NHS Regulators allow Trusts to bury their fatal mistakes: An open letter to Jim Mackey at NHS Improvement.

Dear Mr Mackey

 

My complaint to NHS Improvement on its failure under the external whistleblowing policy to take seriously my disclosures of the cover up of avoidable child deaths and serious injury at an NHS Trust (8 June 2015).

 

As CEO at NHS Improvement you have ultimate responsibility for its external whistleblower policy. I am therefore writing you a précis of my attempt over the last 20 months to address the cover up of avoidable child deaths and injury at an NHS Hospital using this policy. It is I am afraid, given the seriousness of my disclosures, a story of abysmal failure which is now with PHSO via my MP Mr Andrew Mitchell. In the closure email to my complaint about this failure the NHS Improvement Head of Complaints and Whistleblowing wrote: “neither TDA nor NHS Improvement has any duty to investigate individual cases brought to them by whistleblowers”. I will demonstrate beyond doubt that NHSI has both the power and a clear duty to investigate such serious disclosures. It simply wants to evade its responsibilities.

I made a written submission on 8 June 2015 under NHSI’s external whistleblowing policy concerning the death of 4 children and the severe neurological damage of one other. The timing of my disclosure was determined by recent media coverage in 3 cases and a report from an internal whistleblower about another. I had been personally involved as a paediatrician in the cases reported in the media and knew that death or damage had resulted from medical error in each case and that this had been known from very early on following death or damage. The basic concerns about these children were that:

  • the hospital’s liability had been covered up;
  • the truth had been concealed from the families and public for many (4-11) years;
  • there was failure in the Trust’s responsibility to be open when errors occurred;
  • concealment produced immense stress/illness (for families trying to get the truth)
  • reparation was delayed by many years,
  • excessive costs to the taxpayer had been incurred (legal and administrative fees etc.)
  • the trust failed to admit and therefore learn from mistakes and to improve services.

In one of the deaths it is quite certain that if I had not met the father of the deceased child and helped him navigate the complaints process and then on to an independent review by Cordis-Bright he would never have learned the truth of his son’s avoidable death. This was 7 years after his death. On 30 December 2014, 7 years 6 months after this boy’s death, the Express and Star ran the following headline: “Baby’s death leads to safeguarding and record-keeping improvements at Walsall Manor Hospital.” Better late than never but unless I had helped this father to complain this system fault would not have been addressed. It is in this case that I am most certain that the cover up was conscious and deliberate. I attended an open board meeting with this boy’s father when the Cordis-Bright report on his death was published. Neither the father nor I were allowed to ask a question or pass comment on the instruction of the Trust Chair. The Trust Chair in a later investigation claimed that this case had not come up before the board. This despite an FOI response which produced 3 documents that proved it had. The Trust has acknowledged that it took 7 years to tell the father his son’s death was due to avoidable error by one of its consultants. The Trust has never explained why this was the case.

I do not propose to go into any further details of these children’s care. You have my submissions. My original purpose was to give NHS Improvement an opportunity to investigate my concerns, address any injustices to the families involved and ensure that the poor investigatory processes at the trust and the inadequate complaints system which disregarded bereaved families were remedied.

NHS Improvement has had every opportunity to do this but 20 months later has failed to do so and in the process committed some of the cardinal errors which characterised the earlier failures by the Trust. NHS Improvement has been a party to the burying of these past failures. Had these deaths been investigated by NHS improvement as I had expected, it would now be in a position to answer the following important questions:

 

  1. Was the injury due to medical error?
  2. At what point did the Trust become aware that the injury was due to medical error?
  3. When (if ever) did Walsall Healthcare admit the cause was medical error?
  4. Why (in the 3 cases I was involved in, I do not know about the outcomes or timescales in the other 3) did it take so long (4-11 years) to settle with the families?
  5. Does this constitute a cover-up, witting or unwitting, in any of these cases?
  6. What was the impact on the parents and families of the 5 children of the way they were dealt with by Walsall Healthcare?
  7. What lessons has Walsall Healthcare learned from these tragedies and what evidence is there that they have implemented them?
  8. What were the administrative and legal costs of delaying, denying and defending cases, particularly those in which error was acknowledged by the clinicians at an early stage?

 

As it is NHS Improvement, despite a great deal of huffing and puffing involving the Trust, CQC and RCPCH, cannot answer any of them. After 20 months and at unknown cost.One of the issues in patient harm in the NHS which we have understood for a long time (though recently confirmed in “Will the NHS never learn?” (PACAC) and “Learning, candour and accountability: A review of the way trusts review and investigate the deaths of patients in England” (CQC)) is the substandard approach to investigation and complaints handling. You don’t have to be a conspiracy theorist to believe that there has been a passive acceptance of this situation by the regulators. A particular concern in recent reports is the widespread failure to engage with families of deceased patients. Again, I suggest, that is probably no accident.So, what started for me as a series of disclosures about patient harm and subsequent trust failings has now turned into an issue of why the regulators at NHS Improvement and CQC, given the well-known problems with trust investigations and complaints, have shown no interest in investigating my own disclosures? They both claim they have neither the power nor any duty to investigate individual cases even when as serious as those I reported, having been personally involved. Nor does either organisation in its correspondence with me show any interest in raising this at the Department of Health or with the Health Secretary himself or for example supporting the PACAC recommendation on this (see below).  

NHSI External Whistleblower Policy

The whistleblower policy describes TDA’s (it was TDA in June 2015) role as a regulator as follows:

NHS TDA’s role is to oversee NHS trusts and hold them to account across all aspects of their business, while providing them with support to improve services and ultimately achieve a sustainable organisational form.  

The policy also states that TDA takes whistleblowing seriously. I had a reasonable expectation therefore that TDA would use the detailed information I submitted to hold the Trust accountable if children were found to have died avoidable deaths, if liability had knowingly been denied, If families had suffered re-traumatisation during long and unnecessarily drawn out complaint processes. I had a reasonable expectation that NHSI would look at financial waste in defending the indefensible (As NAO is about to investigate) and would use the results of its investigation (whether its own or by proxy) to ensure that the important lessons were learned (locally and more widely) from these failures and that there would be some recognition of the suffering that had been caused to bereaved relatives.

 

NHSI actions under its whistleblower policy following my disclosures of 8 June 2015

There are 7 steps to be followed when applying the whistleblower policy. I am concerned here with only 2 of the steps.

Step 2: Clarify whether the disclosure is potentially untrue

Action at step 2: Most of the cases are already known/in the media. 2 are without much detail but we can assume are correct.

It is good to see in writing (obtained by FOI) that NHSI concluded at an early stage that my disclosures were at least credible. Given their serious nature it is difficult to understand why NHSI would not want their veracity or otherwise to be investigated. A clue to this may be the use of “already known”. This can provide a sense of already dealt with, already investigated. In fact at a later date NHSI admit that they had not ascertained whether any of my disclosures were true or not. This is a fundamental problem with patient harm in the NHS. Even after inadequate investigation once a death is labelled “historic” no-one is willing to give it any more thought.

Step 5: Determine from the Trust whether an independent investigation should be undertaken.

NHSI makes it crystal clear that it had an option to instigate an independent investigation. This contradicts later claims that NHSI has no power to require such an investigation. Tellingly it is left to the Trust to decide whether or not this is necessary. Most reasonable people would understand that in cases where the Trust is alleged to have covered up avoidable child deaths this decision should not be left to the Trust.

 

Dr Kathy McLean’s closure letter 17 May 2016

More than 11 months after I submitted my concerns Dr McLean emailed me: “I am now able to inform you of the outcome of our investigations. The investigations have been threefold.” I will only deal with the 2 most important “investigations” here, that is the CQC inspection and the RCPCH review. (The other, a Trust updated understanding of the 5 cases was sketchy, tellingly omitted important detail and was never challenged as far as I know.)

 

1. CQC inspection (September 2015)

Dr McLean wrote:

As part of their role in this case CQC agreed to include a focus on the paediatric service at the Trust as part of the full inspection that was planned for September 2015. The review team included paediatric expert clinicians and the report recognised the allegations that you raised. You were also interviewed as part of this process…

On 1 June Dr McLean emailed to clarify this:

It is important to understand the key response to your original concerns was through the comprehensive CQC inspection last September which included additional paediatric expertise as part of the team. As part of their approach CQC interviewed yourself and some of the families

In response I emailed Dr McClean on 8 June as follows:

I copied my disclosure email and attached documents to CQC when it was sent to TDA in June 2015. I did meet with 2 CQC officers before the (Trust) inspection in September 2015. They showed no real interest in the cases I had submitted. They repeatedly told me that CQC does not investigate individual cases. CQC did not interview “some of the families”. They did not interview anyone even remotely connected to the cases I referred. There was no mention of the cases in the CQC inspection report published in January 2016. I do not see therefore any response to my concerns in the CQC inspection or its report.

 

In fact when I met the CQC inspectors they showed no interest in the cases I referred to NHSI. They were “old” and said nothing about the present service. (As if the Hillsborough 96 deaths were now unimportant because policing and safety at our football grounds has improved.) They asked me if I had evidence of any more recent failures at the Trust. I subsequently emailed details of baby ******* *******-***** a new-born who had died some months earlier after failure to administer Surfactant in a timely fashion and failure to diagnose a tension pneumothorax. The Trust was subsequently criticised for these failures by HMC. The inspectors promised to investigate this matter under regulation 20, the statutory organisational duty of candour. Although I have corresponded with CQC, including Sir Mike Richards, about this I have no evidence that this matter was properly investigated or if so what the result was. It was not referred to in any recognisable form in the CQC Inspectors report. I suspect that if anything CQC satisfied themselves with a process audit – “The Trust gave an explanation. The Trust followed up with a letter. Etc.” It is doubtful that any attempt was made to check whether the parents had been given an honest account of why their baby died. I wrote to the CQC inspector to ask if the parents had been interviewed (this would be the best measure of candour) but was told this had not been thought necessary and was not part of the inspection procedure. If CQC cannot be bothered to involve parents in cases they are investigating can they expect any better of the providers they regulate.

I have no evidence that any of my concerns were investigated by CQC in any sense despite Dr McLean’s claims to the contrary. If this was indeed the “key response to (my) original concerns” it was a complete failure.

 

2. Trust Actions: Royal College of Paediatrics and Child Health Review.

About this investigation Dr McLean had the following to say:

We also asked the Trust for an up to date understanding of each of the cases you referenced in your original disclosure. Whilst many of the cases already had detailed investigations in their own right we decided to action an additional external paediatric review. It was important to identify if there were any themes that linked these cases. As you are aware this was undertaken by the Royal College of Paediatricians and Child Health (RCPCH). 

By 17 May I had still not seen the RCPCH Review report (completed and dated as February 2016) and did not even know its terms of reference. (An FOI request to the Trust turned up an NHSI email which made it clear that NHSI had set the terms of reference for the review. It clearly acknowledges the option for a deep dive or detailed investigation of the cases.) The report was published by Walsall Healthcare on 2 June 2016. (I had to write to the Trust CEO to remind him that publishing Royal College reports was a recommendation of the Kirkup report that had been accepted in Learning not Blaming.) Anything I wrote about the RCPCH review in response to Dr McLean’s letter of 17 May was coloured by the fact that NHSI had not let me see a single detail of RCPCH’s work.

When the RCPCH review was published online on 2 June I had my first sight of the terms of reference which included:

To provide external expert oversight review of seven paediatric cases five raisedthrough the Trust Development Authority whistleblowing process and two included by the Trust with particular reference to any relationship between each of the cases or any wider pattern.

That is a clear reference to me as the NHSI whistleblower and my disclosures (5 cases). It was clear from the report that they had not seen fit (though this was not precluded by the terms of reference) to speak to me nor had they seen any of the documents I had submitted to NHSI. The themes I had described in my disclosures of cover up of avoidable child deaths, traumatisation of families by the delay deny defend approach to complaints, failure to learn, waste of public money etc. were all accessible in my documents but probably not in the hospital notes the panel was provided with. I believe this indicates a restriction of the reviews scope which hindered it from understanding what these cases or my concerns about them were about.

In addition I received further information about the RCPCH review by FOI requests. That the panel had not been given any of my documents was confirmed. The Trust claimed this was because of an administrative oversight but NHSI said it had not been thought necessary. Both the Trust and NHSI confirmed that no parents had been interviewed by the panel. The Trust when asked if the panel had wanted to see the whistleblower disclosures replied that it had not. So much for whistleblower disclosures as gold-dust.

