By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 23 February 2017
On the campaign trail, one ends up in interesting social media conversations. Such a conversation led to me being asked what I would do to prevent suppression of whistleblowers’ concerns if I was the Secretary of State for the Department of Health.
There were about 600 submissions to Robert Francis’ Freedom to Speak Up Review, most of which were from whistleblowers. Review officials acknowledged that most of the whistleblowers who contributed reported negative experiences of speaking up.
But there was not a word in Francis’ Review report about the nature or gravity of whistleblowers’ disclosures.
Moreover, Francis recommended that there should not be a public inquiry into NHS whistleblowing, and so it is unlikely that the buried, serious patient safety issues will see the light of day.
After the review, Francis confirmed that most of the submitted material was destroyed:
It was a huge missed opportunity.
But turning to the future, this is what I would do about NHS whistleblowing if I was the Secretary of State:
Open letter to James Titcombe
NHS Just Culture Taskforce core member
23 February 2017
What I would do if I was Secretary of State
I write further to our twitter discussion yesterday about culture in the NHS and failures to protect whistleblowers, which culminated in you asking what I would do if I was Secretary of State.
The Secretary already knows what he should do. Things can not and will not change until there is political will to genuinely improve transparency, as opposed to spinning an appearance of improved transparency. To protect whistleblowers – and therefore patients – the Secretary of State should:
- Model good behaviour by listening to the workforce and to whistleblowers in particular
- Implement whistleblowing law reform
- Ensure accountability for whistleblower suppression and reprisal (this should include a public inquiry into past abuses and unmitigated patient safety risks)
- Stop the improper protection of those who victimise whistleblowers
- Enforce the investigation of whistleblowers’ concerns and provide a mechanism for appeal against unsatisfactory local investigations by employers
- Support the establishment of a properly resourced, independent body for whistleblowers which has powers to investigate and remedy poor whistleblowing governance and enforce whistleblowing law
- Make NHS disciplinary processes fairer to employees
- Take genuine action to stop the inappropriate use of gags in NHS settlement agreements and provide a general waiver for past gags
- Stop NHS bodies wasting vast sums on litigating against and silencing whistleblowers
- Ensure that whistleblower perspectives are considered in national projects on transparency and culture change.
As I pointed out, the roots of NHS whistleblower suppression and reprisal are ultimately political and reflect the immature governance of the NHS. This skews priorities and fiercely protects the reputations of politicians and senior officials. This top down culture of ‘compliance and fear’ was described by two major reports by the Institute of Health Improvement and Joint Commission International in 2008, which were suppressed for two years by the Department of Health (DH) until released via Freedom of Information. 1 2 Whilst there are pockets which are less toxic, culture has not improved overall and in some ways is worse due to accelerated denial about the managed decline of the NHS.
Typically, governments the world over take a crisis management and public relations approach to whistleblowing, with superficial, ineffective responses to scandals that serve only to buy time and not to genuinely address issues. The Freedom to Speak Up Review is such an example. 3 Far from protecting whistleblowers’ rights, the current government is driving the balance towards greater punishment of whistleblowers and the press who support them and report their concerns. 4 Authoritarianism is increasing in government, not decreasing.
The Secretary of State and Department of Health are often the last port of call for NHS whistleblowers who have been unable to progress concerns with employers, regulators and other oversight bodies. However, their common response to whistleblowers is to avoid meaningful contact and to claim that they cannot get involved in employment disputes, even where patient safety issues are reported. 5 This practice continues.
What should the Secretary of State do?
The Secretary of State, who has been in post five years, is aware of the things that would help to protect whistleblowers. He has received numerous representations from whistleblowers and their supporters about the interventions needed to deter and prevent whistleblower suppression and reprisal. The issue is that he has not acted upon them. Whistleblowing failures continue.
Nevertheless it may be useful to list some of the main things he could do:
Model listening behaviour – the Secretary of State should in general treat the workforce with consideration and respect, and listen to its concerns. Specifically, he should stop rebuffing whistleblowers, and he should stop DH officials rebuffing whistleblowers, who approach him for help because the rest of the system has let them down. 6
In the extraordinary and long running whistleblower case of Dr Raj Mattu, there was no shortage of political support, questions in the House, appeals and petitions to governments. Despite this, seven successive Secretaries of State did not stop the serious injustice. 7
These are the seven Secretaries of State over the period in which Dr Raj Mattu has experienced serious reprisal and detriment:
Whistleblower approaches to the DH almost always represents serious governance failure by the wider NHS. Instead of washing his hands of cases, the Secretary of State and his department should hold the bodies responsible to account, facilitate the resolution of concerns, and acknowledge that whistleblower detriment is not merely an “employment matter”, but an indicator of failed governance and risk to patients.
