BY EMAIL
Shaun Lintern
Patient Safety Correspondent
Health Service Journal
10 July 2017
Dear Shaun,
Next year’s HSJ patient safety conference and NHS whistleblowing policy
At your suggestion, I write with suggestions on NHS whistleblowing policy for next year’s HSJ patient safety conference.
Firstly though, I will address two assumptions that arose during our recent twitter exchange:
- You seemed to suggest that the criticisms of this year’s choice of speakers and lack of balance regarding whistleblowing matters stemmed from critics not being included. 1
I should clarify that I was very kindly offered a ticket but decided not to go, particularly after you informed me that the whistleblowing session had been cancelled. 2
- You seemed to imply that whistleblowers might attend in order to air grievances. 3
Whilst the DH and its organs frequently spin this line to discredit whistleblowers, it is in fact faulty policy (including policy on enforcement) that is at issue.
I think we all now know the typical NHS whistleblower 4 story by heart, and there is little use in endless reiteration. What is needed is action on the underlying failures of governance and policy.
As many whistleblowers and other interested parties see it, these are some of the key policy issues:
- The current UK whistleblowing law, the Public Interest Disclosure Act (PIDA), pays little attention to whistleblowers’ disclosures and does not compel employers to investigate them. 5 In a safety critical sector like the NHS, this puts lives at risk.
- NHS policy does not provide any failsafe for investigation of individual whistleblowers’ concerns where employers fail to conduct or commission local investigations at all, or properly. 5
Robert Francis emphasised in his report of the Freedom To Speak Up Review that this arrangement should continue. 6
- NHS regulators rarely use their discretionary powers to conduct thematic reviews or wider investigations even when there are clusters of whistleblowers. 7
- UK whistleblowing law provides only a post detriment right to claim compensation. What is needed is pre-detriment protection from the point of disclosure. There are numerous other weaknesses in UK whistleblowing law that were recently summarised by a 2016 review. 8
- There is no single UK agency that protects whistleblowers. There are only a huge number of Prescribed Persons under PIDA, who have no defined responsibilities under the Act other than to receive disclosures 9, and since this April, to publish relatively superficial data about this. 10
Many of these bodies are under the line management of government departments and there is a conflict of interest if whistleblowers raise concerns that relate to failure of government policy or performance, such as the consequences of the current cuts in the NHS.
In the NHS, whistleblowers frequently perceive that regulators and oversight bodies close ranks to suppress their concerns.
There is even evidence that bodies such as the CQC breach whistleblowers’ confidentiality to their employers 11 and are in some cases complicit in reprisal. 12 In one case this happened to a whistleblower after he criticised the CQC’s failures, so some very serious questions arise from that case. 13
- Whistleblowers rarely succeed in the courts. They may be priced out of court or beaten by inequality of arms. By the point at which litigation commences, there will usually have been a serious failure of governance.
This is data on recent and current NHS Employment Tribunal litigation including whistleblowing claims:
https://minhalexander.com/2017/07/06/the-nhs-in-the-employment-tribunal-a-five-month-sample/
- Government policy should refocus away from litigation on employment issues, to resolving concerns, and preventing the detriment that leads to wasteful, destructive and often futile litigation. Resolving concerns is clearly of utmost importance in safety critical sectors.
Where litigation is unavoidable, the current inequality of arms needs to be addressed through the way in which future law is drafted. More of the litigation burden also needs to be lifted away from individuals, with some of it borne by the State, in recognition of the public service performed by whistleblowers.
- The National Freedom To Speak Up Guardian’s office has been established without any of the necessary powers to properly protect whistleblowers. 14 It has been further compromised by being made subordinate to the CQC. 15 It is additionally refusing to fully exercise the limited remit that it was given.
For example, the National Guardian’s office was intended to review cases and challenge others to remedy detriment to patients and whistleblowers 14 but it is refusing to intervene early enough. 16
There is now written confirmation from the National Guardian’s office that it will not review cases until all processes are concluded, including Employment Tribunal claims. 17
This means that whistleblowers will as usual be hung out to dry and that by the time the National Guardian may deign to review a case, the whistleblower will most likely be in poor health, broke, de-skilled, unemployable and blacklisted.
The National Guardian has been asked to clarify what exactly her refusal to intervene in a timely manner, potentially for years, means for unresolved patient safety risks that whistleblowers are concerned about.
Despite assurance given by Robert Francis in his report of the Freedom to Speak Review that the office would act “quickly” in the event of serious safety issues coming to light, 18 the National Guardian has not so far responded to this question.
