Health Committee - 2012 accountability hearing with the Care Quality CommissionWritten evidence from Kay Sheldon (CQC 15)

Introduction

This document is provided for the Health Select Committee (HSC) accountability hearing of the Care Quality Commission (CQC) on 11 September 2012. This follows concern expressed by some HSC members about an article published in the Independent on 15 August 2012 which described some of the treatment I have been subjected to as a board member of CQC since I started to raise serious concerns about the organisation internally and then more widely including with the National Audit Office (NAO), the Department of Health (DH) and at the Mid Staffs Public Inquiry (PI).

I have been a CQC board member since 1 December 2008 having been invited to apply particularly on the strength of my achievements with the Mental Health Act Commission (MHAC) and Mind. I was a publicly appointed Mental Health Act Commissioner for 10 years and a member of the MHAC board for five years. My character reference for the position with CQC states “Kay is a person of very high moral integrity whom I trust” and “I have every confidence in her ability to serve others and to hold Public Office—which in fact she has already done very successfully”.

I was appointed to the CQC board specifically for my expertise of using health and social care services and in mental health as well as my extensive experience of high level boards and committees. I have specific roles on the CQC board in relation to the Mental Health Act, Equality and Human Rights and user involvement. I have experienced severe depression in the past. However, whilst the situation of the past year has understandably been very stressful, at no point have I been suffering from any form of depressive illness or psychotic symptomatology. Indeed I would argue that I have demonstrated a degree of strength and determination over the 14 months few could emulate.

Prior to raising serious concerns from last summer, I had received overwhelmingly positive feedback on my performance and commitment (which I can demonstrate) to the extent I was made an OBE in January 2011. My last appraisal states:

“Kay is a highly committed and thoughtful commissioner who adds a great deal especially with respect to the impact of our work on individuals who use services. Kay challenges appropriately at Board Meetings, always careful to be constructive and respectful of the position of those that she challenges. She commands a great deal of respect from all members of the board (Commissioners and Executive) because of her intellectual rigour and non-confrontational approach. Kay’s reflective approach means that she focuses on the strategic issues.

Kay is generous with her time and is trusted by the workforce and so learns a great deal about what is happening on the ground”.

I can clearly demonstrate how attitudes and behaviour towards me changed dramatically after I raised concerns more assertively which increased further after my appearance at the Public Inquiry. From last summer I have been subjected to a whole range of inappropriate behaviours and attitudes—my competence, integrity and health have all been brought into question. Additionally the fact that I have used mental health services in the past (which I am very open about and I have campaigned with Mind and others about stigma and discrimination) has also been used to undermine my credibility which I find particularly abhorrent. Initially this was expressed as “concern”, followed by questions about my robustness and then on to the “impact” on the organisation, staff and even patients and the public. Thus, over time I have become the focus, and even deemed the cause, of the very problems I felt compelled to speak up about.

My personal data has provided compelling evidence of the nature and degree of the victimisation and discrimination I have been subjected to. There are obvious gaps in the information and I have requested all deleted data from this time given the worrying nature of the information that has been supplied. This has been refused by CQC and inaccurate reasons (I consulted the Information Commissioner’s Office) were given for this. I have pointed this out and repeated the request. I am waiting to hear back from CQC.

My only motivation in raising these issues is with a view to establishing CQC as the strong and credible regulator that everyone wants. There is nothing for me to gain personally in doing so. As a publicly appointed board member it is my duty to ensure that the organisation conducts itself with probity and in the public interest. I have raised the issues (demonstrably) many times through the appropriate channels. I have been repeatedly (and demonstrably) stonewalled. In this context the only option left open to me is the media—hence the article in the Independent.

My experiences over the last year have brought me into contact with many whistle blowers. I have been stunned at the similarity and themes in these people’s stories. They are stories I would have found difficult to believe if I’d not had similar experiences myself. They are truly shocking.

Below is a timeline and overview of key events. I am able to evidence the points I make. I am concerned that producing this document may lead to another “sham” review but given the seriousness of the issues at stake, this is a risk that I have to continue to take.

