UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 526-i

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Health Committee

Care Quality Commission

Wednesday 3 July 2013

David Prior, David Behan and Sterl Greenhalgh

Evidence heard in Public Questions 1 - 122

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Oral Evidence

Taken before the Health Committee

on Wednesday 3 July 2013

Members present:

Mr Stephen Dorrell (Chair)

Andrew George

Barbara Keeley

Charlotte Leslie

Grahame M. Morris

________________

Examination of Witnesses

Witnesses: David Prior, Chair, and David Behan, Chief Executive, Care Quality Commission, and Sterl Greenhalgh, Partner, Grant Thornton, gave evidence.

Q1 Chair: Gentlemen, welcome to the Committee. Thank you for coming. Both Mr Prior and Mr Behan are well known to the Committee already, so I will not ask you to introduce yourselves. Perhaps, Mr Greenhalgh, you could introduce yourself briefly to the Committee.

Sterl Greenhalgh: I am very happy to. I am Sterl Greenhalgh. I am a partner in Grant Thornton’s forensic and investigation services team.

Q2 Chair: Thank you very much and thank you for coming. I would like to open the questioning, if I may, with some relatively brief questions about process.

The first question concerns the decision to publish the Grant Thornton report in redacted form. I imagine that both Mr Prior and Mr Behan would now simply acknowledge that that was a mistake.

David Prior: I would happily acknowledge that it was a mistake and I really bitterly regret that mistake.

Chair: I do not know whether any other member of the Committee wants to follow up on that point.

Q3 Barbara Keeley: I do not know if you can say any more about it, but, following all the issues that we had here with expenses, it is quite clear that the public will not tolerate redacted names in a report. The other side of things is that we as MPs find the Data Protection Act cited against us again and again as reasons why we cannot be given information. I would have thought that people at your level in public life understood those things. The furore was not surprising at all. Clearly, every instance of something like that does great damage. I think the situation that you are in at the CQC and the reason you are here today is because of that.

David Prior: I would repeat that I got that call completely wrong. The presumption in the CQC now is that we will always publish unless there is an overpowering reason why we should not. So I accept the criticism.

Q4 Barbara Keeley: But it does seem from the reports and the evidence that was put forward to us that there is a suggestion that, as a result of legal advice at a high level that you were given in the CQC, one of your staff was using this. For the future, it just is not appropriate. I am not a lawyer, but the Data Protection Act is not meant to cover up the actions of the staff of a public body. It is not meant in that way at all. It was never good advice, but, at your level, you should be able to check that advice and not take those suggestions. To a certain extent it seems like both organisations-Grant Thornton too-might have been cowed by that advice, and it really is not appropriate.

Sterl Greenhalgh: Can I say that that is not the position of Grant Thornton? We took our own separate legal advice, which we shared with the CQC, which outlined the risks of publishing those names.

David Prior: There was a risk, but I accept your point that we got it wrong and it is no good hiding behind legal advice. It was our decision. We should have put the names out straight away and we did not.

David Behan: Chair, to confirm that, I accept that I got it wrong. I was the executive dealing with this. We did consider this. We had representations made to us about the risks of publishing it. I made a decision. I clearly got that wrong. When we were challenged on this, we agreed that we would review it, and the following day we put that right and published the names. But I do accept my role in this in weighing the evidence and considering the evidence in light of the representations. I made that call and I got it wrong. If you have got something wrong, you have to put it right, and that is what we did the following day by publishing the names.

Q5 Charlotte Leslie: Thank you very much and thank you for coming along. Can I ask a little more about who you received representations from? You have said that Grant Thornton provided its own independent legal advice. Can I ask the two Davids-if I may call you that without sounding too familiar-who else you received representations from? Did you receive representations from your own legal team? Who were the representations from that advised you to withhold the names?

Chair: Do you mean representations or advice?

Charlotte Leslie: Both representations and advice. You mentioned "representations," David, and I am wondering who those representations were from.

David Behan: What I meant, Chair, is that when the Maxwellisation process was taking place-when Grant Thornton were actually coming to conclude the comments on individuals and they were put to those individuals and individuals then made representations back-that was part of the process. So when I used the word "representations," representations would come in from either past members of staff or current members of staff at the time challenging the decision around both process and the publication of the names.

Q6 Charlotte Leslie: Just to get this clear, you received representations from those individuals named saying, "Please do not name us," which you took into account. You received representations from past members of the CQC-people who were no longer there. Will the Data Protection Act prevent you from saying who those members were?

David Behan: There were 12 names mentioned, I understand, in different ways in the Maxwellisation process and we had received 10 sets of representations back from those individuals. They were current and previous members of staff. Grant Thornton, as managers of the process, managed that process. Some of those were copied into the CQC-some but not all-so they were the representations. It was on that point that we took advice. I took some advice from the internal legal service in the CQC, but we also took advice from an external legal organisation.

Q7 Charlotte Leslie: May I ask who they were?

David Behan: The firm that we consulted was Bevan Brittan. Coming back to the earlier questions, Chair, the advice set out the risks of publishing. It did say these were balanced judgments. The decision in relation to anonymisation is one that sits at my door. I have already accepted that I got that wrong.

Q8 Charlotte Leslie: Have you received any representations or advice from any former employees or members of the CQC who were not named in that document-from a former chief executive, for example, or anyone like that?

David Prior: She was named in the document there, but, yes, we did. She was named in the document, yes. Cynthia Bower was the chief executive.

Q9 Charlotte Leslie: She made representations to you.

David Prior: Did she send a letter?

David Behan: Yes, there were letters.

David Prior: Yes, and Jill Finney, who was the deputy chief executive, also sent a letter.

Q10 Charlotte Leslie: Did you receive representations from anyone outside the CQC?

David Behan: The only people who were mentioned in the report-the anonymisation issue-focused on CQC members of staff, so, no, nobody else made representations.

Sterl Greenhalgh: The only thing I would add is that we received communication from James Titcombe, who is outside the CQC and was also referenced in the report.

Q11 Charlotte Leslie: But there was no one else who was not named in the report-no representations at all.

Sterl Greenhalgh: Not to my recollection.

David Prior: Is there someone you have in mind?

Charlotte Leslie: No.

Q12 Chair: Okay. Can we move on? I have a second question on process. It concerns the internal board process that we discussed with you, Mr Prior, when you came to a pre-confirmation hearing. The Secretary of State told us yesterday that he had reappointed Kay Sheldon to the board of the CQC-something that the Committee welcomes. But I guess one of the learning experiences of the recent history of the CQC is that, within the board, there was inadequate process for dealing with Kay Sheldon’s concerns about the operations of the CQC, and the actions in particular of your predecessor as chair and David Behan’s predecessor as chief executive. One of the recommendations we made following the pre-confirmation hearing was that, as an incoming chair, you needed to ensure that there was board process to deal with that if it happened again in the future. Is that now in place?

David Prior: It is now in place. We have appointed five new nonexecutive directors. I have appointed Michael Mire, who is one of those, to be a senior independent director. He has had 30 years of being a senior partner and director of McKinsey, with a lot of corporate governance experience. He is a senior independent director. I have asked him to establish a committee of the board that comprises himself, Paul Corrigan, Camilla Cavendish, Kay Sheldon and Anna Bradley, who is from Healthwatch and on our board, all of whom have a very strong commitment to transparency and openness. That committee will advise the board both on, if you like, transparency issues and publication issues, but also on whistleblower issues. So anyone in the CQC who feels they are being lent on by anybody internally or externally when it comes to producing an inspection report or something of that kind, if they feel they cannot raise those issues with David or myself or their managers, will be able to take it directly to that independent board committee.

Q13 Grahame M. Morris: Could I follow up on that in relation to why Grant Thornton was selected by the CQC? I understand you have specialist expertise in terms of forensic investigation, but essentially that is to do with fraud, isn’t it? What particular skills are being brought to bear by Grant Thornton that caused the CQC to select them rather than someone who is an academic expert on health policy or people who were otherwise qualified to look into investigations of this nature?

Sterl Greenhalgh: I am happy to answer that.

Q14 Grahame M. Morris: I would rather ask the CQC, if you don’t mind.

David Behan: If I may, Chair, I started at the CQC last July. Within the first few days it was clear that there was a complaint by a board member, Kay Sheldon, that the approach to regulation in the CQC was one that she had got questions and reservations about and also that she was concerned that there had been a coverup in relation to the CQC’s oversight and regulation of University Hospitals of Morecambe Bay. I could not start as the new chief executive and accounting officer with such an allegation outstanding. I could not choose to ignore it. Therefore, I took the decision that there needed to be an independent review. I did speak to the then chair, Jo Williams, in relation to that.

There was then a tender process run. An invitation to tender notice was issued in the way that the CQC deals with those tenders. A panel met and selected the candidates from those that applied. That decision was Grant Thornton. They were asked to carry out an independent and rigorous review of the issues around regulation and ascertain whether there was a basis for a coverup.

At that time, Chair, we thought that that job would be done quickly within a sixweek period and that we could move on in terms of either establishing the concerns that Kay was raising or otherwise. But, in short, there was an invitation to tender notice issued and a selection process in accordance with the processes that we run in the CQC, and that is why Grant Thornton were selected. They were selected because of their background as a reputable firm with a background and experience of doing investigations. That was the decision.

Q15 Grahame M. Morris: I am intrigued. I understand the background and the interest of the CQC in establishing regulation and governance and investigating that, but, in terms of the expertise of Grant Thornton in this specialist field, could you explain that, Mr Greenhalgh?

Sterl Greenhalgh: I would be very happy to. It is quite interesting because throughout the course of this particular case, since it entered the media arena, we have been referred to as "bean counters," which I take as being slightly pejorative, or as accountants who have "run their fingers over the book." But very many professional services firms are highly expert in doing these kinds of reviews. It is simply not unusual. "Forensic" in and of itself means assisting a court, or perhaps a forum of this kind and nature. In essence, what it involves is a deep dive into all the circumstances in terms of fact finding about what has gone on and conducting a rootcause analysis in order to derive lessons learned to bring back to the organisation to help it improve going forward. We are involved in any number of such reviews for regulators. It is in the public domain at the moment that Grant Thornton are assisting the former FSA in understanding what role management, governance and culture played in the downfall of HBOS. So we have an awfully long track record of undertaking these kinds of reviews.

Q16 Grahame M. Morris: I understand that, Mr Greenhalgh, in terms of the financial services industry, but what specific expertise do you have in relation to the provision of healthcare services and managing and overseeing the governance and regulations of health care generally?