The National Guardian has also declined to actively seek reform of whistleblowing law, although there is wide recognition that PIDA is inadequate. 18b
She also has no plans to seek statutory independence. 18c
- No effective deterrence is currently provided against whistleblower reprisal. In most cases, there are few consequences for the culprits. Where there are consequences, abusers are often recycled with the help of regulators. 19 The implementation of CQC Regulation 5 Fit and Proper Persons has largely been inadequate, with a number of very perverse decisions by the CQC which has chosen to merely rubber stamp bureaucratic processes, rather than to weigh the validity of trusts’ decision making. 20 21
Effective sanctions are needed, including criminal sanctions, and justice needs to be seen to be done to re-set culture. Indeed, this is the advice of the employment law and whistleblowing expert Professor Lewis who led the research team that supported the Freedom to Speak Up Review:
As I am sure you will be aware from your coverage of the Mid Staffs disaster and the interviews that you have conducted with Robert Francis, Francis originally recommended criminal sanctions for whistleblower reprisal. However, he has since U-turned on this recommendation. 22
- The current Department of Health (DH) policy of Speak Up Guardians who are employed by trusts is not evidenced based. 23 Robert Francis, the CQC and National Guardian have all conceded that this is so. 23b This breaches all good practice in healthcare and there is already evidence that some local Speak Up Guardians have failed current whistleblowers. There has been a haphazard approach to appointments and lack of reliable quality control. Indeed, one former Freedom To Speak Up Guardian was jailed. 24
11. These issues have been brought to the attention of the National Guardian, and although she has a stated a responsibility for maintaining the integrity of the Freedom To Speak Up Guardian network 25, she has indicated that it is the responsibility of trusts to make appropriate appointments. 26 This further illustrates the weakness of the model.
Whistleblowing to the press continues, even in trusts with Speak Up Guardians, confirming the redundancy of these posts. 23 27 Indeed, the chair of the latest trust in question has felt comfortable to make a public attack on the author of a whistleblowing letter:
“This person is part of the reason the trust is in special measures. This individual is disappointing and is clearly frustrated.”
http://www.grimsbytelegraph.co.uk/news/grimsby-news/grimsby-hospital-trust-chair-launches-175112.amp
The recommendations of the Freedom To Speak Up Review were essentially based on appealing to people’s better nature and the power of persuasion. This is clearly not enough, but it provides the DH with a convenient means of claiming that it has taken action whilst still allowing the suppression of whistleblowers.
In the last NHS Staff Survey only 70% of the staff who were surveyed reported that they felt secure to raise concerns about unsafe clinical care, and only 58% felt confident that their organisations would address their concerns. 28 This translates into hundreds of thousands of NHS staff who do not feel safe to raise concerns about unsafe clinical care.
And as the above data shows, NHS staff continue to make claims in the Employment Tribunal for unfair dismissal after whistleblowing.
I would suggest two core elements are needed to drive better culture:
1) Substantive law reform
2) A fit for purpose, properly resourced central body with powers that is independent of government departments, and that can support whistleblowers and enforce good governance. This body should have powers to direct investigations, conduct investigations itself and order remedy of detriment. A power to correct detriment should help reduce the need for damaging and costly litigation and there are international precedents for such a model. 29
I see that at this year’s patient safety conference on 5 and 6 July there were observations by Robert Francis that it is still not safe for staff to speak up, comments by the CQC that whistleblowers should be better treated, and a video appearance by the Secretary of State making claims that under his stewardship that the NHS is “enthusiastically open about issues”. 30
It would improve the quality of debate at next year’s conference if specific policy issues such as those that I have laid out above could be placed on the agenda, with an element of debate.
I think it is reasonable to ask Robert Francis, the DH and NHS regulators to account properly for their ongoing policy failures on whistleblowing on a level playing field, with presentation of opposing evidence and proper time allocated for discussion, and not just a few questions from the audience at the end of set pieces.
The relevant experts could be invited to take part. For example, experts and researchers in whistleblowing like Professor Lewis, experienced lawyers who have represented NHS whistleblowers and who are critics of weak NHS disciplinary procedures which are integral to whistleblower persecution such as John Hendy QC and of course, experts by experience.
If you are agreeable to more meaningful content and format, I am sure whistleblower campaigners would be happy to contribute.
The NHS is an important and high profile test bed for government policy on whistleblowing.
However, at present the superficial and wasteful NHS Freedom To Speak Up project is in effect functioning as a bottleneck to reform across the wider system.
