By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 20 February 2017
The much derided National Guardian’s office for NHS whistleblowing is doing its best to dilute what little responsibility it was given by Robert Francis, the Department of Health and CQC.
It is hilariously trying to turn individual reviews of badly handled whistleblower cases into a blame-free zone, awash with shiny, permitted words like “improvement”, and not vulgar concepts such as serious managerial misconduct and cover up.
The National Guardian’s responsibilities to whistleblowers are less willingly embraced than support and help for the organisations that persecute them.
Loopholes abound in the National Guardian’s proposed protocols, and potentially allow whistleblower cases to be rejected for review with little explanation.
I have written to the CEOs of the three bodies which jointly fund the National Guardian’s office – a cool million – to set out the injustices and waste that will result if the National Guardian’s unfair proposed protocols are allowed.
The correspondence is provided below:
20 February 2017
To David Behan CEO CQC
Simon Stevens CEO NHS England
Jim Mackey CEO NHS Improvement
Dear Mr Behan, Mr Stevens and Mr Mackey,
Concerns about the National Freedom to Speak Up Guardian’s office
I write to raise a concern about the direction of the National Freedom to Speak Up Guardian’s office, which your three organisations jointly fund to the tune of £1m.
Sir Robert Francis’ central purpose in recommending the creation of the National Guardian’s office was to provide external review of individual whistleblower cases, where whistleblowers’ concerns appeared not to have been properly addressed or where whistleblowers appeared to have been mistreated. 1
Sir Robert made it clear that the purpose of case review by the National Guardian’s office was to, if appropriate, challenge others to ‘look again’ at individual whistleblower cases which had not been well handled:
“The INO [National Guardian] would be authorised by these bodies to review the handling of concerns raised by NHS workers where there is reason to believe that there has been failure to follow good practice, particularly failing to address dangers to patient safety or causing injustice to staff”
“He/she would not take on the investigation of cases themselves, but would challenge or invite others to look again at cases”
However, of great concern, the case review manager at the National Guardian’s Office recently told a current whistleblower that “the National Guardian’s Office is not able to intervene in the personal circumstances of individuals” (2 February 2017)
This was an extraordinary claim, given the above recommendations by Sir Robert, the DH’s acceptance of these recommendations 2 and CQC’s published information 3 – all of which make it clear that the role of the National Guardian is to intervene in individual cases by reviewing them and possibly recommending more appropriate actions by employers.
Moreover, the National Guardian has now issued draft proposals for how whistleblower case reviews will be conducted, which are neither fair nor fit for purpose:
The draft proposals contain no specific procedural details for establishing whether good practice has been followed in individual cases.
There are no clear rules by which individual whistleblowers can measure whether they have been treated fairly by the National Guardian and by which the National Guardian can be held to account.
There is no defined process or specific criteria by which the National Guardian will reach a conclusion that she should challenge others to “look again” at an individual case.
Instead, the draft proposals only contain a vague outline of how the National Guardian will assess employers’ general processes.
The National Guardian’s proposed assessment processes are so vaguely described that they could be interpreted in wide manner, allowing inconsistency and unfairness.
The tests described could easily be passed by any employer that produces documents that appear superficially sound.
Overall, the biases in the process set out by the National Guardian effectively favour employers and not whistleblowers.
Whistleblowers must jump hurdles that are unfairly high, whilst employers are not seriously held to account by the processes described.
I am concerned that the National Guardian’s office seems to be emerging as a bureaucratic body that applies an incorrect interpretation of its role, will not compassionately meet the needs of whistleblowers in dire straits, will not provide safe harbour and will most likely give erring employers a soft ride if they tick the right corporate boxes.
If the National Guardian’s Office persists in telling whistleblowers that it cannot intervene in their individual cases, and if it only superficially asks whether abusive employers tick corporate boxes, this will represent a gross waste of public money and a serious failure of the duty of care to patients and to whistleblowers.
I ask you as the responsible funding bodies to review the situation, to effectively monitor the performance of the National Guardian’s office, and to demonstrate that you have done so.
I provide details below of the concerns about the National Guardian’s case review proposals.
I will not labour the points about controversies that remain from the Freedom To Speak Up Review, but I briefly note for the record that I do not agree with the failure to create an independent body with proper powers, failure to properly reform inadequate, failed whistleblowing law or to provide effective sanctions to deter reprisal, or the exclusion of ‘historic’ cases from further examination.
I copy this to the National Guardian’s office as my response to the National Guardian’s draft proposals.