Sterl Greenhalgh: It is much broader than financial services. For example, over the last five years I have been involved with our internal audit team in assisting the Department of Health. Prior to that, I had been involved in other healthcare cases-for instance, the failed callback of patients who were undergoing breast cancer treatment. There is forensic work there. We make it very clear in the report that we are not clinicians; we are investigators adept at finding facts particularly in the area and the failure of governance, which goes, in many respects, to operational procedures. So here, as our report draws out, the key findings are related to processes, lack of skilled resources to do work and lack of documentation as to what happened when those inspectors visited hospitals. Those are the kinds of areas in which we are adept at finding the facts in order, as I say, that the organisation can learn from what happened.

Q17 Grahame M. Morris: But in carrying out an investigation into failures in an individual provider, do Grant Thornton have any experience or background in that specific area?

Sterl Greenhalgh: As a firm, we do, but that is not my or my team’s experience. But just so you all know, we set up internally among our team a specialist panel that we were able to go to if we felt it necessary to seek the kind of advice that you are referring to.

David Behan: The purpose of the review was not to look at failures within a provider. The purpose of the review was to look at what the CQC did and did not do-not what Morecambe Bay did and did not do.

Grahame M. Morris: With due respect, Mr Behan, I understand that, but I was wondering why Grant Thornton were selected, with them having a reputation as forensic accountants with particular expertise in policy and financial services. Perhaps if it had been an organisation that had experience in individual failure provider, I could understand that choice, but I understand they are looking at failures within the CQC not to act and not to exercise proper governance. I am just trying to understand why Grant Thornton was selected in this particular case.

Q18 Chair: Focusing on that question specifically, why was it that your panel within the CQC preferred the Grant Thornton bid over their competitors’ bids? It is, on the face of it, counter-intuitive that one of the takeaways from the Grant Thornton report, ironically, is that the CQC needs to be more specialist in its inspection function. What was it, against that background, that led you to prefer Grant Thornton?

David Behan: The panel’s judgment was that the bid put forward by Grant Thornton was the most detailed and specific in how they would go about undertaking the review. So the decision by the panel was made on that basis.

Q19 Chair: Are you at liberty to tell us who their competitors were in the process?

David Behan: The report I have seen of the outcome of the panel had Grant Thornton and PricewaterhouseCoopers.

Q20 Chair: So there were two.

David Behan: There were two. I think there were more invitations, but they were the ones that were shortlisted.

Q21 Charlotte Leslie: I might come back to this later on, but I understand that Grant Thornton only had access to emails, in doing this investigation, going back a year due to a technical glitch. Sterl, if I may ask you, is that correct?

Sterl Greenhalgh: It is not quite correct, no. As you might imagine, in undertaking our work, we, as most professional services firms do, place great reliance upon emails, because very often they are the best contemporaneous evidence of what was taking place at that particular time. So we did request emails going all the way back to cover the period of our review, which covered the period from autumn 2008 onwards. The reply from the CQC with regard to IT, if I might quote from an email because it might help the Committee, was the fact that "exchange monthend backup tapes"-which are where emails are taken off the live server and put on an archive system of a backup tape-"are retained for 12 months, so we will not be able to provide tapes right back to 2010." That surprised us, but I can only rely upon what the head of IT advised us in October 2012.

When we started the investigation and looked at the actual UHMB file in the regional office in Preston, there were quite a lot of emails that had been printed off the system and put into the UHMB file. So it was not a situation where we had no emails whatsoever. In fact, we had quite a considerable body of emails covering that period. While not ideal-and I understand that since then the information we were provided with by the head of IT is inaccurate-we do not necessarily take the view that it adversely affected our investigation, although that is not to say there may well not have been emails within that body that would have assisted it.

Q22 Charlotte Leslie: I am sorry if I am being slow, but could you expand on what you mean when you say the information you were provided with by the head of IT was "inaccurate"?

Sterl Greenhalgh: Inaccurate.

Q23 Charlotte Leslie: Yes. I am sorry if I am being slow. Can you expand on that?

Sterl Greenhalgh: I understand that it is the case that the CQC retain archived emails for up to a period of, I believe, six years. What happens is that you as the custodian-i.e. it is your email record-have to actively annotate which emails you want archived or else the rest of them are deleted as part of that backup procedure.

Q24 Charlotte Leslie: Was the information you received in your first email from the CQC inaccurate?

Sterl Greenhalgh: We would say it was inaccurate based on what we have been subsequently advised.

Q25 Charlotte Leslie: In the investigations that you have done-and I know Grant Thornton do a lot of these-is that an unusual situation? How many public sector bodies have you worked with who say they can only get their emails back to a year, but then subsequently find they have a sixyear record?

Sterl Greenhalgh: You might not be surprised to hear that I have not heard that before, I must say.

Q26 Charlotte Leslie: So the CQC’s assertion that they only have emails back to a year is fairly unique in your experience.

Sterl Greenhalgh: I would say so, yes.

Charlotte Leslie: Thank you.

David Behan: If I may help, emails are kept in three different forms. As Sterl Greenhalgh has said, emails are stored in a backup. That backup is archived each month and kept for a year. The second way emails are kept is as part of a record, and where emails are part of a record-and that record might be UHMB or another organisation that is being inspected that we are working with-then our records management policy is that that information is kept for between three and seven years. The third way that emails might be kept is in people’s Outlook accounts-in their inbox in fact. The limit on how long they will be kept is about the size of the memory of those inboxes.

I also asked the question as to how usual or unusual it is for emails to be kept for a year, and I understand there are other public sector organisations that will keep them for a year. I draw a distinction, though, between keeping emails and keeping the record of the activity that we are undertaking. This is something that we will look at as a consequence of receiving this report. But that is the policy. As a result of the questions that have been raised subsequently, they are the answers that we have been giving, and, as I say, we will look at that again to check.

The other thing, just to advise the Committee, is that we have stopped deleting those monthly reports pending any criminal consideration that might occur as a result of any of this work. We have put a stop on deleting monthly emails at the present time.

Q27 Charlotte Leslie: Do you think your system was satisfactory?

David Behan: If I am being brutally honest, I have not focused on the system since I came into the job. I have been focused on other things. I am saying that we will look at that and test the robustness and resilience of that system and how comparative it is with other public sector organisations. The key issue here is that the records that we keep include those emails and keep that email trail.

Q28 Charlotte Leslie: For reference, do you think that the records you have been able to provide for a rather important report have been satisfactory, given that we are entering an era, hopefully, of transparency?

David Behan: This is the challenge. Your question is absolutely right, but, to be honest, I do not know. I have not been through all those records. One of the things that we need to do as a consequence of this is make sure that our record keeping is robust and resilient, is consistent with our policies, and that, as you said, in the interests of transparency if we are called to account for any of those records, those records are there and are available.

Q29 Charlotte Leslie: I have one final and rather difficult question and then I will be quiet. Sterl, I am going to ask you a difficult question. Do you think that the CQC’s record keeping that you were able to access was adequate?

Sterl Greenhalgh: It is clearly not ideal, but I would say that, in terms of the information we were able to collate and review, we considered that that was sufficient in order for us to produce our report; otherwise, as you might reasonably expect, we would probably have said that we were unable to report because of the absence of certain key information.

Charlotte Leslie: Thank you.

Q30 Chair: The position of the CQC is that this is a matter under review, and you will no doubt be able to tell us what your revised view is about keeping a proper audit trail when you come back for an accountability hearing in the autumn.

David Behan: It is, Chairman.

Q31 Barbara Keeley: I have further questions about the interaction between the CQC and the ombudsman. There seemed to be an important meeting at very senior levels between the CQC and the ombudsman that was not minuted in any form. Also, you appear to have done an interview with the previous chief executive, who, in that interview, hardly recalled anything that had happened at that meeting or around it. While we are looking at record keeping-entirely that-that seemed to me to be astonishing. I think most of us here feel that, if somebody at that level has no recall whatsoever of an important matter that you are looking into, it is rather dubious, isn’t it? It also seems astonishing to me that a meeting between the two organisations could be held at such a high level and no record or no meeting minutes be kept. Is my view on that one that Grant Thornton could share? Were you surprised at that?

Sterl Greenhalgh: Yes, we were, of course. We would certainly say that keeping such a minute would equate to best practice.

Q32 Barbara Keeley: The other point, while we are on record keeping, is to David Behan. You said that, understandably, people’s individual emails are kept for a year and that is a backup situation, but you keep a record of organisations being inspected for between three and seven years. Are there records that Grant Thornton were not given? It seems you were told there were only emails for a year. Are there records kept on an organisational basis that were not given to Grant Thornton?

David Behan: To the best of my knowledge, Chair, no, there are no records. We gave open access to Grant Thornton to those records.

Q33 Barbara Keeley: You say that, but they seem to have been given paper copies of the historical emails only. You have also said that, as an organisation, you keep records in a different way about organisations being inspected. There was very intense interest about the inspection activity at Morecambe Bay. There is a conflict here, isn’t there? You only have some paper copies of historical emails. So where are the records of the organisation being inspected kept going back three to seven years? It is important that this was the 20082009 period, wasn’t it?

David Behan: Yes. A lot of the records will be kept electronically, Chair, not just as paper records. Inspectors locally would use paper records that they can take with them if they are not able to access electronic records.

Q34 Barbara Keeley: Yes, that is understandable.

David Behan: The issue is about duplication of records-a paper record and an electronic record. I am not aware of any records that were not made available to Grant Thornton. They were given access to what they asked for as part of the process as they went through. Of course, as they did their investigation and different information came to light, there were different requests made about accessing that information. To the best of my understanding, all of the information that they requested was made available to them. I am not aware of anything being kept back from them. As I say, our interest in this was to be open and transparent. The whole purpose of commissioning this review, given the complaints that were made, was to deal with this in an open and transparent way and make sure that we could have a judgment on what had been going on so that we could begin to move forward and get on with the job of transforming the CQC to do the job it has been set up to do.

Q35 Barbara Keeley: I understand that. As a final point, are you reviewing the policy about having highlevel meetings between organisations that are not minuted?

David Behan: Yes. This is a powerful reminder of the importance of ensuring that all conversations that are formal between the CQC are minuted or a record is maintained of that meeting and its outcome.

Chair: Andrew George, can you move this on?

Q36 Andrew George: If we look at the Grant Thornton report as a whole, Mr Prior and Mr Behan, what do you see as the primary or the most significant conclusions from which the CQC should learn lessons in going forward?

