Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 17 January 2017
The saga of Robert Francis’ much derided National Guardian for NHS whistleblowing rumbles on.
After rowing back on an important consultation that initially excluded most whistleblowers, the National Guardian has now provided a segregated consultation process with most of the whistleblowers physically corralled in a different session.
I have made a written submission and raised questions as copied below, which I will be sending to the Great and the Good who are sheltering in the safe harbour of the other, largely whistleblower-free session.
Additional background information about the National Guardian’ office can be found here:
CORRESPONDENCE AND SUBMISSION TO NATIONAL FREEDOM TO SPEAK UP GUARDIAN:
Dr Henrietta Hughes
National Freedom to Speak Up Review
Care Quality Commission
17 January 2017
Dear Dr Hughes,
Establishment of a ‘stakeholder advisory group’ (SAG)
I write to apologise that I may not be able to attend your consultation event on 20th January about establishment of a ‘stakeholder advisory group’. My husband was admitted to hospital as an emergency and is still not well enough for me to travel to London. Things may not have improved sufficiently by the 20th. Therefore, I write instead to make an initial written submission to the consultation – copied below. Depending on further information received and whether you give access by agreeing to stream the whole event, I may make an additional submission.
Dr Minh Alexander
cc Sir Robert Francis
Katherine Murphy CEO Patients Association
In February 2015 Sir Robert Francis proposed that the National Guardian should ‘review’ whistleblower cases against good practice principles and make recommendations, but should not investigate the cases, make determinations or provide an appeal against employers’ actions. 1 It is exceedingly difficult to understand what this means or to envisage how it will work. Nevertheless, it has been accepted by the Department of Health and the CQC, and you confirmed these arrangements in an interview with the Health Service Journal.2
The Health Service Journal also reported that you said a ‘stakeholder advisory group’ would be established, which would include whistleblowers, and that this group would decide the cases that you would ‘review’.2a
A communication from your office subsequently indicated that your current consultation is intended to “identify the key roles and responsibilities of the stakeholder advisory group and potential membership”. 3
The materials you have issued for the event on 20 January now say that you propose:
“Co-production group to provide advice and guidance on establishing selection criteria [of cases to be reviewed]”
“NGO selects cases to review on the basis of suggested criteria” 4
Definition of ‘review’
I think this is a pivotal matter. In order for your consultation to be meaningful, it should be clear how you propose to ‘review’ cases, and how this will differ from investigation.
What will be your ‘review’ methodology?
What sources of evidence will you draw upon when ‘reviewing’ cases?
How will you deal with disputed facts?
For example, if a whistleblower provides evidence of poor practice, but an employer denies this, how will you deal with this and what finding or recommendation will you make, if any?
If you do not investigate and test evidence, how will you be able to make valid, effective recommendations that address root causes?
As per my email to you of 15th January, I would be grateful to know what substance there is to a written report by David Drew that a way “around” your lack of investigatory powers has been found. 5 If correct, there should be transparency about this so that all whistleblowers who need your help can potentially benefit.
It would also be useful if there is clarity on whether your office is now in fact taking referrals, based on David Drew’s report that he and you are liaising about a current case.
There are other whistleblowers with current cases who would like to seek your help.
Criteria for cases to be reviewed by the National Guardian
I think the National Guardian should review:
- All whistleblower cases referred by local Guardians because they have not been able to resolve them locally with employers.
- All cases of self referrals by whistleblowers who have been unable to resolve issues with their local Guardian.
If the National Guardian’s office does not have the resources to do this, it should seek more resources.
Establishment of the Stakeholder Advisory Group (SAG)
- At least half of the members of the SAG should be whistleblowers who have been clearly established as having made public interest disclosures in good faith, either by Employment Tribunal, independent investigation or some other equivalent.
- The Chair of SAG should be a whistleblower.
- Members of SAG who are not whistleblowers should nevertheless have clear credentials and expertise in whistleblowing, and should be independent of the NHS. Representatives of bodies which receive funding or have contracts with the DH or other NHS organisations should not sit on SAG.
- SAG should have good access to data, sufficient for it to function effectively and not just be a rubber stamp for the National Guardian’s office. The datasets to which SAG has access should be clearly defined and agreed in advance with all stakeholders.
