The head of the Care Quality Commission has admitted a gap in the regulatory system is preventing the investigation of historic patient complaints, after NHS England pulled out of a proposed joint investigation.

The Care Quality Commission’s chief executive has admitted that a “gap” in the regulatory system is preventing the investigation of historic patient complaints.

David Behan made the comment in response to the collapse of a proposed joint investigation by the CQC and NHS England into the case of the death of baby Elizabeth Dixon in 2001.

Mr Behan, who was speaking at the regulator’s board meeting today, indicated a review was needed to address the gap.

He told the board the CQC had been under the impression an agreement to investigate the care and treatment of baby Elizabeth had been reached with NHS England, using the latter’s powers as a commissioner. He said that subsequently a “decision was made at the senior level within NHS England” not to take part.

These developments, reported by HSJ last month, came after months of discussion between the CQC, NHS England, and Elizabeth’s parents Graeme and Anne, who have been fighting for answers in relation to their daughter’s death since 2001.

Elizabeth died at Frimley Park Hospital after doctors and nurses failed to treat her high blood pressure over a period of 15 days leaving her brain damaged. She suffocated 11 months later when a newly qualified nurse failed to keep her breathing tube clear.

NHS England told HSJ last month the decision to pull out of the investigation was made by chief executive Simon Stevens and that it was “not and has never been an investigatory body”.

Mr Behan today said the CQC had “huge sympathy” with the family and told its board: “What this case clearly identifies is a gap in the system.

“Sir Robert Francis has been asked by the secretary of state to look at historic whistleblowing cases, in very much [the] same vein that there is a gap in the system, and I suspect there is a similar piece of work required in relation to a gap in the system for historic complaints like the one the Dixon family are raising.”

Mr Behan said the “cruelty” in the family’s treatment was that their expectations had been raised for a full investigation. He added: “We thought an understanding had been arrived at between CQC and NHS England but a decision was made at the senior level within NHS England… We were the last people standing.

“The family want more than we are able to offer, they want a much fuller investigation which would hold people to account if there have been failures. We are not able to carry out that type of investigation.”

CQC non-executive director Camilla Cavendish said at the meeting: “The family were very disappointed that NHS England appeared to have offered something, it then withdrew. I am interested to know how that happened because I think that was really very unfortunate indeed.

“I also think NHS England misled the CQC into what it was proposing.”

HSJ has approached NHS England for comment in response to the board discussion.

An NHS England spokesperson said in response to the case earlier this month: “NHS England is not, and has never been an investigatory body. We strongly support the independent CQC investigation to ensure the facts and lessons are learned from this tragic case.”