received from the public about UHB.

The response was a little reluctant, but Healthwatch Birmingham eventually revealed that it did, and that this data was sent to regulators and commissioners in a confidential, quarterly report.

I have now written to Healthwatch Birmingham’s Chair to ask that the data relating to UHB is transparently published in view of the great public interest.

Frankly, such data should be routinely published in view of Healthwatch’s purported role as champion of the public interest.

LETTER TO RICHARD BURDEN, CHAIR OF HEALTHWATCH BIMRINGHAM

BY EMAIL

Richard Burden

Chair of Healthwatch Birmingham

11 April 2023

Dear Richard,

Public access to complaints and concerns data about UHB that is held by Healthwatch Birmingham

I asked Healthwatch Birmingham via a Twitter conversation if it collated data on concerns and complaints from the public about local NHS services, with particular respect to UHB, for obvious reasons.

HW Birmingham initially directed me to the online feedback page of its website:

healthwatchbirmingham.co.uk/services

When I asked about correspondence received by HW Birmingham from the public regarding complaints and concerns, and whether this generated any summarised data and reports, HW Birmingham replied that correspondence would not be published because it was confidential.

After I pressed the point about summarised data, HW Birmingham indicated that anonymised data about concerns received is sent to regulators and commissioners in quarterly reports, which are confidential.

“Anonymised data is shared with regulators & commissioners in a confidential quarterly report. We also have avenues for directly raising concerns with services. Pls email info@healthwatchbirmingham.co.uk if you wish to discuss further. Thanks.”

I wonder if in view of the clear and current public interest in University Hospitals Birmingham NHS Foundation Trust, and the extraordinary omission of any patient complaints data from Mike Bewick’s phase one rapid review on clinical safety at UHB, whether Healthwatch Birmingham should now publish its anonymised data on all concerns and complaints received about UHB.

I can see no objection on grounds of confidentiality and privacy if the data is anonymised and aggregated.

A series of such data going back over years would be valuable in helping to set the current concerns about UHB’s culture, clinical performance and safety into context.

Furthermore, Healthwatch Birmingham’s dataset can be argued to be a more independent dataset that has not been controlled by the UHB board, and may have added value in this respect.

With best wishes,

Minh

Dr Minh Alexander

Cc

Birmingham and Solihull Joint Health Overview and Scrutiny Committee

BBC Newsnight

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Can Healthwatch Birmingham please let us see its complaints & concerns data on UHB?

Bewick’s silence on patient complaints at University Hospitals Birmingham NHS Foundation Trust

Dr Minh Alexander retired consultant psychiatrist 10 April 2023

On 28 March 2023 the compromised Bewick phase one report on UHB, a rapid review of clinical safety, was published.

The Parliamentary and Health Service Ombudsman triggered the multiagency Emerging Concerns Protocol in August 2022 because of concerns about poor culture, leadership and lack of learning from complaints and incidents at UHB.

PHSO expected to contribute to Bewick’s review but claimed it had been excluded, and this revelation was broadcast by BBC Newsnight. The transcript of Newsnight’s interview with Rob Behrens can found here:

PHSO alleges it has been excluded from NHSE/ICB’s reviews on UHB & ICB’s factual inaccuracy to the Joint Health Overview and Scrutiny Committee

Extraordinarily, Bewick’s rapid review of UHB safety indeed omitted any mention of evidence from PHSO or of the PHSO’s concerns.

Bewick and his small crew of fellow investigators, a paediatrician and a “chartered secretary and governance expert” also did not mention patient complaints in their report.

Is this because raising the spectre of patient complaints would inevitably remind the public and NHS staff of the missing PHSO data?

How can a report on clinical safety ignore patient complaints about clinical care?

Astonishingly, despite ignoring this core data on patient experience and outcomes, both from trust records and from the PHSO, Bewick and co concluded that UHB was “safe” overall.

Page 30 “….our overall view is that the Trust is a safe place to receive care”

As the silence about patient complaints seemed an important indicator of establishment discomfort, I took a quick look at UHB’s patient complaints.

The most recent UHB annual report 2021/22 gave almost no statistics on patient complaints. The bare bones provided were as follows:

“In 2021/22 a total of 1,716 complaints for investigation were received. This is a 36.8% increase from the previous year.” [my emphasis]

The trust produces an annual complaints report, but I was unable to find this on searching.

Some trusts publish their annual complaints report, but it appears that UHB does not.

The most recent annual quality report by UHB also gave few details about complaints patterns.

But under the subject of “Improving nutrition and hydration”, the trust did reveal more details of relevant complaints.

As you can see from the above table, these included failures of very basic care such as not monitoring food or fluid intake, not providing assistance with eating and drinking and leaving food and drink out of reach.

Where have we heard of such failures before?

Neglect and Indignity

The UHB complaints about hydration and nutrition are consistent with this week’s news coverage. UHB families’ and patients’ reported food and drink being left out of reach and patients being left in their own waste:

Woman says her dying mother’s hospital care was ‘absolutely disgusting’ after report finds toxic culture at NHS trust

I found an old FOI response Ref 5043 by UHB of 8 March 2017, on complaints received from both staff and patients regarding staffing levels.

It is not clear how UHB collated data for this FOI response, or whether the data is a reliable reflection of the original FOI question. UHB has also been known to mislead in FOI responses on sensitive topics such as FPPR.

With those caveats in mind, the data published suggested that complaints about clinical care comprised about half of the complaints.

YEAR	Total number of complaints from patients	% of complaints that related to clinical care
2013/14	956	52.3% (n = 500)
2014/15	1044	51% (n = 533)
2015/16	1075	48.5% (n = 522)
2016/17	949	41.5% (n = 394)

Looking at an overlapping and better-defined dataset from NHS Digital, data on written complaints in the English NHS, shows that complaints about clinical treatment accounted for less than a third of complaints:

YEAR	TOTAL NUMBER OF COMPLAINTS ABOUT CLINICAL TREATMENT	% OF ALL COMPLAINTS THAT WERE ABOUT CLINICAL TREATMENT
2015/16	59,678	32.0%
2016/17	51,145	26.7%
2017/18	48,904	26.2%
2018/19	53,084	27.5%
2019/20	53,018	27.1%
2020/21	40,854	26.9%

A proper interrogation of UHB’s complaints data and an examination of UHB’s response to complaints is needed.

