By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 29 July 2016
In the six years of its much-criticised life, CQC has been part of the NHS denial machine. Its decisions have been exposed as overtly politicised on some occasions , and suspected as such on others. Its ratings are questioned for their methodology, and because people think they can be arbitrary, and either unfairly severe or unduly lenient. CQC has sometimes failed to detect – or report – gross safety failings such as those at Southern Health NHS Foundation Trust. 
In November 2014 the CQC assumed a legal duty under Regulation 5 Fit and Proper Persons (FPPR) to assure that trusts appointed Fit and Proper directors and that existing directors continued to be Fit and Proper Persons. Under FPPR, directors who have been guilty of – or privy to – serious misconduct and mismanagement, may be removed. 
In December 2014 other NHS whistleblowers and I took part in a teleconference with Mike Richards CQC Chief Inspector – who was going to chair CQC’s FPPR panel – and his entourage to find out how CQC intended to run FPPR. This was not encouraging as the Chief Inspector made comments such as CQC action would depend on the “level” of whistleblower reprisal. Before a single shot had been fired, he asserted that it would not pass in the “Court of Public Opinion” if too many managers were removed under FPPR.
The Chief Inspector subsequently demonstrated impressive reluctance to remove seriously erring NHS managers. To my knowledge and others’, not a single director has been removed under FPPR. CQC has in a handful of cases triggered investigations – but allowed trusts to commission and direct these investigations. At Southport and Ormskirk where at BME doctors complained of unfairness and mistreatment, and 30 consultants
had written to complain of a bullying culture, CQC rubber-stamped such an FPPR investigation as sound.  This was followed only three months later by suspension of the CEO and 3 other managers. CQC also rejected an FPPR referral on Southern Health NHS Foundation Trust, only for this to be seriously questioned by the revelations of the Mazars report that hundreds of unexpected trust deaths had not been investigated.   The outcome of a re-referral is awaited, whilst more revelations came today from the BBC about millions paid by the trust to the Chief Executive’s former associates. 
An FOI request in May 2015 confirmed that CQC had received referrals on 65 NHS managers, including 14 individuals reported to have suppressed whistleblowers, but it did not take action to remove any of these 65 managers.   
An update FOI request was made in May this year, but CQC has refused to provide this data on grounds of cost, even though it had already announced plans to review its use of FPPR. When asked, CQC failed to say what data it would be prepared to provide within the cost limits.
Also interesting is the fact that trusts may appeal against CQC’s decisions on FPPR, but in response to an enquiry, CQC’s Chief Executive David Behan stated that referrers may not.  However, I am told that in at least one case, CQC has undertaken a review in response to a referrer’s objections. So much then for equitable and consistent decision -making.
CQC’s performance on FPPR has not gone unnoticed. Health Committee has noted the concerns reported to it for the next accountability hearing with CQC. After the recycling of Paula Vasco-Knight at St. George’s, with Monitor’s involvement by allowing her into their interim pool, CQC was caught very, very short when she was suspended over financial allegations. Soon after that CQC admitted that there were legitimate concerns over its handling of FPPR, and that questions had been asked about why CQC was only tick boxing trusts’ FPPR process, when it should also have been looking at the soundness of FPPR decisions. CQC announced that it would review itself with regard to FPPR.  This will most likely take the path of past CQC internal reviews. For example, that relating to CQC’s poor response to Homerton maternity risks and whistleblowers’ warnings, which implausibly found no serious error. 
The recent parliamentary debate on the Liverpool Community Health NHS Trust scandal exposed the active complicity of regulators in recycling some poor NHS managers, even to the extent of misleading an MP about what they had done. 
It is worth taking the microscope to CQC’s lamentable role in the Vasco-Knight business. Paula Vasco-Knight was Chief Executive of a trust, South Devon Healthcare NHS Foundation Trust, which was severely criticised for harming two whistleblowers who raised concerns about nepotism by Paula Vasco-Knight. She resigned from that trust in 2014 after a damning Employment Tribunal judgment against the trust    but within months she had been recycled by the NHS. Controversially, she worked on an interim basis for another trust at a cost to the public purse £248K.  By September 2015, she was hired as interim Chief Operating Officer by St. George’s University Hospitals NHS Foundation Trust. The trust informed me that in appointing her, “references were taken from Monitor, which had provided support for the Monitor FPPT process”. Monitor informed me: “The business referees put forward, from whom references had been sought and obtained, all held senior roles in the NHS trusts that Paula Vasco-Knight had recently worked for, including East Lancashire Hospitals NHS Trust”.
