Mr Tristan Reuser surgeon & GMC. Update on GMC, whistleblowing and implementation of the Hooper recommendations

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 13 December 2018

In 2015, shortly after Robert Francis published his government-pleasing offering on NHS whistleblowing, the Freedom To Speak Up Review, a more robust but less well known report was published. This was the report of a review by Sir Anthony Hooper former Court of Appeal judge, on how the GMC treats whistleblowers.

Hooper recommended that the GMC should be more active in protecting medical whistleblowers who may be referred vexatiously to the GMC, as a form of punishment and intimidation. He also advised that the GMC should consider the fitness to practice of senior doctors in management who vexatiously referred whistleblowers. Hooper advised that the GMC should require medical managers to:

  • Declare whether any doctors they had referred were whistleblowers
  • Personally sign off referrals
  • Make a statement of truth about their referrals.

The GMC indicated that it accepted these recommendations and would run a pilot scheme.

On 8 October 2018 the Employment Tribunal (ET) issued a judgment which recognised that Tristan Reuser, an NHS opthalmic surgeon, had made a protected disclosure and had later been unfairly dismissed by his NHS trust. The ET did not conclude there was a causal link between the detriment that Mr Reuser experienced and his whistleblowing. This is often happens in whistleblowing cases and can be an artefact of the weakness of current UK whistleblowing law.

A significant aspect of the judgment is that it criticised a senior doctor, who is now an NHS Trust Chief Executive, who had referred Mr Reuser to the GMC. This was reportedly on the basis that the GMC referral wrongly claimed:

“…Mr Reuser has not been involved in any whistleblowing episode or other attempt to raise concerns within the organization.”

This would have reduced the chances of Mr Reuser being protected by the GMC through its new procedures for handling whistleblowing cases.

As there had still been no substantive report on the GMC’s Hooper pilot, which began in July 2016, I asked the GMC for an update on its implementation of the Hooper recommendations.

I also drew the GMC’s attention to the ET judgment and asked the regulator to deal with the issue in line with Sir Anthony Hooper’s recommendations. The correspondence was copied to the Professional Standards Authority (PSA), which oversees professional regulators.

This is the GMC’s response, received on 12 December 2018:

Letter from Charlie Massey 12 December 2018 on Hooper implementation & ET judgment Reuser v HEFT

GMC advises that it hopes to publish the outcome of its Hooper pilot early next year.

It also reports that since March 2015, when the Hooper report was published, it has made enquiries in a single case about possible whistleblower reprisal by a senior doctor, but closed the case:

“I can confirm that since March 2015 we have carried out provisional enquiries in one case (involving a number of doctors including a responsible officer) relating to patient safety issues and concerns that those safety issues had not been dealt with locally. Having reviewed the further information obtained by those enquiries, we concluded that there were no fitness to practise concerns and closed the case.”

 

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CQC’s Victimisation of Whistleblowers: Failure to Investigate Concerns

 By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 11 December 2018

Summary: Whilst we wait for publication of the delayed Kark Review  into CQC’s appalling handling of Regulation 5 Fit and Proper Persons (FPPR), I focus in detail on the fact that failure to investigate or properly investigate whistleblowers’ concerns is an act of detriment.

The Employment Tribunal concluded in the whistleblowing case of disgraced former trust chief executive Paula Vasco-Knight, that her trust South Devon Healthcare NHS Foundation Trust, had repeatedly acted dishonestly in its investigation into the concerns of two whistleblowers.

Blog 1 trust acted dishonestly PVK ET judgment

Relevant details from the judgment are set out below.

The unanimous judgment of the ET panel was that South Devon’s failure to conduct a fair investigation into the whistleblowers’ concerns constituted a “significant” act of detriment:

Blog 2 Failure to investigate is a detriment PVK ET judment

The CQC compounded this victimisation through its protection of Paula Vasco-Knight and through in its poor handling of FPPR, which helped to whitewash the trust’s dishonesty.

The whole saga illustrates how so-called independent whistleblowing investigations commissioned by employers can be easily manipulated.

And yet Robert Francis in his report of the Freedom To Speak Up Review expressly recommended that such “independent” investigations should remain the mechanism for investigating disputed issues, and he pretended that this was safe. This was despite the fact that Francis was aware of the South Devon/ Vasco-Knight case and had previously condemned it as an example of “oppressive managerial behaviour”.

At present, the Department of Health and Social Care, Robert Francis and CQC are being pressed about CQC’s longstanding, unsupportable refusal to investigate whistleblower’s concerns. Healthwatch England and CQC have both apologised for Francis’ silence, but still no answer is forthcoming. The DHSC has given initial indication that CQC has the power to investigate. Further liaison continues.

 

South Devon Healthcare NHS Foundation Trust’s dishonest handling of the investigation into whistleblowers’ concerns

Clare Sardari and Penny Gates raised concerns about nepotism by Vasco-Knight whom they believed had improperly favoured and employed Nick Schenk, who was the boyfriend of Tahnee, Vasco-Knight’s daughter, without declaring an interest.

They were supported in their concerns by Anthony Farnsworth chief executive of Torbay and Southern Devon Health and Care NHS Trust, which was the whistleblowers’ primary employer.

The Employment Tribunal found that the whistleblowers were threatened by Adrienne Murphy the Director of Workforce and Organisational Development who said words to the effect that they would be “immediately sacked” if they pursued their concerns (para 28).

CQC also rejected an FPPR referral on Murphy, who is now a director at Cornwall Partnership NHS Foundation Trust.

According to the ET, Murphy tried to dissuade Peter Hildrew the chair of South Devon Healthcare NHS Foundation Trust from instigating an investigation into the whistleblowers’ concerns:

Blog 3 Murphy tried to block investigation PVK ET

Hildrew commissioned the investigation, with agreement from Torbay and Southern Devon Health and Care NHS Trust, but he removed Nick Schenk from the list of witnesses:

Blog 4 Hildrew removed Nick Schenk from witness list PVK ET judgment

Within a day of each other, Nick Schenk and Vasco-Knight’s daughter Tahnee wrote to Hildrew claiming that their romantic relationship had not started until after Schenk had been given a job by Vasco-Knight’s trust:

Blog 5 Schenk & PVK's daughter denials PVK ET judgment

The ET noted that Hildrew failed to disclose these letters to the whistleblowers:

Blog 6 Hildrew hid Schenk & daughter's letters PVK ET judgment

The ET noted that Hildrew initially denied having any input into drafting the investigation report but admitted under cross examination that he had sight of and commented on a draft investigation report:

Blog 7 Hildrew lied about draft report PVK ET judgment

The investigation report nevertheless concluded that Vasco-Knight’s behaviour required further examination as regards adherence to the NHS managers’ code of conduct.

The ET noted that Vasco-Knight’s trust tried to dishonestly conceal this finding:

Blog 8 South Devon suppressed report PVK ET judgment

Under FPPR, a trust director should not be “party” to serious misconduct.

It seems hard to believe that Vasco-Knight was not party to South Devon’s mishandling of the investigation of the two whistleblowers’ concerns. This is especially as according to the ET judgment, Vasco-Knight’s trade union representative made representations on her behalf that the investigation report should not be shared with the whistleblowers’ primary employer, Torbay and Southern Devon Health and Care NHS Trust:

Blog 9 Unions tried to hide report PVK ET judgment

Vasco-Knight’s trust misled Torbay and Southern Devon Health and Care NHS Trust by misrepresenting the contents of the investigation report:

Blog 10 Hildrew misrepresented report to Torbay PVK ET judgment

Vasco-Knight’s trust chair, Hildrew, wrote thus to the two whistleblowers:

Blog 11 Hildrew misrepresented report to whistleblowers PVK ET judgment

Vasco-Knight maintained a narrative that she had she had been unfairly accused, and went as far as implying that the whistleblowers were racially biased against her:

Blog 12 whistleblowers racially biased PVK ET judgment

The ET found that Vasco-Knight was instrumental in refusing to allow the whistleblowers back to work at her trust. They were seen as “vexatious”.

Blog 13 whistleblowers vexatious PVK ET judgment

 

The CQC and whistleblowers’ concerns

It is breathtaking that Mike Richards, former CQC Chief Inspector of Hospitals, Rebecca Lloyd Jones CQC Head of Legal Services et al turned their backs on this damning trail of deliberate wrongdoing, and quietly shut down the FPPR referral on Vasco-Knight  without even informing me, the referrer. This allowed her to be promoted to chief executive at St Georges without fuss and opposition.

But it is perhaps worth remembering this revealing passage from a Manchester Business School evaluation of the CQC:  

“To recruit external inspectors or inspection chairs, senior CQC staff had used professional contacts and formal and informal networks (such as royal college affiliations) predominantly, rather than the open recruitment advertising process. One interviewee claimed that ‘my recruitment process was Mike Richards badgering me until I said yes’ (Doctor, CQC inspection team).”

Club culture is part of why CQC has failed to do its duty under FPPR, and why it has belittled and minimised whistleblowers’ concerns about poor whistleblowing governance by unfit managers.

This is consistent with CQC’s fierce refusal these last nine years since it was established, as a neutered alternative to predecessor health regulators who had embarrassed ministers, to investigate individual whistleblowers’ disclosures about poor care.

CQC has increasingly shoved whistleblowers’ disclosures in a drawer. In the last few years it dealt with about half of disclosures in this manner. But worryingly, CQC’s latest 2017/18 annual report  shows that the majority of disclosures are now long grassed as no ‘further action’ or ‘filed as information for a future inspection’, as shown in the purple ‘Other’ category in this bar chart:

Bar chart of whistleblowing outcomes 2017/18 from CQC annual report 2017/18

CQC pretends that “something is done” by occasionally ringing up trusts, claiming that inspections are brought forward as a result of disclosures or passing the disclosures to other agencies. But it simply will not do what matters most: investigate.

Recently, CQC told me that it would be reviewing this policy of not investigating whistleblowers’ disclosures, and by implication admitted that it might have got it wrong all along.

Robert Francis concluded in his report of the Freedom To Speak Up Review of February 2015 that all system regulators currently have the power to investigate whistleblowers’ concerns.

 

“All the systems regulators who are prescribed persons can take action to investigate the issues in any protected disclosure made directly to them”

Page 19 Freedom To Speak Up Review

 

Francis didn’t seem to have done much about this as a CQC NED, because after his Review report was published, CQC continued to merrily insist that it could not investigate individual whistleblowers’ concerns. I wrote to him on 24 October 2018 as Chair of Healthwatch, and therefore a member of the CQC board, and have chased subsequently. Both CQC and Healthwatch England have apologised for the lack of response, but there has still been no reply.

In the meantime, CQC shared revised guidance for its inspectors on whistleblowing matters.  The section on how to respond to whistleblowers contains no instruction to investigate whistleblowers’ concerns.

I also raised the issue with the Department of Health and asked it to either confirm that CQC has the power to investigate whistleblowers’ concerns, or to change CQC’s regulations to make this unequivocally so.

So far, the DHSC seems to believe that this passage from the government’s response to the Gosport Independent Panel’s report on the Gosport deaths disaster is confirmation that CQC has the necessary power to investigate whistleblowers’ concerns when appropriate:

“2.16 All whistleblowing concerns raised with the CQC are forwarded to the local inspector for consideration. This allows the CQC to spot problems or concerns in local services that it may need to act upon.”

I have asked the DHSC for clarification and confirmation that this is definitely so, and have suggested that if the DHSC’s intention is that CQC should investigate whistleblowers’ concerns, it should straighten things out with its miscreant regulator.

Else, we shall continue with more State abuse of Health and Social Care whistleblowers’ human rights, added detriment inflicted by the regulator that is supposed to uphold values and standards and betrayal of the public interest.

What is really needed is statutory compulsion of the proper handling and investigation of whistleblowers’ concerns, as part of substantive reform of currently unfit UK whistleblowing law.

 

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The National Guardian’s Day Out with the PHSO: Claims & Rebuttals

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 9 December 2018

 

Summary: The National Guardian has been assisted with her public relations programme by an interview broadcast by Rob Behrens the Parliamentary and Health Services Ombudsman. A transcript of the interview is in the appendix. Below I examine a few of her comments and claims, and I rebut them. The PHSO solicited interview questions for the National Guardian via Twitter, and put them all to her save for a question about reform of UK whistleblowing law.

 

 

Unsubstantiated claims of effectiveness

In its annual report of November 2018 the National Guardian’s Office made the following unsubstantiated claim:

When a case is raised with a Freedom to Speak Up Guardian the worker can be assured that actions will be taken and they will receive feedback.”

In a data report of September 2018, the National Guardian commented that case numbers had possibly increased because the Freedom To Speak Up project was having “impact”:

This may be as the roles become more established, better communicated and workers start to see the impact of speaking up.”

 These claims echoed a letter to The Times June 2018, by Henrietta Hughes responding to the inquiry on the Gosport deaths. She wrote:

“If our new system of “freedom to speak up” guardians had been in place when the nurses at Gosport spoke up they would have been listened to and the right actions would have been taken.”

These assertions are unsupportable as there continue to be cases in which whistleblowers complain of lack of help from Speak Up Guardians and or Speak Up Guardians themselves complain of being bullied and obstructed. 

Some whistleblowers complain that they have been failed by the National Guardian’s Office.

In any case, the National Guardian has insufficient data upon which to claim that whistleblowers’ concerns will be reliably acted upon, because she does not track whether whistleblowers’ concerns are addressed.

 

The interview

 PHSO supported the National Guardian’s publicity campaign in October 2018, the so-called Speak Up Month:

A Rob Behrens Speak Up Month

Rob Behren’s related interview of the National Guardian painted a sympathetic picture of Henrietta Hughes, as a local GP who wanted to be a doctor from age two.

There was no acknowledgment that she was a senior doctor promoting a non-evidence based model, which is against the principles of her medical training. Instead he portrayed her as a “pioneer” doing “innovative” work, commenting that her work was “clearly making a difference”.

The National Guardian used the PHSO interview to repeat her claims of “impact” by the Freedom To Speak Up project, despite the absence of any proof.

Nonetheless, there has been a fall in the proportion of Speak Up Guardians who think whistleblowers in their trusts do not suffer retaliation:

Proportion of Speak Up Guardians who agreed that: People in my organisation do not suffer detriment as a result of speaking up”
 

National Guardian’s survey of Speak Up Guardians 2017

 

43%
National Guardian’s survey of Speak Up Guardians 2018

 

39%

 

 The National Guardian was only able to cite anecdote about “impact”. For example, a claim that a staffside rep from an ‘Outstanding’ trust reported a fall in grievances. Despite being a senior doctor trained to evaluate evidence, Henrietta Hughes implied that association equates to causation by claiming that a few anecdotal improvements were due to the work of Speak Up Guardians, without providing any proof of a causal relationship.

As whistleblowers will say in chorus, good trusts do not need Freedom To Speak Up Guardians, and in bad trusts they make no difference and may be mistreated.

Another of the National Guardian’s claims was that short term achievements in a few cases were evidence of success. For example, a whistleblower returning from sick leave after being relocated to another part of an organisation. However, the natural history of whistleblowing cases is that employers often make token concessions to buy time, whilst covertly working to seriously undermine whistleblowers. Her comments either reflected lack of expertise on whistleblowing, or something else.

 

 

A recently published report by Dr Ashley Savage, academic lawyer who has extensively researched whistleblowing and whistleblowing law, describes a typical process of attrition by employers:

it is important to consider the retaliation of whistleblowers as a process, which can result in a number of continuing efforts to retaliate against a whistleblower rather than a single act of detrimental treatment or dismissal. This is particularly relevant for those considering the drafting of whistleblowing laws and implementation in practice. We must consider protecting whistleblowers much sooner in the process before the situation causes irreparable harm. Many whistleblowers effectively experience a process of ‘attrition’ whereby employers can continue to retaliate against the whistleblower through ‘express/hard’ measures such as litigation and court action requiring expensive legal resources that many whistleblowers simply do not possess to more ‘implied/soft’ measures such as removing whistleblowers from their duties leaving them with little or nothing to do.”