Journalists might be interested to pursue the records relating to this event in 2021/22, as described in the foreword by David Rosser ex UHB CEO, in the trust’s quality account for that financial year:

“A wide range of omissions in care were reviewed in detail during 2021/22 at the Executive Care Omissions Root Cause Analysis (RCA) meetings chaired by the Chief Executive. Cases are selected for review from a range of sources including serious incidents, serious complaints, IT incidents, infection incidents and cross-divisional issues.”

Surely Bewick could hardly have been hampered by poor data systems as UHB’s former CEO and current CMO are ardent fans of digital health and data.

Rosser’s foreword in the 2021/22 proclaimed:

“Data quality and timeliness of data are fundamental aspects of UHB’s management of quality. Data is provided to clinical and managerial teams as close to real-time as possible through various means such as the Trust’s digital Clinical Dashboard. Information is subject to regular review and challenge at specialty, divisional and Trust levels by the Clinical Quality Monitoring Group, Care Quality Group and Board of Directors for example.”

The fact that Bewick was prepared to declare UHB safe without any evident discussion of UHB complaints data suggests two possibilities.

Either he decided it would be unfavourable to examine or report on complaints, or he did not consider patient experience or patient voice important when assessing patient safety.

Either option would suggest he should not be directing the UHB reviews.

And who directed Bewick?

It strikes me that the only NHS England or the Department of Health would have the power to ensure the exclusion of PHSO’s evidence from Bewick’s review.

Such high-level interference only additionally points to the need for a judge led inquiry with powers to compel evidence, as well as to protect witnesses and ungag silenced staff and former staff.

I think we should brace for more misdirection.

UPDATE 12 MAY 2023

I obtained data on the number of concerns raised by the public with Birmingham and Solihull Healthwatch. The data shows marked and continuing escalation beginning in 2021. Healthwatch disclosed under FOIA that it started meeting with the CQC on the basis of this sharp escalation in concerns and that these meetings continue:

Healthwatch Birmingham & Solihull has been receiving increasing concerns from the public about UHB and has held monthly meetings with the CQC

I have sent the Healthwatch data to Bewick and suggested that he should examine and report on UHB’s patient complaint data, with both quantitative and qualitative analysis.

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This is a statement of 4 April 2023 by the external reference group on Bewick’s reviews, which criticised some of the gaps in Bewick’s report:

Statement from the UHB Cross-Party Reference Group

However, this statement also did not mention the PHSO’s exclusion from Bewick’s review or the absence of any reference to patient complaints.

The latter is a little surprising given that Richard Burden former Labour MP is the current Chair of Healthwatch Birmingham and Solihull and a member of this external reference group.

A statement by Burden on 28 March mentioned the PHSO but not Bewick’s omission of patient complaints.

Healthwatch Birmingham statement 28 March 2023

The only patient related outcome measures mentioned by the external reference groups were as follows:

“We do remain concerned about above average mortality rates and the number of ‘never events’.

This is the full membership of the external reference group, according to Birmingham and Solihull ICB, which commissioned the Bewick reviews:

• Preet Kaur Gill, Labour and Co-operative MP for Birmingham, Edgbaston
• Gary Sambrook, Conservative MP for Birmingham, Northfield   
• Richard Burden, Healthwatch Chair       
• Andy Cave, Healthwatch CEO   
• Dr Chaand Nagpaul, clinical representative
• Mitzi Wilson, RCN representative
• Councillor Mariam Khan, Health & Well Being Chairman & Cabinet Lead for Social Care and Health, Birmingham City Council
• Councillor Karen Grinsell, Deputy Leader & Cabinet Member with responsibility for Partnerships & Well-being, Solihull Metropolitan Borough Council
• Gail Adams, Unison representative
• Peter Mayer, citizen representative
• Mustak Mirza, citizen representative    

NHSE, ICB and UHB’s three-ring circus and Rosser’s digital assignment

This post shares FOI data which showed that UHB and the ICB colluded to give a false impression that David Rosser had left UHB when he in fact remained an employee of the trust, and was just temporarily parked at the ICB, answering to the ICB’s CEO.

When is a Professor a Professor: Does the routine use of honorifics reduce confidence in public life?

Bewick styles himself “Professor” on the basis only of an honorary professorship from UCLAN.

By Dr Minh Alexander retired consultant psychiatrist 6 April 2023

Summary: CQC has once more given scant regard to Employment Tribunal findings of gross whistleblower reprisal in the case of Dr Ambreen Malik and found a provider organisation, Cygnet Health Care, compliant under CQC Regulation 5 Fit and Proper Persons. CQC continues to make claims that it cannot make judgments about the fitness of individuals, and makes unsustainable regulatory judgments about process without taking into account the character of individuals of concern. CQC steadfastly and disingenuously claims that it has no remit to assess the fitness of individuals, despite Regulation 5 requiring that directors are of “good character”. It is also despite the fact that CQC’s own internal guidance states clearly that CQC has powers to take action against providers who have unfit directors, which of course is predicated on CQC making an assessment of individual fitness. CQC also provides almost no details about how it reaches its FPPR decisions, conveniently making them much harder to challenge.

Introduction and background

Two years ago I referred Cygnet directors who had been seriously criticised for harming a whistleblower to the Care Quality Commission under CQC Regulation 5 Fit and Proper Persons (FPPR).

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

Under this regulation, the CQC has powers to ensure that a provider has satisfactory processes for ensuring that its directors are Fit and Proper Persons.

The CQC has typically manipulated matters to allow board members of regulated bodies to evade accountability for serious wrongdoing.

It has done so by claiming that it has no remit to assess if individual directors are Fit and Proper Persons.

Instead, CQC claims it can only look at processes.

This is of course arrant nonsense. If for example, a regulated organisation appoints a freshly convicted serial killer to its board, even CQC might be forced to admit that based on an assessment of the individual, the provider was in breach of FPPR.

CQC Regulation 5 demands that directors must be of “good character”:

1. “The requirements referred to in paragraph (2) are that—
   1. the individual is of good character,
   2. the individual has the qualifications, competence, skills and experience which are necessary for the relevant office or position or the work for which they are employed,
   3. the individual is able by reason of their health, after reasonable adjustments are made, of properly performing tasks which are intrinsic to the office or position for which they are appointed or to the work for which they are employed,
   4. the individual has not been responsible for, been privy to, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of carrying on a regulated activity or providing a service elsewhere which, if provided in England, would be a regulated activity, and
   5. none of the grounds of unfitness specified in Part 1 of Schedule 4 apply to the individual.”

