By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 10 F.ebruary 2017
Precisely two years ago Robert Francis let patients and whistleblowers down with his very flawed report of the Freedom to Speak Up Review on NHS whistleblowing.
His report was helpful to politicians and senior NHS officials in many ways.
Shockingly, he was totally silent about the nature and gravity of the many concerns that had been buried by the NHS.
It is true he had no remit to make determinations about these disclosures, but there was no reason why he could not describe what whistleblowers had reported.
Instead, he did exactly what the rest of the system does to whistleblowers, sidelining their concerns and focussing on the employment aspects.
Francis not only ignored the disclosures of the whistleblowers who submitted evidence to his review, he helped ensure that they would not see the light of day.
He blocked off any inquiry into ‘historic cases’, and implausibly claimed that it was all too long ago for reliable examination (even though some were recent cases) . 1 Hillsborough and other inquiries into historic matters suggest that Francis was wrong.
Francis back pedalled on effective sanctions and deterrence of whistleblower suppression. 2
He left control of cases in employers’ hands, and staff at the mercy of further abuses. 3
In his report of the Mid Staffs public inquiry, Francis previously criticised the failure of the self assessment model, that formed the basis of past regulation:
“9.359 The assessment process also suffered a number of defects. Principal among them was the reliance on self-assessment and declaration as the basis of regulation. Of necessity, only a small proportion of such assessments could be checked or audited directly by a national regulator. The system relied on the ability and honesty of the regulated organisations to undertake their assessments accurately while observing the spirit of the standards, as well as the letter. Of course if such virtues could genuinely and universally be relied upon there would have been no need for regulation at all.” 4
But he argued the opposite when it came to whistleblowers:
“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.”
By arguing thus, Francis left whistleblowers without appeal and at risk.
Francis avoided much needed substantive law reform. 5 He suggested that culture change and law were unrelated, when the truth is that good law changes culture. He argued that culture change would be quicker than changing law, yet in a recent interview with the BBC he excused the lack of progress on whistleblowing by arguing that culture change takes a long time.
“Progress in changing culture is always slower than one would like. It’s not like turning a light on or a light off” 6
Francis proposed a totally unevidenced model of a National Guardian without powers, complemented by a network of local Guardians employed by the bodies they were supposed to hold account. 7 8 9
He offended whistleblowers with remarks that amounted to victim blaming – for example, suggesting that whistleblowers brought reprisal upon themselves for lack of tact. 10 He emphasised this with a recommendation that staff should be trained to be tactful when raising concerns. 11
He also wrote about damaged, “mistrustful” and “fixated” whistleblowers. 12
Francis appeared even to hint in the direction of dismissal under SOSR 13, break down of relationships. He suggested that “fixated” whistleblowers might require “strong encouragement to move on”. 12
At the same time as casting blame on whistleblowers, Francis made excuses for managers’ serious misconduct in victimising whistleblowers. 14
In contrast, he explicitly suggested that whistleblowers should be punished if they did not raise concerns nicely. 15
Although the government hyped the Freedom to Speak Up Review as ‘independent’, Francis openly stated during the Review that he wouldn’t make any recommendations that wouldn’t be accepted. I heard him say that.
Effectively, it made the Review a very expensive pantomime.
Now that things are going belly up in an under-funded NHS, Francis has tried to wash his hands publicly of failed policies.
He has given an interview to the Health Service Journal criticising the under-funding of the NHS and various continuing failures of governance: breaches of the duty of candour, unsafe staffing, the persisting regulatory gap on investigating individual cases, senior officials’ obsession with good new stories, senior management that is divorced from frontline realities, lack of means to hold individual managers to account, the fact that HCAs remain unregistered and…..wait for it….persisting problems with staff feeling unable to speak up. 16 17
But he conceded very little policy ground in the interview. I read it as just more apparent promises full of lawyerly loopholes. Indeed, there is nothing new of substance.
On whistleblowing, Francis could not resist a side swipe at whistleblowers who have “exiled themselves”.
Personally, I don’t know any whistleblowers who have willingly walked into the wilderness and happily embraced loss of career and livelihood.
Although Francis is now publicly handwringing, in private, he still seems defiant about what he did to whistleblowers.
I recently invited Francis to discuss the effectiveness of his recommendations on whistleblowing.
He declined to talk to me, and suggested that it was all now a matter for the National Guardian, even though he retains influence over the National Guardian’s office as chair of its Accountability committee. In the process of refusing to discuss the lack of progress, he dismissed additional concerns about the CQC that were raised by a recent major report, by the Centre for Welfare Reform. He characterised criticism of the CQC as picking holes.
The correspondence with Francis can be found here:
Click to access correspondence-with-robert-francis-january.pdf
It’s not as if Francis doesn’t know about CQC’s failures. Whistleblowers continue to write to him about their unsuccessful attempts to get help from bodies like the CQC. I have also been regularly sending him detailed evidence of CQC’s failures.