Key Events

[N.B. I received some of my personal data from CQC on 28 July 2012 so some of the issues detailed below were not (fully) known to me until this point]

June—November 2011

As I was so concerned about the lack of strategic direction, numerous lapses in governance, continuing under-performance and the culture (particularly reports of bullying and oppressive behaviour) of the organisation, I was clear that I had to raise these concerns more assertively and that it was my duty to do so as a publicly appointed board member. I also made a number of constructive suggestions on ways forward. Unfortunately as the functioning of the board was problematic I was not able to secure an adequate or appropriate response from the chair or the rest of the board. I decided that I needed to put my concerns in writing to make sure that the issues I was raising were clearly communicated and that there was a record of this. Bizarrely this was subsequently presented as evidence of inappropriate behaviour!

September/October 2011

The NAO undertook a VFM review of CQC. I twice emailed Jill Finney (CQC deputy CEO) on 18 and 20 September 2011 for an appointment to meet the review team. She did not reply to either request.

29 September 2011

I left a board strategy board meeting slightly early as I was feeling unwell and also stressed by the situation. I had a viral infection (with a fever) and felt very hot with a headache. Members of staff were worried about me and this increased my distress as I dislike people worrying about me. When they insisted on calling a taxi to take me home to Norwich I agreed to this. I wrote to Jo Williams on 5.10.11 explaining the problems about the board and the organisation, why I had to raise these issues and why this was stressful. After my infection cleared I felt fine again (within a matter of days) and I emailed the board on 10.10.11 advising them I was fully recovered. My personal data contains a report of the events on 29 September which is exaggerated and distorted. The report has been re-written a number of times for different purposes.

Early October 2011

Jo Williams rang me up twice saying she wanted me to see CQC’s in-house occupational health officer. I didn’t think it was necessary but agreed nevertheless predominantly to provide reassurance for the organisation.

12 October 2011

I met with the occupational health officer just prior to going into the board meeting. She did not raise any concerns about my ability to undertake the role of board member which is confirmed in the report from this meeting. However Jo Williams continued to question my mental health continually referring back to the incident on 29 September. The more I said I was OK, the more she insisted I was ill. During this time neither my husband nor my GP expressed any concerns about my mental health. I continued in other roles with no problems whatsoever. A district judge (who I work with sitting on Tribunals) has offered to write a reference to support this and the fact that I am an “excellent” Tribunal member. I chaired a large conference on 15.11.11. I did not miss any work engagements due to ill-health and the only arena that my mental health was questioned was at senior level in CQC.

10 October 2011

I emailed Amyas Morse outlining my concerns about CQC stating that I may wish to raise these issues through the NAO’s whistle blowing remit and advising him that I’d asked to speak to the review team. I met with Mr. Morse on 7 November 2011 who was sympathetic and acknowledged the concerns but did not feel they came into the whistle blowing remit of the NAO.

13 October 2011

I asked to attend the Mid Staffs Public Inquiry seminar on Patient Experience. I was advised by Jill Finney that I could only attend as an observer as a member of staff was already going as a participant. My personal data shows no member of staff was planning to attend and after my request Jill Finney ordered a member of staff to go saying it was “not optional” ie I was deliberately prevented from attending as an active participant.

12 November 2011

I emailed Lord Kamlesh Patel (former chair of MHAC) describing the degree of problems I was facing—that serious issues were not being acknowledged or addressed, and the discriminatory attitudes and behaviour I was facing. I knew he was already concerned about the culture of CQC as he had been approached about this by numerous internal and external sources.

14 November 2011

As I was so concerned about the leadership, governance and culture of CQC and the impact on our core business of regulation, I decided to contact the Mid Staffs Public Inquiry (PI) as the issues I was concerned about seemed relevant. It was hugely stressful to effectively “blow the whistle” about colleagues and regarding an organisation I am fully committed to but I was clear that “doing nothing”, which included resigning, was no longer an option. Consequently I contacted them through the online enquiry form outlining the various issues and was subsequently invited to meet with the PI solicitors.