I am sure that many public interest journalists and campaigners from other sectors would be much obliged if you would help to pick up this important baton.
Moreover, given the DH et al’s reluctance to genuinely act upon on evidence of ongoing failures, whistleblower campaigners will inevitably have more relevant evidence to share with you by the time of next year’s conference.
I look forward to your reply and an indication of whether any of these elements may be accepted for next year’s patient safety conference.
I copy this to Norman Lamb whom I understand is in touch with an NHS whistleblower who has reported both local and National Guardian failures.
I copy it to Keith Conradi regarding the unresolved systemic issue of unsafe NHS arrangements for investigating whistleblowers’ concerns.
I also copy it to the relevant parliamentary committee chairs as an update on the National Guardian’s refusal to review cases where whistleblowers make a claim to the Employment Tribunal.
With best wishes,
Minh
Dr Minh Alexander
Cc Norman Lamb
Keith Conradi, Chief Inspector Healthcare Safety Investigation Branch
Meg Hillier
Bernard Jenkin
Sarah Wollaston
RELATED ITEMS
1.National Guardian reprieves NHS Employers but condemns whistleblowers and patients
2. Breach of confidentiality by CQC and complicity in referring a whistleblower to the disclosure and barring service
REFERENCES
1 https://twitter.com/ShaunLintern/status/883248831663681536
2 Your email to me of 14 June 2017:
“Hi,
The programme was in draft form when that was issued and still hasn’t quite been finalised but that session isn’t going ahead. It was only an intial idea.
The final programme will be published soon.
Shaun”
3 https://twitter.com/ShaunLintern/status/883250540343328768
4 21 Ways to skin a whistleblower. Private Eye 2011
http://medicalharm.org/wp-content/uploads/2011/12/21-Ways.pdf
5 Engineered failure to investigate NHS whistleblowers’ concerns
https://minhalexander.com/2017/04/08/engineered-failure-to-investigate-nhs-whistleblowers-concerns/
6 Robert Francis’ report of the Freedom To Speak Up Review, 11 February 2015
“7.6.13 I want to emphasise that I am not proposing an office to take over the investigation of concerns. As I have already said, this needs to remain the responsibility of the local organisations.”
7 The CQC and Monitor published a single joint investigation into a a whistleblowing cluster at the Christie. I am not aware of any other such investigation.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/379803/Christie_Review.pdf
8 Protecting whistleblowers in the UK, Blueprint for free speech, May 2016
9 The Role of Prescribed Persons, National Audit Office, 27 February 2015
“It is not clear what is expected from the prescribed persons community. The Department is responsible for the legislation that enables whistleblowers to claim compensation for detriment or dismissal. This legislation includes the list of prescribed persons. However, it does not specify the expectations of the role. For example, prescribed persons are not required to investigate every concern or to give feedback. The Department has recognised the need to act and has recently established a working group to develop best practice for prescribed persons.”
https://www.nao.org.uk/wp-content/uploads/2015/02/The-role-of-prescribed-persons.pdf
10 Prescribed Persons guidance, BEIS, April 2017
11 On 6 July 2017 the campaigning charity Compassion in Care disclosed that it knew of 47 whistleblower cases in which CQC has revealed whistleblowers’ identities to employers.
https://twitter.com/alexander_minh/status/882943648052248581
12 CQC breach of whistleblower confidentiality and complicity in referring a whistleblower to the Disclosure and Barring Service
13 NHS is allowing babies to be maimed, Sunday Times 21 December 2014
14 In his report of the Freedom to Speak Review, Robert Francis gave the following justification for not recommending a whistleblowing body with powers:
“74 I considered whether there is a case for establishing an independent body with powers to review staff concerns. I concluded that it would be wrong to take responsibility for dealing with concerns away from trusts, and would be more likely to lead to delays and additional layers of bureaucracy.”
15 National Guardian Independence: The CQC denies some more….
https://minhalexander.com/2017/01/19/national-guardian-independence-the-cqc-denies-some-more/
14 The National Guardian’s job description indicates clearly that she should borrow powers from regulators and from NHS England:
“The National Guardian, whilst not having specific statutory powers, will have sufficient authority from CQC, Monitor, the NHS Trust Development Authority (NTDA) and NHS England to ensure recommendations are taken seriously and acted upon.”
