‘Perversion of Justice’The Abandoned NHS Whistleblower
Stephen Colegrave looks into the case of NHS whistleblower Paul, who was let down by his hospital trust and worse still by the NHS regulators there to protect the public
When something goes wrong in an NHS trust, there is a reluctance to conduct an independent investigation. Instead, an investigator known to the trust is often selected to look into the matter – a system open to abuse.
Such was the case of Paul (not his real name), a retired policeman with an unblemished record, who was called in to investigate a safeguarding issue by the HR department of an NHS trust.
This was not unusual as Paul had undertaken 40 similar investigations for this department without any criticism. Indeed, he was part of the ‘bank’ of temporary workers that the trust kept available for this type of short-term work.
At first, it seemed like any other investigation. Paul had been asked to look into an alleged failure to ensure the safeguarding of patients within a high-risk service at the trust. As usual, he carefully carried out his investigation and submitted his report.
The evidence I had gathered as part of my investigation had been heavily excised by someone in the trust without my knowledge.Paul
He thought it strange that, for several months, the trust had failed to act on his findings. Paul was furious when he found that the trust had scapegoated a member of staff without his knowledge using a doctored version of his report. This led to the member of staff being referred to the Nursing and Midwifery Council (NMC).
Paul gave evidence to the NMC, asserting that the trust had interfered with his internal investigation report. A major indictment of senior trust managers, the NMC concluded that, based on Paul’s evidence, the information supplied by the trust was unreliable and deemed there to be no case to answer on several of the charges because of this unreliability.
No Luck with National Guardian
However, this was not an isolated case and there were at least four other investigations that Paul was worried about.
He escalated his concerns about the interference of his investigation to the chief executive of the trust in question and, when this proved futile, he contacted the National Guardian’s Office (NGO) in the summer of 2019.
The National Guardian was set up as a result of the recommendations made in the 2015 Francis Review, Freedom to Speak Up, that was intended to enable and encourage NHS staff to speak up if they witnessed or knew anything about risky or dangerous behaviours or activities, especially those that endangered life. This led to the creation of ‘Freedom to Speak Up Guardians’ in every trust, although they have proved to be of varying effectiveness as their seniority within a trust was never specified. The National Guardian was then set up as an independent national officer and ‘guardian’ of this initiative.
But Paul did not have much luck with the National Guardian’s Office. It turned out that it had previously given the trust in question three months to improve its treatment of whistleblowers – in a case review which the NGO confirmed to Byline Times was published in 2018 – and this deadline had been far exceeded. Instead of recognising this as a systemic issue, the NGO decided not to do anything in order to give the new trust chief executive time to deal with these issues. This appears to be the complete opposite of being a ‘guardian’ of helping people to speak up.
In his correspondence with the NGO, Paul detailed his concerns:
“I became aware that an ex-employee of the trust had made an employment tribunal application over his dismissal. It is my belief that the trust had deliberately failed to produce crucial material as part of the employment tribunal disclosure process.
“I had conducted the investigation that led to his dismissal and I had concerns over the way the matter had been handled when I originally submitted my report… I discovered that the evidence I had gathered as part of my investigation had been heavily excised by someone in the trust without my knowledge and then used to dismiss the employee.
“As a retired police, officer I can say that it is my opinion there appears to have been a clear and deliberative perversion of justice.”
Other Regulators Approached
This correspondence between Paul and the NGO was shared with the whistleblowing team at NHS Improvement (NHSI), the regulator which was supposed to be supervising the trust’s implementation of the NGO’s case review recommendations.
Even though the NGO referred Paul to NHSI, NHSI took no meaningful action and did not exercise any regulatory powers to ensure better governance at the trust. His last letter to NHSI questioning the regulator’s response was not even met with a reply.
Paul then decided to contact the health and social care watchdog, the Care Quality Commission (CQC), and the General Medical Council (GMC) and refer directors of the trust in question to them, on the grounds that the directors appeared to be unfit to practice because of the way in which his report had been doctored and this had been covered-up.
Again, Paul received little help. Having initially been blanked by the GMC, following a challenge, the GMC informed him in early 2020 that it would open an investigation into a director’s ‘fitness to practice’ – but this drags on. There is little sense of urgency displayed by regulators in protecting patients and the public from NHS directors who may be failing very seriously.
The CQC has also been inactive in response to the referrals of several of the trust’s directors. In January 2020, it told Paul that it could not progress one of the referrals because the individual was no longer a director. The CQC also claimed that it was satisfied that the trust was compliant with the relevant regulation and that it would not take any action with regards to the other trust directors.
The CQC’s decision can be seriously questioned by the fact that the GMC U-turned and decided to open a ‘fitness to practice’ investigation into one of the directors six days after CQC shut the door on the referrals.
A CQC spokesperson told Byline Times: “We reviewed information [the whistleblower] provided to the CQC about [the] trust. After our initial review of the issues, and at his request, we considered the information under ‘fit and proper persons’ requirements. We concluded that the trust had met its legal obligations under ‘fit and proper persons’ requirements in respect of [the] complaint. The information he provided has, however, informed our monitoring of the trust.”
Lack of Concern
At every turn, Paul has been frustrated, blanked or outright opposed as he has tried to expose the way in which his report was tampered with.
It seems inconceivable that neither the trust, the National Guardian’s Office or the CQC are interested in the consequences of this action, not just for the nurse that became a scapegoat, but for the risks around safeguarding that Paul’s report investigated.
As the experience has taken its toll, Paul has suffered health problems and had a pacemaker fitted in the past year. He has been told that as a ‘bank’ or temporary worker he does not qualify as a ‘worker’ under the current Public Interest Disclosure Act 1998, which gives employers the balance of power over whistleblowers.
On a fundamental level, the NHS has a poor record of learning from its mistakes.
The latest NHS data shows that one in 300 people who go into hospital die through negligence and one in 10 have something adverse happen to them. With this in mind, one would think that the NHS’ senior management and regulators would understand that supporting whistleblowers to root-out bad practice should not only be encouraged but protected. Yet, this doesn’t seem to be a priority.
Until there is proper legislation to protect whistleblowers, brave people such as Paul continue to be at risk of vilification rather than celebration for their tenacity and determination to expose the truth.
A spokesperson for NHS England and NHS Improvement said: “While we cannot comment on specific cases we are always thankful when people speak up and it is important anybody with concerns does so. When they do, cases are taken seriously and handled professionally by following our usual processes which ensure any actions that need to be taken are.”
Paul’s real name and the name of the hospital trust have been withheld to protect his identity as a whistleblower