In addition every detail of the RCPCH reviews of the cases I reported was redacted from the report. Although I have let NHSI know this and have asked the Trust for these details under information access law I have been denied them. This level of secrecy is unacceptable particularly as NHSI had admitted from the beginning that the “cases are old and or have been reported on”. The only facts that were being hidden by the Trust not disclosing were what the RCPCH panel had made of the cases. The very thing I needed to understand to take a view on their work.

The work of the RCPCH panel was hamstrung by not meeting me, not seeing my documents, not meeting any of the parents. The panel apparently showed no interest in any of these information sources.

 

Was anything relevant to my disclosures learned from the CQC inspection?

The CQC report provides a wealth of background information as to the kind of Trust this is. Not was, is. On “Is the Trust safe? Effective? Well-led?” Walsall is graded as inadequate (red light). The overall grade is inadequate. The inspection led to special measures.

“The inspectors met patients and relatives and heard of their previous experiences with the Trust when things went wrong. They felt the Trust had not been open with them. The Trust recognised problems with the complaints process and said they were addressing this. The inspectors judged the main process for investigating incidents (Root Cause Analysis (RCA)) to be inconsistent and lacking in structure. NHSLA (Litigation Authority) reported rising clinical incident claims in the last 2 years.” These were in no small part due to the settlement (>£13 million) in one of the cases I reported.

Weaknesses at board level were pointed out in the report and these resulted in the poorly -led grading. The board had a poor grasp of clinical governance. “The Board lacked insight into risks and were defensive when these were pointed out. There had been major problems with the patient administration system. The board saw this not as a safety and quality issue but in terms of performance and finance i.e. targets. Visibility of the board was low.”

The report described all the elements of a poor organisational culture. The culture of the Trust was described by many staff as poor. “Morale was low across many wards and departments and we heard examples of senior managers and in some cases executive members taking a heavy handed approach to problem solving amounting to a culture of bullying.”

Maternity services had multiple issues with staffing, delivery of care and treatment and people were judged at high risk of avoidable harm.

I submit that this whole account is relevant to my disclosures. This is the kind of Trust where avoidable harm would be likely to occur and might be covered up; a Trust where lessons would not have been learned and where the oversight of the Trust Board would have been lacking.

This report should have rung the alarm bells at NHSI and should have made Dr McLean rethink the non-investigation of my cases. NHSI had included an option for this at a later date if warranted.

There is no evidence that CQC in its inspection took any note of the specific cases I reported. The inspectors report nevertheless adds credibility to the concerns I raised with NHSI in its depiction of a Trust which was failing at every level. Forgive me, there was plenty of reference to caring and enthusiastic frontline staff.

 

Was anything relevant to my disclosures learned from the RCPCH review?

Dr McClean wrote of the RCPCH Review in her letter of 17 May 2016:

As you are aware this was undertaken by the Royal College of Paediatricians and Child Health (RCPCH). Although the review found no areas for immediate concern we have encouraged the Trust to fully consider its findings at a public Board meeting.

Contrast this with the press headline on 3 June 2016 when the report was made public:

“How sick babies were put at risk by a shortage of specialist staff at Walsall’s Manor Hospital 3 June 2016.” The article is worth reading:

http://www.expressandstar.com/news/local-news/2016/06/03/revealed-how-sick-babies-were-put-at-risk-by-a-shortage-of-specialist-staff-at-walsalls-manor-hospital/

I do not think it is possible to read the RCPCH review and conclude that it found no areas for immediate concern.

Without my disclosures (to NHSI and CQC) this review would not have been commissioned and babies would probably have continued to be put at risk at the Trust. This situation was not a “mistake” as the CEO claimed but a deliberate process of cutting neonatal nursing staff and ignoring problems with medical staffing for some years. This all passed board scrutiny. To trivialise it as a “mistake” is to duck board responsibility. The result of the RCPCH review has been recruitment of more staff, including 4 consultants, in the interest of patient safety and care quality. The clinical staff are not at fault here. This is a problem with Board governance. As with the CQC report it is clear that quality and patient safety are not the priority for Trust leaders.

 

The RCPCH neonatal and paediatric service review report

The report opens with a plain statement on the Review’s origins:

Walsall Healthcare NHS Trust invited the RCPCH to provide an external review of a numberof historical paediatric cases, together with an opinion on the operation of the neonatal unit. This was to provide the Trust with an opportunity to address once and for all a number of issues and concerns that had continued to be raised by a ‘whistleblower’, as well as issues cited by CQC, and offer a definitive opinion and recommendations for a way forward.

Given the “once and for all” claim NHSI, CQC, the Trust and the RCPCH Review panel were obliged to ensure that this work was done properly. That I now find myself seeking an investigation by PHSO into failure to address my extensively evidenced concerns is testimony that it was not. And that requires an explanation. There appears to be an aversion to thorough investigation.

The report states of the neonatal/paediatric service:

Governance arrangements particularly around complaints, investigations and RCAs didnot appear to be sufficiently robust or thorough to reassure the Review team that lessons had been learned and changes implemented as a result.

Even as late as 2016 there is evidence that investigation is poor and that there is a lack of evidence that lessons are learned with change following. One of the 7 cases the panel was asked to review was commented on as follows:

2.2 To review the Inquest case in which the Trust was criticised and advise the Board on the quality of care provided by the neonatal services.

This case was said to be currently subject to litigation and therefore outside the panel’s remit. This is a pity as it is exactly the kind of case which my disclosures say should be examined. I am currently unable to confirm this but this may refer to the case I asked CQC to investigate under regulation 20 in September 2015. The progress to litigation as a result of the Coroner’s findings does not suggest that the Trust has fully observed its statutory responsibilities under regulation 20. Litigation is likely to be a marker of failure of genuine candour. And what has CQC made of this? There is no reference to failure of Duty of Candour in its inspectors report.

Of the cases I sent to NHSI in June 2015 the report has this to say:

3.5 During the site visit the Review team were informed of a history of concerns which had been raised by a former clinician of the service (via the Trust Development Authority whistleblowing process) regarding paediatric service provision. The Review team were provided with a list of the most recent complaints, comprising mainly historic cases, which were received by the Trust a few months prior to the site visit. The Trust reported that they have been informed by partners that they have acted appropriately and did everything required, however they require an independent view from the RCPCH to confirm this.

And:

5.1 Case note Review

5.1.1 The Review team were asked to provide external oversight of seven paediatric cases and note the relationship between the cases or any wider pattern. These cases were historical, dating from 2003 and are analysed in a confidential appendix and summarised as follows:

The summary and Appendix 6 have been redacted as there is patient identifiable information. One case was not reviewed (see section 2.3-2.4))

5.1.2 These six reviewed cases covered a diverse range of issues and historical periods.There was no one specific theme or individual emerging as a problem, so the team conducted a full review of the service against professional workforce and service standards.

The cases are classified as “historical, dating from 2003”. This is a biased expression of the significance of these cases. The 3 main cases I reported had all been settled in the year prior to my reporting them. The Trust had only recently been engaged with the detail of these cases. The panel apparently accepts an assurance (the Trust “have been informed by partners” Which partners? What assurance?) that “the Trust has handled these cases appropriately”. There is no evidence that the panel was given anything other than the case notes. They were not given my own documents although these were what occasioned the Review. (NHSI has claimed that there was no point in giving my evidence to the review panel and Walsall Healthcare in an FOI response has claimed they were not given my evidence because of an administrative error.) The panel did not seek to engage with me. The panel did not engage with any of the parents even though part of my complaint was about the ill effects of the Trust cover up on the families.

 

The RCPCH panel stated that the review of the cases I referred was “to provide the Trust with an opportunity to address once and for all a number of issues and concerns that had continued to be raised by a ‘whistleblower’” But this aim was subverted by the terms of reference, the fact that the panel never interviewed me or read my evidence (and according to Walsall’s FOI response expressed no interest in seeing them). They fell victim to confirmation bias: The cases are old, have been investigated, and were deemed by Trust partners to have been dealt with “appropriately. “Whistleblower” is in inverted commas. The inverted commas can only indicate a scepticism born of ignorance and that the term is used in a dismissive sense. A whistleblower by general assent is anyone who raises a concern. It is clear from NHSI documents that my disclosures were seen as valid. Small wonder the RCPCH panel showed so little curiosity. They failed to address the issues “once and for all”. This level of naivety in senior professionals acting for the RCPCH is surprising to say the least.

 

Meeting with Kathy McLean and Tom Grimes on 29 July 2016

I met Dr McLean (Executive Medical Director at NHSI) on 29 July 2016 with Tom Grimes (complaints and whistleblowing) as a formality and on legal advice prior to a planned Judicial Review. The meeting was unproductive apart from new information I received from Dr McLean who told me that “NHSI does not and in fact cannot investigate individual cases” such as the ones I had reported to NHSI (TDA) under its external whistleblowing policy”. She said that it is not in the power of NHSI to investigate such cases. I had been under the impression for more than a year that NHSI was able, itself or using proxy investigators, to investigate my claims in detail. I would not have gone to the trouble of making them unless I had thought this. I asked Dr McLean why NHSI/TGA had never (in the 14 months since I first engaged) met me or explained that it would be unable to investigate these cases. She had no answer.

Dr McLean gave a number of rationalisations as to why there was no point in investigating the cases I reported. I have listed some of these in my letter of 1 August 2016:

You said that these cases had all been investigated by the Trust. I responded that there is widespread concern that NHS investigations of serious incidents often lack competence and are biased toward the provider. This is currently a major flaw in the NHS complaints system. I cited the example of evidence given by Mr Scott Morrish to PHSO and PASC.

You said that the cases were all old and it would be too difficult to investigate. I responded that they were not all “old” and that 4 cases have figured in the media in the year before my disclosures were made. In any case PACAC are now recommending a Hillsborough style PI into unresolved historic cases. It took the Hillsborough families 26 years to get the truth against every obstacle put in their way. There is no shelf life on truth and justice.

You suggested that because I was a third party reporting these cases and not the actual families this carried less weight. My point was that it is the data on harm/wrongdoing that counts, not the individual reporting it. The point not the pointer. In any case my own special experience gives me an unparalleled insight into these cases. You understand very well that the families of children who have died are at a great disadvantage in the current system.

You also said that HSIB had all this in hand and that at some future unspecified time a fit for purpose model of serious incident investigation would be produced by Mr Conradi and his team. The emphasis is on a better future. I agree with this but as with the cases I have submitted there is still a lot needs to be done with past wrongs. You have effectively claimed that this is none of NHSI’s business.

Is this the right attitude for an organisation supposedly committed to open learning

The importance of these rationalisations is that they betray a mind-set which thinks there is actually no point in investigating these deaths and that it is really none of my business anyway. This is typical of the way whistleblowers reporting serious incidents are made to feel. As if there is something wrong with them. Why can’t you be like everyone else and stop making waves? That is genuinely how I have been made to feel.

At that meeting I was told that I needed to use the NHSI complaints procedure which Tom Grimes administers. I did this and received a closure email on 4 November 2016. This contained information that I was unaware of. As a result of this I responded:

Dear Tom

Thanks for this. I am now getting on with raising a complaint with PHSO through my MP. I would be grateful for one extra piece of information. In your closure letter of 4 November you wrote;

You may be aware that NHSI has decided to adopt a slightly new approach to whistleblowing matters (albeit our new policy has yet to be published), which is that in exceptional circumstances, we may exercise discretion to look into individual cases. However, that was not applicable at the time you raised your concerns with TDA, and our legal powers remain unaltered.

Will this involve a change in NHSI or TDA’s legal status? If so what will this change be and how will it be achieved?

Best wishes

 

Tom replied that there would be no change in legal status. Even NHSI is not allowed to disregard the rules of logic one of which states that 2 contrary statements cannot both be true.

 

  1. As currently legally constituted NHSI has no statutory powers to investigate individual cases.
  2. NHS will in future investigate a number of selected cases without change to its legal status.

It was clear from step 2 of using the whistleblower policy NHSI considered itself able to arrange an independent investigation.

In setting the terms of reference for the review (which it did though the Trust commissioned RCPCH) NHSI made it clear that it was capable of asking for a detailed case by case investigation which is the only thing a deep dive can mean. The evidence is conclusive. In claiming that NHSI has no duty to investigate individual cases reported by whistleblowers Tom Grimes, speaking for NHSI, is avoiding the regulators ethical duty to act when such serious matters are reported. Whistleblowers are used to being ignored by the Trust when they report patient harm, death, malpractice, fraud etc. but not by the regulator which should be setting an example.

And finally the NHSI Head of whistleblowing confirms that without taking on any extra legal powers it will in future be free to investigate individual cases. So why is it not able to do that presently?

