7The Care Quality Commission
123.The Care Quality Commission (CQC), as the regulator, should be a bulwark against human rights abuses of those detained in mental health hospitals. On its website the CQC asserts that it “protects the rights of vulnerable people including those restricted under the Mental Health Act.”162 However, evidence examined in this chapter suggests that the CQC’s ability to carry out this function is impaired and its approach and processes are in need of urgent reform.
Whorlton Hall
124.On 22 May 2019 a Panorama documentary aired on BBC1 showing reporter Olivia Davies working undercover at Whorlton Hall, an independent mental health hospital. It revealed patients with learning disabilities and/or autism being mocked, taunted and intimidated by abusive staff.163 They were deliberately provoked by staff who then physically restrained them.
125.In the years preceding these events the CQC carried out a number of inspections of Whorlton Hall:
- August 2015: An inspection team led by Barry Stanley-Wilkinson carried out a routine inspection of Whorlton Hall. A draft report, rating the establishment as ‘Requires Improvement’ was prepared but not published.164
- March 2016: a further inspection was carried out. A report of this inspection, which states that it also covers the findings of the August 2015 inspection visit, was published in June 2016. Whorlton Hall was rated as ‘Good’ but ‘Requires Improvement’ for safety.
- August and November 2016: further inspections were carried out to check improvements had been made. The inspection in August was prompted by concerns about the quality of care that were brought to the CQC’s attention since June. Following the November inspection Whorlton Hall was rated as ‘Requires Improvement.’
- September 2017: a routine inspection took place. The report published in December 2017 rated Whorlton Hall as ‘Good’.
- March 2018: an inspection took place in response to whistleblowing concerns received by CQC. These highlighted issues in staffing and patient safety, culture and incident monitoring. No rating was given as part of this inspection. In the report published in May 2018 some concerns about safe staffing levels were flagged but the inspection picked up no signs of the kinds of abuse revealed in the secret filming.
The ‘2015’ draft report
126.In response to the broadcast of the BBC Panorama programme, Barry Stanley-Wilkinson, a former CQC inspector, came forward and revealed that he had led an inspection of Whorlton Hall in August 2015. This had raised significant concerns but the report from the inspection was never published.165 We contacted him, and he provided us with correspondence relating to the decision not to publish the report which we made available on our website.166
127.In response to Mr Stanley-Wilkinson’s comments the CQC posted this statement on its Twitter account on 22 May 2019:
“A CQC inspection of Whorlton Hall was carried out between 4–6 August 2015. The draft report from this did not identify any concerns about abusive practice. All CQC reports go through a rigorous peer review process conducted by inspection colleagues; during this process it became apparent that the inspection team in 2015 had not collected evidence that was robust enough to substantiate a rating of Requires Improvement. A new comprehensive inspection was undertaken in March 2016, which rated the Hospital Good overall, but Requires Improvement, for Safety. We are clear however that no CQC inspection of Whorlton Hall, whether the report of that inspection was published or not, raised any concerns about abusive practices among staff. [ … ]”167
128.Ahead of our oral evidence session on 12 June we requested a copy of the unpublished 2015 report from the CQC. On 10 June the CQC provided us with five versions of the report and posted them on their website.168 These versions had been commented upon, including by a peer reviewer, report writing coaches and a management reviewer.
129.The chief reason given by CQC management for the decision not to publish the report was the perceived failure of the inspection team to collect sufficiently robust evidence to substantiate the rating of ‘Requires Improvement’ that was proposed.169 However, our examination of the draft report revealed that it did contain evidence of serious failings that in our view could justify the ‘Requires Improvement’ rating recommended by the inspector. In particular, the draft report recorded accusations of bullying and inappropriate behaviour by staff, use of “seclusion” without proper processes, under-staffing, neglect of the needs of patients and low levels of staff training.170 Some examples of comments made in the draft report include:
“Patients had accused staff of bullying and using inappropriate behaviour. [ … ] We did note in one patient’s records it stated, where they made allegations against staff the first step was to “ignore” the allegation.”171
“The service used a low stimulus room without any protocols or procedures for its use and essentially secluded patients without proper processes in place.”172
The fact that allegations about bullying and inappropriate behaviour had been made was not questioned or commented on in any of the versions of the draft report that the CQC provided us with.