17 November 2011

I met with PI’s solicitors for 5 hours producing my statement and was subsequently called to give oral evidence (the hearings were re-opened for this) alongside a CQC inspector who coincidently had also contacted the PI with serious concerns from an operational perspective. I would have been subpoenaed to attend if needed. I was open with the PI about my past mental health difficulties and the fact that this was being used to undermine what I was saying. No concerns were expressed about my credibility or my motivations by the PI team.

28 November 2011

I gave oral evidence to the PI. The other three board members at the time, Deirdre Kelly, John Harwood and Martin Marshall, publicly refuted my evidence through a message on the CQC website (which is still in situ). Jo Williams wrote to the Secretary of State on this day asking for my removal, immediate suspension and that I was replaced as soon as possible.

November 2011

Messages were sent to CQC staff from Cynthia Bower and from Jo Williams undermining the evidence that whistle blowers gave at the PI.

7 December 2011

I met with the DH who advised me that a review would be undertaken by Gill Rider to quickly establish the facts around what had happened prior to me approaching the PI. I was told the review would report “in 10 working days”. I was asked not to attend board meetings until the review completed. I declined but attended with someone accompanying me as I knew a hostile environment was likely.

19 December 2011

I met with Gill Rider for less than an hour and subsequently sent some follow up information on 29.12.11. The interview with Rider mostly centred on the issue of bullying which I described in some detail and Rider indicated to me that she was looking to make some concrete recommendations around this issue and for me to be involved in this. This did not happen and I never heard from Rider again. Conversely Rider maintained contact with the chair and other board members until the report’s eventual publication over three months later. Therefore I did not hear anything again about the Rider review until I received the report and letter from the Secretary of State on 30.3.12 saying he was considering removing me from the board.

20 and 22 December 2011, 13 January, 29 February 2012

I wrote to the Department of Health expressing my concern that I had not had sufficient opportunity to describe and demonstrate my concerns (including to the Capability Review and Gill Rider review) and how I sought to raise them ahead of approaching the Public Inquiry. At no point have I been afforded this opportunity.

24 January 2012

Jo Williams wrote to me stating my evidence at the Inquiry was “not formal whistle blowing but a self-created opportunity to criticise decisions with which you do not personally agree”. This is completely untrue and she has not been able to identify which decisions I have not agreed with. Indeed one of the issues I was concerned about was that the board did not in fact make decisions as befits its role.

December 2011—present

I have been prevented from properly discharging my duties as a board member and from undertaking agreed or new special roles. Conversely all other board members have continued with or taken on specific roles. I attended board meetings between December 2011—March 2012 which was extremely difficult as a policy was adopted whereby many of my contributions were met with “I do not recognise that...[situation]” which effectively prevented me from undertaking my job in any meaningful way.

As an example at the board meeting in January 2012 I raised the fact that there were still major problems with the integration of our Mental Health Act functions (which was widely known). The relevant director, Philip King, simply said “I do not recognise that situation”. At the February 2012 board meeting I had to refrain from contributing to the discussion on the MH Act functions as it could have had a negative impact on decision-making simply because of the likely disagreement with whatever I said simply because it was me saying it. Subsequently, on 7 March 2012 I wrote to the chair explaining why I could not take part in the discussion and describing in detail my concerns at the behaviour and attitudes I was experiencing from the board and executive team. These were not taken seriously.

November 2011 onwards

My personal data shows that an extensive file was kept on me after I started to raise serious concerns. This file, which is “held” by the CQC director of governance and legal services, Louise Guss, provides profoundly shocking details of the degree of victimisation I have been subjected to. Every internal comment that I have made or has been made about me is detailed in this file. Additionally, the media/press team at CQC has been instructed to put my name under surveillance for “priority monitoring”. I am described as a risk to the organisation. The data shows that the chair raised significant questions about my health and integrity with the SoS and DH officials on a number of occasions. There is compelling evidence that there were ongoing concerted attempts to discredit and undermine me with a view to obtaining my removal from the board.

18 January 2012

I asked the Director of Operations, Amanda Sherlock, at the board meeting whether CQC would have picked up the issues at University Hospitals of Morecambe Bay NHS Foundation Trust (UHMBFT) earlier if we had been fully functional as it seemed that that the problems had been around for a considerable length of time. The response, which perturbed me greatly, was that we had been fully functional and that it had been a robust piece of work by CQC.