QED.

 

Conclusion:

The cases of cover up of avoidable child death and injury I reported to NHSI through the TDA external whistleblower policy were serious and warranted full investigation.

NHSI accepted these as bona fide disclosures.

NHSI has claimed that it has no legal power to investigate or ensure investigation of such individual cases.

I have shown that NHSI has clearly recognised in its communications that it had the power to ensure that such an investigation was completed if it was so minded.

In particular since NHSI (TDA) wrote the terms of reference for the Trust RCPCH Review it had the power to ensure that such serious cases were properly investigated. NHSI has admitted as much in its communication with the Trust.

The cases were so serious that if NHSI had the power to ensure investigation it certainly had the duty. It is irresponsible to claim otherwise and sets a terrible example to provider organisations.

The RCPCH Review was conceived, at least in the view of the RCPCH panel, as a “once for all” opportunity to settle the truth about these cases. Nevertheless NHSI wrote terms of reference which would obstruct this purpose. In addition the evidence I provided to NHSI (TDA) was kept from the reviewers who also failed to engage with me personally. In direct contrast to recent high level reports the panel failed to engage with bereaved families. (In the same way CQC failed to engage with the parents of the child I referred to them under regulation 20. They are wilfully blind to the importance of this.) I have no doubt that as a result of the skewed information given it the panel would have been bound to experience a degree of unconscious bias. It is quite impossible therefore that they approached these cases with an open mind.

There was a clear moral obligation on NHSI to resolve these cases “once for all”. Instead its response was legalistic, bureaucratic and defensive. Patients and their families certainly were not put first as should be required of the regulator.

Even if (and I do not accept this) NHSI had no legal power to investigate, having recognised as a result that such serious historic cases were falling into a regulatory gap (David Behan’s phrase) or lacuna, that I apparently have identified (as NHSI describes it), it was unethical of NHSI to tell me that this was none of their business and that they had no responsibility to do anything about it.

 

The wider significance of my original disclosures to NHSI and my current complaint to PHSO.

NHSI have made it clear that they have worked with CQC on dealing with my disclosures.

In a Health Service Journal article of September 2014 David Behan, CEO of the Care Quality Commission admitted that a gap in the regulatory system is preventing the investigation of historic patient complaints.

https://www.hsj.co.uk/news/behan-warns-of-gap-in-the-system-following-babys-death-case/5074893.article

Jeremy Hunt referred to the “heartbreaking” case of a family that had fallen foul of this gap. David Behan used the word “cruel” to describe the family’s experience at the hands of NHS regulators.

In the same fashion NHSI has claimed that as an NHS regulator it has neither the power nor the duty to investigate individual cases. On 25 August the NHSI legal adviser wrote to me describing this as a “lacuna” that I (by reporting cases of the cover up of avoidable child deaths) had identified. I believe that I have shown that NHSI was at liberty to ensure a comprehensive, competent, professional investigation by RCPCH of the cases I reported if it had so desired. There is no real lacuna other than that created by NHSI. In the case of Lizzie Dixon which occasioned David Behan’s statement about a regulatory gap it was left to the Secretary of State to order an investigation. This is completely unsatisfactory.

The question is, if there is a regulatory gap (as CQC, NHSI, NHS England and Jeremy Hunt have all apparently acknowledged) why have none of them taken any steps to close it? Sadly, in my experience of NHSI, the organisation, and its Executive Medical Director there is no interest in the wrongs, the injustices or the lessons of the past. It seems to me that NHSI has gone to some lengths to demonstrate considerable activity whilst at the same time studiously avoiding the real issues as I have set them out.

In his response of 14 September 2016 Tom Grimes writes:

You identify a gap in the regulatory system in this regard, but that does not mean we had a duty to fill that gap.

Please read that line again. It is scarcely credible. NHS “Improvement” at work?

It seems strange to me as a clinician who practiced for almost 40 years that the regulator can take such a cavalier attitude to the avoidable deaths of children. Their attitude seems to be “Thank you for your reports. Sorry, we have neither the power nor the duty to investigate these cases. It is not our business. We are in the clear.” NHSI must recognise that if the cover up of avoidable child deaths is reported and no-one has the power to investigate this it must have at least a moral obligation to pursue this, not simply shrug it off as if it were of no importance.

 

A responsible attitude to “historic” or “heritage” cases of patient harm in the NHS.

Anyone who has spent time with families affected by the injustices meted out by this cruel system (David Behan’s own words in the HSJ article) will understand that at some point this issue must be addressed. I have seen repeatedly, at first hand the suffering this has caused, leaving bereaved relatives still in visible distress after more than a quarter of a century. I have seen no studies but there must be a significant level of complicated or pathological grief in these families as well as other forms of mental illness.

The recent report of the HSIB Expert Advisory Group has addressed the issue of historic cases in the context of a Just Culture for the NHS (page 31):

OUTSTANDING AND UNRESOLVED CASES IN NEED OF RESOLUTION

We have taken evidence regarding many distressing individual cases of patients, families and staff being treated poorly after adverse events, many of whom are still seeking to establish the truth of events and seek appropriate remedy. It will not be possible for the Branch to undertake review of these unresolved cases, because of its remit, and the nature of unresolved grievances. Those harmed include patients, bereaved families and whistleblowers. While we do not see this as a role for the Branch, it is our strong view that these cases need to be addressed as part of creating an open and just culture. Otherwise, this baggage of history will continue to taint future safety investigations.

 

  1. We recommend the Secretary of State establish a process to address unresolved cases, aimed at providing truth, justice and reconciliation, to address the concerns of patients, families and staff affected.

 

In June 2016 PASAC (PHSO review: Quality of NHS complaints investigations) supported the EAG recommendation:

  1. We also support the EAG’s proposal for the re-opening of historic “unresolved grievances”, but only where there is a clear argument that doing so would assist in improving patient safety in the future, or where serious outstanding legitimate grievances persist. This process might take the form of a single public inquiry, to consider which legacy cases to review, to hear the selected cases, and make recommendations arising from them. This should be seen in the context of other wide-reaching inquiries in recent years, such as the public inquiry into historic child sexual abuse, the Hillsborough Independent Panel’s inquiry into the Hillsborough disaster, and the Saville inquiry into the events of Bloody Sunday. The purpose of this single public inquiry would be to provide closure to those affected by patient safety incidents, which cannot otherwise be obtained. (Paragraph 81)

The very fact that PASAC should link this recommendation to inquiries into such serious past wrongdoing speaks volumes.

 

My complaint against NHSI is currently with PHSO sponsored by my MP, Mr Andrew Mitchell. In this summary of my complaint about NHSI failures I have tried to show the essential points without going into full detail. I have tried to be factual, honest and reasonable. There are bound to be some errors in such a complex account and I will correct them if NHSI points them out to me.

I have tried to resist intemperate language although; having struggled with this for 20 months I am tired, frustrated and have occasionally felt angry at the excessive bureaucracy I have found at NHSI. I have presented your organisation with an ideal opportunity to address past wrongs (truth, justice and reconciliation as HSIB EAG describe it) and learn important lessons for the future. You have failed to grasp this opportunity.  

Yours sincerely

David Drew

2 February 2017

 

 

 

 

 

 

Why I have resigned my BMA membership.

Now that I will never work as a doctor again the only benefit I get from my rather expensive BMA subscription is a free weekly copy of the British Medical Journal. That is not why I am resigning my membership. I do that as a statement of my disappointment at the BMA’s failure to support members who get into trouble for raising concerns about patient care. In particular this is true of its outrageous pursuit of Ed Jesudason for £250,000 legal costs after he refused an out of court settlement that would have required him to behave unethically. Ed received a standing ovation at this years annual representative meeting. This suggests that BMA leaders may not be properly attuned to their membership.

Here is my email sent today 13 November to Loyalty@bma.org.uk confirming my resignation and giving my reasons:

Dear Sally

You recently wrote to ask me why I had resigned my BMA membership. You asked the following of me:

“Would you be kind enough to provide your reasons for leaving? Your feedback will be used to ensure that we are meeting the needs of our members.”

My letter to Mark Porter below should go some way to explaining my resignation. Dr Porter’s failure to respond (which in my experience is habitual) is also significant.

I do not wish to go into the detail behind my resignation but it largely results from the abject failure of the BMA (despite its public posturing) to give whistle-blowing doctors the support they need. Here is an extract from my recently published book Little Stories of Life and Death @NHSWhistleblowr:

“In December, while we were waiting for the application to amend to be heard, I noticed that the Health Select Committee was about to hear evidence from the British Medical Association, the Royal College of Nursing, the Care Quality Commission and the Department of Health on professional responsibility. It included questions on gagging clauses. I sent the House of Commons Health Select Committee details of my own case, including attempts to gag
me by the Trust and the BMA. Mark Porter, Chair of the Consultants’ Committee, gave evidence for the BMA. My own experience of BMA legal support left me unimpressed with his statements. “I wrote an email to Mark immediately after the hearing, pointing out the contradictions between statements he had made to the committee and my own experience. He appeared to know what the BMA’s position was on everything to do with whistleblowing and settlement but little about what happened in practice. I asked why my case had been entrusted to a relatively inexperienced solicitor. The full merit assessment of my case by my private lawyers included 36 hours of reading and a four-hour face-to-face meeting with a three-strong legal team, including the barrister. Yet the BMA lawyer had refused a face-to-face meeting and had not even bothered to read the documents on my disclosures. Why did Avril England not register my case as a whistle-blower? If and when she went off the record my new team could have picked this up without all the work and expense involved in re-labelling. In my case the BMA had made no attempt to support a whistle-blower. These were questions which as a paid-up BMA member I deserved answers to.

“It took two months for Dr Porter to reply and then it was only after two reminders. He was polite and apologetic. My letter (I had sent an email) had been “mislaid”. There is an art to formulating this kind of response. The trick is to say something without really saying anything. In any case I did not get any answers to my questions.

“The Health Committee referred to an exposé in The Times by Alexei Mostrous. Three London Trusts had gagged doctors, even specifying that they could not speak to professional regulators. These gags were referred to by Stephen Dorrell, the committee chair, as unlawful and unenforceable. As a result I rang Alexei to tell him that I had the next chapter in his account of NHS gags. He sounded doubtful but after I sent him all the correspondence relating to the BMA-mediated gag he wrote an article: “No help for doctor who refused to be gagged”. No help from the BMA, that was.”

Little Stories, page 296-7.

Chapter 40: The BMA Solicitor is also instructive.

Little Stories of Life and Death @NHSWhistleblowr is available as softback and eBook from Amazon, Troubador or bookshops.

I attach an article published in The Consultant Journal Autumn 2014 outlining the progress of Little Stories in its early months.

Best wishes

David Drew

From: David & Janet Drew
Sent: Sunday, May 11, 2014 7:59 PM
To: XXXXXXX@bma.org.uk
Subject: Paediatric Whistleblower

Attention of Dr Mark Porter  BMA President.

Hi Mark

You may not remember but we had a very unsatisfactory email correspondence in 2012. I have now finished with the Tribunals and I am currently, with a group of other dismissed whistleblowers, fighting for a Public Inquiry. You may have seen the extensive coverage of this by the Times last week and the article on Raj Mattu in the Sunday Times. I believe you have some knowledge of both our cases which have been linked in the Birmingham Mail and Post this week.

I am now able to tell the whole story. My book “Little Stories of Life and Death @NHSWhistleblowr” was published 2 weeks ago and launched at the Speaking out Summit at the RSM on Thursday. It is available here (Amazon has sold out and is taking 2 weeks to deliver so do not go there. In the bookshops in next few weeks.)

http://t.co/ao0GndjTGZ

You and the BMA play an important and unsatisfactory part in the narrative. I exclude my BMA IRO who was a bit of a saint. My intention is not to damn you but to help the BMA learn from its past failures.

If we are successful in securing a judicial inquiry the BMA’s failure with respect to a number of high profile whistle-blowers will come under scrutiny. More learning.

I wish you well
David Drew

When Trust boards fail patients suffer and whistleblowers pay a heavy price.

 

 

 

I first heard “Nodding NEDs” used at the Midstaffs Public Inquiry mainly in the conversation of relatives attending the hearings. I immediately and intuitively understood what it meant. In its “Roles and Responsibilities of Non-executive Directors” the Trust Development Authority envisions an entirely different image. The NEDs role is to:

“Commit to working to, and encouraging within the trust, the highest standards of probity, integrity and governance and contribute to ensuring that the trust’s internal governance arrangements conform with best practice and statutory requirements”

 

There has been extensive comment on and criticism of NHS Trust Boards over the last year; of how they do and do not work. I was dismissed as a senior paediatric consultant in 2010 for Gross Misconduct and Insubordination. As far as the BMA has been able to tell me I am the only doctor ever to have been sacked for insubordination. Insubordination is a punishable offense in hierarchical organisations which depend upon people lower in the chain of command doing what they are told. It is hard to see how that could apply to a hospital’s most senior paediatrician. It is now a truism that hierarchies are bad for patient safety. They have no place in the NHS. All voices must be heard.