David Prior: Can I answer that? It is hard to know where to start, to be honest with you, because this report is a damning indictment of the CQC. When I became chairman I had read the Select Committee’s views on the CQC, and, if anything, you were too kind to us, I would say. It is a damning indictment. It outlines incompetence, complacency and dysfunction. It shows a culture of suppression and oppression, and it describes a methodology that failed at registration, at inspection and at the surveillance level as well. At that level, it described an organisation that was not fit for purpose, I think. There is no doubt about that.

It also revealed very strong evidence-and we have asked to see all the evidence from Grant Thornton: all the transcripts that they took-of a coverup of a document. A meeting took place, a paper was produced about addressing some very serious issues about Morecambe Bay, and then that paper disappeared. It did not come to the board, it did not go to Monitor, and it did not go to any other internal committee within the CQC. That is very strong evidence, to me, of suppression.

There is also evidence in the report of an attempt to delete that document, and there was a contemporaneous note taken, which was then confirmed by a subsequent conversation with a manager within the CQC.

All I can say at the moment is that there is strong evidence. We need to consider that evidence, to see the transcripts that Grant Thornton had and any other evidence that is available, and listen to what other people have to say. On the face of it, it looks like very strong evidence to me.

You asked me about our view of that report. We take their general comments about the CQC; we take the criticisms, and we hope we will get a chance to explain how we are moving forward from where we are today maybe later in the meeting. But I suppose, in a sense, almost the last straw, frankly, was this strong evidence of a coverup at a very senior level.

Q37 Andrew George: One thread that runs through both the report and your response to that question is the query about motivation. What was the motivation behind any decision on the part of any executive within the CQC to allegedly cover up or to mask anything? Can you surmise what those motivations might be? Was the culture about the clubability of executives working across the health community or were there other untoward motivations? What I do not quite understand-the missing link to me-is what would motivate someone who was employed to scrutinise and to uphold standards to protect patients to put that at risk in the manner in which it seems, on this occasion, it was done as a result of the masking of a very important report?

David Prior: Grant Thornton examined motivation and the motives quite carefully. To summarise their views-and you may wish to add to this, Sterl-the CQC was more interested in protecting its own reputation than it was putting out the truth. Of course, the paradox of this is that, had they published this document or taken it to the board, people would have thought, "They are being honest about themselves," and their reputation would have benefited from that honesty. The act of covering up, as so often is the case in these situations, does far more damage than that underlying document. The underlying document was not a bad document. You can pick holes in it, but it dealt with some really big issues that we ought to have known about. Certainly, if we are to improve on where we have been in the past, we have to learn from our mistakes. If this is what happened, to deliberately bury what on the face of it is a very helpful document is madness.

Q38 Andrew George: If you are to learn lessons from this, you need to get the dynamics right. If the dynamics create a situation where, having dug a small hole for yourself, you are then motivated to-

David Prior: -dig a bigger one.

Andrew George: Yes. If you dig a bigger hole in order to cover something up, are you sure that, going forward, having learned those lessons, you can make sure that the dynamics are right-that there will be sufficient transparency on issues? If you need to come to conclusions that are critical of some of the services that you inspect, can you be sure there will be no pulling back and no backsliding from that process? I do not quite understand why it is that the CQC would want to do anything other than go ahead and publish information and to come to conclusions where those conclusions need to be critical of services.

David Prior: There speaks the voice of reason, frankly. It is hard to disagree.

Q39 Andrew George: Are you content that, having learned the lessons from this, you will have the procedures in place to ensure that that will continue to be the case?

David Prior: Culture goes beyond procedures in a sense, doesn’t it? You can put all the procedures in place, but, if the culture is a defensive, secret culture, the procedures probably are not going to help very much. Since David became chief executive last July, the culture has started to change. The culture is now much healthier than it was. I will cite one example of that and we will come to this later on in more detail, I am sure.

In September-we can give a commitment to this Committee-we will publish a list of all the hospitals that we are concerned about and why we are concerned about them. It seems to me that that is what we are here to do. We have never done it before. We will be a much more open and transparent organisation going forward than we have been in the past.

Andrew George: Can I make one recommendation?

Q40 Chair: Before you move on, there is a counter-argument that has been put to the committee by Anna Jefferson, who writes in these terms, "…the ‘Dineley Report’ blamed the trust’s"-not the CQC’s-"‘secretive culture’, rather than examining CQC’s own regulatory failures, and concluded that CQC would take the same regulatory action again. I thought this sounded at best deeply complacent and at worst like a whitewash-it failed to address serious issues about whether CQC could have acted more swiftly and effectively to protect its patients. The weakness of this internal scrutiny led me to propose an independent review."

That is a completely different view of what happened to the Dineley report. We need to understand better how the two versions can be reconciled, if they can.

David Prior: If they can. We need to see all the transcripts of the interviews that Grant Thornton did to help us come to that view. The advice has been that we should gather together all the evidence and come to a view. All I can say is that, on the face of the report that Grant Thornton did, there is strong prima facie evidence that that report disappeared, and, having read the report-

Q41 Chair: It goes to the kernel of the matter, doesn’t it? Perhaps it is a question more for Grant Thornton than the CQC, because Grant Thornton reached a qualified conclusion about a "delete" instruction, which is hotly contested. I wonder if Mr Greenhalgh can explain to us the basis on which they reached their qualified conclusion.

Sterl Greenhalgh: I am happy to assist you. Can I pick up on the comment you made about Anna Jefferson and the statement with regard to having instituted an external review? It is my recollection-you will correct me where I go wrong-that that was made in July 2012, I believe.

Q42 Chair: I am quoting from a letter-

Sterl Greenhalgh: That is shortly before David Behan was about to take over. It is four months after the alleged meeting wherein the "delete" instruction was given. As David Prior has already pointed out, nothing happened after that meeting in March. It may well be that, contextually, the winds may have changed by July 2012. So I would look at that particular statement in that light, if I might suggest.

Q43 Chair: It is entirely true that there is a consistent story here in this case and, indeed, in the case of the relationship between the CQC and the ombudsman of loose ends being left without being followed through. I take that point, and that is something that definitely is a takeaway from your report. But one of the individuals most directly concerned or most closely involved in this allegation of a coverup, which David Prior clearly feels is an allegation that he takes seriously on the basis of your report, says that the report was not published because it was a whitewash. Is that right or wrong?

Sterl Greenhalgh: We do not take that view at all. The document speaks for itself.

Q44 Chair: Did the document reach the conclusion that the CQC would have taken the same regulatory action again? Is that the conclusion of the report?

Sterl Greenhalgh: As we say in our report, there is confusion around that conclusion. One interpretation may well be that, if the CQC was in possession of the same facts that it had at the time it made the decision, it would make the same decision. It is not quite saying that in the conclusion we found shortcomings in what the CQC actually did and, had it had all the additional information, it may have reached a different decision with regard to registration. So we will accept that there is some apparent confusion around the conclusion, but I think it is clear when you read the body of the report that it is quite critical of the CQC’s performance as well.

Chair: Thank you.

Q45 Andrew George: I want to put to you, Mr Prior, that one of the concerns that I think the Health Select Committee certainly raised in the past was the concern that the CQC was looking particularly for telltale signs of failure in relation to management, culture and leadership in organisations, when in fact one factor that was often ignored or avoided was that of resource, whether it is staff to patient ratios or, in the case of maternity services, midwife to birth levels. In going forward, in taking your initial soundings and views on the services that you are going to be inspecting, will you be taking a closer look at the resource levels of the organisations that you look at, rather than merely, as it seems that the original 47 indicators were being used, looking at matters of management, culture and leadership? Of course I am not diminishing their importance, but sometimes those processes of culture, management and leadership can mask an underlying failure to have sufficient resources on the front line.

David Prior: Staffing levels are critically important. It would be ludicrous to pretend otherwise. Whether it is one registered qualified nurse to eight patients, or whatever the number is, it depends on the acuity and the dependency of the patients, but resources are critically important.

Andrew George: Thank you.

Q46 Charlotte Leslie: Thank you very much. I would like to come to several things. I am going to come back to the email issue. I have an email here from 2010 that was available beyond the one-year point. In terms of looking at regulatory failures and trying to be confident that such failures will not exist, I want to outline one to you that we have got quite caught up in-quite understandably so-on whether there was a command to delete the report or not, but I want to raise something else for your attention and have your comments on it.

This is an email from Julia Denham in the CQC to Elaine Brayton and Jan Yates. It is talking about the response to concerns under an imminent news story from the tragic case of Joshua Titcombe and his father James. There is some discussion over how the CQC should respond. Going back along the line, there is an email from David Fryer to Alan Jefferson.

David Prior: That is Fryer, not Prior.

Q47 Charlotte Leslie: Yes, you are in the clear on this one: it is Fryer. It is talking about what the CQC comment should be, so there is great emphasis on media and press reputation, which we have sadly seen quite a lot of with the CQC. One paragraph is telling in the press response drafted by David Fryer to be approved by Alan Jefferson. The draft response is this, "The trust’s various investigations of the case, which they have shared with CQC"-I highlight this-"revealed some concerning system issues within maternity services that we believe the trust needs to address and which they will need to deal with."

Alan Jefferson looks at this and corrects this statement to the press that was drafted for him; he replaces the words "revealed some concerning systemic issues" with the words "are some more widespread issues within maternity services."

It is concerning enough in itself that the truth should be deleted out of a press response. Julia Denham then forwards on this sequence of e-mails to Elaine Brayton and Jan Yates. But what I find more concerning is that, in an email, Julia Denham says the following, "Jan, I think we may need to check progress at Morecambe Bay in terms of the" maternity unit. This is the bit that worries me. "This will fit in any case with ensuring as part of the registration process that the…unit can be registered without any conditions attached." The significance of that in the email chain is that the CQC already knows that there are concerning systemic issues but it is also talking about ensuring, as part of the registration process, that the maternity unit can be registered without any conditions attached.

She goes on again, concerningly, to say, "But we must make sure that we are vigilant, firstly because we want the…unit to operate safely and secondly because it is likely to continue to attract some media attention if Mr T"-which is Mr Titcombe-"is to continue to update the media."

That betrays a nod to patient safety, but, given the precedent in that email chain, a priority to media appearance. Could you comment on that perhaps, Mr Behan and Mr Prior? What is your reaction to that revelation? That was in 2010.

