By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 8 February 2017
Governments do not like giving away power. They do not willingly support or protect whistleblowers, who challenge established power structures when they speak up. Whistleblowers are less concerned with fitting in, and more about the public interest. This makes them politically untidy.
Not many politicians genuinely support whistleblowers. A brave few do. A larger number pay lip service, sometimes whilst being complicit with reprisal and suppression behind closed doors.
Classically, governments buy time on whistleblowing by re-inventing the wheel ineffectively. Every few years there is a new initiative that Whitehall says must be given time to bed in, whilst knowing full well that it won’t work, because it is designed not to work.
The latest white elephant is the National Freedom to Speak Up Guardian’s office for whistleblowing in the NHS. 1
This much criticised contrivance, courtesy of the Department of Health, Robert Francis and the Care Quality Commission, will do none of the things that will help whistleblowers and patients. It has no powers, won’t investigate, make binding determinations about cases or provide appeal against unfair local decisions by employers. 2
In fact, everything of importance has been left in the control of employers – the very bodies that Francis admitted were incompetent or corrupt, or both. The excuse for this being that it is undesirable to prevent employers from taking responsibility for whistleblowing governance. 3
Instead, the National Guardian will only “review” – whatever that means – and make suggestions. 4
Francis did not explain what he meant by “review” when he put forward this proposal. It would have been difficult to do so without effectively admitting that the idea was a non starter.
When the National Guardian will review cases is anyone’s guess. The office has been blighted by a resignation and delays, and has still not yet accepted any cases. 5
From two recent meetings, by telephone on 23 January and in person on 2 February, with the latest National Guardian Dr Henrietta Hughes (HH), some issues emerge:
- HH, who took up post at the start of October 2016, said she received no handover and could not account for why work scheduled by her predecessor Eileen Sills had not been carried out
This is at odds to CQC’s previous rush to claim that the disruption caused by Eileen Sills’ departure last March was under control, with CQC set up staff staying on longer and Robert Francis’ steady hand on the tiller. 8 But we know about the CQC’s relationship with the truth, so no biggie.
- HH has a budget of £1m, with equal contributions from CQC, NHS England and NHS Improvement. Her team comprises two national engagement managers, a comms manager, a strategy manager, a case review manager and a senior administrator. She may recruit more staff but that is not certain yet.
(Whisteblowers have since identified HH’s case review manager as a former CQC lead inspector).
- HH will link with an Accountability and Liaison Committee, chaired by Francis. The other two committee members are Helen Buckingham NHS Improvement Director of Corporate Affairs 9 and Moira Gibb NHS England NED 10 . The Committee has met once and meets again in March. The memorandum of understanding which governs the arrangement has been circulated but not yet signed off by the three funding bodies.
- HH will set up a Stakeholder Advisory Group that she will chair. There are no details yet.
- HH has little lined up in terms of outcome measures. There is heavy reliance on the national staff survey.
- Otherwise, HH proposed to rely on data gathered by local Guardians, but without checking its quality and reliability, or in some matters, even being aware what questions the local Guardians are asking.
- HH said she is commissioning descriptive research on the way in which trusts have established their local Guardians and their different approaches. There is nothing definite planned about evaluating effectiveness.
- HH resisted any direct acknowledgement of gross CQC failure on whistleblowing. She meets frequently with David Behan CQC Chief Executive to report on progress. But she said that she “feels independent”.
- HH is not seeking statutory independence and powers, and will not follow the example of Conradi, Chief Inspector of HSIB who is in the process of doing so.12
- Neither is HH supporting substantive reform of whistleblowing law, even though everyone who knows anything about whistleblowing knows this is vital.
- HH said that the CQC is “looking again” at how it approaches trusts’ whistleblowing governance under its Well Led domain.
- HH would not agree that CQC should inspect compromise agreements, although Francis has already said they should and CQC have accepted, in theory, that this is part of their responsibilities.
- HH is unlikely to call a spade a spade or to call out wrongdoers. She sticks to Francis’ lately adopted position that punishing wrongdoers will increase cover ups. She implies that frank criticism perpetuates “negative culture”, and prefers to speak of helping people to improve.
It is hard to conceive how this is an appropriate approach to serious managerial misconduct, and sometimes criminal behaviours, which are found in the worst whistleblower cases.
- HH refuses to say yet how her office will review cases. She says it depends on the outcome of current consultation. But she says it will not involve interviewing witnesses or using any established investigative process, and will not be comprehensive.
- HH was reluctant to admit any failure by local Guardians. She initially said that no problems had been reported. She then acknowledged receiving a third party report of concerns about a local Guardian. In fact, there are other concerns, which have been reported to her personally.
- Nevertheless, Hughes acknowledges that there is no evidence base for the local Guardians.
- HH does not know how much it is costing the NHS to employ these un-evidenced local Guardians.
- Hughes maintained that the local Guardians, who are not themselves trained for their roles, will help CQC inspectors to become more competent about whistleblowing.