Dr Minh Alexander
Public Accounts Committee
Public Administration and Constitutional Affairs Committee
Helen Buckingham Director of Corporate Affairs NHSI, member of National Guardian’s Accountability and Liaison Committee
Moira Gibb NED NHS England, member of National Guardian’s Accountability and Liaison Committee
Sir Robert Francis CQC NED, Chair of National Guardian’s Accountability and Liaison Committee
Dr Henrietta Hughes National Freedom to Speak Up Guardian, CQC
CONCERNS ABOUT NATIONAL GUARDIAN’S DRAFT PROPOSALS FOR WHISTLEBLOWER CASE REVIEWS
ASSESSMENT OF AND CONCLUSIONS ABOUT INDIVIDUAL WHISTLEBLOWER CASES
Sir Robert Francis recommended that the National Guardian should review individual cases, but without investigating them. There are serious questions about the validity of this concept. However, even within this narrow remit, the very least that the National Guardian should set out is how she will approach assessment of good practice in the individual whistleblower cases being reviewed.
For example, these are the type of questions that the NGO must answer and which are currently absent from the proposed protocol, but must specifically feature in the National Guardian’s protocol for individual case reviews:
- Was the whistleblower’s concern(s) and the organisation’s response documented and investigated by the organisation in accordance with its whistleblowing policy?
- Was the investigation into the whistleblower’s concern(s) sufficiently independent?
(Taking into account Robert Francis’ recommendations from the Mid Staffs Public Inquiry that allegations of a Serious Untoward Incident or concerns about senior managers should trigger an external investigation)
- Was the investigation into the whistleblower’s concern(s) conducted in a fair, thorough and expeditious manner?
Typically, when employers seek to cover up, terms of reference are inadequate, unsuitable, inexperienced investigators may be allocated, relevant enquiries are not made, and delay is used punitively to wear the whistleblower down. The National Guardian must examine such factors if she is to come to a fair conclusion about whether good practice has been followed.
- Was the whistleblower supported, protected and kept well informed during the investigation, and allowed to comment on the conduct of the investigation?
Employers who seek to cover up will not properly involve whistleblowers in investigations, restrict their access to information, may fail to protect their confidentiality or actively fan co-worker hostility against them and fail to allow them fair opportunities to influence the conduct of the investigation. The National Guardian must weigh such factors if she is to come to a fair conclusion about whether good practice has been followed.
- Did the employer’s investigation come to a reasonable conclusion based on the evidence it reviewed, or is there evidence of perversity?
- Did the employer’s investigation report fairly reflect the evidence gathered by the investigation?
- Has the organisation acted upon the findings and recommendations of the investigation?
- Has the whistleblower suffered, or appear to have suffered, any detriment after raising concerns, including but not limited to:
-bullying and harassment
-ostracisation and isolation
-discrimination and less favourable treatment than peers
-unfair excess workload or unfair removal of responsibility
-withholding of managerial support
-lack of normal career progression
-denial of rights and benefits
-unfair performance appraisal
-counter allegations, being subject to disciplinary process, suspension
-dismissal either on grounds of misconduct, competency, SOSR, or redundancy
referral to professional regulator
- Has the whistleblower suffered, or appeared to have suffered, a personal injury, after raising concerns?
- Has the employer failed to address and remedy the detriment?
- Is the board itself implicated in reprisal against the whistleblower?
- The template given for the National Guardian’s case review reports is superficial and lacks key features.
The template must require that case review reports explicitly provide:
- A clear conclusion by the National Guardian on whether:
– It appears that a whistleblower’s concern(s) have not been handled in line with good practice
– It appears that a whistleblower has suffered detriment after raising a concern(s)
- A clear statement on whether or not the National Guardian recommends that the whistleblower’s case is looked at again, with specific reasons.
- A clear statement on whether or not the National Guardian considers that any BME whistleblower has been treated less favourably than actual or hypothetical comparators
- Where the National Guardian concludes that the board of an organisation is actively responsible for or has been complicit in reprisal against a whistleblower:
-The National Guardian must recommend further EXTERNAL investigation of the whistleblower case.
-The National Guardian must inform system regulators of this finding.
-The National Guardian must also indicate whether or not a regulatory challenge under CQC Regulation 5 Fit and Proper Persons is recommended.
MISCELLANEOUS OTHER ISSUES
- Compromise agreements
The National Guardian proposes:
“Evidence relating to confidentiality clauses in settlement agreements indicates that they have only been drafted in the public interest”
This requires more specific definition. The National Guardian should set out what she considers to be a settlement agreement that has only been drafted in the public interest.
- Accountability for reprisal against whistleblowers
- The National Guardian proposes:
“Evidence that trusts have appropriately responded to any incidents where workers are victimised, or otherwise unreasonably treated for raising concerns, including making protected disclosures”
The National Guardian’s protocol must include review of evidence that organisations have met their whistleblowing policy commitments to discipline individuals found guilty of reprisal against a whistleblower.
