Memorandum of understanding - National Guardian’s Office

Memorandum of understanding between the National Guardian’s Office, the Care Quality Commission, and NHS England/Improvement for the support and funding of the National Guardian’s Office, April 2021 to March 2023

Introduction

1. The parties to this memorandum of understanding (MOU) are the National Guardian’s Office (NGO), the Care Quality Commission (CQC), NHS England/Improvement (exercising the powers of Monitor and the NHS Trust Development Authority), together referred to as ‘the parties’.

2. The MOU does not affect the statutory responsibilities or functions of CQC, NHS England/Improvement, or the functions of the NGO, but does confirm the operational independence of the National Guardian and the NGO in carrying out their functions. The parties agree to deal with each other in line with this MOU, though noting that the MOU is not legally binding and will not be enforceable through the Courts in England and Wales.

3. This MOU provides a common understanding between the parties of the support required by the NGO. It sets out how the arrangements between the parties will operate on a day to day basis.

General principles for collaborative working

4. The parties share the common starting point of a:

• commitment to creating a culture of openness, trust and transparency across the NHS where all NHS workers can speak up without fear of recrimination and are listened to, and where leaders set a positive culture that supports speaking up
• shared goal of safe, high-quality healthcare delivery
• working towards aligning a consistent language, approach and feedback to workers across health and care.

5. The parties’ working relationship will be characterised by the following principles:

• respect for the independence of the NGO and the distinct positions of CQC, and NHS England/Improvement
• the need to maintain public confidence in all parties
• a pragmatic approach to effective communication
• the need to work together to ensure clarity about roles, avoid duplication and gaps, and ensure the efficient and effective use of resources
• the need to make timely decisions that promote patient, worker and public safety, and quality of care
• protection of, and respect for, the confidentiality of individuals who speak up, other than in exceptional circumstances (such as when legal requirements necessitate the disclosure of information)
• working within agreed information governance and intelligence-sharing arrangements.

Role and responsibilities of the parties

6. The NGO is responsible for:

• continuing to develop the network of Freedom to Speak Up Guardians increasing reach into the primary care landscape and other sectors, and providing Guardians with guidance, support, and training
• identifying and working with vanguard organisations in primary care to develop models for the effective implementation of the Freedom to Speak Up Guardian role in primary care and in an integrated landscape
• developing the case review process, building on the initial pilot and maintaining and improving opportunities for learning from instances where good speaking up practice has not been followed or where good practice can be spread further
• working collaboratively to drive consistency and quality in FTSU
• supporting the National Guardian in challenging, supporting and holding the health and care system to account to improve speaking up in all its forms.

7. The NGO will continue to work with NHS England/Improvement and providers of primary care to support the effective implementation of ‘Freedom to speak up in Primary Care: Guidance to primary care providers on supporting whistleblowing in the NHS’ with a view to developing an integrated, locally- based approach to speaking up across traditional primary and secondary care boundaries.

8. The NGO will make independent recommendations about changes needed in any healthcare organisation including but not restricted to NHS trusts, foundation trusts, primary care organisations, regulators and professional representative bodies.

9. The NGO will work in partnership with regulators and other bodies in the health system to enable them to role-model good speaking up practice and promote alignment of drivers that incentivise, monitor, regulate and support FTSU.

10. CQC, NHS England and NHS Improvement will:

• respond to any recommendations or referrals from the NGO including, where appropriate, taking action within their regulatory function
• support good working relationships with the NGO through agreed governance arrangements
• collaborate with the NGO to drive consistency and quality of FTSU, particularly where this falls below expectations
• bring to the attention of the National Guardian any relevant changes to their powers or their operating frameworks.

Arrangements for collaboration and cooperation

Appointment

11. The National Guardian is appointed by the CQC. The National Guardian is not a member of the CQC Executive Team.

Governance

12. The National Guardian will develop governance arrangements to enable the NGO to seek the advice of appropriate stakeholders and keep them informed of progress and developments. CQC and NHS England/Improvement will support these arrangements as appropriate and provide Non-Executive and Executive representation. Governance arrangements for 2020/21 are set out in Appendix 2.

Reporting

13. The National Guardian will produce an annual report which will be presented to the boards of CQC, NHS England/Improvement and laid before Parliament, detailing the progress they have made, performance of the NGO, and a statement of its finances. No reporting by the National Guardian will be subject to approval by CQC or NHS England/Improvement.

Referral of safeguarding concerns by the NGO

14. If the NGO receives a safeguarding concern, they will refer this to the safeguarding lead in the most appropriate safeguarding team, regulator or agency.

Referral of concerns by the NGO about the fitness of those engaged in carrying out regulated activities under the Health and Social Care Act 2008

15. If the NGO receives a concern about the fitness of directors or others (described in regulations 4 to 7 of the Health and Social Act 2008 (Regulated Activities) Regulations 2014), they will follow agreed mechanisms to refer this to CQC if it involves a CQC registered person.

Referral of concerns by the NGO about compliance with the duty of candour (regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014)

16. If the NGO receives a concern relating to the duty of candour, they will follow agreed mechanisms to refer this to CQC if it involves a CQC registered person.

Referral of concerns to NHS England/Improvement about performance of NHS trusts or foundation trusts and primary care organisations

17. If the NGO receives any concerns about the performance of NHS trusts or foundation trusts, or primary care organisations where appropriate, they will refer these concerns to NHS England/Improvement

Referral of enquiries or concerns to the NGO

18. If NHS England/Improvement and CQC receive concerns or enquiries about FTSU Guardian arrangements in an organisation, they will refer/signpost to the NGO.

