Today (29 March) two reports designed to improve how we listen to, learn from and act on concerns have been presented at CQC’s Public Board meeting and published on our website.
In September 2022, CQC lost an employment tribunal brought by Mr Shyam Kumar, a consultant orthopaedic surgeon who undertook work for us as a Specialist Professional Advisor. The findings of this tribunal, which we accepted in full, were highly critical of CQC, finding that the decision to disengage Mr Kumar was materially influenced by the concerns he raised. During the same period, other issues were being raised around how we listened to and acted on concerns, including from our own staff.
In response, CQC's Executive Team appointed Zoë Leventhal KC of Matrix Chambers to lead an independent review into our handling of the protected disclosures shared by Mr Shyam Kumar, alongside a sample of other information of concern shared with us by health and care staff, to determine whether we took appropriate action as a regulator in response to this information.
Alongside this barrister-led review, a second, wider review was commissioned to explore issues of culture and process that need to be addressed, so we are better able to listen and to act when information of concern is shared with us. The ‘Listening, learning, responding to concerns’ (LLRC) review also has a focus on inclusivity, including understanding whether race or any other protected characteristic has any impact on how we treat information of concern. Scott Durairaj who, at the point the review was commissioned had just joined CQC as Director of Integrated Care, Inequalities and Improvement, was appointed to lead this review.
Zoë Leventhal KC and Scott Durairaj have presented the findings of the two reports at CQC’s Public Board today. It has been important to the independence of the reports to maintain a high degree of confidentiality throughout the review, meaning that this is the first opportunity for the Board to consider the final reports. The Board has committed to making a full response to both reports, including implementation plans for the delivery of the recommendations, at the next Public Board meeting on 24 May.
The LLRC review focused on five key areas and found significant areas of improvement were needed across governance, decision making process, and practice. There was clear evidence of a widespread lack of competence and confidence within CQC around understanding and identifying race and racism. There was also evidence – including high levels of unknown ethnicity data or data not being collected; findings from the workforce race equality standard; staff surveys and directly hearing from people – that pointed to the need for more work to actively identify where systemic inequities that affect ethnic minority people could be replicated within the organisation, or within the organisations we regulate. However – acknowledging limitations of time and scope – neither this review nor the barrister-led review was able to identify direct or indirect race discrimination as described in the Equality Act.
While the barrister-led review was an independent process, there is in fact considerable alignment between its findings and the findings of the LLRC review. The barrister-led review found a number of failings by CQC, both in terms of how we communicated with Mr Kumar when he raised various concerns over time, and in terms of how CQC utilised the clinical information he provided to enable us to ensure that appropriate regulatory action was taken.
The recommendations from the barrister-led review are: 1) a full apology to Mr Kumar (whom the review noted “had always acted in good faith and in the interests of patient safety, and in line with his professional duties”); 2) proper integration of the important Specialist Advisor role within CQC; 3) improved access to appropriate clinical expertise via Specialist Advisors; and 4) improved processes, policies and training for staff dealing with whistleblowing information, and for managers in supporting staff, including on handling allegations of race discrimination.
Ian Trenholm, Chief Executive of CQC, said:
“I want to thank all those who contributed to both reviews, and in particular Mr Shyam Kumar. I also want to apologise again for the unacceptably poor treatment Mr Kumar received from us both prior to and during the employment tribunal, and for our failure to recognise the impact of this on him personally and professionally. The fact that he was prepared to engage positively with these reviews is testament to his motivation to improve care for people – we are grateful for his help in working towards this shared goal.”
“Now the Board have received these reports, it’s important that we take time to consider how they can be a catalyst for meaningful change. We will be doing that in the coming weeks and will make a full response at our next Public Board meeting, including clear implementation plans to ensure that the recommendations from both reports are incorporated into the way we work. I want this to be a turning point for us.
“It's crucial that people feel confident that when they share concerns with us, we act appropriately on these concerns to prevent poor care and to support providers to improve. For people to have that trust, we as the regulator need to acknowledge when we get things wrong and commit to doing better. These reports set out where we got things wrong and I, the Board, and my leadership team are absolutely committed to using them to help us do better in the future.”