In October 2015 I made an FPPR referral on Paula Vasco-Knight to CQC, and received a curt acknowledgement which effectively said “Don’t call us, we’ll call you”.  But months passed and there was no call. I made an enquiry at the end of February 2016 about progress, which was acknowledged by CQC, but no still substantive response followed. In the meantime, on 25 April, St. Georges disclosed a letter from Mike Richards to the trust dated 16 February 2016, closing down the FPPR process on Paula Vasco-Knight.  As you can imagine, I was very concerned that CQC appeared to have avoided giving me a straight answer about what it had done, during which time St. George’s announced on 22 April that Ms Vasco-Knight had been promoted to interim Chief Executive. Clare Sardari, one of the South Devon whistleblowers wrote an open
letter on 26 April to St. George’s governors, protesting the appointment of Paula Vasco-Knight to Chief Executive. 
The house of cards soon tumbled when on 3 May St. George’s announced that it had suspended her “…the acting chief executive of St George’s was suspended from her role on Friday because of serious allegations being made against her relating to a previous employment. Suspension is required in such circumstances but it is a neutral act….The allegations are financial in nature and relate to her work at a previous employer”.  On 20 May the Health Service Journal reported that CQC had indicated that it was looking into “whether St George’s had carried out its duty under the fit and proper person regulations” (CQC email 19 May). 
I was therefore somewhat perplexed when St. Georges advised on 27 July that it had in fact terminated Paula Vasco-Knight’s agency contract on the day it suspended her – or it seems in plain English, sacked her.  Why then did St Georges continue to refer only to suspending her? On 5 May the trust reportedly stated: “As a result of serious allegations being made against her, Dr Paula Vasco-Knight has been suspended from her role as acting chief executive at St Georges University Hospitals NHS Foundation Trust”.  Why did CQC say it was looking into her appointment, in terms of compliance with FPPR, when it has in the past insisted that it can only apply FPPR to current directors? (I had specifically asked CQC in 2015 if it would run a disclosure and barring scheme for ex NHS directors who might return to the NHS, but CQC indicated that it had no intention or remit to do so).
So, did CQC claim on 19 May that it was conducting a review of FPPR in relation Paula Vasco-Knight’s appointment on 20 May, over 2 weeks after her contract with St George’s had been terminated, simply to spin an impression that CQC was doing “something”?
And why does CQC say one thing about the limit of its jurisdiction on FPPR, but then do the opposite?
The whiff of arbitrariness has not been dispelled, and is a most unfortunate quality in a regulator.
I hope Health Committee looks very closely at all this, and insists on more robust governance than the usual CQC “lessons NOT learned” internal review. Patients’ lives depend on competent, honest NHS management and regulation.
 Labour’s cover up on failing hospitals: Ministers tried to silence watchdog on eve of general election. Sophie Borland, Daily Mail, 3 October 2013
 CQC guidance for providers on Regulation 5: Fit and Proper Person and Regulation 20: Duty of Candour, November 2014
 CQC inspection report on Southport and Ormskirk NHS Trust, 13 May 2015
 Independent review of deaths of people with a Learning Disability or
Mental Health problem in contact with Southern Health NHS Foundation
Trust April 2011 to March 2015, by Mazars December 2015
 Southern Health NHS Trust ‘paid millions’ to Katrina Percy’s associates, by Michael Buchanan, BBC 29 July 2016
 CQC response 9 June 2015 to FOI about FPPR referrals
 Further CQC response 29 June 2015 to FOI about FPPR referrals
 More than 60 managers have faced Fit and Proper complaints, Shaun Lintern Health Service Journal 29 June 2015
 Letter from David Behan 19 August 2015
 CQC to review whether fit and proper person rule “need to change”. Will Hazel, Health Service Journal, 24 May 2016
 CQC internal review report on CQC’s handling of patient safety risks in Homerton maternity services, 15 March 2016
 Hansard record of parliamentary debate on the Liverpool Community Health NHS Trust scandal, a Capsticks report and NHS whistleblowing 13 July 2016
 Nurse turned Chief Executive resigns in wake of employment tribunal. Sarah Calkin, Nursing Times, 30 May 2014
 Ex Torbay hospital worker awarded £230,000 compensation over ‘nepotism’ row, Herald Express 19 July 2015
 Employment Tribunal Judgment Penny Gates and Clare Sardari v South Devon Healthcare NHS Foundation Trust and Torbay and Southern Devon Health and Care NHS Trust
 FOI disclosure 10 June 2016 by East Lancashire Hospitals NHS Trust
 Email from CQC 27 October 2015
 FPPR closure letter on Paula Vasco-Knight, from Mike Richards CQC Chief Inspector to St George’s
 Open letter 26 April 2016 by Clare Sardari South Devon whistleblower to St. George’s
 Teaching trust loses second chief executive in two weeks. Shaun Lintern Health Service Journal 3 May 2016
 CQC looking into Vasco-Knight appointment. Will Hazel, Health Service Journal 20 May 2016
 FOI disclosure by St George’s 27 July 2016
 Former Torbay Hospital Chief under financial investigation. HE Tina Crowson, Herald