Full Law reform – PIDA, the existing whistleblowing law, 8 came into force 18 years ago and is acknowledged to be weak by experts. Robert Francis acknowledged it was weak. 9 But there is no current political will to allow reform. The Law Commission confirmed on 15 February 2017 that it has no plans to review PIDA.
Politicians and senior civil servants often claim that PIDA provides protection for whistleblowers. This is a misrepresentation. PIDA only provides the possibility of compensation after victimisation, and compensation is usually inadequate set against the real losses.
BLUEPRINT FOR FREE SPEECH ANALYSIS OF PIDA, MAY 2016:
“However, PIDA’s widely publicised failings have begun to tarnish the law’s reputation. The dangers faced by whistleblowers – from firing and harassment, to bullying and boycotting – can plainly be traced to major flaws and gaps in the law itself.
An analysis shows that when compared against a list of international standards, PIDA contains only 37 percent of these standards for whistleblower protection legislation.” 10
PIDA does not provide anyone with powers to proactively protect whistleblowers or to remedy detriment. There is no evidence even that PIDA deters reprisal.
Public organisations with deep pockets are untroubled by PIDA, and prepared to spend large amounts of money to out gun whistleblowers in Court.
Whistleblowers rarely succeed with litigation – many cases are settled out of court, and the statistics available suggest that only 3% of claims actually succeed at hearing. 11 Employers are also prepared to pay compensation for unfair dismissals, as the price for ridding themselves of whistleblowers and managing reputation.
Importantly, PIDA does not compel anyone to investigate or act upon whistleblowers’ concerns. Patient safety concerns raised by NHS whistleblowers in the most serious cases largely get buried.
PIDA also does not hold individuals to account for whistleblower suppression or reprisal, only organisations. Managers guilty of endangering the public suffer no personal consequences.
If the Secretary of State is serious about protecting whistleblowers and ensuring that their patient safety concerns are acted upon, he should take steps to trigger and support reform of the law.
Independent body for whistleblowers – The Secretary of State should support the establishment of a properly resourced, fully independent body for whistleblowers that answers to parliament and not to a government department, with proper powers to investigate or compel other bodies to investigate, remedy poor whistleblowing governance and generally enforce compliance with whistleblowing law.
There are precedents. For example, the USA Office of Special Counsel, which protects federal whistleblowers. 12
At present, there is no single UK body with responsibility for whistleblowers. Under PIDA, there are only numerous disparate bodies (“prescribed persons”) to whom whistleblowers can make disclosures. However, these bodies have no defined responsibilities under PIDA. They often have little expertise on whistleblowing. They do little to protect whistleblowers. 13
There is currently almost no accountability for whistleblower suppression and reprisal in the NHS. There can be no psychological safety for staff in raising concerns nor hope of a genuinely just culture, until this blatant impunity is rectified.
Currently, the sight of gibbeted whistleblowers contrasting with protected persecutors has a chilling effect, reflected in poor NHS staff survey measures of confidence in speaking up and in concerns being acted upon. In 2015, about one third of NHS staff did not feel secure to raise concerns and about half of staff did not think their concerns would be acted upon. 14
In the lastest survey of staff at the regulator, the CQC (which should be an exemplar) only 43% of staff felt safe to challenge the way things are done at CQC. 15
The Secretary of State is arbitrary and inconsistent in his responses to NHS wrongdoing. He has ordered a very welcome investigation into the disreputable practices by the NMC. 16
However, he has not responded to equally egregious examples of whistleblower persecution, other than when the Daily Mail campaigned on one particular example. 17
He has the power to order a public inquiry into all the gross abuses and malfeasance in many NHS whistleblower cases, and the recycling of erring managers with complicity or active facilitation by regulators, but he has resisted doing so.
He should order a public inquiry and he should ensure that the culture of impunity ceases, to send a message to the workforce that there is order, fairness and a safe environment in which to speak up.
A public inquiry would also bring to light the thousands of patient safety concerns that have been suppressed by the NHS, and allow hopefully for serious unresolved issues to be addressed.
The Secretary of State should also ensure that employers and regulators stop protecting those who victimise whistleblowers, and that such behaviour is heavily sanctioned, proportionate to the serious harm and risk that it causes.
