Public Accounts Committee

Oral evidence: Whistleblowing, HC 1117

Monday 24 March 2014

Ordered by the House of Commons to be published on 24 March 2014

Watch the meeting:

Members present: Margaret Hodge (Chair); Mr Richard Bacon, Stephen Barclay, Chris Heaton-Harris, Mr Stewart Jackson, Austin Mitchell, Nick Smith, Justin Tomlinson

Gabrielle Cohen, Assistant Auditor General, National Audit Office, Paul Oliffe, Director, NAO, and Marius Gallaher, Alternate Treasury Officer of Accounts, were in attendance.


Witnesses: Cathy James, Chief Executive, Public Concern at Work, and Kay Sheldon, Care Quality Commission, gave evidence.


Q10 Chair: I am going to turn to Kay. Before Kay starts, I will just say that we tried to get a number of whistleblowers whose evidence has been proven credible to come and talk to us about their experience. Kay was the only one who, in the end, felt brave enough to come. We had somebody from HMRC who would not come, somebody from the MOD who would not come, somebody from local government who would not come, and also somebody from the police. That shows there is still a culture of complete fear out there, which demonstrates the difficulties that we are facing.

Kay, we are very grateful to you. The idea is that you share with us your experience as a whistleblower—not the details of what you were doing, but your experience of the actual process. Thank you.

Kay Sheldon: I am very pleased to be here. I am very nervous, but I will do my best to describe my experience. Obviously, if there is anything that is not clear, ask me about it.

It was in the middle of 2011 that I started to raise some quite serious concerns about CQC—about the leadership, the management and the culture. I felt that the organisation was at risk of not fulfilling its statutory duties, so they were really quite serious concerns. Unfortunately, because the culture was quite oppressive, those concerns were not well received. The more I tried to get them taken seriously, the more I was subject to inappropriate behaviour, such as being excluded from roles that had been agreed. My mental health was questioned. I am obviously open about the fact that I have had mental health issues, but that was used against me. A secret mental health report was done on me.

As I was really very concerned that the organisation was failing, and failing patients—people who use services—I felt that I had to go outside the organisation. I approached the National Audit Office, the Department of Health and the Mid Staffs public inquiry, and it was the inquiry that responded positively. I was invited to go see them, I gave my evidence, and I was then called to give oral evidence, which I did. After that, unbeknown to me, the chair of the Care Quality Commission wrote to Andrew Lansley asking for me to be removed. I did not know that had happened. I was called into the Department of Health and told that there was going to be an independent review, and I was asked not to attend any further board meetings. It was pretty clear to me that they wanted me out of the picture as fast as possible, so I declined. I said I wanted to continue going to board meetings, which I did. I had someone with me, because I knew that would be necessary.

The review that was set up was not independent; I think that is the thing to say. Frankly, it was a deliberate hatchet job; there is no other way to describe it. I met with the person doing the review for about an hour, and I was told it was going to report within 10 days, but it didn’t. It dragged on. I didn’t hear anything else, but when I got my personal data, I found out that the person doing the review, the CQC and the Department of Health were in quite a lot of contact. I was completely out of it. I didn’t have a voice.

As I said, I still went to board meetings. I felt that I had to do that, because I felt that if I didn’t go, it was giving in. I also felt that I needed to continue to make sure that the issues were taken seriously. That is when I started trying to show the impact of my concerns. That is when I looked at Morecambe Bay in more depth. I also looked at Barking, Havering and Redbridge. I particularly focused on MorecambeBay, and what I discovered was really quite concerning. I had been told it was a robust piece of work, and I was being continually told that there wasn’t a problem—that I was the problem. I produced a paper that I sent to the chief executive and the board with questions and concerns, with Morecambe Bay as an example. They would not respond at all. I then sent it to the Department of Health and the Secretary of State. I met with the Secretary of State, but no one would listen or take it seriously. What they wanted to do was, essentially, get rid of me and discredit me.

As you know, I kept going somehow. During the summer of 2012, I happened to connect with a parent at Morecambe Bay—James Titcombe, who now works for the CQC—and he showed me further evidence that made me really concerned that the CQC was potentially trying to cover its tracks. This coincided with the new chief executive coming into post in the CQC. He, to his credit, commissioned an independent review. That was the crucial thing: it was independent. The outcome of the review essentially proved what I was saying, and it also uncovered a particular act of a cover-up.

