MINH ALEXANDER First published 11 March 2016
A rash of rebukes, resignations and reports pour cold water on Jeremy Hunt’s continued claim to be the whistleblowers’ friend.
This week, Lord Darzi’s long-awaited report into patient safety in England’s health service, reported that as few as 5% of patient safety incidents are reported, often because of staff fearfulness.
And today an influential committee of MPs reproaches the government for its continuing failure to take whistleblowing seriously. A new report by the Public Accounts Committee says MPs are “disappointed by the lack of urgency” the government has shown around whistleblowing, and also “concerned” at the narrow scope.
All this is a further embarrassment to Jeremy Hunt who this week hung out more patient safety tinsel, announcing a raft of initiatives to “end the cover-up culture” and ensure an NHS that has “safe space” for staff and “learns from mistakes”. But behind the soundbites, where’s the detail? I phoned the Department of Health, but they were unable (or unwilling) to put much flesh on the bones.
The rebranded Healthcare Safety Investigation Branch (HSIB) will carry out “no blame” investigations, we’re told – and much fuss is made of legal “safe space” for staff within these. Some have questioned how this will be achieved without primary legislation. The Department of Health insists that it can be achieved, but has no draft directions to share. HSIB will only undertake 30 investigations a year when there are some 10,000 serious incidents, including over 300 Never Events.
The DH admits that there will be no “safe space” provision for thousands of NHS investigations that will take place outside of HSIB’s domain. Neither will HSIB report to parliament. Instead it will be a branch of NHS Improvement, possibly perpetuating conflicts of interest in NHS incident handling thatparliament criticised a year ago.
There’s a catchy new “Learning from Mistakes League”. It places the NHS Improvement CEO’s old trust at the top. However this trust (Northumbria) super-gagged 45 staff, a practice criticised by Robert Francis as “draconian” and unhelpful.
But there’s no sign of Hunt learning from his own serious mistakes in relation to how he protects – or doesn’t protect – whistleblowers.
In the Commons this week, Hunt agreed merely to “reflect” on a further call, from a Health Committee member, for review of past whistleblower cases.
And last week – in a highly embarrassing move for Hunt – Dame Eileen Sills resigned as the first “National Freedom to Speak Up” Guardian, before she’d even started the job. The creation of her post was a centrepiece of Hunt’s promises on protecting both patients and whistleblowers, post-mid-Staffs.
Her resignation came ten days after she said defiantly “I won’t be dropping any balls”.
She was responding to criticism that the Guardian post was only two days a week, and established on top of her full time £174,000 commitment as Chief Nurse at Guy’s.
Eileen Sills was purportedly appointed to lead improvement in NHS whistleblowing governance at national level, and to support a network of local whistleblowing Guardians employed by NHS bodies.
But from the start, the majority of whistleblowers and campaigners predicted problems with the National Guardian’s office, pointing out that what is needed is a truly independent body that reports directly to parliament, which has powers to investigate and remedy poor whistleblowing governance, and is properly resourced.
Instead, we got a part-time office implemented by the government’s regulator, the Care Quality Commission (CQC). The CQC’s specification for the postfocused heavily on what the National Guardian would not do:
- no remit for hundreds of “historical” cases
- no investigation of the disclosures made by staff
- no assessment of the soundness of local investigations by employers
- no investigation of cases
- no provision of appeal against local decisions by employers
- no statutory powers
All of which – along with the part-time nature – rendered the office merely decorative. Even Eileen Sills herself expressed disquiet to me that “historical” cases were excluded from her remit.
CQC launched a “consultation” about the office after the job had already been advertised. In response to criticism of this pre-determination, CQC claimed that there was still flexibility. This did not seem evident to Eileen Sills, who wrote to me that there was no possibility of deviation from CQC’s advertised specification for her post.
In the wake of Eileen Sill’s abrupt departure, and associated disruption, questions arise about why the great and the good appointed an NHS insider whose own trust has been slow and reluctant to answer questions about past whistleblowing governance. Its response to an enquiry about use of compromise agreements and associated gagging clauses is overdue.
Eileen Sills recently oversaw completion of important national whistleblowing guidance but – to the concern of whistleblowers themselves – they had minimal involvement in the process. Sills chose not to appoint whistleblowers who were put forward by NHS arms length bodies for interim posts in her team. Instead, she made somewhat “corporate” appointments from the DH and other central bodies. Her office has been reluctant to disclose the total number of whistleblowers who were turned down.
The erstwhile National Guardian, whilst still in post, suggested I meet with her – though it was difficult to agree a clear agenda. After the meeting, her interim deputy (who appeared at our meeting without prior discussion) seemed reluctant to agree a record of the discussion, reminding me of surreal past experiences of NHS Human Resources. I was bemused when in our meeting Eileen Sills commented that she was being careful with her answers, because I would “tweet” whatever she said. So much for the National Guardian’s remit for improving transparency.