Scott Durairaj, Director of the Listening, Learning, Responding to Concerns review, said:
“It is positive that CQC has taken active steps to openly scrutinise its culture and behaviour – what will be crucial now is how this is used to drive real change. It’s critical that a robust evaluation approach has been built into this review from the outset to ensure clear governance around monitoring both the delivery and impact of the recommendations.
Working with external experts has been integral to maintain the independence and integrity of this review and I would like to extend thanks to the independent review board for their rigour and challenge. I also have to offer special thanks to Mr Shyam Kumar for his commitment to contributing to improvements that make a difference to people and patient safety.
“As this review also examined impact on CQC’s workforce, I would like to thank all trade union representatives, internally and nationally, who have supported the review. I would also like to thank the CQC staff equality networks for their openness, honesty, and commitment in helping to inform this review and supporting CQC to deliver on the recommendations.
“Finally, I would like to thank all people who courageously speak up. I hope to work towards a future where everyone in the health and care system feels empowered to raise concerns, and where speaking up is seen by all as a positive act to keep people safe.”
Summary of findings from the Listening, learning, responding to concerns review:
Organisational findings
There was clear evidence, during the scoping, design phase and throughout the review, of a widespread lack of competence and confidence within CQC in understanding, identifying, and writing about race and racism.
Within the limitations of this review, both in time and scope, neither direct nor indirect race discrimination was able to be identified as described in the Equality Act. There was however evidence identified that could correlate to systemic patterns effecting ethnic minority people, which does need further examination to be addressed. There is also a linked lack of understanding about the requirements placed on CQC under the public sector equality duty, and a need to have a wider understanding of the Equality Act 2010 and its requirements.
Workstream 1: Reviewing how well we listen to whistleblowing concerns
The way ‘whistleblowing’ is defined and understood within CQC is overly complex and there is not a common or shared understanding across our staff. We found an unacceptable level of variation in the way we responded to workers and some concerns had been handled poorly. Alongside this we found evidence of good intention from CQC staff and examples of good practice. We do not currently collect data about workers’ protected characteristics and whether we knew the identity of the worker, which means we cannot say whether people with protected characteristics experience institutional or interpersonal discrimination.
Workstream 2: Reviewing our Freedom to Speak Up policy
The review found a lack of confidence in speaking up in CQC and a lack of proactive support for the CQC Guardian. The CQC Freedom to Speak Up policy had not been updated to reflect the new national policy and guidance published by NHS England in 2022. A new policy will be an important first step to building a vibrant speak up culture, along with other work needed in this area.
Workstream 3: Learning from the tribunal case
There was a lack of clarity regarding who was responsible for providing instructions to the Government Legal Department or litigation strategy, which meant there was a limited interpretation of Mr Kumar’s pleaded case and opportunities for early assessment of the case merits and early conciliation were missed.
Workstream 4: Reviewing how we listen to our staff
We did not follow our own best practice policies when it came to Management of Change and the Trade Union Recognition and Facilities Agreement. Although there was good intention behind this decision, with leaders wanting to be clear to inspectors that their jobs were secure, the breakdown in trust, confidence and communication could have been prevented.
Some equality impact assessments were undertaken at key stages, but they did not consistently inform decision making. There is evidence that public sector equality duties were not fully understood by all critical parties involved. Reasonable adjustment processes lacked consistency, which impacted on some colleagues. The overall approach was unstructured and did not always meet the needs of staff.
Before September 2022, there were no comprehensive policies or processes in place governing the appointment, contracting, deployment and disengagement of advisory and complementary staff. Improvements have been made, but there is still more to do.
Workstream 5: Reviewing the expectations and experiences of people who raise concerns with us
When the public and health and care workers raise concerns with us, they see it as a serious matter and as a last resort. People told us that they find our channels for raising concerns easy to use. However, they are often frustrated and disappointed by our response and feel that we are not meeting their expectations. This is, to some extent, due to the limitations of our statutory role in individual complaints resolution but also due to our need to better demonstrate how we are acting on people’s concerns and to improve our response back to individuals.