By Dr Minh Alexander NHS whistleblower and consultant psychiatrist 26 March 2017
NHS Improvement held a workshop on the design of its whistleblower employment support scheme for trust whistleblowers, on 24 March 2017. It was co-facilitated by two members of of Patients First, with Chatham House rules agreed.
In brief, there is little sign of serious help on the horizon. In fact, we were told that the service may be diluted if there are many applicants and or if the scheme is expanded to re-deployment of whistleblowers still employed by the NHS, on the same budget.
The NHS whistleblower employment support scheme is another unlovely love child of Robert Francis’ assignation with the Department of Health, under the blanket of the Freedom to Speak Up Review.
Note that it is not a re-employment scheme, but only an employment support scheme.
The scheme does not provide jobs, but support to find jobs. 1
The scheme is not designed to deliver robust justice to badly harmed whistleblowers.
With due respect to individuals on the regulatory shop floor doing their best with a flawed remit and scant resources, the scheme is just more ministerial PR tinsel.
Over a year ago exiled whistleblowers traipsed to a similar workshop hosted by NHS England, which has responsibility for primary care whistleblowers.
After this, the NHS England board assigned a budget of only £250K and NHS England slowly rolled out a small pilot.
No formal report has been published about NHS England’s pilot, but at the workshop on Friday we were informed that there had been only eight applicants, as a number of whistleblowers who expressed interest decided not to apply. The scheme coordinator thought this was because the scheme did not do what whistleblowers wanted.
Will NHS England take this on board and change its scheme, so that it provides what whistleblowers want (ie. Jobs)? No, was the answer.
But nevertheless, NHS England will purchase formal, external evaluation of the scheme. And in response to questioning, we were assured that whistleblowers will be involved in designing this through an open process, and that the evaluation will include the experience of whistleblowers who decided not to apply.
It became evident that NHS England has a “decision template” for the panels that judge whistleblower applications, but it does not have a written protocol setting out how the panels should weigh evidence or make decisions.
At the NHS England workshop last year, it was put to NHS England that the burden of proof should rest with the NHS to prove that whistleblowers are not fit, as opposed to whistleblowers having to prove that they are fit. This is on the basis that the government has accepted that the body of whistleblowers consists of individuals who have been unfairly pushed out, through no fault of their own.
This suggested burden of proof has not so far been reflected in NHS England’s documents. However an NHS England manager and panellist, who presented at the workshop assured, us that this is broadly the approach that has been taken in practice, and that the presumption has been in whistleblowers’ favour. All eight applicants were accepted for the scheme.
We were advised that better guidance for panels will now be drafted and include specific criteria to be taken into account when any past allegations against whistleblowers are evaluated. For example, whether the chronology of events suggest that allegations against whistleblowers were reprisal for raising concerns, and whether whistleblowers’ performance was maliciously and implausibly downgraded by employers in response to whistleblowing.
NHS Improvement has been dawdling at the back of the whistleblower employment class, allegedly because of its internal reorganisation. It promised to start it scheme sometime last year. It did not do so and was decidedly tetchy when asked for information about progress, treating requests as FOIs and ducking out of answering on silly technical exemptions.
NHS Improvement was asked at the workshop about its progress on establishment of a proposed pool of employers willing to employ whistleblowers. We learnt that a discussion was recently held with some 15-20 or possibly more trust employers, but that things are at an early stage.
NHS Improvement now clarifies that it has not yet set a budget for the scheme. But after questions, both NHS Improvement and NHS England disclosed on 24 March that they have set a ceiling of £10K expenditure per whistleblower case. It was said that the support provided may vary according to individual need and preference, but could include liaison with prospective employers, mediation with a past employer for a reference, coaching and help with interview and job application skills, training or other help to find alternative employment outside of the NHS. The scheme will not be fully operational immediately but will start with only a pilot of a limited number of whistleblowers (the currently proposed number is ten whistleblowers).
It is of course worth pointing out that a flat rate of £10K per person is not a personalised approach. One official acknowledged to me that this amount would in no way suffice to re-skill say, a surgeon.
Most worryingly, we were told that there might be dilution of this service depending on
- The number of applicants – we were asked to mull over whether a better service should be given to a smaller number of whistleblowers, or whether the service should be spread out amongst a larger number of people.
- Shockingly, it was also casually mentioned that the budget for helping exiled whistleblowers might be spread thinner if there was a decision to add a redeployment service for whistleblowers who are still in employment. The best bit was….this redeployment service might be needed especially as there are multiple reports that the trust Speak Up Guardians are not proving sufficiently effective in preventing harm to whistleblowers.
How dysfunctional can you get? The government committed millions of precious public money to a flawed National Guardian office and non-evidence based local Guardian model, and when these are failing as expected, it is the most severely harmed, exiled whistleblowers who are expected to pick up the tab for this inexcusable waste and inefficiency.
It is totally unacceptable to put whistleblowers in the position of choosing whether they want their gruel thin…or extra thin.
There are also other important issues which are far from resolved, such as the disadvantage to gagged whistleblowers who cannot defend themselves properly for the purposes of accessing the scheme. Also, a question was raised about issues of due diligence in not exposing whistleblowers who have been harmed to more abusive employers, given the propensity of some NHS organisations to merely say the right things to gain regulatory favour. Of relevance to this, it recently emerged that a senior manager who had been a Freedom to Speak Up Guardian was recently jailed.