 

Over Christmas I took a couple of hours to read Sir Ian Kennedy’s Breast Care Review report published in December. In his executive summary Sir Ian gives an outline of the story:

 

It is a story of women faced with a life threatening disease who have been harmed. It is a story of clinicians at their wits’ ends trying for years to get the Trust to addresswhat was going on. It is a story of clinicians going along with what they knew to be poor performance. It is a story of weak and indecisive leadership from senior managers. It is a story of secrecy and containment. It is a story of a Board which did not carry out its responsibilities.”

 

Since my own experience had been of repeatedly reporting problems of competence and conduct to Trust senior management the whole report had a certain resonance. As a result, in the New Year I found myself writing to Mr. Nigel Summer, Vice Chairman of Walsall Healthcare NHS Trust. Nigel had been in post over the period 2008 to 2010 when I was raising my concerns at the hospital. He also had the advantage of being on the disciplinary panel that dismissed me for….insubordination.

 

I have used personal names and they have not been redacted here. To do otherwise is confusing. In any case as a result of legal proceedings, the extensive media coverage my case has received and my previous blogs there is widespread knowledge of those involved. I have of course taken care to make statements that can be evidenced by documents and or witnesses.

 

 

                                                                                     ___________________

 

 

Dear Nigel

 NHS Trust Boards: Sir Ian Kennedy offers useful advice.

 I hope you have had time to read the Kennedy Breast Care Review which was published in December. There is much that Walsall Healthcare NHS Trust Board can learn from it. Here are a few bullet points:

 

  • Trust culture is largely set, in practice, by its leadership.

 

  • The Board has a responsibility to promote openness and candour in the organisation.

 

  • The Board must create an environment in which members of staff feel able and free to raise matters of concern regarding the care and treatment of patients.

 

  • It is difficult to challenge the behaviour and poor performance of colleagues. (Failing to challenge Mr Patterson has proved costly for patients and HEFT.)

 

 Kennedy found the Heart of England Foundation Trust (HEFT) Board was kept in the dark by the executive during the Patterson years. This was the situation I found at Walsall particularly in my last years in the Trust. Sue James, the Chief Executive, was rarely seen on the paediatric wards in those days and most clinicians did not know who the Board members were. In 2010 a Royal College Review concluded that the Board had no way of knowing what was happening in a key department, Paediatrics. The report was suppressed so few people know that.

 Sue James, with the support of the Trust Chair, Ben Reid OBE, set the culture. Here is the account she gave of me to the Employment Tribunal as reported in the Daily Telegraph in May 2012.

 “During an eight day employment tribunal Sue James Chief Executive of Derby Hospitals said that Dr. Drew produced a toxic environment at the hospital by constantly raising complaints against his co-workers.”

 Sue James’s statements are a good demonstration of just how dangerous raising concerns about colleagues can be. In fact I raised valid concerns about 5 individuals all of which were subsequently shown to be significant and of substance.

 

  • I raised concerns about a consultant paediatrician I was managing, Dr Walia. He replaced an excellent consultant who had been killed in a road traffic accident at a time when there was a dearth of good paediatricians on the market. He had had problems with his practice in his previous consultant post, had needed an assessment by NCAS and then left his employing trust. I have it on record from the current Walsall Chief Executive that the Trust relied on his references and failed to obtain details of this assessment. Why? There were general concerns about his competence from both consultant and nurse colleagues in his early days at the Trust. In June 2006 he sent a toddler (Child K) home with suspicious unexplained bruising against medical and nursing colleague’s advice, contrary to policy and as a result of fundamentally flawed reasoning. Child K died of non-accidental injury a week later. I have seen all the Board minutes referring to Child K. The consultant and his failings are not mentioned. In 2009 Sue James wrote a press statement about Child K’s death which was untrue. In April 2008 Dr. Walia was removed from the role he was appointed to, lead clinician on the neonatal unit, by the Medical Director, after widespread concerns about his underperformance. In 2009 groups of trainees on 3 separate occasions complained to the West Midlands Deanery that he was a bully and unsupportive, failing to come in out of hours etc. I was right to raise these concerns about him. I did it for the benefit of the department, our trainees and our patients, things which you as a Board were largely blind to.

 

  • In 2008 three managers were put in charge of the department after I was removed as head of department by the Medical Director for expressing my concerns about the above consultant. These three were subsequently judged by a panel recommended by the Royal College of Paediatrics to have had no knowledge or experience in Paediatrics, to be managerially aggressive and as failing to engage with frontline clinical staff. Their appointment by the executive was criticized as inappropriate by the same panel. The conclusions the panel came to about these managers were the substance of the concerns I had been raising with Sue James for more than a year. The Trust was instructed to remove two of these three by the same panel. The other one who was frankly foul-mouthed and a bully who had been reported to the Chief Executive on earlier occasions by consultants and senior nursing staff left the trust at a later date. Again I am not sure that you as a Board knew much about this.

 

  • I registered a grievance against the Medical Director for wrongfully excluding me from my work as a consultant. This was fully upheld by the RoyalCollege panel and he was instructed to apologise to me verbally and in writing. On Sue James’s instruction he never did.

 

Sue James, using pure spin, convinced the Board that I was the one creating a toxic environment with my concerns. I have seen the Board minutes in which she states specifically that I was the principle risk to the paediatric department’s future. No member of the Paediatric Department at that time held that view. I must stress that Sue James would not have succeeded with this without the full support of Ben Reid. Whether Sue James misled you with her account of my misconduct will at some point be resolved. It will be for others to decide if she perjured herself at the Employment Tribunal.

 In October 2009 after I disclosed in a letter to Sue James a host of serious failings in the Paediatric department Ben Reid agreed to commission an Independent Review of Paediatrics. This was in line with Kennedy’s recommendation:

 “The Trust should ordinarily appoint external experts or the relevant Royal College to carry out investigations into the safety and quality of care.” (14.24)

 However, Kennedy goes on:

 “The Board should receive copies of the Reports produced at the end of investigations. These are necessary requirements to enable it to discharge its responsibility.” (14.25) and

 “The Board must be alert to ensure that Reports which are produced from reviews and investigations are shared widely. The risk must be avoided that only a few Executives have the relevant knowledge and understanding of the whole picture, making it difficult for other staff and the Board to act effectively.” (14.26)

 The report of the Independent Review of Paediatrics which was commissioned at my request as a result of the serious concerns about patient care that I had raised from 2008 to 2009 was produced in March 2010. It largely upheld my concerns about the department and its mismanagement by the executive and the middle managers it had inappropriately appointed to run the service. It was highly critical of the Trust Board and it’s Executive. The report was vigorously suppressed by Sue James. No-one was allowed to see the unabridged report. Even the Board did not see it. Sue James told the Employment Tribunal this was because “they did not ask”. The Royal College of Paediatrics through whom the Review was commissioned has not been allowed to see it as the panel claims to be silenced by confidentiality agreements. Sue James put together a sanitized version of the report which omitted embarrassing detail and falsified the Review’s instruction for the report’s dissemination. This version was circulated to a small select group in the Trust. Even the most senior doctors who were heads of their departments were not allowed to see it. The Senior Medical Staff Committee asked and expected to see it but Sue James put this off until September 2010 by which time she was able to tell the consultants that she was unable to discuss the Review as it was a part of a consultants disciplinary proceedings. Mine. This is not an open culture. This is secrecy and fear. It is the culture deprecated by every major report produced in the last year on failing NHS hospitals.

 The Board had responsibility for ensuring the dissemination of the Review’s findings. Mistakes had been made at every level. There was much to be learned. The Board prevented this. HEFT is Walsall’s neighbouring trust. In 2010 the HEFT CEO, Mark Newbold, who commissioned the Kennedy Breast Care Review took a Royal College Review of its Children’s Services which was every bit as embarrassing as Walsall’s and put it on the Internet. That is what is meant by transparency. The BBC put in a Freedom of Information request for a copy of the Walsall Review and Walsall, in complete contrast, refused to disclose it even in redacted form. Interestingly Mark Newbold pipped Sue James to the post for the HEFT CEO job. That was, in my own opinion, a near miss for HEFT. Had Sue James been appointed it is hard to imagine, given her record, that she would ever have published its Review of Children’s Services. And we might still be waiting for the Kennedy Review. Good leadership is key.

 The Walsall Review was of legitimate public interest. It was of particular interest to Walsall families who depend on the service. The Review was funded by the tax-payer. It was used, despite upholding my concerns, by Sue James and Martin Brewer, the Trust solicitor, to engineer my dismissal. Incidentally, Kennedy himself and the Health Select Committee are adamant that doctors raising concerns should not be dealt with using disciplinary proceedings or employment law. You Nigel have helped to preside over this. Hundreds of thousands of pounds has been taken out of the Walsall healthcare economy. Walsall children have been robbed of a good and much loved doctor who had not put a foot wrong in almost 20 years. I have lost my career, my professional reputation and a small fortune in legal fees and lost earnings. And all this in my opinion because as a Board you were not up to scratch, unwilling to find out for yourself what was happening in the Paediatric Department and incapable of challenging the Chief Executive on matters of fact.

As a postscript can I say that in June 2010 Sue James offered me (the BMA was present and a digital recording made) a large sum of money with a good reference to leave immediately having signed a compromise agreement. That, conveniently for Sue James, would have put an end to the story at more public expense. Sue James claimed that it was the view of the Board that I leave under these circumstances. She is on record as saying that no Board member dissented from that view. I did of course reject this offer. It was completely unethical and involved Sue James in making a number of completely untrue statements. After the meeting I rang Stuart Gray who was at that time a non-executive director. “We knew nothing about it David. We’ve been kept in the dark,” he told me. On my refusal to take the money I said, “My conscience will not allow it Stuart. This is a matter of Christian principle”. “Nothing was ever achieved by principle David,” was his response.

My own experience of the Board at that time was that it did not put patients first, abhorred transparency, did not provide a safe environment for professional disclosures about poor care and was prepared to destroy the career of a good paediatrician who was determined to speak up for patients. As Vice-Chairman of the Trust and a panel member at my disciplinary hearing I hope you will reflect on my claims.

 Best wishes for 2014

 David Drew.

 (I offered Nigel an opportunity to respond on my blog. I have had no reply.)

 

 

 

 

 

 

 

 

 

The Royal College of Paediatrics: A question mark over its leadership, culture and probity?

 

 From April First next year the NHS has a new Chief Executive, Mr. Simon Stevens. This week he gave some clues as to what we can expect from his leadership. He called for a new era of openness and transparency in healthcare. “We are going to draw back the veil between what those of us working inside health know about it and what the people on the receiving end of our ministrations get to see – particularly care quality,” he told a world summit. That is a heavy curtain. He sets himself and us an ambitious task.

 

A swathe of recent reports from Francis, Keogh, Berwick, the Health Committee and Jeremy Hunt in their responses to Francis and Ann Clwyd subscribe to a view that the care of patients sometimes or often is not being given priority. Patients, patient and relative complainants, frontline professionals and whistleblowers find themselves in an unequal power relationship with those running the service. Whoever that is.

 

This week I tweeted a message to the effect that the Chief Executive of the Royal College of Paediatrics, Dr. Chris Hanvey, had misled me with respect to a review of the paediatric department at Walsall Manor Hospital conducted by College Fellows in 2010. The same day I received an email giving me 48 hours to retract. The College lawyers were being consulted, he threatened. Since my tweet was true I refused. I have a timeline and a mailbag full of opinions about this incident, largely reflecting my own view that this was a high-handed attempt to put the frighteners on me. Shameful was the commonest adjective in use.

 

Since July 2011 I have been seeking help from the Royal College after my dismissal for whistleblowing on poor care, child protection failures and other things. I have expressed particular concern over the failure of the review panel the Royal College sent to Walsall in 2010 to investigate these matters properly.

 

I have given Chris Hanvey and Hilary Cass, the College President, information about the cover-up of the hospital’s liability for sending a toddler home to his death and the subsequent failure of the hospital to address and remedy its “catastrophic mistakes”. See my recent blog http://t.co/Q46wHmJH6U  which gives some insight into this.