- For example, SAG should have access to all analysed data held by the National Guardian on the numbers of whistleblowing disclosures, nature of whistleblowing disclosures, action taken in response to disclosures and originating organisations. The National Guardian’s office should ensure that such data is actively tracked and regularly updated, and that SAG has access to information that is up to date and relevant.
- SAG should have access to analysed data on intelligence supplied to the National Guardian by local Guardians about the degree to which local employers are following good practice, activity data by local Guardians, and the numbers and nature of referrals that local Guardians are making to the National Guardian because of failures by local employers. The National Guardian should also collate and share information with SAG about whether local Guardians themselves are being well treated.
- SAG should have access to financial data about the National Guardian’s office, how resource is allocated within the National Guardian’s budget and any details of unmet need arising from budget constraints.
- SAG should have access to ‘user’ satisfaction data, about how all whistleblowers who approach the National Guardian’s office experience their contact with the office. This information should be produced by the National Guardian at least annually and shared with SAG.
- SAG should have access to audit data on whether the National Guardian is meeting performance standards and adhering to its operational policies.
- SAG should have access to Equality and Diversity performance data relating to the National Guardian’s office. This is especially important given the established, disproportionate detriment experienced by BME whistleblowers. Replication of bias and discrimination is a risk given that Robert Francis has advised that the office should have ‘wide discretion’, which could have the unintended consequence of inconsistency and arbitrariness:
“The office should be more nimble and less bound by legalistic process than a statutory body, with wide discretion to decide whether it is appropriate to get involved in a particular case.”1
- SAG should be able to act upon appeals from individual whistleblowers and to challenge the National Guardian’s decisions with respect to individual cases.
- SAG should be able to review information on the rate and pattern of acceptance cases for review by the National Guardian, and to give an opinion on whether the National Guardian is making valid and fair decisions.
- SAG should meet frequently enough to be effective. In the first year, SAG should meet at least every two months.
- There should be an operational protocol on how SAG functions and interacts with the National Guardian’s office, and this should be devised with whistleblower involvement and it should be published.
- All SAG meeting records and papers should be published, save for any identifying, confidential information about individual cases.
- SAG should report periodically on its work, no less than annually.
- As part of its regular reporting, SAG should include feedback from SAG members about how well they believe the model is working and what improvements may be needed.
1 Report of the Freedom to Speak Up Review by Robert Francis, February 2015
“I want to emphasise that I am not proposing an office to take over the investigation of concerns.”
“It is not my intention that the INO should have binding powers. I do not see this role as strictly comparable to that of an Ombudsman.”
“It [National Guardian’s office] is not, however, a means of appeal for the results of an investigation that an individual disagrees with.”
2 Whistleblower guardian will not be an ‘investigation body’. Will Hazel Health Service Journal, 12 October 2016
2a “She said the cases the office would look at would be decided by a “stakeholder advisory group”, which would include people with experience of whistleblowing.”
3 New Employment Scheme (but not as you know it). Minh Alexander, 19 December 2016
4 Paper on case reviews, issued to whistleblowers by National Guardian’s office 13 January 2017
5 Email 15 January 2017 to Henrietta Hughes National Freedom to Speak Up Guardian
Dr Henrietta Hughes
National Freedom to Speak Up Guardian
Care Quality Commission
15 January 2017
Dear Dr Hughes,
Possible investigation of cases by the National Guardian’s office
Yesterday I received written indication from David Drew, whom you have invited to the morning session of your consultation event on 20 January, that you may be effectively investigating whistleblower cases now. He reported:
“We have got around the inability for NG [National Guardian] to investigate and are pleased with the NG response in line with Principle 15 so far.” 
If this is correct, is it possible to share how your lack of investigatory powers has been circumvented, so that other whistleblowers may also potentially benefit from this?
Dr Minh Alexander
cc Sir Robert Francis
 Principle 15 of Freedom to Speak Up Review, 11 February 2015
“Principle 15 – External review
There should be an Independent National Officer resourced jointly by national systems regulators and oversight bodies and authorised by them to carry out the functions described in this report, namely:
- review the handling of concerns raised by NHS workers, and/or the treatment of the person or people who spoke up where there is cause for believing that this has not been in accordance with good practice
- advise NHS organisations to take appropriate action where they have failed to follow good practice, or advise the relevant systems regulator to make a direction to that effect
- act as a support for Freedom to Speak Up Guardians
- provide national leadership on issues relating to raising concerns by NHS workers
- offer guidance on good practice about handling concerns
- publish reports on the activities of this office.”