The Care Quality Commission made a mistake in not initially publishing the names of those implicated in the alleged cover up over Morecambe Bay, the chair of the regulator has admitted to HSJ.

David Prior told HSJ in an exclusive interview: “We should have published and been damned.”

He said the CQC’s decision to redact the names from the independent report into the regulation of University Hospitals of Morecambe Bay Foundation Trust was based on legal advice it risked breaching the Data Protection Act, because individuals had provided information for the report with the expectation it would not be published.

Mr Prior told HSJ the CQC had received “legal letters” threatening action under the Data Protection Act after individuals named in the report were sent details of the criticisms they would face in the report ahead of its publication.

When pressed on whether this included any of the four individuals at the meeting where it is alleged a cover up was discussed, Mr Prior said there were “two I can think of.”

Mr Prior told HSJ that one of the main reasons for it deciding to publish the names, less than a day after the initial publication, was the Information Commissioner’s indication that the law should not prevent it from doing so.

Mr Prior said: “Partly because of the Information Commissioner and partly because the level of public interest was so great we felt we ought to put the names out and take the legal risk we were running under the Data Protection Act.”

Asked whether, with hindsight, he thought the CQC should have consulted the commissioner before publication, he told HSJ: “When you employ top lawyers you sort of expect it might have occurred to them to do that.

“But the answer isn’t to blame the advisers, we took the decision not to put the names in and that was a mistake. Mea Culpa, guilty as charged.”

Mr Prior denied the initial decision to exclude the names was an attempt to protect individuals – including former CQC chief executive Cynthia Bower and former deputy chief Jill Finney – who were present at the meeting where it is alleged an instruction was given to delete a critical internal report. 

“If we’d been about protecting individuals we would never have commissioned an independent report and we would never have committed to publish it. We acted out of best intentions to abide by the law and as it turned out we made the wrong call on that. We should have published and been damned.”

Since the publication of her name Ms Finney has publicly denied the allegation in the report she ordered the internal review criticising the CQC’s regulation of Morecambe Bay be deleted. Ms Bower also denied giving an instruction to delete the report and said she had “no note or recollection of such instruction being given”. Both women pointed out the report was not deleted.

The Grant Thornton report concluded that the information contained in the internal report was “sufficiently important that the deliberate failure to provide it could properly be characterised as a ‘cover-up’.”

It noted that the internal report had not been provided to the firm’s investigators at the start of their investigation in July 2012 and was not found during searches of the CQC’s “official records”. Instead they had been notified of the report’s existence by a regional member of staff who had heard of it and were provided with it by Ms Finney three months into their enquiries.

Asked whether he stood by the Grant Thornton report Mr Prior pointed out the consultancy firm is well respected and had spent more than nine months formulating its judgement.

He confirmed the CQC was in the process of instructing lawyers to establish what disciplinary action or sanctions it can impose on staff involved, including the possible “forfeiture of pensions”. Health secretary Jeremy Hunt last week indicated he supported such moves.

Mr Prior added: “We want to get definitive advice because this applies to other people in the public sector as well.”

He said the Grant Thornton’s conclusions made the case for the regulator’s new strategy, which involves a move to inspectors which are specialists in the issue being investigated. He also highlighted the complete overhaul of the executive team as evidence himself and David Behan were making progress. HSJ reported in April that the whole team had been or was being replaced.

The Grant Thornton review was prompted by concerns raised by non-executive director Kay Sheldon, and considered concerns of James Titcombe, whose son Joshua died at the trust in 2008.

Ms Sheldon’s term on the board comes to an end in November and until now has not been expected to be renewed.

However, asked whether the Grant Thornton report had made him more favourable to asking her to remain a non-executive, Mr Prior said:  “She has been absolutely vindicated and so by September I will come to a clear view on this… watch this space.”

Exclusive interview: CQC chair admits mistake over release of Morecambe Bay names