Both NHS England’s existing application form and NHS Improvement’s draft protocol contain an objectionable passage which precludes discussion of how the NHS treated the whistleblower2. This is very clearly unworkable if the whistleblower needs to present evidence about false allegations that they have suffered if these present a continuing barrier to employment.
In all, there was serious concern and anger expressed by whistleblowers who attended the workshop. Some comments are not reportable. Some commented to me that they didn’t know what planet NHS Improvement and NHS England were on. One person injected a note of reality and urgency at the workshop by reminding officials that they were worried about feeding their children that night.
As far as I could see, there was a unanimous show of hands by whistleblowers in the audience in favour of a needs led approach ie. a scheme that is properly resourced to provide all of the whistleblowers who need help all of the help that each person needs.
The NHS has a moral duty to fix what it broke. It also needs to send an unequivocal message that it will no longer cause, aid and abet or walk past serious harm to whistleblowers.
I have suggested that if the government is serious, it should disband the ineffective trust Guardian network and use the money saved to help fund a real employment scheme.
The scheme should include paid jobs and highly supported, graduated and safe re-entry for whistleblowers. It could be done if the government really wanted to.
As was pointed out at the workshop, the NHS demonstrates that it is quite capable of shifting itself when it recycles seriously erring managers at the drop of a hat.
We need serious, responsible policy not ‘cruel gruel’ or disingenuous barrow boy schemes from the Department of Health.
But then again, how would anyone feel about working again for an abusive employer who has still not delivered a fully operational re-employment support scheme two years after it was first promised? There are official and there are unofficial messages.
NHS Improvement is looking for expressions of interest in terms of
- Trust whistleblowers who want to apply to its pilot scheme
- Whistleblowers who are willing to help review and develop documents
- Whistleblowers who might be willing to sit on application panels (these will be comprised of a manager, a whistleblower and a professional of matched professional background to the applicant).
NHS Improvement has also agreed to consider opening a specific website page about the scheme, so that documents and developments can be shared, and to enable more open consultation than has taken place so far – the process to date has relied upon access via a small number of whistleblowing organisations which are not representative of the full body of whistleblowers.
You may also wish to comment on the working draft of the NHS protocol that has been shared via the workshop (the document is marked ‘confidential’ but its publication has been agreed):
The NHS Improvement lead manager for this project, who has recently taken over from Tom Grimes, is Maria Robson, NHS Improvement Head of Trust Resourcing firstname.lastname@example.org
For completeness, this is the agenda for the workshop on 24 March 2017:
UPDATE 23 SEPTEMBER 2017
UPDATE 8 OCTOBER 2017
Things have been rather stirred up by a revelation that NHS Improvement surreptitiously helped to secure NHS re-employment for a sacked NHS whistleblower without any of the vetting that NHSI has claimed is required, and whilst telling the majority of other whistleblowers that the employment support scheme on offer consists merely of preparation for return to work.
Mr Mackey NHSI Chief Executive has been asked about this special treatment and whether NHSI will provide similar help to other whistleblowers:
1 Page 153 Robert Francis’ report of the Freedom to Speak Up Review February 2015
“7.3.8 Beyond that, I believe that there is an urgent need for an employment support scheme for NHS staff and former staff who are having difficulty finding employment in the NHS who can demonstrate that this is related to having made protected disclosures and that there are no outstanding issues of justifiable and significant concern relating to their performance. This should be devised and run jointly by NHS England, the NHS Trust Development Authority and Monitor. As a minimum, it should provide:
- remedial training or work experience for registered healthcare professionals who have been away from the workplace for long periods of time
- advice and assistance in relation to applications for appropriate employment in the NHS
- the development of a ‘pool’ of NHS employers prepared to offer trial employment to persons being supported through the scheme
- guidance to employers to encourage them to consider a history of having raised concerns as a positive characteristic in a potential employee. 7.3.9 All NHS organisations should support such a scheme. Doing so would send a clear signal to their staff, and to staff across the NHS that they are willing to value people who are brave enough to raise concerns. Organisations that do should be given appropriate recognition (see 7.8).”
2 This is the passage included in both NHS England’s application form (page 4 of 27) – handed out at the workshop on 24 March – and in NHS Improvement’s draft protocol:
NHS Improvement draft protocol:
“In providing evidence of eligibility to the Employment Support Scheme, it is important to highlight that the application is an opportunity to demonstrate suitability and eligibility to apply for the scheme and to focus on employment aims and support needed to return to employment. It should not be used to raise specific whistleblowing concerns or re-iterate whistleblowing experiences. How the whistleblowing case was handled or the management actions that were taken as a result of any employment disputes will not be reviewed as part of the process to join the scheme.”
NHS England whistleblower employment support scheme application form (highlighted in bold on the form):
“In providing evidence of eligibility to the Employment Support Scheme, it is important to highlight that the application is an opportunity to demonstrate your suitability and eligibility to apply for the scheme and to focus on your employment aims and support you need to return to employment. It should not be used to raise your specific whistleblowing concerns or re-iterate your whistleblowing experiences. How your whistleblowing case was handled or the management actions that were taken as a result of any employment disputes will not be reviewed as part of the process to join the scheme.”