19 January 2012

Even though I was attending board meetings it was impossible to do the job properly as the behaviour and attitudes towards me were so problematic. Obviously it was a very stressful time. I felt I had to take steps to address the situation so that I could undertake my duties and to get some support. Although I was worried about possible adverse consequences (which have subsequently been proven as well-founded) I asked for an assessment under the Equality Act 2010. I specifically requested that the appointment of an appropriate person was undertaken collaboratively. It was my intention to identify with someone with knowledge of disability issues and the Equality Act eg from the voluntary sector. Unfortunately Jo Williams immediately referred me to Medigold, a private occupational health company, without my knowledge or consent.

30 January 2012

When I learned that an appointment had been made I spoke to the executive chair of Medigold, Dr. Mike Goldsmith, on the telephone for around 10 minutes saying there had been some crossed wires and that I didn’t need to see a doctor. We did not discuss any details about my health but he referred to the time in September when I left the board meeting early which worried me as someone had obviously discussed me with him. Dr. Goldsmith was very forceful but I politely declined. I did not think any more about this rather inappropriate conversation until I received my personal data:

Following this conversation, and on the same day, Dr. Goldsmith wrote a three page letter to Jo Williams. It includes the following statements:

“My clinical view, based on a 20 minute telephone call, is that this lady is suffering from a mental health problem, which is likely to be one of the conditions that involve paranoia. The most common of which is paranoid schizophrenia and certainly some of the things that were said to me in a completely normal voice and without any emotion would fit with paranoid thinking” and “She may well be in denial, but I suspect she is actually suffering from significant paranoia at present”. He also suggests that my past history is obtained “in confidence” and that “if necessary, obtained a psychiatric opinion on her”. He said he would be happy to speak to the Chief Medical Officer about me. He also states “I think it is really important that she is assessed or else removed from her position, because I think there are some serious issues here that need to be dealt with and not swept under the carpet”. [I can provide the entire letter if required]. There is also a separate email from Mike Goldsmith in my personal data in which he states he will be involved in my case “behind the scenes” which I find disturbing.

February—April 2012

A suitable person was identified through the voluntary organisation, Disability Rights (formerly RADAR) and an assessment under Equality Act took place. The resultant report, which was co-produced with me, identified some practical and straightforward measures to assist with my re-integration into the board and provide me with support particularly during the prevalent difficult circumstances. The recommendations included a PA, training for the board and facilitated sessions with the chair. The report was delivered to Jo Williams on 17.4.12 but the recommendations have yet to be agreed or implemented

23 February 2012

The DH Capability Review of CQC was published. The report confirmed a number of the issues I had raised internally and at the Public Inquiry. Cynthia Bower resigned on this day.

19 March 2012

I wrote to the CQC CEO and Director of Operations (with supporting evidence) outlining my concerns and asking some questions about how CQC responded at Morecambe Bay Hospitals as I had done some research and found some very concerning omissions and discrepancies. I did not receive a reply.

22 March 2012

I forwarded the communication about Morecambe Bay Hospitals to Una O’Brien and Richard Douglas at the DH. Una replied that it was a CQC “operational” issue. I responded saying I believed there could be issues of probity at stake. I did not receive a reply.

March 2012

Unison survey: as CQC refused to undertake a staff survey in 2011 and in response to concerns from their members at CQC, Unison conducted a staff survey of its members. The results, which were sent to board members by Unison, pointed to a demoralised, fearful and over worked staff group with reports of bullying and low confidence in senior managers. I wrote to the board reiterating my concerns about the culture of the organisation and the wellbeing of our staff. My personal data shows how the director of human resources dissuaded the chair from taking concerted action, including setting up an independent investigation (which I had requested), to identify and/or address the bullying and related cultural issues both after my appearance at the Public Inquiry and the publication of the Unison report.

30 March 2012

Public Accounts Committee report published which supported the issues I had raised about CQC including the fact that CQC has been “badly led and governed”. This was subsequently accepted as accurate by the official Treasury Minute.