130.In August 2015 the management of Whorlton Hall made a lengthy complaint to the CQC listing several concerns about the conduct of the inspection. For example, they complained about the size of the inspection team which they believed to be disproportionate and to have placed staff under undue pressure.173 The inspection team comprised of seven people; a lead inspector, an inspection manager, a psychiatrist, a psychologist an occupational therapist, a pharmacist, and an expert by experience.174 To us this does not appear excessive, as each person has a distinctive role in the team. However, in its response to the complaint (made nearly three months after it had been received), the CQC Inspection Manager agreed that the team was too big and when the service was next inspected in 2016 there were only three people on the inspection team; two CQC inspectors and one learning disability nurse specialist advisor.175
131.In January 2016, prior to his departure from the CQC Mr Stanley-Wilkinson made an internal complaint to CQC management setting out his belief that inspection reports were not being published despite significant findings that compromised the safety, care and welfare of patients. With specific reference to Whorlton Hall he wrote:
“I am concerned about the relationship managers have had with the service in that they are all familiar with the provider. [ … ] I was also told the complaint that was made about the inspection team made things difficult [in relation to the report being published].”176
132.While these concerns and the handling of the complaint from Whorlton Hall do not prove that the CQC management had an overly close relationship with the provider, taken together they do offer another potential explanation for the decision not to publish the 2015 report.
133.In response to the complaint made by Mr Stanley-Wilkinson an internal investigation was undertaken within the CQC. Internal emails provided to us suggest that in March/April 2016 Dr Paul Lelliot, Deputy Chief Inspector of Hospitals (lead for mental health) at the CQC, accepted a recommendation from the internal investigation to publish the report of the 2015 inspection. However, Dr Lelliot told us that he received the 2015 investigation report on or around 2 March 2016 and that in light of the new inspection of Whorlton Hall beginning the next day, he took a decision to include the findings of the 2015 report in the report of the 2016 inspection.177
134.We strongly question the proposition that the 2015 report was elided into the report of the 2016 inspection. Despite a number of references made to the earlier report, key information was left out of the 2016 report. For example, the 2016 report concluded that “The hospital did not have a seclusion room. Following discussions with staff and review of care records we were satisfied that seclusion was not taking place in any other rooms.”178 This seems to have overridden the evidence found in the 2015 inspection that patients were being essentially secluded in a low stimulus room without proper processes in place. These more favourable judgments allowed an overall rating of ‘Good’ to be awarded to Whorlton Hall.
135.We expect that the ongoing investigation into the events surrounding the 2015 inspection of Whorlton Hall commissioned by the CQC and being conducted by David Noble QSO will provide a thorough examination of all these issues.179 If the propositions laid out here, on the basis of the evidence we have seen, are found to be correct, it is hard to see the 2016 inspection report on Whorlton Hall as anything other than a cover up. The suppression of the 2015 report was a catastrophic mistake which could potentially have prolonged the abuse experienced by patients at Whorlton Hall.
‘Closed cultures ‘
136.In her evidence Anne-Marie Trevelyan MP questioned why the CQC does not employ covert surveillance methods so that they can see what it truly going on in these places: “If a journalist going undercover as a staff nurse can identify this, why on earth did the CQC not do what I would call secret shopper activity as part of its inspection programme?”180
137.In oral evidence Dr. Paul Lelliot, told us: “I would repeat what I said on the “Panorama” programme, which was that clearly we did not detect what was going on. I am deeply sorry about that because we could have saved people from continuing abuse.” The reason the CQC gives for this failure is that it is difficult to get under the skin of this type of ‘closed culture’.181 Ian Trenholm, CQC’s Chief Executive, told us that the perpetrators of abuse at Whorlton Hall “appeared to collude in a way that deliberately thwarted our methodology. We need to reflect on that. We must change our methodology to think differently about these things.”182
138.We are astonished that the CQC does not appear to have considered the possibility that abusers would “collude in a way that thwarted” its inspection methodology. We agree it essential that the CQC changes the way it conducts inspections and does so urgently.
