Exclusive: Whistleblower guardian criticises CQC over fit and proper person test

At the time, the CQC was “satisfied” that Southport and Ormskirk Hospital Trust had gone through the correct procedures for vetting directors. However, it admitted to the National Guardian’s Office that its inspectors do not have “guidelines” about what information they should ask for to allow the CQC to assure itself a trust has appropriately checked the fitness of its directors.

The NGO has told the regulator concerns raised by trust employees “should be considered” when assessing if a fit and proper person review has been satisfactorily carried out.

The NGO visited SOHT in August and September after it received information about “several instances” when the trust seemingly mishandled concerns raised by employees.

The watchdog found the trust had commissioned a review, at the request of the CQC, of its adherence to fit and proper person regulations after it received “repeated concerns” from employees about “alleged discriminatory behaviour” of it a trust director.

Although the final review found “no evidence” of discriminatory behaviour, the NGO said the “FPP review failed to adequately investigate” the initial concerns raised as “it did not interview any of the staff who had spoken up about the director”.

It continued: “This was despite the fact that for a director to be a fit and proper person under the regulations, one of the requirements their employer must show is that they have ‘not been responsible for… any serious misconduct or mismanagement’ – the very type of misconduct that staff who spoke up were alleging.”

The NGO approached the CQC to ask how it had assured itself SOHT was complying with the FPP regulation. Under CCQ’s regulation five, every trust must provide it with “satisfactory information” to show it has adequately met its FPP duties.

A senior CQC inspector said the regulator was “satisfied that the trust had gone through due process when completing its FPP review”. He added that the trust was one of the first cases considered by the FPP panel and the CQC “would now be seeking much greater levels of assurance in similar cases”.

Professor Ted Baker, chief inspector of hospitals at the CQC said: “We already expect providers to ensure that their FPPR reviews consider in detail the issues raised by those who have spoken up, and so we will ensure the National Guardian’s recommendation is reflected in the guidance that we intend to release early in the new year on this regulation”.

Although the FPP review was carried out in 2015, concerns about its validity only came to light when SOHT published a review of its culture in June.

Despite passing a copy to the NGO, the trust had not published any part of the review. It also delayed implementing recommendations “following legal advice it had received”. The trust could not provide a timeline for implementing them or when it would appoint an equality and diversity lead to supervise the work.

The NGO’s report into the trust said the culture review described “governance failures in responding to… fear, bullying and an overall culture in the trust that [was] found to be ‘elitist’, ‘insular’ and which was characterised by ‘nepotism’”.

These findings were in line with what the NGO uncovered during its three visits to the trust.

The report found:

• Trust employees “regarded most of the trust’s senior leaders as invisible and inaccessible”.
• A “longstanding culture where the trust did not respond appropriately to specific and serious concerns raised by its workers”.
• “Significant evidence of a bullying culture within the trust where staff were too afraid to speak up.”
• “Failure” of the trust to equality and diversity responsibilities, leaving BME staff not feeling able to raise concerns.

However, the NGO said the trust “was taking steps” to improve the speaking up culture and was “revising its speaking up policy”. It added that staff said “they could see that the interim chief executive’s leadership was beginning to make a difference”.

The guardian made 22 recommendations to the trust, which it expects to be implemented over the next 3-12 months. It also expects the trust to develop an action plan in the next four weeks on how it will address concerns. The NGO will “notify regulators” if the trust does not meet its plan.

A spokesman for NHS Improvement said: “We will be working with colleagues at the trust to support them to address the recommendations made by the report and implement any changes necessary.”

Karen Jackson, interim chief executive of SOHT, said: “Most of these concerns went back a good number of years. The trust now has a new senior management team in place.

“The learning from the review is a welcome and helpful addition to the robust action plan we have in place to ensure that speaking up is seen as a way to make improvements for our staff and for our patients.”

The NGO is carrying out a 12 month pilot of its case review programme, which began in June. The office has not confirmed how many case reviews it expects to complete in that time but the programme is designed to understand how a trust can improve its whistleblowing culture.