30 March 2012

I received a copy of the Gill Rider report and letter from Secretary of State (SoS) saying he was considering removing me from the board based on the recommendation of Gill Rider’s report. The Rider report was partial, subjective and, it transpired, illegal. My decision to give whistle blowing evidence to the PI was described as the cause of the board’s dysfunction and ineffectiveness whereas these were the reasons I approached the PI ie the messenger was being shot. Furthermore my attempts to raise the issues internally, including in writing, was described as inappropriate behaviour. Put bluntly the report was a deliberate hatchet job.

At this point I sought legal representation. My lawyers made it very clear that the proposed action to remove me from the board was illegal, unlawful and in direct conflict with national policy on whistle blowing in the NHS. They also wrote to Robert Francis (RF) and Margaret Hodge (MH). RF pointed out that it was a criminal act to cause, or to seek to cause, detriment to a witness of a Public Inquiry. MH wrote to the SoS confirming that the concerns I’d raised had been viewed by the PAC as “substantially true” and expressing concern at my current situation.

24 July 2012

A Compromise Agreement (CA) was signed. I had made it clear that I did not want any money (although I agreed to the DH paying my legal fees as I’m in receipt of Tax Credits) and my lawyers—successfully—requested the removal of a gagging clause. In the CA the SoS agreed not to remove me from the board and I agreed not to pursue legal action against the SoS, DH officials and Gill Rider in respective of: an application for judicial review; a claim under the Human Rights Act 1998; a Claim under the Equality Act (sex, race, disability, religion or belief discrimination or victimisation) or a claim under sections 47B, 48(1A) of the Employment Rights Act 1996 (protected disclosure). I also requested some form of mediation process to facilitate my re-integration on the CQC board which was agreed.

25 July 2012

The SoS wrote to Jo Williams stating that “I expect Kay Sheldon to continue to operate as a fully engaged and active member of the board”.

April/May 2012

Following the letter from the SoS and the Rider report on 30.3.12 I did not feel able to attend board meetings. However I did request of Jo Williams a discussion with her about the emergent organisational strategy given the lack of this had been one of my major concerns about the organisation. However she did not arrange anything and therefore I have been excluded from this important piece of work which is very distressing to me as I am very keen to play an active part in the future of CQC.

26 June 2012 (then re-issued on 12 July 2012)

Monitor published an internal audit report it had commissioned on its responses to University Hospitals Morecambe Bay NHS Trust (UHMBT). The report contains some very serious questions about the performance and conduct of CQC. It is of note that the CQC board was not told of this report—I alerted them to it.

July 2012 onwards

I have seen clear evidence that CQC was fully aware of the nature and extent of the problems as UHMBT in 2010 and 2011 when the Trust was registered and subsequently reviewed by CQC and judged to be compliant with Essential Standards. This is both important and very concerning as CQC has publicly indicated that it would have acted differently had it known of the problems at the time. The blame was put on the Trust for failing to disclose a report it had commissioned on its maternity services (the Fielding Report) but it is clear that CQC was aware that this review had been undertaken and was fully aware of the problems which were described in detail (which I have seen) by the CQC regional director at the time in December 2009.

Thus as late at December 2009, there is evidence of serious and systemic concerns at UHMBT. Yet the Trust is registered by CQC as fully compliant with Essential Standards on 1 April 2010—just three months later—which is reinforced in July 2010 following a CQC review of maternity services. The Trust was granted foundation trust status on 1 October 2010. A letter to Monitor from CQC dated 16.4.10 states: “I therefore confirm that the trust is registered without compliance conditions, we are not investigating UHMBT and no investigation by the CQC is planned”. The letter refers to a “minor concern” around staffing.

It is of note that during this period, 2009–11, there was an increase in mortality rates and SUIs at UHMBT. A recent FOI request has shown that in the period 200912 the number of incidents/claims doubled: 40 (2009); 60 (2010) and 93 (2011). The number of civil claims against the maternity services between 200912 is, to date, 33 (with 15 of these in 2011).

