By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 21 April 2017
The Freedom To Speak Up Review 1 was an expensive exercise in government spin and stalling.
It gave the appearance that something was being done by the government, when in reality all that happened was that tokenistic, ineffective measures were – in theory – adopted and the Department of Health press office acquired another willing helper – the National Guardian’s office. 2
After the initial buzz of the launch in February 2015, and the cameras departed, many of the NHS bodies that were assigned homework in terms of specific Freedom To Speak Up action plans did not implement the tasks, took an excessively long time and or did a shoddy job. 3
Importantly, over two years on from Francis’ recommendations for establishment of an office to scrutinise cases, over a year since the National Guardian’s office was established and over seven months after the latest National Guardian took up post, not a single NHS whistleblower case has been reviewed.
Health Education England (HEE) was also one of the bodies given homework as a result of the Freedom To Speak Up Review, but has now admitted that it has not attended to a key task: ensuring that local Speak Up Guardians are properly trained.
Of course, Health Education England notoriously retaliated against Dr Chris Day, junior doctor whistleblower by removing his National Training Number, thus scuttling his specialist training. The government, including the Health Secretary, then closed ranks and claimed a loophole in coverage of whistleblowing law for junior doctors. (I say ‘coverage’ as opposed to ‘protection’, as current whistleblowing law is weak and does not protect). After the resulting scandal, the government and HEE came up with a sticking plaster solution which allowed junior doctors the dubious privilege of suing HEE in the High Court, at prohibitive expense. 4
The government’s position has been challenged. Judgment is awaited from a recent hearing at the Royal Courts of Justice on Chris Day’s case.
The details of this extraordinary saga can be found here:
Given this shabby background, it is unsurprising that HEE has not been diligent in helping to improve NHS whistleblowing governance.
The government assured us in July 2015 that HEE would produce guidance on the training needed for the local Speak Up Guardian role:
“Health Education England should produce guidance on what training will be needed for the Freedom to Speak Up Guardian role, along with a curriculum that NHS organisations can use to ensure that the training they are providing on raising concerns is of a sufficiently high standard”
“HEE will develop and publish guidance on training for this role working with the CQC and the Independent National Officer [National Guardian]. We would expect HEE to take into account the work the INO will undertake around recruitment for this role.” 5
HEE has now disclosed via FOI that it has done no work at all on this matter and that there has been no liaison with the National Freedom To Speak Up Guardian:
“HEE has not yet conducted any work with the National Guardian or their office…”
HEE does not even give assurance that the work will definitely be done – it only says that the work may be done:
“…this may change…”
This is HEE’s FOI disclosure:
So by HEE’s latest admission, the government’s promises that Speak Up Guardians – who are a central plank of Robert Francis’ recommendations – should have kitemarked training have come to naught.
Why hasn’t the National Guardian ensured that the action plan was implemented?
How confident can we be that the numerous Guardian training events held so far by the National Guardian are of adequate quality?
Whistleblowers have asked to observe these training sessions for Guardians, but have been refused.
Nevertheless, the National Guardian who by her own admission is keen on Good News stories, spins copiously about how well the Speak Guardian network is progressing. 6 This is despite the evidence so far that Speak Up Guardians add little value. 7
Additionally, HEE discloses that it still has no Speak Up Guardian of its own, although it says it plans to recruit one.
HEE also previously disclosed in February 2016 that it had no external whistleblowing policy:
It disclosed to another party in January 2016 that it did not hold any central data about whistleblowing disclosures by trainees.
Despite its woeful behaviour and omissions, and lack of evidence, HEE claimed in its above February 2016 disclosure:
“HEE supports trainees raising concerns and encourages them to do so. While we cannot discuss individual cases, at a local level, HEE has supported trainees report concerns to their employer, the GMC, Care Quality Commission and other relevant regulatory bodies. We believe that trainees can be the eyes and ears of patient safety.”
HEE in fact became a Prescribed Person under the Public Interest Disclosure Act (PIDA) in February 2016, and has a duty to receive and record whistleblowing disclosures by NHS staff in regards to:
“…matters relating to the education and training for health care workers and ensuring sufficient skilled and trained health care workers are available for the delivery of services” 8
It now has an external whistleblowing policy 9 and also claims that it has kept a central record of whistleblowing incidents:
“HEE became a prescribed Person in February 2016…HEE has kept a central record since becoming a Prescribed Body”
So currently, we have a situation in which a PIDA prescribed body that is responsible for handling disclosures about other organisations and helping to ensure best practice, can also be sued in the High Court for causing direct whistleblower detriment to those who disclose to it.
‘Dysfunctional’ does not even start to describe this tangled oversight arrangement.
But then, tangle is exactly what you get when governments practise to deceive.
UPDATE 1 NOVEMBER 2018
It was widely reported that HEE removed Chris Day’s training number, including in an article of 2 October 2018 by The Guardian, which coincided with the commencement of an Employment Tribunal hearing of a claim against HEE:
“A number of counter-allegations were made against him, and his HEE training number was deleted, effectively forcing him out of his career.”
Further facts have emerged since the conclusion of a Employment Tribunal hearing which indicate that Dr Day resigned his training number.
A statement agreed between parties was published by HEE on 15 October 2018:
1 Report by Robert Francis of the Freedom To Speak Up Review, February 2015
2 As an example of the National Guardian’s office being on message, it recently reproduced verbatim a Department of Health press release claiming:
“Since the tragic events of Mid Staffs we have made considerable progress to making the NHS the safest healthcare system in the world including appointing a National Guardian and making sure every NHS organisation has a Freedom to Speak Up Guardian.”
3 Examples of half hearted implementation of the Freedom To Speak Up Review and foot dragging include:
- Government failure to designate a number of bodies as Prescribed Persons as recommended by Francis
- Government failure to given NHS commissioning whistleblowers a Prescribed Person
- Under-funding and very serious delay on the NHS whistleblower employment support scheme
- Failure by the Care Quality Commission to inspect providers’ compromise agreements, despite claims that it would so
4 Health Education England published information August 2016:
5 Learning, Not Blaming. Government action plan from the Freedom To Speak Up review, July 2015
6 This is some of the National Guardian office’s public relations output:
National Guardian newsletters
National Guardian promotional video, which Speak Up Guardians are being encouraged to disseminate:
“We would encourage all Guardians to use the video in their engagement activities, such as when speaking at team meetings or inductions, or as a tool to engage their Board or other staff groups.”
100 Day report by the National Guardian
Transcript of conference speech by the National Guardian
7 Critique of Francis’ model of trust appointed Guardians. Excerpt from evidence to the Department of Health, Minh Alexander 4 June 2015
8 List of PIDA Prescribed Persons
9 Health Education England external whistleblowing policy