Moreover, CQC’s own internal guidance shows that CQC is perfectly aware that it can use other regulations to force the removal of unsuitable provider directors, should it wish to.

“It is not the responsibility of CQC to ensure fitness although we can take action against the provider if we believe an unfit person to be in a directorship position.”

That is the key issue. Does CQC wish to?

Current media interest in CQC’s handling of FPPR and the UHB scandal

CQC’s disgraceful handling of FPPR is back in the full glare of publicity because the controversial investigator for the UHB scandal Mike Bewick has omitted to examine UHB’s much-criticised FPPR process in his phase one review of UHB.

This has provoked criticism from an external reference group  which includes local politicians, who have questioned whether there has been a cover up at UHB:

“There are also several gaps in the report including the lack of recommendation resulting from the conflicting CQC reports. We must be granted access to previous documents such as the Fit and Proper Person Review (FPPR) which have not been shared. Releasing these reports and details of the process and people involved in commissioning and carrying them out is important to help ascertain any conflicts of interest, whether decisions made have contributed to the propagation of UHB’s toxic culture, and whether these amount to a ‘cover up’

 Bewick’s omission of FPPR issues from his review relied on a false premise.

Bewick claimed that he did not request a copy of UHB’s still secret FPPR investigation or investigate UHB’s handling of FPPR because it was not within the scope he had been given:

“Page 11: “Whilst we have not seen or requested a copy of the internal UHB FPP review (and this was beyond the original scope of our work….”

This was peculiar because the terms of reference given to Bewick allowed him to go wherever the evidence took him:

“The review will be independent and without limits but will include….”

Opening the can of FPPR worms at UHB would have involved exposing  the CQC’s wrongdoing on FPPR at UHB as well.

Unsurprisingly, Bewick kicked that can down the road.

In this political backdrop, another astonishing but fully predictable CQC failure on FPPR has concluded in the whistleblowing case of Dr Ambreen Malik at Cygnet Health Care.

CQC’s contention that Cygnet is compliant with FPPR

After I referred the relevant Cygnet directors to CQC under FPPR in the light of the extremely critical judgment against Cygnet for whistleblower reprisal, the CQC delayed and justified the delay because Cygnet had appealed against the ET.

During this time, thousands of Cygnet patients remained potentially exposed.

Only after lengthy legal proceedings concluded did CQC wrap up the FPPR process.

If CQC was concerned about patients, it would have independently reviewed Cygnet’s compliance with Regulation 5 without delay, and taken the approach that it would update any assessment if new information emerged.

In the UHB matter, CQC found UHB compliant with Regulation 5 but added that it would “reserve the right to review the case if further information is presented to the CQC”.

When it suits, in the pursuit of protecting the powerful, the arbitrary CQC will do as it pleases.

Notwithstanding, long after the original FPPR referral and with much, much suffering by Dr Ambreen Malik in between, CQC eventually wrote to me on 20 March 2023 with its standard, high handed FPPR closure letter.

The letter came from CQC’s latest Chief Inspector of Hospitals, Sean O’Kelly, and ended with the signature CQC equivalent of shutting the door in a correspondent’s face:

“This concludes CQC’s review of Cygnet Health Care under this regulation, as well as our correspondence with you on the application of Regulation 5 to all information you supplied.”

For the sake of Dr Malik’s privacy I am not going into details, but the shocking disparity between CQC’s inaction and indifference, and everything that she has suffered is truly unforgivable.

Also, with impeccable timing  CQC chose to shut down this Cygnet FPPR in the middle of the five week criminal trial of staff from Whorlton Hall (a Cygnet facility) , regarding abuse against highly vulnerable residents. This abuse was enabled by CQC’s failures to act upon the concerns of its own staff, including CQC whistleblower Barry Stanley Wilkinson.

The nine defendants in the Whorlton Hall abuse trial:

I questioned the lack of information provided on CQC’s FPPR decision, citing CQC’s proven and serious unreliability in the Rosser FPPR referral.

This was met with slightly more information on 3 April 2023, including a disclosure that O’Kelly is the current Chair of CQC’s FPPR committee, which makes the decisions on referrals:

O’Kelly’s role as chair of CQC’s FPPR committee introduces a potential conflict of interest. He may be faced with FPPR referrals which challenge the validity of previous, favourable CQC ratings for which he has ultimate responsibility as Chief Inspector.

Laughably and cynically, CQC suggested that I should contact Cygnet for a copy of the reports upon which CQC’s exoneration of Cygnet was based.

But for completeness, I will ask for a copy from Tony Romero Group CEO of Cygnet Health Care,  whom the original ET criticised.

I doubt that Cygnet would be likely to willingly disclose their reports.

And of course, Cygnet Health Care is a private provider and beyond the reach of FOIA, so the reports cannot be obtained by this route either.

CQC’s ridiculous contention that Cygnet is compliant with FPPR because Cygnet’s whistleblowing processes have purportedly improved is predicated on an assumption that individuals change.

Some individuals are not capable of and may not wish to change. No amount of improved processes will protect patients or whistleblowers from such individuals.

That is why less compromised regulators actually ban failed/ rogue directors.

For example, Neil Cruickshank the former senior manager ultimately responsible for the Winterbourne View abuse scandal, who did not listen to whistleblowers’ disclosures, was banned for eight years by the Insolvency Service.

It is a pity that the same cannot be done to CQC, who failed to listen to the Winterbourne View whistleblowers and still fail horribly to listen to or protect whistleblowers by removing abusers.

I also asked NHS England on how it could exert its commissioning leverage to improve whistleblowing governance in the private sector. I have had no response despite numerous chasers.

It is also moot whether processes at Cygnet have genuinely improved. Scandals continue to emerge on a regular basis about Cygnet facilities, and most seriously of all, some of the scandals feature lack of learning and improvement after previous identification of failings.

Some of Cygnet’s continued failures Mental health hospital where patients were ‘bullied and abused by staff’ put into special measures Investigation at Cygnet St Williams in Darlington after reports of ‘bullying’ Hexham psychiatric hospital remains ‘inadequate’ after safety fears raised, despite improvements

Questions remain

Are some providers too big, wealthy and powerful to be allowed to fail?

