A whistleblower consultant’s victory that exposes scandals at the Care Quality Commission and a hospital trust

Whistleblower Dr Shyam Kumar; Pic Credit: BBC

The victory by whistleblower Dr Shyam Kumar, an orthopaedic surgeon, against his unfair dismissal as an part time inspector for the Care Quality Commission is just the tip of an iceberg scandal at both the CQC and the University Hospitals of Morecambe Bay NHS Foundation Trust.

His victory – I am glad to say reported by the BBC, the Guardian and the medical press- was only possible by his persistence in the face of obstruction by the body that is supposed to hold up standards of medical care to protect patients and the collusion of a trust to protect its own reputation.

He told the BBC: “”The whole energy of a few individuals in the CQC was spent on gunning me down, rather than focusing on improvement to patient safety and exerting the regulatory duties,”

“I was perceived as a troublemaker within the CQC, or as a thorn in their side. That’s what I believe. And they just ignored it. And finally, people got involved.” 

The ruling at Manchester Employment Tribunal by Employment judge Mark Butler said he had received detriment for speaking out and awarded him £23,000 for injury to this feelings. Dr Kumar had not sought any other compensation.

The judge said:” There is evidence throughout this case….that the decision to disengage the claimant in this case (and the placing him on hold) has had a serious impact on the claimant’s reputation causing him injury to feelings. There were suggestions of misconduct by the claimant … where no evidence of this existed, and vague assertions of a breach of undefined values of the respondent … used in an attempt to justify the decisions made in this case, after the event” Instead the judge described Mr Kumar as a man with an untarnished reputation and expertise.

Dr X left a hip replacement patient never able to use her limbs

The detail of the concerns Dr Kumar found are deeply disturbing for patients. One involved Dr X whose two hip replacements on an elderly lady which overlooked the dislocation of her pelvis and she had to come back to accident and emergency unable to walk and his colleagues thought she would never be able to use her limbs again. When he raised this with the CQC and said a back review of Dr X’s cases should take place he was told the trust did not want to do this for reputational reasons.

When the Royal College of Surgeons did their own review much later into Dr X they found 26 out of 46 operations were matters of concern.

The judgement said:

a. some surgeries undertaken by Dr X were not completed to an acceptable
standard
b. some of the surgery and quality of care provided by Dr X was unacceptable.
c. some clinical decision making to undertake surgery by Dr X was
inappropriate.
d. in some cases there was either no or a lack of evidence of a “Duty of
Candour”

Dr Kumar was thanked by the associate medical director of the trust , Mr Damian Riley in 2021 for his work.

But at the time of the CQC inspection Dr Kumar faced a barrage of criticism from CQC officials, was effectively suspended from his job, and subject to racist attacks including being accused of being ” a traitor to his community ” for raising issues about Dr X’s competence by another trust doctor, Dr Sinha.

At a CQC focus meeting Dr Kumar was even falsely accused of deliberately creating NHS waiting lists so people would have to go privately – making extra money for doctors.

The CQC’s response was to side more with the trust than the whistleblower. This led Dr Kumar to write to the Chief Inspector of Hospitals, Professor Sir Mike Richards. complaining that “patient safety is being
significantly compromised by the behaviour of some CQC staff.” He also complained he had been bullied and obstructed by CQC officials, his professional independence had been undermined and his whistleblowing concerns ignored.

The court upheld his protective disclosures. The judge also took a strong line in allowing the press access to all the documents in the case and also restricted an attempt by the CQC lawyers to restrict reporting of the Royal College of Surgeons report on the grounds that families had to be told first. The judge granted a very short restricted reporting period and was never challenged again.

The CQC in a statement said: “We accept the tribunal findings and have learnt from this case. We have already improved many of our processes and will continue to review these based on the findings to ensure we make any further necessary changes.”

Much wider issues than just this case

But there seems to me a much wider issue here about the behaviour of this particular trust and the role of regulation. This is not the first time this trust has been found wanting. There is the case of Peter Duffy, a consultant surgeon, working for the Morecambe Bay Foundation Trust. Faced with failures at the trust in the emergencies department he expressed concern for two patients who subsequently died from kidney sepsis.

One would have expected the Trust to have remedied the situation. Instead they turned on him rather than admit any failings. As he told Matthew Syed on Dispatches: ” I was on the receiving end of allegations of bullying, abuse and racism. And so what I hoped would be an attempt to raise standards became an investigation of myself”.

He was eventually proved right after an investigation disclosed multiple problems but not until after a five year toxic battle and now practices in the Isle of Man.

Inquiry chair Dr Bill Kirkup Pic credit: gov.uk

There is also the 2015 inquiry report by Dr Bill Kirkup into Furness Hospital, run by the trust over the deaths of babies and appalling maternity care.

As he says in his introduction: “The result was avoidable harm to mothers and babies, including tragic and unnecessary deaths. What followed was a pattern of failure to recognise the nature and severity of the problem, with, in some cases, denial that any problem existed, and a series of missed opportunities to intervene that involved almost every level of the NHS.”

There is a disturbing pattern that repeats itself. Whistleblowers, whether doctors or families, raise serious life and death issues, are ignored, denied justice, bullied and attacked, using the power of the state to buy expensive lawyers to try and crush them -only for them to be proved right in the end. With the Dr Chris Day case due to report this month following an extraordinary employment tribunal hearing where evidence was destroyed, it remains to see whether this pattern can start to be broken .