David Behan: I think the Grant Thornton report says-and I have gone on record as saying-that the decision to register Morecambe Bay without conditions was wrong. It should have been registered with conditions. What is clear from the analysis in the Grant Thornton report is that the registration decision was not robust and not resilient in terms of that overall decision.

Q48 Charlotte Leslie: It is slightly more than not robust, isn’t it?

David Behan: It was wrong.

Q49 Charlotte Leslie: The email seems to imply it was deliberately wrong; it wasn’t just that someone slipped up a bit and did not spot the concerning issues-"Oops, oh dear." It was, "There are big concerning issues, but we have to get this thing through registration without conditions." I would not say that was not robust; I would say it is wrong but deliberately wrong.

David Behan: I was going to come on to say it was wrong. I thought that is what I said at the beginning and I was going to come on to say-

Q50 Charlotte Leslie: I was just clarifying.

David Behan: It is your right to do that.

Q51 Chair: You did use the word "wrong" before Charlotte, I think.

David Behan: Thank you, Chair. It was wrong and I cannot defend the conversation about how this is managed through the media in terms of that. I do understand organisations taking care around press releases about what they are going to say. That is an appropriate thing to do, I would argue. But slanting this in a particular way, putting a particular edge on it, taking a defensive position, does not stand scrutiny. What we are saying today and what we have been saying is that we want to be open and transparent in what we do. We want to exercise that independence of judgment on what we find-I think this is Andrew George’s line of questioning earlier-and we will be independent.

As David as chair has said, we are looking to publish lists of hospitals about which we have concern in the interests of that transparency. We have been working hard over the past months to ensure that we are changing the way that we operate-not just changing the way that we operate but changing the culture of the organisation. It was interesting that one of the aspects of the publication of the names is that I probably had over 250 emails from members of staff, who have said, "You have done the right thing." The issue is that people who work in the organisation want to feel they are working for an organisation that is open and transparent. They were saying, "I know it is difficult. You will be scrutinised. You have had to do a lot of media, but we support what you have done. It is the right thing to do it." I think that is a sign of the culture changing.

Yesterday evening I had an email from a member of staff who had sent an email on her concerns about the CQC to a member of the Committee who is not here, and the interesting thing about this is that she copied me into this email and said, "David, I did not want to do this without you knowing, but this is what I have sent in."

For me, that was a small, single example of a culture where openness is beginning to flourish, that oxygen and light are being given to those initiatives and that we can build on that. But I do not defend decisions that are really about holding things back in the interests of putting forward a favourable presentation of the organisation. Indeed, we did publish this report last Wednesday to the board, as we committed to do. It is a hard thing to publish a report that is critical of an organisation for which we are responsible. It is hard for the staff in the organisation to take that, but, in spite of that, we were right to do that. It was the right thing to do.

Q52 Charlotte Leslie: Everyone would welcome the confirmation that Kay Sheldon will maintain her place on the board. That is a very good indication.

On the issue of Kay, many of the whistleblowers and people who have alerted the country to serious wrongdoing in establishments have lost their jobs, while those who are implicated and involved in that wrongdoing have kept them. I do not know if the Data Protection Act is going to allow you to confirm whether any of the individuals I have named still work at the CQC and, if they do, whether you will be reviewing their position on the basis of the evidence, which I am very happy to share with you if your systems do not have the email, for you to look at in a disciplinary manner.

David Behan: If I may, Chair, one of the things that we committed to is to review the Grant Thornton report across all of the employment issues for current members of staff. The focus of that was on the people who were named last Thursday in the report-our current members of staff. That work is going on. We have retained Hempsons to undertake that work and advise us. The decision about the next steps will be ours, but we are actively considering that and we will look right across the piece at whether there are any other issues in relation to staffing that we need to pursue. If you would like to send your data through-I am sorry they are not familiar to me-we will consider those names alongside the other work that we are undertaking.

Q53 Charlotte Leslie: I have a question to Mr Greenhalgh. Did Grant Thornton have access to this email that I have in front of me when you were doing your report?

Sterl Greenhalgh: I cannot personally answer that question. I can ask my colleague as to whether or not we did. I have just been handed a note. We have not seen that email.

Q54 Charlotte Leslie: Do you think that perhaps the fact that I have access to an email that Grant Thornton has not seen, when it has been compiling quite an important report, is a matter of significant concern?

Sterl Greenhalgh: It is not a matter of significant concern, because, as I outlined at one of my earlier questions we sought to obtain as much available information as we could to assist our investigation. I also said that we felt we had sufficient information, either through document analysis and/or interview, in order to be able to deliver our report.

Q55 Charlotte Leslie: I am sorry to interrupt and I do not want to sound like Rumsfeld, but it is often difficult to know what you do not know.

Sterl Greenhalgh: The unknown unknowns, as we say, yes.

Q56 Charlotte Leslie: Exactly. It was very difficult for you to say that you had adequate information. I will just repeat it. Since I have been able to obtain an email from 2010 that puts an additional different light on the nature of the extent of the coverup and the focus on media attention that was going wrong, can you honestly say this would not have affected the nature of the report that you published? I think this is really quite a disturbing email to see. I am surprised that you think that it would not affect the nature of your report or any of your conclusions and that you did not have access to it.

Sterl Greenhalgh: I do not think that was my answer.

Q57 Charlotte Leslie: I am sorry if I misunderstood.

Sterl Greenhalgh: Can I point out that in the report there is a paragraph that says in all investigations there may well be circumstances where additional information comes to light, which may well change our opinion, and indeed we reserve the right to change our opinion if such information does come to light? We can only provide conclusions and facts on the basis of what we know. In any kind of case there may well be other information, other meetings of which you are unaware that might come to light, which, as I say, would cause you then to review your opinion.

Q58 Charlotte Leslie: Mr Prior, I think, mentioned transcripts of conversations that had taken place with witnesses. Are you able to confirm that those transcripts will be available for scrutiny and also that transcripts will be available to those who were being interviewed at that time?

Sterl Greenhalgh: Can I outline what the current situation is? I am not a lawyer either, but at the outset of the fairness process, when we wrote to individuals and their legal representatives, it was done under a cloak of confidentiality, and we are obviously not about to breach that confidentiality without having discussions with Hempsons-the CQC lawyers-and our own internal legal representatives as well. I can advise the Committee that those conversations are ongoing and we hope to reach a satisfactory conclusion to be able to do so sooner rather than later.

Q59 Charlotte Leslie: This is, I suppose, a legal question, but are those transcripts available to those individuals who were interviewed?

Sterl Greenhalgh: Yes, indeed.

Q60 Charlotte Leslie: Are they already available?

Sterl Greenhalgh: For the individuals themselves, yes. An important point to make is that for each and every interview that we did we provided transcripts to the interviewee, and in all cases but one the interviewee signed off those records as being accurate records of the interviews themselves.

Q61 Charlotte Leslie: I want to clarify something. We have seen some email correspondence from one of those witnesses who is still struggling to get access to one of the transcripts of his own interview. Can you confirm to the Committee that that individual will be given access to his transcript by the end of the week?

Sterl Greenhalgh: Yes. I am happy to assist you on that one as well. I am sure the Committee is well aware of the level of sensitivity around the Data Protection Act that has permeated this whole case. One of the discussions that we have been having is whether or not the transcript needs to have the names of others redacted. I am well aware that obviously we have also received a subject access request, and my advice, which I am expected to carry through, is that we will make that transcript available with the names redacted on the basis that that individual knows who the names are anyway in order to avoid the subject access request process.

Charlotte Leslie: I have a final question. Thank you very much for indulging me, Chair.

Chair: It is not only me but our colleagues as well.

Q62 Charlotte Leslie: I appreciate the change in culture that you are undergoing and that it is difficult to turn around a tanker of an institution. One thing that alarmed me that appeared in the press last week is that you are advertising for a strategic marketing and communications lead to be paid £53,000 a year, and his or her role is to expertly manage the CQC’s reputation. Here are just a few things I highlighted from the job description, "Build CQC’s reputation. External support for CQC’s work amongst parliamentarians and stakeholders. Effective communications plans. Use appropriate communications tactics to improve our relations with Westminster. Communicate persuasively. Ensure CQC’s interests"-I find it interesting to wonder what the CQC’s interests would be, as I would have thought they probably would be patients-"are clearly represented externally."

I wanted your response to that. Given that you are obviously making great efforts to turn around the reputation of the CQC, what will your forward strategy be on your PR, because this does not seem to herald a massive change in culture, particularly in the language given in the job description? I find that slightly concerning.

David Behan: If I may answer that, Chair, that is a maternity leave cover advert for the current head of public relations. We are changing the senior structure in the organisation. We created six new posts within the organisation. Three of those posts are now filled: a director of strategy and intelligence, a chief inspector of hospitals and a director of change. We interview next week for a chief inspector of adult social care. Then to follow will be a chief inspector of general practice and a director of corporate services. Each of those individuals will review the structure that they need to deliver the new strategy. That is an old job to replace somebody who is currently on maternity leave.

There are a number of dimensions to this role. First, this is the section that answers all PMQs. They coordinate and convene any questions from MPs so that they come into one place, and then there is consistency in the way that they are dealt with. They also deal with and manage the relationships with our key stakeholders. We are currently consulting. There is a consultation document out on the changes that we are making at the present time. There are events being organised across the country with our staff and external stakeholders so that we can solicit the views of people who use services, carers’ groups and so on, and this is the group that organises those areas as well as doing some of the external communication.

Q63 Charlotte Leslie: My final question before I have to buy my fellow panel members a large drink is this. Do you think it is appropriate to use a phrase like "the CQC’s interests are clearly represented externally," when one of the major problems is that the CQC has been shown to be full of its own interests but not necessarily that of patients? Yes or no.

David Behan: No. It is a clumsy phrase, if I may say so, but what the CQC needs to do is to make sure that people know that it exists, what it is there to do and what its priorities are. One of the themes of the challenge from this Committee to the CQC is that it is insufficiently clear about its role. What is essential is that we can be clear about what our role and purpose is. In order to do that, we need to go out.

If I may go on, Chair-not to further frustrate members of the Committee-when we were consulting on our strategy we asked Age UK to gather some older people together to consult on a strategy. They did that at the East of England and they gathered 12 older people together. None of the 12 older people that were gathered together by Age UK had heard of us. Given that at least 11 out of those 12 will use health and care services at some time in their life, that struck us as being a major issue about whether people understand who we are and what we do. Therefore, it is important that we are able to advise people about what we do. That might be via leaflets in hospitals, in surgeries and so on, but we need some capacity to advise members of the public who we are and what we do, and, importantly, how they must contact us, particularly on issues around whistleblowing where people want to raise concerns. If people do not know who we are, they cannot raise those concerns.