 

 

Moreover, the National Guardian’s Office appears to have no policy of robust follow up to ensure that whistleblowers are not quietly disposed of after the cameras have departed. In the Office’s last case review,  on Nottinghamshire Healthcare NHS Foundation Trust, there was a recommendation that the trust should commission an independent review of whistleblowing governance within 6 months. That is, the National Guardian effectively left harmed whistleblowers at an employer’s mercy, despite evidence of poor governance by that employer.

 The National Guardian acknowledged that poorly managed conflicts of interest undermine Speaking up Culture. However she continued, astonishingly, to minimise the conflict of interest at the heart the Freedom To Speak Up project; that internal Speak Up Guardians, employed by trusts, must choose between protecting their employment or defending the public interest. This repeated denial does not build trust and confidence, especially when some have suffered seriously, such as in the case of Munwar Hussain, a Scottish equivalent of a Freedom To Speak Up Guardian.

The National Guardian claimed that Speak Up Guardians can come to her Office if they have difficulties locally. However, the NHS workforce of over 1.3 million staff is not entrusting the National Guardian with many sensitive disclosures. FOI data has showed that the Office received only 85 legally qualifying whistleblowing disclosures in 2017/18, only 18 of which came from Speak Up Guardians.

Some Speak Up Guardians have left post. Some have indicated that they have been obstructed and bullied when trying to escalate concerns in their trusts. Shockingly the National Guardian’s Office admitted via FOI that it does not track whether Guardians are being bullied and obstructed. Neither does it measure their experience of whistleblowing to the National Guardian.

Notwithstanding the innate flaws of the ‘project’, if the National Guardian’s Office is to have any credibility, it needs to be the trusted resource to whom Speak Up Guardians can turn to if they get into serious difficulty. However, half of all Speak Up Guardians, from NHS trusts, arms length bodies and the private sector, who were surveyed by the National Guardian this year did not respond to the survey.

“The survey was distributed to 725 contacts and was open between 4 and 22 June 2018. A total of 361 responses was received (a 50% response rate)”

In reporting this most recent survey of Speak Up Guardians, the National Guardian’s Office also conceded:

The responses to this question clearly show that we are failing to respond to queries from guardians in a timely way and we are sorry for the frustration this must cause.”

 Whilst Henrietta claimed that she values feedback and considers that good organisations should respond to concerns in an appropriate tone, her Office has on several occasions brushed off concerns. A recent example of her Office responding in a dismissive manner to concerns is given below:

 

A Speak Up Guardian and the husband of a seriously harmed whistleblower disagreed on social media about a significant technical, legal issue. The Speak Up Guardian was wrong, but the National Guardian’s Office intervened by retweeting the erroneous comment. It ignored the person who challenged when they expressed concern that misleading information was being recirculated.

I wrote to the National Guardian about this, and raised an issue of whether the training for Speak Up Guardians needed to be reviewed, in view of the technical misunderstanding.

The only response that I received came from her Comms manager, which was a single sentence in an email about other matters:

You asked about our retweet of a tweet from a Freedom to Speak Up Guardian. Hopefully, our Twitter profile makes it clear that re-tweets are not endorsements.”

The issue of whether the training for Speak Up Guardians was sufficient was ignored.

 

 

The National Guardian went on to maintain that her Office has been listening to whistleblowers through its Advisory Working Group(AWG). I have been a member of this group but will not be continuing because I found it tokenistic and little serious work was done. Fellow whistleblowers have given similar feedback. By agreement with the National Guardian, one of the whistleblower members of the AWG provided an advisory document. However, it was reported that this has been ignored.

No depth of understanding was shown when the National Guardian was asked about the way whistleblowers are driven into the Employment Tribunal where they face impossible inequality of arms. She commented:

“And you know, personally, from the experience of people who’ve told me about going to Tribunal it sounds as if it’s an incredibly difficult situation.”

Make of that what you will. But these are not new problems, there is plenty of evidence on how UK law fails whistleblowers. It has been failing for twenty years. The National Guardian previously declined to support law reform, and told Rob Behrens:

“That’s why we’re working very much on the prevention side, so that when people speak up they are guaranteed their confidentiality and to avoid victimisation as well.”

This is hollow if she continues to ignore vital, basic requirements in preventing whistleblower reprisal and suppression.

Fit for purpose law, encompassing a protection infrastructure, is needed.

The PHSO solicited questions for the National Guardian interview via Twitter, and received five questions, Four were asked, but a question on whether she would change her mind on law reform was not. Copies of the tweeted questions are provided in the appendix.

Finally, the National Guardian’s Office has briefed unpleasantly  against whistleblowers. It was found to have mishandled a complaint about one such instance. However, Robert Francis as Chair of the National Guardian’s Accountability and Liaison board would not uphold the substantive complaint in this matter

Francis was later revealed to be biased by disclosed correspondence pre-dating the above complaint. This showed that Francis refused a request to meet me regarding concerns about the National Guardian’s Office, on the rum grounds that he anticipated that he could not change my mind:

A Robert Francis letter to National Guardian 3.02.2017 about refusal to meet

Set in this context, a question put to the National Guardian during the PHSO interview was:

“Do you believe there is a bullying culture in your own Office?”

 Her response was not reassuring:

“It’s always impossible to know unless people start telling you about things. And this is where I believe that having the right speaking up culture but then acting appropriately about things is the way forward. And I think it’s one of those things where we really want to ensure that everybody within my Office but also across different parts of the NHS feel safe that if they’ve got a concern that they can raise it. That they know they’ll be thanked, they’ll be listened to, it will be acted upon and that they will get the feedback on that as well.”

So, a National Guardian of Freedom To Speak Up who distances herself from cultural issues in her own, very small Office on the grounds that she doesn’t know about problems, because no one has told her.

Splendid.

 

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APPENDIX 

I transcribed an undated interview by Rob Behrens Parliamentary and Health Services Ombudsman with Henrietta Hughes, NHS National Guardian for Whistleblowing, first broadcast by PHSO on 30 November 2018:

The broadcast can be found here.

Apart from a few minor differences, my transcript maps onto a transcript published by PHSO here.

RB Good morning today my guest is Dr Henrietta Hughes the second National Guardian for the NHS.

This crucially important role was created following the Freedom To Speak Up Review by CQC board member Sir Robert Francis

Dr Hughes is a practising GP with over twenty years’ experience across primary, secondary and community healthcare.

She was medical director at NHS England London Region from 2013 to 2016 where she provided system leadership across twelve clinical commissioning groups and twelve NHS trusts.

And she was the Responsible Officer for more than 3,000 GPs.

This provided her with extensive leadership experience and an overview of the day to day challenges the NHS faces.

Dr Hughes became the National Guardian in 2016 and she advises on good practice in responding to staff concerns and provides challenge and support for the NHS system to encourage a truly safe and open culture.

Well that’s a big task.

Henrietta thank you very much for joining us today, you’re very welcome.

HH Thank you

RB So the custom on Radio Ombudsman is to start by asking you a bit about your background. Where were you born and brought up.

HH I was born in London and I’ve lived in London all my life. I think that for me, as a medical director, in a part of London where I’ve been born, went to school, got married, had my children, meant that I had a lot of understanding about the area and my patients as well.

RB What sort of values did you gain through your upbringing?

HH I think the overriding one was about fairness. And certainly, as a GP my experience is that people who need more support often find it more difficult to access, and so I hope that my role as their doctor is to help them navigate through the system, to provide information and support. Listen to what their concerns are and then act on those so that we can find a plan to move forward.

RB So listening to people who can’t obviously articulate their own views is very important?

HH (2.53) Well I think it’s really about exploring their ideas, their concerns and their expectations. And that’s very much a GP’s consultation model, which I’ve adapted into the role of National Guardian.

Thinking very much about the views and ideas of members of staff and the workers in the NHS, and how we can then translate those into improvement for patient care.

RB When did you set out to become a GP?

HH Well my journey towards medicine really started when I was two. I come from a family of doctors and my grandfather who was a surgeon made me a surgeon’s outfit when I was two and it was made from the surgical drapes, the sort of paper drapes that there were in the 1970s and that smell of the sort of carbolic and the design of the outfit was a great inspiration to me. And that really set me on the path towards medicine.

RB So do you still practice now?

HH I still practice in the Borough where I was born actually, and I think there’s something about that continuity of experience. But as I said about really understanding of the context of patients’ lives, but also having a really good understanding of the services that are available and good relationships with the people that provide them are as well.

RB Now the previous roles which I described have given you huge access to frontline NHS staff and provided you with leadership experience within the NHS. What was it that inspired you to take on the role of the National Guardian, which is a hugely difficult and challenging role?

HH Well I suppose I’ve always been attracted to the difficult roles. In the area of London where I was medical director for in North, Central and East London it had its issues in terms of challenged health economies in lots of different ways. And my experiences as a medical director is that I would dealing a lot of situations where things had gone wrong and then we were picking up the pieces. Patients had already experienced harm and we were investigating what had happened. In those investigation reports, I often saw that they were far too aware of the issues in advance of when things had gone wrong. Either had spoken up about them and nothing had happened or that nobody had said anything. And also, we had individuals who came directly to us with concerns which we acted upon and it struck me that if we could deal with the issues before they caused harm, that would be of benefit to everybody.

Obviously to the patients and their families but also to relieve the burden, the psychological distress that that would cause the staff as well who are often the second victim in this situation.

(5.34) And so when I heard Sir Robert Francis on the radio talking about the National Guardian role, it really struck me that there was a great opportunity for driving improvements by attending and listening to the concerns that staff had and making sure that those are acted on in order to prevent harm to patients.

RB This is a huge job and you want to promote a big cultural change. You recognise that a big cultural is a massive undertaking in the NHS.

HH Absolutely. Clearly this is not something that I’m going to be doing on my own. I have a small team and a national office but I work with over 800 Freedom To Speak Up Guardians and Champions and Ambassadors across England, a network of people who provide a range of backgrounds including nurses and midwives, physios, doctors, but also facilities managers, chaplains, board secretaries, people from lots of different aspects of the NHS workforce who have a common enterprise of supporting their colleagues, listening, thanking them when they speak up, and then acting on the results.

And more importantly, giving them feedback on the actions that have been taken.

I’ve also found that there’s been a real enthusiasm in not only boards in NHS trusts in England, but also in the leadership organisations, in the arms length bodies, many of whom have already appointed Freedom To Speak Up Guardians.

And Rob, I was just going to ask whether the Ombudsman’s Office was thinking of appointing?

RB That’s a very good question and the answer to that is yes…

HH Oh I’m very pleased to hear that.

RB ….we’re in the middle of making sure that we have a Speak Up Guardian by the beginning of 2019.

HH That’s wonderful news because we know that the cultures in the providers are influenced by the cultures in the bodies that lead them, commission, regulate, inspect. And you know, if we can get the cultures right in those organisations, then I think we’ve got a chance for improving the culture across the whole of the NHS.

(7.41) RB I was interested to see in the latest survey that, you’ve done your October 2018 survey, asking Guardians about their experience, that the less effective operations are amongst the regulators rather than amongst the trusts. Is that a fair…?

(8.00) HH I think that’s a slightly harsh way of looking at it. What I would say is that in the organisations that aren’t inspected by CQC, the perceptions of the Guardians are on a par with trusts who are struggling. So we’ve thought very hard about how we can support the arms length bodies that have appointed to buddy up with the Guardians from the trusts who are really getting this right, to share that learning and ensure that we can get the best from the NHS into the arms length bodies.

Clearly, the ones who have already appointed are the ones who are thinking about how they can support their staff and improve the cultures in their own organisation. It’s the arms length bodies who are yet to appoint are the ones that I’m interested in informing, helping and providing training for their staff as well.

RB It’s a very interesting account, this report and obviously you’re documenting information which we haven’t had before. Many of your Guardians are good people who don’t actually have access to trust boards or chief executives. Presumably it would be better if they did have that access.

HH Well what we’ve found is that over 40% of Guardians don’t have any ringfenced time and it makes me wonder how the leaders of those organisations could imagine that their Guardians could be an effective resource for staff, an investment really, to provide the proactive nature of their work where they’re able to go out into the organisation and look for hot spots of culture but also reactively to be there for staff who are often in great distress and need a lot of time to be able to describe their experience.

(9.39) And what we’ve found is that the Guardians who don’t have any ringfenced time are less likely to have access to their chief executives, present their reports in person, attend regional meetings, attend training and most importantly, complete feedback on their own performance.

And so the call that I would make is to the leaders of all organisations that have appointed guardians that they think carefully about ‘What investment you need to make in your Guardians so that they’re able to provide an excellent service?’

And more importantly, I think to boards to say ‘Are you happy with the speaking up culture in your organisation? Have you met your Guardian yet? Has your Guardian presented to you? And have you been able to ask them the pertinent questions.’

RB Yes. What is your frank view about the challenges of opening up the culture in the NHS and how Speak Up Guardians can assist in doing this?

(10.33) HH Well we’ve already seen the impact that we’ve having. The feedback that I get from unions, for example, one staffside chair said that the number of grievances in their organisation has gone down from sixteen to two, which has had a dramatic impact on the amount of hours that she’s spending on this each week. But I also think it also tells a story about the culture that’s developing in that organisation and that’s an ‘Outstanding’ trust. In another organisation I’m aware of a senior member of staff who was very distressed that the patient safety issues they’d raised hadn’t been investigated. They were so distressed they were off work with sickness and were thinking about going to an Employment Tribunal, and the situation was really stuck.

But by working in partnership with the Freedom To Speak Up Guardian, their union rep told me that they were able to get an external, independent investigation commissioned, and also that the individual was found another role in another part of the organisation and came back to work successfully. So in my view, to be able to preserve the health of a member of staff they’re able then to come back to work and deliver care, and avoid the stress and the trauma of the Tribunal, really strikes me as positive progress.

(11.51) RB OK. One of the issues is about the status of the Guardians themselves. So you’re independent. But the Guardians are appointed by trusts. Do you think that hinders the credibility of the system?

(12.06) HH There’s quite a lot of different models actually. So some Guardians are existing members of staff. Others have been appointed as external indviduals. And there’s also an independent Guardian service which is commissioned by organisations. The point that I would make is that if you have a member of staff, for example a nurse, in your organisation, their colleagues trust them. And if they trust them as a nurse, why would they not trust them as a Guardian?

Where Guardians are coming up against difficulties, when they’re trying to escalate issue and they’re not getting the reaction, and the response that they would expect, then they flag that to my Office. And we would give them advice and guidance or potentially, we would do a case review, to see if the speaking up hadn’t been handled well by the organisation.

(12.57) RB OK. And I’ve seen in your survey report that one of the recommendations is to focus much more on potential conflicts of interest, to make sure that people have the moral authority to take cases forward.i

(13.13) HH Well, conflicts of interest abound across the NHS. And n fact we published a case review yesterday into a situation where there were conflicts across the organisation. In fact there is a standard NHS England conflict of interest policy which trusts are expected to adopt. And in that particular organisation only one member of staff out of a workforce of 9,000 had signed their conflicts of interest declaration. And we’re seeing this in lots of different ways. What we feel is that for the Guardians, they need to think about whether they have any conflicts of interest so for example, if they’re in a line management chain, they need to think about what the alternative route might be for somebody if they don’t think that the Guardian is appropriate for them.

And we’ve seen many trusts appointing a network of champions and also they have non executive directors and Executive leads with responsibility for Freedom To Speak Up.

So although this is new, we’re thinking very much about what the barriers might be to speaking up and how we can mitigate some of those potential conflicts so that every member of staff can feel confident that they’ve got an appropriate route to use.

(14.21) RB OK You’re doing a lot of innovative work. You’ve just had a Freedom To Speak Up month. Tell us a bit about that.

(14.30) HH It always interesting that much as you try to communicate, there’s always more that can be done. And certainly over the last two years since I was appointed, I do feel that there’s an increased understanding and awareness of our role but you know, with 1.3 million staff across the whole of the NHS, getting the message out across the very crowded landscape about an initiative can be difficult. So with the Freedom To Speak Up Guardians we’ve had an awareness raising month called Speak Up Month with a hashtag #SpeakUpToMe, and have to say, the response across England has been really tremendous.

Guardians have been doing lots of innovative work, including films and press interviews. There were animations, pop up stands and events. I spoke at quite a few of those, and also a board game was developed at Great Ormond St Hospital called GHOSHOPOLY to help their staff understand a bit more about the speaking up process.