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9 thoughts on “A whistleblower consultant’s victory that exposes scandals at the Care Quality Commission and a hospital trust

  1. In addition to previously identified failures of the Parliamentary and Health Service Ombudsman to investigate complaints, we now have the appalling situation of the Care Quality Commission preferring to create a situation where one of its investigators takes it to an Employment Tribunal as opposed to doing something about the issues he identified. I am glad Doctor Kumar has been vindicated. However, the real question which needs answering is “Why is the head of the CQC still in post?” The CQC does not need an insider to “review its processes”. We now have a newly appointed Health Secretary in Therese Coffey. This is an opportunity for her to make her mark and a statement of intent. Will she do it or will she allow herself to be associated with this CQC failure.

    This can only lead to the public failing to have confidence in the CQC

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  2. I agree David, there is a disturbing pattern here. Noticeably, in the case of Shyam Kumar, the CQC claim to have “learnt from the case” and “improved many of our processes”. But these general statements are remarkably lacking in detail. What have they learnt? What improvements have they made?

    The claims to have learnt and improved as a result of failures exposed by Tribunals or Inquiries are always made, details are never given, and similar “mistakes” crop up again a few years down the road.

    It might be worth asking if the officials at the CQC that were the source of Mr Kumar’s problems have been disciplined or held accountable. It might be worth knowing how they justified their behaviour, if they attempted to justify it at all. But in all these cases, the people involved are almost never held accountable. The systems and processes are held to be at fault, not the staff.

    But there is something very strange in the system of health service regulation and complaint handling. Although the systems and organisations are in place in the form of the CQC, the PHSO, NHS Resolution etc; these organisations seem to actually cover up wrongdoing and suppress complaints. Exactly the opposite of what they should be doing.

    There needs to be a radical overhaul of all these organisations and others. They need to be much more transparent, rather than the secretive organisations that they currently are. Their methods of operation needs to be fully open to public scrutiny. And they need to be answerable to the public for their actions by being fully accountable to higher bodies. At the moment all these bodies and the Trusts place their reputations and the reputations of their executives above the public good. That should not be allowed to continue.

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  3. Could it be that the pendulum is finally swinging back the other way and that there is a renewed requirement for those in authority to behave with decency and honesty. I suspect that a few public exposures and sackings will be required to turn proper behaviour back to the norm. My congratulations to Dr Kumar for withstanding the stresses to which these disgusting people have subjected him and making this country just a little better for the rest of us. Hope this is just the start of a landslide which will eradicate these evil people from places of power. No problem is solved by pretending it isn’t there and expending unreasonable efforts to cover it up!

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    • “No problem is solved by pretending it isn’t there and expending unreasonable efforts to cover it up”.

      This sentence should be front and centre on the desk of every public service manager – such as NHS, Police, Environment, Home Office and all the quango ‘complaint handlers’ like CQC, Parliamentary and Health Service Ombudsman, Health Service Safety Investigation Branch, Information Commissioner and the like.

      Well said Sandra Gamble.

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  4. I feel sorry for Dr Kumar! As for bullying him is totally unacceptable. CQC behaved like bullying children in a playground! Instead the CQC shouldve taken his complaint seriously, like all complaints! They shouldve investigated the complaint! Who is head of the CQC? He/She should be sacked for not doing their job properly! This attitude is unacceptable and must be addressed, NOW! Not forgetting all the people who have been affected by this mismanagement!

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  5. More NHS cover ups that never seem to end. On a personal level here is another. Twenty odd years ago my mother’s cousin had an operation at Barts. Discharged, every ok? Not at all. When Beaty was coming up the escalator at Old Street tube a very large Canadian backpacker tumbled back onto Beaty and squashed her. That was bad enough but because of her recent operation she nearly bled to death. Meetings with Barts, denials from them of any liability. In short they treated her as stupid Their mistake. During a meeting with her file placed on the Barts side of the table the Barts representative said to Beaty, ‘I just have to pop outside so you won’t look at your file Mrs A’. Well Beaty couldn’t resist. What she saw in her Barts file was the admission from Barts that had discovered post the Old Street incident that their surgical team had left swabs and instruments inside Beaty which the same file said it was those mistakes that caused the traumatic rupture and her near death at Old Street. Denial is Policy.

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    • Is the CQC the successor to the body that did nothing about the evidence and sworn statements from careworkers at Richmond upon Thames Council re. the abuse and deaths of the elderly in their care. Seems the Richmond Police did the same on other occasions which culminated in the last statement of a senior MPS officer that run ‘what are you making a fuss about they are all dead and will not be coming back’. Are not Richmond Police consistant i.e. Greville House, Elm Guest House, the DTP Arches under Twickenham Bridge and complaint they removed from the MPS database that Kingston Police logged about CSA. Wake up – cannot the people see we are all living in a Corrupt Glossy Brochure Culture.

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      • *The Arches under Twickenham Bridge complaint was from an acting civil servant who worked directly to and for a Deputy Prime Minister. He was contacted by a senior officer at Richmond who informed him that ‘they knew about the matter but had been told to leave it alone’.

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