St. Andrew’s
139.As far back as at least 2013 serious concerns have been raised in successive CQC inspection reports about the treatment of patients at St Andrew’s Healthcare Adolescents Service in Northampton (St Andrew’s):
- November 2013: an inspection report highlighted that patients being kept in conditions amounting to solitary confinement had been denied access to toilet facilities, food and drink.183
- December 2016: Helen Hayes MP made a complaint to St. Andrew’s about the treatment of one of her young constituents who was detained there. Following a visit to the hospital she was very concerned for his welfare and did not feel that he was receiving appropriate treatment. The complaint was upheld by the hospital, but no further action was apparently taken.184 In the same year the CQC inspected St. Andrew’s and rated it as ‘Requires Improvement’.185
- October 2018: the Secretary of State requested that the CQC carry out an investigation into conditions at St. Andrew’s in response to the publicity surrounding Bethany’s case. The CQC’s report of that investigation, published in February 2019, again noted a number of areas that needed to improve.186
- June 2019 a further report on St. Andrew’s following an inspection in March and April this year was published, which rated it as ‘Inadequate’.187 It has now been placed in special measures. This means that the service has been given six months from June to improve and if it does not it may then be deregistered.
140.Given the long-standing concerns about St. Andrew’s we asked the CQC senior managers why is it still open nearly nine years after concerns were first raised. In response Dr Paul Lelliot told us:
“Your central premise that there have been long-standing concerns about the use of restrictive practices at St Andrew’s is true. My recollection is that we go in there and inspect. After we pick up on issues, things get better. Then either they slip back or there are problems in another part of this big organisation. We find that they have sorted out something in this part, but not in another. That seemed to be the pattern. That is the pattern in my head, but over the last six months or so we have taken very decisive action against two important parts of this provider.”188
While we accept this contention that a service may change, sometimes rapidly, over time, it leaves us very concerned about the degree of trust that can be placed in inspection reports. We also question whether the CQC is responsive enough where a clear pattern of complaints and poor inspection reports, albeit with periodic improvements, emerges.
A wider problem?
141.Whorlton Hall and St. Andrew’s are not isolated cases. In written evidence to this inquiry, including in a number of submissions made on a confidential basis, other institutions have been named as places where young people have experienced abuse.
