By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 18 May 2017
The ebb and flow of whistleblowing politics is such that when governments are forced to concede a little in the glare of scandal, they soon dig escape tunnels.
One such attempted Great Escape by the Department of Health et al – based on misinformation and invention – was recently thwarted. 1
But as soon as that tunnel was filled in, more appeared. I will focus on one in particular:
Very seriously, it emerged via a CQC disclosure of personal data to a whistleblower that the National Guardian’s office is claiming that it cannot review cases if they are ‘live’.
This is contrary to common sense, evidence and good practice principles of early intervention, which were accepted by Robert Francis in his report of the Freedom to Speak Up Review:
“42 It was clear in so many of the cases we heard about that if they had been handled well from the outset, a great deal of pain and expense could have been avoided. The more issues can be ‘nipped in the bud’, the greater the likelihood that there will be a successful outcome for everyone involved. A common factor in many of the cases we heard about was the length of time they took to resolve, if indeed they were ever resolved. Some had gone on so long it was impossible or impracticable to get the full picture. The impact of this on both individuals and organisations was immense.” 2
On 8 May 2017 I asked the National Guardian for clarification as follows:
“Should I understand from this that your office intends to wait until say, employers’ disciplinary processes against whistleblowers have concluded and have potentially resulted in disciplinary action and dismissal, before the office will consider reviewing the whistleblower cases in question?”
The reply that arrived yesterday is affirmative, albeit short on definition:
“…during the 12-month trial of our case review process we will initially select cases for review where there are no outstanding decisions to be made”
This is disastrous for distraught whistleblowers whose careers, livelihoods and long term financial security are hanging by a thread.
“Go away and come back once you’ve been disciplined/ referred to your professional regulator/ sacked” is a dysfunctional and wasteful system response.
In separate correspondence on 18 April 2017 I asked the National Guardian what she would do for whistleblowers who have been sacked whilst waiting for her office to open to referrals. Russell Parkinson her Head of Office replied:
“Where a case review finds evidence that a whistleblower has been dismissed inappropriately, we will make recommendations that action is taken, as appropriate. This may include recommending that the employer reinstates the worker concerned”
Preventing dismissal is much easier than sorting things out once the employment relationship is severed.
Not least because early intervention would help reduce the de-skilling that later contributes to whistleblowers’ unemployability.
Once a whistleblower is sacked, there is no guarantee that either the National Guardian will recommend reinstatement (assuming she even accepts the case, which remains a significant uncertainty) or that an employer will acquiesce.
The National Guardian has the option of asking system regulators to take action against trusts that defy her.
The odd show case will probably be paraded to win ministers some favourable headlines. Realistically though, history shows that regulators have largely protected those who mistreat whistleblowers. So it is doubtful they will help much to ensure that whistleblowers are reinstated.
Crucially, what happens to patients whilst the National Guardian twiddles her thumbs waiting for protracted employment processes to conclude?
Robert Francis made it clear in his report of the Freedom To Speak Up Review that he expected that harm and risk to patients which results from poor whistleblowing governance should be always be addressed. 3
Does Henrietta Hughes really think that it is appropriate not to step in when a whistleblower tells her that an employer has ignored or minimised patient safety concerns, just because the employment process has not concluded?
And employers may deliberately draw matters out for years – running investigations of investigations of investigations – to wear whistleblowers down and to engineer a breakdown of relationships (a lawful basis for dismissal).
And what if the National Guardian also counts employment tribunal processes and referrals to professional regulators amongst the matters that must be resolved before she will consider reviewing a case?
In short, it is unacceptable to delay in responding to whistleblowers’ reports that employers are mistreating them or putting patients at risk.
In classic Whitehall-ese, the National Guardian holds out a possibility that her processes may change at some point:
“As the trial period progresses, we will review this approach and explore whether we can effectively open up the parameters within which we will be able to accept cases for review.”
In due course. At the appropriate juncture. In the fullness of time.
This mess only emphasises that an entirely different sort of body is needed, which has powers to investigate and remedy, and is designed to be proactive. It would need of course to operate under fully reformed whistleblowing law.
I have asked for clarification of which processes must be exhausted before the National Guardian will consider reviewing whistleblower cases.
NEXT IN THE ESCAPE TUNNEL SAGA:
Employer impunity for ignoring whistleblowers’ concerns
RELATED ITEMS: https://minhalexander.com/2017/03/26/at-the-nhs-improvement-soup-kitchen/
1 CQC and National Guardian defend Fortress DH. Minh Alexander, 6 May 2017
2 Report of the Freedom To Speak Up Review by Robert Francis, 11 February 2017
3 Report of the Freedom To Speak Up Review by Robert Francis, 11 February 2017
“I believe that the widespread introduction of Freedom to Speak Up Guardians, with a national point of reference created through the new post of the Independent National Officer, is a key component in keeping watch over the way concerns are handled, providing support to those who need it, and ensuring the patient safety issue is always addressed.