Nevertheless a record of the meeting was eventually broadly agreed. It notes that Eileen Sills did not yet know how many local Guardians were in place, that she thought it was “too early” to tell if the Public Interest Disclosure Act (in force since 1999) was a success, and that she did not want to say whether harmed whistleblowers should be released from gags for the purposes of defending themselves when applying to the planned NHS re-employment scheme, but agreed to “explore” this. She refused to comment on whether NHS bodies should be barred from gagging staff about whistleblower reprisal.
And it’s even unclear whether staff who make disclosures to the National Guardian can claim legal protection under the Public Interest Disclosure Act (meagre though this is). The interim deputy asserted the National Guardian isnot a Prescribed Person under the Act, to whom staff can make “protected disclosures”.
This is despite the fact that the office is located within CQC, which is a Prescribed Person. Eileen Sills agreed with her deputy. If they are right, staff would have weaker grounds to claim against employers for reprisal resulting from disclosures to the National Guardian. I have asked CQC to clarify this important point, and to issue guidance to NHS staff on their rights when disclosing to the National Guardian. It would be a further weakness of the office if staff who inform the National Guardian of concerns are in fact more exposed. Who would wish to embed such a fault into core governance?
In all, there is little evidence of learning from the mistakes highlighted by the National Guardian’s resignation before her post even formally started.
There is no announcement that Francis’ whistleblowing Guardian model will now be reviewed, nor that near unanimity amongst whistleblowers on the need for a truly independent body will be heeded. Neither is there any announced plan to involve whistleblowers in the appointment of another National Guardian. Instead, the CQC assures us that it is full steam ahead for more of the same.
Whistleblowers and patients need a serious venture, not window dressing and part-time figureheads.
Look out for plenty more dropped balls.
Correspondence with Eileen Sills’ Office: Minutes of meeting 23 February 2016
To Dame Eileen Sills Chief Nurse Guy’s and St. Thomas’ NHS Foundation Trust
24 February 2016
Re our meeting 23 February 2016
As indicated, I write with my summary of the factual content of our meeting, and would be glad if you could provide your comments about accuracy.
In brief, further to your invitation to meet and to suggest agenda items, and the prior agreement between us of some specific agenda items, we met for a little over an hour. David Bell your interim deputy was present when I arrived and remained with us for nearly all of the meeting. May I ask that if we have further meetings, that advance notice is given of any other individuals whom you invite to join us, and for this to be discussed with me.
At our meeting, you indicated that you could not discuss one of the agreed agenda items, an issue of ambiguously written NHS settlement agreements which may actually or in effect prevent whistleblowers from speaking out about experiences of whistleblower reprisal, and whether the NHS should clarify that concerns about whistleblower reprisal should be approached as a form of protected disclosure, which cannot be gagged. As I have put to you before, the current arrangements allow poor governance and related risks to patient safety to be hidden.
Regarding another agreed agenda item, the issue of lifting gags to assist whistleblowers who are applying to the re-employment scheme, you indicated that whilst it was not possible to give a substantive answer, you would explore this. We also discussed a range of other issues.
The broad flow and salient content of our discussion, based on notes which I made throughout the meeting are set out below.
I look forward to hearing from you.
Dr Minh Alexander
Key to the below:
ES Eileen Sills
MA Minh Alexander
DB David Bell
NG National Guardian
- ES gave information about developments:
i. ES started work on NG office 4 January 2016
ii. ES has appointed an interim team
iii. David Bell (DB) started last week, acting as ES’ interim deputy. Comes from Commissioning Support Unit South East, relevant experience from contributing to the set up of NHSI; HR background
iv. The other two interim appointments to the NG office:
a) Russell Parkinson from DH; is DH lead for global patient safety summit; will lead work on connecting with local guardian
b) Will Flowers, appointment not yet confirmed; if appointed will lead on communications. … will be proactive in our communications, tell everybody what the role of the office is, the benefits of the office
v. The set up team appointed by CQC finish in March
2. ES: Substantive team posts will be advertised in April, one of the functions of substantive appointees will be leading “casework”
3. MA: How does “casework” differs from “case management” (which both the Freedom to Speak Up Review & CQC say is not part of NG remit)?
4. ES: Not sure why you’re asking about terms.
4. ES: We will take referrals from individuals who feel they have been disadvantaged. No referrals will be accepted until post-October. Threshold to be agreed. Those individuals will be give a case to review. At the moment can’t say more. All of this subject to finalisation. I’m not going to be rail roaded into something and fall foul.