Yet in his interview with the Health Service Journal, Francis still clung onto the assertion that the CQC adds value and “backbone”:
“Sir Robert, who is a non-executive director at the Care Quality Commission, added that the CQC “provides some backbone where there wasn’t before”, which may lead to the system being more aware of chief executives saying they cannot manage.”
I don’t know what Francis is seeking to do at present. But I don’t see that he is any more ready to listen to whistleblowers than he was two years ago.
The Department of Health beatified him for his services, and made him into the saintly brand he is today, to sell reassurance to the public.
But the Department left him to answer alone to the BBC for the failures of the Freedom To Speak Up Review, which was hardly an endorsement.
Until and unless Francis retracts his ineffective recommendations and puts right his omissions on NHS whistleblowing governance, I won’t be helping to polish the halo.
But far from acknowledging that he failed whistleblowers, Francis recently tried to claim to the BBC that there had been progress. 6
“….I do think progress has been made. Firstly there’s been a widespread recognition that things should change. I believe that the principles that I set out have been widely accepted. So I think there’s progress being made. But have we got to the end of the road? No, of course we haven’t…..I would like to think that the alertness for warning signs of serious systemic failure are more easily recognised now than they used to be. So I would like to think that sort of failure [another Mid Staffs arising from concerns being ignored] is less likely but I couldn’t possibly rule it out”
It is actions that count, and so far I see no real action by Francis.
In his interview with the Health Service Journal, Francis now repeats his criticism of senior officials for not listening to the NHS frontline. Perhaps he should finally listen properly to whistleblowers. This is what a current NHS whistleblower has to say:
“I am currently suffering severe detriment after raising concerns. My family is suffering. I was not protected by the local Guardian in my trust. I have sought in vain for help from the National Guardian’s office, but feel as if I am being treated as a nuisance. I feel very worried that in reality, no help will come. Robert Francis may think that things have improved, but I simply cannot agree with him. He needs to listen to what whistleblowers are telling him, if he is to live up to his own standards about senior officials being aware of what’s happening at the frontline”
RELATED ITEMS
2. https://minhalexander.com/2016/10/12/silent-knight/
3. Private Eye 2013, Return to the killing fields
Click to access Private-Eye-mid-staffs-final.pdf
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From Return to the Killing Fields. Private Eye 2013 “Knighthood for a whitewash? One wonders what version of his report Robert Francis was reading at the press conference on 6 February. He looked like a man held hostage. The interminable delay in publication to allow for rewrites had reportedly been because those he was minded to criticise had launched vigorous legal defences. In the end he opted for a ridiculous “no scapegoats, blame the system” approach. This was endlessly debated after the Bristol Inquiry report in 2001, when a culture of “fair blame” was proposed. Ill thought-out, untested, rushed and brutally-enforced reforms undoubtedly contribute to NHS disasters, but individuals also have to be held accountable for their actions. Patients and staff trust a system that is just. But the judge delivered no justice.”
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REFERENCES
1 Page 196 of the Freedom to Speak Up Review report by Robert Francis, 11 February 2015
“10.7 Finally I recognise that some of those who have contributed so constructively to the Review will feel that their own personal issues have not been addressed. This was perhaps inevitable given my remit, but I have to observe that in some of their cases the contention has endured over such a long time, and the issues have become so complex, that the most rigorous inquiry devoted to each such case would not have been able to resolve matters for those involved. For this reason I doubt that any form of public inquiry of the sort demanded by some would do more than raise expectations only for them to be dashed. I hope, however, that all who have contributed to this Review by taking the difficult step of sharing with me their sometimes harrowing experiences will receive some consolation from the knowledge that they have informed the lessons identified in the report and made a significant contribution to ensuring that others will avoid suffering the same consequences in future.”
2 Sir Robert’s Flip Flops. Minh Alexander 26 September 2016
https://minhalexander.com/2016/09/26/sir-roberts-flip-flops/
3 Page 19 of the Freedom to Speak Up Review report by Robert Francis, 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 Volume 2 Report of the Mid Staffs Public Inquiry
“9.359 The assessment process also suffered a number of defects. Principal among them was the reliance on self-assessment and declaration as the basis of regulation. Of necessity, only a small proportion of such assessments could be checked or audited directly by a national regulator. The system relied on the ability and honesty of the regulated organisations to undertake their assessments accurately while observing the spirit of the standards, as well as the letter. Of course if such virtues could genuinely and universally be relied upon there would have been no need for regulation at all. Safeguards are needed because experience shows that not all organisations are competently or honestly led and not all deliver a proper standard of service. The more centrally controlled a public service is, the more those safeguards can arguably be provided by a publicly accountable performance management system. The more autonomy the front-line providers are allowed from such a system, the greater the need for a regulator to detect non-compliance with standards and to take appropriate enforcement action.”