- The National Guardian proposes:
“The purpose of a case review should not be to apportion blame where it identifies that support for staff or a response to a concern was insufficient, but instead to identify how NHS trusts can make improvements to their systems, policies and procedures as well as to commend areas of good practice.”
I see this as an unfair and insupportable statement which has the effect of protecting those guilty of serious misconduct in the form of whistleblower suppression and reprisal.
It is wrong and not credible to start from a position that no one will be blamed. That would lead to unjust culture.
The National Guardian must acknowledge the possibility that case reviews may reveal or confirm serious wrongdoing, and her protocols must include proportionate, potential responses to such serious misconduct.
The National Guardian’s protocol must set out the range of actions that may need to be taken where there is evidence suggestive of serious misconduct – for example, referrals to system or professional regulators, recommendation of a regulatory challenge under CQC Regulation 5 Fit and Proper Persons or a referral to NHS Protect.
- The purpose of a case review
The National Guardian’s proposes that the purpose of case reviews should be:
“to identify the greatest possible learning…. to support NHS trusts to identify how they can improve their own processes and support for staff when raising concerns by reviewing how NHS trusts responded to such concerns”
This again places focus on general organisational processes, when an important part of the stated purpose of case reviews is to help prevent and address injustice to individual whistleblowers.
Freedom to Speak Up Review page 19: “The INO [National Guardian] would be authorised by these bodies to review the handling of concerns raised by NHS workers where there is reason to believe that there has been failure to follow good practice, particularly failing to address dangers to patient safety or causing injustice to staff”
This must be equally reflected in and added to the National Guardian’s protocol.
- Case Review Criteria
The National Guardian proposes:
“A set of criteria will be required to determine which of the cases referred to the NGO are potentially suitable for formal review. Where a case passes this threshold the NGO will then exercise its discretion whether or not to review it.
At its meeting on 12.12.16 the Accountability and Liaison Board of the National Guardian’s Office advised that an Advisory Group for the NGO would be able to provide ideas and suggestions for what these criteria should be and meetings scoping the potential membership of a future Advisory Group took place on 20 January for this purpose.
- The referral should be from either:
o a current NHS worker or workers who have raised a concern; or
o by those working for the NHS in the previous 12 months; or
o a Freedom to Speak Up Guardian; or
o a body responsible for delivering or monitoring NHS services
[NB: ‘Worker’ is defined by s.43K Employment Rights Act 1996 – i.e. in its widest sense, to include agency staff, in order to support whistle blowers; the overriding considerations are the safety of patients and supporting all classes of NHS ‘workers’.]
- The available information shows that the NHS provider in question failed to respond appropriately to a serious concern, or concerns relating to the safety of patients and/or NHS workers
- In respect of any matter that is not otherwise the subject of either a criminal investigation or an investigation by NHS Protect
- Where it is practicable for the NGO to review the case in question”
- The time restriction of 12 months is not reasonable. Detriment can occur long after employment ceases, and may not always be immediately evident to the whistleblower. The period should be two years at the very least, but preferably longer.
- The National Guardian’s specification “the NHS provider in question failed to respond appropriately to a serious concern” is too vague and open to abuse and inconsistent interpretation.
Instead of “serious concern”, the National Guardian should state here “a qualifying disclosure under the Public Interest Disclosure Act” and list the categories of qualifying disclosures identified under the Act.
3. The National Guardian’s specification “Where it is practicable for the NGO to review the case in question” is again too vague and potentially allows arbitrary decisions and unfairness.
The National Guardian
– must set out examples of ‘impracticability’
– must indicate that review will be practicable in the majority of cases and only exceptionally will cases be excluded on grounds of impracticability.
4.The National Guardian’s specification: “Where a case passes this threshold the NGO will then exercise its discretion whether or not to review it” – this is again far too vague to be fair or to support accountability by the National Guardian.
The National Guardian must clearly and specifically set out how her “discretion” will be exercised, and demonstrate that the principles she will apply when exercising such discretion are fair, proportionate and reasonable.
The National Guardian’s protocol must require clear documentation, in each whistleblower case that meets its basic inclusion criteria and threshold, of the National Guardian’s reasons for deciding to review or not to review the case.
The National Guardian’s protocol must also require regular Diversity and Equality audit of whistleblowers’ cases accepted or rejected for review.
In particular, the National Guardian’s office as a matter of policy should demonstrate that it is not discriminating against BME whistleblowers either at the level of accepting cases for review, or its resultant decisions to challenge others to look again at cases, or not.