So I think it is important that we have that capacity. The choice of phrasing in the advert is inappropriate, but the function of allowing people to understand who we are and us being on the front foot about that-I do not think it is for people to come to us; I think people need to know who we are-is an important one.

Q64 Barbara Keeley: I want to touch on or take us back to, I guess, the evidence that the Committee received from Mr James Titcombe, in that, in his view, the important issue about the points you have just been talking about is the CQC regulatory activity leading to the registration of Morecambe Bay trusts without conditions and subsequent false assurances given regarding the safety of maternity services. We need to focus on the fact that that led to the lives of mothers and babies being put at risk. So we are talking a lot here about process. We were just talking about reputation, but perhaps the key thing to remember is that that is at the heart of this matter.

I want to ask a question about the Fielding report, which was not disclosed to the CQC. There had obviously been serious untoward incidents at Morecambe Bay trust’s maternity services and the trust itself commissioned the Fielding report. Yet apparently this report was not shared with the CQC or other regulators, which, to be perfectly fair, seems astonishing, doesn’t it?

Here you are registering a hospital that has issues with its maternity services. The hospital trust at that hospital commissions a report and the CQC does not apparently see that report. The Grant Thornton report states that the CQC were told of the Fielding report on at least two occasions but did not take it into account. That seems like a shocking oversight.

Can we touch on that? This seems not to be a conclusion of the Grant Thornton report, but surely providers should be required to disclose important information relevant to regulation? Surely they have to do that, and should we be in a position of having a duty of candour on providers to disclose all the relevant information to regulators?

David Prior: I am as astonished as you, to be honest with you. The critical piece of information was largely finished by June 2010 and complete; it was not actually published, I think, until a month later. It is astonishing that that was not brought to our attention. One of the conclusions, in fairness to Grant Thornton, is that there should be an obligation on providers to bring to the attention of the regulator anything that they think is relevant to the safety and effectiveness of that hospital. This plays entirely to the duty of candour that should be on providers to reinforce that obligation. If they do not fulfil that obligation, it should be a criminal offence. So I share your astonishment.

Q65 Barbara Keeley: Both the CQC and the ombudsman, who were around these issues and considering the questions of investigation, appeared not to have looked broadly enough on any occasion that they could do so. There seems to be a sort of passing of the baton between the two organisations. I will come to that more in a moment. If the CQC were made aware of this report, why were they not reviewing it? Some of these decisions around this hospital seem to have been made in very short periods of time. Large amounts of material were reviewed on one day and decisions made on the basis of that. There are a lot of issues here that were just bypassed.

David Prior: Reading the report, it came to the attention of the CQC but sort of in passing. It was mentioned at a meeting that there was a Fielding report and people at that meeting, from my recollection of the report, did not understand the significance of that.

Q66 Barbara Keeley: On that point, that is astonishing.

David Prior: It is astonishing.

Q67 Barbara Keeley: A hospital with serious untoward incidents commissioned a report into those incidents, which are serious untoward incidents of baby deaths and infections, and illnesses of mothers, aren’t they? That is what we are talking about here, and they were aware of the existence of a report into these matters but they did not take it into account.

David Prior: It is astonishing.

David Behan: It is not right, and the responsibility needs to be on the board of the trust to submit that to us. We need to be absolutely clear about that. Robert Francis’ recommendation about a duty of candour, which is being pursued by the Government, will give us some responsibilities in that respect. We have also changed the requirement when organisations register with us to be unambiguously clear that they are under a responsibility to advise us when there are any material changes to their effectiveness where they have commissioned reports so that we know. We were insufficiently sceptical in relation to the information that was being received.

Q68 Barbara Keeley: It is more than that. There was a relevant report that was ignored-which was not taken into account. It is more than "insufficiently sceptical," isn’t it?

David Behan: The inspectors were in a meeting where somebody mentioned that there was a Fielding review. To rewind this, what would have been wise was to say, "What Fielding review? Please tell us about this." But the responsibility for that rests with the board of the trust who commissioned the report to advise the CQC that they were carrying out that investigation. This is not about passing the buck, but it is about being clear about where responsibility sits. I think Robert Francis’ recommendations were absolutely appropriate about the duty of candour, and work is under way to give the CQC the responsibility to pursue issues of candour with those services that we are responsible for inspecting and registering. I think that will, alongside a greater push around openness and transparency on behalf of the boards of trusts and of organisations themselves, begin to change the culture around this. I know there have been broader debates on this in recent days as well, but that is essentially what needs to happen. We need to be more sceptical, I think. You are right. We need to say, "Really? Tell me more about that," when we are undertaking some of our work.

Q69 Barbara Keeley: At the heart of this matter is also the lack of an investigation into the death of baby Joshua Titcombe. This was something that passed between the two bodies. Let us reflect on it. It is a vital matter, first, for the Titcombe family, but also for patient safety-for the safety of other mothers and other babies. But it seems, looking at the reports, to have fallen badly between two bodies, with neither being investigated. The CQC appears to have agreed to take on the Titcombe case to start with. That seems to be the position in the earlier parts of the report. Then, as part of a wider investigation, there seems to be lots of confusion about whether it could take on an investigation or whether it could not.

Can you explain how the change came about across the panel that at one point it seems to be the case that the CQC was going to investigate-that seems to be what the ombudsman believed-and why it did not pursue it, and then there was a change? Why did that happen?

Sterl Greenhalgh: Do you want me to take that, David? It is not quite the way you portray it, but essentially what happened was that the regional office referred the James Titcombe complaint to the central investigation team. It made a decision not to investigate. Part of the reason for taking that decision was also that the PHSO was looking at the case. The PHSO’s remit, as I am sure you are all aware, is only to look at individual incidents, while the CQC’s remit is only to look at issues that have a systemic nature to them potentially. It was agreed that the PHSO would not investigate. It would hand the case back to the CQC as part of the systemic issue. The CQC gave assurances to PHSO that it would actually take it forward and then simply failed to do so. That is clearly described in the report as well.

Q70 Barbara Keeley: I have read it, yes. Why was it not then rereferred? At the point where there was a change, at the point where the CQC decided not to investigate, why was it not then referred back to the ombudsman? One of these bodies should have investigated-one of them.

David Behan: We did not "not" rerefer it, Chair. My recollection, from reading the report, is that in June there was a followup inspection. That followup inspection was inadequate. The CQC in the report had committed to the ombudsman that it would be followed up in a rigorous way. The June inspection was not rigorous. It was followed up inadequately. The issue here is that the responsibilities of the ombudsman and the CQC are different. I am absolutely clear that the CQC must make its own decision on that which it investigates and pursues, based on its own criteria, and that it should not make that decision dependent on what another organisation is going to do. The ombudsman has recently reviewed its approach and has set out the changes that it is going to make in relation to its responsibilities. My personal view about this is that I do not see conversations saying, "Well, if you do this, we will do this." We need to make our decisions on what we do, based on the merits of the case and the criteria that we operate at the time.

Q71 Barbara Keeley: Should it have been investigated by the CQC?

David Behan: The CQC does not have and has never had the power to carry out investigations of individual cases.

Q72 Barbara Keeley: But there were other serious untoward incidents.

David Behan: That is absolutely right and this comes to it. What the CQC committed to do was to take the case of Joshua, as referred by James, and they would have carried out an inspection where that would have been part of the background. These were the inspections into maternity services, and of course there were other activities going on in relation to Morecambe Bay around this time as well or the consideration of other actions going on around this time. But I am clear that we should make our judgments on what we inspect based on the intelligence that we collect, and that intelligence should include all serious untoward incidents-not just one serious untoward incident.

Q73 Barbara Keeley: So why did it not in this case?

David Behan: I am sorry, I would be speculating if I was to say why they did it. I was not there at the time. I do not say that to put in distance, but the report has set out the facts of the case and the argument. I am saying that was then. Looking to the future-

Q74 Barbara Keeley: But it has not, has it, because what you are talking about in terms of this important case is that there was a highlevel meeting between the two organisations that is not minuted? How can anybody be clear what happened when there was an organisation that discussed this case that was not minuted? How can you be clear? Are you just saying that you do not know? There are two things, aren’t there? One is that this meeting was not minuted, and, two, the CQC chief exec has no recall of it.

David Behan: But I also thought the Grant Thornton report talked about the ombudsman’s office making a decision not to pursue it before the meeting that took place. If my recollection of the detail of what is set out in the report is an accurate recollection, I think that is what it said.

As to the premise that you are raising, Barbara, about whether there should have been an agreement between the CQC and the ombudsman, my view about that in the future is that we should make our judgments based on the information that we hold, and we should stand by and account for those judgments. I do not think we should be in a position of saying, "If you do this, we will do this." We should be clear what we do.

Q75 Barbara Keeley: What about the referral back? The CQC staff appear not to have understood that they could and should refer that case back to the ombudsman.

David Behan: Again, I am sorry that I cannot comment on that. I do not wish to be evasive about it. The understanding between the ombudsman’s office and the CQC was that the CQC would follow up the issues as presented by Joshua, and James’ concern about that, by carrying out an inspection. That inspection was scheduled for the June of that year. That inspection was insufficiently rigorous. It was one inspector for one day. It really did not discharge what I understand was a commitment for a robust analysis of what went on.

Q76 Barbara Keeley: I see. There seems to be a suggestion that the CQC’s staff were relying on the assurances of others on progress at Morecambe Bay. There seem to be various points where assurances were given, such as, "There is an action plan. This has happened. That has happened. The other thing has happened," but it was your staff who were carrying out the inspections. It was your staff who had to review the action plans. It was your staff who were making important decisions about the status, whether it was red, amber or green. Can you tell me what discussions the CQC had with the trust, with the strategic health authority or the PCT around this question of reassurances that seem to have affected the CQC discussions not to investigate further? It seems to me that there was a process that we need to understand going on there of assurances coming in, and the report seems to suggest that reassurances were the reason that things were stepped down, rather than investigations and the CQC staff being happy for themselves-which they should be. They are doing the investigations; they are the inspectors; they need to be happy. Yet it seemed there were reassurances coming into them. So can you explain what discussions took place with the trust? The trust, the strategic health authority and the PCT all have their own responsibilities.