Click to access Volume%202.pdf
5 Page 192 of the Freedom to Speak Up Review report by Robert Francis, 11 February 2015
“9.17 Although the existing legislation is weak, I have not recommended a wholesale review of the 1996 Act for two reasons. First, I do not think legislative change can be implemented quickly enough to make a difference to those working in the NHS today. What is needed is a change in the culture and mindset of the NHS so that concerns are welcomed and handled correctly. If this can be achieved, fewer staff will need recourse to the law. Second, this Review is concerned only with the position of disclosures made within one part of the public sector, the NHS. The Act covers all forms of employment whether in the public or private sectors. There may well be different considerations in other fields.”
6 BBC File on Four broadcast: NHS whistleblowing, 7 February 2016
http://www.bbc.co.uk/programmes/b08crzrc
7 No one believes Jeremy Hunt on patient safety or whistleblowers, not even his own appointee, 11 March 2016
8 Critique of Francis’ model of trust appointed Guardians, 4 June 2015
9 Newspeak at the National Guardian’s Office, Minh Alexander 8 February 2016
https://minhalexander.com/2016/09/24/critique-of-francis-model-of-trust-appointed-guardians/
10 Page 153 of the Freedom to Speak Up Review report by Robert Francis, 11 February 2015
“7.3.7 There are undoubtedly some individuals who will raise concerns in a less than tactful way or who lack self-awareness and can be difficult or even disruptive work colleagues.”
11 Page 142 of the Freedom to Speak Up Review report by Robert Francis, 11 February 2015
“[Staff should have training on] how to raise concerns with tact to avoid causing offence or provoking defensive behaviour”
12 Page 75 of the Freedom to Speak Up Review report by Robert Francis, 11 February 2015
“3.5.34 There can come a point in some cases where the individual becomes ‘fixated’ on what has happened to them and may need personal support to move on emotionally. In such a situation there may need to be stronger action to encourage them to move on when all concerns have been investigated and exhausted to prevent both psychological damage to the individual and demoralisation of the wider team.”
13 What are ‘Some Other Substantial Reason’ dismissals
http://www.personneltoday.com/hr/what-are-some-other-substantial-reason-dismissals-sosr/
14 Page 162 of the Freedom to Speak Up Review report by Robert Francis, 11 February 2015
“7.5.5 A number of the contributors suggested that if people were seen to be held to account this would send a powerful and positive message to other staff.”
7.5.6 However, there is another side to this which must be considered. Managers are just as vulnerable as other staff to the effects of the culture in which they work, and the pressures which are imposed on them. As stressed by some employers and their representatives a ‘just’ culture is equally as necessary for managers and leaders as it is for staff raising concerns. The consequence of an uneven approach could be a worsening blame culture for staff and a loss of talented managers from the NHS.”
15 Page 18 of the Freedom to Speak Up Review report by Robert Francis, 11 February 2015
“There should be personal accountability for…acting with disrespect or other unreasonable behaviour when raising or responding to concerns”
16 Francis outlines unfinished business four years after inquiry. Shaun Lintern Health Service Journal, 9 February 2017
“Whistleblowing
“I do fear that there is still a culture which does not welcome concerns being raised by staff. I think you see that through things like the staff survey, staff do not feel they are listened to.
“The reason I wanted to normalise the raising of concerns was to stop this becoming about a diaspora of people who either have been exiled or exiled themselves from the system. We should concentrate on making it easy for the vast majority – that is my priority. But we mustn’t forget injustices. We are only going to get this right if people’s everyday concerns can be freely raised.
17 Francis: Top Down pressure on NHS chiefs ‘depressingly familiar’. Shaun Lintern 9 February 2017
“Sir Robert said he was still worried about staff feeling they were not being listened to, “and I include in that the ever increasing number of chief executives who say they can’t manage and the pressures coming down from the top sound anecdotally depressingly familiar.”
“He said there was still an emphasis on “good news stories”, which grew “the higher up the national tree you go” – echoing concerns he raised around Mid Staffs that national leaders only wanted to tell positive stories about the service and were ignoring concerns when they were raised.”
Alexander's Excavations 
I have just scanned this article – thank you, Dr A – but will have to have some tea and put a little distance between reading and replying as am a tad upset. Another failure of a bureaucrat and not even an heroic one.
Shame on them all.
Kindest,
Zara.
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Hang you head Sir Robert Francis!
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Sir Robert Francis – President of the Patients’ Association.
I was contemplating the blanket weed in my pond. I first noticed it when there were just a few, tiny plants which were tolerable but they soon multiplied up into a problem. It has to be kept down regularly otherwise, it completely covers the pond’s surface preventing light getting to the creatures and plants that need light to survive.
Thus, my mind turned to our bureaucracies. They infiltrate every nook and cranny too often providing a blanket covering that parasitizes and then annihilates the life that they are charged with serving. And bureaucracies are clubbable if not entangling. Once a member, very difficult to escape from, even if one wanted to. The bureaucracy is home, security, status, familiarity, colleagues, and support. The victims are but fleeting visitors to be ignored if they can’t be used.
Poor seekers-of-help of the Patients’ Association
Please accept my kind regards,
Zara.
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Thank you Zara. It is sad that there are so many obstacles to decency and good governance. I think you are quite right about club culture. It is used often as a means of control.
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