So I’m really delighted. It’s not unusual really in the way that we’ve started something off, the Guardians have taken in on, and developed it in a really magnificent way.

There’s still so much more to be done and we know that there are some particularly difficult to access groups. So the more that we can do and that’s where I’m really grateful to you for this interview today to continue to increase the awareness of the role so that everybody knows they’ve got somebody they can turn to if they want to speak up.

RB I’ve got some questions from Twitter that I want to put to you, but before that, could you just reflect a bit about the relationship between you do and what the Ombudsman does and how we should be working together to learn from complaints and whistleblowing to improve the quality and safety of care?

(16.18) HH I think there’s a huge overlap in what we do because it’s about how organisations respond to challenge and personally as a medical director part of my role was signing off responses to complaints that came into NHS England about GPs. And you could learn so much about the organisation by the tone of the letter they wrote and the way that they responded to complaints about patients and families.

And I think the same is true when it comes to the way that organisations listen, thank and respond to their workforce when they also raise concerns. So in terms of developing best practice, I wouldn’t be surprised if there’s an overlap between the organisations that you’re dealing with and the ones that are of concern my Office as well.

(17.04) RB I think that’s right. I have had a number of GPs come to my office who’ve said to me that they would like to make a complaint but they can’t, because they fear the victimisation that they’ll receive in the NHS if they make that complaint. But they wanted me to be aware of the situation.

That’s a common issue for us, there’s no clear dividing line between what you do and I do in that situation.

(17.26) HH Absolutely. I’m really delighted that NHS England are extending the funding to my Office so that we can bring this out into Primary Care as well, because there are issues that lie unresolved in Primary Care as much as there are in trusts as well. I really want every person who works in Health to be able to know that they’ve got somebody they can turn to.

(17.56) RB OK. On twitter we have, as you would expect, questions from the redoubtable Dr Minh Alexander.

First one: “Will the National Guardian model best practice and publish all her so far hidden bulletins for Guardians?”

(18.13) HH We have a range of different information that we publish, including a newsletter, social media and we publish reports on our website. There’s some information that we share with Guardians where they may want to be able to contact us for advice and guidance, so some of that advice is management information but I think it’s really helpful feedback and I’ll make sure that we share as much information as we can with members of the public as well as with the workforce.

(18.44) RB OK. Thank you for that. She also asks if you’ll increase the productivity of the Office, accept more NHS whistleblowers for case review and review current exclusion criteria?

(18.57) HH Absolutely. So we had a one year pilot of our case review and I think with everything that’s new we’ve been learning by doing. The Office is set up with a budget which really didn’t assess the possible work that we would be doing would include and so it’s actually quite interesting to see the depth and the impact of the case reviews that we’ve done but we recognise the fact that there’s so much more to be done and so we’ve had an evaluation of the first year’s pilots which we are already reflecting on and thinking about how we can use that to expand and improve the process, and we’ve had really good advice back from the advisory working group which includes a range of different organisations and individuals who’ve spoken up and had a bad experience.

And we want to take all of that feedback and the learning from the case reviews that we’ve done already, so that we can improve and expand the process going forward.

(19.57) RB OK. Thank you. Can I just ask, someone has raised the issue of the Tribunal involving Dr Day and the great difficulty that whistleblowers have when they are faced with the legal resources of the NHS in court. Do you think that’s something that we need to reflect on?

(20.19) HH I think Tribunals should be the exception rather than the rule. And you know, personally, from the experience of people who’ve told me about going to Tribunal it sounds as if it’s an incredibly difficult situation. That’s why we’re working very much on the prevention side, so that when people speak up they are guaranteed their confidentiality and to avoid victimisation as well.

(20.45) When it comes to junior doctors for example, I welcome the fact that Health Education England has extended the protection for junior doctors and we’ve heard some really interesting cases where junior doctors have spoken up to Freedom To Speak Up Guardians and actually have been taken as a result in a way that they haven’t been able to get those actions through using other speaking up routes.

(21.10) RB OK. Thank you. Last question from Twitter: “Do you believe there is a bullying culture in your own Office?”

(21.16) HH It’s always impossible to know unless people start telling you about things. And this is where I believe that having the right speaking up culture but then acting appropriately about things is the way forward. And I think it’s one of those things where we really want to ensure that everybody within my Office but also across different parts of the NHS feel safe that if they’ve got a concern that they can raise it. That they know they’ll be thanked, they’ll be listened to, it will be acted upon and that they will get the feedback on that as well.

(21.51) RB I have three final questions. First of all, your job is an immensely difficult one. You must get quite a lot of negative comments, sometimes abuse. How do you deal with that?

(22.05) HH I always take the view that feedback is a gift and everything that we’re doing is new, and to be able to learn and improve I want to be able to take all the feedback. And, you know, positive feedback is always pleasant but negative feedback is the thing that can often drive improvement further and faster.

(22.23) RB But there must be a limit to what you’re prepared to accept on the personal front?

(22.31) HH So my experience is that it’s actually comments which may be made in a well meaning way which can sometimes be more derogatory than comments from people who’ve potentially had bad experiences and really want to drive the improvement in what we do. I think that my personality is probably one where that drives me on to do even more and better to support people. May be it’s because I’m a GP.

(23.00) RB OK. Second to last question. You’re a pioneer, what you’re doing is very unusual, you don’t have a lot of resource, you don’t have a lot of powers. You’ve clearly made a difference. What would you say is the biggest difference that you and your Office have made so far?

(23.16) HH In the first year we collected the speaking up data and over 7,000 cases brought to Freedom To Speak Up Guardians. So I don’t think it’s a difference that I’m making, I think it’s the difference that Freedom To Speak Up Guardians are making, day in, day out supporting their colleagues. And if those cases have led to improvements in patient care then it’s the positive impact that’s having on people across the whole of England. And that’s what makes me really proud.

(23.45) RB OK. Last question. It’s a traditional question on this programme. What advice would you give to young graduates coming into the Health service, the Ombudsman world in relation to Health, on the basis of your experience?

(24.02) HH I’m always guided by what’s best for my patients. And I think if we always focus on patients then the decisions that come around that will always feel the right ones to be made.

RB Dr Henrietta Hughes, I’m very grateful, it’s been very interesting, thank you very much.

HH Thank you very much for having me.

 

Tweeted questions for the National Guardian

The PHSO solicited questions via Twitter to put to the National Guardian in the above interview:

A PHSO request for Qs

I contributed three questions as follows:

A PHSO MA Q2

 

A PHSO MA Q 2

A PHSO MA Q 1

Another NHS whistleblower contributed this question:

A PHSO Jade Taylor Q

A third person contributed this question:

A PHSO Cicely C Q5

All of these questions were put to the National Guardian, apart from my question on whistleblowing law reform.

 

Day 1 Awards Daleks V2

The Disinterested National Guardian & Robert Francis’ Unworkable Freedom To Speak Up Project

By Dr Minh Alexander, NHS whistleblower and consultant psychiatrist, 28 November 2018

 Summary: Recent survey data shows that some Speak Up Guardians are bullied and obstructed when raising patient safety concerns. The National Guardian’s Office has admitted via FOI that it does not track how often such reprisal happens. The same FOI disclosure revealed that the National Guardian received only 18 qualifying disclosures from NHS trust Freedom To Speak Up Guardians in 2017/18, which suggests that not enough concerns are being escalated externally, even though this is the safety mechanism upon which the whole Freedom To Speak Up project hinges. Neither does the National Guardian measure Speak Up Guardians’ experience of whistleblowing to her Office. And yet the National Guardian is well aware of the importance of feedback, as evidenced by her repeated policy statements and demands that others should collect and learn from feedback. In addition to a previously reported failure by the National Guardian to track whether whistleblowers’ concerns are addressed, these are yet more mission-critical failures demonstrating what whistleblowers have known all along: the Office is a government firewall, was designed to be ineffective, and will never work. Real reform is needed.

 

The National Guardian’s Office had little merit at conception by Robert Francis and the Department of Health and Social Care. Its position was not helped by the resignation of the first National Guardian.

The Office has been further watered down  by the Care Quality Commission, NHS Improvement and NHS England, who appoint and fund the National Guardian.

The key role of the National Guardian was supposedly to provide a safety net for whistleblowers and to support local Freedom To Speak Up Guardians when NHS trusts failed to handle whistleblowing cases properly. It was supposed to review cases where there had been failure to adhere to good practice.

But we know that there is continuing bad practice because of the uninterrupted stream of Employment Tribunal claims against the NHS for whistleblower reprisal. This is a previous analysis of Employment Tribunal decisions about the NHS between February and June 2017:

The NHS in the Employment Tribunal. A Five Month Sample

An exhaustive, update manual search of recent, published Employment Tribunal (ET) decisions is too big a task at present. A very rough search by ‘NHS’ under Public Interest Disclosure jurisdiction on the ET website (which can only generate an underestimate of cases) produced a minimum of 231 decided NHS whistleblowing ET cases since February 2017. The results for other jurisdictions are given for comparison:

Jurisdiction Number of ET decisions relating to the NHS since February 2017
Public Interest Disclosure 231
Unfair dismissal 937
Disability Discrimination 454
Race Discrimination 233
Sex Discrimination 155
Age Discrimination 74

Source: https://www.gov.uk/employment-tribunal-decisions

NB The above results were not based on a full manual search and represent an underestimate.

We also know that bad practice continues because of the thousands of whistleblowing disclosures to CQC every year. Such external disclosures are typically made because health and care staff do not feel comfortable to report internally to their employer, or have exhausted internal channels without resolution. In its most recent annual report, CQC advised that it received ‘8,449 whistleblowing enquiries’ in 2017/18 from Health and Social Care workers.

The National Guardian’s Office, constituted as part of CQC, has legal Prescribed Persons functions under the Public Interest Disclosure Act. It should receive, record and periodically publish data on the ‘qualifying disclosures’ that it has received from whistleblowers.

The National Guardian published her first Prescribed Persons report for the period 2017/18 which showed that her Office had received a tiny number of qualifying disclosures – only 85 – out of hundreds of thousands of staff from over 200 NHS trusts.

Smaller still was the number of these 85 disclosures which came from NHS Trust Freedom To Speak Up Guardians. An FOI disclosure by the NGO has revealed that only 18 of the 85 qualifying disclosures came from Freedom To Speak Up Guardians.

“We can confirm that out of 85 qualifying disclosures, 18 of these came from NHS trust Freedom to Speak Up Guardians (or Freedom to Speak Up ‘Champions’, ‘Ambassadors’ or equivalent).”

The National Guardian’s Office has additionally clarified that these 18 disclosures were made by 18 Speak Up Guardians.

This represents a tiny proportion of hundreds of NHS trust Speak Up Guardians.  The National Guardian’s directory of NHS trust Speak Up Guardians lists over 400 current Speak Up Guardians in NHS Trusts.

In her second annual report, published last week, the National Guardian advised that the latest headcount of all Speak Up Guardians is over 800:

there are now over 800 guardians and champions in trusts, independent sector organisations and some arm’s-length bodies”

This inflated figure was part of the Office’s self-aggrandising spin. The latest, smaller number of Speak Up Guardians for whom she has an official remit – those employed by NHS trusts – was not given.

Nevertheless, The low number of disclosures from NHS trust Speak Up Guardians to the National Guardian strongly suggests that hardly any Speak Up Guardians are inclined to take the plunge into Robert Francis’ purported safety net. And who can blame them. But it does mean that Speak Up Guardians are unlikely to be escalating enough concerns externally, despite Francis’ original, breezy assurances that they would.

The National Guardian’s Office was asked what action it took in response to the 18 qualifying disclosures by Speak Up Guardians, but its response on this point was somewhat slippery. Clarification has been requested.

Astonishingly, the Office admits that it has not tracked Speak Up Guardians’ experience of whistleblowing to the National Guardian.

“We do not collect specific feedback from Guardians or their equivalents of their experiences of making potential disclosures to us.”

This cannot be for lack of awareness of good practice, because the National Guardian’s guidance to Speak Up Guardians thunders:

Freedom to Speak Up Guardians are required to record all cases of speaking up that are raised to them. Your records:

  • help you keep track of individual cases.
  • promote consistency in the handling of cases
  • provide a measure of the speaking up culture in your organisation and the use of the Freedom to Speak Up Guardian route
  • act as a source of intelligence enabling trends in, and barriers to, speaking up to be identified.”

Indeed, as recently as August 2018, the National Guardian waxed lyrical in an interview with the NHS managers’ union, Managers In Partnership, that valuing feedback is “key”:

“The key is to value that feedback, and to see it as a way of helping to make improvements”

Perhaps the National Guardian’s Office simply sees itself as above such tiresome accountability, and or lacks real empathy for the dangers that face staff who speak up.

The National Guardian has repeatedly demanded ‘courage’ of Speak Up Guardians – both in her model job description 

National Guardian's values for Freedom To Speak Up Guardians Courage

and in publicity material. “Courage” is only required when protection is absent. A true understanding would surely focus efforts on protecting those at risk, rather than criticising a lack of courage.

Not only has there been inadequate emphasis on protection, implied by the demand for ‘courage’ by Speak Up Guardians, but the National Guardian’s Office admitted that it could not tell me how many Speak Up Guardians had complained of being bullied or blocked in the course of raising concerns: 

“We do not systematically categorise these conversations according to the definitions of ‘being bullied or blocked’, and therefore we cannot give a number or information relating to the terms used.”

So there you have it, another mission-critical failure. The external Office that is supposed to be a bulwark against the obstruction of internal Speak Up Guardians isn’t much interested in tracking obstruction. Even though Robert Francis once considered ‘obstruction’ so serious that it merited a criminal sanction.

I asked Speak Up Guardians about obstruction, through a brief, anonymised Survey Monkey questionnaire which was emailed to every published contact address for NHS trust Speak Up Guardians. The response rate was low – only 14.2% (65 responses out of over 456 invitations to participate).

Based on this low response rate, the results cannot be safely assumed to be representative of the whole group. However, it was nevertheless important that 13 of the 65 (20%) Speak Up Guardians were brave enough to say that they felt it was ‘difficult’ or ‘very difficult’ to raise patient safety concerns.

Freedom To Speak Up Guardians survey Easy to raise safety concerns

12 of the 65 (18.5%) Speak Up Guardians were brave enough to say that they were ‘sometimes’ or ‘frequently’ bullied or blocked when raising concerns.

Freedom To Speak Up Guardian survey Blocked or bullied

Only 5 of the 65 (7.7%) Speak Up Guardians had escalated concerns to the National Guardian’s Office.

Freedom To Speak Up Guardian Survey escalated to National Guardian

Even allowing for an assumption that this sample of 65 Speak Up Guardians who responded may contain a higher proportion of Speak Up Guardians who have had poor experiences, the results suggest that a fair number of Speak Up Guardians in the total population experience bullying and obstruction when trying to raise patient safety concerns. The results also reinforce the impression that few Speak Up Guardians are escalating up to the National Guardian. This represents a critical patient safety bottleneck.

The free text section of the questionnaire generated more concerns and questions about the Speak Up Guardian role, than unalloyed, positive feedback. Twenty seven free text comments were made and they are provided below in the Appendix. The last comment summed up everything that is wrong about Robert Francis’ and the government’s Freedom To Speak Up project:

I feel like a whistle blower for being in the guardian role”

NHS Freedom To Speak Up Guardian, 12 November 2018

Any idiot could have reasonably foreseen this, unless blinkered by a wish to please power.

The fate of even senior internal whistleblowing Champions is writ large in the example of Munwar Hussain non-executive director at NHS Tayside  who quit claiming that his attempts to pursue concerns raised by staff were suppressed.

It is also starkly illustrated by Barclay’s head of whistleblowing who left the bank under gag, following the scandal in which Barclay’s CEO tried to expose the identity of a whistleblower and was fined for this misconduct.

Private Eye Issue 1470, 18 May 2018:

Barclays whistleblowing champion Private Eye 1470 18.05.2018

We also already know that some Speak Up Guardians have left their posts after a short time.