David Behan: I can only tell you what is in the report. Again, I do not wish to be evasive, but the report is saying that there was a lack of rigour and robustness around the work that the CQC did in relation to Morecambe Bay. We are changing that and moving on from that. They were involved in conversations with other organisations-the SHA and the hospital themselves. I have used this phrase once and you pushed back at me on it, but, if I may use it again, I think we were insufficiently sceptical about taking reassurances from other organisations.

We should have made the judgments ourselves about the quality and safety of services at Morecambe Bay. We are committed in the future to being absolutely clear that, when we receive intelligence from other organisations, we will judge the weight of that intelligence and make our own decisions on what we should do. The whole purpose of us being independent is to arrive at an independent judgment of what we think is the quality and safety of those services. The Grant Thornton report says that we were insufficiently independent in the way that we were taking reassurances from others, and not testing and challenging those reassurances. That is why some of the judgments were made to register without conditions, to pursue and not to pursue different aspects of that care.

We need to move on from that and change the way that we inspect hospitals, the way we use intelligence, and the way we receive that intelligence and assess it. That is what we have been doing and will go on to do. We will change our inspection models and methodologies so that we can avoid the pitfalls that are set out in the Grant Thornton report.

Q77 Barbara Keeley: If you are not able to give me the information now about the discussions that the CQC had with the trust, the strategic health authority and the PCT, can you provide that? Doubtless some information exists about that. Can you provide that to the Committee, because you say you cannot answer that now? But it must be possible to answer it.

David Behan: I am sorry-I am struggling with this. I think it is set out in the Grant Thornton report that there were conversations with the SHA. There were gold command meetings set out that considered this. There were judgments made about derisking. I think the decision and the judgment about derisking, as the report sets out, was one that the CQC made. It made those judgments after conversations with, among others, the SHA but also the PCT. Were there conversations with the hospital in relation to the judgments that the CQC was making? Yes, there were. They are set out in the report. I am not aware of any other conversations that were going on between the CQC and either the SHA or Morecambe Bay-or the PCT-that are not captured in the report.

Q78 Barbara Keeley: Are there points that Grant Thornton want to draw out on that?

Sterl Greenhalgh: No. All I would add, if I can harken back to the memo that was subject to the alleged "delete" instruction, and the information it contains, is that it is saying it quite specifically in here, "Third party assurance informed regulatory decision making and any escalation." It refers to discussions with both the SHA and PCTs when it says that. That failure was identified back in March 2012.

Q79 Chair: For the future, can we be crystal clear? It seems to me that it follows, Mr Behan, from what you were saying that the CQC inspects hospitals and the ombudsman investigates individual complaints. They are completely separate institutions. If that leads to processes that look at the consequences of individual cases in parallel, so be it. It is for the ombudsman to decide whether to investigate a complaint and it is for you to inspect hospitals, and there is no reason for a relationship between those two activities.

David Behan: That is absolutely the case, Chair, and, if there is something going on in parallel, then it is right that the CQC advises the ombudsman and the ombudsman advises the CQC that they are carrying out investigations.

Q80 Chair: That is politeness. That does not affect the actions of either party.

David Behan: That is absolutely right. Then there are times when any of the lessons that come out of the ombudsman’s investigations in relation to individual cases, either specifically or generically across the whole of their work in health, are made available to the CQC so that that can inform the intelligence that we use, either to direct future inspections or to consider issues that we need to look at, at more of a national level, because there is a theme coming through from some of the work that the ombudsman detects over a period of time. But you are absolutely right, Chair.

Q81 Chair: But that principle of an absolutely crystal clear bifurcation was clearly not applied in the Titcombe case.

David Behan: It did not apply there. The lesson from that is that it must apply in the future; and that is the approach that we have been taking and setting out.

Q82 Chair: In every single case.

David Behan: That is absolutely right, Chair-in every single case.

Q83 Charlotte Leslie: If you get 200 individual complaints, is that a matter for the PHSO because it is an individual complaint, or for an investigation of a hospital because it is obviously a systemic issue if those 200 complaints come from the same hospital?

David Prior: As the Chairman said, the PHSO will take a view as to which of those individual cases of the 200 they will investigate, and we will take a view as to whether or not the fact there have been 200 cases requires an inspection.

Q84 Grahame M. Morris: I want to ask about the report, but, before we move off that last point, your mea culpa admission of apology that the CQC was wrong not to publish the report immediately is noted and welcomed. In terms of the specifics about how we as a Committee take forward recommendations that would take some lessons from this episode, is the key point information sharing and obligation to share information with other organisations? Is that a key recommendation that we, as a Committee, should highlight? As you have just said in answer to an earlier question from my colleague, it is a matter of good practice, but there is no obligation on the CQC, the ombudsman or anyone else to share information on individual cases, even if it points towards a pattern that would require further investigation.

David Prior: That is one aspect, but one of a number. We should be independent of the system. Sharing information is important but we should be independent of the system. That is vital. Secondly, when we do an inspection it should be a proper inspection. It should be an expertled inspection. If we go in to look at maternity services, we should have a midwife and an obstetrician involved on the team, I believe. Thirdly, the obligation on providers, on hospitals, to share with us any information that pertains to safety and effectiveness is another one, I think, that we should do. As I say, it is not just data sharing.

Q85 Grahame M. Morris: That in itself raises a really interesting question. It was one I did not get the chance to raise with the Secretary of State yesterday in the Committee’s session, but I will ask it now if you do not mind in relation to that specific answer, and that is the implications for private sector providers. Are there any complications arising from private sector providers?

Do you remember earlier you referred to the 290 recommendations of the Francis report, and in response to a question from my colleague Andrew George about nurse numbers, although Francis did not specify, you said that, yes, of course, that is very important? Would a private sector provider be willing to share information if it was considered to be commercially confidential in terms of staffing numbers, because they will not provide that information now in relation to Winterbourne View or a number of other failures? Have you considered that?

David Prior: Yes; the obligation should be absolutely the same. There would be no difference between the way we would treat a private hospital and an NHS hospital. If they cannot meet our quality and safety requirements, they will not be registered to operate as a hospital. We have just done an inspection of a private hospital in the south-I cannot remember its name now-where we have had exactly this issue. So, no, I think it would apply to the private hospitals as much as it would to NHS hospitals.

Q86 Grahame M. Morris: I completely agree with you, but is that the legal position? For example, freedom of information requests do not apply to private operators. Is that something that you feel is desirable or are you telling the Committee it does apply? Can, for example, a private sector operator in community health delivery or the acute sector refuse to furnish that information for reasons of commercial confidentiality? I do not know the answer. I am just asking for your view.

David Behan: If the question from Grahame Morris is in relation to staffing levels, we will look now, in our current inspections, and certainly in the future at staffing levels, at whether that is a for profit, not for profit or a part of the NHS hospital. We look at the adequacy of staffing levels and we will refer back. Something like 30% of the inspections we did last year raised issues in relation to the adequacy of staffing. This is something that we have done right across, whether it is for profit, not for profit or the NHS, and similarly in adult social care. I hope you get some reassurance that, when we look at the adequacy of staffing, we do that without any favour to one sector or another.

Q87 Grahame M. Morris: I chose staffing because I think it is a key point, but there are a number of other factors that contribute to the cost base, which ultimately may be a determining factor in the quality of service that is delivered or if it is deficient or a service of a lesser quality than we would desire and seek to achieve. But it is an interesting point.

David Prior: It is an important point. Rather than give you a definite answer now, I would like to confirm that outside this meeting and write back to you, because it is essential that we have a level playing field in this area. The way we inspect NHS hospitals should be no different from the way we inspect independent hospitals. That must be the principle. I believe that is the case, but will you leave that with us to come back to you and confirm?

Grahame M. Morris: I would be grateful if you would, and if there is an impediment there, if there is an anomaly, I would be grateful if you could identify it, because it is something that the Committee, and certainly I, would wish to pursue.

Chair: I am grateful for the suggestion that you will write to the Committee on that point. Could I encourage you to take that as a broad subject and not a narrow one, to look at the powers and to require information from any care provider-public, private or third sector-and inform the Committee of any lacuna that you think may inhibit your effectiveness as a regulator?

Q88 Grahame M. Morris: I am sorry I got a bit sidetracked there, but I wanted to ask some specific questions in relation to the internal report into how the CQC undertook its role in relation to Morecambe Bay. In the time between this meeting taking place today and the report being deleted, have there been any amendments or alterations to the report that we have got?

David Behan: Do you mean the Grant Thornton report?

Grahame M. Morris: Yes.

David Behan: No.

Q89 Grahame M. Morris: Does it have any relevance, given the passage of time? The reason I ask that is-

Chair: Do you mean the Dineley report?

Grahame M. Morris: I am sorry. I am talking about the Dineley report. In terms of some of the reports or some of the suggestions that it was not critical enough of the CQC, that it was a whitewash, what is the value of it then?

David Prior: It was not a whitewash. Have you seen the Dineley report?

Grahame M. Morris: Yes.

David Prior: It actually puts its finger on a number of very serious criticisms. Let us just pick up the one that we were talking about earlier on about relying too much on other people’s views-the views of the trust, the views of strategic health authority and others- which is a critically important area that it highlights. I felt that that report was an important one, and many of the criticisms in the Dineley report echo the broader criticisms that Grant Thornton produce in their report. It is not a perfect report. It would have been totally reasonable for someone to say, "Look, go back, firm it up, make it stronger, make it more comprehensive, but bring it back to the next meeting so that we can give it to the board." That strikes me as being what would have been a perfectly reasonable response if you felt the report was not sufficiently strong.

Q90 Grahame M. Morris: Did anything happen between the report being deleted and fairly recently when it emerged as having established failures? Even if you say it was not a whitewash, it was quite critical. What did the CQC do in the interim to address the issues that were raised in the report?

David Prior: That goes to the nub of this. The answer is that that report never surfaced after it was written, from what we can tell from the Grant Thornton evidence, despite the fact that Kay Sheldon, who was a director of the CQC, was raising a number of issues that pertained to that report. Yet that report never surfaced. We have to understand why it did not surface, because you are right: it is extremely odd that it did not. You may wish to add to that.

Sterl Greenhalgh: You ask what changes have been made. There have been references to a new group that was set up to look at the assurances given around foundation trust status, for example, to Monitor. That is one group that was referenced as being an outcome of the information provided in the Dineley report. But, other than that, I take David’s point absolutely. I get a number of reports given to me on a daily basis that I read and think to myself, "That appears to be indicating something of greater import than is reflected in the report." So I would say to my staff member, "Have you really considered this in detail, because I do not think you are amplifying the report sufficiently?" For me to be able to understand it, it is important that they do something about it. I would have expected that to have happened in this particular case.