As a sort of insurance, I lodged a claim with the employment tribunal.  My appointment was coming up for review, with a view to its being renewed, and I wanted it to be renewed because I wanted to be part of the future with CQC. When we had the mediation, I said that all I wanted was to be reappointed, but it refused point blank to do that, and essentially paid me off. When the Grant Thornton review was published there was all the media attention and when its back was against the wall it agreed that I would be reappointed. There was resolution, or justice, for me and I am now very pleased to be part of the solution as well as part of the problem, not just in making CQC better and stronger, but in helping to encourage and influence a more healthy culture within services and public life.

Chair: Thank you for that. I know it is really difficult to go through all that traumatic history.

Q11 Chris Heaton-Harris: Thank you again. You are obviously a remarkably strong lady. Now that you are poacher turned gamekeeper—that is the wrong phrase—what are you changing? What steps have you taken to make the CQC a body that someone like you in future will feel confident enough to both come forward to and to know there will be support?

Kay Sheldon: If we start with the board, it has appointed a senior independent member who has particular responsibility for whistleblowing. I was saying to Cathy earlier that there have been a couple of occasions in the last few months when I have had a couple of concerns, but not whistleblowing concerns. I raised them and the response I got was wholly different from that which I got previously and, in fact, actually helped the board to become stronger. There is that in terms of the board.

In terms of wider whistleblowing, as you know, everything is changing in CQC. There are lots of changes, reviews and so on, and we are commissioning two particular reviews. One is to review CQC’s own whistleblowing procedures and how it works. The other is to look at how well CQC as a regulator can support and protect whistleblowers who come to us so that we do the best we possibly can in that regard. We have appointed Kim Holt of Patients First who is on secondment to help us with that. There has already been one conversation with whistleblowers, because the key thing is to talk and engage with whistleblowers. They are the experts, by experience.

In terms of our new approach to regulation, one of the domains is what you call the well-led domain and as part of that there is work going on with the King’s Fund to look at how we can assess culture in organisations. We will be talking to staff to see whether they feel safe to raise concerns, but that will also feed into how CQC assesses and rates how well an organisation is led.

Q12 Chris Heaton-Harris: CQC is a vital place for whistleblowers to report things to in the first place, so it is all important. I know there have been a number of reviews and that things have changed. Do you now feel confident for someone in your position, if you still had the concerns you had two or three years ago, that they would be dealt with by the senior independent member of the board, or that you would be able to phone up the NAO and get a different answer?

Kay Sheldon: I cannot say that I am convinced that will happen.

Q13 Chair: You are not convinced.

Kay Sheldon: I am not convinced, because of the extreme things that happened—the fact that I did raise some very serious issues and really all they were intent on was to get rid of me. I don’t think the Department of Health and the officials there have really taken responsibility for what happened. Personally, I think that if they did—if they did engage with me or other whistleblowers—that would really help to change things, but so far they haven’t done it, frankly. We have all the policies and procedures.

Cathy James: There is that disconnect between the Department of Health and the organisations that sit underneath it and the sense that the remedy for the whistleblower is an employment remedy and the Department of Health, the CQC and all the regulators are not employing those people. From past experience, having worked as a kind of advice service for DH, I can say that it was incredibly difficult to get through those barriers. We felt like there were layers of brick walls between us and the trusts, which were obviously in a position of power over all those staff members, so it really needs to come from the organisation that is employing the individual. That is why we are saying that there should be a board champion in every NHS trust looking at whistleblowing. There should be—

Q14 Chair: Well, it goes beyond that, actually. One of our worst cases was the Cornwall out-of-hours service, which is run by Serco. They rifled the lockers to try to find out who the whistleblower was.

Cathy James: There needs to be a huge shift, because for too long whistleblowing has been seen to have been dealt with because we have a law. Well, that’s the endgame, not the starting point. There is this work done by the NAO to have a Government lead on whistleblowing—to have leadership from Government on whistleblowing and getting that culture right. That is where the leadership starts across the entire country perhaps.

Q15 Stephen Barclay: I think all of us on the Committee are very grateful for the bravery that you have shown over what has been a very long period of time. You said a number of officials at the Department of Health did not take responsibility for what were very clear concerns. Are some of those still in their post?

Kay Sheldon: Yes.

Q16 Stephen Barclay: Have you had any explanation as to why they are still in their post?

Kay Sheldon: No.

