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.”