These are some of Robert Francis’ key statements in his report of the Freedom to Speak Up Review about how the National Guardian should operate:
“78 The INO [National Guardian] will have discretion to consider how an existing case is being or has been handled, and to advise an organisation on any actions they should take to deal with the issues raised. The officer would need to operate in a timely, non-bureaucratic way. He/she would not take on the investigation of cases themselves, but would challenge or invite others to look again at cases and would need sufficient authority to ensure that any recommendations made were taken seriously and acted upon. The office should be more nimble and less bound by legalistic process than a statutory body, with wide discretion to decide whether it is appropriate to get involved in a particular case. In essence the INO [National Guardian] would fulfil, at a national level, a role similar to that played by Freedom to Speak Up Guardians locally and provide national leadership for these issues.”
“There should be an Independent National Officer resourced jointly by national systems regulators and oversight bodies and authorised by them to carry out the functions described in this report, namely:
- review the handling of concerns raised by NHS workers, and/or the treatment of the person or people who spoke up where there is cause for believing that this has not been in accordance with good practice
- advise NHS organisations to take appropriate action where they have failed to follow good practice, or advise the relevant systems regulator to make a direction to that effect
- act as a support for Freedom to Speak Up Guardians
- provide national leadership on issues relating to raising concerns by NHS workers
- offer guidance on good practice about handling concerns
- publish reports on the activities of this office”
“76 Rather than establish yet another new body, which would require legislation as well as new funding, I propose that an Independent National Officer (INO) should be jointly established and resourced by the CQC, Monitor, the NHS TDA and NHS England, to operate under the combined aegis of these bodies. The INO would be authorised by these bodies to:
- review the handling of concerns raised by NHS workers where there is reason to believe that there has been failure to follow good practice, particularly failing to address dangers to patient safety or causing injustice to staff
- where this has occurred, to advise the relevant NHS organisation to take appropriate and proportionate action, or to recommend to the relevant systems regulator or oversight body that it make a direction requiring such action
- offer guidance on good practice
- act as a support for Freedom to Speak Up Guardians
- publish reports on common themes, developments and progress towards the creation of a safe and open culture in the NHS.”
“97 I believe that the Principles and Actions in this report should together make it safe for people to speak up, and provide redress if injustice does occur. The creation of Freedom to Speak Up Guardians and an Independent National Officer in particular are key components of this, to provide support and ensure the patient safety issue is always addressed.”
16 National Guardian reprieves NHS employers but condemns whistleblowers and patients
17 Email 4 July 2017 by the National Guardian’s Case Review manager to a current NHS whistleblower:
“…I can confirm that outstanding decisions relating to a particular case include those to be made by an employment tribunal…Therefore, as you have informed us that you have submitted your case for consideration by an employment tribunal, I can confirm that we are unable to currently consider your case for review.”
18 Robert Francis’ report of the Freedom To Speak Up Review, 11 February 2015
“7.6.15 It is not my intention that the INO [National Guardian] should have binding powers. I do not see this role as strictly comparable to that of an Ombudsman. Instead they would advise relevant organisations on any actions that should be taken to deal with the issues raised. The officer would need to operate in a timely, non-bureaucratic fashion, with the capacity to act quickly in the event of serious safety issues coming to light. He or she would need to have sufficient authority to ensure that reviews and any recommendations coming from them are taken seriously and acted upon quickly.”
“97 I believe that the Principles and Actions in this report should together make it safe for people to speak up, and provide redress if injustice does occur. The creation of Freedom to Speak Up Guardians and an Independent National Officer in particular are key components of this, to provide support and ensure the patient safety issue is always addressed.”
18b Letter from Henrietta Hughes National Guardian 16 February 2017:
“However, we are not currently seeking to campaign for changes to the law.”
Letter from National Guardian’s Head of Office 18 April 2017:
“There are many potential barriers to speaking up and, working with Freedom to Speak Up Guardians in trusts and organisations within and around the NHS, we want to take action to bring a wide ranging and long lasting change. Law reform may be part of this but, in itself, we do not see that as providing an enduring solution.”
18c Letter from Henrietta Hughes National Guardian 16 February 2017 in response to a suggestion that there should be a properly independent whistleblowing body:
“Whilst the National Guardian’s Office does not have powers overseen by parliament, its thinking and the recommendations it makes are independent from any other body or organisation. Naturally, whilst preserving our independence, it is important that we do not work in isolation so partnership working with other organisations within and around the NHS is vital – this is an approach we would take whether we held statutory powers of our own or not.”
