By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 17 March 2017
NHS Foundation Trust governors are in the rum position of having great responsibility for holding trust directors to account, with little real power and leverage to do so, and whilst enjoying little protection to speak out freely.
This has not changed despite the Mid Staffs Public Inquiry findings that governors’ disempowered status contributed to the serious patient safety failings, or the recommendations of the Inquiry to strengthen governors’ role. 1
The ongoing difficulties were starkly illustrated by events at Southern Health, where conflict between governors and directors was mismanaged and governors were treated disrespectfully and oppressively by the trust. 2 3 4 5 6 7
One Southern Health governor contacted the police because of concerns about harassment:
There have been other examples of NHS trust governors being sidelined, villified or ostracised, some current.
My own personal experience is of lead governors telling me that they would not attempt to challenge the CQC’s inaction over safety disclosures, as they thought they could make no headway having seen CQC’s poor response to me.
Public trust governors are not ‘workers’ within the meaning of existing whistleblowing legislation, the Public Interest Disclosure Act 8, and do not enjoy even the meagre rights that this legislation confers. (PIDA ‘protection’ essentially amounts only to the right to sue employers, usually unsuccessfully due to inequality of arms, after whistleblowing detriment).
Staff trust governors are at risk of the typical NHS managerial backlash against employees who speak up.
Repeated and ongoing whistleblowing cases show that NHS whistleblower protection remains inadequate. 9
I wrote to the Health Committee via its Chair about the gap in the legislation regarding public governors. 10
The Committee has noted this correspondence, and also other subsequent evidence, and indicates that it would welcome submissions which provide evidence that NHS trust governors may have been disciplined or silenced:
If you have relevant evidence or know anyone who may wish to give evidence, please pass this on. The correspondence address for the Health Committee is:
In addition to the lack of protection for governors, to help them fulfil their role of challenging and holding boards to account, I have also flagged to the Health Committee that NHS commissioning whistleblowers still have no prescribed body under PIDA, to which they can make their disclosures.
NHS England indicated in May 2016 that it might be a prescribed body for CCG whistleblowers by April this year. However, it now appears that there is further delay.
NHS England reports that the Department of Health will decide this summer on whether to make NHS England a prescribed body for CCG whistleblowers, and if it does, this will only come into force by April 2018 at the earliest. 11
Some may think it is convenient that the Department of Health is dragging its feet on protecting commissioning whistleblowers at a time of immense and controversial cuts in the NHS.
Anonymous reports of safety concerns by senior NHS staff abound, and there has even been an overt protest by one CCG, that it was basically told by NHS England to cook its books. 12
Below is a diagram by a CCG whistleblower who submitted evidence to the Freedom To Speak Up Review (see page 55) showing the ludicrous dance that she was led when trying to raise her concerns:
Deny, defend and above all delay, still rules.
1 Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry February 2013
“Foundation Trust governors 10.201
The governors of an FT theoretically play an important role in its oversight. Their power to dismiss the chair and non-executive directors potentially gives them considerable scope to influence the running of the organisation. It is clear from the experience of the Trust’s governors, and from meetings the Inquiry had with governors at a number of other FTs of varying sizes that, in practice, there are numerous challenges facing them:
Weakness of mandate: Apart from any governors nominated by local representative bodies, an FT’s public governors are elected by a membership which is grouped into constituencies in a variety of ways. The membership is by definition a self selecting group and is not necessarily representative of the community from which it is drawn. The precise arrangements vary according to the individual constitutions of FTs as approved by Monitor. While this may be inevitable under this type of structure, and has value in enabling local conditions and needs to be recognised, it is important that governors are accountable not just to the immediate membership but to the public at large. While the requirement that governors’ meetings are held in public goes some way to facilitating this, it is important that regular and constructive contact between governors and the public is maintained. In this way, governors can explain their work to the public and benefit from being open to public views of the service they are receiving.
Potential lack of authority and experience: Governors are a disparate group from a wide variety of backgrounds. While they are a valuable source of information about local views, they are unlikely to be able to assess fully the competence of the board or effectively monitor its performance unless they have adequate support, for which they are currently almost entirely dependent on the board itself. Pursuant to the obligation of FTs to provide appropriate training, steps need to be taken to enhance governors’ independence and ability to bring to light and challenge deficiencies in the services provided by FTs.
Monitor provides a level of guidance and training, and this should be encouraged and developed.
There appears to be a lack of clarity and consistency around what the governors’ role is and how it is to be performed. The Inquiry has encountered a wide range of practice, from a role not far removed from a hospital visitor, to something almost approaching the challenge expected to be undertaken by non-executive directors. Much seems to depend on the leadership given by the organisations’ chairs and chief executives.
Governors need to have their authority reinforced by ready personal access to external assistance and support, such as might be provided by their national association. This suggests that membership of such an association should be a requirement of taking up the post. Governors met during the Inquiry’s healthcare visits were largely complimentary of the internal support they received from their chairs and chief executives but highlighted the need for further external support.
The advisory panel which Monitor will set up under the Health and Social Care Act 2012 as a reference point for governors who fear their trust is in breach of its licence can be developed into a valuable source of support, but its remit appears to be limited to reporting its opinion on whether such breaches have occurred. Therefore, another source of advice is required to address clinical quality issues. Under the current regulatory structure the CQC could and should consider setting up a comparable panel to which governors could gain access.
2 CQC’s damning report: Southern Health ‘still not doing enough’ ITV 15 May 2016
3 Rebel governors at Southern Health stage meeting three days after Chair postpones it.
Daily Echo 17 May 2016
4 Southern Health governors hold ‘cancelled’ meeting as planned. Oxford Mail 17 May 2016
5 Blog by Peter Bell Southern Health governor on the trust’s attempts to discipline him, 12 September 2016
6 FOI disclosure 13 July 2016 by Southern Health in response to an query by Peter Bell governor about trust legal spend on blocking governors’ resolutions
7 Southern Health NHS Foundation Trust governor resigns, BBC 15 July 2016
8 Public Interest Disclosure Act 1998
9 Whistleblowers need more than hand-wringing headlines, Sir Robert. Minh Alexander 10 February 2017
“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”
10 Letter to Dr Sarah Wollaston Health Committee Chair 15 January 2017
11 Information from Neil Churchill NHS England Director for Patient Experience, 5 February 2017
12 Northumberland CCG governing body papers 15 February 2017:
“SB noted that, at the January 2017 JLEB meeting, there was discussion regarding the continued formal reporting of a £5million deficit when the actual position is £41million. The CCG has repeatedly discussed the actual financial position with NHS England but has been asked to continue to report the deficit as £5million. This is a risk in terms of accurate audit trails as there are no formal minutes of the discussions with NHS England. MR noted that NHS England are fully aware of the current financial position and also that the CCG will have no access to cash as the year end approaches to pay for any overtrading.”