And what of the revolving door between regulators and such powerful providers?

How many senior managers in our regulators have their eyes on the glittering prizes on the other side of the fence, and does that affect how they discharge their regulatory duties?

Sir David Behan appointed chair of HC-One

Loss-making care home firm HC-One, pays £1.8m dividend to its private equity owners

UPDATE

I have written as planned to asked Cygnet for a copy of their external FPPR reports:

BY EMAIL 

Dr Tony Romero 

CEO Cygnet Health Care Ltd

6 April 2023

Dear Dr Romero,

External FPPR reports 

The Care Quality Commission has informed me that an Fit and Proper Person referral that I made on Cygnet directors under CQC Regulation 5 in 2021 has concluded, with the regulator concluding that whistleblowing processes at Cygnet have improved to the point where CQC considers that Cygnet is now meeting the requirements of Regulation 5.

I asked the CQC if there had been any transparency about the findings of external reports commissioned by Cygnet which the CQC relied upon to reach its conclusion of improvement.

The CQC did not reply directly to this question but suggested that I contacted Cygnet if I wanted copies of these external reports. They are:

– The external report shared with CQC in August 2021

– A supplement to this report in September 2022, which was shared with CQC in January 2023

In the NHS, the best practice guidance from NHS Providers is that there should be transparency about FPPR investigation findings, at least in summary form. 

NHS Providers’ guidance also emphasises that visible rigour is important in contentious cases and where there have been failures of whistleblowing governance.

I would be grateful if Cygnet could accordingly disclose either copies of the external FPPR reports that it commissioned, or at least a summary of the main findings and recommendations.

I copy this to Sean O’Kelly CQC Chief Inspector of Hospitals, Amanda Pritchard CEO of NHS England in view of commissioning issues, and the relevant House of Commons committees.

Many thanks.

With best wishes,

Minh

Dr Minh Alexander

cc Sean O’Kelly CQC Chief Inspector of Hospitals

Amanda Pritchard  CEO NHS England

Health and Social Care Committee

Joint Committee on Human Rights

I sent the above request to Cygnet on 6 April 2023 at 11.55 am.

I received the following reply from Cygnet’s General Counsel at 12.36 pm.

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By Dr Minh Alexander retired consultant psychiatrist 29 March 2023

Kevin Hollinrake Tory MP was a vice chair of the much criticised Whistleblowing APPG which was set up in 2018 with money from US bounty hunting lawyers.

He has openly advocated that UK whistleblowers should be “incentivised”:

Other members of the Whistleblowing APPG have also spoken about whistleblower rewards and the APPG’s secretariat WhistleblowersUK has advocated for whistleblower rewards.

Legislation proposed by the Whistleblowing APPG shows signs that it is intended to open the door to a US bounty hunting model.

The offer of whistleblower rewards is against most ethical guidance on whistleblowing and against longstanding UK whistleblowing policy.

Kevin Hollingrake was appointed to the Department for Business, Energy and Trade as Parliamentary Under Secretary of State between 27 October 2022 and 7 February 2023.

Most recently Hollinrake was appointed Parliamentary Under Secretary of State at the Department for Business and Trade on 7 February 2023.

Shortly after, on 27 March 2023, Hollinrake’s government department announced another review of UK whistleblowing law.

Will the review be conducted professionally, impartially and follow the evidence base?

Or will it be another Tory charade of thinly disguised cronyism, boot filling and back room deals?

Given all the evidence of government misconduct in recent years, one might reasonably think that the prospect of a bounty model, that siphons obscene amounts of cash into the hands of whistleblowing industry middlemen and bounty hunting lawyers, has just become more likely.

Especially if the increasing excitation of the assorted denizens of the Whistleblowing APPG’s murky waters is anything to go by.

Don’t be optimistic of any genuine governance.

Do expect the parade of dubious celebrities, useful idiots, fake talking heads, planted articles puffing the Office of the Whistleblower and social media sock puppeteers to get worse.

That is of course, only if some further terrible government scandal does not upend all plans by this time next week, and we get another clutch of heartsink ministers.

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By Dr Minh Alexander retired consultant psychiatrist 29 March 2023

On 18 November 2022 it was announced by both University Hospitals Birmingham NHS Foundation Trust (UHB) and the commissioning body Birmingham and Solihull Integrated Care Board (ICB) that David Rosser CEO of UHB was moving on to a new role.

This role was regional “Strategic Director of Digital Health and Care”.

Curiously, there appeared to be no sign of an office, team, website locus, operating details or contact details. As the weeks and months passed, this did not change.

Eventually, repeated enquiries to Patrick Vernon the ICB Chair resulted in an admission, via the ICB FOI team, that Rosser had not left UHB at all.

He remained technically employed by UHB.

Jonathan Brotherton was carrying out his former duties as acting UHB CEO.

In Rosser’s new Digital role, he was reportedly “hosted” by the ICB and reported to the ICB’s chief executive David Melbourne.

FOI response by Birmingham and Solihull ICB Ref 20230119-2, 16 Feb 2023 David Rosser’s new role

Yes, that is the same David Melbourne who has been directly involved in the oversight of the ICB’s reviews on UHB’s failing governance and who has been responsible for briefing local councillors about the progress of the reviews via the Joint Health Overview and Scrutiny Committee.

All very intertwined and not very independent looking.

The ICB could not even produce a formal position specification/ job description, answering pitifully:

“Further specifics are being scoped with system partners”

And if it was all innocent, why was there a need for the carefully crafted, coordinated statements which omitted to mention that Rosser had not actually left UHB at all?

Why was the word “regional” tacked onto the role, giving the impression of distance from local arrangements?

Would the man on the Clapham Omnibus think that it all looked a bit furtive and collusive?

What were the ICB and NHS England trying to hide?

We will likely hear more as the threads continue to unravel.

Oh, and Bewick’s phase 1 report on UHB was published today, with a good many departures from his terms of reference, through substantial omissions.

We can at least thank Dr Bewick for helping to expose the situation further and for additionally making the case for a judge led inquiry with powers to protect vital witnesses who have had to remain silent so far.

UPDATE 3 April 2023

I asked the ICB if Mike Bewick had been in on the contrived fiction that Rosser had left UHB when he had in fact remained in UHB’s employ all along.

The ICB replied evasively on 3 April 2023.