19 An example of recycling of managers who bullied staff and suppressed safety concerns is given by Rosie Cooper MP in this parliamentary debate on Liverpool Community Health NHS Trust of 13 July 2016:
20 CQC: A Chief Inspector doesn’t call
https://minhalexander.com/2017/01/27/cqc-a-chief-inspector-doesnt-call/
21 FPPR: CQC has lost all moral authority, but what will the National Guardian do?
22 Sir Robert’s Flip Flops
https://minhalexander.com/2016/09/26/sir-roberts-flip-flops/
23 These are articles summarising the lack of evidence for Robert Francis’ Speak Up Guardian model:
https://minhalexander.com/2016/09/24/critique-of-francis-model-of-trust-appointed-guardians/
- Robert Francis reportedly conceded at a conference on 8 March 2017 that his model was not evidence based, in the form of a comment that Speak Up Guardians were “pioneers, there’s not another model like this in the world”:
https://twitter.com/WhistleUK/status/839502184370876416
- The National Guardian acknowledged at a meeting on 2 February 2017 that there was no evidence for the Speak Up Guardian model.
https://minhalexander.com/wp-content/uploads/2017/02/hh-meeting-records-23-01-2017-and-2-02-2017.pdf
- The CQC and National Guardian agreed to remove a misleading claim in an official CQC publication, the National Guardian’s final case process guidance, which held that all of Robert Francis’ “principles” from the Freedom to Speak Up Review were evidence based, after it was pointed out that the Speak Up Guardian model was not evidence based.
24 Freedom To Speak Up Guardian jailed
https://minhalexander.com/2017/03/07/freedom-to-speak-up-guardian-jailed/
25 National Guardian’s job description September 2015:
“Key Responsibilities:
To provide support and advice for the Local Guardians: The National Guardian will support the Local Guardians, building a strong national network, for example through convening regular meetings and sharing learning. The National Guardian will have a key role in designing the consistent framework within which Local Guardians operate, and the training they receive. While Local Guardians will report to the Chief Executive of their organisation to ensure local ownership, the National Guardian should be there to provide professional support and advice.”
26 Email from National Guardian 9 March 2017:
“… it is important that trusts appoint Freedom to Speak Up Guardians that meet the needs of their staff and the expectations that we have set out in the example job description for the role. This is a new and important role and, although we are not involved in the recruitment process in providers we will monitor how it is being implemented. Where we are aware of situations that indicate that a Freedom to Speak Up Guardian is not supporting staff in the way we would expect we will, in the first instance, raise this with the Chief Executive of the trust in question.”
27 In full the whistle-blower’s letter about Northern Lincolnshire and Goole NHS Trust, Grimbsy Telegraph 5 July 2017
28 NHS Staff Survey 2016
“Findings on unsafe clinical practice were similar, with 70% of staff feeling secure in raising any concerns they may have regarding clinical practice. Fifty-eight percent of staff had confidence that their organisation would address their concerns if they were raised.”
http://www.nhsstaffsurveys.com/Caches/Files/20170306_ST16_National%20Briefing_v6.0.pdf
29 US Office of Special Counsel https://osc.gov/
Netherlands House of the Whistleblower http://www.osborneclarke.com/insights/are-you-ready-for-the-new-dutch-house-for-whistleblowers-act/
30 Reported comments from the patient safety conference 5 July 2017:
Robert Francis:
“I’m not yet satisfied that staff in the NHS can speak up without fear”
https://twitter.com/JamesTitcombe/status/882261289107685376
Jeremy Hunt:
“The NHS has changed from sweeping problems under the carpet to being enthusiastically open about issues”
https://twitter.com/ShaunLintern/status/882550426326925312
Ted Baker:
“We don’t have a system where people can raise concerns and get them looked into without it becoming a big issue and a big concern all round”
“He [Ted Baker] said the “challenge” for the NHS and the CQC was to “create a culture” where staff feel confident in raising worries”
Alexander's Excavations 
Thank you for your informative, if depressing, essay.
Difficult not to compare your grasp of the essential issues and consequential effective analysis and recommendations, with that of the Neville Chamberlain ‘Peace in our Time’ paper-waving, model used by NHS executives.
The latter are evidently so utterly hopeless one fears for them.
Regards, Zara.
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Should one not rather fear for their victims? Who include not only the whistleblowers but US ALL, as patients at risk?
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You are right about the inappropriate format for patient safety conferences. One person is allowed uninterrupted time to unpack their case without any contrasting view on the stage and then a handful of questions follow from the audience, many pre-selected by the chair. Meaningless but as you say, gives the impression of ‘doing something’.
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