142.Since the Whorlton Hall scandal in May 2019, very serious concerns have also been raised publicly about a number of other hospitals. For example, West Lane Hospital in Middlesbrough was closed by the CQC in August 2019 after an inspection report found that “[p]atients were not safe and were at high risk of avoidable harm at West Lane Hospital.”189 CQC had previously inspected the service in June 2018, rating it “Good”.190
143.In its written evidence the Centre for Welfare Reform questioned whether regulation can ever prevent abuse of the kind witnessed at Whorlton Hall:
“There is no empirical evidence that regulation even increases quality, in more ordinary care settings. Worse, we know that regulators constantly fail to spot extreme abuse. In the case of Winterbourne View it was Panorama - not the CQC - that discovered the abuse. And when I met with families whose children had been at Winterbourne View they said that Winterbourne View was the “least bad” institution that their children had been placed in. In other words Winterbourne is not an exception - it is the norm - and CQC is not changing this and cannot change this. In fact, regulating services effectively normalises them - it institutionalises the institution as an acceptable offer.”191
Analysis of information provided by CQC and NHS Digital
144.In order to look at the scale of concerns raised about providers, we requested data on a sample of inpatient services, from the CQC and NHS England. The services were purposively sampled to represent a range of NHS and independent sector provider organisations and a range of CQC overall ratings. We appointed Professor Chris Hatton, Professor of Public Health and Disability, at Lancaster University, as Specialist Adviser to the Committee and asked him to analyse the information. This analysis examined the information available to the CQC on 20 services; whistle-blowing contacts, safeguarding alerts and concerns, notifications, data on restrictive interventions, assaults and self-harm, and looked this information is related to inspections carried out by CQC. The full analysis is available on our website.192
145.A key conclusion we have drawn from this research is that there is a lack of an obvious relationship between the information that CQC has available to it about a service and its inspection ratings or regulatory actions relating to that service. Most inspections are scheduled and occur approximately every 18 months–2 years, with focused inspections tending to follow up specific aspects of scheduled comprehensive inspections. Beyond routine inspections, there seems to be little relationship between the information presented in the analysis and the timing of inspections, even when notifications of abuse or allegations are at very high levels, prone restraints are being recorded or police incidents in the service occur regularly. Across the 20 services analysed, 18 of them had at least one whistleblowing contact over the time period, but of the 136 whistleblowing contacts only 7% resulted in an earlier than planned inspection (see Graph 1 below). The analysis does not include the timing of media reports or other external scrutiny. These may be more relevant in triggering inspections than the information reported to the CQC or whistleblowing contacts.
GRAPH 1
146.One of the CQC’s four strategic priorities for the period 2016 - 2021 is to “[d]eliver an intelligence-driven approach to regulation”. To achieve this it says it will “[l]ook at potential changes in quality by bringing together relevant information about a provider.”193 The evidence from our analysis suggests that this is not happening, at least not consistently.
Responding to concerns from individuals and families
147.It is unclear from the information provided for our analysis how the CQC records or responds to concerns raised by people in these services and/or their family members, if they are not recorded by the service provider or don’t reach the (rare) threshold of a safeguarding alert. The Challenging Behaviour Foundation felt that such concerns are not taken seriously enough by CQC:
“The reports of families and individuals (or from charities or advocates on their behalf) are not counted as “evidence” even where there are resulting injuries or clear changes to behaviour, mental health or emotional well-being, likely to be associated with trauma.”194
148.In its approach to “evidence” the CQC appears to be starting from a perspective of defending its judgments to service providers rather than that of responding to families and individuals. Ian Trenholm, Chief Executive of the CQC told us:
“A range of different providers will challenge our ratings process. That is why we have this quite complex quality assurance process[ … ] It is why we make such a big deal out of making sure that we can triangulate evidence and all these things.”
149.Witnesses also argued that the CQC inspection process at points loses sight of those who it is supposed to be protecting. Dame Christine Lenehan, from the Council for Disabled Children, told us:
“[ … ]the way the inspection process is set up, people inspect paperwork and processes; they do not inspect the lives of the people using services, they do not inspect context. “Do you have a book that says how often you have restrained people? Oh, yes, you have a book. Tick”.195
A responsive regulator?