I have asked the ICB Chair Patrick Vernon to answer the questions clearly, as follows:

BY EMAIL

Patrick Vernon

Interim Chair

Birmingham and Solihull Integrated Care Board

3 April 2023

Dear Mr Vernon,

Circumstances of David Rosser’s employment and information disclosed to Mike Bewick

Thank you for the further FOI response from the ICB on this matter.

I feel the ICB has not responded to my FOI request. It has answered past the point and possibly disingenuously.

The ICB has stated in its response that Mike Bewick knew about the circumstances of David Rosser’s new role because they came into the public domain on 18 November 2022, when David Rosser’s appointment to the regional role of “Strategic Director of Regional Digital Health and Care” was announced, before Mike Bewick took on the UHB review. 

Also, the ICB indicated that Mike Bewick was nonetheless informed of these details upon being appointed by the ICB, [to undertake the phase 1 rapid review of University Hospitals Birmingham NHS Foundation Trust]. 

However, in my FOI request I specifically asked the ICB if Mike Bewick has been informed of the fact that David Rosser had been “hosted” by the ICB and was reporting to the ICB chief executive. 

These facts were disclosed to me only via an ICB FOI response in February 2023. 

It was not public knowledge that David Rosser had in fact, as the ICB admitted in February, remained in UHB’s employment. 

This was despite coordinated press releases by both UHB and ICB which gave the impression that he had left UHB.

These facts about his continuing employment by UHB and secondment to the ICB did not come into the public domain until late March when they were revealed by the BBC: first by Michele Paduano, and then Newsnight on 28 March 2023.

Accordingly, could the ICB provide a response to my specific questions as follows.

Did the ICB inform Mike Bewick upon appointing him, to undertake the phase 1 rapid review into UHB, that David Rosser:

a) Was still employed by UHB?

b) Was “hosted” by the ICB?

c) Was reporting to the ICB CEO?

Please also advise of an additional matter:

1) Upon being contracted to undertake the phase 1 rapid review of UHB, did Mike Bewick inform the ICB of the basis upon which he called himself “Professor”?

2) Did Mike Bewick provide the ICB with details of his qualifications and how he came by this title of “Professor”?

Yours sincerely,

Dr Minh Alexander

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By Dr Minh Alexander retired consultant psychiatrist 26 March 2023

My apologies for a late post. This is due to a combination of illness and an excess of commitments.

As many whistleblowers, patients and bereaved families will know, the Care Quality Commission is fond of fending off concerns by labelling them as “complaints”. This is because CQC claims that it has no remit to investigate individual “complaints”.

CQC’s refusal to investigate countless serious matters, using this ploy, has caused endless frustration and distress. Importantly, it has wasted many opportunities for learning and public protection.

However, the regulator does have a duty under CQC Regulation 12, 2014, to investigate incidents that tend to show a failure by a regulated provider to provide “safe care and treatment”.

The CQC has powers to prosecute under this regulation. Clearly, in order to do so, it must first investigate.

Baby Harry Richford’s death and Regulation 12

An example of CQC’s unreliability arose in the case of baby Harry Richford’s death at East Kent.

CQC initially told his family in 2018 that it was unable to investigate their concerns and also that his death did not fall under Regulation 12.

The details of this matter were previously summarised here.

CQC came to an initial conclusion that no organisational failings contributed to Harry’s death. This was despite:

1. The trust’s own internal incident analysis concluding explicitly that there were systemic failures which contributed to Harry’s death:

“This leads us to conclude that this incident occurred due to system failures.”

Some of this was echoed in external reports at the time.

2. A 2015 Royal College review which had also previously identified systemic failings in the maternity service.

The systems failings identified by the Royal College included:

There had also been other signs of organisational failure by that point. Bill Kirkup’s October 2022 report on East Kent noted that the CCGs had raised concerns about maternity safety. CQC also received a whistleblowing disclosure from a consultant obstetrician in 2015 about poor leadership in East Kent’s maternity services. CQC received other disclosures about the culture of the maternity service. CQC itself found issues of culture in maternity services in 2014 inspection, when it rated the whole trust “inadequate”.

Despite the above evidence from multiple sources, the CQC claimed to Harry Richford’s family in 2018 there was only evidence of failings by individuals and not by the trust, and this meant that CQC Regulation 12 did not apply:

“After an extensive review, we do not believe there has been a breach in regulation. The concerns raised in this incident are centred on an individual’s decision or error. The criminal offences CQC can prosecute against only apply to registered person failures.”

However, the regulator later admitted that it had a remit under Regulation 12 to investigate Harry’s death.

After the coroner ruled in January 2020 that Harry’s death was “wholly avoidable”, CQC eventually concluded that there had been a breach of regulation 12 and announced a prosecution of East Kent in October 2020.

The trust was found guilty and was issued with a fine of £733,000 in June 2021.

I asked CQC about its original assertion in 2018 that Section 12 was not engaged, and why CQC so often tells bereaved families that their concerns cannot be investigated, when this seems incompatible with Regulation 12.

The CQC replied defensively on 24 November 2022, acknowledging that it had erred only in respect of the fact that its local inspector had used “conclusive” language when informing Harry Richford’s family in 2018 that Regulation 12 had not been breached.

“When Emma Carroll drafted her email of 17 August 2018, the local team, based on the information they had available at that time could not establish all of these elements. However, in Emma’s email, she unfortunately used conclusive language. After the conclusion of our prosecution. we carried-out a learning review of the investigation and within that we highlighted Emma’s correspondence to the family in August 2018. The learning point was that, for any potential offence and after any initial assessment, further information can always come to light and therefore we should not use categorical language in our communication with victims and families which states a conclusive position.”

CQC focussed on the fact that she should have explained to the Richfords that new information might change CQC’s assessment.

This is the CQC’s response letter of 24 November 2022.

The CQC contended that because it was tracking Harry’s inquest, it had not closed its file, and was still investigating.

There was nothing in this response about the quality of the 2018 CQC appraisal of Harry’s case, or any admission or explanation of why CQC had bizarrely overlooked ample evidence of organisational failure that existed by 2018, or why it had failed by that point to obtain a copy of the Royal College report.

But then, neither did Bill Kirkup fully acknowledge CQC’s failings in his recent report on East Kent. His main, repeated focus was on denial by East Kent managers.

Kirkup did make limited references in his report to missed opportunities by the CQC, but it would not do to direct too much fire at the powerful.