Finally, I asked Speak Up Guardians if they felt that the investigation of whistleblowers’ concerns should be mandated. The National Guardian has declined to support reform of UK whistleblowing law, but the great majority of Speak Up Guardians who answered the survey felt that investigation of concerns should be compelled in law:

Freedom To Speak Up Guardian survey Mandate investigation

That is to say, by implication, Freedom To Speak Up Guardians did NOT give a ringing endorsement of Robert Francis’ theories of persuasion that underlie the whole Freedom To Speak Up project.

Good NHS trusts do not need Speak Up Guardians, and Speak Up Guardians make no difference in poor trusts – they simply become another target for reprisal.

NHS staff and patients, and indeed all whistleblowers need something much better than a disinterested, toothless office. Real change needs to start with reform of UK whistleblowing law.

Appendix

Free text answers from Freedom To Speak Up Guardians in response to: “Question 5. Please add any other comments that you would like to share about your experience of working as a Freedom To Speak Up Guardian”

 

I feel like a whistle blower for being in the guardian role

11/12/2018 6:26 PM

 

“Staff at all level are currently working within extreme pressure and juggling priorities. Handling of concerns is yet another initiative that they have to deal with, most are not equip with the basic skills to do so and as such are ineffective, whilst for others don’t see this as a priority.

10/29/2018 9:45 PM

 

Culture is changing, slowly but its changing.

10/29/2018 1:41 PM

 

The role is making a difference, direct feedback from staff is telling us this. It really is making a change to those who may not have otherwise raised their concern or would have remained stuck if it were not for the FTSU forum. It will continue to need genuine support from leadership in taking issues serious and giving it a fair and appropriate attention. From my personal experience, it can be challenging psychologically dealing with concerns but with the right support, it has made functioning in the role much easier.

10/25/2018 11:34 PM

 

A theme that I am working on at the moment is how to support our managers to respond positively and actually put in place solutions where staff in their areas speak up and raise concerns. I think we are seeing more staff in our organisation feel empowered to speak up, but I am concerned as to the variation in how we then help managers to address the issues – this includes issues raised as protected disclosures as part of whistleblowing. I agree that the law should be reformed and should not just be about employment law; I also think that if investigations become statutory, there needs to be much better guidance to Trusts as to how to respond to issues that are investigated, and that would be in terms of how to respond to and protect the interests of the whistleblower, as well as how to properly respond to serious concerns as an organisation.

10/24/2018 12:24 PM

 

Needs to have a higher profile in the trust structure

10/23/2018 4:19 AM

 

Whilst not an easy role having worked at [redacted] its something I feel passionate about. I’m lucky not have experienced a g [sic] blocks from the trust management however I have had to escalate to trust managers above mid managers who have tried to block.

10/22/2018 1:44 PM

 

The work load is very high with not a lot of support from the trust!

10/22/2018 9:16 AM

 

I would like more involvement with finalising the problems.

10/22/2018 8:29 AM

 

A difficult lonely job but very rewarding

10/22/2018 8:24 AM

 

Nil

10/22/2018 7:50 AM

 

I am reasonably senior so I think that it’s easier for me to carry things forward, possibly more difficult to more junior champs. Conversely, I suspect that my seniority discourages some people from raising concerns directly with me (perhaps I’m seen as ‘part of the establishment’), so I tend to spend more time acting as a sounding board for other champions.

10/22/2018 6:38 AM

 

My own experience and detrimental treatment after raising concerns lead me to become a confidential contact.

10/22/2018 6:18 AM

 

None at these time

10/21/2018 8:27 PM

 

You don’t get any real guidance on how to deal with concerns and it often feels like a tick box exercise and staff are still suffering a detriment for speaking out so I probably will not continue in the role much longer.

10/17/2018 3:14 PM

 

Trusts need to make all managers more aware of the guardian role and responsibilities. I have found it difficult to get appropriate responses at times and feel I am not being given enough acknowledgement for what we are trying to investigate and that it is about improvement rather than blame

10/17/2018 12:18 PM

 

I think the FTSUG role is an important role in enabling staff to feel confident raising concerns, however, I think it is really important that Trust Board members are equally responsible for creating the culture to enable staff to feel able to raise concerns without fear of detrimental treatment.

10/16/2018 3:55 PM

 

We need clarification around our role regarding bullying & harassment. It’s all well and good stating that FTSU is a sign posting role however if our HR departments are not providing much needed support to staff then we are often the only service left to provide support. We can not turn our backs on staff members that need us even if it does not fit in with the requirements of the role

10/16/2018 1:59 PM

 

It is a worthwhile role and my work has evidenced that the Guardian role is essential in all Trusts

10/16/2018 10:03 AM

 

In practice my Trust takes concerns raised very seriously and makes every attempt to fully investigate. However, it does need to be recognised that whistleblowing concerns are complex and not always easily resolved to everyones’ satisfaction.

10/16/2018 9:59 AM

 

An unfortunate effect of FSUG is that innocent people have had malicious unfounded allegations made against them which FSUG does not cover. The law of the land is the principle of innocent until proven guilty whereby the opposite applies to FSUG . Also the accused does not have the opportunity to defend themselves when an allegation is made which is very wrong . I speak from personal experience and can state it was a very distressing time which affected my confidence . I can only assume the allegation was unfounded as there were no sanctions or actions made so I was left in limbo which is wrong on every level.

10/16/2018 9:10 AM

 

The role of Freedom to Speak Up Guardian has enabled staff to feel confident to raise concerns in a “safe environment” and to be supported.

10/16/2018 8:52 AM

 

This role has made it easier to ensure that issues are brought to the CEO who is supportive. It is important to define the term Whistleblowing more clearly.

10/16/2018 7:43 AM

 

People are still cautious about speaking up because of fear of consequences. I feel there is a culture change and more staff are willing to speak up, we need to build on this positively.

10/16/2018 7:25 AM

 

Fear !

10/16/2018 6:38 AM

 

The NGO have been a great support for issues where advice outside the Trust has been needed to move forward.

10/16/2018 6:26 AM

 

The Trust will do anything and go any lengths to protect it’s reputation, in particular with issues connected to staff bullying and harassment.

10/16/2018 6:22 AM

 

 

 

 

RELATED ITEMS:

Another health check on quality of the National Guardian’s data

Letter to parliament about the National Guardian’s disinterest in whether whistleblowers’ concerns are addressed

What could a new whistleblowing law look like? A discussion document

STFU not FTSU

 

 

Witness statements about concerns at Gosport War Memorial Hospital

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 24 November 2018

 

Introduction

On Saturday 24 November 2018, Gosport families will protest outside Downing St.

The Gosport disaster is one of the most serious scandals in relation to the NHS, the rule of law and fundamental human rights.

In June 2018 the Gosport Independent Panel investigation concluded that at least 456 and possibly another 200 lives had been “shortened” by non-clinically indicated use of opiates at Gosport War Memorial Hospital. It also revealed that most of the deaths occurred after whistleblowers were ignored and mistreated. After the Panel reported, more families have reportedly come forward.

The man in the street might simply dispense with euphemisms such as “shortening of lives”, and speak plainly of killing. That was certainly the gist of internal correspondence between Norman Lamb Care Minister and Una O’Brien Permanent Secetary at the Department of Health and Social Care (DHSC), when referring to the “damning” findings of a report by Professor Richard Baker.

 

From correspondence 2 August 2013 between Norman Lamb and Una O’Brien:

Gosport Norman Lamb Una O'Brien

 

The Baker report   had been commissioned by the DHSC in 2002 but suppressed for ten years, whilst interminable and ultimately ineffective processes dragged out.

After the Baker report was finally published in 2013, the government commissioned the independent panel investigation, although some families had serious reservations about its terms of reference and ability to deliver the whole truth. Not all organisations that were later approached cooperated or provided information. Some of the documents supplied were heavily redacted. The panel did not test witnesses’ evidence by taking oral evidence.

When the panel’s investigation report was published in June 2018, all the many thousands of documents gathered, some repeatedly duplicated, were also published. But there was very limited indexing and organisation. The majority of documents are not listed in easily navigable format, and can only be found by speculative search. The families have been overwhelmed by this tsunami of data, which is effectively just another form of opacity, a snowstorm which obscures vital documents and details that did not appear in the panel’s final report.

In the same vein, Matt Hancock the Secretary of State made a statement in the House of Commons on 21 November 2018 without giving the families proper notice. He refused to meet with the families at this point, stating that upon the advice of Bishop James Jones who chaired the panel investigation, he would only do so at the conclusion of a police review. He made a rather vague promise to think about changing whistleblowing law, but not much else. In short, it was the usual government news management with which we are now so well accustomed.

The Gosport families are deeply dissatisfied with the government’s stance. Ann Reeves whose mother Elsie Devine perished at Gosport War Memorial Hospital, after deliberate administration of excess opiates without any clinical justification, comments:

“My mother was abused with controlled drugs. I have been informed by the Crown Prosecution Service that they intend to take no further action despite the findings of the Gosport Independent Panel Investigation. I believe the police have ample evidence for arrests but they only seek to delay further. Gosport families have been denied justice for over twenty years. We have repeatedly asked for a public inquiry. If we do not secure a police investigation, we will pursue a public inquiry. Our loved ones died in horrific circumstances. We deserve the full truth. This is a matter of huge importance to everyone. The State cannot be allowed to wash its hands of blood in this way, because then no one is safe”

 

WITNESS STATEMENTS

I have started a search specifically for original witness statements to the police and other investigations, with the aim of collating the evidence on concerns about the practices at Gosport. This is not yet complete but a selection of witness statements which raise concerns about the care at Gosport is provided below, with links to the full statements on the website of the Gosport inquiry.

This post will be updated when the search is completed, and a spreadsheet of all witness statements found will be published here.

Many of the Gosport staff witness statements denied that there were problems with the administration of opiates or syringe drivers or any other issues of care.

But a minority of staff witness statements raised concerns about a range of issues.

Whistleblowers and others said they had concerns about the use of opiates.

One nurse thought that a patient was aware that her life was about to be ended, and reportedly asked “Why are you doing this to me?”

Another member of staff went as far as alleging that diamorphine made patients “quiet, shortened lives and was used to keep waiting lists down.

The witness statements revealed some staff who were not specifically acknowledged as whistleblowers by the Gosport Independent Panel report, but who had also raised concerns about poor care.

Institutionally abusive practices were alleged in some of the staff witness statements, such as getting patients out of bed and dressed in the small hours of the morning, threats and force feeding.

Some staff made general comments about insular, hierarchical and rigid culture. There was also a reference to serious understaffing.

There were also witness statements by family members and friends which raised concerns about very rapid and or unexpected deaths of loved ones, and specific concerns about the use of heavy sedative medication, opiates and syringe drivers.

One witness statement by a family member who said they had no concerns, but who described an unexpected rapid decline and death, is included for completeness.

 

(1) Witness statements of Gosport staff whistleblowers

Witness statement of Sylvia GIFFIN, nurse, document reference

HCO111239, 12 December 2012

Sylvia Giffin 1

Witness Statement of Shirley HALLMAN, nurse, document reference HCO110597, 28 July 2003


Shirley Hallman 28.07.2003 1

Shirley HALLMAN 23.07.2003 2

Witness statement of whistleblower Anita TUBBRITT, nurse, document reference HCO004127,21 October 2002

Witness statement of whistleblower Beverley TURNBULL, nurse, document reference HCO110797, 6 June 2005

Beverley Turbull June 2005

Witness statement of Margaret WIGFALL, nurse, document reference HCO110869,  11 October 2002

Margaret WIGFALL

 

(2) Other relevant Gosport staff witness statements:

Witness statement of Leslie ALDRIDGE, document reference

HCO111234, nurse, 6 May 2003

Leslie Aldridge

Witness statement of Carol BALL, nurse, document reference

HCO110569, 2 July 2003

Carol Ball 1

Carol Ball 2

 

Witness statement of Margaret BRENNAN, nurse and also daughter of a patient admitted to Gosport War Memorial Hospital, document reference HCO110609,  4 August 2003

MArgaret Brennan 1

MArgaret Brennan 2

 

Witness statement of Debra BROOKS, nurse, document reference

HCO110565, 24 June 2003

Debra Brooks

 

Witness statement of Deborah DAVIES, student nurse, document reference HCO004149, 29 April 2003

Deborah Davies

Witness statement of Isobel EVANS, matron, document reference HCO111031, 12 November 2002

Isobel Evans

Witness statement of Joan FORFAR, nursing assistant, document reference PCO000371, 24 April 2003

Joan Forfar

Witness statement of Linda GOLDIE, nurse, document reference HCO006236, 10 July 2003

Linda Goldie

Witness statement of Cecilia GREEN, nurse, document reference HCO111127, 29 August 2006

Cecilia Green

Witness statement of Elizabeth MEARS, nurse, document reference HCO004146,  18 August 2003

Elizabeth Mears

Witness statement of J MONDEY, nursing assistant, document reference HCO004159, 20 June 2003

J Mondey

Witness statement of Margaret PERRYMAN, nurse, document reference HCO110658,  18 August 2003

Margaret Perryman 1

Margaret Perryman 2

Witness statement of Pamela RIGG, nurse, document reference HCO111287,  6 June 2003

PAmela RIGGWitness statement of Joyce TEE, nursing assistant, document reference PCO000375, 22 July 2003

Joyce Tee

Witness statement of Valerie WEBB, nurse, document reference HCO004165, 15 August 2003

Valerie Webb

Witness statement of Geradine WITNEY, nurse tutor, document reference HCO111107,  10.12.2002

Gerardine Witney

Witness statement of Betty WOODLAND, nurse and trade union rep, document reference HCO111170, 1 February 2003

Betty woodland

(3) Witness statements by family members and friends expressing concerns:

 Witness statement of June BAILEY, daughter of Jean STEVENS, document reference HCO110691, 16 April 2004

June Bailey

Witness statement of Dorothy BERESFORD, family friend of Geoffrey (Mick) PACKMAN, document reference HCO111103, 25 January 2006

Dorothy Beresford

 Witness statement of Sandra BRIGGS, daughter in law of Elsie DEVINE, document reference PCO001175, 2 August 2004

Sandra Briggs 1

Sandra Briggs 2

Witness statement of Pamela BYRNE, step-daughter of Clifford HOUGHTON, document reference HCO110725, 4 August 2004

Pamela Byrne 1

PAmela Byrne 2

Witness statement of Keran EDWARDS daughter of Robert WILSON, document reference HCO110688, 7 April 2004

“I think it is possible that the staff gave him diamorphine because he asked to die and didn’t want to go home to his wife, for her to look after him”

Witness statement of Luci GREGORY, relative of Sheila GREGORY, document reference HCO004414, 2 June 2005

Luci Gregory

Witness statement of David HUNTINGTON, son of Robert WILSON, document reference, HCO004316 28 February 2005.

David Huntington

Witness statement of Carl JEWELL, nephew of Enid SPURGIN, document reference HCO110687, 17 March 2004

Carl Jewell

Witness statement of Jean KENNEDY, carer for Helena SERVICE, document reference HCO006813,  1.07.2004

Jean Kennedy

Witness statement of Gillian KIMBLEY, wife of Robert WILSON, document reference HCO110697, 26 April 2004

Gillian Kimbley

Witness statement of Robert LOGAN, son of Robert WILSON, document reference HCO004319 , 6 March 2005

Robert Logan

Witness statement of Tracy MULHOLLAND, granddaughter of Elsie DEVINE, document reference HCO110743 , 2 August 2004

Tracy Mulholland

 

Witness statement of Victoria PACKMAN, daughter of Geoffrey PACKMAN, document reference HCO111105, 18 January 2006

Victoria Packman

Witness statement of Lesley RICHARDS (previously LACK), daughter of Gladys RICHARDS, document reference FAM003527, 11 August 2004

Lesley Richards

Witness statement of James RIPLEY, patient, document reference HCO004189, 19 November 2002

James Ripley

Witness statement of Paule RIPLEY, wife of James RIPLEY, document reference HCO111095,  19 November 2002

Paula Ripley

Statement of Pauline ROBINSON, daughter of Ruby LAKE, document reference HCO110995, 21 July 2005

Pauline Robinson

Witness statement of Shirley SELLWOOD, former carer of BRIAN CUNINGHAM, document reference HCO004212, 12 May 2004

Shirley Sellwood

Witness statement of Margaret SHERWIN, curate, about Michael PACKMAN, document reference HCO111102, 24 March 2006

Margaret Sherwin

Witness statement of Ernest STEVENS, husband of Jean STEVENS, document reference HCO110694, 16 April 2004

Ernest Stevens

Witness statement of Florence TUFFEY, niece of Helena (Nelly) SERVICE, document reference, HCO110801 29 June 2004

Florence Tuffey

RELATED ITEMS

On 30 November 2018 the Nursing Times reported that the government was obstructing the NMC’s access to “critical” evidence from the Gosport Independent Panel investigation that could bring some of the nurses to justice:

Nursing regulator in battle with government gatekeeper for Gosport nurse evidence

Expert report by Prof Brian Livesley on the death of Gladys RICHARDS at Gosport War Memorial Hospital

Whistleblowing in the NHS isn’t fixed yet, and this leaves patients exposed. An overview of unfinished policy business.