150.The time from inspections to reports and/or regulatory actions being taken is a further issue of concern highlighted by the analysis. As Graph 2 below shows, the time from inspection to published report (with regulatory actions usually published on the same date as the report) has remained fairly steady at an average 80 days from 2017 through to 2019, a substantial improvement from 2015 and 2016 but still longer than under the previous framework in 2014. In some cases the delay is significantly longer than average. For example, a 2017 inspection report on wards for people with learning disabilities and autism at Brooklands Hospital, which is part of Coventry and Warwickshire Partnership NHS Foundation Trust, was not published until 8 November 2017, 137 days after the inspection took place.196
GRAPH 2
151.In evidence Caoilfhionn Gallagher QC drew our attention to the CQC’s inspection of Lancaster Lodge where Sophie Bennett was living when she died in May 2016.197 Sophie was 19 and had diagnoses of Bipolar Affective Disorder, Social Anxiety Disorder, and atypical autism. An inquest which took place in 2019 found that “neglect” contributed to her death.198 Caoilfhionn Gallagher QC told us:
“One concern I have is that, even when very serious problems are identified to the CQC, including with safety, there is a time lag before decisions are made and actions are taken. Although this is in a slightly different context, the recent inquest into the death of a young lady called Sophie Bennett is worth looking at on this point. The CQC had produced an incredibly damning report that resulted in most patients being moved out of the placement, with a small number of patients remaining in, one of whom ended up losing her life in an entirely foreseeable accident and in circumstances where the CQC had identified failings months previously. When the CQC identifies serious failings that relate to safety and fundamental breaches of human rights, what happens next?”199
152.While there must be quality assurance processes to guarantee the reliability of inspection reports we are concerned that these are preventing reports being published and regulatory actions being taken swiftly.
Role of NHS Commissioners
153.Although we have focused here on the role of the Care Quality Commission there are others who must share responsibility for oversight of services where young people with learning disabilities and/or autism are detained. Most obviously this includes those who commission placements for young people; usually local Clinical Commissioning Groups (CCGs).
154.We are not confident that CCGs are doing enough to assure themselves that the care and treatment they fund in these settings is safe and appropriate. In the unpublished 2015 inspection report on Whorlton Hall it was noted that “The service did invite external agencies to the multidisciplinary meetings, such as commissioners. They often did not attend and subsequently did not contribute to the meetings but were sent the minutes.”200
155.On 18 June we wrote to Simon Stevens, Chief Executive of NHS England to ask whether he agreed that oversight of these institutions is a responsibility that his organisation shares with the CQC.201 In response NHS England told us:
“the NHS will be improving its quality assurance process for specialist inpatient, care and treatment placements. Out of area inpatients with a learning disability and/or autism will regularly be visited onsite. The host Clinical Commissioning Group will also be given new responsibilities to oversee and monitor quality of care for hospitals in their local areas.”202
CCGs already have responsibilities to oversee and monitor the quality of care, for example in organising CTRs and CETRs. NHS England are also direct commissioners of inpatient placements for people with learning disabilities and/or autism and must take responsibility for overseeing and monitoring these. We urge NHS England to monitor closely to ensure that visits are in fact made to those in both locally and centrally commissioned placements and that they lead to improvements in care and treatment.
Conclusion
156.Too often it is left to the media to be human rights defenders. In this case, were it not for the BBC, Sky News and Ian Birrell writing for the Mail on Sunday we would still be unaware of the extent to which those with learning disabilities and/or autism are being abused while being detained by the state. They are performing a hugely valuable role, but it should not be necessary for them to do so.
157.The failure to detect potential human rights abuses at Whorlton Hall and other hospitals detaining young people with learning disabilities and/or autism has exposed failings in the Care Quality Commission’s inspection process. A regulator which gets it wrong is worse than no regulator at all. Substantive reform of its approach and processes are essential. We hope that the independent review of CQC’s regulation of Whorlton Hall between 2015 and 2019 being undertaken by Professor Glynis Murphy will make recommendations for such reform. In our view these should include:
- Measures to ensure that inspections are more fleet of foot. For example, unannounced inspections should take place at weekends and in the late evening.
- The use, where appropriate, of covert surveillance methods to better inform inspection judgements. In cases when tightly knit groups of staff seek to avoid scrutiny, whilst neglecting and abusing the most vulnerable people, inspectors should consider using the methods used successfully by journalists.
- Where concerns are raised by patients and family members about treatment these must be recognised by the CQC as constituting evidence and acted upon.
- Changes, including legislative changes if necessary, to make sure that the CQC is able to act more swiftly where concerns about a service are raised and substantiated.