 

I have provided evidence that the report of this review was suppressed by the Chief Executive and Trust Chairman. Even the Trust board, the hospital’s senior consultant committee and the Royal College of Paediatrics itself has not been allowed to see it. It is no coincidence that the report was highly critical of the Trust senior managers who commissioned it.

 

I have given evidence that the chairman of the review panel was appointed to a position in the hospital which helped him advance his own management career. He then helped with the suppression of this report which involved the Chief Executive altering the report’s instruction for disseminating its findings.

 

I have given evidence to Chris Hanvey that the College policy for conducting a review was breached severally by the panel. Also I informed Dr Hanvey that the report of the review, which was commissioned at my request following the serious and legitimate concerns I reported, was used by the Trust lawyer to convert my case into an employment dispute which resulted in my dismissal.

 

Dr Hanvey has informed me that the College has been unable to obtain a copy of the report and that the panel members will not co-operate with his investigation as they have “signed confidentiality agreements with Walsall Healthcare.” Dr Hanvey, while willing to bring in the College lawyers after taking personal umbrage over one of my tweets, has failed miserably to take seriously matters of the greatest concern to Walsall residents and the NHS in general. In my opinion he has shown more concern for his own reputation and that of the College than the issues I have reported to him. This is one of the major principles at stake in the battle for the new NHS culture that Simon Stevens aspires to.

 

On 11 December I met with David Prior, CQC Chair, and two of his senior officers. I discussed my own experiences as a whistleblower at Walsall Healthcare NHS Trust up to my dismissal in December 2010. We discussed the ways in which CQC could play its role in supporting and protecting staff who raise issues about patient care. I was impressed at the way the group had taken trouble to brief itself on the background I had provided. CQC, in the form of these individuals, clearly understands what the issues are with whistleblowing and is intent on action. Even if it is not yet sure what that action should be.

 

At this meeting I handed a document to David Prior on the serial failures of Dr Hanvey, Dr Cass, the Royal College of Paediatrics and its Walsall Independent Review Panel. Here it is in full. I leave the reader to judge if Dr Hanvey had any right to threaten me with the College lawyers. I will of course be interested to see what the same lawyers make of the revelations in this document.

 

 …………………………………………………………….

 

My evidence that the Royal College of Paediatrics and Child Health has failed to act on reported patient harm and support the whistleblower reporting this.

 

 

I make this statement in good faith, believing it to be factually correct and of considerable public interest given recent scandals in the NHS.

 

In April 2007 after more than 7 years as Clinical Director of the Paediatric Department at Walsall Manor Hospital I was removed from this position by the Medical Director after I repeatedly expressed concerns about a consultant I was managing, Dr W. Dr W was at the same time removed from his lead position in the Neonatal Department because of general concerns about his competence in that role.

 

At that time the Trust began a major cost cutting exercise for PFI affordability and FT application. Three managers where put in charge who were later formally judged (by a Royal College Review Panel) to be without knowledge or experience of paediatrics, aggressive and failing to engage with senior clinical staff. This resulted in a host of problems and I raised concerns about these through line management up to the Chief Executive.

 

In April 2009 I was suspended as a direct result of these disclosures. The most serious allegation related to a patient, known from his Serious Case Review by Walsall Safeguarding Children Board as Child K. This toddler had been admitted under Dr W. He had suspicious unexplained bruising but was sent home by Dr W against the advice of colleagues and contrary to policy. He was unlawfully killed a week later. The Trust had failed to respond properly to this death and my most serious disclosure to the Chief Executive related to this. The allegations resulting in my suspension included a claim that I had dishonestly obtained correspondence about Child K, that in making my disclosure I had undermined a senior nurse manager and that according to the Medical Director I was suspected of leaking information to the press on Child K. This was categorically untrue and my concerns were accurate and expressed in good faith.

 

Following my suspension, having been told I had no case to answer by the investigation, I continued to raise concerns. Knowing that this could result in a further suspension I raised a grievance about my earlier suspension. I met the Trust Chairman with the BMA and he agreed to commission an independent review to examine my grievance and the concerns I had expressed about the paediatric department. The Royal College of Paediatrics recommended two Royal College Fellows, Dr. Nadeem Moghal and Dr. Peter Heinz, to conduct the review. They co-opted a third person to cover the HR aspects.

 

In my principle disclosure letter of 26 October 2009 to the Chief Executive I framed the problem in whistleblowing terms stating that my obligations to the Trust under the whistleblowing policy were almost discharged. In my correspondence with the Review panel chairman, Dr Moghal, I made it clear that I was a whistleblower. The panel sat on 4 and 5 March 2010. I provided a statement of case which had been in the Trust’s possession for 4 months and a corpus of supporting documentation. The Trust submitted a 16 page statement of case which I was not allowed to see. Its content was largely dedicated to a “disruptive physician narrative” which is a recognised method of dealing with whistleblowing doctors. There were 2 large folders of supporting documents. I obtained copies of these a year later using the Data Protection Act.

 

Specifically with reference to Child K:

 

  • I provided documentation to the Review including admissions by the trust that this child had died following “catastrophic mistakes” and that if even “basic safeguarding procedures had been followed he would still be alive”. I even put the local press cuttings in my bundle.

 

  • In my interview I gave a quite detailed account of my concerns and my (at that time partly unproven) suspicions about a cover up. The panel took notes on this.

 

  • The most senior safeguarding officer from the PCT was interviewed by the panel. There can have been no reason for her being interviewed other than to provide evidence on Child K.

 

  • I asked the panel to interview a number of witnesses. One of these was a safeguarding nurse who had been forced to resign as a direct result of managerial bullying. This was all done with the full knowledge of the Chief Executive. This kind of behaviour was damaging the department’s safeguarding development especially in the context of Child K’s death. The panel failed to interview her and did not even bother to tell me.

 

  • The consultant who sent Child K home was interviewed.

 

  • The Chief Executive and Medical Director (who had made a misleading press statement about Child K) were both interviewed.

 

There was no lack of evidence provided to the panel. I learned later that the panel destroyed all records of oral evidence when it produced its report. I was of course anxious to obtain these for my employment tribunal.

 

In November 2013 after intense lobbying by Child K’s father after I had made him aware of what happened to his son (he had not been told anything) the current Walsall Healthcare Chief Executive agreed to an independent review of Child K’s case. On the basis of the evidence I gave to the Review this is exactly what the report should have recommended.

 

The panel produced a report by the end of March and the Trust Chairman and I were given a copy. The report was pithy and provided no evidence for its conclusions or “required outcomes”. I was required by the Chief Executive to accept it in full without clarification. I refused and was asked to resign.

 

The report failed to even mention Child K, my concerns about the Trust’s failures with respect to him or the consultant responsible. The report concluded without giving any evidence that I was not a whistleblower. I have never been given an opportunity to get clarification on these or other anomalies in the report.

 

 The Review chairman, Dr Nadeem Moghal, following an irregular appointment by the Trust Chair and CEO, became, weeks after the review, head of the paediatric department at Walsall. He repeatedly refused to discuss Child K and why he had been erased from the review. “You haven’t got a Baby P. There’s no conspiracy. There’s nothing you can do about this.”

 

Eventually the Trust started disciplinary proceedings against me for failing to accept the Review in full. I asked Dr Moghal to give evidence at my disciplinary hearing. The Chair of the hearing, Sue Hartley, Director of Nursing, wrote to him informing him that he did not have to appear if he did not want to. Dr Moghal did not appear.

 

After I was dismissed I took Walsall Healthcare to an Employment Tribunal. Dr Moghal did not appear. My counsel had no opportunity to cross examine on anything that went on in the Review or what went into its report. When asked about Review panel decisions the Chief Executive told him “ask them”. Of course this was impossible. I lost my case against Walsall Healthcare.

 

In 2011 I wrote to the Registrar at the Royal College of Paediatrics, Professor Hamish Wallace. I explained that I had been dismissed after raising concerns about patient care, child protection etc in Walsall. I had tried to understand how the Review had worked and had written several times asking Dr Moghal for a copy of the methodology he had used for the Review. He refused to provide this. I asked Professor Wallace for a copy of the College policy on conducting a Review. He failed to provide me with a copy. Two years later when I finally obtained a copy it was obvious that Dr Moghal had departed from the College policy in a number of important ways.

 

In August 2013 I wrote to Chris Hanvey, CEO of the Royal College of Paediatrics, to register a formal complaint about the conduct and outcomes of the Walsall 2010 Review. He agreed to investigate but on 27 August wrote to inform me that he had been unable to secure the co-operation of the panel members, Dr Moghal and Dr Heinz. “The two reviewers confirmed this in telephone interviews, making it clear they were bound by confidentiality agreements entered into with Walsall Healthcare NHS Trust and which restricted what they could discuss – both in 2010 and now.”

 

“Confidentiality agreements entered into with Walsall Hospitals NHS Trust” was new. This was the first time I had heard anything about the panel members being gagged. I sent an FOI to Walsall Healthcare. A month later the response assured me that the panel had not signed confidentiality agreements. But the gravitas of a Royal College CEO made me doubt Walsall not him. I wrote to the Walsall CEO, Richard Kirby. After valiant attempts he wrote back to report that there was no evidence that the review panel had signed any confidentiality agreements with Walsall. I went back to the College CEO to report this denial.

 

On 12 November he emailed me asking me to point Richard Kirby to the agreement signed in September 2010, 6 months after the review finished. Finally Richard Kirby spoke to Chris Hanvey, CEO at the College. Richard Kirby provided me today, 10 December, with a copy of an indemnity agreement signed in January 2010. This was his comment on it:

 

“I have discussed this with our lawyers and with Sue James and as far as I am able to establish:

 

–          The agreement was drawn up by the Royal College at their request rather than at the request of the Trust.

 

–          The main purpose of the agreement was to ensure that liability for any decisions taken by the Trust in light of the review sits with the Trust rather than with the Royal College.

 

–          The agreement says that the report will be confidential but adds that the reviewers should share it with DH / GMC if they have concerns that need to be shared with those bodies and that the report can be shared in proceedings arising from its presentation. I do not think that this constitutes a “gagging clause” in that it sets out the circumstances in which the content of the report should be shared. “

 

The agreement which the Royal College of Paediatrics required to protect its own interests was the same agreement that in August its CEO had cited as the reason it was unable to investigate my complaint against the Walsall Review. There was no other. Astonishingly when I referred to this on Twitter the same CEO emailed me to say he was consulting College lawyers about this.

 

The Royal College of Paediatrics has failed to investigate my serious complaints about this Review. These include my claims that:

 

  • The review’s chairman used the review to forward his own career.

 

  • He helped the Chief Executive Sue James to suppress the report so that even the board and senior clinicians in the hospital were not allowed to see it.

 

  • The case of Child K was airbrushed out. No reference was made to my disclosures about this. I raised concerns about this with the College President, Hilary Cass, in writing as early as June but she has not responded,

 

  • The panel was wrong to conclude that I was not a whistleblower. No evidence was given to support this conclusion. I had framed my case as whistleblowing throughout. I presented evidence of what were clearly protected disclosures. This facilitated my dismissal and prevented me getting any legal hearing as a whistleblower. Independent legal assessment of my disclosures has confirmed their strength.

 

The College’s failure to investigate resulted from the panel’s claim to be gagged. The legitimacy of these gags has been accepted unquestioningly by the College CEO. If they are gagged it is the College that has gagged them. Walsall does not recognise any gag. The recent government response to Francis on gags is explicit. There can be no gagging anyone with respect to matters of public interest. Child K is a matter of public interest. The suppression by a senior NHS manager of a report which criticised her is of public interest. The dismissal of a whistleblower is of public interest. It would be nonsense to believe that the review panel cannot speak in full to the RoyalCollege about its work. The panel has not even given the Royal College a copy of its report for scrutiny. The College and the Review panel are working without any oversight, scrutiny or regulation in the vital matter of Independent paediatric departmental reviews. And in my opinion the College allowed the Walsall Review panel to get away with a botched job with impunity.

 

The Walsall Review was conducted at my request with BMA support after I suffered the detriment of completely unwarranted suspension (Review conclusion) for raising concerns about mismanagement at Walsall Healthcare. The Review was conducted in the Public interest. What could be of greater interest to Walsall residents than the medical care of their children? The Review was conducted at significant cost to the taxpayer. The costs to both Walsall Healthcare and me as a result of the subsequent legal actions run into hundreds of thousands of pounds.