A bit like the strange silences about senior managers at Frimley, contrasted with the heavy focus on cover ups by frontline staff in his report about baby Elizabeth Dixon’s death.

But coming to the main point, CQC conceded in November 2022 correspondence that if it receives information about a possible breach of Regulation 12, such disclosures would be considered as part of CQC’s “assessment” about the purported breach:

So, don’t let CQC kick your concern into the long grass by framing it as a “complaint”.

Rather, insist – if it is so – that your concern engages Regulation 12.

UPDATE 9 April 2023

A coroner’s inquest has revealed that the CQC badly failed very vulnerable older patients at a HC-One home, by failing to act on numerous concerns.

Three residents died in February and March 2019.

One family member contacted the CQC NINE times to raise concerns.

The CQC did not inspect the home until August 2019.

It has “apologised for not inspecting sooner, and to all three families for missing the opportunity to potentially launch a criminal investigation.“

https://www.bbc.co.uk/news/uk-england-cambridgeshire-64939698

By Minh Alexander NHS whistleblower and Martin Morton Social Work whistleblower 22 March 2023

The Care Quality Commission is the quality regulator for health and social care in England. It is supposed to be an impartial guardian of care standards and accountable to the public.

In reality, CQC was created in the aftermath of government embarrassment by a previous health regulator which uncovered the MidStaffs disaster.

The CQC was not intended to repeat such embarrassment and its first CEO was in fact the former CEO of the West Midlands SHA, a body that was central in the Mid Staffs disaster.

CQC’s first chair Jo Williams was later censured by the Mid Staffs public inquiry and parliament for mistreating CQC whistleblowers who gave evidence about regulatory failure by the CQC.

Excerpt from Amanda Pollard CQC whistleblower’s oral evidence to the Mid Staffs public inquiry, given on 28 November 2011:

When Williams was recycled as an NHS trust Chair, CQC unsurprisingly passed her trust on the Regulation 5 Fit and Proper Person Test.

All told, the CQC has proven to be a politicised and suppressive organisation.

It has failed countless whistleblowers, including its own. This all the worse for the fact that CQC is a Prescribed Person under UK whistleblowing law and should at least not harm whistleblowers, whether by act or omission.

However, last year, the regulator was proven to have seriously harmed a CQC whistleblower in the ET case of Kumar v CQC.

The government has allowed the CQC to investigate and control investigations into itself regarding this spectacular failure.

At least one of these investigations, a barrister led review of the Kumar case and a mysterious, undisclosed sample of other whistleblower cases, should have reported by now, but nothing has been released into the public domain.

CQC’s whistleblowing governance reviews Sparse terms of reference for the CQC reviews post Kumar v CQC were issued. Terms of reference for review by Zoe Levental KC Matrix Chambers Terms of reference for review by Scott Durairaj CQC Director of Integrated Care, Inequalities and Improvement It was not disclosed how the additional whistleblower cases for review were chosen. CQC instructed a barrister from Matrix Chambers. FOI enquiries revealed that CQC had instructed both the barrister and Matrix Chambers previously.

In the meantime, the CQC has shown itself to be disingenuous despite its glib claims that it would learn from the Kumar case.

In an internal briefing to CQC staff in September 2022, disclosed via FOI, CQC’s CEO Ian Trenholm claimed shortly after the ET loss that both the CQC and the National Freedom To Speak Up Guardian had good track records on supporting whistleblowers.

Trenholm also decried CQC’s critics.

Is denial a novel technique for creating a safe environment that helps staff to raise concerns?

CQC’s failure under FOIA to produce all of its Freedom To Speak Up Guardian reports

Parallel to this, CQC was.evasive and breached legal deadlines for responding to an FOI enquiry about its whistleblowing governance

CQC was asked to disclose all reports by its own Freedom To Speak Up Guardian but failed to do so.

Instead, CQC bizarrely pretended to misunderstand and directed one of this blog’s authors to published reports by the National Freedom To Speak Up Guardian.

When this obvious error was pointed out, CQC reverted to silence. It has still not properly responded to the FOI request.

Some of CQC’s internal Freedom To Speak Up Guardian reports were actually published via CQC board papers, but not all seem to have been released. There are gaps in the timeline of published reports, taken from archived CQC records.

According to CQC’s whistleblowing policy, the reports are meant to be produced twice a year:

“Board oversight

The chief executive and CQC board will be given high level information about all concerns raised by our staff through this policy and what we are doing to address any problems. The CQC Guardian will produce a report twice a year to the board setting out the volume and type of concerns that have been raised, without identifying individuals. The board supports staff raising concerns and wants you to feel free to speak up.”

The CQC’s silence in response to the request for all its Freedom To Speak Up Guardian’s reports is troubling. Are important matters being concealed? Were some of these reports produced for internal consumption only, and have they been improperly withheld from FOIA disclosure?

Of the so far published CQC Freedom To Speak Up Guardian rreports, these present superficial data which raise more questions than they answer. Links to these uploaded CQC reports and some examples of how limited data is presented in these reports is summarised here.

CQC denial of detriment and dissembling about feedback about its Freedom To Speak Up process

In the course of the above FOI correspondence about CQC’s whistleblowing governance, CQC implausibly denied that there had been any detriment suffered by employees in 131 recorded speaking up cases over five years:

“…we can inform you that nobody raised that they feel they have suffered detriment as a result of speaking up.”

Curiously, despite being adamant that there was no detriment in any of these 131 case, CQC claims it is unable to answer a question about its employees’ satisfaction with the CQC speaking up process.

This allegedly because it would have to manually review files and this would take too long.

CQC has claimed a slew of other FOIA exemptions as well, indicating how reluctant it is to answer this very basic question about whether its staff are satisfied by their speaking up experiences.

Several issues arise from this.

Firstly, the National Guardian requires all NHS Freedom to Speak Up Guardians to collate and produce routine speaking up data as follows:

• Number of cases raised in reporting period
• Number of cases raised anonymously
• Number of cases raised with a patient safety element
• Number of cases raised with an element of bullying or harassment
• Number of cases in which detriment occurred
• Professional background
• Feedback: “Given your experience, would you speak up again?”

There is a published national dataset based on this reporting system.

The so far published CQC Freedom To Speak Up Guardian reports do not reveal most of this required transparency data.