Q17 Stephen Barclay: Would you expect an explanation?

Kay Sheldon: Yes.

Q18 Stephen Barclay: Is it surprising that no disciplinary action has been taken?

Kay Sheldon: I think so, yes.

Q19 Stephen Barclay: Particularly given that your concerns have now been vindicated.

Kay Sheldon: I would expect it, but they haven’t done it.

Q20 Stephen Barclay: When you went outside the organisation and raised your concerns with protected bodies such as the National Audit Office, did you get an explanation as to why they did not act?

Kay Sheldon: No.

Q21 Stephen Barclay: Would you expect an explanation?

Kay Sheldon: With the National Audit Office, I knew they had a whistleblowing remit, but they seemed to be saying that what I was raising did not come within their remit, so that was the end of it, but I think if someone was raising such serious concerns, they perhaps should have taken the responsibility to do something.

Q22 Stephen Barclay: So it may be one to pick up in a note, but we need to look at the way the protected bodies are working. Who did the independent review that you described as a hatchet job?

Kay Sheldon: It was Gill Rider.

Q23 Chair: Who?

Kay Sheldon: Gill Rider. She used to be head of the civil service human resources department.

Q24 Mr Bacon: Do you mean the director general of capability in the Cabinet Office as was?

Kay Sheldon: Yes.

Q25 Chair: Which independent review are we talking about?

Stephen Barclay: The review described by Ms Sheldon as a hatchet job.

Kay Sheldon: After I had given evidence at the public inquiry, I was called in to the Department and told that an independent review was going to be done to look at the issues I had raised and how they were responded to. It was Gill Rider who did that, but that wasn’t actually what the review was about at all. A few months went by and it was left hanging. I eventually got a letter from Andrew Lansley saying that he was considering removing me and I asked him whether he could fund some legal advice for me, because I’m on tax credits, and he said no, but I went anyway, because I had to, to a legal person—people. Essentially, what the lawyer said was that the review done by Gill Rider was unfair, unlawful and also illegal. [Interruption.] Absolutely—all three. I have to say, they backed down immediately. I agreed not to sue Andrew Lansley and he agreed not to remove me. I think, Margaret, you wrote a letter in support, as did Robert Francis.

Q26 Mr Bacon: How soon afterwards did Gill Rider leave the service? She is not there anymore, is she?

Kay Sheldon: She wasn’t in post—I think she had left already—when she did this review.

Q27 Mr Bacon: Had she gone back to Accenture, which is where she came from?

Kay Sheldon: I do not know.

Chair: She was appointed as a former civil servant—“former”—so she had already left.

Kay Sheldon: I had an hour’s interview with her in December 2011 and there were no further—

Q28 Stephen Barclay: Would you be concerned that perhaps there are conflicts of interest in those coming in to do the reviews?

Kay Sheldon: Yes, absolutely. I was told that it would be independent, because the individual was from a different Department, but it wasn’t—absolutely, it wasn’t.

Q29 Stephen Barclay: Were there imbalances between the transparency of your evidence and the contacts from others into that independent review?

Kay Sheldon: When I got the letter from Andrew Lansley, I was given the report and something called “working notes”, but I don’t know what the other people said exactly.

Q30 Stephen Barclay: So you would not have had transparency over what they submitted about you into the independent review.

Kay Sheldon: No, I didn’t.

Q31 Stephen Barclay: So there is scope, whether it happened in this case, for abuse, for people to make unsubstantiated comments in the independent review without you having the opportunity to question those comments?

Kay Sheldon: Yes.

Q32 Stephen Barclay: Do you think that is a procedural failure?

Kay Sheldon: I do. When I got the letter, I was told that I had 10 days to reply, though it was extended. Given the time that had gone from my interview in December through to April/May 2012, all sorts of things were happening that I only found out through getting my personal data. I think that they allowed me 10 days to respond in order to tick a box, so they could say, “Oh, you had the opportunity to respond.”, but they initially denied me legal help and they must have known that what they were doing was not right. They must have known and yet they persisted.

Q33 Stephen Barclay: One final thing from me: when Cynthia Bower, who was the chief executive of CQC—at the heart of the organisation that treated you so badly—left the organisation, she received glowing tributes from Sir David and others. Did you have a chance to read those tributes? What were your thoughts?