- A review of the system which currently allows a service to be rated as ‘Good’ overall even when individual aspects, such as safety, may have a lower rating.
162 Care Quality Commission, “who we are”
163 Olivia Davies worked at Whorlton Hall for a period of 2 months at the beginning of 2019
164 On 5 June 2019 the Committee, having been made aware of the draft report, made a request to the CQC for a copy of it. On 10 June 2019 the CQC provided us with five versions of the report and published them on its website.
166 Evidence published from former Whorlton Hall Inspector, Mr Stanley Wilkinson
167 Twitter statement 22/05/19
168 Care Quality Commission, CQC shares previously unpublished findings of 2015 inspection of Whorlton Hall, 10 June 2019
170 Care Quality Commission, CQC shares previously unpublished findings of 2015 inspection of Whorlton Hall, 10 June 2019
171 Draft Inspection Report ‘Post IM Review’ 16 December 2015 p.18
172 Peer review of draft Whorlton Hall report 25 November 2015 p.2
173 A (redacted) letter from the CQC to Whorlton hall, responding to a complaint from them after the 2015 inspection
174 Two inspectors in training and a support worker were also in attendance.
175 A (redacted) letter from the CQC to Whorlton hall, responding to a complaint from them after the 2015 inspection
176 Email correspondence from Mr Stanley Wilkinson to HR, and Senior Management at the CQC, explaining his decision to resign
178 Care Quality Commission, Whorlton Hall, Quality Report, 17 June 2016, p.10
179 On 16 October 2019 David Noble QSO published a letter updating the CQC Board about progress with his review and outlining his preliminary conclusions
181 Care Quality Commission - Statement on Panorama: “Sickening abuse of vulnerable people”, 22 May 2019
183 Care Quality Commission, Inspection Report, St Andrew’s Healthcare - Adolescents Service, November 2013
184 Helen Hayes MP shared copies of this correspondence with the Committee but we have not published it.
185 Care Quality Commission, St Andrew’s Healthcare: Women’s, Men’s, Adolescent and Neuropsychiatry services. Quality Report, 16 September 2016
186 Care Quality Commission, St Andrew’s Healthcare - Adolescents Service, Quality Report, 27 February 2019
187 Care Quality Commission, St Andrew’s Healthcare Adolescents service, Quality Report, 6 June 2019
189 Care Quality Commission, Tees Esk Wear Valleys NHS Foundation Trust Child and adolescent mental health wards, Quality Report, August 2019 and Tees, Esk and Wear Valleys NHS Foundation Trust, West Lane Hospital, Middlesbrough, updated 20 September 2019
190 Care Quality Commission, Tees, Esk and Wear Valleys NHS Foundation Trust, Inspection report, October 2018
192 Analysis from Professor Hatton in support of the inquiry into the detention of children and young people with learning disabilities and/or autism
193 Care Quality Commission, Shaping the future: CQC’s strategy for 2016 to 2021, May 2016
196 Analysis from Professor Hatton in support of the inquiry into the detention of children and young people with learning disabilities and/or autism
197 The Care Quality Commission (CQC) has informed Richmond Psychosocial International Foundation (RPFI), that it will be prosecuted over an alleged failure to provide safe care and treatment resulting in a service user being exposed to the significant risk of avoidable harm under regulations 12 and 221 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014; and that an individual will be prosecuted in this respect pursuant to section 91 of the Health and Social Care Act 2008.
198 “Jury find neglect contributed to self-inflicted death of teenager Sophie Bennett in care home”, Inquest
200 Draft Inspection Report ‘Post IM Review’ 16 December 2015 p.23
201 Letter from the Chair to Simon Stevens, Chief Executive, NHS England, regarding requesting information on the Care Quality Commission, dated 18 June
202 Response from Ray James, National Director for Learning Disability, NHS England and NHS Improvement, to Chair, regarding response to additional questions, dated 3 July
Published: 1 November 2019