CQC’s internal whistleblowing policy gives cursory guidance on what records are made:

“What will we do? We are committed to the principles of the Freedom to Speak Up review and its vision for raising concerns, and will respond in line with them. We anticipate that some concerns may be capable of being dealt with informally to the satisfaction of all concerned, without contacting the ambassadors. If you choose to go through one of our FTSU ambassadors, your concern will be recorded and you will receive an acknowledgement within two working days. The central database will record the date the concern was received, whether you have requested confidentiality, a summary of the concerns and dates when we have given you updates or feedback, and any lessons learned.”

The job description for CQC Freedom To Speak Up Guardians is based on this policy and is consequently also vague:

“To keep up to date records, recording contacts, concerns and outcomes in line with the CQC Freedom to Speak Up recording policy and process”

How did CQC know that no detriment has been reported via its Freedom To Speak Up arrangements? Was this a non-evidence based claim? Or is there collated data that is being withheld from the public, contrary to practice in the rest of the NHS?

If CQC is not collating data such as to whether its staff are satisfied with their experiences of the Freedom To Speak Up arrangements, through indicators such as whether they would speak up again, how can it claim to be learning?

CQC received the Kumar v CQC judgment in August 2022. The regulator has had over six months to reflect. The fact that it might be still failing to collect whistleblower feedback, ignoring the feedback or hiding the feedback is a very poor reflection on its intentions.

In fact, CQC’s Director of Engagement recently admitted in correspondence that CQC does NOT collect feedback from whistleblowers.

If so, why did CQC not simply admit this omission in its FOI response, instead of claiming that it would not produce the data due to an FOIA cost exemption?

Moreover, Ursula Gallagher another CQC senior manager pointed out to the CQC board in 2018 that CQC was failing to collect feedback from whistleblowers,

“…there is only limited feedback available from those who have raised concerns with us about their experience of those processes and, therefore, how this might be improved.”

And yet CQC did not act on this. This is more evidence of CQC’s failure to take whistleblowing seriously.

Overall, it seems likely from the above inconsistent facts and CQC claims that there is dissembling in some manner, in addition to probable competence deficits.

Lastly, one of the authors has received information which contradicts CQC’s claim of zero detriment in 131 speak up cases.

This is hardly surprising, especially when CQC’s 2021 staff survey showed that only 49% of staff thought that it was safe to challenge the way things are done at the CQC, and that 10% of the staff who did not think it was safe reported that they had experienced repercussions as a result of speaking up previously.

So whatever is reported in CQC’s forthcoming reviews of its own whistleblowing governance, it would be safe to conclude that the reality is worse.

PETITION

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

Replace weak UK whistleblowing law and protect whistleblowers and the public

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By Dr Minh Alexander retired consultant psychiatrist 21 March 2023

UHB has failed in its duty as a public body to routinely publish details of any spending over £25K in the last five years.

All public bodies should do so as a matter of government policy.

Prior to this period, UHB’s predecessor body Heart of England NHS Trust published spending transparency data, but there appears to be no trail of UHB doing so.

In the last five years, UHB has resisted FOI requests for this data, and it has only released data when ordered to do so by the Information Commissioner.

Even after determinations by the Information Commissioner which found that the public interest required disclosure, UHB reverted to its old ways and failed to publish subsequent spending data.

UHB previously claimed when resisting FOI requests from the public that publishing the spending data would increase the risk of fraud.

I asked the NHS Counterfraud Authority if it ever advised NHS bodies to permanently suspend publication of spending data as a counterfraud measure. NHSCFA replied that it had not and that it had no remit to issue such guidance.

Under a new Chair, UHB has now released all five years of hidden spending data in response to an FOI request. It has done so late, and only after an indication that a referral would be made to the ICO if there was any further delay.

This is the raw financial data released by UHB:

UHB spending data released 8 March 2023

The material was supplied in an unhelpful form, with entries mixed up in random date order, with some material from outside of the requested period mixed into the data.

In its FOI response letter, UHB claimed that the decision to stop publishing financial transparency data was made collectively at the executive director level.

Surprisingly, UHB claims that this important decision was not recorded.

“We do not hold this information, as the decision referred to above was not formally recorded”

The spending data is now being shared partly to ask for help from all to assess if there is any possible reason why UHB has been so secretive in hiding this financial data from public view.

If anyone thinks they understand why there has been such secrecy, please do send comments to BBC Newsnight or Michele Paduano BBC Midlands Health Correspondent, who are covering UHB.

I have started organising the FOI data into years and under different areas of expenditure.

This is a spreadsheet of the data sorted into each of the five years, with extraneous years removed:

UHB spending data for 2018, 2019, 2020, 2021 and 2022

The data still contains items that were not asked for, in terms of spending amounts under £25K, but if desired, these can be excluded using the “filter” option on Excel.

There was no indication from UHB on whether all transactions under £25K had been included in the released data.

For the purposes of a quick and dirty look at the data, I am including all items of expenditure in the five year period, even in the knowledge that UHB may not have released all items of spending under £25K.

The data seems to be missing some items of expenditure currently under investigation by BBC Newsnight. It may well be incomplete in other respects.

We already know that UHB released inaccurate information about GMC referral outcomes, and has so far failed to correct this despite several approaches to the interim trust Chair Yve Buckland.

We have also seen UHB excoriated by the Employment Tribunal for withholding such a large number of significant documents in the Reuser whistleblowing case that the judge determined that he could not rule out deliberate dishonesty by UHB or similar future failures by trust management.

“Whilst I stopped short of finding any deliberate dishonesty on the part of the respondent, or the key players involved, I could not rule that out”

Please therefore do take the data with a large pinch of salt and bear in mind that UHB is a desperate organisation under intense scrutiny.

With that caveat, these are some broad findings so far.

Total spending and number of transactions

UHB’s disclosure showed at least over two billion in spending over five years, through almost twenty thousand transactions.

PFI spending

All PFI payments were made to Consort Healthcare (Birmingham) Ltd.

Current officers of this company are listed as:

Pario Limited R00586

Andrew Brian Deacon

Mark Geoffrey David Holden

William Edward Morris

Brian Roland WALKER

Stephen Douglas Worthy 

Annually, all the largest items of any spending related to expense area “New Hospital PFI Payments”.

These were the annual total spends under the expense area “New Hospital PFI payments”

Public relations

Total spending on expense areas labelled “Public relations” and “public relations umbrella” 

amounted to £422,654.15 over the five years.