 

The full report of this Review has not been seen by the Trust board, the senior consultant body, or even the Royal College of Paediatrics through which it was commissioned. Of those criticised in the report, including the board and executive and middle managers, no-one, apart from me, its instigator, has suffered any detriment. The report was deeply flawed but has never been subject to any scrutiny as a direct result it being shrouded in secrecy by Walsall senior managers, the Review panel members and the Royal College of Paediatrics Chief Executive. Openness, Transparency and candour are the new NHS cultural watchwords in the wake of the Francis report and the government response to it. I have seen no evidence of that here.

 

David Drew

 

10 December 2013.

 

 

 

 

 

 

A Chief Executive Plays Politics with Child Protection.

Kyle Keen was a Walsall toddler unlawfully killed by his mother’s boyfriend following catastrophic failures in basic safeguarding at Walsall Manor Hospital in 2006. His death was an avoidable human tragedy. The least we can do is try to understand why this happened and learn the lessons it teaches us.

This week a Daily Mail article by Lucy Osborne headed “Hospital says sorry for baby’s death after 7 year cover up”, revealed that the Manor Hospital’s Chief Executive, Richard Kirby, is to commission an independent review to analyse how the incident was handled.

As I was head of the paediatric department when Kyle died I do of course have a good idea of how it was handled. The answer is badly. But this will be for the review panel to judge. They will have to decide whether the Daily Mail was being sensationalist in calling this a cover-up. With my own personal experience at the time and the documents I have been allowed to see I think the term is justified.

The simple truth is that Kyle Keen was sent home to his death by a consultant who made serious errors of judgement and over rode the better judgement of medical and nursing colleagues who gave him the correct advice. Kyle was admitted under the care of a paediatric consultant, Dr Rajneesh Walia, with suspicious unexplained bruising. Dr Walia seems to have thought nothing of this. A number of nursing staff stated that this should be reported to social services. He over-rode them. His senior registrar, on two separate occasions, asked him to refer to social services. In a fundamental, and for Kyle fatal, error of reasoning Dr Walia, according to the registrar’s witness statement “said he felt this (referral) wasn’t necessary and that the child would be under his and the health visitors follow up. He suggested that the mother would be aware that she was being watched and this would deter anything further.”

Most people who know anything about safeguarding recognise the importance of Serious Case Reviews (SCR). These are conducted primarily to decide in the most serious cases if there are lessons to be learned and if so what these lessons are. Their objective is to improve the way agencies work together and improve practical safeguarding. In the case of Kyle Keen, identified by Walsall Safeguarding Children Board (WSCB) as Child K, this has been problematical for several reasons:

  • Almost 6 years after the SCR was completed no doctor has yet seen it. In fact the hospital responsible for the blunders that led to Kyle’s death has only obtained a copy in the last couple of months. Why?
  • In 2008 after the report of the SCR was finished WSCB held a briefing meeting to disseminate its findings. The hospital, despite having very experienced safeguarding nurses and doctors, delegated a recently appointed non-clinical manager with no knowledge of paediatrics or safeguarding to represent it at this briefing. Why?
  • Prior to 2010 it was standard practice for Local Safeguarding Children Boards to publish on-line a potted version or “executive summary” of the SCR. This was delayed for 14 months after the SCR report was completed in Kyle’s case. Why?
  • The executive summary contains gross factual errors. Why? Since WSCB has refused, on the grounds of data protection, to answer even one of the questions Kyle’s father has put to them we will have to wait for the review answers.
  • Despite the requirements of the 2006 Working Together statutory guidance on SCRs no family member was involved in the SCR or informed of the outcomes.
  • The then Chief Executive, Sue James, and Medical Director, Mike Brown, made a completely misleading press statement of what had happened. They had not seen the SCR. Their statement contradicted the findings of the hospitals internal investigation. No paediatrician was consulted. Why?
  • The board minutes give no sense of what actually happened to this little boy or of where the real errors lay. Why? The board was criticised in a Royal College report in 2010 of having no way of knowing what was going on in the paediatrics department for which it had governance responsibilities.

Given this inauspicious start and 7 years of stubborn silence on the SCR it is not be surprising that there has been some resistance to learning lessons. In due course the independent review may come up with answers to my questions. I am not holding my breath given my own experience of such reviews. Meanwhile I want to fast forward to October 2008. Apart from some revisions to policy and paperwork little had been done to remedy what we now know the SCR referred to as “catastrophic mistakes”. One of the recognised vital roles in hospital safeguarding is a properly trained and qualified safeguarding nurse. The SCR recognised this. My book, “Little Stories of Life and Death @NHSWhistleblower” tells the story of the difficulties we had establishing this post at Walsall in Chapter 17 “Playing Politics with Child Protection”. The concerns I raised with the Chief Executive about this were made according to the Trust whistleblower policy. Nevertheless, this led quite specifically to my suspension as a consultant only a few months later.

___________

 

17. Playing Politics with Child Protection.

 

“Nothing we can do will bring back the children who have died at the hands of their abusers….But we have to be determined to learn the lessons and to act now to make a lasting difference so that more children will be protected in future.”

Ed Balls in his Ministerial Foreword in HMG Response to Lord Laming

By October 2008 Kyle Keen had been dead more than 2 years. Tyrone Matthews, convicted of manslaughter, was in prison. Kyle’s mother Kelly McIntosh had been given a 6 months suspended sentence for cruelty by neglect and lost her other child as a result. The rest of Kyle’s bereaved family were lost to view and we had had no contact with them. His father, when I met him again 4 years later, told me the killer would be in prison for a few short years but that he had been given a life sentence by his son’s death. Kyle had been all but forgotten in the hospital. A number of people preferred it that way. Some of the nurses mentioned him occasionally and it was clear they regretted not having been better advocates. We had still seen no sign of the Serious Case Review.

Towards the end of my career I realized that I had never developed a deep understanding of how child protection services did or did not work. This was possibly because it was only a small part of my work as a paediatrician. The death of Maria Colwell had dominated the headlines as I was setting out as a doctor in the early seventies. Even then I remember the local authority trumpeting in the press that this “must never happen again.” Following our return from Africa the press was full of accounts of Jasmine Beckford’s killing in not dissimilar circumstances. “It must never happen again.” In 2000 one of the most outrageous failures of the child protection services came to light with the death of Victoria Klimbié. “It must never happen again.” In August 2007 a year after Kyle’s death Peter Connolly was killed after repeated failures by police and social services and the NHS. In a final and fatal error he was sent home from clinic despite having a broken back. Three individuals including Peter’s mother were jailed for their part in this crime. I heard no-one saying “It must never happen again.” Maybe it is now seen as inevitable, something society has to live with.

At least with all these cases there had been an acknowledgement of abject failure, an open investigation and an opportunity to learn the lessons. Apart from the criminal investigation which I had lost sight of there seemed to be little or no sign that we were addressing the central failings with Kyle’s death.

Late one afternoon I rang Elaine Hurry, the designated safeguarding nurse at the PCT, to discuss a difficult case I was dealing with. After giving me the advice I needed she asked if I knew anything about the appointment of a safeguarding nurse by the Trust. I did not. Most paediatric departments had by that time appointed properly trained safeguarding nurses. We had been requesting funding from the Trust for some years to establish this important post but had been repeatedly turned down. It was not a priority.

Elaine was probably the most knowledgeable person on safeguarding in NHS Walsall. She was a quiet, highly competent and mild mannered person but today she was mad. She told me that the post had been funded, the job description written and the appointment made without any reference to her or anyone else with safeguarding expertise. She had written to Karen Palmer, the Head Nurse who had made the appointment, to register her objections. I asked her to send me a copy of the letter. She did, that same day.

The letter rehearsed the reasons why the appointee, one of our own general nurses, was unsuitable for such an important post. Finally Elaine set this in its proper context:

“The need for this post was highlighted within the hospital in the last Serious Case Review undertaken by Walsall Safeguarding Children Board. Catastrophic mistakes had been made and the review concluded that if hospital staff had followed basic safeguarding procedures the child concerned would have survived. This can never be acceptable and highlights the need for a well trained and supported workforce, who could challenge decisions made by senior colleagues.” 

It would have taken a certain level of experience and assertiveness to face down the particular senior colleague she had in mind, Dr Walia.  Having read the letter my first port of call was the Divisional Director’s office. I went through every point Elaine had made and a few more.  He told me this was a nursing appointment and he had to rely on the professional advice he’d been given by the Head Nurse.

“Karen can’t give you professional advice, she’s got no paediatric experience and she’s an amateur at safeguarding herself.” I said.

“Look, David, think about it like this. At least you’ve got a pair of hands that you didn’t have before. We’re making progress with this.”

“That’s nonsense Rob. You’re not listening. This is an important post. You weren’t here when Kyle Keen was killed. He’d likely still be alive if we’d had a trained safeguarding nurse; you’ve got that in writing. That means a properly trained nurse who would have over-ridden Walia’s incomprehensible decision not to get social services in. You’re just trying to keep the redundancies down with this appointment. That’s not helping the service and it’s putting children at continued risk.”

“Sorry David, we’re laying nurses off if you haven’t noticed. Politically there’s no way I could have advertised this post externally.”

“You mean this is out of your hands? OK, I’ll take it to the Chief Executive.”

I left, frustrated and angry at such bureaucratic stupidity. This was no way to run a dog’s home let alone a child protection service. It takes a lot to make me angry but I was furious. I spoke to a couple of other paediatric consultants but they knew nothing of the appointment either.

I counted to ten and took my time before writing to Sue James. Everything about this appointment was wrong. The nurse appointed to the post was a very good general paediatric nurse who I had known for years. I did not want to criticize her but she had no safeguarding training or experience and in my view was temperamentally not suited for the role. I concentrated on the facts that Karen Palmer had made the appointment by stealth without reference to the local experts including Elaine. If any of us had been involved the appointment would not have been made.

The post had not been advertised externally. HR failed to provide any evidence that it had even been advertised internally. Three nurses had apparently been given the choice of redeployment into this role or redundancy. The press was beginning to take notice of our nursing redundancies and these had to be minimized. The paediatric matron who had considerably more experience in safeguarding had wanted to apply for this post. He had been so badly bullied himself by the middle managers that he was forced to agree to a redundancy package. He was quickly snapped up to work as a safeguarding nurse at the largest childrens hospital in the country. Our loss.

Dear Lord, I was still a baby in those days. Naïvely, I expected a responsible answer from Sue James by return. Two weeks later, having heard nothing from her, I asked Rob Hodgkiss what the Chief Executive had made of my letter. He rolled his eyes. “I think you’ve got a good idea.”

Over the next two months a number of child abuse stories were aired in the national media. In nearby Birmingham the Kyra Ishaq case had shocked many who were used to hearing of such tragedies. Birmingham City Council’s safeguarding arrangements had been judged inadequate in every way following an Ofsted inspection; a fate Walsall would also suffer at a later date.

We knew that the Health Secretary had ordered a review of NHS hospital safeguarding services. This was about the only thing in my experience that would get those at the top of the organization to take notice. Even then the main concern would be that we ticked all the boxes. So, in December, almost 2 months after I had written my original scorcher to Sue James I wrote again to remind her that she had not even acknowledged my concerns. With respect to the anticipated Department of Health review I wrote:

“We are not well placed. Neither the medical lead (a gynaecologist), the head of nursing (a midwife) nor the non-clinical manager has any experience or knowledge of paediatrics or child protection. We have appointed a child protection nurse for the wrong reasons. The person in the department who best understands Laming has been bullied and has taken redundancy.”

Sue James’s PA emailed me to say they had not received my letter. I was able to respond immediately that this was not true. I had considered this letter so important that I’d had it hand-delivered by my secretary. The PA then emailed to say sorry but the letter had been lost, could I re-send it. The final story I heard from Sue James’s office was that the letter had arrived when she was on holiday and so it had been sent to the Divisional Director to deal with. I am afraid that story did not check out either. In the context of a child protection investigation we tend to get suspicious when the story keeps changing in this way. It would of course be unthinkable, possibly fatal, to challenge the integrity of a Chief Executive in these circumstances.

It was not until July the following year, nine moths after my original letter, that I got a definitive answer. This letter was possibly one of the finest examples of spin I have seen and relied heavily on information from the middle managers I had with justification criticized for this mess. Elaine Hurry, the safeguarding expert, had not been involved in the appointment, Sue James informed me, because “Karen Palmer was unaware that Elaine wished to be involved.” The post was, she said, a “good redeployment opportunity for interested nurses.” Everything had been done in line with Human Resource Policy at the Trust, I was assured. “It is always pleasing to note that our own staff are highly qualified to be able to apply for such posts and that it is not always necessary to search outside for such talent.” I laughed aloud at the absurdity of this self-justification. “The successful applicant had extensive knowledge and skills within the field of child protection,” she claimed presuming I was some kind of dimwit. This was all untrue and even a superficial reading of Elaine Hurry’s letter would have shown this. Sue James preferred, as Rob Hodgkiss had, to take her advice from Karen Palmer. Advice that was wrong but so much more comforting.