Managerial regulation – As part of increasing accountability, the Secretary of State should introduce managerial regulation for all grades of managers. It is wrong to allow power without sufficient accountability, especially when the toothlessness of and failure to enforce the NHS Manager’s Code of Conduct has been a feature of so many NHS failures. 18
Make NHS disciplinary processes fairer to staff – Current NHS disciplinary processes are easily abused and enable managers to conduct kangaroo courts to get rid of unwanted staff, including whistleblowers. Independent, lawyer chaired panels should be reinstated to hear the final stages of disciplinary proceedings, not just for consultants but for other staff as well. 19
Stop the inappropriate use of gags in NHS settlement agreements and provide a general waiver for past gags – The Midstaffs Public Inquiry criticised the NHS’ use of gags and their deleterious effect on patient safety. 20 The Secretary of State and senior officials did not respond effectively to this, and provided no real deterrent or enforcement of good practice. 21
Since 2013, NHS settlement agreements have been modified to make them strictly speaking legal, but they still frequently contain intimidating clauses which have the effect of silencing staff.
The Secretary of State should set out clear, adequate standards by which organisations’ performance can be measured, and enforce good practice. He should ban the use of ‘super-gags’ – clauses that make even the existence of settlement agreements secret. Such clauses have been used to make whistleblowers invisible, to cover up the fact that they have been paid off and hide the underlying managerial wrongdoing.
Currently, the DH has refused to ban such super-gags.
Also, the CQC has variously attempted to wrongly claim that gags have been banned from the NHS 22, it has ignored specific concerns raised by whistleblowers about organisations’ use of gags and it has failed to regulate the use of gags (despite claiming that it would). 21
The Secretary should send a clear message by ensuring better regulatory practice, and by providing a general waiver for past gags, the details of which will need to be agreed. Thousands of people have been ‘pardoned’ for offences of same sex relations. The NHS can surely give similar justice to staff who have been wrongly gagged.
There is also a practical aspect to providing a waiver of past gags. Some gagged whistleblowers cannot currently access, or fully access, the NHS whistleblower employment support scheme because they are subject to such restrictively drafted settlement agreements.
If the Secretary of State does not act on this, some exiled whistleblowers will remain frozen out of the NHS with no hope of return.
Preventing inappropriate expenditure on litigation and silencing whistleblowers – The Secretary of State should stop the misuse of public funds by NHS bodies in suppressing public interest disclosures.
Tighter controls and more rigorous challenge by regulators and oversight bodies is needed.
Whistleblower settlements are still being rubber stamped by the Treasury and NHS regulators. 23
NHS organisations should not be able to waste money on employing law firms to devise exit strategies and corrupt investigations against whistleblowers, litigation or paying off whistleblowers without consequences.
Regulators and oversight bodies should take proactive measures against organisations who waste public money in this way, instead of nodding it by.
Any such improper expenditure should trigger an examination of organisations’ whistleblowing governance and any necessary protection of the whistleblowers affected.
Ensure whistleblower perspectives and engagement in any national projects on transparency and culture change – Whistleblowing is currently not considered at all or only tokenistically in projects that purport to improve transparency and culture. For example, the Secretary of State’s initiation of the Just Culture Taskforce did not include staffside representatives or whistleblowers from the outset. 24
The Healthcare Safety Investigation Branch has also equivocated and resisted transparency about ‘co-production’ of its protocols. It is in particular resistive to questions about whether it will involve whistleblowers in developing its protocols.
This sort of behaviour by NHS bodies reveals that despite lip service, there are still negative attitudes to whistleblowing as a problem rather than a resource. The Secretary of State should model better whistleblower engagement and require others to do so also.
In conclusion, I hope this helps to illustrate why the view that failure of whistleblower protection is primarily a political issue, is based on evidence and analysis, and not merely ‘conspiracy theory’ or the product of unthinking negativity.
A classic technique of governments is to divide and split, and some individuals who have a more positive experience may naturally arrive at a more positive outlook based on their personal experiences. However, it is important to look at the whole picture, and to be mindful of issues of equity.
Not only whistleblowers, but also many patient complainants and bereaved families continue to be very badly treated by the NHS, and it is the totality of experience that needs to be consistently and fairly improved.
My thanks to you for asking a very helpful question.
With best wishes,
Dr Minh Alexander
cc Secretary of State
Chris Wormald Permanent Secretary DH
Lord Bew, Committee on Standards in Public Life
Keith Conradi Chief Inspector Healthcare Safety Investigation Branch (HSIB)
Jane Rintoul Deputy Director DH, patient experience, HSIB contact
Dr Henrietta Hughes National Freedom to Speak Up Guardian, CQC
Tim Jones DH, NHS Just Culture Taskforce Secretariat
Paul Stonebrook, DH, NHS Just Culture Taskforce Secretariat
Suzette Woodward, NHSLA, NHS Just Culture Taskforce core member
Martin Bromiley, NHS Just Culture Taskforce core member
Scott Morrish, NHS Just Culture Taskforce core member
Steven Shorrock, NHS Just Culture Taskforce core member
Peter Walsh CEO AvMA
Deborah Coles, Director INQUEST
Katherine Murphy CEO Patients Association
Jane Mordue Chair Healthwatch England
CLARIFICATION 23.02.2017: A recent Just Culture Taskforce website gave details as above of Taskforce core members. Steven Shorrock has clarified that he has nothing to do with the Just Culture Taskforce “at present and nothing planned. Happy to offer experience from aviation but very different context”.