 

 

 

 

 

 

 

 

A Serious Health Warning about the Freedom To Speak Up Project: What all NHS staff should know before they whistleblow

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 17 November 2018

Summary:

The spin by the government on NHS whistleblowing, channelled through Dr Henrietta Hughes the National Freedom To Speak Up Guardian and her Office, is escalating to dangerous levels. It is misleading staff into thinking that whistleblowing is safer now, when there has been no improvement. The National Guardian rarely steps in when things go wrong and even Freedom To Speak Up Guardians themselves are bullied. There is very little help from the NHS whistleblower employment support scheme after people have been sacked, and blacklisting continues. To cap it all, the National Guardian does not even bother to find out if whistleblowers’ concerns are addressed.

 

Introduction:

The government is under particular pressure to demonstrate that it has “done something” on whistleblowing, because it is due shortly to respond to the Gosport Inquiry on hundreds of unnatural deaths which occurred after NHS whistleblowers were repeatedly ignored and intimidated into silence.

There was embarrassment for the government in last year’s staff survey because there was no improvement at all in the national score on confidence in raising patient safety concerns, despite all the millions spent on the Freedom To Speak Up project. The dial stayed stuck at 70%.

This year, the National Guardian drove an unedifying, sustained PR campaign through the whole month of October, just before this year’s staff survey was completed. Hundreds of Freedom To Speak Up Guardians were put on message to love bomb the NHS workforce into making disclosures and filling in the staff survey. There was even a Twitter hashtag: #SpeakUpToMe

And the culmination of this festival of falseness is an article today in The Times in which the National Guardian attempts to claim success because numbers of disclosures to trust Freedom To Speak Up Guardians are rising.

NHS whistleblowing doubles but critics say watchdog lacks power

It is particularly dangerous for NHS staff because some of the very organisations that should support them, the unions, are now colluding in the pretence that the Freedom To Speak Up project is sound and a safe route of disclosure. The BMA for instance, gives fulsome support to the Freedom To Speak Up Guardian model in its latest guidance on bullying. Yet some unions, such as the BMA, have a poor track record on whistleblowing.

 

What do NHS staff need to know about the Freedom To Speak Up Project before they whistleblow?

The Freedom To Speak Up project was created as a cosmetic sop, after the government rejected robust recommendations from the Mid Staffs public inquiry for strengthening whistleblower protection.

Robert Francis who chaired the MidStaffs Public Inquiry also led the Department of Health and Social Care’s Freedom To Speak Up Review. 

Francis actually stated at one of the Review workshops at which I was present that he did not intend to make any recommendations that were not going to be accepted. It seemed he had already decided to give the government what it wanted.

The Freedom To Speak Up model of Guardians employed by the trusts that they are supposed to hold to account bears no logic or honesty in its basic premise. When it is already known that NHS employees are too often victimised for raising concerns, it is irresponsible to deliberately create more targets in the form of staff whose job it is to challenge the trust board.

Robert Francis proposed this flawed model without any evidence base. The exemplar trust which he very sketchily mentioned in his report of the Freedom To Speak Up Review was no exemplar at all.

The trust failed whistleblowers and there is no evidence that its prototype Freedom To Speak Up Guardian appropriately escalated all serious concerns externally to regulators where they could not be resolved internally. The trust defaulted on an FOI request about this, and I drew my own conclusions.

Robert Francis tried to give the appearance of independence in the Freedom To Speak Up model by proposing the creation of the Office of the National Guardian, to which he claimed local Guardians could appeal, if their trusts were not handling whistleblower cases properly.

However, the National Guardian’s Office is not a safe and reliable backstop, either in intent or design.

The Office has no statutory powers. It is supposed to borrow powers from NHS regulators by asking them to make directions where needed. However, NHS regulators are highly politicised and often complicit in whistleblower suppression.

The National Guardian was appointed jointly by the Care Quality Commission, NHS England and NHS Improvement. She is employed by the CQC and answers to its CEO. The Office is jointly funded by the CQC, NHS England and NHS Improvement.

The Office was established originally to provide the element of independence by conducting reviews of whistleblower cases which were badly handled. It was given a very limited remit – it could not investigate whistleblowers’ concerns, only how they were handled.

The Office was established in April 2016 and appallingly has only completed three whistleblowing case reviews.

 

NHS whistleblowers who suffer the most serious detriment are on their own: the National Guardian won’t touch your case

The National Guardian’s Office was not meant to be a means of appeal or to replace existing employment processes, which significantly ties its hands. Even then, the National Guardian has interpreted this to a ridiculous degree and seizes on any active employment process as a reason NOT to review cases. The Office has clarified through individual cases that it will not touch whistleblowers’ cases if they have a claim in the Employment Tribunal. This means that whistleblowers, who suffer such serious reprisal that they have to go to law, are well and truly on their own.

 

The National Guardian invents new reasons for not reviewing some whistleblower cases, and leaves some whistleblowers to be sacked

The National Guardian has also proven to be arbitrary and flowing from that, politicised. She has conjured up exclusion criteria that do not feature in her published guidance, in order to avoid undertaking some case reviews. In response to a mass referral from 24 staff at troubled Brighton and Sussex University NHS Trust, she astonishingly parked the request with the claim that:

“The purpose of a case review, whilst not aiming to be burdensome, could inhibit an organisation from making improvements”

 

Screenshot 2018-11-17 at 07.39.23

 

This protected the board of Western Sussex Hospitals NHS Foundation Trust which had taken over the running of Brighton and Sussex, and who are currently regulatory favourites.

The National Guardian has repeatedly refused to help in some cases, allowing whistleblowers to be sacked:

The Greasy Freedom To Speak Up Review is Stuck: More Tales of Silence about Silence

This is FOI data showing her rejection of cases for review:

NGO FOI response 4.04.2018 on case review activity

 

 Spin by the National Guardian’s Office

The National Guardian’s Office’s primary function is spin. It has briefed unpleasantly against whistleblowers on several occasions. On one occasion, the National Guardian mishandled a complaint through internal process when she should have put it to NHS Improvement.

The National Guardian cited and supplied the Secretary of State with a false statistic. This breached the UK statistics code of practice not only because it was wrong but also because it was unpublished. It remains unpublished despite the UKSA’s intervention.

This is the briefing between the National Guardian’s Office and Jeremy Hunt’s Office which led up to the breach:

DHSC disclosure 9.04.2018 – correspondence between DHSC and National Guardian’s Office about the conference

CQC disclosure 9.04.2018 – correspondence between DHSC and National Guardian’s Office about the conference

The National Guardian’s secret bulletins to Freedom To Speak Up Guardians,  obtained via FOI, show the spinning strategy of the Office.

 

The National Guardian does not bother to find out if whistleblowers’ concerns are addressed

The tokenism of the Office is revealed in the fact that it takes no interest in whether whistleblowers’ concerns are addressed. This is a letter to all relevant Select Committees about this grievous failing:

Letter to Parliament 29.09.2018: UK government does not track whether whistleblowers concerns are addressed

 

The National Guardian’s links to questionable organisations

As part of the tokenism of the Office, the National Guardian established an advisory working group of which I have been part, but did little real work through this channel. The real conversations took place elsewhere such as with the management accountants KMPG, sometimes un-minuted, as revealed by FOI.

The Office has also made extraordinary attempts to woo organisations that are notorious for their treatment of whistleblowers and their role in major corporate scandals.

 

The National Guardian refuses to support better law to protect whistleblowers

Most importantly of all, the National Guardian has refused to support reform of totally unfit UK whistleblowing law,  when reform would be a first basic step to protecting whistleblowers.

 

The National Guardian wrongly claims that increased disclosures to Speak Up Guardians is evidence of the system working

The National Guardian now claims that because more people are reportedly making disclosures to Freedom To Speak Up Guardians, the system must be working.

As a senior doctor, trained to weigh evidence, she must surely be acutely aware of the flawed logic in such an argument. It is a concern that she even puts it forward.

Firstly, the quality of her data is poor  and she has resisted quality checks.

The reality is that many will be speaking up with no idea of the risks they are taking. Some will be raising low level concerns that are no threat to power, and they will survive because of that. Some will give up when their concerns are not properly addressed, and they too will be seen as unthreatening.

But the really hot cases remain as risky as ever.

Whistleblowers are still coming through with horror stories.

 

Freedom To Speak Up Guardians are bullied

Some Freedom To Speak Up Guardians have told me, unsurprisingly, that they are also bullied. Some do not feel the role is taken seriously In their organisations. Some Freedom To Speak Up Guardians have left their posts after a short time.

In the Scottish NHS, the equivalent of Freedom To Speak Guardians is Whistleblowing Champions. A senior Scottish Whistleblowing Champion, Munwar Hussain a non executive director, has gone public about how he was suppressed when he tried to pursure serious concerns raised by staff.

Whistleblowing chief quits scandal-hit health board

 

There’s precious little help after you’re been unfairly sacked for whistleblowing

There has been a pretence by the government that exiled whistleblowers would be supported to return to work. In reality, the scheme established to do this has been passively aggressively slow, resistive and sometimes downright abusive to some whistleblowers. Some have complained of being messed about, putting critical revalidation at risk. Blacklisting obviously continues.

It is safest to assume that once sacked, there will be no help:

Inaction. Inefficiency. Indifference. The NHS whistleblower employment support scheme and NHS Improvement’s employer pool

 

What can you do?

Whistleblowing can cause great, enduring harm to whistleblowers and their families,  and sometimes makes no difference at all because of the intense level of suppression in the NHS.

It is a very personal decision and a matter of conscience whether you take that step. Only you can weigh up all the competing risks. But do so with your eyes wide open, and protect yourself as much as you can with knowledge.

There is no reliable protection at present. It would be dishonest to tell you otherwise.

But at least you can learn about the potential bear traps that you face, which includes those who profess to help but have vested interests and may well let you down.

Here is lived experience from whistleblowers whose cases were so serious that they had to litigate, which may help shine some light on the path you face:

Whistleblowers in Their Own Words: What’s wrong with UK whistleblowing law and how it needs to change

 

UPDATE 21 NOVEMBER 2018

The National Guardian has today published her annual report and also her fourth case review report, on Nottinghamshire Healthcare Report.

Her annual report ekes out the scant case review activity to date by presenting the work done as 13 cases reviewed, when there have been four joblot case reviews:

National Guardian annual report 21.11.2018 case reviews

A very significant issue arising from the case review on Nottinghamshire Healthcare NHS Foundation Trust Review is that the National Guardian appears to have abrogated responsibility for reviewing progress, despite what appear to be substantial concerns about ‘fear’ in a service. A recommendation is that the trust should arrange for a review within 6 months time:

“Recommendation 3 Within 6 months the trust should undertake a suitably independent review of the speaking up culture in the service relating to Worker A’s case and take all necessary steps to implement the review’s findings without undue delay. Given the evidence of fear of speaking up in this service, the review should take all reasonable steps to protect individuals’ confidentiality.”

What on earth is the logic for effectively leaving staff at the mercy of an employer whom the National Guardian acknowledges has already failed?

 

RELATED ITEMS:

A whistleblower’s feedback to the National Guardian

Another health check on quality of the National Guardian’s data september 27, 2018 by minhalexander

Sir Robert’s Flip Flops

Whistleblowing in the NHS isn’t fixed yet, and this leaves patients exposed. An overview of unfinished policy business.

Replacing the Public Interest Disclosure Act (PIDA)

Hooray Henrietta The government’s PR material emphasises that the National Guardian is a nice approachable GP. She was in fact an NHS England Medical Director prior to being installed as National Guardian, who made it compulsory for her staff to smile.

Freedom To Speak Up Guardian Jailed

Whistleblower 3 not supported by my union not supported by Trust Guardian nor by National Guardian

NHS whistle_001

 

 

 

 

 

 

What could a new whistleblowing law look like? A discussion document

By Dr Minh Alexander, Martin Morton, Greg Lawton and Clare Sardari, 19 October 2018

 

The vast majority of UK whistleblowers who have litigated do not have a good opinion of current UK whistleblowing law, the Public Interest Disclosure Act 1998

This is an updated collation of what whistleblowers say about the law, and how it failed them and the public, and what changes they think are needed:

Whistleblowers in Their Own Words: What’s wrong with UK whistleblowing law and how it needs to change

Law reform is much resisted. But there is nevertheless a growing debate about the need to radically improve the law because major disasters like Gosport show the devastation that can be caused by ignoring whistleblowers

It is important for whistleblowers to have a voice in the creation of any new law, and to be as well prepared  as possible when the time comes for a new law to be drafted.

Whistleblowers do not need to be passive recipients of PIDA II, or to face another twenty years of  ineffective law handed down by those who may not care as much.

Whistleblowers are experts by experience who can help shape law. They can spot and understand things that others cannot.

As a contribution to the debate, we have set out in plain English how a new whistleblowing law might work:

DISCUSSION DOCUMENT: PUBLIC INTEREST PROTECTION BILL

We offer it to stimulate debate, for ideas to be tested and improved or replaced, and for barriers to be identified. If you disagree or have suggestions, we would be delighted to hear. Equally if you agree, please let us know too.

Our proposal maps broadly onto the main suggestions that whistleblowers have made for improving the law, in response to the recent call for evidence.

It is very much written from the perspective of whistleblowers’ practical experience, including of the lengths that institutions may go to in order to cover up.

In brief the proposed law offers:

  • Timely, mandatory investigation of concerns
  • An active duty to protect whistleblowers from the outset
  • A mechanism for early resolution of conflict
  • A means of ordering remedy without the need for litigation
  • A range of civil and criminal penalties against individuals
  • A means of funding legal representation for whistleblowers through a mandatory insurance scheme for employers
  • Expansion of protected groups – the example of patients and families who speak up is explored

We value all feedback and would be grateful to hear what you think.

RELATED ITEMS

Prescribed Persons or the Pretence of PIDA. How UK whistleblowers are ignored

Protect: A View from the Fence

 

 

 

Whistleblowers in Their Own Words: What’s wrong with UK whistleblowing law and how it needs to change

By Dr Minh Alexander and Clare Sardari NHS whistleblowers 18 October 2018 (updated 22 October 2018)

As preparation for a whistleblower-led event on 19 October 2018 about reforming wholly ineffective UK whistleblowing law, we asked fellow whistleblowers who have litigated under the Public Interest Disclosure Act 1998 (PIDA) to contribute brief testimony on their experiences.

We also asked fellow whistleblowers to contribute ideas for improving the law.

A concise summary report of thirty one whistleblowers’ views, and also information from other whistleblowers who did not litigate and supporters who contacted us, is set out below.

The link to the full report with each whistleblower’s testimony can be found: here.

This evidence will be shared with parliament and other decision makers to inform the growing debate on the need to replace PIDA.

The campaign continues and whistleblowers would be very grateful for any support the public can lend. Protecting whistleblowers protects us all. If you are able, it helps greatly if people can write to their MPs in support of our campaign.

If it is helpful, a handy template letter for writing to MPs can be found: here.

Thank you to all and thank you especially to all whistleblowers who poured very personal and hard won experience into this project. We hope it will all count, no matter how long it takes.

Minh and Clare

 

WHISTLEBLOWERS IN THEIR OWN WORDS: WHAT’S WRONG WITH UK WHISTLEBLOWING LAW & HOW IT NEEDS TO CHANGE

“PIDA provided protection not for me but for my then employer.” (whistleblower 9)

INTRODUCTION

 UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA) was an innovation when it was first introduced, but it has fallen far behind international best practice. PIDA is wholly ineffective and needs to be replaced.