5. MA: I’d like to start with my key question to you – re approaching concerns about whistleblower reprisal as form of protected disclosure, not allowing them to be gagged etc…
6. ES: I’m on learning curve, can’t comment. Would be wrong of me to do so.
7. MA: Disappointed as it was agreed before the meeting that we would discuss this issue (ref email). Hope you can see why I might be disappointed – specifically agreed agenda item not discussed; also meeting with you agreed, but arrive to find David involved with no explanation.
8. ES: [Asked to meet you because]…you’re very active in the whistleblowing community. You have a lot to say. If I try to respond [to your email]…we’re trying to build confidence. I want to put the record straight on some of the stuff on twitter.
9. MA to DB: Have you seen the [pre-meeting} emails?
10. DB: Yes, [but in respect of the question about whether ES would express a view about whether concerns about WB reprisal constitute protected disclosures], NG office is not a prescribed body.
11. MA: A different issue.
12. ES: if NG office finds a whistleblower has not been fairly treated, will make that public. [At what point do we take referrals?] Do we take referrals when cases are concluded? [Or at an earlier point].
13. MA: Other specific issue from my email – gagged whistleblowers and how this relates to entry to the re-employment scheme – WBs need to be able to defend themselves, disclose experiences of poor HR governance. They may be or may feel gagged by non-disparagement clauses. Would you support gags being lifted to allow WBs the best chance of entry to re-employment scheme?
14. ES: I haven’t seen anything yet from Neil Churchill about the employment scheme. NHS England [in charge of that].
15. MA: Your role is also to oversee and possibly criticise how central NHS bodies, eg. NHS England, handle whistleblowing?
16. ES: I don’t want to criticise. We [trying to do this] constructively.
17. ES: Other people have said they want to be able to talk about their story [as part of well being and being able to re-integrate into work].
18. MA: That’s a separate issue. I am asking about lifting gags and whistleblowers being able to enter the re-employment scheme, not what happens after.
19. ES: What do you mean about gags, example?
20. MA Gags prevalent. Super-gags still used. Both Peter Wyman & Jim Mackeys have used super-gags. [45 and 22 respectively in 5 years]. Can send the data.
21. ES: I don’t want the data.
22. ES: Nothing suspicious in relation to me.
23. ES: [continuing on lifting gags for the purpose of the re-employment scheme] I can’t give you a view legally. I don’t see how, if someone has signed a legal agreement…
24. MA: Not asking for a legal view. Asking if you agree it should be done, assuming it can be done.
25. ES: I can explore that. [We should] give individuals every opportunity….[I’m being careful about what I say] …whatever I say to you will get tweeted.
26. MA: Neil Churchill has said to me he thinks it should be doable [lifting gags].
27. ES: Until I’ve had a conversation with Neil, I will reserve judgment.
28. MA: Struck by the fact that NG office will have “wide discretion” as to which cases it will pick up. How will you ensure this does not result in unfairness & that Equality requirements are met?
29. ES: Will need to be professional and open. …[criteria will be set & made public] Intend to have very robust governance framework. Involve Experts by Experience, establish Advisory Board, applications will be invited. Live by May.
30. MA: Can I return to the issue of whether NG office is a prescribed body under PIDA. If NG office is a subsection of CQC, and CQC is a prescribed body, why would NG office not also function as a prescribed body?
31. ES: NG office is not a subsection of CQC. NG is hosted by CQC. Some core functions shared with CQC, with SLAs for example on HR & procurement. But operationally independent.
32. MA: But CQC provides funding?
33. ES: Other ALBs provide funding too.
34. MA: David Behan is accountable officer?
35. ES: Some one’s got to be.
36. MA: David Behan is your line manager?
37. ES: He doesn’t really line manage me. I’m accountable to him [for how the NG office is established].
38. MA: If NG office is not a prescribed body, who do people whistleblow to if they are concerned about the NG office itself?
39. ES: Can raise with NG Advisory Board.
40. MA: That’s internal…what about beyond that?
41. ES: To be clarified.
42. MA: A question that others have asked is whether NG office accept a case if the whistleblower loses confidence in local Guardian. Will NG always pick up such cases
43. ES: Yes, but not necessarily investigate them.
44. MA: What will you do for people who are unhappy with their local Guardian?
45. ES: We haven’t finalised that either. But might include signposting to other organisations. Or I might liaise with trust Chief Executive or other organisations.
46. ES: Guidance on local Guardian posts goes to Chief Executives this Friday.
47. MA: Do you know how many local Guardians have been appointed?
48. ES: Don’t know how many local Guardians appointed so far. We want them in post by September.
49. MA: What if posts that have already been created don’t comply with your criteria?
50. ES: We’re going to ask them to review. We’re asking trusts about [existing] local Guardians.
51. MA: Can your guidance to Chief Executives about local guardian posts be shared?
52. ES: Publishing next Monday.
53. MA: Can the information you get back from trusts about current local Guardians be shared?
54. ES: Only asking trusts for names of Guardians.
55. MA: Not asking about grade & hours?
56. ES: Local guardians will be sent bespoke questionnaire.
57. MA: Can the questionnaire be shared?
58. ES: Not yet ready. Work on it starts in March when Russell starts. Publish in April. We’re not prescribing banding at all. We’re asking for demographics. Will be evaluating demographics.