5. The National Guardian proposes:
“Paragraph 76 of the executive summary states that the purpose of a case review should be to ‘review the handling of concerns where there is reason to believe that there has been failure to follow good practice …’
Therefore cases should only be considered for possible review where there is clear evidence received in the referral that the NHS provider has already responded to a concern and has failed to do so appropriately. Where the referral contains little or no such information the case should not be considered for possible case review.”
This is an unfair threshold, because one of the most common institutional responses to whistleblowers, as noted by parliament 4, is silence. Whistleblowers may simply be ignored by employers.
Such institutional silence and passive aggressiveness is clearly and widely accepted as a form of whistleblowing governance failure.
It is inconceivable that the National Guardian propose to reject referrals if an employer has not responded, when this is in fact a core failure.
The National Guardian must withdraw this inappropriate and unfair hurdle.
- The National Guardian proposes:
“It is expected that the information provided in some referrals will be insufficient to allow the Case Review Manager to decide whether the case meets the criteria advised by the AG. In such cases the NGO should not undertake the gathering of information in the nature of a review to determine whether that referral meets the criteria for case review. They may instead inform the referrer of the need to provide more information.”
Whistleblowers will usually be in a highly distressed state, or even unwell, and may be less able to clearly articulate the details of their cases.
The National Guardian’s office should not merely confine itself to “informing the referrer of the need to provide more information”.
The National Guardian’s protocol should require the National Guardian to actively provide support to whistleblowers who may need help to clarify their referral, and to advise the whistleblower what further information is needed.
The National Guardian suggests:
“When gathering information the NGO should ensure that, wherever possible, the information is corroborated, i.e. it will be necessary to find more than one piece of information to support the assertion of an existence of a fact.
Without corroboration it will not be reasonable to assert in a final report that a fact, or a particular set of facts is true and therefore capable of supporting a conclusion and any recommendations.”
This is potentially unfair to whistleblowers if the reliability of facts is to be determined only by the number of sources.
Whistleblowers are often deliberately isolated by employers, who intimidate and drive supporters away and may even pressure other employees to falsify denials or make false allegations against whistleblowers. The fact that two or more people may make a false allegation against a whistleblower does not necessarily make it true.
The National Guardian’s protocol must be amended to reflect the fact that a number of factors will be weighed when determining facts, and that the number of sources is only one factor.
- Draft reports
The National Guardian proposes:
“Once a draft report has completed the quality assurance process it should be shared with the NHS provider without delay to permit any necessary actions to be taken promptly. It should also be published and share with key stakeholders”
The indication here is that the National Guardian will share draft case review reports with employers, but not with whistleblowers, who must wait until the case review reports are published.
This introduces procedural unfairness in that employers will have a greater opportunity to influence the process.
The National Guardian’s protocol must include the sharing of the draft report with the whistleblower as well as the employer.
1 Report of the Freedom to Speak Up Review by Robert Francis, 11 February 2015
“The only route available to an individual who feels he has been subject to detriment for making protected disclosure is to take a case to an Employment Tribunal. However, most do not want to take legal action: all they want is to be assured that patients are safe and to get on with their jobs.
76 Rather than establish yet another new body, which would require legislation as well as new funding, I propose that an Independent National Officer (INO) should be jointly established and resourced by the CQC, Monitor, the NHS TDA and NHS England, to operate under the combined aegis of these bodies. The INO would be authorised by these bodies to:
- review the handling of concerns raised by NHS workers where there is reason to believe that there has been failure to follow good practice, particularly failing to address dangers to patient safety or causing injustice to staff
- where this has occurred, to advise the relevant NHS organisation to take appropriate and proportionate action, or to recommend to the relevant systems regulator or oversight body that it make a direction requiring such action”
2 Learning not blaming, Department of Health July 2015
“Principle 15 of the Freedom to Speak Up report sets out how the Independent National Officer will provide an independent role to review the handling of concerns raised by NHS workers and/or the treatment of the person or people who speak up where there is cause for concern. The person undertaking this role will…advise NHS organisations to take appropriate action where they have failed to follow good practice, or advise the relevant system regulator to make a direction to that effect”
3 Improvement through openness. CQC May 2016
“It is positive that the majority of respondents agreed with the role of the National Guardian in reviewing how individual cases have been handled.
The National Guardian’s Office is establishing a framework over the coming months, to set out a review process and criteria for case review, and we will be working collaboratively to develop them. The purpose of the review process will be to identify ways in which greater protection and support can be provided for people who speak up, with recommendations to local trusts as well as to Government and regulators to make necessary changes and take action where required”
4 Whistleblowing. Public Accounts Committee, 1 August 2014