• CQC found guilty of several instances of maladministration linked to 2015 complaint
  • Second PHSO investigation to criticise CQC’s handling of fit and proper person regulations
  • Ombudsman calls for reform and says David Drew’s case “exemplifies” damaging impact or poor handling by CQC

The Care Quality Commission has been found guilty of maladministration over its handling of a fit and proper person test complaint which led to a £200,000 investigation by an NHS trust.

A Parliamentary and Health Service Ombudsman investigation identified “several instances of maladministration” in the CQC’s handling of a complaint by former consultant paediatrician David Drew.

Ombudsman Rob Behrens has now written to the health secretary, NHS England, chair of the Commons health committee Sarah Wollaston, and chair of the parliamentary and constitutional affairs committee Bernard Jenkin with a copy of the PHSO investigation.

In his letter to Dr Wollaston, Mr Behrens said: “I believe this case exemplifies the damaging impact that poor handling of allegations can have on people’s faith in the ability of the CQC to identify and act on misconduct when whistleblowers come forward.

“This underlines the need for reform to the [fit and proper person] system and the recommendations from the Kark review to be swiftly implemented.”

The complaints

Dr Drew complained in 2015 that the then chief executive of Derby Teaching Hospitals Foundation Trust, Sue James, was not a fit and proper person due to what he claimed was poor conduct when she was previously chief at Walsall Healthcare Trust.

Dr Drew alleged that Ms James, who has since retired, was involved in a cover up surrounding the avoidable death of a child, suppression of critical reports about the paediatrics department and took no action on bullying complaints. Dr Drew was later disciplined and sacked after emailing religious quotes to colleagues. He lost an employment tribunal case in 2013 for unfair dismissal and religious discrimination.

A report by two independent barristers, commissioned by the former Derby Teaching Hospitals FT at a cost of £200,000, found Ms James was fit and proper and an “exemplary” chief executive. It rejected the complaint and said Dr Drew was an unreliable witness and his claims were misguided and inaccurate.

Dr Drew complained to the PHSO about the way the CQC handled his complaint and concerns. The ombudsman’s report, published last week, concluded the CQC failed to follow its own processes and left Dr Drew open to criticism without the ability for him to defend himself before the trust report was published. 

The failings

While the PHSO concluded the CQC was right to suggest the Derby trust use barristers, and that its decision based on the subsequent report was not improper, it did find the CQC guilty of maladministration on a number of points.

These included:

  • Failing to pass on Dr Drew’s concerns to the Derby trust;
  • Failing to record or explain how it reached the decision that the trust complied with the fit and proper person regulations; and
  • Failing to respond to Dr Drew’s comments on the draft report despite saying it would do so.

The ombudsman report said it found the CQC failed to follow their procedures when handling Dr Drew’s concerns about the fit and proper person requirement. The “failings by the CQC” meant “the FPPR investigation likely took longer than it would have done and prolonged Dr Drew’s upset [and] caused Dr Drew to lack confidence in their consideration of the trust’s decision on FPPR”.

It said the CQC’s “failures in communicating” meant Dr Drew “lost the opportunity to explore in a timely way what action he could take to prevent the trust publishing negative comments about him”.

It is the second PHSO report to have criticised the CQC’s handling of the regulations governing the test, which were introduced in 2014 in response to the Mid Staffordshire care scandal.

What it means

Dr Drew told HSJ: “The report shows, in my opinion, a mix of incompetence and complacency but also a deliberate withholding of information which was to my disadvantage. The evidence I submitted to CQC in January 2015 was not sent to the trust. It was not available for the first (rejected) investigation. Even after the barristers commissioned to do the second investigation had been at work for some time they were not provided with my evidence.

“The most egregious wrong by CQC is that from the point of my initial critique of the draft report they continued to mislead me into thinking that they were addressing my complaint while internal emails and emails to the trust showed that they had no intention of doing so.”

The government is considering making changes to the way senior managers are regulated in the NHS following recommendations by Tom Kark QC who carried out a review for it. The review found managers should be given a set of competencies, and recommended a new body with the power to bar individuals.

CQC chief inspector of hospitals Ted Baker said: “We accept the PHSO’s findings and will be writing to Dr Drew to offer an apology for the distress caused and the loss of opportunity to comment on the trust’s report.

“We take the treatment of whistleblowers very seriously and are wholly committed to the speak up agenda. Since this case, CQC’s policy has already been updated with regards to passing on the totality of evidence we receive from third parties that express FPPR concerns to the providers involved.

“We will also be undertaking a further review of our communications with third parties on CQC’s role within the FPPR process to ensure they are clear about what they can expect when raising concerns with us.” It also supported Mr Kark’s recommendations, it said.