The Petition of Mr Shahzada Hussain,
Declares that the petitioner is a resident of Sheldon, Birmingham and an award winning Web Development Manager working for the Heart of England NHS Foundation Trust (HEFT). In 2006, Mrs Lisa Thomson, Corporate Affairs Director, appointed her stepson, Chris Thomson, to a post within the Trust and placed him in my department under my supervision. I requested his dismissal on performance grounds and this was agreed. From that point I noticed a change in my treatment within the organisation with a pattern of harassment and bullying, including having to give up my office and being made to work from home for three years.
I made a formal complaint to the Chief Executive, Dr Mark Newbold and by doing so did a Protected Act. Dr Newbold is the champion of the whistle blowing policy and he has declared publically in an interview in the Solihull Times Newspaper (21.6.13), as well as in blog posts, that he has an open door policy for staff and that notice should be taken of whistle blowers. However, his response to my complaint was to refuse to see me and he referred me to the Director of Workforce, Mrs Hazel Gunter who attempted to dissuade me from progressing this.
I was still suffering from severe stress when Mrs Thomson suspended me on the basis of informal feedback she had received from KPMG. Whilst ill, a colleague of mine, Mr Glenn Mannion, gained unlawful access to my private server, without my knowledge or consent in contravention of the Computer Misuse Act 1990 and downloaded my private data onto an NHS computer. Evidence shows that the information he obtained from my server was to be later used to support an unfounded allegation of fraud by abuse of position against me. I was desperate to prove my innocence and get back to work and hold Mrs Thomson, Mrs Emma Hale, directorate budget controller, and Mr Mannion accountable for their conduct.
I made a formal complaint to the Economic, Serious and Complex Fraud Unit of West Midlands Police, who determined that there was prima facie evidence of a crime and they issued a crime number (Crime No 20BE/ 196044B). However, they determined that the matter should be investigated by the Trust, with the consequence that there has been every possible attempt by my employers to cover up what I understand to have been acts of criminality committed against me. Despite returning a second time to the police, they have still taken no action whatsoever and have shown no desire to give me the opportunity of making a formal statement.
Mrs Thomson commissioned a criminal investigation by KPMG and I was interviewed under caution in the presence of my solicitor, by Mrs Karen Sharrocks, Counter Fraud Specialist. Mrs Sharrocks failed to interview key witnesses nominated by myself whom I said would be able to prove my innocence and she also did not consider personal financial data that I offered to her. KPMG concluded “on the balance of probabilities SH has abused his position and gained financially from his actions.” I was so concerned about the way this investigation was conducted, and desperate to prove my innocence that I asked for an independent investigation to be undertaken by NHS Protect. Their investigation was undertaken by a Local Counter Fraud Specialist, who conducted a very thorough and extremely professional investigation. Amongst a number of very serious criticisms that he made about the KPMG investigation, he stated “The KPMG investigation was poorly conducted and made recommendations which were not adequately supported by facts of the matter. A number of lines of enquiry were either not followed or were actively avoided. No rationale has been provided for the decisions arrived at in respect of these, however, one could speculate that the investigator’s convenience may be a driver here”. He also states “I believe the criminal investigation conducted by KPMG fell short of acceptable standards. The LCFS did not pursue all reasonable lines of enquiry.” He goes on to say “No attempt was made to verify whether or not Mr Hussain had actually profited from his activities”, and interestingly says “From evidence supplied by Mr Hussain to me it appears that he has incurred costs in excess of the amount he invoiced and was paid by the Trust.” Finally he says, “The LCFS undertook to inform NHS Protect ‘for them to consider the evidence’. This simply did not happen”. What concerns me greatly is that Karen Sharrocks actively failed to consider important evidence offered to her by me, which in turn brings into question the independence and fairness of her investigation, given that it was paid for by the Trust, and whether such investigations are wielded by employers as a weapon to prevent whistle blowers from speaking out. In September 2014 I was reimbursed just over £5,000 in expenses I had incurred as part of the provision of hosting for a number of websites for the trust that KMPG had concluded I had benefited financially from.
On my return from sick leave I lodged two grievances. For the first, the investigating officer, Mr Martin Long, failed to interview me. For the second the investigating officer, Mrs Kim Orlandini, not only turned down my complaints but she was unable at the feedback meeting to substantiate her findings with any supporting evidence. Like Mr Long, she left the Trust’s employment following her investigation. I submitted appeals to the findings of these two investigating officers within the ten day deadline stipulated in Trust policy, and some two years later the appeal hearings are still outstanding.
