By Dr Minh Alexander 7 July 2016
David Behan Chief Executive of the much-criticised and “ineffective”  Care Quality Commission was the appointing officer for the former National Guardian for whistleblowing, Dame Eileen Sills, and was embarrassed by her resignation less than two months later.  
The Dame blustered that she wouldn’t be “dropping any balls” despite combining the National Guardian role, on a seconded two day basis, with her substantive role of Chief Nurse at Guy’s.  But within two weeks of this assertion she was gone, citing unmanageable workload.
CQC continued whistling in the dark and insisted in spite of the resignation fiasco that Eileen Sills’ appointment had been robust and entirely appropriate. 
A look at Guy’s record on whistleblowing governance suggested otherwise. The trust was unable to demonstrate that it had put in place the systematic whistleblowing monitoring arrangements set out in NHS good practice guidance introduced in 2010.  The trust could not produce analysed data on whistleblowing events, and stated:
“Where information has been collected it exists in different reports some of which are confidential in nature and therefore not publically available”
The trust reportedly set up a Speaking Up scheme in 2015 after publication of Robert Francis’ Freedom to Speak Up Review report, but upon enquiry trust documents did not suggest that there was a great deal of substance to this, and the trust advised in April this year that it had not yet audited the effectiveness of its Speaking Up initiative. 
Guy’s also disclosed via FOI that over a five year period, it had entered into 50 compromise agreements with staff, all featuring non-disparagement clauses.  The trust appeared to admit that it had super-gagged all 50 staff with clauses that made the existence of the compromise agreements secret, but its reply was ambiguously worded, and Guy’s has since failed to reply to a request for confirmation. Very significantly, Guy’s admitted that it had settled with whistleblowers. The trust couldn’t get it sums right, and indicated that there were either two or four. It hasn’t clarified that discrepancy either. Lastly, the trust still has to answer a question first put to it last year – has it suspended, disciplined or sacked any staff after they raised concerns? Some might conclude that Guy’s silence speaks for itself.
Nevertheless, why does Guy’s behave unaccountably, and why did Mr Behan think that the Chief Nurse of a super-gagging trust, who was the trust whistleblowing lead, was a suitable National Guardian? Did he ensure due diligence – or perhaps more likely, did he not bother because the appointment was more about PR than substance?
Whilst those questions remain unanswered, what is known is that Guy’s is a member of the Shelford Group of ten teaching hospitals. The exclusive club members modestly describe themselves thus: “ Shelford Group comprises ten leading NHS multi-specialty academic healthcare organisations. We are dedicated to excellence in clinical research, education and patient care. We aspire to demonstrate system-wide leadership for the benefit of patients and the prosperity of our country.” 
The Group was established to network with Important People: “The group was formed in 2011 to benchmark and share best practice in key service areas across the membership through working groups, and constructively engage with Government, Parliament and industry to represent the interests of large tertiary centres and the wider National Health Service.”
The behaviour of some of the other Shelford group members in response to questions about their use of gags certainly suggests that they are disinclined to account to the public.
Central Manchester took the approach of simply ignoring FOI requests for months. The trust Chair, in fairness, apologised when informed of this failure. Newcastle disclosed 22 super-gags and when questioned about this, insisted that super-gags had been mutually agreed – but then fell silent when asked if it was the trust who had proposed the super-gags. Kings College admitted to 29 super-gags but claimed that it was too difficult to identify whether any whistleblowers had been gagged. Sheffield which has had multiple whistleblowers, disclosed a whopping 228 compromise agreements, and claimed that only one came with a super-gag that was unrelated to whistleblowing. Imperial and Addenbrookes, also had difficulty with the maths and both under-declared their numbers of compromise agreements. Addenbrookes revised the number of its compromise agreements from 1 to 29, all with super-gags. Like King’s, Addenbrookes refused to say how many super-gags applied to whistleblowing cases. Imperial revised the number of its compromise agreements from 9 to 125, the majority of which are thought to contain super-gags, because Imperial advised that super-gags were “standard” in its agreements. Oxford, chaired by data governance Tsar Dame Fiona Caldicott, was the worst and tried a flat refusal on grounds of cost. The trust eventually admitted that it had used gags but has resisted disclosing how many were implemented. Only UCH and Birmingham were straightforward in their responses, and neither of these trusts reported super-gagging their staff.
In total, the Shelford Group have accounted for at least 572 compromise agreements, 266 super-gags and 281 non-disparagement clauses in the last five years. Without independent verification it is hard to know how close this is to the real numbers. On that matter, CQC have advised that it has no specific methodology for inspecting compromise agreements and no intention to systematically review providers’ compromise agreements.
CQC, whose Chief Inspector of Hospitals is himself a Guy’s man, has recently favourably rated three members of the Shelford group – Guy’s and Sheffield were declared ‘Good’, and Newcastle was declared ‘Outstanding’. The usual fanfares were tooted in the Health Service Journal, for example “Shelford Group Trust rated ‘Good’ across the board”.  But to what extent are these CQC ratings the product of Important People relating more sympathetically to other Important People who have a similar world view?
So, CQC be counted on to appoint a National Guardian who will be fair and isn’t there to be just another clubbable, Important Person looking after other Important People? Or will Mr Behan’s new choice of National Guardian announced today, Dr Henrietta Hughes the Medical Director of NHS England North Central and East London region, prove to be part of the clubbable bubble? 
 Public Accounts Committee Inquiry on CQC, 12th report of session 2015/2016 http://www.publications.parliament.uk/pa/cm201516/cmselect/cmpubacc/501/501.pdf
 Hunt humiliated as NHS Whistleblowing Tsar quits http://www.mirror.co.uk/news/uk-news/jeremy-hunt-humiliated-nhs-whistleblower-7513425
 No one believes Jeremy Hunt on patient safety and whistleblowers – not even his own appointees https://www.opendemocracy.net/ournhs/minh-alexander/no-one-believes-jeremy-hunt-on-patient-safety-and-whistleblowers-not-even-his-#.VuLP8Vb5NRs.twitter
 Minute of a meeting with Eileen Sills 24 Feb 2016
 Letter from Rebecca Lloyd-Jones CQC Director of Legal Services 24 May 2016 https://twitter.com/alexander_minh/status/737159490399801344
 Speak Up for a Health NHS. Social Partnership Forum 2010 http://www.pcaw.org.uk/files/SpeakupNHS.pdf
 FOI disclosure from Guy’s and St. Thomas’ NHS Foundation Trust 11 April 2016 http://twitdoc.com/view.asp?id=283551&sid=62SF&ext=PDF&lcl=Response-re-audit-of-speak-up-initiative-11-04-2016-FOIA-53771-Alexander-Final-Response.pdf&usr=alexander_minh
 FOI disclosure from Guy’s and St. Thomas’ NHS Foundation Trust 21 March 2016 http://twitdoc.com/view.asp?id=283552&sid=62SG&ext=PDF&lcl=Compromise-FOI-response-FOIA-53147-Alexander-Final-Response.pdf&usr=alexander_minh
 Shelford Group website http://shelfordgroup.org/
 Shelford Group Trust rated ‘Good’ across the board. Health Service Journal 13 June 2016 http://www.hsj.co.uk/7005533.article
 Joint letter by David Behan and Sir Robert Francis to NHS trusts about appointment of new National Guardian 7 July 2016 http://www.nhsemployers.org/~/media/Employers/Publications/20160707%20Letter%20from%20Sir%20Robert%20Francis%20and%20David%20Behan%20re%20National%20Guardian%20appointment.pdf