I have also seen evidence of a conversation between Ann Abrahams, the Ombudsman, and Cynthia Bower that took place in September 2009 (described in a file note to Ann Abrahams from the deputy Ombudsman): “In your conversation with Cynthia Bower shortly before your leave, the suggestion arose that if we could assure Mr and Mrs T that as a result of their experiences CQC are now taking robust action to ensure improvements in the quality of maternity services in the Trust, you might decide not to investigate”. The Ombudsman subsequently decided not to investigate on this basis.

It wasn’t until late 2011/early 2012 when the extent of the problems re-surfaced that CQC suddenly decided to launch an investigation.

The issues relating to Morecambe Bay have gone beyond capability. There are serious questions about probity to be answered. There has been a steadfast refusal by both CQC and the DH to answer questions. However it is crucial that this happens as we are talking about serious human suffering, including life and death situations. This is important for those affected but also for the future in ensuring the “whole system” is fit for purpose in preventing further horrific scandals.

One of the reasons I decided to approach the PI was my concern at the proposed change to CQC’s regulatory approach. It was clear that the development work behind the proposals was superficial and weak. The proposals were developed quickly, reactively and without adequate consideration of the impacts and effectiveness (I sought further information to this effect). Additionally the consultation for the changes was wholly inadequate not least because the proposals were already being implemented.

I also looked at the Barking Havering and Redbridge case and found a worryingly similar scenario. This Trust was registered with 8 conditions. Within a few months 7 of these were lifted. Later, when the extent of the problems re-surfaced, CQC launched an investigation. However in the interim the Trust had worryingly high mortality and Serious Untoward Incident rates. There are other examples such as United Lincolnshire, Hull and East Yorkshire and Basildon and Thurrock hospital trusts.

I recall conversations in 200910 about “nervousness” that there may be another Mid Staffs lurking around and that this had to be avoided at all costs. However the emphasis was on minimising concerns rather than seeking to identify and tackle them. I had a sense that this was, at least in part, directed by the DH but I am clear that decisions taken by the CQC executive during this period (2010–11) were not informed by patient safety and the quality of care.

People should be able to trust the regulator to act in the public interest. CQC has been too influenced by political drivers and the need to salvage reputations rather than the quality and safety of health and social care services. This continues to the present day with a media and communication strategy aimed at communicating “messages” of tough action ahead of (potentially) events including the HSC and the Mid Staffs Public Inquiry report. The board and the executive team of the organisation have indulged in and sustained conduct over a lengthy period of time that is not commensurate with that expected of senior office holders and officers of a national public body. This conduct entails both omissions and deliberate actions, and as such, must raise serious questions about the trust the public can reasonably have in these individuals.

November 2011—present day

Throughout I have sought to raise these serious issues reasonably and appropriately through the appropriate channels. I have been repeatedly stonewalled by both CQC and the DH. I have written to Jo Williams and the DH on several occasions about how I am being treated (which perhaps could be seen as akin to a grievance) but to no avail. In fact the DH has studiously avoided communicating with me in any meaningful way and has not provided any response of substance to the issues I have raised, either about CQC or concerning my treatment. There have been numerous and ongoing attempts to “shoot the messenger”, not least in the recently published CQC Annual Report which states that the effectiveness of the board has been compromised by a board member giving evidence at the Public Inquiry. Of course the reason I approached the PI was because the board was ineffective…

The Future

Whilst there are some very serious issues outlined above, it is also important to think of the future. I am in no doubt that patients and the public need CQC to protect and promote their interests through ensuring the quality and safety of health and social care services. It is clear that stakeholders also believe this and there is a strong desire for CQC to be successful. The organisation has been badly led and governed which is beyond dispute. I believe that with strong and appropriate leadership CQC can become an effective high-performing organisation. There are many skilled and committed people working for CQC. It is also the case that many skilled and committed individuals have left and it has been difficult to attract people with the level of expertise that the predecessor organisations enjoyed. The new CEO, David Behan, is well respected and his appointment has been widely welcomed internally and externally. I have pledged my support to David. I believe he has the capability and credibility to take the organisation forward in a robust and sustainable way. I very much hope to support him in this.

August 2012

Prepared 8th January 2013