David Prior: This report was about Morecambe Bay, where many babies had died. It does not get more important than that. This was not just any old report about some arcane regulatory issue. This was about a hugely high profile, desperately tragic case. As far as we can see from the Grant Thornton report, nothing came out of the Dineley report.

Q91 Grahame M. Morris: I see. Subsequently, in accepting that, what specifically has happened since this has come to light in terms of the followup actions? You said nothing had happened in the interim because you were not aware of it, but subsequently what actions have you taken at the CQC?

David Prior: We have radically overhauled the whole of the CQC. The entire senior management team have left. I should make it absolutely clear that they were not all involved in the Morecambe Bay issues, but the entire senior team of the CQC has been changed. The board has been radically changed. Kay Sheldon has been reappointed to the board, and we are completely changing the way that we register, monitor and inspect hospitals. Professor Sir Mike Richards is joining us on 16 July as our first chief inspector of hospitals. Going forward, we will be a radically different organisation than we were in the past.

Q92 Chair: Is the charge on the Dineley report that it was covered up, or is it that it made a whole series of allegations or criticisms of the regulatory process that were not followed through?

David Prior: I think it is largely the latter in the Dineley report. It was really about our ability, about how we registered Morecambe Bay, but from which you can draw general themes.

Q93 Chair: I have a copy of it in front of me and I can understand why somebody would not want to publish a report that says, "At the point of registration there were minor concerns outstanding in the maternity services." There are a number of other quotes, but the conclusion-the last sentence of the Dineley report-reads: "Critically the judgments made by the CQC would not have changed." It seems to me entirely reasonable for somebody to conclude that that is not an appropriate report, given what had happened in Morecambe Bay. The criticism surely is that that was available in March 2012 and nothing happened. The answer to Grahame Morris’ question, "What happened following the Dineley report?" is "Nothing."

David Prior: Correct, yes. It was right that that report or a report was done, learning the lessons from Morecambe Bay. It was entirely appropriate that that report was done. If, as a result of the meeting on that report, someone had said, "Go back. Get under the skin more and we don’t think the conclusion quite meets what was in the body of the document," that would have been entirely reasonable-instead of which it went.

Q94 Chair: Do you agree with that?

Sterl Greenhalgh: Absolutely, yes.

Q95 Charlotte Leslie: Reverting slightly to the "changing the culture" point and the new staff, do you think it might be an idea, as a suggestion, to look at people like Amanda Pollard, who were raising concerns, and perhaps get those people back in your employment, because they were the kind of people who were able to see through a cultural institutional expectation and raise the alarms? Do you think that might be something the CQC might consider in turning around its reputation and its ethos?

David Behan: We are making considerable changes and we have set out a clear statement that we want our inspectors to specialise-health care, social care, primary medical services, GPs-and those inspections need to have clinical experts. From July of this year, all of our inspections will have a clinical expert involved in them. That compares with the past where that was not the case. They will all have "experts by experience." We have just completed an inspection of Heatherwood and Wexham Park, where there were four CQC inspectors. One was a nurse, one was a pharmacist, and they were joined by somebody with an A and E background-clinical expertise-and an "expert by experience." They spent four days in the hospital, and their judgments about what they have found are based on that evidence.

So we are changing that. From this month, all of our inspection teams going into hospitals will comprise of about eight people. Mike Richards has already been in to oversee this. They will look over the hospitals for about four to five days, so we are changing this and bringing in clinical experts who can identify clinical standards of safety as well as quality to inform our judgments.

Q96 Charlotte Leslie: Do you think those who have lost their jobs and are now vindicated may be a very useful addition to your team as well as employing specialists? I am hoping maybe you might be using the expertise of the medical royal colleges quite significantly as well. Do you think those who have been vindicated in their concerns, who have lost their jobs because of concerns and have been raising them since 2009, might be a very valuable addition to your team in ensuring that that kind of thing does not happen again? Have people like, say, Amanda Pollard received an apology, and what conversations and contact have you had with her since this has all come to light? Perhaps people like that may be brought back into the fold as a very useful resource.

David Behan: In relation to this, I would say that it is something to consider. We work with a number of people who have felt that they have taken an independent stance and stood for their rights. An organisation with a positive culture does tolerate difference, resolves difference and needs to be clear about where it goes with those differences. But I want an organisation where people feel free to-

Q97 Charlotte Leslie: Whistleblowing is not always "difference."

David Behan: No, indeed it is not.

Q98 Charlotte Leslie: It is sometimes truth.

David Behan: But I think many people blow the whistle because they feel their concerns are not being heard and raised in an appropriate way. We are ambitious to create an organisation where people feel they can raise their concerns and they are addressed so that it does not have to proceed to whistleblowing. Whistleblowing can often be a failure of the openness of the culture. It is a symptom of something that is wrong rather than something in its own right. The work that I feel I am responsible for with David, other members of the board and my colleagues within the organisation is to ensure that we create a culture of openness where people feel they can raise concerns and have those concerns addressed without needing to go into whistleblowing procedures.

David Prior: Can I add one tiny addendum there? Going forward, we will have many more seconded people coming into our teams. They will not be fulltime, permanent employees of the CQC. They will be seconded. There will be a clinical expert seconded for one or two weeks for the length of the inspection. We will draw down on that. Certainly Mike Richards’ view is that we will be inundated by clinicians and other experts in the health service who will want to help us do inspections.

Q99 Barbara Keeley: I want to ask David Behan something. The work that you are doing in terms of culture is very important. Going back to what I said earlier, this catalogue of issues and failures that we have talked about-failure to investigate the death of a baby-may in a very serious way have led to a continuing threat, a risk to mothers and babies. I wonder if you are getting across to your staff, or if you can get across to your staff, how important that is. All MPs have cases that we investigate. I have a case that I am taking up at the moment with the local NHS about inadequate care of somebody who was dying. As an MP, you sit in a room with a bereaved family, and it is really hard for those people who then wriggle out of their decision making to see the impact of what they did and did not do. In some ways it needs to be those people who wriggled out of those things who sit in a room with the bereaved family and understand what it meant and continues to mean to them. It is really hard when people who are responsible for something will not take responsibility for it. That is one of the key things. I have been an MP for eight years. I started six or seven years ago with a difficult case and I am still getting them now.

What way is there that you can get those staff who are responsible for these important things to understand, if they get it wrong, what it actually means out there? What it meant in Morecambe Bay was not just "not" investigating a tragic death but continuing to put people at risk and possibly other deaths of other babies and mothers. You talk about changing the culture and that is something we hear a lot about, but is that fact being imprinted on people because that is the main thing that is important here?

David Behan: It is a powerful point and absolutely the right point to raise. It operates at different levels, if I am being brutally honest. The Grant Thornton report, I suspect, has been read by the majority of staff in the CQC. I have had a number of emails saying, "I have read the report and this is what it has made me feel." I think people have engaged with this at a number of different levels. Many of our staff will be patients or will be dealing with a circumstance of an elderly relative receiving care and so on, so they feel this as citizens as well as professionally. But I think this has-

Q100 Barbara Keeley: But not everybody has that terrible experience.

David Behan: No. Where I would go with this answer, Barbara, is to say that this is why it is essentially important that all of our inspections have "experts by experience" on them-that voice of people who have used services. The reason we have taken this phrase "experts by experience" is because these are people who have used services, so they have some experience of viewing the quality and safety of an organisation from the perspective of people who are using services. That has been an essential part of it.

Q101 Barbara Keeley: Can I stop you before you move on from that? I have talked about different points in my career as an MP. I am taking up cases at the moment, and they involve GPs, clinicians from hospitals, nurses, doctors and district nurses. Just because people have expertise, just because they are clinicians, doesn’t mean they don’t make mistakes.

David Prior: No.

David Behan: No.

Q102 Barbara Keeley: Let us not say, "There was a problem with expertise. Let us move on from that and the expertise will fix everything." Expertise doesn’t fix everything.

David Behan: I am sorry, but, if I have given you that impression, that is not where I would want to go with the answer.

David Prior: The vast majority of our inspectors are really good people, who come into the CQC because they want to make a difference and because they care passionately about the quality of care. The criticisms that we are talking about here largely are about the leadership of the CQC. The people on the ground by and large are very good people, who are absolutely inspired by what you are talking about, who are determined to make care higher quality. They have been set up to do an impossible job, I think. If you send someone who is not a specialist into a hospital, into an area, how can they possibly do a good job?

Q103 Barbara Keeley: But you are falling into the same trap of thinking that expertise solves everything. Let’s put an expert in with the inspector, who is a good person, and that sorts things. It does not. I am not a clinician, I am not an expert and I do not have that background, but it does not take that, if there was a report, to believe that you should have read it. In some of the things we have talked about here, such as having meetings that are not minuted, apparently it is okay to decide not to investigate a case and to have a highlevel meeting that is not minuted, or to undertake an investigation and make very quick decisions on hundreds and hundreds of pages of things. Those are wider failings, if you like, and every single person in your organisation, whatever their good intentions, needs to understand that. I have to say that I do not think just applying expertise to this situation really fixes that.

David Behan: I do understand the point.

Q104 Barbara Keeley: My question was a straightforward one: do they understand that, if they get it wrong, there are bereaved people out there, or people being put at risk? That is the importance of what they are doing. It is the nonminuted meeting, the casual decision made, the ignoring of a report-all of those things. It is not a question of expertise: it is a question of thoroughness. There is a complete lack of thoroughness. That is not just leadership, because thoroughness goes down to every level of an organisation, whether it is administrative or any other job. I don’t think I have ever worked in an organisation where highlevel meetings making important decisions were not minuted. That is an astonishing thing.

David Behan: I would not want to give you the impression that that was the case at all for all meetings, on the evidence of my first 10 months in the post that I now have. But in terms of the question, "Do people who work in the CQC understand the consequences of their decisions, particularly if they get it wrong, because we are dealing with issues of life and death and the essential dignity of each individual?", I think people are aware of that, as David has said. The staff who work in the CQC have chosen to work in the CQC because they want to make a difference. That is the broadest phrase I would use. I think they are committed to the values of quality and safety.

I referred earlier to the emails I had received since the report was published, and what people were saying in those emails was, "Thank you for saying that we have made a mistake and not got this right." "Thank you for contributing to making it an open culture." "Thank you for speaking up for the work that we undertake." I don’t think it is about training. The phrase I would use is: do people have empathy; do they have the emotional intelligence to understand the significance?

