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.

 

13. 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:

18. 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