BY

EMAIL

To Mr Andrew Hines, NHS Trust Development Authority, Associate Director
of Delivery and Development, 6 September 2015

Dear Mr Hines,

Re Regulatory investigations triggered by Employment Tribunal findings

Thank you for your very prompt letter of 27 August which was a response
to my letter of 22 August to Mr Bob Alexander on the above matter. Both
are attached.

Obviously, I am disappointed to hear that TDA does not intend to
investigate the governance issues raised by the Employment Tribunal (ET)
judgment against Croydon Health Care NHS Trust because there is an
ongoing appeal process.

In a nutshell, after Dr Kevin Beatts patient safety concerns were
suppressed by senior managers, patients were put at risk of harm and a
patient died.

Patient safety should be paramount. If there is an alert of potentially
serious governance failure that impacts on patients, it should be promptly
investigated regardless of whether a parallel legal process continues.

Arguably, Croydons appeal against a damning ET judgment demonstrates a
significant lack of insight and learning. Moreover, it is a questionable use of
precious public resources by the Trust board. These issues seem to be
additional reasons to investigate rather than not to investigate.

Indeed, it is recognised that unreasonable appeals are a means by which
some Trusts draw out their punishment of whistleblowers, and individual
cases have prompted calls for the investigation of financial management in
such trusts. [1] [2] I would have hoped that TDA would be cognisant this
and would regard such appeals as matters that should be scrutinised.

Regulators appear to have been inconsistent in their approaches at

Croydon. CQC, in contrast to TDA and despite the ET appeal process,
accepted and considered an FPPR referral by Dr Beatt. This indicates that
there is no legal impediment to regulators examining the issues.

Therefore:

1) I would be very grateful if TDA would clarify whether its decision not to
investigate matters at Croydon has a legal basis, and what this might be.

2) I would be very grateful for TDAs response to my general question:

I would also be grateful for general information on how TDA will
respond to future ET findings, and what criteria it will use when
deciding on whether to investigate NHS providers on the basis of ET
findings.

3) I note that CQC and TDAs published guidance show that both bodies
have a remit for FPPR, and that TDA has a remit for ensuring that Directors
are fit:
The NHS TDA is responsible for ensuring that all chairs and non-
executive directors of NHS trusts meet the fitness test and do not
meet any of the unfit criteria. [3]

I would be very grateful to know:

a) How in general CQC and TDA relate to each other on FPPR.

b) Whether it is possible for TDA to undertake a review of the fitness of
the non-executive directors at Croydon with respect to the
appropriateness of the Trust appeals against the ET judgment,
and whether there has been appropriate learning from the ET
judgment.

Yours sincerely,

Dr Minh Alexander

cc Mr Bob Alexander Chief Executive NHS Trust Development Authority

[1] 21 Ways to Skin a Whistleblower. From Shoot the Messenger Private
Eye special issue 2011.

[2] Uncharitable Trust. Private Eye April 2015, regarding the case of Dr
Antoinette Geoghegan and Northumberland Tyne and Wear NHS
Foundation Trust

[3] Delivering for Patients: the 2015/16 Accountability Framework for NHS
trust boards. NHS Trust Development Authorit