Public discussions

19. The parties will involve each other as appropriate in meetings, conferences and other public discussions relating to issues within the remit of the NGO.

Press releases

20. Where it is in the interests of the parties, press releases or public statements agreed between some or all the parties to this MOU may be issued

Access for the National Guardian to Chief Executives and Chairs

21. The National Guardian and the NGO will have appropriate access to the Chief Executives and Chairs of CQC, and NHS England/Improvement. Regular communication will be through operational leads (Appendix 1).

Information governance

22. Any sharing of personal data will be in accordance with the General Data Protection Regulation (GDPR), the Data Protection Act 2018 and other applicable legislation and relevant common law (“data protection law”). The parties will have regard to data protection policies and protocols in their organisation and will comply with any data-sharing agreements between the parties.

23. As the NGO is part of and hosted by CQC, CQC is the ‘controller’ (as defined under Article 4(7) of GDPR) for personal data processed by the NGO. CQC is also the relevant ‘public authority’ (under Schedule 1 to the Freedom of Information Act 2000) for information held by, or on behalf of, the NGO. For the purposes of the GDPR, the CQC Data Protection Officer (DPO) is the DPO for the NGO.

24. The NGO has access to separate facilities to manage its information. For the purposes of access and sharing, any information received or generated by the National Guardian and the NGO will be treated as information held by a separate organisation, to the extent possible within the scope of compliance with legal obligations. Information held by the National Guardian will not be accessible by or shared with CQC, NHS England or NHS Improvement unless the National Guardian decides this is appropriate, or as necessary to comply with a legal obligation. NGO will be a member of the CQC Information Governance Group.

25. Information held by the NGO will be stored and protected in accordance with the Information Security Policies, protocols and standards of the CQC. Information held by the NGO will be covered by ‘restricted access’ protection to prevent it from being accessed without authorisation by other users of CQC systems. Access will be restricted to the National Guardian and those approved by the National Guardian, in accordance with the requirements of data protection law, the Security Policy Framework and any other relevant government standards.

26. The National Guardian will ensure that information and data held by the NGO is processed in accordance with data protection law and any other applicable legislation and government standards. The National Guardian will provide reasonable assurance to the CQC Senior Information Risk Owner (SIRO), and will support the DPO in carrying out their statutory role, as required.

27. CQC will provide IT and records management administration and support to the NGO. IT services may be contracted by CQC to an external supplier working under a contract with appropriate confidentiality, data protection and security requirements in accordance with legal obligations and government standards.

28. As responsible officer, the Chief Executive of the CQC will be the highest decision maker on FOIA and data subject rights issues but has delegated responsibility for decision making, in relation to data and information held by the NGO, to the National Guardian. The Chief Executive of the CQC is the ‘qualified person’ for the purposes of section 36 of the FOIA, unless this role is otherwise delegated by the Secretary of State.

29. The parties to this MOU agree to liaise and consult on requests for information received under the Freedom of Information Act 2000 (FOIA) and in handling and responding to data subjects exercising their rights under data protection law as appropriate.

30. Where the above support arrangements require access to NGO information by agents of the other parties, appropriate records will be kept but this information will not be retained or reused by the other parties for any other purpose (except as otherwise authorised by the National Guardian, or as necessary to comply with a legal obligation.

Complaints

31. NHS England/Improvement will provide support to handle and respond to complaints about the NGO and National Guardian, under arrangements agreed between the NGO and NHS England/Improvement. The parties to this MOU agree to liaise and consult as appropriate to assist with the handling of, and response to, complaints made to the National Guardian. As appropriate, responses to complaints will be signed-off by the Chair of the NGO’s Accountability and Liaison Board.

Resolution of disputes

32. Any dispute between the parties will be resolved informally in the first instance, if possible.

33. If it is not possible to resolve the dispute informally, the dispute will be notified to the contacts set out in Appendix 1, who will use their best endeavours to resolve the dispute.

34. If the dispute remains unresolved, the contacts set out in Appendix 1 notify their respective chief executives who, together with the National Guardian, will resolve the dispute.

Funding

35. The NGO is funded by CQC, and NHS England/ Improvement. The funding for financial years 2020/23 will be £1,666,666 and the parties will contribute the following amounts:

• NHS England/NHS Improvement: up to £1,333,333 per year
• CQC: £333,333

Invoicing Schedule

36. The CQC will invoice NHS England /NHS Improvement on behalf of the NGO retrospectively on a quarterly basis.

Implementation/application of this MOU

37. All parties commit themselves to working in accordance with the principles and approaches set out in this MOU.

38. This MOU:

• replaces any previous MOU between the parties
• is to be the main point of reference in respect of the agreed arrangements
• is for the benefit of the parties detailed and is not intended to benefit or be enforceable by any third party.

39. The agreement will begin on the date of signature by all parties.

40. The MOU will be reviewed at least annually, and any changes will need to be agreed by all parties.

Signatures

Original document signed by:

Dr Henrietta Hughes, National Guardian, Freedom to Speak Up
Care Quality Commission
Citygate
Newcastle upon Tyne
NE1 4PA

Ian Trenholm, Chief Executive, Care Quality Commission
Care Quality Commission
Citygate
Newcastle upon Tyne
NE1 4PA

Simon Stevens, NHS Chief Executive
NHS England & Improvement
Skipton House
80 London Road
London SE1 6LH

Appendices