Kay Sheldon: I saw some of them, yes. Once I had secured the changes that I wanted, I decided that I was not going to take part in a witch hunt—even though I had been subjected to one. There is this thing that when people are failing, they are allowed to leave and then there are these set phrases that are released by certain people, like Sir David or the permanent secretary or whatever. It is what always happens. I think that most people were aware, to be honest, that they were not exactly accurate. As I said, I did not want to be part of any witch hunt myself.

Q34 Mr Bacon: I would like to add my thanks to those given by the other members of the Committee for the fact that you have come here today. It is not only extraordinarily brave—it should not have been necessary for you to be this brave, but unfortunately it has been, and you have been—but we are all in your debt. You have performed an extraordinary public service. I hope that somebody is going to raise your salary, frankly, because you are much more valuable as a non-executive director for what you have done. I would like to get that on the record and say a big thank you for what you have done.

You did say, which I found extraordinary, that when you raised these concerns, an issue around your mental health was raised. Who did that? Who raised this issue about your mental health?

Kay Sheldon: It was led by the chair of the CQC.

Q35 Mr Bacon: The CQC chair at the time.

Kay Sheldon: At the time, yes.

Q36 Mr Bacon: Can you just—I know that it is David Prior now.

Kay Sheldon: Dame Jo Williams.

Q37 Mr Bacon: This is the sort of thing that used to happen in the Soviet Union. People had their mental health questioned—[Interruption.] In all seriousness, this is what used to happen. It happened to you, led by Jo Williams.

Kay Sheldon: Yes, and the Department of Health was also involved.

Q38 Mr Bacon: Who in the Department?

Kay Sheldon: Well—

Chair: You do not have to answer that if you feel uncomfortable. It is up to you.

Kay Sheldon: It was Una O’Brien who—I do not know the extent of the involvement. I have gleaned a lot of the stuff from my personal data, but I know that it was Una O’Brien’s office that recommended this private occupational health company. I am quite open that I have had depression and anxiety, which was one reason why I was appointed to the board, and I was a bit stressed, but I was doing my job. I did not have any time off sick or anything like that. There was one incident at a board development day where it was said that if someone does not agree with the rest of the board, they should resign. I was also physically unwell. I had a bit of a panic attack and they ordered a car to take me home. Within a few days, I was fine and I was asked to see the in-house occupational health officer, which I did, and she did not raise any concerns, so I thought that that was the end of it.

When I got my personal data, however—a couple of months later, Jo Williams told me that I had been referred to this occupational health company, Medigold, which I was quite surprised about. I phoned up simply to cancel the appointment and had a 10-minute conversation to say, “I don’t think I need to see a doctor, but a bit of support would be nice.” After that 10-minute conversation with the owner of Medigold, he wrote this three-page letter saying that I probably had paranoid schizophrenia and that he would speak in confidence to the medical director and that my medical notes should be obtained in confidence. I just discovered this in my personal data. I did not know.

Q39 Mr Bacon: It is extraordinary that a potential patient, or someone whom someone thought was a patient, should be referred without their own knowledge. That is very disturbing.

Finally, when you said that you were called in to the Department and told that you would be the subject of an independent review, who were you called into the Department by and who told you that you would be the subject of an independent review?

Kay Sheldon: David Behan.

Mr Bacon: Thank you.

Cathy James: There is one, quite powerful, change that is coming in on 6 April, which is that all MPs are going to be prescribed persons under the Public Interest Disclosure Act 1998. That will add a lot of power to the elbow of somebody in a position such as Kay’s. It was the inquiry that gave her the power. It was a public inquiry where she gave very powerful evidence, which is what hopefully gave her some of the oomph to keep going. Having an independent process, such as your Member of Parliament—it does not have to be your MP. I have seen the statutory instrument that has gone through, and it can be any Member of Parliament in relation to any malpractice proscribed under the law, so it will be interesting to see how that develops. It will really help whistleblowers.

Q40 Chair: Out of interest, Cathy, in a brief pre-meeting, I think I get more whistleblowers than the NAO gets—even now.

Cathy James: The function of the prescribed organisations needs a power boost. If MPs have individuals come to them and then ask those prescribed organisations what they are doing, things will start to change. That would be my hope, anyway. I think it could be really powerful.

Chair: Thank you both. I am conscious of the time. As usual, we MPs are trying to do too much in too little time, but thank you so much, particularly to you, Kay. I know that that was hard to do, but it was lucid and we are very grateful. It really added value to our inquiry, so many thanks.