A  comparative study by Blueprint for Free Speech in 2016 which set PIDA against international best practice standards of whistleblowing legislation found the Act sorely lacking.

This paper tells the story of PIDA’s failings in UK whistleblowers’ own voices, and is part of an initiative on law reform led by whistleblowers who were members of the National Guardian’s advisory working party for a fixed term 2017-2018. The initiative has been conducted independently of the National Guardian’s Office. It seeks to present evidence from various sources on the vital need for new, radically improved UK whistleblowing law.

SUMMARY

Thirty one whistleblowers who have litigated under PIDA gave first-hand accounts of the problems with the law. Their individual accounts and ideas for change are listed individually below.

Whistleblowers were invited through an open process to submit brief testimony. The process did not include examination of individual cases and facts, but most individuals were known to the authors or to other whistleblowers.

The whistleblowers came from a range of sectors, public and private, including policing, education, industry, local government, health and social care.

Their accounts collectively reveal failures under PIDA to investigate whistleblowers’ concerns, protect them or hold wrongdoers to account. Whistleblowers’ feedback and suggestions amount to a call for replacement of the existing framework. A range of suggestions are made for levelling the playing field, which currently is hopelessly slanted against whistleblowers.

 

PIDA’s failure to ensure that whistleblowers’ concerns are addressed

A prime concern was PIDA’s disinterest in whistleblowers’ disclosures:

 ‘…the most astonishing thing to me was that no one is obliged to investigate the concerns raised’. (whistleblower 15)

 Deaths, abuse, theft and gross governance failures are of no interest to a law that focuses only on the employment relationship:

The ET had no interest in my employer’s failures regarding POVA or in not following policies.” (whistleblower 6).

 The home’s mortality rate quadrupled. Only a fraction of my complaints were investigated by the local Care Trust” (whistleblower 12)

 “Theft, abuse, poor care is not an employment issue.” (whistleblower 2)

 “…the ET judge is only interested in employment issues and can disregard protected disclosures” (whistleblower 20)

 

Lack of protection and detriment due to the litigation process itself

The lack of protection from the law was another key feature. Detriment occurs easily and is not corrected under PIDA.

It is arguable that PIDA protects employers, not whistleblowers:

“PIDA provided protection not for me but for my then employer” (whistleblower 9)

The litigation process itself is a source of detriment:

“Litigation is exhausting, soul destroying, wasteful and bad for all involved. It is often a serious trauma in itself.” (whistleblower 1)

 “I won at tribunal but it didn’t feel like a win I felt battered and left with little confidence about myself.” (whistleblower 2)

PIDA’s prejudicial complexity, which disadvantages ordinary people seeking justice, was noted:

“The burden of proof is on the claimant to prove that each disclosure meets a number of legal tests and is therefore “qualifying”. This assumes that claimants have an understanding of the law (PIDA) at the time at which those concerns were raised. Most claimants have no knowledge of this highly complex area of law” (whistleblower 9)

The highly distressing, often futile nature of legal proceedings under PIDA is described in these first-hand accounts. Character assassination and various other tactics by employers to intimidate and punish are recurring issues.

For example, dragging out proceedings, intimidating witnesses, gagging under duress, threatened and actual vexatious cost orders, aggressive appeals to deplete whistleblowers’ resources, concealment of evidence, conspiracy and misleading the Court. Whistleblowers expressed concern that frank lies under oath and defamation are tolerated in proceedings.

As an example of fabricated allegations being used as a bargaining tool to remove whistleblowers from organisations, whistleblower 16 gave this report:

There was a “settlement” on the second day of the Tribunal proceedings…. Incredulously, based on my fight, every single complaint against me (albeit all false) were withdrawn and quashed; which proves they were all false and fabricated”

Grotesque inequality of arms was reported in some cases, such as the matching of an employer’s QC against a care home worker (whistleblower 2). The fact that some whistleblowers might be disadvantaged by illness by the time cases are heard was flagged: ‘…a claimant at tribunal who might be ill or stressed’ (whistleblower 24).

 Whistleblowers thought the extreme stress of litigation should be avoided: “Litigation should be a last resort” (whistleblower 5). The sense of personal burden upon whistleblowers under PIDA was described. For example:

“The employer was an accountant who covered up. I reported him to the ICAEW and he got a fine. I got a solicitors’ bill.” (whistleblower 2)

 Highlighting how vulnerable whistleblowers can be, and how dependent they currently are on a complex chain of events, one whistleblower’s claim failed because their adviser failed to tick the box on the Employment Tribunal claim form for whistleblowing. (whistleblower 21).

There were indications that Employment Tribunals were not expert enough on whistleblowing. For example, whistleblower 5 was penalised for not accepting a trial return to work related to a loss of trust, when trust is critical to a whistleblower’s safety and well-being:

My remedy hearing failed to account for loss of future earnings because under employment law I had not accepted a trial return to work with my previous employer because of a breakdown in trust.”

 There was incredulity from some whistleblowers that despite being accepted as a whistleblower, the Court found reasons to deny any link with detriment:

“At my ET the judge forced my employer to admit that 15 of my 22 allegations were protected disclosures.  But said he was not interested in the facts of these allegations, only in whether my employer had a valid reason to dismiss me.  The reason accepted for my dismissal ‘A breakdown in the relationship.’  No consideration as to who was at fault for the breakdown!” (whistleblower 20)

 

Failed duty of care and collusion between bodies

A concern was expressed that as long as the law was allowed to be perverted, law reform may be in vain:

As long as the courts allow them to maintain this state no legal refinement will be effective, but rather, will perpetuate even more complicated legal processes ruled by unaccountable institutions with access to unlimited public funds.” (whistleblower 21).

Many of the whistleblowers reported concerted inaction or collusion between bodies, and regulatory complicity in cover ups and reprisal:

“I went to the local clinical commissioning group, NHS Monitor, the CQC and the Parliamentary Health Service Ombudsman. I then went to the police, the CPS and the Crown Court on every occasion I was ignored. Wherever I turn I found that there was no organisation that would listened to me or able to offer any constructive advice or support.” (whistleblower 4)

 My professional regulator failed to protect me or to hold to account those who made false allegations” (whistleblower 12)

 My concerns were not addressed. I believe there was collusion between managers and between bodies, including ministers and regulators, who breached my anonymity and closed ranks.” (whistleblower 15, who discovered collusion and breach of their anonymity through a request under the Data Protection Act)

 Nor do I have any confidence in regulators. They also all let me down.” (whistleblower 10)

 Some whistleblowers reported seemingly very odd decisions by the Employment Tribunal itself. A police whistleblower who raised concerns about false arrests reported:

 I lost my claim as the employer would not accept my concerns were raised as a whistleblower which the ET panel went along with.” (whistleblower 17)

Another whistleblower was devastated by this completely unexpected ruling:

The Tribunal made a shock, illegal finding against me. It erred in law and held that I whistleblew in bad faith. This allowed my employer to pursue me for £100,000 costs which would have ruined me. I thought about suicide.” (whistleblower 22)

Some whistleblowers reported being let down or even coerced by their unions:

“My complaint was investigated under bullying and harassment, my unison rep threatened me into accepting this.” (whistleblower 25)

 The union advised drawing a line under the complaint & were not supportive.” (whistleblower 6)

There were mixed perceptions about the organisation Protect (formerly Public Concern at Work) which many employers advise workers to contact for advice on whistleblowing. Some whistleblowers did not feel supported:

“I contacted Public Concern at Work (PCAW) but they were frankly hopeless and did nothing to help me” (whistleblower 4)

 “I was advised by ACAS and PCAW. They said to let it go, settle for a paltry sum. It was not about money but abuse.” (whistleblower 2)

Some whistleblowers reported that the National Guardian’s Office and or their local trust Guardian had ignored and let them down:

“I have no confidence in the Freedom To Speak Up project. It failed me completely. Indeed, the non-exec’ director with responsibility for whistleblowing has still to contact me after my dismissal.” (whistleblower 10)

 “I was sacked following a sham disciplinary, not supported by my Union not supported by Trust Guardian nor by the National Guardian despite there being adequate time to prevent my sacking or at least to have reviewed the spurious evidence the Trust was using to sack me” (whistleblower 3)

 

 Poor outcome and remedy

Whistleblowers highlighted the wastefulness of litigation under PIDA, PIDA’s inefficiency in terms of the high cost of litigation relative to compensation and a sense of being exploited:

I conservatively estimate that my case cost the NHS over £250K and I know of other cases that have cost considerably more.” (whistleblower 4)

The standard compensation that I received for ordinary dismissal does not reflect my real loss at all, and it was consumed by legal costs. The litigation was also a waste of public money.” (whistleblower 15) 

I ‘won’ my case at ET but my concerns were buried and my compensation was swallowed up by legal fees. I was led a merry dance by lawyers who did not have my best interests at heart or care about the public interest.” (whistleblower 11)

The insufficient calculation under PIDA of loss, and PIDA’s failure to recognise human rights such as the right to family life, was flagged:

Due to the witchhunt, I have to work abroad. I see my family only once a fortnight, overnight…. ET’s should be able to award compensation for intangible losses (like, in my case, loss of contact with my family, friends, relatives and family home for the next 8-9 years).” (whistleblower 10)

Blacklisting was reported, and in relation to this, the pyrrhic nature of ‘winning’ a case under PIDA was noted:

“After taking legal action I was given compensation which mainly covered my legal fee and apology letter from DH. But I stayed black listed and never allowed to work in NHS again.” (whistleblower 12)

 Long term unemployment was reported:

“My employer tried their best to destroy me.  In the long-term, they have. I lost everything, including my home and have not worked since.   The school I worked at, having denied everything I reported, eventually changed most of the systems I reported and eventually got rid of the Head.” (whistleblower 20)

 

Lack of accountability for wrongdoing and reprisal

A serious recurring criticism by whistleblowers was that PIDA has not ensured accountability:

“The wrong doers who were involved in my case were promoted.” (whistleblower 12)

“Those responsible for the detriment I experienced were not personally held to account and were later feted by CQC.” (whistleblower 5)

Over the years, I watched those who lied and who victimised me promoted.” (whistleblower 11)

“….most of the offenders remaining free to carry on to work with vulnerable patients” (whistleblower 19)

 

Miscellaneous issues from non-litigated cases

The core respondents to the exercise were whistleblowers who had litigated.

Several whistleblowers who had not litigated contacted us to share concerns about problems of access to the legal process. These primarily related to problems with union support and unfavourable merits assessment by union lawyers.

An example of such an account is given in Annex 1.

Gagged whistleblowers are another significant group.

Whistleblowers know that gagging continues on a widespread basis and is tool of fear that prevents full transparency.

Settlements which prevent signatory from even revealing the existence of a settlement are particularly intimidating and arguably exist only to subvert the public interest.

Additionally, it is known that several local authorities and NHS employers have seriously overstepped by coercing whistleblowers into accepting gags which questionably sign away rights to make Freedom of Information requests and requests for personal data.

A former NHS medical director who has supported whistleblowers who had been silenced shared a report describing systematic collusion by bodies to silence whistleblowers and protect institutional reputations. The medical director reported huge costs to the public in terms of the destruction of clinical units which took decades to build and were hubs of clinical excellence, research and data, as part of the collateral damage of suppression. These type of costs due to poor whistleblowing governance are very serious, but often overlooked.

Lastly, highlighting important gaps in the list of protected groups, a former NHS non executive director has given an account of the resistance and reprisal that they encountered when raising concerns.

Non-Executive Directors are among several groups not covered by the Public Interest Disclosure Act. Despite recommendations to the contrary, the Government has refused to extend the limited protection PIDA offers to employees to such groups. I became aware of this after raising questions in my role as a Primary Care Trust Non-Executive Director, described by the Chair of the Strategic Health Authority as causing “disruption”. I wrote to the SHA Chair, explaining my concerns about “risk management, governance and public confidence”, adding that if he genuinely believed I caused disruption he could “use the procedure available to you to have me removed as a Non-Executive Director from the NHS”. He initiated an inquiry which he told me found my concerns to be “completely unfounded”. I submitted a complaint to the SHA about the inadequate investigation, which was dismissed.”

 This is a critical matter because part of the NED role is to provide balance and challenge. In many organisations, a NED is the designated Board lead for whistleblowing. If the person to whom all whistleblowers in the organisation are supposed to turn for help is not protected, this makes a sham of the whole system.

 

What changes to the law are needed?

 The following is a broad overview which captures the broad gist of the suggestions from whistleblowers who contributed.

 Whistleblowers ask for a statutory requirement for their concerns to be investigated, and for a statutory duty upon bodies to protect them and their anonymity, from the point at which they whistleblow.

Whistleblowers ask for an element of independence in investigations about their concerns, and for an independent body to enforce statutory protections.

Whistleblowers also ask that the law ensures greater accountability for and deterrence of wrongdoing and reprisal, by providing penalties against individuals.

There is an overall view that employment law is far too narrow to deal with the complexity of whistleblowing, and that fundamental reform of the framework is needed, to allow appropriate handling of concerns, provide criminal sanctions and other mechanisms.

Whistleblowers stress the importance of dealing with wrongdoing, for example:

“Therefore, the legislation should:

  1. Focus on wrongdoing, and
  2. Not on the employment relationship”

(whistleblower 9)

There is a suggestion to add whistleblowing to the Equality Act:

“Whistleblowing should be a protected characteristic under the Equality Act. (Whistleblower 10)”

Some whistleblowers suggest that the way the law views whistleblowers should fundamentally shift, for example from plaintiff to ‘victim of crime’ (whistleblower 29).

It follows that the State should take therefore greater responsibility for protecting such a witness:

“We need new law that recognises whistleblowing is centrally about public safety and fundamental rights, not some trivial, unedifying employment spat. The law needs to powerfully protect the public interest by creating conditions in which it is easier to speak up, and much harder to persecute those who do. Whistleblowers shouldn’t be bullied by the government by being left to defend themselves against overwhelming force of arms from employers, but actively shielded and lifted out of detriment. Litigation should be avoided where possible” (whistleblower 1)

There are suggestions for earlier intervention:

“The law should be strong enough to prevent serious detriment in most cases” (whistleblower 1)

There are suggestions for revising the causation test which links detriment to whistleblowing, to reduce what is currently too high a hurdle. For example, the law should be changed so that failures to investigate and process a whistleblower’s concerns properly are taken “taken into account by the ET Panel.” (whistleblower 16)

An ET must look at the concerns raised and how they were handled as well as any detriment suffered by claimant.” (whistleblower 6)

 An employer’s failure to follow it’s own policies concerning whistleblowing, disciplinary investigations etc. & safeguarding the public interest should also be taken into account at ET in all claims.” (whistleblower 6)

 Another proposal for tipping the scales more fairly towards whistleblowers is to make other detrimental acts against whistleblowers, besides dismissal, automatically unfair. For example, exclusion. (whistleblower 21)

There are suggestions that concealment and causing serious detriment to a whistleblower should be classified as a crime, for example, under Misconduct In Public Office.

“Would-be abusers should know that they risk heavy fines, disbarment and jail time if they indulge in serious misconduct and cover ups.” (whistleblower 1)

 “Substantial fines for poorly investigated cases. Substantial fines for keeping whistleblowers from work” (whistleblower 25)

 Specifically, it is suggested that not only should employers be held to account, but that other parties who harm or fail whistleblowers should be liable. For example:

“…criminal liability for serious whistle-blower retaliation and for obstructing/perverting the proper functioning of the legal process, and it should hold regulators, other officials and government departments to account for failing whistleblowers.” (whistleblower 10)

 There are suggestions for improving remedies to ensure that all loss is fairly accounted for, including intangible loss such as disruption to family life.

Mechanisms for addressing legal inequality of arms are suggested, for example:

“Legal fees should be waived for all whistleblowing cases.” (whistleblower 25)

 “The law should make legal aid provision for the whistle blower, but also insist that the organisation involved is limited to one legal team” (whistleblower 28)

Special training for lawyers, judges and union representatives who deal with whistleblowing cases is suggested.