59. MA: What do you mean by demographics?
60. ES: The post they’ve come from, banding, ethnicity etc.. The demographics linked to success (for example as indicated by staff survey) will be evaluated.
61.MA: Will questionnaire results be shared?
62. ES: Some of It will be personal.
63.MA: But at least some elements are appropriate to share, and can be shared if anonymised?
64.MA: What do you think of PIDA?
65. ES: Put in place to protect people who raise concerns, that’s got to be a good thing. It’s too early to make a judgment that it works [PIDA]. Don’t know how many successful cases there are – we don’t see them. They’ve whistleblown and it’s worked. Works in some teams. Can challenge each other.
66. MA: Do you think there should be more research on whistleblowing?
67. ES: Wide… what do you mean?
68. MA: For example, you just said we don’t know how many cases are positive. Has NG office got a research budget?
69. ES: No research budget.
70. MA: [Re ES’ comments about positive cases] Although you could say that contributors to Freedom To Speak Up were self-selected, it showed mostly negative experiences. 2014 staff survey showed about a quarter of staff not secure to raise concerns, so there is a problem. Are you aware only 3% of ET claims [under PIDA] succeed at hearing?
71. ES: At one end you’ve got protected disclosures and whistleblowing, then you’ve got a person on the ward informally raising a concern.
72. MA: What do you mean by whistleblowing
73. ES: I hope that’s not a trick question.
74. MA: Someone on the ward informally raising a concern is technically whistleblowing if it is a qualifying disclosure within PIDA [but acknowledged the practical challenge posed by range between simple raising of concern and situations that have dragged on and escalated]
75. ES: I would slightly disagree. It’s about changing culture…..
76. MA: Your CQC blog set out your plans.
77. ES: I haven’t done a blog.
78. MA: CQC press material attributed to you.
79. ES appeared unsure which reference was being cited. MA: [Reading from a copy of the press release] ….by one year, “I will have started to work towards developing a set of common standards for handling staff concerns and to showcase examples of good practice.” http://www.cqc.org.uk/content/dame-eileen-sills-sets-out-her-priorities-her-first-months-national-guardian
80. ES: Standards to be in place at one year:
i. Local Guardian standard for trusts (Acute, MH, Ambulance
ii. Ways of Working for NG
iii. Training standard for local guardians
iv. Workforce awareness standard on raising concerns
v. Show casing examples of good practice. Some teams are great at this.
81. MA: [Ref transparency] Can you chase your FOI department?
82. ES: That’s a conflict of interest. Not proper [to respond]. But I have [chased]…
83. MA: I think the conflict of interest is inherent in the dual role.
84. ES: Other people have said that. [Disagree] …I won’t be dropping any balls
85. ES, at least x2 during the meeting: You absolutely have to trust me.
86. MA x 2: I don’t have to trust you at all.
87. ES: I work as a clinician one day week [understand the concerns of staff].
88. MA: [What I’m about to say doesn’t relate to you personally]… very often those responsible for whistleblower reprisal are the most senior clinicians.
89. ES x 2 during the meeting: First time it’s ever been done [and associated comments that it needs a chance]
90. MA: Not the first time. USA model of OSC has powers but still hasn’t done a good job. History is that this sort of body goes stale. [DB noted point about USA model]. I am a sceptic about NG office.
91. ES: So long as can say have acted fairly , openly & independently….
92. MA: Design of NG office is itself unfair. You won’t be investigating whistleblowers’ concerns. Cannot handle cases effectively or judge proportionality without this. All reasonable people see that vindication is an integral issue, including parliament, which linked apology & redress to vindication.
93. ES: Will highlight any problems with the office in due course.
94. MA: Was glad to see you requested review at 6 months.
95. ES: Might be a different office in 2 years.
96. MA: But lives will be ending in that time. I’m in touch with whistleblowers who are suicidal.
97. ES: We’d expect people to contact us for advice.
98. MA: Your office won’t be able to do a jot for these people [ref remit]
99. ES: That’s one aspect I’m not happy with, historic cases not included.
100. MA: Good to know that.
101. ES: [Would you be interested]….in attending further events….
102. MA: Expert by Experience stuff?
103. ES: Yes
104. MA: Little confidence in the way the NG guardian office established but it’s what we have, in principle happy to work constructively on helping it work as best it can. So provisionally “yes”, but depends how things pan out.