There were a total of 25 transactions

Nineteen of these transactions were with Big Cat Ltd Birmingham based company.

Legal fees and services

Under expense type “legal fees”, UHB has spent at least £3,331,378.19 in the five years covered by the FOI.

This is a spreadsheet giving a breakdown of the companies who received the payments:

UHB spend under expense type “Legal Fees”

Bevan Brittan was the law firm which co-authored an FPPR investigation which reportedly cleared former UHB CEO David Rosser. I say “reportedly” because the report has never been published.

According to this disclosure: UHB spending on Bevan Brittan’s services in the five year period came to a total of £481,190.6 and broke down as follows:

This seems likely to be an underestimate because UHB previously disclosed that it spent £497K in total on Bevan Brittan’s services in just the three years between 1 April 2017 and 31 March 2020.

Litigation continued after March 2020 as Tristan Reuser’s case in the EAT and ET rumbled on, there was an FPPR investigation involving a Bevan Brittan partner and David Rosser’s GMC defence was, according to an observer at a trust meeting, picked up by the trust. These alone would have incurred substantial costs.

University of Birmingham

As a teaching hospital trust, UHB is closely linked to the university.

According to the disclosed spending data, UHB spent a total of £50,286,941.81 on 247 transactions with UHB in the five year period.

A spreadsheet giving details of the transactions can be found here.

Alongside this financial relationship, the University was asked about whether it should now withdraw its award of an honorary professorship from David Rosser in the light of ET, GMC and other findings. It has not so far responded.

Purchase of “Healthcare Non NHS”

Under this category, UHB made a total purchase of £86,081,036.99 in the five years covered by the FOI.

The largest ten payments were as follows:

Cumulatively, UHB paid the most to Diaverum and Fresenius Medical Care.

There were 1396 payments to Diaverum UK ltd and Diaverum Facilities Management, totalling £33,938,705.2

There were 1383 payments to “FRESENIUS MEDICAL CARE RENAL”,  totalling £22,743,634.4

A spreadsheet of all transactions listed under “Healthcare NON NHS” can be found here.

UHB Facilities Limited

In 2013 UHB set up a subsidiary company, UHB Facilities Ltd, reportedly for the purposes of VAT advantages.

The company’s current officers/directors include David Burbridge UHB Chief Legal Officer, Mike Sexton Chief Finance Officer, Peter Hirons UHB Facilities Manager,

UHB Facilities Ltd has a Financial Controller, Karen Cutler, and a commercial director Alan Ewan, for whom I cannot identify  roles at UHB.

In the five years covered by the FOI, UHB paid UHB Facilities Limited a total of £14,067,213.71.

A spreadsheet with the details of the transactions can be found here.

Assure Dialysis Services Ltd

UHB set up another company in 2013, UHB Satellite Dialysis Limited.

On 11 November 2014, the company’s name was changed to Assure Dialysis Services Ltd.

The company’s branding was non NHS:

The company website stated:

“Assure Dialysis Services is a venture providing dialysis care for the patients of the Queen Elizabeth Hospital Birmingham (QEHB) and we therefore have an extensive partnership with University Hospitals Birmingham NHS Foundation Trust, which manages QEHB.”

Another part of the website stated:

“Smethwick Dialysis Centre (SDC) is a satellite dialysis unit of the Queen Elizabeth Hospital Birmingham. It functions like all other satellite units and a QEHB consultant manages patient care alongside the staff at Smethwick Dialysis Centre.”

The current company officers/ directors are David Burbridge UHB Chief Legal Officer, Dr Mike Hallissey, UHB Medical Director of Education, Robert Watkins Senior Finance Manager UHB.

David Rosser was previously a director of Assure Dialysis Services Ltd between 2014 and 2018.

Dr Clara Day was previously listed as one of the doctors who worked at Assure Dialysis Services Ltd.

Clara Day is now Chief Medical Officer of the ICB which is controlling the reviews of UHB.

In the five years covered by the FOI, UHB reportedly paid the company a total of £4,670,604.76.

A spreadsheet with details of all disclosed transactions can be found here.

Pharmacy@QEHB LTD

UHB set up this company in 2011.

Current company officers/directors include David Burbridge UHB Chief Legal Officer, Yma Choudhury UHB Managing Director Division 1, Mike Sexton UHB Chief Finance Officer and Inderjit Singh UHB Chief Pharmacist.

In the five years covered by the FOI, UHB reportedly paid Pharmacy@QEHB LTD a total of £265,122,325.5.

Details of the transactions can be found in a spreadsheet uploaded here.

Circle Health Group

Cardiology and cardiac surgery services have been controversial at UHB, with critics citing the trust’s scapegoating of cardiac surgeon Ian Wilson, whom they believe was unfairly vilified through the trust’s alleged manipulation of the media and irregular use of data.

Moreover, the BBC revealed in January that UHB has a cardiac surgeon – Neil Howell – who has been paid for five years but has not operated;

The BBC has learnt heart surgeon – Neil Howell – on the left – – hasn't operated for 5yrs – doesn’t appear on the trust web site – but has been paid throughout.
UHB says it stands by its investigation, but cannot comment on a current employee @bbcmtd pic.twitter.com/A96ohoj4wk

— Michele Paduano (@MichelePaduano) January 13, 2023

UHB seems to have purchased significant services from Circle Health Group relating to its cardiac directorate.

Payments to Circle Health Group in the five years totalled £2,858,365.

See this spreadsheet for more details.

Of the total paid of £2,858,365, £2,800,693 of this was accounted for by expenses areas “cardiac directorate” and “cardiac surgery”, including £1,359,461 expenses described as “management consultancy fees”.

Babylon International Limited

UHB controversially hired Babylon.

“Babylon Disrupted the UK’s Health System. Then It Left”

This is what UHB has disclosed about its spending on Babylon – a total spend of £7,746,874.53:

There are a multitude of other stories and information contained in this financial data. I hope it is of interest to some and helps to shed more light on UHB.

With best wishes.

Minh

RELATED ITEMS

Transcripts of BBC Newsnight broadcasts about UHB:

PHSO alleges it has been excluded from NHSE/ICB’s reviews on UHB & ICB’s factual inaccuracy to the Joint Health Overview and Scrutiny Committee

What the UHB Freedom To Speak Up Guardian told the BBC

See also:

When is a Professor a Professor: Does the routine use of honorifics reduce confidence in public life?

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