The information from non-litigated cases raises the following issues for any law reform project:

  • Access to trade union support
  • Addressing gaps in protected groups, such as non executive directors

The use of gags in settlements, especially clauses which hide even the existence of settlements or which flagrantly breach rights by prohibiting access to data under FOIA and DPA, also needs to be addressed by any new whistleblowing law.

 

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WHISTLEBLOWER 1 

Difficulties that I have experienced in using the Public Interest Disclosure Act:

I’ve whistleblown on serious matters several times in my career, before and after PIDA came into force. I’ve been vindicated in my concerns. There’s never been reliable protection nor full investigation of all concerns. It’s just happenstance, depending what individuals were in the mix. I’ve known both honest and crooked bosses. Diligent and collusive regulators. Ministers who took some action and others who deflected everything. PIDA is a bed of nails for whistleblowers, especially first time flyers with high hopes. The language of PIDA is dishonest: the word ‘protect’ crops up everywhere. Governments repeat it ad nauseam. Yet PIDA is only a poor remedy after the event, if you’re very lucky. It’s easy for employers to attack you under PIDA. Its worst feature is that it ignores your concerns. Litigation is exhausting, soul destroying, wasteful and bad for all involved. It is often a serious trauma in itself.

How I think the law should change:

 We need new law that recognises whistleblowing is centrally about public safety and fundamental rights, not some trivial, unedifying employment spat. The law needs to powerfully protect the public interest by creating conditions in which it is easier to speak up, and much harder to persecute those who do. Whistleblowers shouldn’t be bullied by the government by being left to defend themselves against overwhelming force of arms from employers, but actively shielded and lifted out of detriment. Litigation should be avoided where possible. The law should be strong enough to prevent serious detriment in most cases, and it should restore all loss. It should be compulsory to investigate whistleblowers’ concerns and there should be a fully independent agency to ensure compliance and protection. Would-be abusers should know that they risk heavy fines, disbarment and jail time if they indulge in serious misconduct and cover ups.

 

 

 

 

 

 

 

Prescribed Persons or the Pretence of PIDA. How UK whistleblowers are ignored

 By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 14 October 2018

 

 The Public Interest Disclosure Act 1998 and Prescribed Persons

It has often been said that the genius of the British ruling classes is that they know when to give in.

More accurately perhaps, it should be described as knowing when to pretend to give in.

The twenty year history of utterly ineffective UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA), is scattered with token concessions. Small adjustments have given the semblance that governments have listened to concerns about the law’s inefficacy. In fact these changes just kicked the can down the road allowing governments to rest on their laurels, and to block real reform.

The ‘Prescribed Person’ system  is a labyrinthine appendage to PIDA which on close examination amounts to nothing at all. It is a disparate collection of organisations and individuals, some of whom are not regulators and who have no real responsibilities towards whistleblowers under the law. Prescribed persons are appointed by the government of the day.

Under PIDA, prescribed persons originally only had a duty to receive and record disclosures from whistleblowers. Since April 2017 they have come under an additional duty to publish minimal annual data about the whistleblowing disclosures they receive.

Under PIDA, workers may be legally ‘protected’ if they make a disclosure to a prescribed person. But they must make their disclosure to the right prescribed person. It is easy to get wrong. And how is an ordinary member of the public to know? This important point was raised by Dr Philippa Whitford in a parliamentary debate which she led on PIDA on 18 July 2018.

National Audit Office’s 2015 review of prescribed persons

In 2015 the National Audit Office (NAO) examined the function of Prescribed Persons. NAO reviewed itself and five other prescribed persons. The auditor’s report coincided with the publication of the report of the Freedom To Speak Up Review on NHS whistleblowing. NAO’s attempt to paint a picture of much system activity was somewhat overshadowed by the fact that this activity came seventeen years after PIDA’s launch and the introduction of prescribed persons.

NAO reported that the government, through the Department of Business, Innovation and Skills (BIS), had “begun to provide support to the network of prescribed persons”.

Research by Middlesex University undertaken just two years before NAO’s 2015 review had found significant frailties in the Prescribed Persons system, including lack of training and funding when the role was established. A questionnaire by Prof David Lewis and Aaron Phillips of Middlesex University revealed that some Prescribed Persons did not even know that they were Prescribed Persons. Indeed, NAO as one of the prescribed persons surveyed, did not seem to know what it was doing. It did not complete the research questionnaire:

Blog NAO Lewis paperSource: Whistleblowing to Regulators. Are Prescribed Persons Fit for Purpose? Arron Phillips and David Lewis Middlesex University 2013

NAO’s 2015 review did not dig as deep as the 2013 Middlesex University research. It narrowed its sights to case studies of just five prescribed persons:

Care Quality Commission

Financial Conduct Authority

Health and Safety Executive

Independent Police Complaints Commission

Office of Rail Regulation

Whilst NAO acknowledged that some staff within prescribed bodies did not have a good understanding of the prescribed person role, it was upbeat overall:

“We found a positive approach to continuously improving procedures. All the prescribed persons we assessed have recently carried out, or are in the process of carrying out, some review of their activity or guidance”.

This observation contained Whitehall’s signature promissory note – ‘We’re on the case, learning from doing, it will be better etc’.  Only so many notes of this sort can be penned before people get restive.

NAO touched lightly upon the fact that the law provided no protection to whistleblowers and that it did not require prescribed persons to investigate whistleblowers’ concerns. However, it made no comment on the fitness of the law. NAO has advised that it is unable to participate in formulating policy, to the extent that it cannot even attend an event on 19 October on failure of current whistleblowing law:

Email from Amyas Morse’s office 4 September 2018: “I am sorry to say that we cannot attend this event as we would then be involved in supporting a change in legislation which would give effect to a policy, and we are specifically excluded from that area.  It is possible that we may be called on to examine the policy impact assessment at a later date, should the legislation change.”

 The recommendations of NAO’s 2015 report were ultimately peripheral. The auditor suggested no remedy for the core problem of defective law.

 

The government’s failure to act upon NAO’s 2015 recommendations about Prescribed Persons

Of concern, a BEIS FOI response 2018/19127 of 14 September 2018  showed that BEIS had not actioned the specific recommendation that NAO made in 2015 for the government:

Blog BEIS foi response

Granted, these last few years have been tumultuous, but whistleblowing governance always seem to end up at the back of the queue. This lapsing backing into indifference after the press conference has been given and headlines are achieved, is very typical of how power behaves on issues of whistleblowing.

 

A failed attempt to make prescribed persons aware of serious whistleblower cases which reached the Employment Tribunal

In 2010, one of the token government concessions was to add a mechanism for alerting prescribed persons to whistleblowing cases that came before the Employment Tribunal.

The stated rationale was thus:

The Government committed to explore whether there was a practical process to allow the substance of allegations giving rise to PIDA claims to employment tribunals to be forwarded to the relevant regulator so that the allegations of the underlying issue can be investigated where appropriate by the regulator”

This was a theatrical touch given that the government had failed to confer a legal duty upon prescribed persons to investigate whistleblowers’ concerns.

Since 2010, many distressed whistleblowers have ticked the box on their ‘ET1’ claim form in the innocent hope that that someone would finally address their concerns.

Blog ET1 claim form

It was just another unkind hoax. By 2013, when BIS reviewed PIDA,  By 2013, when BIS reviewed PIDA, it received submissions advising that this system of notification was not working.

Analysis of responses 

 Concern was raised around the ET referral process because the ET cannot always easily identify the appropriate prescribed person to refer an issue to. It could be argued that this is beyond the ET remit. The point was also raised that the time it takes an ET claim to get through the system (with some cases taking longer than a year), may negate the need for the information to be referred as the issue may have already been resolved. 

The Government recognises that the ET referral system should be a useful tool to give prescribed bodies more information than they may currently have, to enable them to consider trends and to pick up issues which may not have ordinarily been brought to their attention. This referral could play a more strategic role in ensuring the matter about which an individual had blown the whistle, is investigated by the appropriate regulator.”

In response to these concerns, the coalition government made this promise:

To address the concerns raised, the Government will analyse the current referral system in place, working with HMCTS and prescribed bodies, to collate numbers and evaluate its effectiveness. As part of this work, the Government will look at a sample of ET1 forms specifying a referral to prescribed persons to understand if this happened and if not, what the reasons behind this are, with a view to making changes if this is the appropriate course of action.”

I asked HMCTS  what systems and guidance it had in place for Employment Tribunal staff to ensure that the ET1 notification process worked, and whether it had undertaken any audits of the process.

HMCTS advised thus about its internal process:

I can confirm that the HMCTS provides standardised guidance to offices in relation to claims accepted under the Public Interest Disclosure (Prescribed Persons) Order 1999(a) in accordance with the provisions set out in the Employment Tribunal rules of procedure 

www.gov.uk/government/publications/employment-tribunal-procedure-rules

Internal administrative guidance states:

‘If an accepted ET1 includes a claim under the Public Interest Disclosure Act, the vetting clerk should check if the box at question 10.1 of the form has been ticked. If it has, the claimant is giving their permission for the claim form to be copied to a relevant regulator in cases where there are allegations of underlying issues such as serious fraud, health & safety violations, care home standards etc. If the box has been ticked, do not forward a copy of the claim form direct to the regulator. A copy of the form should be sent via email to:

EmploymentJurisdictionalSupportTeamInbox@justice.gov.uk with the subject ‘PID Whistleblowing claim’ in the subject heading.’

Relevant claims are forwarded to and processed at a central location, and the parties are notified which regulator(s) the claim has been referred to.”

It would seem there is some attempt by HMCTS to introduce order through centralisation of this specialist work, to identify the correct regulators, but is it working? Are local Employment Tribunal offices aware of the protocol and adhering to it? Is the jurisdictional support team competently trained?

Anecdotally, there is still evidence of problems. For example the following case of a whistleblower who raised concerns about a major private healthcare provider. Their ET1 form should obviously have been copied to the Care Quality Commission. Instead, the whistleblower received a note from the Employment Tribunal Jurisdictional Support Team on 5 December 2017 advising that it had been ‘unable’ to identify the relevant regulator for forwarding:

Blog Noel Finn ET1 prescribed person notification letter

 

Continuing failure of the system for notifying prescribed persons of whistleblowing cases which reach the Employment Tribunal

FOI requests were made to prescribed persons in August 2018 about the numbers of ET1 notifications that they had received. When compared against  ACAS FOI data on the number of whistleblowing claims lodged with the Employment Tribunal, this suggested that only a small proportion of ET1 forms are forwarded to prescribed persons.

Alternatively, some of the of ET1 notifications that are received by prescribed persons may not be correctly logged.

The figures quite possibly suggest that there is a large element of failure by HMCTS to ensure that ET1 intelligence is passed on safely to prescribed persons.

This spreadsheet summarises FOI responses from 42 major prescribed persons and a selection of 60 local authorities on the number of ET1 notifications received from the Employment Tribunal during the April 2016 to March 2018:

Summarised 2018 FOI responses from prescribed persons about ET1 notifications 2016/17 and 2017/18 

All local authorities are prescribed persons for food standards, health and safety and consumer protection, but surprisingly they rarely seem to be sent any ET1 notifications by the Tribunal. Forty-eight out of a sample of sixty local authorities had either not received any ET1 notifications, or held no data about ET1 notifications.

Past FOI work by others has revealed that some local authorities are unaware of their prescribed person status. The responses to these latest FOI requests suggested that this is still the case. Several local authorities required clarification of the FOI questions because they were confused between ET1 claim forms received as an employer being sued, as opposed to those received as prescribed person being notified of potential wrongdoing:

Please can you clarify your request.  ET1 claim forms are used to make a claim to an employment tribunal – and are not sent by the claimant to the council.  Please could you further explain your request.”

Nottinghamshire County Council flatly denied that it was a prescribed person at all:

“The council is not classed as a Prescribed Person and therefore does not hold any information relating to your request.”

Staffordshire County Council revealed that it had never heard of the ET1 notification system to prescribed persons:

“We would expect such disclosures to be made directly to the local authority by the individual and have never heard of the Employment Tribunal sending ET1 Forms”

Harrow council probably spoke for others when it advised:

“As far as we are aware, the Council has never been passed any ET1 forms from the employment tribunal in its role as a ‘prescribed person’.

Neither did the major prescribed persons, regulators and other oversight bodies seem to receive many ET1 notifications. Collectively, 42 major prescribed persons admitted to receiving fewer than sixteen ET1 notifications during the period April 2016 to March 2018.

Worryingly and bizarrely, and in marked contrast, ACAS reported via FOI  that it received a total of 3, 124 notifications in 2017/18 alone, about whistleblowing cases across all sectors. The gross mismatch between the two sets of figures raises very troubling questions.

There were notable refusals by some prescribed persons to reply to the FOI requests citing cost exemptions, viz:

Care Quality Commission

Department for Education

ICO

This implied poor governance and a failure to centrally collate and track data about ET1 intelligence.

The Department of Health and Social Care admitted baldly that it could not provide the requested data, because it did not keep the data in a central form.

The fact that the DHSC and CQC do not keep central data on ET1 notifications is breath-taking, after all the lip service and the millions squandered on the Freedom To Speak Up Review and subsequent project of appointing a National Guardian and local Guardian network. According to ACAS, Health and Social Care generated 386 whistleblowing claims in 2017/18. This was the largest number of whistleblowing cases for any sector.

CQC has had to be dragged for the last few years, kicking and bawling, to the point of accepting that its whistleblowing governance was still not sound. As part of this, CQC has accepted that it should review its systems for handling ET1 notifications, notably its lack of any central tracking mechanism.

Letter from Andrea Sutcliffe CQC Chief Inspector of Adult Social Care 13.09.2018 about ET1 notifications from the Employment Tribunal

Letters to Andrea Sutcliffe about CQC’s handling of ET1 notifications by the Employment Tribunal

The recent FOI data revealed clear mismatches between the numbers of ET1 notifications reportedly received by some individual prescribed persons and the numbers of whistleblowing cases reported by ACAS from the relevant sectors.

For example, ACAS advised that there were 23 whistleblowing cases notified from the energy and water sector in 2017/18. However, Ofgem reported that it received no ET1 notifications. Ofwat failed to respond to the FOI at all. However, Ofwat’s response to an earlier, similar FOI in 2016 revealed that it had never received any ET1 notifications since the government introduced the system in 2010.

It is likely that if Ofwat had responded to the recent FOI, it would have reported zero or few ET1 notifications in keeping with the general trend.

As an example of another anomaly, ACAS reported that there were 189 whistleblowing cases notified from the ‘Transport, Storage and Communication’ sector in 2017/18. But the Department of Transport reported that it received zero ET1 notifications  from the Employment Tribunal.

Only the Civil Aviation Authority and Prudential Regulation Authority indicated in their replies that they had coherent governance in place to track and act upon ET1 notifications.

“Allegations received on ET1 forms are logged under the CAA whistleblowing process and investigated as appropriate. The original incoming information, investigation records and closure recommendation are held for 10 years.”

“The PRA collates and holds centrally  the information it has received is an ET1 form and the data that has been provided by the author on the ET1 form.”

 NAO and HMRC indicated that they collated data centrally, but gave less clear assurance about follow up with the whistleblowers who had made claims to the ET. NAO said it had been sent misdirected ET1 forms, that should have been sent to other oversight bodies. NHS Improvement received one (yes one) ET1 notification, but did not contact the whistleblower and gave no reason for this.

The Competition and Markets Authority put on a trench coat and dark glasses and refused to ‘confirm or deny’ anything.

The Serious Fraud Office preferred outright denial:

 “We do not hold the information requested. For future reference please note that we know of no formal or legal requirement whereby an ET1 would be forwarded to us by the Employment Tribunal by virtue of our Director’s capacity as a prescribed person under whistleblowing law. Nor are we aware of any instance where this has happened.”

 These facets of the failing prescribed persons system spell negligence writ large, writ thus:

  • The Employment Tribunal’s failure to identify and send ET1 data to the correct regulators, prescribed persons’
  • Prescribed persons’ Lack of diligence or competence in handling ET1 intelligence
  • NAO’s convenient averting of its gaze
  • HMCTS’ and BEIS the lead government’s Department’s self-admitted failure to do their governance homework.

All this helps to explain the truly dismal experience of whistleblowers as hapless end-users of this ‘service’.