“Thank you for your interest in this matter, and apologies again for the delay in responding to your letter.  Yours Sincerely, Sue James”

After six stressful months and many tears the foundation safeguarding post holder gave up the ghost and with some relief went back to general nursing duties. She had, no doubt, benefited from the experience, painful as it had been for her. But the service had not developed and a replacement was needed. Sue James may still have believed the department was bursting with native talent but I was pleased to see the post advertised externally. None of our own nurses were qualified to apply. I had contributed in a small way to developing the service but made enemies in the process. There followed a time of quiet but it would not be long before I found myself in a pitched battle to ensure the Trust was forced, once again, into taking its responsibility to protect children seriously.

Sir David Nicholson: Patron Saint of NHS Whistleblowers?

I had heard a lot about Sir David Nicholson and seen him giving evidence to the Mid Staffs Public Inquiry.  As a result of his appearance before the Health Select Committee in February this year I thought it was time we met. On 28 May I wrote to him:

“Dear Sir David

 Re: Offer of assistance to NHS whistleblowers.

At a recent Health Select Committee meeting you offered your personal assistance as CEO of NHS England to any NHS whistleblower who had been stopped from raising concerns about patient safety etc. I know several whistleblowers have written to you to take up your offer but in the event you have felt unable to deliver.

I would like to take up your offer of help. Sir Bruce Keogh told a large audience at the National Patient Safety Congress last week of the way you had suffered as a whistleblower. On one occasion early in your managerial career you were offered a breakfast that rightly belonged to a patient. The patient was thus to be deprived. You blew the whistle on this wrongdoing.

As a direct consequence, Sir Bruce told us, you were “moved on”. The concerns I raised were much more serious than this and the consequences much more severe. As someone who has suffered personally as a whistleblower I believe you will able to identify with those of us who have been so treated. In your powerful position as CEO of the NHS you are probably the best person to do something about it. I am much less concerned about my personal protection than the protection of vulnerable children.”

I then provided an account of some of my experiences as a whistleblower at Walsall Healthcare NHS Trust. This involved the cover-up of the hospital’s liability for a child being sent home to his death. I summarised as follows:

“I have given you an account of a child (Child K) who was sent home by to his death against the advice of colleagues, contrary to policy and common sense by a consultant who had problems with his clinical competence. The trust, in its internal documents has recognised that “catastrophic mistakes” were made and that the child would be alive if the most basic safeguarding procedures had been followed. Despite this the internal investigation made no reference to the consultant’s errors but criticized nursing staff. The subsequent Serious Case Review (Walsall Safeguarding Children Board) came to the same conclusions. The point of the Serious Case Review is for safeguarding partners to learn from mistakes. The Serious Case Review report has been with-held from the hospital since its completion 5 years ago for reasons the safeguarding board has not divulged. The facts of this case have not been made available to the trust board as evidenced from minutes obtained by FOI. The Medical Director and Chief Executive released a highly misleading press statement incompatible with the facts. The family has not been made aware of any of this. A child is dead, two people were given prison sentences and the hospital’s liability has been covered up. I made myself unpopular with the chief executive and medical director for criticizing their failure to remedy the factors that led to this child’s death.”

I also gave Sir David an account of my disclosures of mismanagement, child protection concerns, medical and nursing redundancies to pay for the new PFI and repeated failure to provide a safe environment for inpatients. This led to my exclusion following allegations by the paediatric nurse manager. The investigation showed I had no case to answer and after 5 months I returned to work. The following is a potted version of my account to him of subsequent events.

“Things were no better on my return to work and I registered a grievance against the medical director and asked for an independent investigation of the paediatric department. The Trust chair agreed to commission this from the Royal College of Paediatrics. A panel recommended by the College conducted a review and produced a report. The report was highly critical of senior management. It was vigorously suppressed by the CEO and even the board and clinical directors were not allowed to see it. The College panel chair was appointed by the CEO as head of the paediatric department and helped her to suppress the circulation of the report. Interestingly my disclosures about failures over Child K were not even mentioned in the report and the panel has refused to discuss this matter since.

I refused to accept a small part of the report as it was based on untrue evidence. The CEO as a result called for my resignation. She set up a disciplinary hearing which broke every point of Trust policy and which she had to stand down after BMA representations.

In an attempt to break the stalemate she then called me to a meeting with the BMA and offered me a 6 figure sum and a good reference provided I left immediately having signed a gag. She claimed this was done with the knowledge of the board and the SHA. This was untrue. I refused her offer and as a direct result was taken through a disciplinary procedure and sacked.”

Here was everything that Sir David had repeatedly told the Health Committee he was opposed to; the fraudulent attempt to pay-off and gag a whistleblower who was speaking about senior management failures; the sacking of a whistleblower; the cover-up of a hospitals liability for a child’s death. I had made my written intercession to the Patron Saint and felt confident of his help.

I sent the letter to Sir David at NHS England and copied it to my MP Mr. Andrew Mitchell, asking that he forward it to Mr. Stephen Dorrell and the Health Select Committee.

Six weeks passed. By July Sir David had not responded. I wrote again to Andrew Mitchell and Stephen Dorrell:

“I regret to report that Sir David, despite the serious nature of my concerns, has not responded. In my experience it is common in the NHS for such serious concerns to be ignored.”

Stephen Dorrell then wrote to Sir David enclosing a copy of my original letter and asked that he and Andrew Mitchell be copied in on his reply. That was a canny way of ensuring I got a reply.

What I had not achieved in 6 weeks as a whistleblower supplicant was granted immediately following the intervention of Stephen Dorrell. I received a response from Sir David’s office the next day:

“The Rt.Hon Stephen Dorrell MP wrote to Sir David Nicholson on the 5 July 2013, enclosing your letter to Sir David, dated the 28 May 2013, received in our office on the 9 July 2013.

Unfortunately, the office did not receive your original letter of the 28 May 2013…..”

We will endeavor to respond to you as soon as possible.”

Years of experience had enabled me to anticipate this. I responded:

“I sent the hard copy to Sir David by registered mail and tracked it in the day after posting. I also sent it attached to an email”

I got an immediate response:

“Unfortunately it appears that your letter of 28 May 2013 was mis-directed to the complaints department.”

I no longer waste time or energy trying to work out if these managerial shenanigans are cock-ups or conspiracy. I sat back patiently to wait for Sir David’s reply. Silly me.  A week later I received an email from ‘Tom Easterling, Director of Chair and Chief Executive Office’. It was a masterpiece of copy and paste bureaucracy which I will not bore you with. I had still heard not a word from Sir David himself. So, I wrote again:

“Dear Sir David

Thank you for this. I am afraid Mr. Easterling has predicated his reply on a misunderstanding of the undertaking you made to the Health Committee.

My own reference is to your statement to the Health Committee of 5 March 2013. You said, “I immediately intervene in organizations that are not providing the right kind of support to whistleblowers.” That is an unequivocal statement made to Parliament and I believe as such tokens a guarantee that it will be honoured.”

I reiterated the account of the cover-up of the Child K case. (To this day, more than 7 years after Ks death no doctor or family member has been allowed to see the Serious Case Review and the family only knows what happened because I told them last year.) I finished my appeal for help:

“Sir David, my employer failed to provide me with any support as a whistleblower. In fact I was sacked as a result of doing what the GMC said I must do. I have taken independent legal advice on my disclosures. 3 of 4 are described as water-tight. One is about 70% but with new evidence I believe that this will achieve full status. I therefore appeal to you to make good your claim to the Health Committee and that you “immediately intervene.”

I have sent a copy of this to my MP Mr. Andrew Mitchell and through him to Mr. Stephen Dorrell and the Health Committee.”

Two weeks later I was pleasantly surprised by an email from NHS England:

“Sir David would like to meet with you to discuss your experiences and the patient safety and safeguarding issues that occurred, and discuss your views on how patient safety processes and policies could be improved. Sir David stressed however that he has no basis on which to intervene in the employment issues which arose. He would like Dr Mike Durkin, Director of Patient Safety at NHS England, to join you both at this meeting.”

I was in. It would take another 2months before a meeting could be finalised but on 23 September I was standing outside Fortress NHS England on Birmingham’s Hagley Rd.

I was welcomed in by Sir David and Mike Durkin. They were both immensely polite. They wanted to hear first hand what a whistleblower had to say. I was asked to run through what happened to me. Mike Durkin asked questions that showed he had at least read my correspondence. Sir David seemed unfamiliar with any of this. I may be misjudging him. After telling the whistleblowers tale I said that I had come with two practical suggestions for Sir David. The one pressing suggestion was that he lend his support to calls for a public inquiry into the mistreatment of NHS whistleblowers. He refused outright. The meeting ended very amicably but I was not sure I had achieved anything. I went home and wrote a comprehensive note of the meeting and sent it to both of them the next day for corrections and omissions. Two months on I have had no response so I am entitled to rely on my note as accurate and will quote from it.

On the response I met when I described my treatment as a whistleblower I recorded this:

“Sir David said that in his experience my case was unique. He said he knew of hardly any cases of Doctors who had raised concerns being sacked.”

This will ring a bell with those who heard his evidence to the Mid Staffs Public Inquiry. He seemed to think Mid Staffs was a one off. He seemed to think that NHS whistleblowers had no real problems, that staff were able to report concerns safely. He said clearly that he did not recognise a bullying culture in the NHS.

I described the intense secrecy surrounding the Royal College of Paediatrics review at Walsall in this note:

“I think you both heard with some incredulity my account that the team the Royal College of Paediatrics and Child Health (RCPCH) sent to conduct a paediatric service review in Walsall in 2010 were gagged by the Trust and that as a result the College has been unable to investigate my complaint about the conduct of the review. (I had discovered this since my original letter in May) Your reaction was the same on hearing that the reviewers subsequently destroyed all record of the oral submissions which were heard and which important parts of its report were based on. “What does that say?” asked Sir David.”

Sir David had asked me for the names of the Trust Chair, CEO and the College panel chair. “Ben Reid OBE, Sue James now CEO at Derby Hospitals and Nadeem Moghal, now Paediatric Champion at GEH.” I answered. Perhaps he was going to take action on this.

On the gags I was asked to sign but refused, believing them unethical and wrong I made this note:

“I also gave you an account of the CEO’s offer of an extraordinary settlement with a gag. I told you that she claimed that this was done with the knowledge of the Trust board and the SHA. Further enquiries proved both these claims false. The offer was in every respect in breach of guidance laid down in MHPS. Sue James, the CEO involved, was also clearly in breach of the NHS managerial code. The BMA lawyers who knew about my disclosures later insisted I settle and sign a gag. When I refused they withdrew legal representation.”

On my request for Sir David’s support with the whistleblower inquiry I noted:

“I asked Sir David to recommend to the Secretary of State that he commission an inquiry into the treatment of whistleblowers. This could be a formal inquiry or something along the lines of a truth and reconciliation commission as described recently in the Health Service Journal by Kim Holt and David Johnstone, both of PatientsFirst. Either would be an appropriate response to the Francis report and its various offspring. Sir David said he would not support this. He gave reasons, the main one being that NHS England already has too many recommendations to implement from inquiries and that there was no appetite for more. I have to respect that view but as I said I still believe and PatientsFirst passionately believes that such an inquiry is vital if policymakers whether they are politicians or civil servants are to understand the nature and extent of what is now widely recognised as a serious problem in the NHS. We will pursue this through other channels. Part of the current lack of professional and public confidence in the NHS stems from the way it suppresses frontline concerns and mishandles complaints from patients and their relatives. These are both clear lessons from Mid Staffs.”

I have heard noting further from Sir David since I met him 2 months ago. In summary, I gave him, 6 months ago, an extensive account of the serious concerns I raised at Walsall from 2008 to 2010 which led to my suspension and eventual dismissal. I told him of the settlements I had been offered and the gags I had refused to sign. The facts of the Child K case had been laid before him. I had used the word cover-up which with my personal experience of the case and the documents I possess I am certain is correct. I told Sir David that the Royal College of Paediatrics was unable to investigate my complaints about the review panel they had recommended because the panel members claimed to have “signed confidentiality agreements” with Walsall Healthcare and were unable to discuss their work. I gave him an account which could easily be verified that the review erased all reference to the hospital’s liability for Child K’s death and its failure to remedy the mistakes that led to it. I gave evidence that the Walsall Healthcare CEO had vigorously suppressed the review’s report so that neither the trust board nor its senior clinicians saw it.

