Allegations of CQC 'cover up' at Morecambe Bay NHS Foundation Trust

Posted by Malcolm Johnson on

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The Sunday Times carries a lead story alleging that the cabinet minister and former health secretary, Andrew Lansley threatened to sack a whistleblower who blew the whistle the lid on how the country's health regulator was failing patients.

The former board director of the Care Quality Commission, Kay Sheldon warned of regulatory failures at University Hospitals of Morecambe Bay NHS Foundation Trust, where up to 16 babies died. Ms. Sheldon also appeared as a whistleblower at the Mid Staffordshire public inquiry in 2011, where she said that the Care Quality Commission's approach was led by 'reputation management.'

So what exactly is the Care Quality Commission?

The Commission was created by the Health and Social Care Act 2008. Under this Act, the Care Quality Commission replaced the Commission for Healthcare Audit and Inspection, the Commission for Social Care Inspection and the Mental Health Act Commission.  The Care Quality Commission is now responsible for the registration, review and inspection of certain health and social care services in England, whilst the Welsh Assembly is its own registration and inspection authority. Chapter 2 of Part 1 of the 2008 Act created a system of registration for providers and, in some cases, managers of health and adult social care. The intention of the Act was that all providers, including, for the first time, NHS providers, would be brought within the ambit of registration. The new registration system replaced (in England) the current requirement for certain establishments and agencies providing independent health care or adult social care to be registered under the Care Standards Act 2000.

Returning to the issues at University Hospitals Morecambe Bay, the Care Quality Commission have now published on their website a report by Grant Thornton dated the 14th June 2013. Grant Thornton provide audit, assurance and risk services as well as accountancy services and they are, as a private organisation, entirely independent of the Commission.

Grant Thornton were  specifically asked to consider the independence of the decision taken by the Commission in May 2009 not to investigate a series of maternity deaths at University Hospitals Morecambe Bay which occurred in 2008 and an alleged “cover up” by certain member of CQC’s senior management.

Some of their key findings were:-

  • There were aspects of poor governance at the Care Quality Commission and 'questionable decision making' by the Regulator, but there were also concerns about the apparent failure of the hospital and other healthcare organisations to share information with the Commission. 
  • There was no evidence of any 'cover up' but there was evidence of an apparently deliberate suppression of an internal Commission report, which was commissioned by senior management. 
  • There may have been a 'dysfunctional relationship' between various stakeholders regarding information sharing, which also occurred at the Mid Staffordshire Foundation Trust. Apparently there was no obligation on University Hospitals Morecambe Bay to disclose critical information.

The Commission has also published its own response (dated the 20th June 2003) in the form of a letter to the Secretary of State.
What the Commission say in that letter is that they wanted the Grant Thornton report to be made public. However 'legal advice' raised certain risks if the report was not anonymised. Having reviewed the issues again, they have said that the overriding public interest in transparency and accountability gives them sufficient grounds to disclose the names of the individuals, both past and current employees of the Commission, who were either interviewed by Grant Thornton or who were referred to in the report. The Commission is also seeking advice on whether there is any appropriate action that might be taken in relation to the named individuals.

The current law on data and information protection is contained within the Data Protection Act 1998 and the Freedom of Information Act 2000. These statutes create all kinds of legal problems for public authorities where their own internal activities come under scrutiny. One cannot simply publish the workings of an enquiry, the identities  of individual participants or people who might be the subject of that enquiry without regard to these two crucial statutes. As is implied by its name, the Data Protection Act does just that it protects data on individuals from disclosure, whilst the Freedom of Information Act lists the kind of information held by public authorities that cannot be disclosed, rather than the other way round.  There is also the very real risk of being sued for libel, and this has happened where public authorities have 'outed' individuals named in public enquiries. At the same time, the Public Interest Disclosure Act 1998 protects individuals who make certain disclosures of information in the public interest and it allows such individuals to bring action in respect of victimisation and for connected purposes.

Very often this reluctance by a public authority to publish information can come across as a 'cover up' whereas in fact it is dictated by legal advice.

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Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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