- HH admitted that super-gags (clauses in compromise agreements which prevent signatories from disclosing even their existence) are “insidious” but she stopped short of agreeing that they should be banned.
- HH said there will be work on re-drafting a best practice template on NHS compromise agreements, and that NHS Improvement is interested in this.
- HH volunteered that it might be possible for existing compromise agreements to be changed by “mutual consent”. She was less committal about the idea of a government waiver.
- HH agreed to publish the newsletter that her office has been circulating to local Guardians, after initially demurring that there was insufficient space on her corner of the CQC website.
- HH agreed in principle to publish material that trusts have been sending in for sharing, once she gets her own website, possibly some time this year.
Two years on from the publication of the Freedom To Speak Up Review, it is dispiriting that we are so little further forward. Whistleblowers knew that Robert Francis’ proposals were never going to work. But the execution of even his flawed recommendations is poor and slow. We do not have a strong and expert office. We have inexpert local Guardians led by someone with a managerial focus, who avoids criticising her chief paymaster, CQC. Henrietta Hughes is also on record expressing an unrealistic belief that change could happen if only staff were more pleasant to each other. 13
In short, all we have gained is pointless and wasteful bureaucracy.
Current whistleblowers in dire straits are presently being turned away, officiously, whilst the National Guardian’s office takes its time choosing which boxes it will tick. There has been a lack of warmth and humanity so far in the office’s approach, and worrying attempts to claim a remit that is even narrower than Francis’ very limited prescription.
As things stand, abusive NHS bosses need not lose sleep. Ministers can assume it is business as usual.
The Department of Health was not available for interview when asked by the BBC File on Four team to comment on continuing failures of NHS whistleblowing governance. Perhaps this is the strongest admission of all that Francis’ review has failed.
But it may be useful to remind the Secretary of State about this little sting in Francis’ Freedom to Speak Up report:
“Recommendation 2 The Secretary of State for Health should review at least annually the progress made in the implementation of these Principles and Actions and the performance of the NHS in handling concerns and the treatment of those who raise them, and to report to Parliament”
We’re all ears, Minister.
These are the agreed records of the two recent meetings with Henrietta Hughes, with some related correspondence:
- BBC File on Four broadcast, 7 February 2017, on lack of progress on NHS whistleblowing:
Transcript of the broadcast:
4. See Edna’s Law for transferring the burden of litigation from whistleblowers to the State, ensuring accountability by individuals as opposed to organisations and ensuring that the focus remains on whistleblowers’ disclosures:
1 Information published by the CQC about the National Freedom to Speak Up Guardian
2 CQC Position Specification for the National Freedom To Speak Up Guardian
3 Report by Robert Francis of the Freedom to Speak Up Review, 11 February 2015
“74 I considered whether there is a case for establishing an independent body with powers to review staff concerns. I concluded that it would be wrong to take responsibility for dealing with concerns away from trusts, and would be more likely to lead to delays and additional layers of bureaucracy.”
4 Report by Robert Francis of the Freedom to Speak Up Review, 11 February 2015
“7.6.12 The INO should be authorised by these bodies to use his/her discretion to:
- review the handling of concerns raised by NHS workers where there is cause for concern in order to identify failures to follow good practice, in particular failing to address dangers to patient safety and to the integrity of the NHS, or causing injustice to staff”
5 NHS whistleblowing tsar hasn’t investigated a SINGLE case and won’t review any patient neglect claims until 2017, Andrew Gregory, Mirror 13 December 2016
6 New Employment Scheme (but not as you know it), Minh Alexander 19 December 2016
7 Good News at the National Guardian’s office? Richard von Abendorff, 23 December 2016
8 CQC statement 4 March 2016 on Eileen Sills’ resignation:
“David Behan, Chief Executive of CQC, said: “I was disappointed to receive Dame Eileen’s resignation but I respect her honesty in making this difficult decision. A new appointment process will begin immediately. The work of setting up the office of the National Guardian will continue as planned, with a focus on supporting and working with freedom to speak up guardians in NHS trusts and NHS foundation trusts.”
Sir Robert Francis QC said: “The office of the National Guardian is a vital element in the drive to change the culture of the NHS to one which welcomes and supports staff who raise concerns. Separately from my role as a CQC Board member I am happy to offer non-executive support for the Office as it continues its work until a Guardian is appointed.”
9 NHS Improvement information about Helen Buckingham NHS Improvement Director of Corporate Affairs
10 NHS England information about Moira Gibb NHS England Non Executive Director
12 NHS has nothing to fear from new investigation body, says Chief. Health Service Journal 5 January 2017
“The head of the NHS’s new patient safety watchdog has said it needs statutory independence and extra powers to demand that NHS organisations respond to its warnings.”
13 Happiness is the best medicine, grumpy doctors and nurses told Chris Smyth, Times, 10 October 2016
“Dismissing concerns that her job had few formal powers, she said that change could happen “just like that” if staff always acted as they would on a good day. “If you bring a positive attitude to work with you then you start seeing all those benefits of working well as a team,”