In February Sir David told the Health Select Committee:

“I immediately intervene in organizations that are not providing the right kind of support to whistleblowers.”

That is an unequivocal statement made to Parliament and I believe as such tokens a guarantee that it will be honoured.

There are many who believe that Sir David as head of the NHS has been instrumental in the development of a culture that is damaging patient care and making the lives of many healthcare professionals miserable. I am not able to judge on such weighty issues. I speak only for myself and my own experience. He has claimed to be a whistleblower at a time when it has becoming fashionable. He has told Parliament that he is a champion of whistleblowers. He has claimed that he helps them. To me this rings hollow.

I have never taken to the streets with placards as the bereaved of Mid Staffs and MorcambeBay and others have. But I do understand the strength of their feelings that drove them to that.

So, along with them and others who have suffered as a result of a culture in which it is still not safe for professionals to speak out I say, “Shame on you Sir David.”  

The NHS: Sub-cultures of secrecy and intimidation?

 Colchester NHS Foundation Trust has been in the news this week for all the wrong reasons. Junior administrative staff have been told to fiddle cancer patient data by their managers. Patients may have suffered, may have died. We do not know. The administrative staff alleged that they had been bullied into this malpractice and some of them had blown the whistle up to the CEO who had ignored them. CQC has passed this information on to Essex Police. Good. Few things concentrate the mind as much as the appearance of a policeman.

The narrative of NHS culture that has been emerging since the Francis Inquiry is one in which many healthcare professionals are afraid to raise concerns about patient care. When they do they are ignored even by senior management and bullied into toeing the line. In the past this might have progressed through suspension, disciplinary procedures and on to dismissal. Thank God we now have a regulator and a Whistleblower-in-Chief willing to listen to and protect the Colchester whistleblowers. And to make sure their intelligence is acted on to protect patients. That is all whistleblowers want.

In 2009 after 7 years as head of the paediatric department at Walsall Healthcare NHS Trust I encountered a situation where managerial bullying was rife. My book “Little Stories of Life and Death @NHSWhistleblowr” will be published in the New Year. I am pre-releasing chapter 25 on my blog. It is a timely reminder that culture is driven from the top of organisations and in closed cultures senior managers are unlikely to welcome attempts to address problems.

A Royal College of Paediatrics review of the paediatric department in Walsall in 2010 concluded that inappropriate appointments had been made by the executive to lead the department. The managers concerned were described as having no knowledge or experience in paediatrics, exhibiting an aggressive management style (a posh way of saying bullying?) and failing to engage with senior frontline clinical staff. This was at a time when swingeing cuts to the cost base were being made to pay the mortgage on the new PFI and prepare us for FT application. Bullying became a part of the daily routine as a consequence of these appointments.

Chapter 25 is my account of this. I do of course have all the willing witnesses I need, and the minutes and emails, to verify this account.

 

Bullies: Challenging the Culture.

 

“I was never a bully. I was a hard man.”

Roger Daltrey of The Who.

 

Years ago our youngest son came home with a badly broken nose. He’d come between a bully and his victim on the school bus and suffered the painful consequences. I was proud of him. He had been true to our family’s zero tolerance of bullying. I have always challenged bullying myself and more than once suffered physical injury. When it erupted in the paediatric department in 2008 onwards I found myself on a collision course with the bullies and those who sheltered them. Bullying is a difficult problem to grapple with. Bullies often do not recognise themselves for what they are. And they never admit to it. There is no badge that I have seen anyone wearing that proclaims, “A Bully and Proud of it”.

On 26 October 2009 I had written my comprehensive disclosure of the department’s problems to Sue James, our Chief Executive. In it I stated that “over a period of about 18 months a culture of institutionalised bullying has developed in the paediatric department.” I went on, “Although some of this may have escaped your attention I will present evidence that you have to some extent been aware of this and for reasons which are hard to understand have chosen to ignore it.  I believe that in certain instances, which I will also refer to, your actions have compounded and even given sustenance to this culture.” Naively, I still believed that evidence was the solution to the problems we were facing. I gave many examples of this culture. Here is one from the same letter:

“Take for example one of our nursing staff who the Divisional Director rang at home.  This nurse’s husband overheard the Divisional Director speaking to his wife as the phone was on loudspeaker.  The Divisional Director’s conversation was so aggressive and peppered with expletives (effing and blinding as it was reported to me) that her husband told her he was going to the HR Department the following day to report this manager.  The nurse begged her husband not to go as it was likely to cause her more grief.  I am afraid this is how institutionalised bullying works.  The bullied come to tolerate that kind of behaviour.  They try to keep their heads down.  When they are bullied they fail to take any action because they believe that it can only produce more difficulties for themselves in their work environment.”

On Bonfire Night I met with the Trust Chairman, Ben Reid and the BMA. He agreed to an independent hearing of my grievance and a departmental review by the Royal College of Paediatrics. I experienced an immediate surge of relief. I wrote to Bruce George the Labour MP for Walsall South who had agreed to meet me and cancelled. I had total confidence that the College would send its team in and the impasse would be resolved.

But within days of that meeting there was an outcry from senior nurses in the department over bullying.  The head nurse, Karen Palmer, was singled out as the main culprit. I therefore arranged for the senior paediatric nurses supported by the paediatric consultants to meet Sue James, and the Nursing Director. It was obvious that it might take six months for the College to complete the review and for its report to be implemented. That was too long for nurses who were in tears every day to wait. Sue James was clearly fed up with me and did not want me to attend. I withdrew in order to let the nurses speak from themselves. But they lacked the confidence to go to the meeting without me being there to support them. I informed Sue James that as a result I would be attending. “I regret that you have gone back on your word…” she emailed me. I was by this time immune to these barbs, designed to make me feel bad about myself. I regarded them as another manifestation of the bullying culture I had complained of.

We met on Friday 20 November. Sue James and Brigid Stacey, the Director of Nursing, were faced with the two paediatric matrons who had suffered the brunt of the bullying and six consultants. Sue James had made no provision for the meeting to be minuted. I asked for this to be done. She told us she did not want minutes taken. I took extensive notes anyway and circulated them as minutes afterwards. I was an obsessional recorder of meetings and that has served me well.

The matrons were invited to describe their experiences of bullying. These included being shouted at and sworn at. They reported physical threat.  They had been sent emails by the head nurse in which they were told to either toe the line or their jobs would be under threat.  They were also told in the same emails to be grateful that they had a job.  They complained of being ignored by management (that is a form of bullying recognised in trust policy). The head nurse had changed the ward nursing rotas without them, the matrons, being consulted.  The head nurse had made derogatory comments about them at a meeting with human resources.  They also raised the problem of how impending redundancies were dealt with in the department by the head nurse in 2008.  Individual nurses had not been told of their possible impending redundancy. The whole establishment had been informed by what was essentially a circular. Management had made no attempt to mitigate the consequent widespread anxiety.  This was not an exhaustive list of allegations. Bullying is often trivialized, passed off as “robust conversation” etc. In this case the level of distress it was causing was near intolerable.

The Chief Executive and Nursing Director did not engage with us. Disinterest was written on their faces although from time to time they gave each other an anxious look when a particularly horrible experience was being described. They promised to meet with the managers concerned and scheduled a meeting with us to feed back. This was later postponed.

I missed the second, rescheduled, meeting through illness. Ironically the meeting was minuted by our safeguarding nurse who had recently resigned after being sworn at by the Divisional Director. It was clear at this second meeting that no formal investigation had been carried out, nor would it be. No action was to be taken against the managers, not even a warning. Sue James mused as to why it was that others who worked under the same managers were not experiencing the problems we were. Of course, why hadn’t we thought of this? It must be our fault! This is the remorseless faulty logic that I encountered every time I tried to address a serious problem in the department. What was I doing wrong? What were we doing wrong? Senior and middle management were always in the clear and always tried to reflect the blame onto the clinicians. This culture of managerial cronyism was deeply frustrating to all of us on the front line. It was absolutely unassailable. The dice was loaded.

Sue James told the clinicians that the paediatric department was thought to be a “basket case” and that the PCT and Walsall Council had lost faith in it. She went to some lengths to create further insecurity by saying that a number of paediatric units would be closing. We’d heard this repeatedly and would hear it again. The nurses had already heard the head nurse telling them to toe the line or lose their jobs. The matrons were then warned by Sue James not to register formal grievances against management. She later told the employment tribunal that she had done this “in the interest of the paediatric service.”

This was a disappointing outcome. The nursing staff in particular had put their necks on the line. The Trust had a Harassment and Bullying policy. It stated quite clearly that:

“The Chief Executive will take lead responsibility for ensuring the Policy is correctly implemented and that the trust takes effective action to tackle harassment/bullying in the workplace.”

But here we were, 8 of the most senior clinical staff in the paediatric department, with allegations of bullying so serious that we had gone to the Chief Executive herself and she had blatantly disregarded the policy she was responsible for.

The Policy also gives a clear instruction:

Where it is clear there is a pattern of unacceptable behaviour within a particular area, a full investigation will be carried out.”

But what could possibly be clearer than the allegations made by the clinicians. Again the Chief Executive was able, with impunity, to breach the policy for which she had executive responsibility.

In my experience such policies are a waste of paper. Most employees are insufficiently familiar with them to make use of them. HR departments are often well acquainted with them but disregard them. I imagine that it was unusual if not unique for Sue James to be on the sharp end of one of her policies as she had been at these two meetings. Later, under cross examination at my employment tribunal she demonstrated her flimsy knowledge of her own policies. But these policies contain some useful and often wise words. The Trust policy at that time had a section describing the damaging effects on individuals and organizations when bullying is tolerated.

Employees are unable to work effectively. Team work is damaged. Absenteeism due to stress increases. Motivation and morale are damaged. Staff lose confidence in the organization. Staff leave.”

But here was Mrs. James actively tolerating managerial bullying reported en masse.

We all knew the nurses were being badly bullied. At the employment tribunal 4 senior witnesses (3 were consultants) named the head nurse, Karen Palmer, as a serial bully giving graphic descriptions of the support they had had to give to nursing staff as a result. The hospitals head of HR, Sue Wakeman, was present throughout that testimony but sat unmoved. Those within the managerial clique typically enjoy a startling level of immunity so no-one should have expected anything else.

At the second meeting David Cremenosini, a new consultant and the husband of Louise, the safeguarding nurse, expressed incredulity at Sue James’s refusal to take any action. His comments were disregarded. He resigned shortly afterwards. The Royal College of Paediatrics review which reported 4 months later instructed the Trust to remove Karen Palmer from line management in paediatrics. The report described her “aggressive managerial style”. On the evidence presented to Sue James this should have been done when the bullying was first drawn to her attention. Her failure to act resulted in months of unnecessary suffering in a group of golden hearted nurses who wanted nothing other than a protected environment in which they could do their work.

Following the meeting there was an atmosphere of doom and despair. Sir Ian Kennedy QC had given his last interview as Head of the Health Care Commission to the Health Service Journal in April that year. He chose to speak on bullying. It was, he said, the most important problem facing the NHS. Four years later Robert Francis QC was telling us the same. NHS staff surveys regularly show a high level of bullying, much higher than in other organisations. Of course no trust ever admits to this problem. Few that I have heard of deal with it decisively. In some trusts bullying is a management tool. In our own department it was sapping energy and destroying morale but the Chief Executive whose responsibility it was to enforce the Bullying Policy could not have cared less. That was the only conclusion we clinicians could reach.

I suppressed my inclination to react immediately but after 2 weeks wrote to the Chairman and a non-executive director. I described the content of both meetings and the unsatisfactory outcome. I tried to get to the heart at the problem and wrote. “Sue James, on both occasions, has told these nurses effectively not to cause any more trouble. She advised them at the second meeting against any more complaints and against lodging a formal grievance as this was likely to cause more problems and would hazard the unit’s future and jeopardise their jobs. She also used me as an example of how unpleasant lodging a formal grievance could get. I am afraid that this approach is tantamount to intimidation of our senior nursing staff.”

His reply was unhelpful. I complained about too many things, he wrote. That spoke eloquently of the organisation and its culture which had its fountainhead in its Chair and Chief Executive.

The postscript is that the two matrons who made those complaints were later replaced by an outside appointment. They were both excellent paediatric nurses and with the right personal development plans would have risen through their profession. They both left hospital paediatric nursing soon afterwards. The limited opportunities provided and the stress of workplace bullying took their toll. Two of the consultants present at the meetings would soon resign and leave. As for me the bullet with my name on it was already being loaded into the breech.