I was so concerned about the irregularities in procedure and how unfairly the Trust was dealing with these matters, that I had no alternative but to raise a formal whistle blowing complaint. It was at this point that I was told to direct all future correspondence to the Trust’s solicitors, Capsticks, who would now be dealing with me. Capsticks appointed a private investigator, Miss Nora Bartley to conduct a whistle blowing enquiry. Initially the Trust refused to allow my MP to attend a meeting with her and the Terms of Reference were provided to me one day before the first meeting with Miss Bartley. They had been drawn up by Capsticks, without my involvement and they did not adequately reflect my whistle blowing concerns, but rather had an unhealthy focus on a reinvestigation of my original employment grievances. I had to insist that the meeting be deferred in order that I could submit an amended Terms of Reference. I submitted an amended Terms of Reference which was initially accepted by the Trust. However, two days before the meeting was due to take place, Capsticks informed me that a number of key areas of my Terms of Reference were to be omitted from Miss Bartley’s investigation. I expressed my disquiet that the investigation would not fully encompass my entire whistle blowing concerns and that Miss Bartley was not a member of a regulatory body and, therefore, best practice could not be assured. My protestations fell on deaf ears. Miss Bartley continued with her investigation, she did not take formal evidence from me and failed to interview the important witnesses I nominated. Furthermore, she did not consider additional evidence that would have been provided by NHS Protect, which would have been crucial in determining the truth.
As is demonstrated in my case, KPMG provided the Trust with a report that was used as a means to suspend me even though the findings within that report are “not adequately supported by facts of the matter”. This report was produced by KPMG as a result of an investigation that ultimately has been determined to have fallen short of acceptable standards, yet I still remain suspended, accused of impropriety with my health, career and reputation in tatters. The Trust has been unable to tell me how much was spent on the criminal investigation conducted by KPMG and claim that they purchase an annual local counter fraud package from them. I have put in a Freedom on Information request for this information in the wider public interest.
On the recommendation of the Secretary of State for Health I have lodged a formal complaint with Monitor, who is currently investigating and is considering potential breaches of the Trust’s Provider Licence conditions.
NHS employees are being encouraged to raise concerns in the wider public interest; however as the systemic failing in the petitioners case demonstrates, it is not a safe environment in which to do so. To further compound this problem, the petitioner’s case also highlights a lack of support towards whistle blowers. There is not an organisation in the country that has the remit or authority to take ownership of a whistle blowing complaint in its entirety and investigate all intrinsically linked matters. HEFT took the decision to spend huge amounts of public money commissioning the services of Capsticks Solicitors, KPMG and Nora Bartley when the petitioner took the courage to raise his concerns. It seemed that the people he was raising concerns about were ultimately in charge of determining proceedings and commissioning supposedly independent investigations on themselves.
The Petitioner therefore requests that the House of Commons holds a parliamentary debate to discuss the validity for the creation of a national whistle blowing authority.
The Petitioner requests that the cost of the KPMG investigation conducted by Karen Sharrocks is refunded to the Trust, and that the money is used to purchase medical equipment to support the needs of his clinical colleagues.
The Petitioner also requests that the House of Commons Public Accounts Committee reviews how accountancy firms are commissioned to write reports which are thought to be independent, but in fact the conclusions are driven by the demands of the commissioning body and the ICAEW refuses to investigate; further requests that the details of how I was persecuted as a reasonable whistle blower are considered by the Health Committee with a view to changing regulations to stop this happening to other people in the future.
And the Petitioner remains, etc.—[Presented by John Hemming, Official Report, 22 October 2014; Vol. 586, c. 13P.]
[P001392]
Observations from the Secretary of State for Department of Health:
NHS staff, present and former, should be able to come forward with any concerns about patient safety. We expect those working in the NHS to be supported in raising concerns. Trusts should have whistle blowing policies in place that are compliant with the Public Interest Disclosure Act 1998 (PIDA). To that end, on 24 June 2014, I commissioned Sir Robert Francis QC to carry out the Freedom to Speak Up review, to provide independent advice and recommendations on creating a more open and honest reporting culture in the NHS, to identify measures to help foster a culture of reporting and consider what more can be done to further protect NHS workers who speak out in the public interest. The review is expected to report at the end of November 2014.
The concept of vicarious liability in the context of whistle blowing was introduced through section 19 of the Enterprise and Regulatory Reform Act 2013, and came into effect on 25 June 2013. We welcomed this change in employment law which provides even greater whistle blowing protections. Introduction of these provisions mean that where bullying or harassment of a whistle blower by a fellow worker is proved, this is treated as being done by the employer.
Furthermore, in March 2014, the Government published their response to the call by the Department of Business, Innovation and Skills for evidence on the whistle blowing framework which details both legislative and non-legislative measures which will be taken to clarify and strengthen whistle blowing legislation and demonstrate the valuable role whistle blowing can play in an organisation.
It is for the Public Accounts Committee and Health Committee respectively to determine the matters they will consider.