- Transcript of BBC File on Four broadcast 7 February 2017, on continuing NHS whistleblowing failures
1 Achieving the Vision of Excellence in Quality. Recommendations for the English system of quality improvement. Institute of Health Improvement. 2008
2 Quality Oversight in England – Findings, Observations and Recommendations for a New Model. Joint Commission International 2008
3 Report by Robert Francis of the Freedom to Speak Up Review 11 February 2015
4 Law Commission consultation paper – Protection of Official Data, February 2017
5 Ignored: Whistleblower’s claim of nurse who ‘killed slowly’, Sunday Times 14 December 2014
6 Bid to block whistleblower’s access to Ministers, Civil Service World, 14 May 2014
7 Raj Mattu and the death of whistleblowing, Dr Phil Hammond, Private Eye issue 1364
8 Public Interest Disclosure Act 1998
9 Page 192 of the report of the Freedom to Speak Up Review:
“the existing legislation [PIDA] is weak”
10 Protecting whistleblowers in the UK: a new blueprint, Blueprint for free speech, May 2016
11 Public Concern at Work data 2013-2014: Out of 2684 whistleblowing ET claims disposed in 2013/14, 92 claimants were successful at hearing
13 The role of prescribed persons. National Audit Office. February 2015
14 Briefing note: issues highlighted by the 2015 NHS national staff survey, February 2015
“Findings on staff satisfaction regarding unsafe clinical practice are similar, with 68% of staff feeling secure in raising any concerns they may have regarding clinical practice. Fifty six percent of staff had confidence that their organisation would address their concerns if they were raised.”
15 CQC staff survey 2016, January 2017
16 Jeremy Hunt orders investigation into nursing regulator over Morecambe Bay scandal, Paul Gallagher, i-news 17 February 207
17 Hospital told to stop threatening whistleblower as Hunt steps in: Health Secretary demands an investigation into claims would be sacked, Paul Bentley and Sophie Borland, Daily Mail, 3 March 2014
Comments in the Mid Staffs Public Inquiry, volume 3, about the NHS Managers’ Code of Conduct
“The Code of Conduct for NHS Managers
22.133 The Code of Conduct for NHS Managers states:
I will respect and treat with dignity and fairness the public, patients, relatives, carers, NHS staff and partners in other agencies … I will also seek to ensure that … patients are involved in and informed about their own care, their experience is valued and they are involved in decisions.
22.134 This statement suffers similar defects to the NHS Constitution: it is not specific about the need for candour in the sense of volunteering information. The Code does not apparently apply directly to FT employees.144 It is also unclear to some whether, or to what extent, they are covered by this Code: Mr Knowles for one thought it did not apply to him.145 However, it was incorporated into Ms Levy’s contract of employment, although her understanding was that she was obliged to act in the best interests of her client.146 Both accepted they would have regard to the Code in advising their clients.”
19 John Hendy QC Employers’ discipline of doctors in the NHS, from “A Savage Inquiry Re-visited” 2007
20 Report of the Mid Staffs Public Inquiry Volume 2
“Non-disparagement” and “gagging” clauses
11.229 Some witnesses to the Inquiry who were former employees of the CQC required a direction to give evidence because of their fears about the effect of a clause in compromise agreements relating to the terms of their departure. Ms Bower told the Inquiry she had been advised that such terms were entirely standard. The Inquiry obtained copies of the CQC’s standard clause as inserted in Dr Heather Wood’s agreement:
That Dr Wood will not at any time hereafter make or repeat any statement which disparages or is intended to disparage the goodwill or reputation of the CQC, or any specified person and the CQC will use reasonable endeavours to ensure that no senior manager, tier 3 or above, with whom Dr Wood had direct dealings with her employment with the CQC, nor any specified person involved in the correspondence process surrounding the termination of Dr Wood’s employment will make or repeat any statement which disparage or are intended to disparage the goodwill or reputation of Dr Wood.
11.230 Standing on its own, the clause would prevent any criticism or public comment on matters of public concern being made by Dr Wood of the actions of the CQC while she was an employee there, or even after she had left, if these would have an adverse effect on the CQC’s reputation.”
21 NHS Gagging: How CQC sits on its hands. Minh Alexander, 22 September 2016
22 The CQC denies. Minh Alexander, 8 January 2017
23 NHS Employers. Guidance on severance payments, December 2013
24 Call for Just Culture Taskforce core members to step down, Minh Alexander 25 January 2017