I recall when I first contacted CQC almost a decade ago, to begin the process of disclosure, the person at the end of the phone could not even clearly confirm to me that the CQC was a prescribed person under the Act.

When whistleblowers raise concerns about being given the endless run-a-round, they are often dismissed as querulous or vexatious. Institutions paint themselves as reasonable and long suffering. But laid out here in these various FOI data is the real picture, of torpid, irresponsible and incompetent officialdom. An officialdom that neither cares nor fully understands the central importance of whistleblowing to a safe and healthy democracy, and to public protection.

 

When Morecambe Bay whistleblower Russell Dunkeld tried to disclose to the Care Quality Commission a PIDA Prescribed Person, the regulator sent him off to the PHSO. The PHSO sent him back to the CQC.

“When I complained to CQC, they gave me the brush off. “CQC’s role does not include investigating individual complaints.”

CQC told me to contact the Health Service Ombudsman. The reply from the PHSO was “I understand the CQC have advised you to contact us…but from the information available on their website, they would be the appropriate organisation to consider your concerns”.

This is an experience to which many whistleblowers can relate.

It is inconceivable that CQC as a regulator has been allowed all these years to refuse to investigate individual whistleblowers’ concerns. It is a convenient collusion between CQC and government that CQC pleads inability, and government does nothing to clearly give CQC the necessary powers despite the regulatory gap being repeatedly highlighted by whistleblowers.

Russell tweets at @RussellDunkeld 

The confirmation from these latest FOI responses that there has been no genuine improvement in the prescribed person system comes on top of revelations that the NHS National Guardian’s Office, the UK’s only dedicated whistleblowing agency, does not bother to track whether whistleblowers’ concerns are addressed.

These facts give lie to endless, monotonous government platitudes that the whistleblowing framework has been reviewed and improved with this or that minor adjustment, and that we must all be patient and wait for soft culture change.

After the Gosport disaster, in which most of the 656 lives lost fell after incidents of whistleblower suppression, this pantomime must end. It is time to respect, protect and share power with the public by protecting whistleblowers with new and radically improved law.

UPDATE 22 OCTOBER 2918

An illustrative post script which compellingly shows that the system of forwarding ET1 intelligence on whistleblowing cases by the Employment Tribunal to PIDA Prescribed Persons is truly broken.

A Scottish whistleblower filed a whistleblowing claim with the Employment Tribunal in 2016 and duly ticked the box giving consent for their case details to be forwarded to the relevant regulator. The data was never forwarded. After the whistleblower made recent enquiries, the ET advised on 17 October 2018 that it had finally sent the data onwards…but to an English regulator, who had no jurisdiction whatsoever.

Sheena Pinion ET sent ET1 data to wrong Prescribed Person CQC

 

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Protect. A View from the Fence.

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 8 October 2018

 

Summary: Protect, formerly known as Public Concern at Work (PCaW), is the dominant UK whistleblowing charity. It played a large part in introducing very ineffective UK whistleblowing legislation twenty years ago. Whilst this was probably done with good intentions, the charity has not redeemed the mistakes of the past by calling for replacement of the law or urgent correction of the law’s most serious deficits. For twenty years, UK whistleblowing law has not compelled anyone to investigate whistleblowers’ concerns.

Protect is an important reservoir of specialist knowledge because of its dominance of the market. It receives substantial income from the public purse but has declined to reveal full details of this income. It provides services to employees and employers. Some may be concerned about the potential for divided loyalties, priorities and the degree to which Protect challenges power. In any case, the charity has no official status and no powers to protect whistleblowers. The charity has not challenged the most obvious frailties of sham government whistleblowing policy. The Freedom To Speak Up project, which is arguably the biggest block to real reform, not only goes unchallenged but was this week endorsed by a Protect trustee. In the terrible shadow of the Gosport disaster, the public has a powerful need for a statutory, independent expert body with powers to protect whistleblowers and the public interest, and is subject to proper legal accountability.

 

 

The UK whistleblowing scene is a rubble strewn landscape.

Defective UK whistleblowing legislation, the Public Interest Disclosure Act, (PIDA) has been in force for twenty years. It gives workers the notion that they are protected, until it is too late and they realise they are not.

The law is so bad, it is turned against whistleblowers as a weapon.

Successive waves of bewildered whistleblowers have discovered that UK law is disinterested in the content of their concerns.

Deaths due to poor whistleblowing governance have continued since PIDA came into force. For example, at MidStaffs, in the case of Ian Paterson the rogue surgeon and at Liverpool Community Health NHS Trust.

Opinions vary about whether it is better to have a bad law rather than none at all.

Lord Touhig who proposed a close precursor of the current legislation commented:

“In its current form, Pida is dangerous for whistleblowers because people think they have stronger protection under it than they actually do,”

 Richard Shepherd MP the proposer of the current legislation reportedly defended its honour somewhat hotly:

“[Shepherd] said he was “angered” by the criticisms of what he described as “one of the most progressive Acts in the western world”.

“Pida is blamed for all sorts of things that aren’t its fault,” he said.”

 If Shepherd gave the legislation life, the midwife was the charity Public Concern at Work (PCaw), now re-branded as ‘Protect’. Protect sees itself thus:

PCAW SELFFrom Protect’s 2012 submission to Transparency International

Protect promised much of PIDA, which has not come to pass. For example, PIDA has not delivered accountability as originally promised:

“We warmly welcome this Bill. It will give employees the assurance to sound the alarm on abuse in care, fraud and other serious malpractice and it will provide employers an incentive to handle such concerns responsibly. As it will ensure that employees and employers are less likely to turn a blind eye to the wider public interest, it will improve both accountability and public confidence in the workplace.” Michael Brindle QC, Public Concern at Work

Since PIDA was passed in 1998 and came into force in 1999, PCaW has dominated the conversation.

Protect has been ubiquitous. Its name appears in the majority of public bodies’ whistleblowing policies as the go to source for independent whistleblowing advice for workers. Few conferences on whistleblowing pass without Protect appearing on the attendance list. It has had a place for years on the national user group for the Employment Tribunal. Twining around any number of working groups, Protect has a well-marked dance card.

Protect has amassed much power as a keeper of secrets. Access to secrets often generates more access, and the organisation is embedded into public life. And in fairness, because it cornered the UK market in whistleblowing, Protect holds vast data and knowledge. It would also be churlish not to acknowledge that some of Protect’s work has been very useful in advancing understanding about whistleblowing matters.

Although it must also be said that the organisation sometimes overlooks sampling limitations. It has sometimes implied that its findings are representative, when they only relate to the sub-group of whistleblowers who have found their way to Protect’s front door. But it may be tempting to overlook data limitations when trying to emphasise one’s importance.

For example, in its ‘Whistleblowing Commission’ report, Protect stated:

Further cases analysed in “The inside story” revealed that 74% of whistleblowers said they were ignored when they first raised a concern. This research also established that it is likely individuals only raise a concern once (44%) or twice at most (39%) before giving up.”

 Strictly speaking it ought to have clearly stated that 74% of whistleblowers who contacted Protect said they were ignored when they first raised a concern. Those who ring the Protect helpline are more likely to have experienced problems with raising concerns. A prospective, whole population study as opposed to a retrospective trawl of Protect helpline case files would likely reveal different, less dramatic findings.

Protect has described itself as a ‘self-funding’ organisation. In 2017 it registered £578K staff costs, and £708K income. The lines between the charity and the government are blurred by the fact that Protect accepts public money by selling services to the public sector. For example, Protect operates an NHS whistleblowing helpline for the Scottish government. It has sold training services to the government’s Freedom To Speak Up Project. Protect also trains staff from government departments. FOI disclosure 12017/11460 of 24 May 2017 by the Department of Business, Energy and Industrial Strategy, which leads on UK whistleblowing law, indicated that the Department had sent two members of staff on a Protect training course.

 

Protect’s services to the public sector

An FOI disclosure by Health Education England revealed that it paid Protect a total of £129K for training services.

An FOI disclosure by the Scottish government revealed that it paid Protect £142K for running its whistleblowing helpline between April 2013 and July 2017

There is no comprehensive client data on Protect’s website. Some but not all clients are named. There are also occasional promotional tweets from the charity’s social media account, which reveal some of the organisations to which training services are provided.

Last year I asked Protect’s former CEO and colleagues about the charity’s clients and revenue. They advised that they could not tell me, or tell me with any accuracy:

–       who its 300 plus clients were

–       who its public sector clients were

–       its overall income from public sector clients

Correspondence with Cathy James former CEO of PCaW et al (now Protect)

 

Protect provides free telephone advice on whistleblowing which is available to all workers. However, it also sells consultancy services to individual employers. Questions have long been asked about the potential for conflict.

Indeed, taking the example of Health Education England (HEE), Protect was simultaneously selling whistleblowing governance services to HEE whilst intervening in the case of Dr Chris Day who was in dispute with HEE, and submitting a third party brief to the Court. Moreover, Dr Day was represented by a trustee of Protect, James Laddie QC.

Protect stated in an annual report of 31 December 2017 that its trustees have the responsibility for ensuring there are no conflicts:

PCAW conflicts

It is not explained how this is achieved.

Protect’s website says the organisation provides the following services to whistleblowers who call its helpline:

PCAW compassionate helpline

This menu would raise substantial hope in any inexperienced whistleblower, searching frantically for safe harbour.

There is little activity and outcome data about Protect’s helpline on its website. Raw contact numbers are given in annual reports. The 2017 report gives the following figures:

PCAW 2017 ACTIVITIES

Protect tells others how to run their whistleblowing arrangements. Its 2013 ‘Whistleblowing Commission’ put forward a draft code of practice which advised that best practice included regular review of whistleblowing arrangements, which included measuring whistleblower experience:

d) conduct periodic audits of the effectiveness of the whistleblowing arrangements, to include at least:

  1. a record of the number and types of concerns raised and the outcomes of investigations;
  1. feedback from individuals who have used the arrangements;”

 I am not aware of comprehensive published data on how whistleblowers experience Protect’s services. Some data appeared in Protects’ 2010 report on ten years of PIDA:

PCAW feedback

In its 2017 annual report, Protect briefly reported that 86% of people who had called the helpline in the previous year had said they would recommend the service to ‘someone with a workplace whistleblowing dilemma’.

Anecdotally, I hear more from whistleblowers who express disappointment and who perceive limited support from Protect. To some extent, this could be perhaps anticipated given the parameters of the situation; desperate whistleblowers searching for refuge in the context of toothless law that does not protect but allows further abuse, rubbing up against a non-statutory organisation with limited resources, that has no powers at all.

A few cases which offer interesting points of law are scooped up by Protect which is fair enough. Cases are also used to promote the organisation and used for good news stories – perhaps not so fair enough. Hero-innovator narratives may be good for raising organisational profile, but sober policy arguments about deaths and egregious failures of weak law may be preferable. Protect similarly may approach figures and whistleblowers who might be seen to be useful because of their profile to join as trustees. The response is not always affirmative.  Run-of-the-mill whistleblowers however, sometimes report a less solicitous attitude.

It would be basic good practice for Protect to hold itself to the same standards that it says it expects from others, and to publish comprehensive data on how whistleblowers experience its services with broad details of what it actually does for them.

Protect has not in my view been radical in campaigning for better law. Twiddling at the edges with esoteric tweaks of the existing legislation has had limited impact on the continuing failures of public protection. Protect has repeatedly made recommendations to strengthen, but not to replace the legislation. When legislation was revised by the government, Protect’s 2014 submission  suggested various tweaks, some important, but it did not say the most important thing of all. That is, the law ignores whistleblowers’ concerns and does not compel anyone to investigate them.

There was tangential reference to the investigation of whistleblowers’ concerns in that Protect’s 2014 submission proposed the introduction of a code of practice.

Protect’s draft code of practice from its 2013 ‘Whistleblowing Commission’ report included a standard on responding to whistleblowers’ concerns and keeping whistleblowers informed of investigation plans and outcomes. This was not the same as clear compulsion of investigation with mandatory timescales.

Protect’s tweaking tendencies are less threatening to power. A lack of radicalism can help to keep a place at the table. A charitable interpretation might be that Protect feels it can be more effective inside. Indeed, it is inordinately difficult to get any hearing from power on whistleblowing matters. But it is a question of the price of that audience.

Six hundred and fifty six lives were lost at Gosport,  most of which occurred after whistleblowers were suppressed. They throw into sharp relief the question of where the balance should be struck in challenging power. How much compromise is worth a place at the table for influence over future law? PIDA has been in force for twenty years. Twenty years of recurring disasters and deaths due to poor whistleblowing governance. It is fair to say that alacrity has not been the watch word.

Timeline of inappropriate opioid use at Gosport War Memorial Hospital, which has been linked to 656 unnatural deaths by the panel investigation:

PCAW Gosport opiate timelineSource: Report of the Gosport Inquiry

Protect now endorses the government’s sham Freedom To Speak Up project.

Some may wonder if this is commercial flattery.

Protect’s CEO and I briefly debated some favourable comments that she made about Freedom To Speak Up Guardians at a specialist conference on 20 June 2018 about Twenty Years of PIDA.

A Protect trustee has now gone into glowing print about the debatable merits of the Freedom To Speak Up project:

Whistleblowing: public services fail to deliver on promise of open culture

‘It is true there has been progress. Following the 2015 review of health service whistleblowing by Robert Francis QC, there is now a network of “freedom to speak up guardians” across NHS trusts, supported by a national guardian for the health service, a post energetically filled by Dr Henrietta Hughes.

Her first report, published in September, reveals that more than 7,000 cases were raised with freedom to speak up guardians over the previous year. A third involved patient safety and service quality, and 361 people alleged they had suffered at the hands of their employer as a result of raising concerns.

That thousands of people feel able to approach the guardians – albeit a fifth of them anonymously – is promising, and Hughes pushing for action at the trusts that failed to record any cases is a good sign.’

 

 

This article coincides with an inadvisable and manipulative publicity stunt by the National Guardian’s Office viz. ‘Speaking Up Month’, just before the government’s response to the Gosport Inquiry report and the annual collection of data for the NHS staff survey.

The endorsement of the government’s woeful and harmful whistleblowing policy is problematic for many reasons. Praising the project effectively endorses his own organisation’s contribution to the project.

The article cited statistics from the National Guardian’s Office. This data is flawed and unverified:

Another health check on the quality of the National Guardian’s data

Indeed, I wrote to parliament about a mission critical failure by the National Guardian to gather any data at all about whether whistleblowers’ concerns are addressed.

Parliament has acknowledged that this is a matter that needs to be pursued.

Even the Health Service Journal, not always a friend to whistleblowers, reported on 27 September 2018 about the National Guardian’s disinterest in whether whistleblowers concerns were addressed.

Over a week after HSJ’s coverage, the Protect trustee did not acknowledge this. This omission mirrored Protect’s inaction on PIDA’s failure to compel investigation of whistleblowers’ concerns.

The article made passing reference to the law:

“…the whistleblowing legislation itself needs strengthening”

Strengthening. Not wholesale, radical reform. This is even despite PIDA’s core failure to require the investigation of whistleblowers’ concerns or to compel anyone to protect whistleblowers. Even in the terrible shadow of Gosport.

As far as I can see, Protect remains perched on the fence. Lip service, tweaking, and endorsing the biggest block to real reform – the Freedom To Speak Up project, which the government is trying to spread and embed. Once embedded, undoing it will be a devil of a job.

Of interest, Protect’s former Head of Legal Services is now National Engagement Manager at the National Guardian’s Office, taking cross fertilisation to a different level. She has contributed to the National Guardian’s publicity material, for example, through a newsletter:

“I feel extremely privileged to be a part of the process in working with Guardians and supporting staff on the journey towards making speaking up business as usual in the NHS”

In short, you can have all the technical expertise and knowledge in the world. But how much is it worth if your compass doesn’t work.

It is time for any fiefdoms built on mutual interests to be challenged. The public interest must always reign.

A properly independent statutory body with duties and powers is needed to protect the public and whistleblowers, not private bodies partly paid for by the public that will not – or feel unable – to fully challenge power.

An independent, statutory body with proper reporting duties, duties of transparency, duties under FOI, duties of Equality, duties to account for how it gets its money and uses it, and duties to answer to parliament.

 

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