Q105 Barbara Keeley: But it is also thoroughness. It is not empathy, is it?

David Behan: I do think empathy is an absolutely essential prerequisite of what people do.

Q106 Barbara Keeley: One would believe that anybody who worked in health and social care had empathy, but, if they are not thorough in what they do, that is no help either.

David Behan: One of the things that we need to do is make sure that we are clear about the need for empathy. In answer to your question, "Do people realise the significance of their decisions?", yes. I think morale does suffer at times like this and I think that causes people to reflect on their own practice. There has been a lot of reflection and introspection in relation to this. I do not think people are being cavalier in any way, shape or form about the way they are responding to this.

One of the things we did was to encourage all staff to have a discussion about the issues that were presented by the Grant Thornton report. We wanted to create an expectation that they would grapple with the issues that are being referred to in the Grant Thornton report, and we will continue to do that so that we can create a culture of openness, transparency or professionalism, of valuing and supporting the staff. An essential part of what we need do is to provide an organisation that values and supports staff to do the job that we are asking them to do. We are committed to doing that.

We are creating an academy. The purpose of that is to ensure that our staff have the skills that they need do the job that we are asking them to do. It will be an essential part of the change programme moving forward. That is in the early stages, but, just to give an example of this, every member of staff in the CQC-this is a decision that was taken last year-is currently going through dementia training. That is a partnership we have with the Alzheimer’s Society to bring in expertise. Whether people are inspectors or work in a support function, they are going through that dementia training. The feedback from that has been very positive, because part of the training is about what the experience is of caring for somebody with dementia, what the challenges and difficulties are of doing that, but also what some of the upsides and pleasures are from doing that as well.

Q107 Andrew George: Mr Greenhalgh, you were brought in, as you have said, because of your professional forensic investigatory skills. In terms of that aspect of the report that investigated whether there was a coverup at a senior level, would you say, as a result of your forensic analysis, that there was incontrovertible proof that there was a coverup, beyond any reasonable doubt?

Sterl Greenhalgh: No. We say, on balance, it would appear that there was a deliberate coverup.

Q108 Andrew George: You say "on balance."

Sterl Greenhalgh: "On balance." That is the actual language that we use in the report.

Q109 Andrew George: You say in the report that, with regard to the allegation, an effort was made to establish whether motives might have existed to perpetrate a coverup, and the evidence suggests it may well have done. You go on to say, in relation to whether there was an actual act of coverup having occurred, that "there is persuasive evidence that such an act may well have happened." I don’t know whether that is legal jargon or whether we are supposed to interpret "may well have" as a balance, and can say, "It may well have not." You go on to say, "Therefore, on the evidence we have seen, it seems to us that an attempt to cover up matters concerning the CQC’s regulation of UHMB may have taken place." So it "may have", but it may not have.

Sterl Greenhalgh: If I point you in fact to the executive summary, which is probably clearer in this regard, it says, "We have concluded on balance the evidence…suggests it might well have constituted a deliberate ‘coverup’." So, on balance, that is our opinion.

Q110 Andrew George: What other explanation would there be?

Sterl Greenhalgh: The examination that is included in Part III of the report talks about to what extent it might be construed as a passive coverup or an active coverup. Perhaps I can assist you with that. An active coverup might well be where the three of us here get together and we agree we are going to cover up this report and suppress it from all actual existence, whereas a passive coverup might go more towards an organisational culture wherein other drivers, in effect, result in or direct a particular action being taken. It is important to look at what was going on at the time when that meeting on 12 March took place. It follows almost immediately from the Department of Health’s review. It is a day before a meeting with Monitor. There was then another board meeting following the meeting with Monitor, followed later on, on 19 March, by the letter being received from Kay Sheldon.

In that context, you might, as David Prior has rightfully identified, have thought that this report-or a subsequent report-ought to be one that should see the light of day. It did not. That is really what influenced us when we used the word "persuasive" that a deliberate coverup may well have occurred.

Q111 Andrew George: In terms of the point that you are making about active and passive, you are, I think, suggesting that it was more passive than active.

Sterl Greenhalgh: Indeed.

Q112 Andrew George: Within the evidence itself, particularly in relation to Dame Jo Williams’ office, there is reference to emotional reactions going on within the organisation and "a substantial degree of hostility and mistrust"-it appears towards Kay Sheldon. I think that is right. The emotion and the hostility might well have been a motivating factor rather than anything else.

Sterl Greenhalgh: I use the word "drivers" too, and that is exactly the language you say as well.

Q113 Andrew George: That explains why it is that it might have gone in that direction. The concerns I think a lot of people may have, particularly in relation to the three people who have all denied the claim that they have been engaged in any active attempt to cover up, is that the conclusions you have drawn are so circumspect and full of caveats. Do you think that that might give rise to a further dispute on this issue? This appears to be taking place, but I want to be clear as to whether you have required any further information, or whether there is further information that you think can be gathered in order to button this issue down?

Sterl Greenhalgh: I will make a few points. The first is that I cannot get into an individual’s mind and understand what the intent may be. So what is it in terms of the evidence that enables me to use the word "persuasive"? Although it is obviously covered in the report, perhaps the most persuasive piece of evidence is the handwritten note made contemporaneously to that meeting by Louise Dineley herself. We obviously considered that note, and quite clearly it would be highly unlikely, I think, that an individual would go home and create a note of such fiction.

Also, in terms of corroborative evidence, you have to look to Louise Dineley’s actions post that meeting. The first thing she did the following day was go to her line manager, and all credit to her for doing that, saying, "At a meeting yesterday, at which you were not in attendance, this actually occurred and I received an instruction to delete that report"-a report, incidentally, that her line manager had seen and approved to go to the senior management before the actual meeting took place on the 12th. Her line manager said, "That report is balanced and my instruction to you is not to delete it." Those kinds of actions, from an investigation standpoint, as I say, are clearly very persuasive as regards to what actually happened at that meeting. I cannot obviously unequivocally, beyond reasonable doubt, say that the intent was to cover it up.

Q114 Andrew George: And there is no other explanation.

Sterl Greenhalgh: I don’t see any other explanation, no.

Q115 Charlotte Leslie: Very quickly, first, Mr Behan, I did not get a clear answer to one of my questions. Has Amanda Pollard received an apology, and if not, will she?

David Behan: I have met Amanda Pollard and have had discussions with her. I have not met Amanda Pollard since this report was published. I am very happy to meet and discuss with Amanda Pollard and I will make contact with her after this meeting at your encouragement-thank you.

Q116 Charlotte Leslie: Thank you. Going back to the relationship, very quickly, if I may, between the PHSO, the CQC and the trust-and we do not have much time left-I am slightly puzzled by some of the issues and quotes from the Grant Thornton report that say, "The facts are that CQC made a decision not to investigate the Baby T case on 27 May 2009," almost a week before Tony Halsall’s email, which talks about being able to cover off the ombudsman in their response if they are prepared to have that conversation, which they did not indicate they were not.

It does not seem to be the case, as earlier evidence from the Grant Thornton report refers to a letter from Cynthia Bower to the executive chair of Monitor dated 12 June 2009, which is after 27 May, saying that the final decision on whether to investigate was pending the outcome of the PHSO review. It seems as though the facts are that the CQC had not made a final decision "not" to investigate in May 2009, and the Grant Thornton review itself seems to make clear that any such decision had been stayed pending the outcome of the PHSO review. It seems to me inconsistent with the Tony Halsall email, which says the CQC would cover off the ombudsman if they were prepared to have that conversation. Could you possibly clear up that discussion? It seems that the conclusions that you come to are not consistent with the evidence as you present it.

Sterl Greenhalgh: The report says, as you have just outlined, Charlotte, that the CQC made a decision not to investigate. That is absolutely crystal clear from the evidence that we have looked at. However, that does not mean to say that it did not keep an ongoing interest in the outcome of the PHSO’s determination as to whether it would take on that investigation. The issue at that time goes back, at its heart, as to whether or not it was an individual case or a systemic case. Unfortunately-because I think it may well have clarified matters-that was not a binary decision. There were different interpretations, and indeed I think the CQC received assurances from the SHA that they were not systemic, whereas others see those SUIs as representing a systemic issue.

Q117 Charlotte Leslie: I know you conclude-and I am very aware of time-that there may have been some liaison between the CQC and the PSHO.

Sterl Greenhalgh: There was.

Q118 Charlotte Leslie: But not between the trust. Tony Halsall’s email seems very strange if you are to conclude that that dialogue was only two-way and not three-way. To any onlooker reading the report and the evidence, it does seem there was a threeway collusion, and the fact that the report notes that there were unminuted meetings between Ann Abraham and Cynthia Bower suggests that there may be other unminuted meetings.

Sterl Greenhalgh: I am not sure the word "collusion" is appropriate, but I take what you say.

Q119 Charlotte Leslie: Please correct me on that, yes.

Sterl Greenhalgh: I can only point out what I have in the report with regard to that issue. I am quite happy to look at it and further comment and write to you subsequent to this meeting, if you think it might assist.

Q120 Charlotte Leslie: My final question to all three members of the panel is this. Given the crossover between the PHSO and the CQC, and the fact that so many complaints in reality seem to fall through the gap of whether it is an individual complaint or a multitude of individual complaints that represent a systemic complaint, do you think there would be merit in an investigation into the functioning of the PHSO as well as into the CQC?

Sterl Greenhalgh: No. On the basis of the way the PHSO determined what would actually happen, it determined it was not an individual incident. It, for its own part, then spoke with the CQC and received the requisite assurances that it would not fall between two stools, and the CQC accepted that it would then look at it from a systemic perspective. The fact that it did not, I think, is the issue.

Q121 Charlotte Leslie: Finally, if you are a whistleblower should you go to the CQC or the PHSO?

David Prior: I think you should come to the CQC if you are a whistleblower.

Sterl Greenhalgh: Chair, can I add one very quick correction to an answer I gave Charlotte earlier on about having no recollection of other representations being received from outside the CQC? I wish to correct that. We did receive representations from the PHSO as well.

Q122 Charlotte Leslie: Can you say which individuals or how many?

Sterl Greenhalgh: The chief PHSO, I guess it was.

Chair: The ombudsman.

Sterl Greenhalgh: -the ombudsman themselves, yes. Thank you, Chair.

Chair: Thank you very much. If no other member of the Committee has any questions, thank you very much for coming this morning.

Prepared 4th July 2013